Jeff Merkley

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that my intern Nicholas Piwonka be granted privileges of the floor for the remainder of the day.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I am honored to be on the floor for the maiden speech of my colleague Senator Duckworth.

Mr. MERKLEY

Mr. MERKLEY. My colleague from Illinois brings up the frozen trucker case, as it has often been referred to, and how it demonstrates an effort to really twist the law away from its original purpose in order to find for the powerful over the individual. In this particular case, when he wrote his viewpoint, Neil Gorsuch revealed a whole lot because here was a law specifically crafted to protect truckers from being fired if they operated for personal safety or the safety of the public. Clearly, for him to have driven that trailer down the road, a fully loaded trailer without brakes because the brakes were frozen, would have been incredibly dangerous to all kinds of people. To stay in that cab freezing to death was dangerous to him. You can interpret the concept of operating a truck, and the law said refusing to operate a truck. Well, does refusing to operate a truck mean that you refuse to operate it in exactly the manner that you were told to? Does it mean driving the cab without the trailer or the cab with the trailer? Gorsuch zeroed in on the fact that, well, he did not refuse to operate because he drove the cab. He was operating. Well, no, he was not operating in any common person's understanding. He left the trailer there. He wasn't driving it down the road. But he searched for that slight little way that he could say: Well, that does not quite fit, and therefore I can find for the corporation. It just fits case after case after case in which the nominee who is before us now stretched the law, twisted the law, tortured the law, in order to try to find a victory for the powerful over a person.

Mr. MERKLEY. I thank my colleague from Illinois for coming down to help focus on some of those cases. I appreciate the great knowledge he brings to Senate issues and the deliberations in the Judiciary Committee. I am not a member of the Judiciary Committee, so, as I listened to my colleagues commenting on the questions that were being raised and how they were being answered, I saw in the course of those hearings a trajectory in which many colleagues found, as they looked into the heart of these decisions, that there was an absence of heart reflected in the decisions. The ability to understand the full context of which something happened is so important. When I was a freshman in college, I had a course, a freshman seminar, and that seminar was taught by an esteemed professor of the law school. She would have us read the circumstances of a case, and then say: How would you have ruled on this case? We would write up our little memos, our short little memos, not really based on law because we didn't know the law but on common sense or whatever life experience would have brought to bear. Then the next week, we would read the Justice's opinions, their decisions on what they had found to be the case--did they sustain the argument for the defense or otherwise, and what arguments did they bring to bear? I was always struck that William O. Douglas seemed to have the best grip on being able to place himself into the mindset and the situation of folks who were bringing grievances forward to be addressed. I think a lot of that came from his life experience and the life experience in which he had basically lived in the wilderness part of the time. He had hung out with hobos, and he had ridden the rods underneath the railroad cars to get from one place to another. He had experiences that were not just inside the bubble--the billionaire bubble, the elite bubble, the gated community. The opposite of that is the situation when I was in New York back in 2008 and I was speaking to someone about campaigning for the Senate. The individual said: I don't understand why you are so concerned about healthcare. Everybody has healthcare--everybody. Well, in his world, in his bubble, everybody had healthcare and everybody was wealthy, but that is not the entirety of the world. So it is so important to have people on the Court who can get inside the experience that others have and that diverse experience. You don't see that reflected in decisions that have been written by Neil Gorsuch. I thank my colleague from Illinois. The Guardian wrote an article titled ``The Guardian view of Trump's Russia links: a lot to go at.'' I will share this particular article, but before I do so, let us remember that we are here at this moment with three substantial issues. One issue is the fact that for the first time in U.S. history, a Supreme Court seat has been stolen from one President and delivered to another--the first and only time. Sixteen times we have had a vacancy in a Presidential year, and 15 times the Senate has acted to consider the nominee, in some cases rejecting them, in some cases--in most cases confirming them, but always acting until last year. The second big issue is this Russia investigation, the investigation of the links between the Trump campaign and the Russians, this big cloud hanging over the legitimacy of the Presidency. It needs to be resolved. That certainly affects whether it is legitimate to be considering at this moment the President's nominee before that cloud is dissipated or resolved because this individual, whoever is confirmed for this seat, will quite likely serve for many decades. When it is a younger nominee, as it is with Neil Gorsuch, that could be five decades. It could be an extensive length of time with decisions that stretch far into the future. Rather than rush through this in a few days, we should be setting this aside until these issues are resolved to make sure that we have established the legitimacy of the President's role in office and gotten rid of this cloud hanging over him. The third, of course, is the nominee himself. I so much appreciate my colleague from Illinois proceeding to, through his questions, raise a number of the points about Neil Gorsuch's record. There is the case of the frozen trucker. We did not talk about the case of the autistic child, but that is very similar, where the law--and it is similar in this sense--the law was quite clearly written to promote a particular resolution of a challenge, and that is that every child, despite their disability, would have the opportunity to have an appropriate education. Neil Gorsuch managed to reduce that down to mere improvement over de minimus; that is, basically a tiny little bit of improvement over doing nothing. That was the Neil Gorsuch standard. That standard went to the Supreme Court. The Supreme Court just recently issued its decision, and it was not a confirmation that it is OK to have just a mere improvement over doing nothing, it was a wholesale rejection, because the law is very clear, and Neil Gorsuch tormented it and twisted it and tortured it to produce a position that you can do nothing and meet the standard of the law that says you have to do quite a bit. So it was 8 to 0. It was not six out of eight or seven out of eight, but eight out of eight. Every Justice, no matter where they were in the ideological spectrum, said: That is an absurd finding and overthrew the Neil Gorsuch decision. (Mr. BARRASSO assumed the Chair.) So we have these three substantial, major issues to consider, and that is why this conversation should be set aside until we resolve the Russia investigation. I will read ``The Guardian view of Trump's Russia links.'' It says: Why days before the presidential election did the FBI announce it was reopening an investigation into Hillary Clinton--when it was silent about its probe into Mr. Trump's Russia ties? When the president's own staff turn up in Washington to publicly rebut his accusations that he had been wiretapped by his predecessor, it's not good news for the White House. Yet the longer the director of the Federal Bureau of Investigation, James Comey, and Mike Rogers of the National Security Agency appeared in front of a committee of Congress, the worse it got. Since last July, Mr. Comey said, the president's campaign has been investigated for colluding with Russia to influence the 2016 election. Donald Trump's election machine is coating his White House with sewage. Yet Donald Trump, with the insouciance of a Bourbon monarch, shows no sign of taking any notice of the facts. Nor, it seems, will he retract false claims, nor will he be held accountable for his dissembling. Mr. Trump is prepared to carry on in disgrace. He spent the minutes after his own intelligence officers called him out for peddling falsehoods by trying to create a bizarre counter narrative with the @POTUS twitter account that stretched his credibility so far it snapped. Well, this article continues to go into how just an amazingly absurd situation this is at this moment. I was really struck that what seemed to have transpired just a few days ago was that the White House, some key advisers in the White House, some very top advisers, called up the chair of the House Intelligence Committee and said: Hey, come over here to the White House. We want to brief you on some information that shows that maybe there was some intelligence picked up on Trump in the course of other intelligence activities. So the chair goes over to the White House, gets briefed, comes back to the House, holds a press conference, and says that he has this information from a whistleblower, and he has to go back over to the White House to brief the President. The whole thing was phony. The information came from the White House. The whole thing was set up to look as though there was some magnificent new information that somehow confirmed some theme or line the President was advocating. I mean, this was Keystone Cops. That is the place we have come to in this administration. So those are certainly the concerns that I have. I think it is important to continue focusing on the Gorsuch nomination. Let us recognize the setting in which this is happening. Certainly we have a nominee who seems to want a 19th century judicial philosophy for the 21st century. The preamble to our Constitution states: ``We the People of the United States, in Order to form a more perfect Union, establish Justice.'' That is a vision that reminds us that we are a nation of laws, where individuals like the frozen trucker can go to the authorities and get a fair, square deal, a deal that reflects the fact he was unfairly fired, but he didn't get that from Neil Gorsuch. The type of system where an autistic child who, under the law, is supposed to be receiving an appropriate education receives that education, but he didn't get that fair square justice from Neil Gorsuch. We are a nation of laws, but we are also a nation of justice, and it sets us apart from so many other countries--that concept that average citizens, ordinary people have a way to pursue justice. During his confirmation hearing last month, Judge Gorsuch put on a great show, kind of a friendly, everyday-man show, but when it came to making decisions, the ordinary person lost out on these decisions time after time after time. We have a far right, extremist judge outside of the mainstream who, in case after case, has twisted the laws to deny average Americans the justice they deserve. He is so far out of the mainstream that he would be the most conservative Justice on the Supreme Court--further to the right than Justice Antonin Scalia or Justice Clarence Thomas, according to an independent analysis by the Washington Post. The Post came to this conclusion by examining the Tenth Circuit's opinions that have been delivered since Gorsuch joined the Court in 2006. The Post concludes: The magnitude of the gap between Gorsuch and Thomas is roughly the same as the gap between Justice Sotomayor and Justice Kennedy during the same time period. In fact, our results suggest that Gorsuch and Justice Scalia would be as far apart as Justices Breyer and Chief Justice Roberts. We can see this extremism by examining some of Judge Gorsuch's significant cases. Earlier, my colleague from Illinois came in and spoke about the frozen trucker case. Alphonse Maddin was a truckdriver who was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures, and he did the responsible thing. He got off the road. He pulled over. He refused to drive under hazardous conditions, and he called for help. After reporting the problem to the company, he waited 3 hours in freezing temperatures for a repair truck to arrive. He couldn't even wait in the cab of his truck to keep warm because the auxiliary power unit was not working. After those 3 hours, his torso went numb, and he began having difficulty breathing. He couldn't feel his feet. So he unhitched the truck--that is the trailer, the loaded trailer, and left it there. He drove the cab, seeking to find a place he could get warm, and then he returned to the truck when the repairman was arriving. The law is specifically written to say that you can't fire a truckdriver for refusing to operate a truck in a fashion that will cause dangers to others. And that is what he did; he refused to keep driving with those frozen brakes in order to avoid causing danger to others. Neil Gorsuch looked for a way to twist that, to say: Well, he didn't refuse to operate the truck. He drove the cab, and that is kind of like operating the truck. Well, I would tell Neil: It is not. Operating a cab unhitched from a trailer is not the same as operating a truck with the trailer. The purpose of the driver is to deliver the goods. So, quite frankly, he did exactly what he should have done for his personal safety and the safety of others. He was fired for it, which is what the law is written to stop. Everyone else got this, but not Neil Gorsuch. Neil Gorsuch looked for a strategy that he could possibly find to favor a company over an individual, and that is really of great concern. In his dissent--Neil Gorsuch was not in the majority. He wasn't making the decision. He wasn't writing the majority opinion. He had a dissent. He strained the reading of the statute. He went out of his way to minimize the words ``health and safety'' in the law. He stated that finding for the driver was improperly using the law ``as a sort of springboard to combat all perceived evils lurking in the neighborhood'' and that the objective to promote health and safety was ``ephemeral and generic.'' Well, clearly the finding that a trucker who was fired because he refused to operate the truck--the cab and the trailer--in unsafe conditions because the brakes were frozen, when the law says you can't fire a trucker for refusing to operate a truck in unsafe conditions-- that is about not providing a very specific danger to the community. How do you get from that to say that finding for the driver was a framework ``to combat all perceived evils lurking in the neighborhood''? As if somehow deciding the case on the pure merits and the pure law, finding a case on behalf of an individual was somehow opening a Pandora's box of bad decisions that would affect other situations where maybe corporations that made a mistake would have to pay a fine. That would be unacceptable. I don't know what he meant by ``a sort of springboard to combat all perceived evils,'' but I know it is totally disconnected from the pure facts of the frozen trucker case and the law that guided it, and that is why the court found in the trucker's favor. In short, in reaching his conclusion, Judge Gorsuch took an extremely narrow view of the statute, remarking that it only forbids them from firing employees who refuse to operate a vehicle out of safety. That is exactly, of course, why he did it. I think that all along that case, you saw common sense, a clear view of the facts, and a clear view of the law on everyone's behalf, except for one individual, and that individual was Neil Gorsuch, who is before us. Let's turn to the case of the autistic child. Luke P, a young child with autism, began receiving special education services at his public school in kindergarten in 2000. He had an education plan specific to his needs, as required by the Individuals with Disabilities Education Act, the IDEA. The problem was that he wasn't making progress in generalizing skills, applying skills he learned at school to other environments. Despite his appropriate social interactions at school, he often had severe behavioral problems at home and public places, including violence. The public school's inability to meaningfully improve Luke's ability to generalize basic life skills put enormous stress on the family and exposed the limitations of what the school was able to provide. His parents found a program designed for children with this form of autism, a place that specialized in that, a place that knew how to approach it. They worked at getting him admitted, and they succeeded. It was a great opportunity for Luke to not only learn important life skills but to be able to apply them outside the classroom. Luke got in, and he began to flourish, getting the attention and specialized instruction that his condition merited. So Luke's parents, knowing that the IDEA requires that children with disabilities are entitled to a free education, applied to the school district for reimbursement of the new school's tuition, but the school district said they wouldn't fund that because they could meet the goals of Luke's updated education plan. But the problem was, they couldn't. That experience had already occurred, and the district had fallen short. At the due process hearing, the State level hearing, Luke's parents prevailed. They laid out their case. The hearing compared the situation to the law and the requirements in the law, and Luke's parents won. It went up to the Federal district court. Again, looking at the case, looking at the law, the parents prevailed. At each level, a hearing officer judge determined that Luke wasn't getting the help he needed at the public school. They concluded that, by failing to help him generalize his skills, they failed to provide him with the free appropriate education he was entitled to under the law. Each looked at the facts and said: Only the specialized residential school could provide the education he needed, and the school district must reimburse the family. Well, the school district appealed all the way up to the Tenth Circuit--Judge Gorsuch's Tenth Circuit. And what happened on the Tenth Circuit? Well, writing the opinion for the majority, Judge Gorsuch stated that ``the educational benefit mandated by IDEA must merely be more than de minimis.'' A way to translate that, ``merely more than de minimis'' means a tiny bit more than nothing. That is the standard. That is the Gorsuch standard. In effect, Judge Gorsuch argued that you meet the law designed to insist that disabled children get an appropriate education with a little bit more than nothing. Well, this was then appealed up to the Supreme Court, and what happened here just days ago? On March 22, Judge Gorsuch's ruling was overturned by the eight members of the Supreme Court. It wasn't a 5-to- 3 or 6-to-2 or 7-to-1 decision; it was 8 to 0. They felt that the standard Gorsuch put forward was totally incompatible with the way the law was written. That is a very telling situation to have eight Justices, through a large spectrum, see that the world is quite different from the world of Neil Gorsuch, where the law gets twisted to find for the powerful over the individual. Judge Gorsuch's ruling was overturned through a unanimous vote in the case of Endrew F. v. Douglas County School District during the final days of Judge Gorsuch's confirmation hearings, March 22. In that case, another autistic child, who also has attention deficit disorder, had been removed from public school since the fifth grade. Like Luke, he went on to make great progress in a private school. His parents said the education plan that the public school created was not helping, and they sued the school district to compel them to pay for the private tuition. It was basically a mirror example of Luke's case. In speaking for the Court, Chief Justice John Roberts said that Judge Gorsuch's de minimis standard was too low and that the Federal law demands more, that it requires an educational program that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. Chief Justice John Roberts went on to say in his majority opinion that it cannot be right that the IDEA generally contemplates grade level advancement for children with disabilities who are fully integrated into the regular classroom but is satisfied with merely more than de minimis progress. No. The IDEA contemplates grade level advancement, and it cannot be squared with the standard that Neil Gorsuch put forward in his saying ``merely more than de minimis.'' Speaking in front of the Court, the Solicitor General specifically noted that Judge Gorsuch's interpretation of the IDEA's requirement is not consistent with IDEA's text or structure with this Court's analysis or with Congress's stated purposes. Basically, that is the outline of the autistic child's case. Let's turn to the Utah en banc request, the Planned Parenthood Association of Utah v. Herbert. In August of 2015, Gary Herbert, Utah's Republican Governor, ordered the State to strip $272,000 in Federal funding from the Planned Parenthood Association of Utah in response to a series of hidden camera videos that were released by the Center for Medical Progress. They were attacking Planned Parenthood's program for providing fetal research tissue to research institutions. These videos were found to have been doctored and the footage was inaccurate. The entire premise was debunked. Despite the fact that the videos had no merit, Governor Herbert stood by his order to cut Planned Parenthood's funding. Utah's Planned Parenthood Association decided to fight back by filing for and temporarily receiving a restraining order against the State. In spite of his continued claim--that is, the Governor's claim--that stripping funding was not to punish the organization for its stance on abortion but was in response to the videos, Governor Herbert eventually admitted, while responding to Planned Parenthood's motion for a preliminary injunction, that the events in the videos involved other Planned Parenthood affiliates in other States, not Planned Parenthood in Utah. There was not even an accusation that Planned Parenthood in Utah had strayed beyond the law. The organization in Utah does not participate in that research program that was attacked in that video. There was no connection--not geographically to Utah and not through the substance issue of a tissue research program. None of the Federal funds that go through the State's health department to Planned Parenthood fund abortions, which is an important point. Let me reemphasize that the accusations made by the videos about Planned Parenthood and its affiliates were false. What the Governor's response has made clear is that he was, in fact, punishing Planned Parenthood of Utah for its constitutionally protected advocacy and its services that include abortion. That is a very, very small part of what it does. A three-judge panel on the Tenth Circuit Court of Appeals granted a preliminary injunction to Planned Parenthood, concluding that Utah's Planned Parenthood was operating lawfully and that the Governor's personal opposition to abortion could likely be demonstrated as a motivation for blocking Federal funds. Therefore, the Governor was targeting a health organization, in violation of its constitutional rights. We have these basic concepts, like equality under the law. You cannot just choose and pick, basically, whom you like and dislike. Here is what happened. In spite of that Tenth Circuit's finding of those three judges, who all found on the side of Planned Parenthood, Judge Gorsuch dissented from the court's denial and requested that it be considered en banc--that is, by the entire Tenth Circuit set of judges. This is very unusual because the Governor who lost the case was not asking for it to be reconsidered, and Planned Parenthood was not asking for it to be reconsidered. It was a done deal. The arguments that the Governor had brought basically fell apart upon examination-- each and every argument. Planned Parenthood of Utah was not in the videos. The videos themselves were edited to create a false story. They did not even participate in the same research program and so forth--I mean, every piece of it. Yet Judge Gorsuch said: No, we should have the entire group of judges reconsider this--a judge pushing this forward when the defendant did not even push it forward. He was willing to ignore court practice and custom, to mischaracterize facts in law to ensure that Utah's Republican Governor could eliminate funding for Planned Parenthood. He made a reference to kind of the deference to elected opinion. That, in itself, is very strange. Isn't your job to find out whether the circumstances fit the law and, if someone has been shortchanged, to rule for him and not to defer to someone because he has the title of ``Governor'' before his name? In the majority's opinion, Judge Mary Briscoe wrote separately to highlight the troubling nature of Judge Gorsuch's dissent. She noted first how unusual and extraordinary it would be for the Tenth Circuit to have one of its own make a motion for an en banc review when neither party to the litigation sought such a review. Second, Judge Briscoe emphasized that Judge Gorsuch repeatedly mischaracterized this litigation and the panel at several turns. Another judge in the majority pointed out that none of the parties asked for a rehearing within the time permitted and that there was no justification for polling the court on that question at all. Apparently, an unidentified judge had requested that the judges be polled. So we have here--as we have in the case of the autistic child, as we have in the case of the frozen trucker--another case of twisting the law to try to come out with an outcome that is not merited by the facts of the case or the plain language of the law. That really is a significant concern. Judge Gorsuch has been a lifelong ideological warrior. The quote from Henry Kissinger that he used in both his high school and Columbia yearbooks might have been intended as joke, but it warrants some consideration in light of his record: The illegal we do immediately. The unconstitutional takes a little longer. In light of these cases, where in case after case he stretched the law, tortured the law, twisted the law to find for the powerful--the Constitution has a vision of equality before the law. Our Constitution has this vision of justice for all so that when a judge does not pursue equality before the law, does not pursue justice for all, then that really is kind of a venture into the unconstitutional. That is exactly what happened in the case of the autistic child, where the Court said: Your decision was unconstitutional. Your decision to say that a little bit more than nothing meets the standard of the IDEA is wrong. That is unconstitutional. That is wrong for the law. Indeed, it almost makes the hair on your neck stand to realize that he was writing that the unconstitutional takes a little longer. His world view really began to take shape at Columbia when he cofounded the Federalist, which was the school newspaper, and a magazine called the Morningside Review. In writing for the publications, Judge Gorsuch defended social inequality, saying it allows men of different abilities and talents to distinguish themselves, as they wish, without devaluing their innate human worth as members of society and arguing that a responsible system requires a governing class that is comprised of men of exceptional political ability and spirit of concern who craft laws and run the government. When I read this, it made me think of Plato's ``Republic.'' In Plato's ``Republic,'' he lays out a vision of the guardians, kind of this superior group of men who find just the right solutions. It sure sounds like that--a responsible system that requires a governing class that is comprised of men of exceptional political ability, spirit, and concern, who craft the laws and run the government--in other words, a government by the elite. Through his decisions, we see that it is not just by the elite and by the powerful, it is for the elite and for the powerful. That is a long way from equality under the law, and that is a long ways from justice for all. And he characterized efforts to fight racism as ``more demand for the overthrow of American society than the forum for the peaceable and rational discussion of these people and events.'' We have a substantial amount of racism still embedded in our Nation, and we see it come out in unexpected ways. The first I was really aware of the racism that we have in our society was when I was a 19-year-old and I was an intern for Senator Hatfield here. I was assigned to open all of the letters each morning because I was the last of the three summer interns to arrive, and that job went to the last person. I started opening these letters, and the job was to sort them, to get them into different piles according to topic for the different corresponding legislative correspondents who would then write replies. But as I read the letters, I would read one letter and there would be an attack on Seventh Day Adventists. In another there would be an attack on African Americans. In another, there was an attack on immigrants, and so on and so forth. There were attacks on Mormons. There were attacks on every possible group. It made me think about how Oregon was at one time a territory that excluded African Americans, and at a later date it came to have the largest Ku Klux Klan in the Nation--Oregon. You wouldn't imagine that. I saw no signs of this racism growing up in the suburbs of Portland or down in Roseburg, but these letters that people were writing were full of racism. We can't simply pretend that it doesn't exist. Over the course of this last year, we have seen this time and again. We have seen groups that kind of are still deeply wedded to racism and discrimination, and they have kind of come out and made themselves more publicly available. They have kind of shared their thoughts more readily, and they have engaged in more racist acts against others. So we have more people who have been attacked in parking lots because of their race, or we have more situations where graffiti has been scrolled on the side of buildings. We have mosques that have been burned. We have synagogues that have been defiled. We have individuals who look to be Middle Eastern being attacked because they are looking like they are Middle Eastern. So, clearly, as to racism, we are not discussing this challenge in America, pondering how we come to a full respect for each and every individual in our country. That cannot be characterized as a demand for the overthrow of American society, unless your concept of American society is one that is a White supremacist viewpoint, and then respect for everyone else perhaps is an overthrow of society. Now, I am not saying that Neil Gorsuch was coming from that particular viewpoint, but he certainly shows in his quote that he has great difficulty considering a conversation about racism to be a legitimate and important conversation for making America a better place, embracing the strengths of all of our citizens who come from diverse backgrounds. It can't be that this is ``more demand for the overthrow of American society than a forum for rational discussion of these people and events.'' It is a discussion that we need to have. Judge Gorsuch is absolutely coming into the Court with a view of expansive rights for corporations. For a long time in our Nation's history, our biggest businesses and corporations certainly ruled the roost, and we had the barons who came from Big Oil and Big Railroad and Big Copper, and their wealth and their station in life ensured that they really had a lot of power over the people around them. Over time, we gave and developed standards so that people couldn't be exploited to the extent that they were exploited under these barons. We had developed labor and safety standards, and we had developed minimum wages and 40-hour workweeks and overtime--really quite an amazing transformation of the workplace. We made great strides in the course of the 20th century. We recognized that American workers are entitled to be treated with respect in a safe working environment. But there are other cases other than the frozen trucker case where Judge Gorsuch has put the interest of the company or the corporation above the safety of the American worker. One of those is the case of the electrocuted construction worker, the mining construction worker. Encompass Environmental. The Occupational Safety and Health Review Commission fined employer Encompass Environmental because the company failed to properly train Chris Carter, a worker who was electrocuted. He did not recover. He died. Chris joined the construction project a week after it had begun. Because he was not trained in that specific work, he brought a piece of equipment in contact with an overhead line. This was specifically something the company had trained others to avoid, but he wasn't trained in it, and the result is he died. The Tenth Circuit on which Neil Gorsuch serves upheld the fine against the company for the failure to train, saying that it was ``undisputed that Encompass did not give this employee any instruction on the fatal danger posed by the high voltage lines located in the vicinity of the work area.'' The company's own job hazard announcements found a fatal danger from the high-voltage power lines involved and recommended training for employees that would instruct them to keep at least 20 feet away from those power lines. A lot of the employees got that training, but Chris Carter didn't, and he died. While all of the Tenth Circuit upheld the fine against the company, Judge Gorsuch dissented. He said that, as to the Occupational Safety and Health Review Commission, which fined the employer, that fine was yet another example of an administrative agency wielding remarkable powers and penalizing a company where no evidence existed. If it had been up to Neil Gorsuch, Encompass Environmental would not have had to pay this fine. It would never have been accountable for the negligence that ended in this tragic, unnecessary death. It is striking to me that despite the fact that the company itself knew about this hazard, and the company itself trained other employees to avoid the hazard but failed to provide the training in this case, Neil Gorsuch really somehow believes that there was no error made by the company; that, somehow, it is unfair if you are penalizing the company. The ultimate example of Gorsuch's efforts to expand the rights of corporations came in the Hobby Lobby case, which held that corporations are persons exercising religion under the purposes of the Religious Freedom Restoration Act. Therefore, according to the ruling, closely held, for-profit secular corporations could deny their female employees the legal right to contraceptive coverage as part of their employer- sponsored health insurance plans. The Tenth Circuit upheld this position, but that wasn't enough. In a separate opinion he couched this expansion of corporate rights in a blanket of religious freedom writing: All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others to commit wrongful conduct themselves bear moral culpability. What that case really amounted to was saying that religious preferences of the employer--a corporation--trumped the religious choices of the employees--the individuals. That is the scary thing about Hobby Lobby--giving corporations expansive control while you diminish the realm of private rights. The Hobby Lobby decision has already been invoked--not only supporting curtailing employees' access to reproductive healthcare but also to justify noncompliance with child labor laws, anti-kidnapping laws, and anti-discrimination laws. As a lawyer, Neil Gorsuch wrote a brief in Dura Pharmaceuticals v. Broudo, urging the Court to ignore the statutory legislative history of the Securities and Exchange Act and advocating that the Court limit the availability of those who confronted the corporation to band together to seek redress. In a 2005 article, Gorsuch launched into an attack on plaintiffs' lawyers for such cases. The lawyers were just looking for a free ride to vast riches, he concluded. They involved frivolous claims, taking an enormous toll on the economy and on virtually every corporation in America at one time or another, costing businesses billions of dollars in settlements. So Neil Gorsuch has taken positions making it more difficult for class action lawsuits to proceed. Well, what is a class action lawsuit and why is it so important in our system to have class action lawsuits? Imagine that you are in a situation where, for example, maybe a telecommunications company gets involved in slamming charges onto your bill that you never asked for, and maybe that costs you $10 a month for some service put on your long- distance bill or on your cable bill or on your worldwide net band bill, and you proceed to notice this, but they put this on without you authorizing it. Yet it is $10. You can't possibly afford to go to court to take on this predatory conduct of charging you for something you never ordered, but when you realize there are often tens of thousands of other people who have also been the victims of this illegal predatory action, then a class action lawsuit gives you the ability to band with those other folks to take on that predatory conduct by the corporation, and that helps to dissuade a corporation from being involved in predatory conduct to begin with. This can be involved in all sorts of things. It could be misrepresenting a product that is being sold, a physical product, or not warning about its having a danger that any rational person should have warned you about, or misrepresenting stocks in some type of a scheme where thousands of people are sold something, but what they buy is not what they were promised, and so forth. So class action is a powerful tool for justice, but you see in case after case after case, complete disdain by Neil Gorsuch for class action lawsuits. He sees them as a burden on the corporate enterprise of America. Well, I believe that it is important to stop illegal predatory conduct, and in cases where you can't possibly afford to go as an individual, class action is an important strategy. In one case, Shook v. The Board of County Commissioners, he prevented a group of inmates with mental illnesses who were not receiving proper care from joining together to request that the jail meet its constitutional obligation to provide medical care. Shook may not have involved a corporation, but the same legal reasoning Judge Gorsuch applied in that case can be used to limit class action lawsuits brought against companies and against corporations. There were a number of other cases in that category, and there are cases that essentially highlight issues of discrimination and sexual harassment and Judge Gorsuch's views on that. In Pinkerton v. Colorado Department of Transportation, Judge Gorsuch joined an opinion discounting Pinkerton's evidence of discrimination and concluding that her performance, not discrimination, resulted in her termination. Betty Pinkerton was an administrative assistant. She alleged that her supervisor had made inappropriate, sexually explicit remarks to her over a period of several months and that she was fired when she reported the harassment. Pinkerton specifically alleged that her supervisor asked her whether she had sexual urges and asked about the size of things that a boss should not ask about, and he actually commented on a whole series of things which I don't think I will read into the Record but which were totally inappropriate in a workplace setting. After her supervisor asked to go to her house for lunch, Pinkerton called the internal civil rights administrator and complained and then made a formal written complaint 7 days later. An investigation that followed led to the supervisor's removal, but shortly after the supervisor was fired, Pinkerton was also fired. She sued, claiming that the department of transportation was liable for the hostile work environment imposed by the supervisor and that she had been fired because she had raised this issue and this conduct. There was a divided panel that affirmed a summary judgment in favor of the Colorado Department of Transportation, which held that Pinkerton had waited too long--2 months--to report the harassment, and Judge Gorsuch found with the majority. Judge Paul Kelly's majority opinion concluded it was Pinkerton's performance, not discrimination, that resulted in her termination, but the dissenting opinion said that it should be a jury who decides at what point Pinkerton's failure to report the harassment becomes unreasonable, that the termination just days after the investigation was completed raised a genuine issue of fact about her claim of retaliatory discharge, especially considering that the State department of transportation testified that the most serious error leading to Pinkerton's firing was an allegedly mishandled call from an employee's daughter that happened 4 years earlier, and the director tried to get Pinkerton another job with the State department of transportation only months before she was fired. But Judge Gorsuch joined the majority and did not give Betty Pinkerton the chance to confront her employers in a court of law in front of a jury. In other words, she wanted her day in court to make the case. The minority in that case said: Yes, she should get her opportunity to make her case. There is enough evidence, and it should be presented. She can make her case and the department can make their case--not to preempt the opportunity for her to have her day in court. But that is where Judge Gorsuch ended up. Then there is Strickland v. United Parcel Service, UPS. In this case, Judge Gorsuch concurred in part, while also dissenting in part from an opinion holding that Strickland provided ample evidence that she was regularly outperforming her male colleagues, and yet she was treated less favorably than they were. Carole Strickland was a female driver for UPS who alleged sex discrimination and quit under pressure. Two judges on the Tenth Circuit panel overturned a lower court decision granting UPS judgment as a matter of law. In doing so, they emphasized that Strickland provided ample evidence that she was regularly outperforming her male colleagues, and yet she was treated less favorably, including direct testimony of several of her coworkers that she was treated poorly or worse than others. Strickland's coworkers testified that supervisors treated her differently from her male colleagues. She met 93 percent to 104 percent of her sales quotas, was outperforming some of her coworkers on every measure, and yet she was singled out to attend individual meetings--the only one who had to make written sales commitments even though no one was at the 100-percent quota level. One of the men in her office had lower performance than Strickland in almost every sales measure but was not required to attend these meetings to discuss work performance and was not counseled on failing to reach 100 percent. Judge Gorsuch, unlike his two colleagues, dissented from the decision. He would have decided the case could not have gone to a jury, arguing that a reasonable juror could have found that Strickland was a victim of sex discrimination. He himself decided the essence of the case rather than giving her an opportunity to have her day in court, in spite of the substantial evidence she brought forward. He would have denied an employee the opportunity to hold a corporation accountable for their mistreatment. We see the theme in these cases, one after the other. When fellow judges found that a person had a reasonable right to make their case, he dissented and worked to block a chance for an individual to have their case heard. There is a list of cases we have been going through, but I want to go back and recap why we are here in the Senate hearing this nomination and deciding whether to confirm this individual, Neil Gorsuch. This story is one that really begins with the death of Antonin Scalia. Antonin Scalia died in February of last year. Within hours, the majority leader had decided to pursue a strategy of asking the Senate-- really, demanding the Senate--ensuring that the Senate not fulfill its constitutional advice and consent responsibility. If only at that moment my colleague the majority leader had thought: This is a big deal. Asking the Senate to not exercise its advice and consent responsibility--that is a big deal. Maybe I should wait a day and think about this. But no, there was a rush to the floor to lay this out, and that became the path this body has been on ever since. A month later, in March, the President did his job under the Constitution: He nominated Merrick Garland, and it was forwarded over here to the Senate. The normal thing would be for the Senate to start hearings, but the Republican majority leadership said: No. No hearings in the Judiciary Committee. Why not? It is our responsibility to provide advise and consent on nominations, and there is no nomination more important than the nomination to the Supreme Court of the United States of America. It isn't someone who just serves for a couple of years in the administration or maybe for a full 4 years of the administration; it is somebody who serves for life. And it is not someone like a district judge or a circuit judge who can write an opinion but then have it overturned at a higher level; the Supreme Court is the higher level. It is the highest level. The buck stops with the Supreme Court. Given the lifetime appointment and enormous power to set precedent for what the meaning of our Constitution is makes the Supreme Court nomination fantastically important. So it is shocking that we failed to do our job as a Senate--to hold hearings, to hold a vote, and to send the issue to the floor and hold a debate on Merrick Garland. Some Members said: This is in keeping with tradition for an election year. Well, no, it is not in keeping with tradition. We have had 16 nominations during an election year. A few of them came after the election. Yet there was still a nomination, and the Senate still acted. On others, the vacancy occurred before the election, and the President chose not to fill or not to produce a nominee until after an election, and still the Senate said there is time to act. In nine other cases, the vacancy came before the election, the nomination came before the election, and in eight of those nine, the Senate acted. In 15 cases out of 15 cases before Antonin Scalia died, the Senate acted--confirming most, rejecting a few, but they acted. They exercised advice and consent. Then last year the Senate failed for the first time--the first time in U.S. history--to act. We can think of this as a kind of lengthy, lengthy filibuster of a Supreme Court nominee. Some of my colleagues have said: It doesn't seem right that a minority--41 Senators--can stop us from getting to a final vote. But it is right. It is a tradition that a 60-vote standard to approve a nominee to the Supreme Court is essential to make sure that a nominee has bipartisan support, that they are from the judicial mainstream, that they have judicial temperament, and that they fit this very important role, this task which they are going to be assigned to do and which they might do for many, many decades to come. That is why we have a 60-vote standard. What happened last year was a complete refusal to act and 290-plus days of failure to act--plenty of time to act to fulfill our responsibility. It would be different and we would be having a different discussion today if the Senate had considered the nominee and rejected the nominee. So why didn't the majority leader simply say: We don't like this nominee, so we are going to probably have a debate and we are probably going to vote the nominee down. The reason why is everyone loved Merrick Garland. He was right down the middle. He had great quotes of support from both sides of the aisle. He didn't have a history like the history I am describing with Neil Gorsuch, which raised eyebrows time and time again, or where he was kind of legislating from the bench. He didn't do that the way Neil Gorsuch has done. So that is the big issue, that we have a strategy of stealing a Supreme Court seat in order to pack the Court. It has never been done before, and we are in the middle of it now. And if this week goes as the majority leader said he was going to make sure that it went, then the theft is going to be completed by Friday. So I have been here through the night talking about this, to say how important this is that we not do this--that to proceed to fill this stolen seat will damage the Court for decades to come and will damage the Senate for decades to come. If you can steal one seat and get away with it, the temptation next time is to steal another seat--either to double down on the strategy or rebalance the first crime against the Constitution. And each and every time, it will deepen the divisions, and it will diminish the legitimacy of the Court. In the 5-to-4 decisions that we see in the future from the Supreme Court, we are looking to say every single time that it is Justice Merrick Garland's stolen seat--President Obama's stolen seat. Every time that person is in the positive side--the winning side of a 5-to-4 decision--the Court would decide it differently if the seat weren't stolen, if the Court weren't packed. That decision doesn't really have legitimacy because it was the result of court-packing. That is not the way we want to be viewing the Supreme Court. We want to have a Court of wise, thoughtful individuals with great depth and knowledge of the law, combined with a terrific diversity of life experience. They can put themselves into the position and identify with the challenges faced in an authentic manner. That is important. That strengthens the Court. But it weakens the Court to have a Court packed as a crass, political tactic and to do it through a stolen seat. So that is why it matters--that it hurts the integrity of this body and it hurts the integrity of the Court. It involves the participation of the President because the President provided a nomination, and that hurts the integrity of the executive branch. In other words, it is a lose-lose-lose proposition. There is still time to take this train off the tracks and not result in this very unfortunate potential outcome. The second reason we are at this point is that this nomination is just being rushed through as quickly as possible--brought to the floor immediately after the committee vote. Then, for the first time in U.S. history, not only was it brought to the floor the day after the committee vote, but it was brought to the floor and then immediately a petition was filed to close debate. For the first time in U.S. history, on the first day of debate on a Supreme Court nominee, that a petition was filed to close debate. That petition, under our rules, forces a vote on whether to close debate on Thursday, long before the Senate has had a full chance for everyone to make all of their points and thoughts. Mr. President, a point of Parliamentary inquiry----

Mr. MERKLEY. I think that would not be a leap of judgment or analysis. Clearly, the groups like the Koch brothers believe that their interests are deeply connected to the decisions made in this body. And they have invested vast resources into the campaigns, so it is not just that they said: Well, let's go down and talk to people in the Senate about our particular interests as coal and oil billionaires. No, they decided to change the makeup of who sits in this body. In 2014, the investment involved going into Louisiana and Arkansas and North Carolina and Iowa and Colorado and Alaska and several other States, including my State, the State of Oregon. And they won most of those States that they invested in. Then they sent a message in January 2015 by saying: In the next election, we are prepared to spend the better part of a billion dollars. That was heard very loudly in this Chamber, and the first bill up was a Koch brothers' bill. You see their influence in all kinds of ways, indeed. I believe the reason we are here today in this conversation is in large part because those who invested in creating the majority that we now have in this Chamber wanted to make sure that there was a Supreme Court that would sustain the Citizens United ruling that allows this dark money of which the Senator speaks.

Mr. MERKLEY. I appreciate that clarification. I am going to make this comment now, in case I might forget later. I want to give special thanks to the team of individuals who make this body work in order to provide for the opportunity for extended debate, sometimes here under extraordinary circumstances. Because I have been here through the night speaking, one of those extraordinary circumstances was this night that has just passed. The stenographers, the Parliamentarians, the pages, our doorkeepers, our caucus staff, the bill clerks, and others who staff the desks in the offices in the Democratic and Republican cloakrooms--I am excited to see the set of smiles on the pages' faces. I don't know if the same pages were here all night or not. Well, they will hopefully really get a lot out of this opportunity to serve here. But thank you to all the staff members who have labored during the wee hours of the night and into this morning. I was summing up the issues that we labor under and noting a significant one is the stolen Supreme Court seat and the damage that completing that theft will do to our institutions. I have been going through a number of cases that are related to the far-right, anti-we- the-people vision of Neil Gorsuch, from the frozen trucker case, to the autistic child case, to the worker suffering sexual discrimination or gender discrimination at work--all of these cases that have come forward. We have the third issue, of course, being that cloud that is hanging over the Presidency because of the investigations underway at this moment into the role the Trump campaign may have played in communicating with or collaborating with the Russians in their extensive strategy to interfere with our Presidential election. So there are a lot of concerns. This should be the last case where we are cutting short the debate by filing a petition to close debate on the opening day, but there it is-- another first, another degradation of the institution. Dahlia Lithwick wrote in November: We are already hearing from Republicans and Democrats in leadership positions that it is incumbent upon Americans to normalize and legitimize the new Trump presidency. We are told to give him a chance, to reach across the aisle, and that we must all work hard, in President Obama's formulation, to make sure that Trump succeeds. But before you decide to take Obama's advice, I would implore you to stand firm and even angry on this one point at least: The current Supreme Court vacancy is not Trump's to fill. This was President Obama's vacancy and President Obama's nomination. Please don't tacitly give up on it because it was stolen by unprecedented obstruction and contempt. Instead, do to them what they have done to us. Sometimes, when they go low, we need to go lower, to protect the thing of great value. I don't love the way that is phrased, that is for sure. Because in my mind, the point here is to guard our institutions and make them work better. That is the high road. That is not going lower; that is going higher. We must strengthen and defend these institutions that are being torn asunder by this strategy of stealing a Senate seat. That is an article from the Slate. The Miami Herald says: ``Supreme Court Nominations Will Never Be the Same.'' The story of the Supreme Court in 2016 can be summarized in a statistic: It's been 311 days since Justice Antonin Scalia died on February 13, and his seat remains unfilled. That is not the longest Supreme Court vacancy in the modern era, but it's about to enter second place--and it will become the longest if Donald Trump's nominee isn't confirmed about the end of March. This striking fact will be front and center when the history of the court in 2016 is written, but what really matters isn't the length of the vacancy. It's the election in the middle of it. The Republican Senate changed the rules of confirmation drastically by refusing even to consider Judge Merrick Garland's nomination. And against the odds, it paid off for them. It is interesting because we talk about the nuclear option of changing the rules, but in a very de facto matter, the nuclear option went off the day the majority leader came to the floor and said that we are going to conduct ourselves in a totally different way than the Senate's ever conducted itself. Unlike every other time in U.S. history, when there was a vacancy during election year and the Senate acted, we are not going to act. We are going to essentially engage in stonewalling the President's nominee--no hearing, no discussion. That was a nuclear option. So, certainly, I think that is a point well made by this article. The history of the confirmation process is central to the history of the court. There have been some important landmarks in the last century. Louis Brandeis was the first justice to have a confirmation hearing. Felix Frankfurter was the first justice who had to testify at his confirmation. More recently, the confirmation process for Robert Bork in 1987 had epochal consequences. For the first time, judicial philosophy was a focus. That was 1987. No one disputed Bork's intelligence or qualifications. Instead liberals, including law professors like my colleague Laurence Tribe, criticized Bork's conservatism, as opposition to fundamental rights. Well, there is a whole host of commentary from all across America. Let's turn to the Pittsburgh Post-Gazette. ``The Senate's shame: Merrick Garland deserved a hearing for Supreme Court.'' Judge Merrick Garland is returning to his work on the Court of Appeals for the D.C. Circuit, his nomination for the Supreme Court killed without a vote by a Republican Senate majority more concerned with partisan politics than with doing its job. The behavior of those who disposed of his nomination stands in sharp contrast to his own record and reputation as a nonideological judge. Judge Garland is a moderate jurist with a reputation for careful reasoning. Mere days before President Barack Obama announced Merrick Garland's nomination, Senator Orrin Hatch, a Republican from Utah, told a conservative news site that if the President wanted to pick a moderate, he ``could easily name Merrick Garland, who is a fine man.'' But Senate Majority Leader Mitch McConnell had already announced, in February, that his caucus would block any Obama nominee. ``This vacancy,'' he said, ``should not be filled by this lame-duck President.'' So the Senate refused even to hold hearings. Let's be clear. We have had 16 vacancies in the course of an election year during our 200-plus years of history, and never before did a majority refuse to exercise their advice and consent responsibility under the Constitution, arguing that it is a lameduck President. That is not embedded in the Constitution. It is not embedded in the Senate rules. It is not embedded in history. It is not embedded in any logic. When you elect a President, you elect him for 4 years. Obama was elected, not by a small margin, not by an electoral victory combined with a citizen majority loss. No, he won the citizen vote massively, as well as winning the electoral college. He won it twice. You can't look for a better endorsement for the role of a President and an affirmation in the face of the determined effort to ensure he did not get a second term. So that lameduck argument is lame. The argument that the President was a lameduck so, therefore, his Supreme Court nominee should not get a hearing is disingenuous and irresponsible. Mr. Obama had a year left in his term, and Presidents have their full constitutional authority until noon on inauguration day. They must perform all of their duties until then. Granted, a President must nominate justices the Senate can reasonably be asked to confirm. You can't ask a Senate dominated by the other party to confirm someone whose judicial philosophy could appeal only to someone who shares the President's politics. He must, when facing such a Senate, choose someone in the middle. Mr. Obama did that. He did his job. He picked the very judge Senator Hatch said would be a moderate choice. The Senate did not do its job. Its refusal to confirm Judge Garland was not based on any flaw in the nominee's character, any deficit in his abilities, or even any disagreement with his jurisprudence. It was pure partisan politics. Senate Republicans wanted to let a Republican President fill the vacancy, and they are going to get their way. But this refusal of the Senate to do its duty cost a good man a fair hearing, and, more importantly, it cost the Nation a potentially fine justice, one more faithful to the law than one of the political parties or particular judicial ideology. As a result of this abdication of responsibility, it will be harder to get Justices like that in the future. Indeed, the Senate has established a terrible precedent that makes it less likely that any President will be get a Senate controlled by the other party to confirm his or her Supreme Court nominees, however wise and well-qualified. This was a study of Washington politics at its worst--political and constitutional malpractice--and it will have a lasting consequence. Well, there is still time to change course and not have this legacy, as characterized by the Pittsburgh Post-Gazette, of ``political and constitutional malpractice with lasting consequences''. So one question we have not talked about too much in this debate through the night is how voters view this GOP maneuvering to push through Trump's ultraconservative Supreme Court nominee. This is a national survey of likely voters by Greenberg Quinlan Rosner Research. It notes the following: In the wake of President Donald Trump's nomination of Neil Gorsuch to the U.S. Supreme Court, a new national poll shows that voters believe that the nomination has real consequences for the direction of the country. Voters strongly oppose efforts by the Republicans to change the rules in order to push through Trump's ultraconservative nominee. Americans see this as a fight that matters to them. When presented with potential consequences and rulings that could result from Gorsuch's confirmation, including overturning Roe v. Wade and leaving the flow of special interest money in politics unchecked, large majorities of voters say they are more likely to oppose the nominee. Key findings from the poll conducted January 27 through 31 on behalf of NARAL Pro Choice America Foundation, Every Voice, and End Citizens United, include: Voters overwhelmingly believe that Trump's nomination will have a real impact on the country's future. Fully 72 percent of voters think the nomination will have a big difference in the direction of the country. Voters across the political spectrum agree on the importance of this nomination, with 76 percent of Democrats saying it will make a big difference, along with 75 percent of Republicans and 64 percent of Independents. So, in short, basically roughly three out of four Americans recognize that it is a very big deal because out of this discussion could come a confirmed nominee, a ninth vote on the Supreme Court, and that 5-to-4 votes of the Supreme Court steer the country in very different directions, depending on how that 5-to-4 voting occurs. If you are adding to the Supreme Court spectrum of conservatives who have this view of Merrick Garland and antipathy toward the ability of citizens to pursue justice through class action lawsuits, and an effort to always kind of torture the law in order to find for corporations over the individuals, and a love of arbitration agreements, and even inventing them as we heard last night--inventing an arbitration agreement where none exists--in order to prevent an issue from going forward in the courts--all of that is a real handicap for Americans in the future. So Americans understand this is a big deal. Americans strongly object to any GOP attempts to use political tactics to strong-arm Trump's nominee through the confirmation process. After hearing balanced messaging, seven in 10 (69 percent) oppose Republicans changing the rules to prevent a filibuster and allow the Senate to confirm a nominee with just a simple majority instead of the required 60 votes, with 54 percent strongly opposing this proposal. In fact, even 4-out-of-10 Trump voters (39 percent) oppose Republicans trying to change the filibuster rules. Highlighting potential actions and rulings that could result from confirming Trump's Supreme Court nominee makes voters much more likely to oppose him. Large majorities of voters say they are more likely to oppose Trump's nominee when they hear a diverse set of issues that could be impacted by a nominee like Gorsuch. Actions that create strong opposition include: Upholding the Citizens United decision to allow corporations, unions, and wealthy donors to spend more money on elections. Overturning the Roe v. Wade decision that made abortion legal. Eliminating or weakening environmental regulations that protect air, water, and land from pollution. Refusing to uphold or eliminating rights and protections for LGBT individuals. Failing to protect voting rights and making it more difficult for Americans, particularly the poor and people of color, to vote. Weakening the ability of labor unions to organize workers to negotiate for better wages and working conditions. Voters strongly support legal abortion and oppose a Trump nominee they believe could put that right at risk. Seven out of 10 voters (69 percent) support a woman's right to choose, and they recognize that Trump's Supreme Court nominee jeopardizes the Roe v. Wade decision that made abortion legal. More than half of voters (52 percent) think it is very or somewhat likely that Roe v. Wade will be overturned if Trump's nominee is confirmed. This possibility raises strong opposition for voters, with 61 percent who say they are more likely to oppose a nominee who wants to overturn Roe v. Wade. Voters have strong negative reactions to a Supreme Court nominee who will continue to allow corporations and special interests to use money to gain influence and drown out the voice of individuals in politics. Opposition to a nominee who wants no spending limits for corporations and wealthy individuals in elections is broad and deep. Overall, 78 percent are more likely to oppose a nominee (56 percent much more likely to oppose), including 92 percent of Democrats, 84 percent of Independents, and 59 percent of Republicans. Three quarters of voters express a desire for their Senators to oppose a Supreme Court nominee who was ruled in favor of allowing campaign contributors to spend more money in politics. Voters recognize this Supreme Court nomination is crucial to the direction of the country and they strongly oppose any efforts by Republicans to skirt the rules to push through Trump's ultraconservative nominee. So the date of that Greenberg Quinlan Rosner Research poll was February 1. I think it really highlights that voters understand that what we are doing now--this process of considering the potential confirmation of a nominee--has huge consequences for this country and has a huge impact on a whole variety of issues--environmental issues, labor issues, discrimination issues, consumer issues, commerce issues, a whole host of a range of things that the Supreme Court regularly considers. So there is a lot of concern at this point. Here is another issue, and that is the potential impact on LGBT rights. This is an article by Rebecca Buckwalter-Poza entitled: ``Judge Gorsuch Threatens the Dignity of LGBT People.'' Judges with Supreme Court aspirations tend to guard their views, avoiding stances and statements that could impede a nomination or a confirmation. Judge Neil Gorsuch has done just that, leading observers to look to his influences rather than his issuances. Among them is Justice Anthony Kennedy, for whom he clerked. While Judge Gorsuch and Justice Kennedy may share a bond, they part ways on several issues. One lesser known but critically important point of potential disagreement surrounds a somewhat nebulous legal principle critical to lesbian, gay, bisexual, and transgender, or LGBT, rights: the dignity of free persons. For decades, the Supreme Court has repeatedly affirmed that individuals' due process right to liberty also protects their dignity--and shields them from indignity. The concept of dignity encompasses an individual's innate value as people and their right to live free of interference; their right to make important personal decisions; and their entitlement to social recognition or protection from discrimination. This notion of human dignity is at the heart of the Court's three landmark LGBT rights cases: Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges. Judge Gorsuch's writing--both on the bench and in his book against ``assisted suicide,'' based on his Oxford dissertation--suggests he is, at a minimum, skeptical of the principle from which the right to dignity derives: substantive due process. To be clear, substantive due process, which protects individuals from having their fundamental rights violated without justification, has been part of Supreme Court jurisprudence for more than 100 years. In one case, Judge Gorsuch made a point of incorporating criticisms of substantive due process. He noted that ``some'' believe if such a concept existed, it would reside elsewhere in the Constitution. ``Others,'' he offered, question whether substantive due process ``should find a home anywhere in the Constitution.'' This critical aside, while mild, is unusual. Judge Gorsuch hews to precedent on substantive due process only grudgingly, after conceding that ``the Supreme Court clearly tells us'' that substantive due process does have a home in the Constitution. In his book, Judge Gorsuch went so far as to criticize the Supreme Court for adhering to substantive due process precedent in ``case after case.'' He also proposed an alternative relevance for dignity, based in equal protection, that could restrict rather than protect individual rights. The recognition of innate human dignity is the foundation for equality, Judge Gorsuch claimed, and equality makes ``assisted suicide''--termed ``death with dignity'' in those states that permit it--unacceptable because all people created equal enjoy an inalienable right to life. This view is troubling, not only in signaling an intent to misappropriate the concept of dignity to restrict individual choice, but also because of the implications for reproductive access, rights, and justice. This article continues: Senators must press Judge Gorsuch to commit to upholding Supreme Court precedent based on the recognition of dignity-- or admit he would not respect this long-established, critical principle. This goes on in a somewhat scholarly fashion. (Mr. BOOZMAN assumed the Chair.) I want to return to the core premise and review the fact that never before have we had a stolen seat in the United States of America. It is so important to drive this point home, that there is absolutely no foundation for what happened last year in American history. You have those 16 seats where a vacancy occurred in an election year. I am going to go through them so that it becomes absolutely clear what we are talking about here. There were three seats where the vacancy occurred after the general election. So the general election was in early November. One seat opens in December in an election year, one in November, another in December-- three seats that opened up after the election and for which the nomination was put forward. There wasn't a lot of time. In these cases, the President was still transitioning in March, rather than in January, so there was a little more time than you might anticipate. We shortened that with a later constitutional amendment. Here, the President put forward a nominee within 3 days. Grant put forward a nomination within about a week and just a single day for Hayes to put forward a nomination. So here you are after the election. The passions of the campaign are starting to settle down. You know who the next President is going to be. There is not a lot of time, but there is enough time for the Senate to act, and it did in all three cases. In all three of these cases where the seat became empty after the election, even then, the Senate found there was time enough to act. In all three of these cases, that action was a confirmation of the nominee--three out of three. So that is one set. John Jay was nominated by President Adams. Ward Hunt was nominated by President Grant. Williams Woods was nominated by President Hayes, but in one of those interesting little twists, in this case, the nominee actually declined it after he had been confirmed. I don't know that we have seen that very often in the history of Supreme Court Justices. Then there is that set of cases in an election year where the vacancy occurred before the election but the President, for a variety of reasons, didn't nominate until after the election. So you are kind of back in the same situation--a short amount of time. We have four cases that are in that category. We had the first case in 1828--a vacancy before the election, a nomination afterward. The Senate acts. The Senate didn't always confirm the nomination, but they always acted. In this case, they rejected the nomination by tabling it. Then we had President Buchanan, who nominated Jeremiah Black. In May, the seat became vacant, and the nomination didn't occur until February. The President would have transferred in March. The Senate again acted. The Senators of this body acted, and they rejected it. They rejected it by rejecting the motion to proceed. Salmon Chase, under Lincoln--the vacancy occurred just a month before the election in October. The President put forward the nomination a month after the election in December, and the Senate confirmed him. With Eisenhower and William Brennan, there was a vacancy a month before the election and a nomination that basically came 2 months after the election--getting very close to the transition date, yet he was confirmed. So those are seven of the nominations, of which five were confirmed and two were rejected--tabled and the motion to proceed was rejected. Then we have the remaining nine. These nine are closer--well, one of them is the seat that became open when Antonin Scalia died, but the historic additional eight seats--those seats are a little closer to the situation we have with Antonin Scalia dying and the President nominating Merrick Garland, because the vacancy came before the election in these eight cases, and the nomination came before the election. In fact, here we have the first case, under President Jefferson. He nominated William Johnson. But the vacancy occurred in January. The nomination occurred in March. It was pretty close to the situation we faced last year, yet the Senate acted, and they confirmed the nominee. President Tyler nominated Edward King. The vacancy occurred in April, the nomination in June, and the Senate acted. They rejected the nomination by tabling it. Edward Bradford was nominated by President Fillmore in July of 1852. The following month, the nomination was put forward before the election, and again the Senate acted, but they tabled it. So they didn't confirm in every case, but they acted in every single case. Melville Fuller was nominated by President Cleveland. There was a vacancy in March. The nomination was in May. He was confirmed. Under President Harrison, there was George Shiras. The vacancy occurred in January. Quite a few months passed. It was almost 6 months before the nomination was put forward in July by the President. The nomination was confirmed. Justice Brandeis was put forward by President Wilson. In this case, two vacancies occurred in an election year, both before the election-- one in January, one in June. The candidate was put forward quite quickly--within the month of January and a month later in the case of John Clarke--and both were confirmed. There was Benjamin Cardozo under President Hoover in 1932. The vacancy was in January. The nomination was in February. He was confirmed. So those are 8 additional, and we have now a total of 14. Then we have Merrick Garland. Obama put forward Merrick Garland. The vacancy was in February. The nomination was in March. No action. It is the only time there was no action in U.S. history. That is why we have all of these editorials from across the country noting that this is a stolen seat, that it has never happened before, and that it sets a terrible precedent. That is the problem we are looking at. Why is it a terrible precedent? Because once the Senate starts stealing a seat from one President and handing it to another in an effort to pack the Court, there is no end to the mischief that follows. If you can steal a seat in which there was plenty of time to consider in the final year of a Presidency, you can do it for 2 years. We saw this in terms of many comments that were made by Republican legislators before the November election. When they thought the Democratic nominee was going to win, they were saying: We are going to make sure that for 4 years, it stays an eight-member Court, that no matter that the people will have spoken through an election, no matter that a nominee has been put forward who is credible, we are simply not going to consider it for 4 years. This is a court-packing scheme through the theft of this Supreme Court seat. You can just think about if the Court is packed, then when the parties are reversed--and it always does go back and forth sooner or later--then does the other party say: We have to balance back out the Court, restore its integrity by stealing a seat back, stealing it 2 years into a Presidency. It is terrible not only in terms of its impact on the Senate here because it now makes this incredibly partisan pitched battle out of what was supposed to be an advice and consent responsibility to deter a President from nominating people of unfit character--I use the phrase ``of unfit character.'' That is a phrase Hamilton used. In the Federalist Papers, he lays out what this advice and consent responsibility was supposed to be all about. They needed to have a strategy for how they put key appointments into the executive branch to basically staff the Cabinet agencies. They thought at first: Maybe the check will be that we will have the appointments made by the Senate. So the executive branch will be headed by the President, but the appointments will be made by, as they referred to it, the assembly. Then they said: Well, there is a big problem with that because one Senator will get their best friend in one post in exchange for some other Senator's best friend in some other post. The public won't know why it happened. There will be no accountability. So that is not a great idea. So they said: A better idea is to have accountability and have the President make the appointments. But there is a problem. What if the President goes off-track and starts appointing people of unfit character? Well, we need a way to put a check on that. So they came up with this idea of the Senate's advice and consent, meaning that the Senate could block a nominee if the person was of unfit character. They anticipated this power to be used rarely because of the very nature and the very existence of the power of the Senate to block someone of unfit character would deter a President from appointing someone of unfit character. What did they mean by unfit character? Well, it could mean a host of things--that a President might be appointing somebody who had some conflict of interest or who was unacceptable, or maybe the President was appointing someone who had absolutely no knowledge of the issues or maybe appointing somebody who had an alcohol problem and wasn't capable of responsibly executing the task, the responsibilities of the office. There were a host of possibilities, but they thought it would be rarely used; that it wouldn't be applied as a tool to conduct warfare on the executive branch; that it wouldn't be used as a tool to be conducted as warfare on the judiciary; and it wouldn't be used as a tool to pack the Court and delegitimize the Court. Yet we have been seeing all of that from the past in recent years. So that really is something that we should be deeply concerned about. (Mr. FLAKE assumed the Chair.) We saw, back in 2013, the growing use of the supermajority as a weapon of mass legislative destruction or government destruction in trying to prevent the President from having a team with which he could act. The National Labor Relations Board was blocked from having its positions filled, and the Labor Secretary was unable to get a floor vote, and the list just went on and on and on--tons of district court judges and circuit court judges, to the point that we had to find a way to curb that destructive strategy, and that meant that we had to go to a simple majority. But we left in place the supermajority for the Supreme Court because it has powers no other institution has. It is the decider. One can have a district court make a decision that gets bumped to a circuit court, and a circuit court makes a decision, and it goes to the Supreme Court. They are ultimately the decider and they hold the positions for as long as they want. So they can hold it for decades. It is not an appointment to the executive branch that might be there for 2 to 4 years. That is why it is so incredibly important that we get this right and why people who are observing what is going on are so concerned about the damage that is being done. This article is from the New York Times: ``Neil Gorsuch, the Nominee for a Stolen Seat.'' It's been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding the constitutional duty that both parties have honored throughout American history and hobbling an entire branch of government for partisan gain. President Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died in February. Instead, he chose Neil Gorsuch, a very conservative judge from the federal Court of Appeals for the 10th Circuit whose jurisprudence and writing style are often compared to those of Justice Scalia. If Judge Gorsuch is confirmed, the court will once again have a majority of justices appointed by Republican presidents, as it has for nearly half a century. For starters, that spells big trouble for public-sector unions, environmental regulations and women's access to contraception. If Trump gets the chance to name another justice, the consequences could be much more dire. In normal times, Judge Gorsuch--a widely respected and, at 49, relatively young judge with a reliably conservative voting record--would be an obvious choice for a Republican President. These are not normal times. The seat Judge Gorsuch hopes to sit in should have been filled, months ago, by Merrick Garland, the chief judge of the Court of Appeals for the District of Columbia Circuit, whom President Barack Obama nominated to the high court last month. Judge Garland, a former federal prosecutor and 20-year veteran of the nation's most important federal appeals court, is both more moderate and more qualified than Judge Gorsuch. That meant nothing to Senate Republicans, who abused their power as the majority party and, within hours of Justice Scalia's death, shut down the confirmation process for the remainder of Mr. Obama's presidency. There would be no negotiations to release this hostage; the sole object was to hold on to the court's conservative majority. The outrageousness of the ploy was matched only by the unlikelihood that it would succeed--until, to virtually everyone's shock, it did. The destructive lesson Senate Republicans taught is that obstruction pays off. Yet they seem to have short memories. After Senate Democrats refused to attend votes on two of Mr. Trump's cabinet picks on Tuesday, Senator Pat Toomey of Pennsylvania said, ``We did not inflict this kind of obstructionism on President Obama.'' Even absent such dishonesty, any Democratic impulse to mimic the Republican blockade by filibustering Judge Gorsuch would be understandable. But Senate Democrats should be wary of stooping to the Republicans' level, especially because any such effort is likely to prove futile, since Republicans have the votes to simply eliminate the use of the filibuster. . . . You know, I think about the fact that it has been bandied about with such lack of gravity that the Senate majority may change the 60-vote requirement for the Supreme Court. It is an immediate tactical victory to do so, but it may turn out to be a tactical mistake in the bit longer term. President Trump may have a single opportunity to put in place a Supreme Court Justice, and the next President, who might be a Democrat, might have many chances to nominate a Supreme Court Justice. So lowering the standard from the 60 votes designed to have a judge down the middle could lead to very different consequences depending on when various judges retire, who they are, and where they are in the spectrum--something that none of us can predict. So it is certainly a strategy that has simply just been asserted as this: Well, we will just do it. Not only does it have high tactical risk, but it just is another blow of the ax, felling the trees in the forest of the integrity of the Court and the integrity of the Senate. It sets the stage for all these battles that are going to come over future nominees. The pure partisanship, short-term gains, grudges to be remedied rather than the advice and consent vision that was in our Constitution--the vision that Hamilton laid out which might have to be used rarely because it would deter Presidents from making nominations of people of unfit character. I am disturbed about where we are headed. There are many policy issues that seem important at the time as they come to this floor, and they are important. They are issues related to the ability of workers to get fair wages for the value they bring to the development of the products they make. There are certainly key issues about our transportation infrastructure and key challenges on healthcare. But a single Supreme Court seat can change policy on a huge spectrum of issues with the Supreme Court as the final arbiter. If we have a pivot point in which dark money--unlimited amounts of funds--are injected into the national campaigns forever more, well, we are never going to heal and get back to the point of the Senate being a great deliberative body, because that dark money will own this body and control this body, much as it does now after the entry of the Koch brothers into the national campaign contests. That is the impact of a single Supreme Court decision. It has huge impact on who serves here and what decisions they make. It has huge impact on whether we are a ``we the people'' government or a government by and for the most powerful. It might be interesting at this point to go back in time to sections of a speech by Senator Robert Byrd. Senator Byrd was still in the Senate when I came here in 2008. He was one of four Senators that were in the Senate when I was an intern in 1976. He says in his speech, delivered December 15, 1998, in the Old Senate Chamber: Clio being my favorite muse, let me begin this evening with a look backward over the well-traveled road of history. History always turns our faces backward, and this is as it should be, so that we might be better informed and prepared to exercise wisdom in dealing with future events. ``To be ignorant of what happened before you were born,'' said Cicero, ``is to remain always a child.'' So, for a little while, as we meet together in this hallowed place, let us turn our faces backward. Look about you. We meet tonight in the Senate Chamber. Not the Chamber in which we transact our business daily now, but the Old Senate Chamber where our predecessors wrote the laws before the Civil War. Here, in this room, Daniel Webster--he moved about the Chamber from time to time--Daniel Webster orated, Henry Clay forged compromises, John C. Calhoun stood on principle. Here, Henry Foote of Mississippi pulled a pistol on Thomas Hart Benton of Missouri. Senator Benton ripped open his coat, and said, ``Let the assassin fire!'' And, ``Stand out of the way.'' Here the eccentric Virginia Senator John Randolph brought his hunting dogs into the Chamber, and the dashing Texas Senator Sam Houston sat over here to my right; he sat at his desk whittling wooden hearts for ladies in the gallery. Seated at his desk in the back row, Massachusetts Senator Charles Sumner was beaten violently over the head with a cane wielded by Representative Preston Brooks of South Carolina, who objected to Sumner's strongly abolitionist speeches and the vituperation that Sumner had heaped upon Brooks' uncle, Senator Butler of South Carolina. The Senate first met here in 1810, but, because our British cousins chose to set fire to the Capitol during the War of 1812, Congress was forced to move into the Patent Office Building in downtown Washington, and later into a building known as the Brick Capitol, located on the present site of the Supreme Court Building. Hence, it was December 1819 before Senators were able to return to this restored and elegant Chamber. They met here for 40 years, and it was during that exhilarating period that the Senate experienced its ``Golden Age.'' Here, in this room, the Senate tried to deal with the emotional and destructive issue of slavery by passing the Missouri Compromise of 1820. That act drew a line across the United States and asserted that the peculiar institution of slavery should remain to the south of the line and not spread to the north. The Missouri Compromise also set the precedent that for every slave state admitted to the Union, a free state should be admitted as well, and vice versa. What this meant in practical political terms was that the North and the South would be exactly equal in voting strength in this Chamber, and that any settlement of the explosive issue of slavery would have to originate here in the Senate. As a result, the Nation's most talented and ambitious legislators began to leave the House of Representatives to take seats here in the Senate Chamber. Here, they fought to hold the Union together through the omnibus compromise of 1850, only to overturn these efforts by passing the fateful Kansas- Nebraska Act of 1854. The Senators moved out of this room in 1859, on the eve of the Civil War. When they marched in procession from this Chamber to the current Chamber, they marked the last time that leaders of the North and South would march together. The next year, the South seceded, and Senators who had walked shoulder to shoulder here parted to become military officers and political leaders of the Union and of the Confederacy. This old Chamber that they left behind is not just a smaller version of the current Chamber. Here, the center aisle divides the two parties, but there are an equal number of desks on either side--you will count 32 on one side and 32 on the other, not because the two parties were evenly divided, but because there was not room to move desks back and forth, depending on the size of the majority, as we do today. That meant that some members of the majority party had to sit with members of the minority. It did not matter to them. The two desks in the front row in the center aisle were not reserved for the majority and minority leaders as they are now, because there were no party leaders at that time. No Senator spoke for his party; every Senator spoke for himself. There were recognized leaders among the Senators, but only unofficially. Everyone knew, for example, that Henry Clay led the Whigs, but he would never claim that honor. Clay generally sat in the last row at the far end of the Chamber so he could talk to Senators as they came in to vote. The Senate left this Chamber because it outgrew the space. When they first met here in 1810, there were 32 Senators. So many states were added over the next four decades that when they left in 1859, there were 64 Senators. Yet, while the Senate increased in size, it was essentially the same institution that the Founders had created in the Constitution. Today, another century and four decades later, and having grown to 100 Senators, it is still essentially the same institution. The actors have changed; the issues have changed; but the Senate, which emerged from the Great Compromise of July 16, 1787, remains the great forum of the states. This is so, largely, because as a Nation, we were fortunate to have wise, cautious people draft and implement our Constitution. They were pragmatists rather than idealists. James Madison particularly had a shrewd view of human nature. He did not believe in man's perfectibility. He assumed that those who achieved power would always try to amass more power, and that political factions would always compete out of self-interest. In ``The Federalist Papers,'' Madison reasoned that ``in framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the government; and, in the next place, oblige it to control itself.'' Madison and other Framers of the Constitution divided power so that no one person, no single branch of government could gain complete power. As Madison explained it: ``Ambition must be made to counteract ambition.'' However, ambition has not always counteracted ambition, as we saw in the enactment by Congress of the line-item veto in 1996. Just as the Roman Senate ceded its power over the purse to the Roman dictators, Sulla and Caesar, and to the later emperors, thus surrendering its power to check tyranny, so did the American Congress, the Senate included. By passing the Line-Item Veto Act the Congress surrendered its control over the purse--control which had been vested by the Founding Fathers here in this legislative branch. This brings me to the first point I would like to leave you with this evening. It is this: The legislative branch must be eternally vigilant over the powers and authorities vested in it by the Constitution--eternally vigilant. This is vitally important to the security of our constitutional system of checks and balances and separation of power. George Washington in his Farewell Address of September 17, 1796, emphasized the importance of such vigilance: It is important likewise that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department, to encroach upon one another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. . . . The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions of the others, has been evinced by experiments ancient and modern. . . . To preserve them must be as necessary as to institute them. Each Member of this body must be ever mindful of the fundamental duty to uphold the institutional prerogatives of the Senate if we are to preserve the vital balance which Washington so eloquently endorsed. Senator Byrd continues: During my 46 years in Congress, and particularly in more recent years, I have seen an inclination--I think I have--on the part of many legislators of both parties to regard a chief executive in a role more elevated than the Framers of the Constitution intended. We as legislators have a responsibility to work with the chief executive, but it is intended to be a two-way street. The Framers did not envision the office of President as having the attributes of royalty. We must recognize the heavy burden that any President bears, and wherever and whenever we can, we must cooperate with the chief executive in the interest of all of the people. But let us keep in mind Madison's admonition: ``Ambition must be made to counteract ambition.'' As Majority Leader in the Senate during the Carter years, I worked hard to help President Carter enact his programs, but I publicly stated that I was not ``the President's man''; I was a Senate man. For example, in July 1977, I opposed President Carter's plan to sell the AWACS (Airborne Warning and Control System) to Iran. Iran was then a military ally of the United States, but I was troubled over the potential security risks involved with the possibility of compromising highly sophisticated technology in this volatile region. I was concerned that the sale ran contrary to our national interests in maintaining a stable military balance and limited arms proliferation in the Middle East. Both Houses of Congress had to vote disapproval resolutions to stop the sale. I enlisted the support of then Republican Minority Leader Howard Baker. Senator Baker was someone who could rise above political party when he believed that the national interests required it, just as he did in the Panama Canal debates. The Carter administration chose to withdraw the sale of AWACS temporarily. Shortly afterwards, the Iranian revolution occurred and the Shah was replaced. Had that sale gone through as planned, those sophisticated aircraft would have fallen into the hands of an unfriendly government. As so often has happened in our history, individual courage and character again chartered our course. I want to return to Senator Byrd's point about Republican Minority Leader Howard Baker. It says: ``Senator Baker was someone who could rise above political party when he believed the national interests required it, just as he did during the Panama Canal debates.'' The debate over those treaties was intense because they were a valuable asset controlled by the United States. Many thought of them as a possession of the United States, and we were turning them over to Panama after a long period of negotiations. But to be able to rise above partisanship to pursue a national interest--that is what we need now as we face the potential of this devastating change in Senate conduct over the selection of a Supreme Court nominee. I hope we can find a way to rise above partisanship or political party and pursue the national interests because I have seen so little of the desire to strengthen our institutions. I am not optimistic, but I do think it is worth noting that it is possible. We could take this train off the tracks--because of the shadow hanging over the Presidency, because of the far-right views of Neil Gorsuch, because it is a stolen seat and we haven't remedied that situation with a plan. Senator Robert Byrd continued: This brings me to my second point. On the great issues, the Senate has always been blessed with Senators who were able to rise above party, and consider first and foremost the national interest. There are very worthy examples in Senate history. When I came to the Senate in 1959, artists were at work painting five porthole portraits in the Senate reception room. The Senate had appointed a special Committee chaired by Senator John F. Kennedy to select the five most significant Senators in Senate history. This was no easy task, because there were many potential candidates. In setting the criteria, the Committee looked to Senators who had stood firm for principle, who had not blown with the winds, and who made personal sacrifices for the national good. They were not saints, nor were they perfect men. Daniel Webster's personal financial dealings left an eternal blot upon his record; yet, he deserved to have his portrait in the Senate reception room, not simply as a great orator, but as a man who sacrificed his own political standing by endorsing the compromise of 1850, which was deeply unpopular in his home State of Massachusetts, but which he realized was the best chance to hold the Union together. In my almost 46 years in Congress, I have seen other courageous Senators. I have already referred to the courage demonstrated by former Senator Howard Baker during the Panama Canal debates. Without Senator Baker's support, the Panama Canal Treaties would never have been approved by the Senate. We needed two- thirds; we were swimming uphill. The odds were against us. The killing of American servicemen in Panama would have gone on, but Senator Howard Baker threw his shoulder behind the wheel and helped to construct what he and I referred to as leadership amendments, amendments which protected U.S. interests in that region, and we both worked shoulder to shoulder against great odds, as indicated by the polls. We did so because we believed, after careful study, that the treaties were in the best interests of the United States. There were people in my own State of West Virginia who still don't believe that. But I was convinced of it. Howard Baker knew what my old majority leader, Mike Mansfield, and all students of the Senate's institutional role know. Political polarization--too much emphasis on which side of the aisle one sits, is not now, and has never been, a good thing for the Senate. I am talking about politics when it becomes gamesmanship or when it becomes mean-spirited or when it becomes overly manipulative, simply to gain advantage. I am not talking about honestly held views or differing political positions. Those things enrich our system. Americans have always loved a good debate. And that is what I believe and wish for now: More substantive and stimulating debate and less pure politics and imagery. But I well understand history and its ebb and flow, and I well know that we live in an age of imagery. It is simply my wish that, sometime soon, the rising tide of imagery and partisanship will begin to ebb rather than to flow quite so freely. Washington, in his farewell address, warned us against the ``baneful effects of the spirit of party'' when he said: ``. . . in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming, it should consume.'' So, I believe that the American people are more than tired of partisan warfare. I believe they wish for less of it from the Congress, especially in the Senate, where more statesmanship and a longer view are still expected. Declining participation in elections, and repeated public surveys which indicate weariness, distrust, and alienation within our system ought to serve as a harbinger to be ignored at our peril. It must be a matter of concern to all of us that all too few Americans look to officeholders for inspiration in these troubled and turbulent times. How can we attract the talent needed to serve in public office in future years if elected officials continue to be held in such low esteem? Continuing to read Senator Byrd's speech in the Old Senate Chamber: I would very much like to see a rekindling of basic faith in our leaders, and a renewal in politics and of public service. But the existence of inspiring leadership by public officials is fundamental to a shoring up of that faith. In fact, I think the American people are in desperate need of some old-fashioned heroes. Now, it seems, today's heroes, if we want to loosely use the term, are merely celebrities-- rock stars who spout deplorable messages, or sports figures who mass fortunes advertising baggy clothes at exorbitant prices. I'm not talking about Sammy Sosa. I'm not talking about Mark McGuire. They were my heroes, too, as was Babe Ruth in 1927. Not much to look up to here, I say. Not much to build dreams on. Look hard at the content of our popular culture. There is really nothing much to inspire and look up to. And regrettably there also is not much to counter the empty commercialism which is so prevalent today. It has become the norm. Senator Byrd continued: So where are we in all of this? What is our role? What part can we as Senators--authority figures, statesmen representing the people--play while we simultaneously endeavor to carry out our 200-year-old mandate, bequeathed to us by some of the most brilliant men of their age, or of any age before or since? Well, we can show up for our roll call votes, carry out our committee assignments, issue the obligatory press releases, dutifully follow up on constituent requests, and answer our mail. All of these are necessary and to a greater or lesser degree important. But a reemphasis by the Senate on our strict institutional role is certainly something which I would like to see. It is a sobering and heavy responsibility all by itself, and its very weightiness tends to cool the over-heated passions of political demagoguery. After all, that role is, in a constitutional sense, the reason we are here. The Framers expected a zealous defense of our powers to keep the tyrants at bay. But there is still another role--an intangible something--that we who are privileged to sit in this body, and indeed leaders in the private sector, as well as those who write and reflect upon the news, are called upon to play. I call it the duty beyond our duties. The duty I am talking about is the duty to endeavor to inspire others and to demonstrate, through personal example, that public service of all types ought to be an honorable calling. Contrary to what many believe, it is absolutely the wrong place for the slick and the insincere. Serving the public in a leadership role demands honesty, hard work, sacrifice, and dedication from those who dare to ask the people for such an awesome trust. Those who ask to shoulder that mantle also shoulder a much larger personal obligation than many of us may regularly contemplate. Mr. Leader, we all have a clear responsibility to serve as role models to inspire our people, and particularly our young people, to be and to do their best. On that score, we politicians, as a group, generally miss the mark. Perhaps it's because power, whether it be the power of political office, or the power to run giant corporations, or the power to report and analyze events, is a very heady thing. It can lead to arrogance, self aggrandizement, disregard for playing by the rules, and contempt for the people who send us here. It can lead us to forget that we are servants, not masters. Senator Byrd continued: In the real world, exemplary personal conduct can sometimes achieve much more than any political agenda. Comity, courtesy, charitable treatment of even our political opposites, combined with a concerted effort to not just occupy our offices, but to bring honor to them, will do more to inspire our people and restore their faith in us, their leaders, than millions of dollars of 30-second spots or glitzy puff-pieces concocted by spin-meisters. These are troubling times for our nation and our people on both the national and international fronts. For our country to weather the rough seas ahead, we must use our most tempered judgment and seek out our best and most noble instincts. Our example here can be a healing element--a balm to salve the trauma of distrust and disillusionment too long endured by good people. Let each of us follow his or her own conscience when it comes to issues, but as we do so, may we be ever mindful that our people watching us, and the people who sent us here can take us back home again. Let us be aware of the sublimely uplifting which the example of simple dignity, decency, decorum, and dedication to duty can play in the life of a nation. Senator Byrd had yet more words to share. Let us also remember that even after two hundred years, the Senate is still the anchor of the Republic, the morning and evening star in the American constitutional constellation. It has had its giants and its little men, its Websters and its Bilbos, its Calhouns and its McCarthys. It has been the stage of high drama, of comedy and tragedy, and its players have been the great and the near great, those who think they are great, and those who probably never will be great. It has weathered the storms of adversity, withstood the barbs of cynics and the attacks of critics, and provided stability and strength to the nation during periods of civil strife and uncertainty, panics and depressions. In war and in peace, it has been the sure refuge and protector of the rights of the state and of a political minority because great and courageous Senators have always been there to stay the course and keep the faith. And it can do so again as long as we are ever blessed in this august body with those who hear the clear tones of the bell of duty, the Senate will continue to stand--the great forum of the constitutional American liberty! That is a lot of good advice. As we sit here in these troubled times and ponder how we are going to rise above the passions and politics of the moment to restore the functionality of the Senate, that is the challenge we have. I believe Byrd--with his experience, with his articulate language--is calling to us from the past to say that we can do it. We can do better. We can rise above the situation in which we have put ourselves, the situation in which one team, for the first time in U.S. history, has stolen a Supreme Court seat to pack the Court. To now be in this position of considering a Senate nomination at the exact moment that the person making the nomination and his team are under investigation for potentially traitorous conduct against the United States--but we don't have the answers yet. (Mr. PAUL assumed the Chair.) Here we are with a nominated judge who is way outside the mainstream, and we therefore have a challenge. It is exactly what the filibuster was designed for--to keep judges who are outside the judicial mainstream from being nominated. So that is a lot for us to wrestle with in the next few days. The New Yorker did an analysis of where Neil Gorsuch lies. The subtitle says: ``Every sign suggests that he would be at least as conservative a judicial activist as Samuel Alito.'' This is a different source, but that is the same basic point, showing an analysis that places Neil Gorsuch to the right side of the right peak in terms of ideology. Ruth Bader Ginsburg, the diminutive liberal colossus of the Supreme Court, has built a distinguished record as a Justice, but her legacy as a nominee is more dubious. In her confirmation hearing before the Senate Judiciary Committee, in 1993, she refused to answer most questions about how, if confirmed, she would rule. In an oft-quoted phrase, she vowed to give ``no hints, no forecasts, no previews.'' Nominees have invoked this stonewall ever since. Last week, Neil Gorsuch, Donald Trump's choice to fill the seat of the late Antonin Scalia, proved an especially ardent follower of what has come to be known as the Ginsburg rule. Asked repeatedly by members of the committee about his views of such cases as Roe v. Wade and Citizens United, Gorsuch not only refused to answer, but went on to say that his feelings, if he had any, were of no consequence: ``It's not a matter of agreeing or disagreeing. It's a matter of it being the law, and my job is to apply and enforce the law.'' Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court's prior rulings. This interpretation of the role of Supreme Court Justices is, to put it charitably, incorrect--they can and do overturn their earlier holdings. And Trump didn't nominate Gorsuch simply because he knows how to follow precedent. He nominated Gorsuch because his career resembles a lab experiment synthesizing every trend in modern conservative thought. A ruggedly handsome Coloradan--this President cares a great deal about appearances--Gorsuch has an appealing manner and an impressive resume. He did well in good schools, held prestigious clerkships, worked at a fine law firm, took a senior post in the Department of Justice, and for the past decade has served in the Tenth Circuit Court of Appeals. From his boyhood days as a Republican Senate page to his decades of volunteer work for GOP candidates, Gorsuch has been a strong party loyalist. (Like many Republican pols, he refers to the ``Democrat,'' rather than the Democratic, Party.) His background also includes a dose of pro-corporate, deregulatory libertarianism, as reflected in his close relationship with the billionaire Philip Anschutz, a client turned mentor. A sampling of authoritarianism can be seen in Gorsuch's service in George W. Bush's Justice Department, where he helped craft a proposal for the treatment of detainees at Guantanamo. (The Supreme Court later ruled it unconstitutional.) There's social conservatism, too, evident in his one book, a critique of death-with-dignity laws and physician-assisted suicide. ``All human beings are intrinsically valuable,'' he wrote, ``and the intentional taking of human life by private persons is always wrong.'' It's easy to read the book as a coded attack on abortion rights. To the extent that Gorsuch said anything of substance at his hearing, he put himself across as a mainstream figure. He said he participated in some 2,700 cases on the appeals court, and had voted with the majority in 99 percent of the them. This proves only that most cases are routine. (Even the Supreme Court issues unanimous rulings more than half the time.) The hard cases are the ones that matter, and it's reasonable to project how Gorsuch would vote in them. He would oppose abortion rights. (Trump promised to appoint a ``pro-life'' Justice.) His predilection for employers over employees is such that it yielded a circuit-court opinion of almost Gothic cruelty. When subzero temperatures caused a truck driver's trailer brakes to freeze, he pulled over to the side of the road. After waiting three hours for help to arrive, he began to lose feeling in his extremities, so he unhitched the cab from the trailer and drove to safety. His employer fired him for abandoning company property. The majority in the case called the dismissal wrong, but Gorsuch said the driver was in the wrong. As a Justice, Gorsuch would embrace a deregulation of campaign finance symbolized by the Citizens United decision. (He argued in an opinion that judges should evaluate limits on political contributions using the same tough standards that they apply to racial discrimination.) His most famous Tenth Circuit decision had him taking a side in the culture wars. In Hobby Lobby Stores v. Sebelius, he ruled that a multibillion-dollar corporation could withhold federally guaranteed rights to birth control from thousands of female employees because of religious beliefs of the corporation's owners. (His position was upheld, 5-4, by the Supreme Court.) In an embarrassing coincidence, on the second day of Gorsuch's testimony, the Court unanimously rejected one of his holdings in the Tenth Circuit, ruling that it denied adequate educational opportunities to students with disabilities. Every sign suggests that Gorsuch would be at least as conservative a judicial activist as Samuel Alito. It's also clear what Neil Gorsuch is not: Merrick Garland. Gorsuch's nomination is inextricable from its shameful political context. When Scalia died, more than 11 months remained in Barack Obama's Presidency, but Senate Republicans refused to give his nominee even a hearing. This departure from norms is all the more outrageous because a tactic was used to block a moderate; the Republicans denied Obama his constitutional right in order to trade a Justice who might have been less liberal than Stephen Breyer for one who might be as radical as Clarence Thomas. Such a turnabout seems especially disturbing given that the FBI and other agencies are now investigating the very legitimacy of the Trump Presidency. Indeed, Chuck Schumer, the Democratic leader in the Senate, has called for a delay in the Gorsuch vote until there is some clarity about the Trump camp's ties to Russia. Last week, he also promised to lead a filibuster against Gorsuch's confirmation, but Republicans, in response, vowed to change the Senate rules to allow them to confirm the nominee by a simple majority. The Supreme Court is, as political scientists like to say, a counter-majoritarian institution: The President and members of the Congress must answer to voters; the Justices, who serve for life, answer only to the commands of the Constitution. But, in doing so, it's their duty to speak for those who lack political power. The Trump era has already meant trouble for these people--the poor, the sick, the dissenters, immigrants--and Gorsuch, for all his intellectual distinction, has shown scant regard for their concerns. There's little reason to believe that he would as a Justice either. The L.A. Times wrote the story titled ``Another judicial dirty trick from Senate Republicans.'' One of 2016's most spectacular examples of government dysfunction was the U.S. Senate's outrageous refusal to consider President Obama's nomination of Judge Merrick Garland to replace the late Antonin Scalia on the Supreme Court. That dereliction of duty by the Republican majority not only denied the sitting President his constitutional prerogative to fill vacancies in the court (so that the appointment would go instead to a hoped-for Republican successor.) It also prevented the court from resolving a handful of cases because of a 4-4 split and probably discouraged the justices from accepting other cases because of the possibility of a similar deadlock. Less well known is the fact that the Senate also failed to hold 4 votes on 24 Obama nominees for lifetime federal judgeships who had been cleared by the Senate Judiciary Committee. They are among 59 aspiring judicial appointees whose nominations will expire when the 144th Congress fades into history this month. Of the 24 nominees left stranded, three had been selected to federal appeals courts, two for U.S. Court of International Trade, and 19 for federal district courts. Some of the nominees have been waiting for Senate action for months, including U.S. district judge Lucy Haeran Koh, who was nominated to the San Francisco Bay's U.S. 9th Circuit Court of Appeals by Obama in February and recommended by the committee in September. Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, accused Senate Republicans of setting a record for inaction on judicial nominations. Whereas the Democratic-controlled Senate confirmed 68 of George W. Bush's judicial nominees in the last two years of his presidency, only 22 nominees had been confirmed in the comparable period, Democrats note. Republicans countered by citing other statistics, such as the fact that Obama has had more judicial nominees confirmed overall than Bush did in his two terms--329 to Bush's 326. It is also true that the Democratic-controlled Senate ended its business in 2008 without having confirmed 26 Bush judicial nominees. Both parties have a history of refusing to act on highly qualified judicial nominees proposed by a president of the other party. Yet Leahy's indictment is on point. As with Senate Majority Leader Mitch McConnell's stonewalling the Garland nomination, the failure to act on the lower court nominations is extreme and inexcusable. As we noted above, it represents a partisan attempt to prevent Obama from exercising his right, as the Constitution puts it, to appoint judges by and with the advice and consent of the Senate. Sabotaging the exercise of that authority is offensive, not only because it undermines the Constitution but because it perpetuates a partisan grudge match over the Federal courts. It would be utterly understandable if Senate Democrats now retaliated by making it difficult for President-Elect Donald Trump to win confirmation for his judicial nominees, especially those slotted for seats that Obama had every right to fill. Democrats will be especially reluctant to support a Trump nominee to the Supreme Court who likely would move the court to the right after the Republicans cheated Obama out of his opportunity to shape the Court in a more liberal direction by appointing Garland. We recognize that the selection of Federal judges is an inherently political process, one of which both Presidents and Members of the Senate consider not only a nominee's technical qualifications and legal philosophy but also his or her ideology and party label. Even so, both parties need to eventually find a way back to a state of affairs in which a president, regardless of party, will receive prompt Senate consideration of his judicial nominees and an affirmative vote if they are well-qualified and not extreme in their philosophy (as we fear some Trump nominees might be). That should be the process, regardless of which party controls the Senate. That is important because denying qualified judicial nominees a vote harms the federal judiciary--by denying it needed personnel and by telling lawyers who might aspire to the bench that their nominations could languish for months and ultimately perish not because of any failing on their part but because of partisan gamesmanship. And it isn't lawyers and judges who suffer. As White House Counsel W. Neil Eggleston told the Washington Post: ``There is a real impact on real people. There are people and companies who are not having their cases heard because there are no judges around.'' Trump can make a significant gesture toward restoring a measure of normality to the confirmation process. He should resubmit the names of the nominees who received bipartisan support in the Judiciary Committee but were left stranded because of the delaying tactics of his fellow Republicans. This article is by Paul Gordon, titled ``Gorsuch and the Senate GOP's Alternative Universe.'' As I am reading these articles, let's not forget the basics. The basics are that 16 seats have become open on the Court in the history of the United States of America. Each and every time, up until last year, the Senate acted on the nominee put forward by the President. This is 9 of the 16. These are the nine that most resemble the situation we had with Merrick Garland, where the vacancy occurred before the election and the nomination occurred before the election. For example, with Merrick Garland, the vacancy was in February and the nomination was in March. It is not so different from the first name on the list, William Johnson, under Jefferson, when the vacancy was in January and the nomination was in March. In each and every one of these cases--the cases that occurred where the vacancy was after the election and the nomination, obviously, was after the election as well--there were vacancies before the election but then the President waited to nominate until after the election, and those cases that are more like Merrick Garland, where both the vacancy and nomination occurred beforehand. In virtually every case--well, actually, in every case, in all 15 cases preceding the death of Antonin Scalia, the Senate acted. Of those 15, they confirmed 11 and they defeated 4. That brought us to last year. As you can see on this chart, there is no action for the first time in U.S. history. It wasn't just an alternative way of doing things. It was a strategy to pack the Court, to try to send the nomination into the future in the hopes that there would be a conservative President who would nominate a conservative member of the Court. I think most folks who are participating in this Court-packing scheme didn't really think it would work because it wouldn't have worked if Democrats won the Presidency or gained control of the Senate. They were considered at least to have a 50-50 shot at each. It was a surprise to everyone that suddenly we were where we are, but there was no decision even at that late date after the election that we could have had time to vet and vote on the nominee. There is a whole set of these nominations that occurred after the election. It would have been totally possible after the November election to go ahead and still at that point consider Merrick Garland. We wouldn't be in this deep, difficult hole right now had we done so, but we didn't. It was a deliberate strategy to pack the Court, which is now on the verge of succeeding if we go through with the vote this week and if the rules are changed. If the rules aren't changed, then we will do what has been done over the decades. If your candidate doesn't have the votes, they get withdrawn. You change the candidate. You don't change the rules. The rule of 60 votes to close debate is designed to ensure that there is some bipartisan support for the nominees being put forward. That is an important issue in terms of integrity of the Court. We have to resolve this stolen seat. One way we can do that is to say: Hey, we are going to put this on hold. We are going to put it on hold until the investigation is done with the President, and we are going to put it on hold until we have a second open seat. At that point, the President could propose Merrick Garland for one of the seats--the first seat where he should have been duly considered to begin with--and a judge for the second seat that is more to his liking, off of his list, if you will. That would get us out of this quagmire. That would protect the credibility of the Senate, and it would protect the legitimacy of the Court. This article, ``Gorsuch and the Senate GOP's Alternate Universe'' is by Paul Gordon. In their efforts to get the ultra-conservative Neil Gorsuch onto the Supreme Court, Senate Republicans have moved beyond creating ``alternative facts.'' They've created an entire alternative universe. If Gorsuch has earned so little bipartisan support that he cannot get the support of 60 Senators (as all six successful nominees of the past three presidents were able to do), Mitch McConnell is threatening to change the Senate rules to allow Supreme Court nominees to be confirmed by party-line majority votes. He and his colleagues portray Judge Gorsuch as mainstream, the absence of consultation as bipartisanship, and themselves as victims of unprecedented and unprincipled partisan obstruction from the Democrats. Republicans don't want to trigger the ``nuclear option,'' they claim through crocodile tears, but will have no choice but to do so if those mean Democrats insist on a 60-vote threshold. Listening to them, you'd think they were the injured party. You'd never know that: Republicans refused to even hold a hearing for Merrick Garland, President Obama's nominee for this very vacancy. To justify this unprecedented move, they claimed that it had been decades since any president was permitted to immediately fill a vacancy that arose in a presidential election year. They were careful not to mention the reason for that: It's rare for justices to die in office, and Justice Scalia was the only justice since 1950 to pass away during an election year. The refusal to even consider Judge Garland for the Supreme Court was unprecedented, a pure power play that drew wide condemnation. Republicans insisted on a 60-vote threshold for three of President Obama's D.C. Circuit nominees, regardless of who they were, and even announced their demand before any nominations were made. They made it clear that they would block President Obama from filling any of the three vacancies on the 11-member court. (It was this extreme, unprecedented, unprincipled, and anti-democratic putsch that forced the Democrats to drop the 60-vote requirement for lower court nominees.) Republicans defended the 60-vote margin during the Obama years as a safety mechanism to encourage presidents to consult with Senators of the opposing party and select judicial nominees with bipartisan support. Conservatives claim that Democrats should support Gorsuch because his nomination was a culmination of the most transparent Supreme Court selection process in history, since Trump listed his potential nominations before the election. In fact, this may have been the least transparent selection process in history, designed to lead to an extremist nominee rather than one who could garner bipartisan support. Trump outsourced his Supreme Court selection to two of the most influential and well-funded right-wing ideological organizations in the country: The Federalist Society and the Heritage Foundation. Their selection process is the one that matters, and it was anything but transparent. What conversations did they have with Gorsuch that led them to include him on their list? When Sen. Blumenthal asked Gorsuch if he'd had any conversations about Rowe v. Wade or abortion in general with the Heritage Foundation, Gorsuch only said that no such conversations had occurred after the election (long after he'd been included on the list). We have seen transparent and bipartisan selection processes before, and they looked nothing like what we have seen with the current nomination. For instance, President Clinton consulted closely with Orrin Hatch, then the ranking Republican on the Judiciary Committee, before making his two Supreme Court nominations. And that consultation was genuine: Based on Sen. Hatch's advice, Clinton passed over his original first choice, acting transparently and in a manner to encourage bipartisanship. Republicans can posture as a principled, wounded party, forced to trigger the nuclear option, but that simply isn't reality. Since the death of Justice Scalia--indeed, since the moment President Obama took office--they have time and again escalated their partisan approach to the selection of judges. They held Obama circuit court nominees to a 60-vote threshold, then refused to allow votes at all on three D.C. Circuit vacancies regardless of who they were, and then refused to even hold a hearing for a Supreme Court nominee. Senate Republicans did not enter this presidency with clean hands. And while much of the GOP obstruction since 2009 had nothing to do with the nominees themselves, Democrats' opposition to Gorsuch is based on his record. Democrats have not said that they will oppose anyone who Trump nominates. In fact, as Senate Minority Leader Chuck Schumer has said numerous times, if Gorsuch cannot earn 60 votes, the solution is not to change the rules, but to change the nominee. It's clear that Senate Republicans have created an alternative universe worthy of a Star Trek episode. The Brennan Center for Justice published an article by Ciara Torres- Spelliscy titled ``Neil Gorsuch Understands Campaign Finance--And That's The Problem.'' It's Supreme Court prediction season with Tenth Circuit Judge Neil Gorsuch's nomination to fill the late Antonin Scalia's seat by President Trump (Or by whomever he outsourced the job. I'm looking at you, Federalist Society and Heritage Foundation.) Now everyone (including me) is poring over his past decisions to see what they could mean for the laws most in flux before the Supreme Court. I've hunted for clues about what Gorsuch believes about money in politics. He presides at the Tenth Circuit, which covers Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma. From a campaign finance perspective, most of the cases come from Colorado, which has tried to improve its campaign finance laws both through statute and by amending its state constitution. Various aspects of the Colorado campaign finance laws have landed in the Tenth Circuit, which is not known for being a particularly hospitable venue for reformers. One 2014 case called Riddle v. Hickenlooper has a concurrence written by Gorsuch. So what can we learn from this opinion about his style of judging, his views of campaign finance reform, and what he might do if he is elevated to the Supreme Court? Riddle v. Hickenlooper involved three candidates vying for a seat in the Colorado House of Representatives. There were two major party candidates and one write-in candidate. Individual contributions to the Republican and Democratic candidates were capped at $400, while the limit for the write-in candidate was $200. The reasoning for the law was that major party candidates (typically) have to go through a primary while minor and write-in candidates do not. The write-in candidates sued, claiming that the lower cap was a violation of contributors' rights under the Fourteenth Amendment's equal protection clause. The district court dismissed the claim, saying that contribution restrictions were constitutional. But a three- judge Tenth Circuit panel (consisting of two Republicans and one Democrat) unanimously reversed the lower court, finding that the disparities in contribution limits were, indeed, a violation of the equal protection provision. Gorsuch took the time to write a separate concurring opinion. What's encouraging about Gorsuch's opinion is that he accurately discusses complex campaign law, and this takes time and skill. Trust me, I've read plenty of lower court opinions in campaign finance cases where the lower court judges . . . can't follow the ins and outs of the exceptions to the exceptions in campaign finance law. These details do not stump Gorsuch. He writes thoughtfully and incisively about how the Supreme Court has been unclear about exactly which level of scrutiny applies to equal protection objections to differential campaign contributions. In the end, he concludes that whether the standard is strict scrutiny or intermediate scrutiny, the Colorado law cannot justify allowing major party candidates to raise twice as much as minor party candidates. Gorsuch also deserves credit for crafting his opinion narrowly and taking the time to note the limits of the case's holding. As he wrote, ``[h]aving said this much, it is worth pausing to emphasize what isn't said in these pages. Nothing in what I've suggested or what the court holds intimates that Colorado must adopt a per-election-cycle rather than a per- election approach to the regulation of campaign contributions.'' This limiting language appears to display sensitivity to the fact that Colorado has great latitude to choose its own means of election administration and campaign finance. This shows judicial incrementalism and a laudable degree of modesty. But there are a few words from Gorsuch's opinion which should give campaign finance reformers pause. For one, he wrote, ``[n]o one before us disputes that the act of contributing to political campaigns implicates a `basic constitutional freedom,' one lying `at the foundation of a free society' and enjoying a significant relationship to the right to speak and associate, both expressly protected First Amendment activities.'' In other words, Gorsuch is maintaining the link between political money and free speech. He added, ``[t]he plaintiffs before us don't complain that Colorado's contribution limits violate their First Amendment rights because, say, the limits are too low for everyone.'' This last quote is ambiguous. It is not clear whether there is an inadvertently missing word ``they'' before ``say'' which would mean he was attributing this statement to the plaintiffs in the case. But the way it is written sounds like Gorsuch himself is saying that contributions are too low for everyone. The limits at issue were $400 for major party candidates and $200 for minor party and write-in candidates. If this is his true belief, it would demonstrate hostility to one of the basic pillars of campaign finance reform since Watergate: modest contribution limits. So the good news is Gorsuch can navigate his way through a tangle of precedent--a basic qualification for a jurist. The bad news is he may harbor antipathy to regulating money in politics. If Gorsuch is elevated to the Supreme Court, he can help conservatives move the goal post to script scrutiny so that Colorado's and other States' attempts to temper the role of money in politics will be far more difficult to justify in court. So let me return to where I started yesterday evening. We are facing three very significant problems. The first problem is that for the first time in history, we are considering a nominee for a stolen Supreme Court seat. That alone should be reason for everyone who cares about this institution to turn down this nominee and to convey to the President that the only legitimate nominee for this open seat is Merrick Garland, because as a Senate we have a stake in the legitimacy of our work and that of the Court. To confirm anyone but Merrick Garland to this seat confirms the Senate as the thief who took the seat for the first time in U.S. history and transported it to another President in an effort to pack the Court. Furthermore, if there is a person confirmed to this seat other than Merrick Garland, it will cast a shadow over every 5-to-4 decision that individual participates in, in the years to come. It destroys the public credibility of the position. It makes the Supreme Court simply into a political body to which clever campaign tactics have delivered a majority for one ideological vision over another. Let's not enter into that position of destroying the credibility of the Senate process and the integrity of the Court in one fell swoop. Second of all, we should not be considering a nominee from a President who is under investigation for conspiring with Russia to change the outcome of an election. We don't know where those investigations will lead, but what we do know is that this places a big cloud over the legitimacy of him holding the office. Let's clear up that cloud. Let's answer the questions that were raised when, a week ago Monday, FBI Director Comey came to Capitol Hill to talk to the House and say: Yes, those investigations are underway. We know what the diabolical practices of the Russians were. We know they created fake news. We know they had a team of roughly 1,000 people sending out contrived social media messages to comment on the events of the day, to make it look like American citizens were commenting and to make one candidate look very good and the other candidate look very bad. Finally, this is an extreme nominee from the far right who does not believe in the fundamental vision of ``we the people'' and makes decision after decision through tortured, twisted, contrived arguments to find for the powerful over the people. That is unacceptable.

Mr. MERKLEY. I say to my colleague from Illinois that we will probably never know the full vetting that took place and the conversations that took place, but your observation that Hobby Lobby involves a parallel with Citizens United is absolutely right. In Citizens United, the Court said: The corporation gets these political rights; that is, the ability to spend money in campaigns, unlimited funds. And in Hobby Lobby, the corporation gets religious rights, if you will--the right to overrule, not just express them through the benefits they provide to their employees, but to trump the religious choices of their employees. It is kind of a super religious power, if you will, choosing the corporation over the people. In both cases, there is this element of choosing the corporation, promoting it, exalting it, over the rights of individuals. Jefferson made a comment in a letter where he talked about the philosophy of the mother principle. The mother principle said that the only way our government will proceed to fulfill the will of the people is if each citizen has an equal voice--not vote, but voice. ``Vote'' was a big piece of that, but he chose the word ``voice,'' as did President Lincoln on another occasion. The point he was making is that you have to have a place where everyone can weigh in, more or less, in equal fashion. The opposite of that is Citizens United, where an individual who is a multibillionaire can weigh in massively by buying up the air waves, the radio waves, the television waves, the web advertising, the social media, scrolling and so forth--all of these tools that didn't exist at the time they were formed. So there is this ability for the wealthiest to do a citizen sound equivalent of a stadium sound system that drowns out the voice of the people, just as you have this situation in Hobby Lobby where the religious preference of the corporate entity can trump the religious preferences of the employees.

Mr. MERKLEY. I am aware of that, and it disturbs me that the responsibility of the President to find the right person to place on the Court was farmed out, essentially, to these two groups the Senator mentioned. While often people will say: Did the President ask the nominee a particular question about how they might rule on XYZ, I am sure that it is quite likely that these groups did ask all sorts of questions in developing their list of 21 potential Justices.

Mr. MERKLEY. I say to my colleague from Illinois that the entire situation we are in revolves around the issue of dark money and having a person on the Court who will sustain that flow. That Citizens United decision was a 5-to-4 decision. Four Justices laid out the case that these unlimited funds--and often secret funds--are corrupting our American political system. And if one wants an example of that corruption, simply look at the vast change--within a short period of years--of the position of our colleagues on the right side of the aisle in regard to the environment. We had many colleagues who were very concerned about carbon pollution coming from the extraction and burning of fossil fuels. They wanted to make sure that we had a sustainable planet to pass on to our children-- our children's children. It was following a Republican tradition of being involved in things like the Environmental Protection Agency creation with President Nixon and the Clean Water Act and Clear Air Act. In a short period of time, like a shallow pool beneath a hot sun, it just evaporated. That concern for the environment just disappeared and dissipated. The result is that today, we have virtually no support to take on this major environmental threat in a bipartisan fashion, and that corresponds to this flow of dark money from the oil and coal billionaires into the campaigns for the Senate in the United States of America. So it is a deeply disturbing situation in which absolutely a lot of the explanation as to why we have a stolen Supreme Court seat and why we have this nominee and why he is being rushed through in a way that no Supreme Court seat had been rushed through ever before. Yesterday--Tuesday--just shortly before I started speaking last night, the majority leader came to the floor and said that he was filing a petition to close debate. That is the first time in U.S. history that has been done on the first day of the debate. That is the type of, I guess, completely focused effort to complete the theft that began last year.

Mr. MERKLEY. As my colleague has pointed out through his question, the challenge we have with the appropriate treatment of our advice and consent responsibility isn't simply a problem with the Supreme Court nominee, but with strategies to prevent the consideration of judges from our former President--both at the district court and at the circuit court levels--leading to the circumstances you describe.

Mr. MERKLEY. What is the agreed-upon schedule to resume the normal activities of the floor?

Mr. MERKLEY. My colleague from Illinois is absolutely right. In the middle of the night somewhere, a few hours ago, I pointed out that this evidence of different style of action didn't just depend on the history books because you can look a few hundred yards here from the Senate out at the Supreme Court, where Justice Kennedy sits and had gone through the process, just as the Senator had described.

Mr. MERKLEY. I will do so.

Mr. MERKLEY. Let's turn to Planned Parenthood Association of Utah v. Herbert. In August of 2015, Gary Herbert, Utah's Republican Governor, ordered the State to strip $272,000 in Federal funding from the Planned Parenthood Association of Utah in response to a series of highly edited videos that alleged that Planned Parenthood clinics were selling fetal tissue, even though Utah's clinics were not in the video then. By the way, those videos had been found to be completely doctored, completely inaccurate, completely misleading. But despite the fact that the videos were not authentic and despite the fact that they didn't have any bearing in Utah, Governor Herbert stood by his ruling to carve out and take away funding from Planned Parenthood. So Utah's Planned Parenthood Association filed for a restraining order against the State, saying that the State was not acting justly, so they asked the Court to protect them from unjust action. In spite of his continued claim that stripping the funding was not to punish the organization for its stance on abortion but in response to the videos--the doctored, inauthentic, discredited videos--the Governor eventually admitted, while responding to Planned Parenthood's motion for a preliminary injunction, that defense of the videos involved different affiliates--not the ones in Utah--that there was not even an accusation that Planned Parenthood in Utah had broken the law--not even an accusation. The organization didn't participate in programs that provided fetal tissue for research, so it was completely disconnected from the operation of Planned Parenthood in that State. The background of this is that medical institutions have utilized fetal tissue and there have been charges related to the preparation of that tissue. We could have a whole debate, and we should bring in the medical professionals to understand the details. But in this case, it is irrelevant to have that debate because Planned Parenthood in Utah wasn't part of the fetal tissue research organization. So we don't have to argue over whether fees they have charged for repairing the tissue were fair or unfair because they didn't repair anything. This was all about something else, which was the Governor's decision to launch an attack on Planned Parenthood, punish Planned Parenthood for its constitutionally protected advocacy. This issue is one which I am sure we will be talking about for years to come. But in the context of the law, a three-judge panel of the Tenth Circuit granted a preliminary injunction on Planned Parenthood, concluding that Utah's Planned Parenthood was operating lawfully and that the Governor's personal opposition to abortion as a motivation for blocking Federal funds and targeting the health organization did violate its constitutional rights. So when this was decided, neither Planned Parenthood nor the State of Utah sought to have the Tenth Circuit rehear the case en banc, which means all the judges that serve on the Tenth Circuit. So you had a three-judge panel that made a decision. Neither side of the case--they were like, OK, we are done with this. We are done with this. The practice wasn't even relevant to the association in Utah, not just because the videos were from different States, not just because the videos were doctored and basically illegitimate, but also because they were about a fetal research program that the organization in Utah didn't participate in. So from every possible direction, both sides said: Peace. The judge has ruled, and we understand why. We accept their ruling. But did Judge Gorsuch accept the ruling? No. He dissented from the court's denial and wanted to grant an en banc review, not at the behest of any litigant, just that Judge Gorsuch didn't like the outcome of the case and wanted to have a full panel in hopes of getting the decision that would defer to Governor Herbert, who wasn't seeking any review because he wanted to strip the organization's funding, even though the organization had done nothing wrong and didn't participate in the program at all. In other words, Judge Gorsuch was willing to ignore court practice and custom and a whole set of facts that showed that the whole decision the Governor made was on the wrong basis--wrong basis on the facts because the videos were doctored, wrong basis on the facts because it wasn't even about the State of Utah, wrong basis on the facts because Planned Parenthood of Utah didn't participate in this research program--wrong on every level. But Judge Gorsuch wanted to ensure that he could show a case backing Utah's Republican Governor that eliminated funding for Planned Parenthood. That is judicial activism. That is rewriting the law. That is not a judge; that is a legislator. A person who wants to rewrite the law in the frozen trucker case, a person who wants to rewrite the law in the autistic child case, a person who wants to rewrite the law in the Planned Parenthood case should run for office and legislate, not use the courts as your personal strategy for judicial activism; that is, to rewrite the law, the opposite of what the law says. In the majority's opinion, Judge Mary Briscoe wrote separately to highlight the troubling nature of Gorsuch's dissent. She noted first how ``unusual'' and ``extraordinary''--those are words that she put in--it would be for the Tenth Circuit, on its own motion, to order an en banc review when neither party to a litigation sought such a review. And then she went on, and what did she say about Judge Gorsuch's proposal? She said he ``mischaracterized this litigation and the panel decision at several turns.'' Politics should be in this room, not taking your politics and trying to change the law through judicial activism on the court by turning the law upside down and saying it means X when it clearly states Y. An unidentified judge--we are not sure who--requested that judges be polled. Again, that would be an unusual situation, apparently, in this context. Another judge in the majority pointed out that none of the parties asked for a hearing within the time permitted, and there was no justification for polling the court on that question at all. These types of cases give you a sense of how Neil Gorsuch has used his judicial position to rewrite laws. The law says protect the trucker. If the trucker is seeking to pursue safety, he says don't protect the trucker. The law says provide the disabled child with an appropriate education; Neil Gorsuch says no appropriate education is required. The court says that Planned Parenthood's rights were violated because they were singled out. That is not equality before the law, a very important principle in American jurisprudence. Neither side contested the outcome. It was kind of like, yes, OK, the court got it right. Judge Gorsuch wanted to contest it so he could strip Planned Parenthood of funding on a basis that the Court found to be unconstitutional. That is yet another reason that this hearing, this review of the judge be set aside. You have these three fundamental reasons. First, for the first time in our history, the seat has been stolen from one Presidency and delivered to another in a strategy to pack the Court, causing tremendous damage to the institution, as well as tremendous damage to this institution, because it involved not exercising our advice and consent responsibility. By the way, one may wonder, why didn't the majority, rather than stealing the seat, putting it in a time capsule and fast-forwarding it into the next administration in hopes of packing the Court--why didn't they just bring Judge Garland up and vote him down? The Senate has acted to not confirm in roughly a quarter of the nominations that have come forward to us for the Supreme Court. In those election year cases that I put up earlier, the Senate acted in all 15 of the cases that preceded the death of Antonin Scalia, but they didn't confirm in every case; they turned several of them down. They tabled a couple of them. They defeated a motion to proceed in another. But the Senate always acted. Why didn't the majority honor the responsibility under the law for the Senate to do advice and consent, when there was plenty of time to do so, when the entire tradition of the Senate had been to always do so, when the written responsibility under the Constitution was to do so? So why not just bring up the judge and defeat him? The answer is in the quotation that I read earlier from my colleague from Utah, who anticipated that if only the President would nominate somebody like Merrick Garland, it would be a great thing, and we would see a quick confirmation. Merrick Garland was that acceptable. He was that down the middle. He was without the kinds of issues that raised concerns. That was Merrick Garland. So the majority said: We can't have a debate on him because the Senate will approve him, because he is that qualified. He will get that bipartisan support. That is the principle of the filibuster; that is, that you don't close debate unless 60 Members say you close debate. So if 41 say we are not ready for whatever reason, you keep debating. That sends a strong message for Presidents to do what President Obama did. He consulted with the Democrats; he consulted with the Republicans and chose somebody who would be acceptable to both sides. That is the way it is supposed to work. And when a President ignores that and says: I am going to support somebody from the extremes, I am going to nominate somebody from the extremes, that is an invitation for the Senate to say no. The reputation, the legitimacy of the Court matters, so we are not going to approve this judge. That is probably what is going to happen this week. The majority here in the Senate may say they want to close debate, but will they have a supermajority, a bipartisan majority? No. A few Senators perhaps, but they will not have those 60 votes. Obama's judges met the 60-vote standard--both of them that they put forward before the third vacancy--and nobody filed a motion to close debate. There wasn't a vote on a motion to close debate. And why was that? Because everyone knew that they would have 60 votes to close debate. So, still, even out of the context of having had a cloture vote, you have the 60-vote standard there guiding the President and guiding the selection of the nominees. We should not go back in time to a world in which the copper barons ruled Montana, not back to a time where the railroads and the oil companies called all the shots. We need to recognize that we have come a long way in terms of fulfilling the constitutional vision that our Founders set out--this vision of equality under the law, this vision of the pursuit of justice. But with the recent decisions of the 5-to-4 Court, we have gone backward. We have gone backward by allowing gerrymandering, by allowing voter suppression, by striking down the Voting Rights Act, and, most importantly, we have gone backward by allowing this vast infusion of dark money from the very few to drive election results. I have been sharing the many reasons this debate should be suspended: One, because the seat was stolen; two, because there is an enormous cloud over the legitimacy of the President, and there are investigations under way, and we need to get to the bottom of it before a life-tenured position is filled by this President; and, three, a judge who repeatedly has engaged in rewriting the law to find for the powerful over the people, even when the law was very clear--even to the point that the entire Supreme Court overturned him on his effort to say doing merely more than nothing is acceptable under a law that says you must provide an appropriate education. But here is one more thing. Breaking news: A POLITICO report has just come out which says that Judge Gorsuch committed plagiarism in a book and in an academic article. Well, that is news I had not heard, so I will read the article, and we can all learn about it at the same time. This is a report from POLITICO entitled, ``Gorsuch's writings borrow from other authors.'' It came out at 11:19, which would put it an hour ago. Since I am here and since we are talking about Gorsuch, it is probably appropriate to share this breaking news with you. Supreme Court nominee Neil Gorsuch copied the structure and language used by several authors and failed to cite source material in his book and an academic article, according to documents provided to POLITICO. The documents show that several passages from the tenth chapter of his 2006 book, ``The Future of Assisted Suicide and Euthanasia,'' read nearly verbatim to a 1984 article in the Indiana Law Journal. In several other instances in that book and an academic article published in 2000, Gorsuch borrowed from the ideas, quotes, and structures of scholarly and legal works without citing them. The findings come as Republicans are on the brink of changing Senate rules to confirm Gorsuch over the vehement objections of Democrats. The documents could raise questions about the rigor of Gorsuch's scholarship, which Republicans have portrayed during the confirmation process as unimpeachable. The White House on Tuesday pushed back against any suggestion of impropriety. Here is what the White House said: ``This false attack has been strongly refuted by highly- regarded academic experts, including those who reviewed, professionally examined, and edited Judge Gorsuch's scholarly writings, and even the author of the main piece cited in the false attack,'' said White House spokesman Steven Cheung. ``There is only one explanation for this baseless, last- second smear of Judge Gorsuch: Those desperate to justify the unprecedented filibuster of a well-qualified and mainstream nominee to the Supreme Court.'' That was the comment from the White House. I must do a little bit of editorializing here. Having a lengthy debate on a judge is not unprecedented at all. What is unprecedented is, for the first time in U.S. history, the majority leader filed a petition to close debate on the first day of debate. That motion under our rules means, in 2 days, we will have a vote to close debate. That is what is unprecedented and never before done in U.S. history. Quite frankly, when the White House says ``mainstream nominee,'' the analysis by the Washington Post didn't find him to be a mainstream nominee. You can call him that, but read his opinions; read his judicial activism; find how he rewrote the law so that it means the case comes out the opposite of the way the law is written. See how that happened in the frozen trucker case. See how that happened in the autistic child case. See how that happened in his pursuit of the assault on Planned Parenthood, when everyone agreed there was a fair outcome and no one was appealing the outcome, except Judge Gorsuch. If we are going to talk about a filibuster and we want to think about it in the longer sense, we aren't even allowed to continue talking to keep this from being considered because the majority leader filed a petition to close debate, so we have to have a vote on it. But last year, for 290-plus days, the Republicans completely filibustered Merrick Garland. If we are talking about the core heart of the meaning of filibuster--piracy, freebooting piracy to take over the system--that is what they did last year. They wouldn't allow even a committee hearing or a vote also for the first time in U.S. history. That is piracy. That is a violation of our responsibility. So the White House certainly got some of this completely wrong. The article goes on--after having cited the White House opinion that this was an unfair attack--saying: However, six experts on academic integrity contacted independently by POLITICO differed in their assessment of what Gorsuch did, ranging from calling it a clear impropriety to mere sloppiness. ``Each of the individual incidents constitutes a violation of academic ethics. I've never seen a college plagiarism code that this would not be in violation of,'' said Rebecca Moore, a Syracuse University professor who has written extensively on the issue. Elizabeth Berenguer, an associate professor of law at Campbell Law School, said that under legal or academic standards Gorsuch's similarities to the Indiana Law Journal would be investigated ``as a potential violation of our plagiarism policy. It's similar enough to the original work.'' She continued: ``I would apply an academic writing standard,'' said Berenguer, who teaches plagiarism and legal writing. ``Even if it were a legal opinion, it would be plagiarism under either.'' The White House provided statements from more than a half- dozen scholars who have worked with Gorsuch or helped oversee the dissertation he wrote at Oxford University that was later turned into his book. They included John Finnis, professor emeritus at Oxford; John Keown of Georgetown University, one of the outside supervisors for Gorsuch's dissertation; and Robert George of Princeton University, the general editor for Gorsuch's book publisher. The experts offered by the White House asserted that the criteria for citing work in dissertations on legal philosophy is different than for other types of academia or journalism: While Gorsuch may have borrowed language or facts from others without attribution, they said, he did not misappropriate ideas or arguments. ``Judge Gorsuch did not attempt to steal other people's intellectual property or pass off ideas or arguments taken from other writers as his own,'' said George. ``In no case did he seek credit for insights or analysis that had been purloined. In short, not only is there no fire, there isn't even smoke.'' The article continues: The examples at issue make up a small fraction of published works by Gorsuch, which includes hundreds of legal opinions, academic articles, news articles and his book. POLITICO did not conduct a full examination of the federal judge's writings. Yet a review of the documents provided to POLITICO shows Gorsuch parroting other writers' prose and sourcing without citing them. Instead, Gorsuch often acknowledges the primary sources cited by those writers. In the most striking example, Gorsuch, in his book, appears to duplicate sentences from an Indiana Law Journal article written by Abigail Lawlis Kuzma without attributing her. Instead, he uses the same sources that Kuzma used: A 1982 Indiana court ruling that was later sealed, a well-known pediatrics textbook, ``Rudolph's Pediatrics,'' and a 1983 article in the Bloomington Sunday Herald. At one point, Gorsuch's prose mimics Kuzma's almost word for word in describing a child born with Down syndrome. Kuzma stated that-- Some medical terms here that I won't get right-- ``Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.'' Did everybody follow that? Gorsuch wrote that ``Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and esophagus.'' That is pretty close to word for word. Gorsuch also used similar language as Kuzma in describing ``Baby Doe's'' first days. ``Shortly after Baby Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had the right to refuse the surgery on behalf of their child. An attorney was present at the hearing to represent the parents, though no one was present to represent Baby Doe's potentially adverse interests. Six physicians attended, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital,'' Gorsuch wrote. Kuzma, the predecessor from which it is being argued that he has taken this virtually word for word, wrote: ``Approximately twenty-six hours after Infant Doe was born, a hearing was held at Bloomington Hospital to determine whether the parents had the right to choose a course of treatment for their child that consisted of allowing the child to die. An attorney was present at the hearing to represent the child's parents. No attorney was present to represent Infant Doe's interests. Six physicians attended the hearing, three of whom had obstetric privileges and three of whom had pediatric privileges at Bloomington Hospital.'' I believe that last sentence was virtually word for word copied from what Kuzma wrote. Kuzma, a one-time aide to former Sen. Dick Lugar (R-Ind.), did not respond to an inquiry from POLITICO, but released a statement through Gorsuch's team. Kuzma said she does ``not see an issue here, even though the language is similar.'' ``These passages are factual, not analytical in nature,'' Kuzma, now a deputy attorney general in Indiana, said. ``It would have been awkward and difficult for Judge Gorsuch to have used different language.'' But a 1983 Notre Dame Law Review article addressing the same case did, in fact, use different, plainer language to describe the issue than Kuzma or Gorsuch did. Author John M. Maciejczyk wrote that the ``infant needed surgery to correct a blocked esophagus.'' In several other examples provided to POLITICO, Gorsuch follows the fact patterns and sourcing without acknowledging them. This article goes on for another several pages. I guess we have the time to share it in its entirety. But let's not lose the fundamental point at the start of the article; that is, the title, ``Gorsuch's writings borrow from other authors,'' and an introductory comment here: Supreme Court nominee Neil Gorsuch copied the structure and language used by several authors and failed to cite source material in his book and an academic article, according to documents provided to POLITICO. To continue and to share the full text here, the article continues, providing more details. Tomorrow many people will be going through these because this is information that just came out an hour ago. It makes you wonder, is the reason that we had a first-ever motion to close debate on the first day of debate--the first time in U.S. history this happened--because there is information that people are aware of, and they want to get this nomination vote concluded before this information becomes public? Is that why we are violating all the constitutional norms here? Well, I hadn't thought of that possibility until this article was put in my hands a few moments ago. The article continues: In several other examples provided to POLITICO, Gorsuch follows the fact patterns in sourcing of other writers without acknowledging them. In describing euthanasia activist Derek Humphrey, Gorsuch's book tracks closely with the 2003 book titled ``A Merciful End: The Euthanasia Movement in Modern America,'' by Ian Dowbiggin. ``In 1989 Humphrey left his second wife, Ann Wickett, soon after she had undergone surgery for breast cancer. During the divorce, Wickett alleged that when Humphrey purported to help her mother commit suicide, the resulting death was not fully consensual,'' Gorsuch wrote. Dowbiggin wrote-- In a parallel phrasing that preceded Gorsuch's writing-- ``In 1989 he left his second wife, Ann Wickett, shortly after she had undergone surgery for breast cancer. Their subsequent divorce was made messier by Wickett's allegations that her mother had not died willingly when Humphry had participated in the suicide of her own parent,'' Dowbiggin wrote. Gorsuch did not include an attribution to Dowbiggin in the passage at issue, though he did cite the author at numerous other points in the book. Dowbiggin listed his sources as ``Deadly Compassion: The Death of Ann Humphry and The Truth About Euthanasia,'' by Rita Marker, and ``Last Rites: The Struggle Over the Right to Die,'' by Sue Woodman. The same titles were cited as sources by Gorsuch. In the same chapter, Gorsuch appears to rely heavily on a 2002 article by Paul Lombardo of the University of Virginia about sterilization techniques used in that state in the early 20th century. Lombardo writes that a woman named Carrie Buck was sterilized after having a child and her mother was institutionalized. ``Even worse for her, officials at her mother's asylum claimed that mother and daughter shared heredity traits in feeblemindedness and sexual promiscuity,'' Gorsuch wrote. Wrote Lombardo, ``Officials at Virginia Colony said that Carrie and her mother shared heredity traits of `feeblemindedness' and sexual promiscuity.'' There is a bit of an echo there. Gorsuch did not cite Lombardo despite mimicking his sentences and presenting them in virtually the same order, according to an electronic search of Gorsuch's book. Howard, the Syracuse University professor, said Gorsuch engaged in a passage known as ``patchwriting''--essentially patching together words, fact sequences and quotes from another source, but occasionally changing up the phrases and tenses. It is a way to copy someone else's work while making it look like it is your own. In addition to ``heavy patchwriting,'' Howard said, Gorsuch ``hides his sources, which gives the appearance of a very deliberate method. I would certainly call it plagiarism.'' In a 2000 article in the Harvard Journal of Law & Public Policy titled ``The Right to Assisted Suicide and Euthanasia,'' Gorsuch's writing aligns closely with a 1985 Duquesne Law Review article about euthanasia in colonial America. Gorsuch describes laws in colonial Virginia, Massachusetts, Rhode Island, South Carolina, North Carolina and Pennsylvania in the same order and with similar quotations as the Duquesne article. But Gorsuch never cites the article in that passage, instead only repeating the same sources that it relied on. Oxford's academic guidance for plagiarism states that ``paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using.'' Christopher Sprigman, a New York University law professor involved in building an online standard for citation in legal scholarship, said he did not believe examples of Gorsuch's questionable writing reflected ``mendacious'' acts on the judge's part. Gorsuch's manner in attributing sources is ``a choice that you might agree or disagree with,'' Sprigman said. ``It's a little bit risky, but I wouldn't say it rises to the level of a bad act. I think some people would say it's sloppy.'' That is the conclusion of the article--again, information that just came out about 1 hour 20 minutes ago. So I recommend that folks take a look at the article. I am sure many people will be analyzing it tomorrow. Part of the point of the lengthy debates we often had over the Supreme Court is to have a chance for all the facts to come out. And the fact that tonight--well, that is, Tuesday night; it is now Wednesday morning--Tuesday was the first time ever in our entire 200- plus years as a Senate that a cloture motion on a Supreme Court nominee has been filed on the first day of debate. Maybe that motion should be withdrawn given that there is more information now to analyze as of a few minutes ago than we had before. The challenge this institution faces is, how do we restore it to a functioning legislative body, and how do we repair the deep divide in America? This question goes far beyond just the issue of the nomination of Neil Gorsuch; this issue goes to fundamental changes in how this Senate operates, fundamental changes in how our society receives its information. While I shared some of that previously, I think it is probably now, many hours later, worth going back through a little bit on this set of challenges the Senate faces. When I was first here as an intern in 1976--41 years ago--the Senate was here all week long, Monday through Friday. It had a normal workweek. The Senate families were here, which meant that people had a more normal family life. During the breaks, they returned to their home States to share what they had worked on, what they were going to work on, what the Senate was working on, and generally hold townhalls and meetings and catch up on everything and then come back here after the break. That structure of families living here meant that there were connections not just between Senators but connections between them and their spouses. There were connections between their children. There were relationships formed over many evenings in which people socialized, and they had activities on weekends. There were a lot of connections that we don't have now, four decades later, because we fly in and vote on Monday night, and then we vote on Thursday afternoon and fly out. So we don't have the reenforcement of our families being here to provide the kind of fabric in which the legislative discussion occurs, and we don't have the time to get to know each other. That is a challenge. Plus, we have to spend a lot more time fundraising than folks in the Chamber did four decades ago. When you realize that a single individual, under the deeply mistaken decisions of the Supreme Court, can now put as much money into a campaign attack against you through a third party campaign--that they can write a check for more than the total amount you have raised for your entire campaign, it means that you are going to have to work very hard year after year to prepare for the next battle because the opposition doesn't have to prepare for the next battle. They simply have these massive amounts of funds that they can deploy at a moment's notice: Let's put $5 million in that race. Let's put $10 million in that race. The result is, for example, in the case of the Koch brothers, that when the Koch brothers used front groups to attack various candidates across America, the candidates wrestled with whether to respond by attacking the Koch brothers, and generally, they decided not to because of the old adage ``Don't pick a fight with someone who buys ink by the barrel.'' But the modern version of that is ``Don't pick a fight with someone who has the most deeply funded super pac that exists in the United States.'' So the Koch brothers carried their fight in 2014 into the Senate race in Arkansas. They carried their battle into the Senate race in Louisiana. They carried their battle into the race in North Carolina and in Colorado and certainly in Iowa and in Alaska and my home State of Oregon. They were funding front groups to attack me with a third- party campaign. This is what people fear. The Koch brothers can write a $5 million check--they and their associates--and counter all the funds you raised. In addition to the fact that we are here only 3 days, a portion of those 3 days from Monday night to Thursday night is given over to fundraising. So instead of being able to go to dinner with colleagues, you go to a fundraising dinner. Maybe you slip across the street to do an hour of phone calls. If you are not raising for your own campaign, you are raising for your party's Senate group--the Republican Senate campaign committee or the Democratic Senate campaign committee--or maybe you are raising money directly for your colleagues themselves, helping to make calls for an event that is upcoming. So you have an incredible shrinking of the Senate week, combined with a huge expansion of the time dedicated to fundraising in order to prepare for the attack that may well come from deeply funded super pacs. That is not a good combination in terms of Senators getting to know each other and getting to respect each other, developing projects together. I know that it not only damages the time people should be working together, but it also delegitimizes what this group of 100 Senators does. The minority feels almost compelled to fight the battle after having been attacked so viciously by the other side in third-party campaigns. To some degree, this probably goes both directions. So we come here brutalized by the groups who are supporting the other side of the aisle. You are not particularly in a mood to help them out. This is why I keep coming back to this: It is easy to simply become a pure partisan in this world in which deep-funded interests make up all kinds of attacks and put them on television in an effort to elect someone who will do their bidding, but if we do that, if we don't keep coming back together with the philosophy of problem-solving, then problems will never be solved. We will never have a better healthcare system. We will never have a better public education system. We won't have a better transportation system. We won't have better deployment of infrastructure in rural America if all we do is nurture the wounds of elections. But it also means that we need to change the dynamic that creates those wounds. That is why the Supreme Court seat matters, because the 5-to-4 Court has been doing a lot of wound infliction on our system, making it easier to gerrymander, making it easier for voter suppression, making it easier for dark-money campaigns to corrupt the election process. So we have to attack it on all fronts. That experience of coming here 41 years ago as an intern and seeing this place operate in a very different way gives me the hope that some way, we could find our way back from the brink. I don't think we have been anywhere as deep in the pit of partisanship--to mix metaphors--as at this moment, with this stolen seat; at this moment, with a cloud over our President and, therefore, a cloud over his nomination; at this moment, with a nomination that disrespected the role of a supermajority, the role being to help encourage Presidents to make nominations from the mainstream, not from the ideological extreme. Here we are, deep, deep into the pit. If we don't solve the dark-money problem which is very related to the Supreme Court, then we aren't going to come together to solve the other problems because we won't have people who have been elected through a ``we the people'' vision of America, where each citizen has an equal voice, Jefferson's mother principle. So that is the challenge that we face both on the Supreme Court side of this nomination but also in terms of problem solving. I think that article that just came out is one that should add to this conversation--this article that says there is now yet another issue, an issue that didn't come out in the Judiciary Committee deliberations. POLITICO has prepared a side-by-side comparison, which I have on this multicolored chart so citizens can look that up and contribute to that. But it is yet another reason we should probably go a different direction. Now I am going to turn to Gorsuch's views of expansive Executive power. Given the need for strong judicial oversight of this administration, under the circumstances, this nominee is particularly ill-suited. He has consistently taken the position that Executive power has very few limits. As a member of the Bush administration, Judge Gorsuch, according to the New York Times, ``was at the center of both litigation and negotiations with Congress'' regarding ``detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power.'' As a lawyer at the Department of Justice, Judge Gorsuch defended President Bush's enhanced interrogation methods. In 2005 Congress passed the Detainee Treatment Act, which was meant to ensure greater human rights for detainees held at Guantanamo Bay. Judge Gorsuch, working as a Department of Justice lawyer at the time, managed to weaken a provision in the Detainee Treatment Act permitting a civilian appeals court to review decisions by military tribunals. The original draft let judges scrutinize whether the tribunal had applied the correct standards, but the revised language only let them look to see whether the tribunal had applied standards set by the Pentagon. That is quite a change. After the legislation was passed, Gorsuch sent an email to a colleague in the White House in which he said he needed cheering up. In the email, he discussed successful efforts to weaken the legislation stating: ``The administration's victory is not well known, but its significance shouldn't be understated.'' After the Supreme Court issued a landmark ruling in June 2006 to find that officials involved in the use of interrogations could be vulnerable to prosecution for war crimes, Judge Gorsuch helped draft a legislative proposal to address the issue, though he left before the eventual bill, the Military Tribunal Commissions Act, was enacted. It is clear that he played a significant role in the case of Hamdan v. Rumsfeld, which former Solicitor General Walter Dellinger called ``the most important decision on Presidential power ever.'' The case was regarding the legal process being accorded to detainees at Guantanamo Bay. His central role was made clear by a request from the Department of Justice Office of Public Affairs that he, along with the Solicitor General and his principal deputy, participate in a background media call on the day the decision was to be announced. The Department of Justice records show that Gorsuch had been very involved in helping support the inclusion of language in the Detainee Treatment Act and the National Defense Authorization Act and bolstered the position that only the DC Circuit should be able to review complaints about the Bush military commissions. Gorsuch repeatedly asked several DOJ colleagues in November where we stand on the legislative language and if there is anything we can do to help. In February, a Republican Senate Judiciary Committee staffer sent Gorsuch a drafted amicus brief on behalf of Senators Kyl and Graham for the administration's jurisdiction stripping arguments, a Congressional Record excerpt supporting the claim. Fortunately, the Supreme Court rejected the jurisdiction stripping Hamdan, but it was clear that Gorsuch was trying his best to enact sweeping Bush claims to unilateral authority and severe limits on judicial review. Let me go back to the central premise here. As a member of the Bush administration, Judge Gorsuch, according to the New York Times, was at the center of both litigation and negotiations with Congress regarding detainee abuses, military commissions, warrantless surveillance, and broad claims of Executive power. I think all of us should be more than a little disturbed by getting to the bottom line here, which is that Congress sought to ensure greater human rights for detainees held at Guantanamo Bay and Judge Gorsuch was working as a DOJ lawyer to weaken a provision in that regard and these other pieces that I have referred to. I will turn now to an analysis of ``The Dissents of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream.'' This analysis by People For the American Way goes through a number of cases, setting out the picture, if you will, of just how far out of the mainstream Neil Gorsuch is. I will just read this by Elliot Mincberg, written last month: Many, if not most, decisions by the Supreme Court and the court of appeals are unanimous. Reviewing the cases where an appellate judge has chosen to disagree with and dissent from his or her colleagues, therefore, can be particularly revealing. And that is precisely the case with Judge Neil Gorsuch. Judge Gorsuch's dissents from his colleagues on the Tenth Circuit Court of Appeals are consistently right-wing, generally seeking to favor big business and other authority and harm the interests of workers and those who have suffered abuse by government officials. And this is on a court which, until recently, consisted primarily of Republican appointees like Gorsuch. For example: In Compass Environmental, Inc. v. Occupational Safety & Health Review Commission, Gorsuch dissented from a decision to affirm a Department of Labor fine against a company that failed to properly train a worker, resulting in his death by electrocution. Gorsuch claimed that there was no evidence to show that industry standards would have required more training. But as the court majority and the agency found, there was ``clear evidence'' to support the ruling. Let me say that again. Gorsuch said there was no evidence. The court majority basically found there was ``clear evidence'' to support the ruling. In particular, the company's own job hazard analysis found ``fatal danger'' from the high-voltage power lines involved, and recommended training for employees. That was the company's own job hazard announcement. The company itself knew: If you are operating a piece of equipment next to a high- powered voltage line and that metal equipment touches that line, you create the possibility of an electrocution. That training was given to some employees, but the employee who was killed did not get that training because they didn't give it to him. So the court majority said: Yes, you should have provided the training that you knew was necessary for the operation of this equipment in that setting with a high-voltage power line, but you didn't give it. Therefore, you are in the wrong. But Judge Gorsuch saw it differently. As a result of that negligence, the danger truly did become fatal, and the fine against the company was clearly justified. But Gorsuch disagreed with his own colleagues--including one who, like Gorsuch, was appointed by President Bush--and argued that the corporation should pay nothing. My father was a mechanic. He worked when he was first out of high school for construction companies on highways in Arizona, and he did a whole host of roles but mostly repairing the equipment of the shop. In a few years, he became a journeyman, a mechanic. In the course of that work on these big machines, you come to be aware that there are a lot of hazards that need to be addressed. You know some of those hazards for the operators, some of the hazards for working on the machines themselves. Companies know this as well. They know that if they are hiring a new employee to work in a hazardous setting, they need to train the employee so the employee doesn't get hurt. The company didn't provide the training. The employee died. The company is fined. And Gorsuch says: No, no, no problem here. Really? Why did the rest of the court majority find otherwise? Why did the Department of Labor find otherwise? Why did he disagree with his colleagues in order to protect a powerful corporation that had failed to provide the training that resulted in the death of a person? That is what the requirements for training are all about--to protect individuals from situations where they are at high risk. You eliminate those risks. (Mr. TILLIS assumed the Chair.) The article goes on to address the issue of the frozen trucker who I discussed earlier. In TransAm Trucking, Inc. v. Administrative Review Board, Gorsuch dissented from a decision. Here again, the majority is finding one thing, and, as you hear about this, you will realize that what the majority found was very logical, and what Judge Gorsuch found was standing everything on its head: Gorsuch dissented from a decision to approve a Labor Department determination that a large trucking company had wrongfully fired a truck driver who had refused to drive under hazardous conditions. The trailer's brakes had frozen in subzero temperatures, and the driver waited over two hours for repair help. He reported that he was ``having trouble breathing because of the cold'' and that he ``couldn't feel his feet.'' When help still did not arrive, he unhitched the large trailer because of concerns about driving the entire load under those conditions and began to drive away in the cab. The company insisted by radio that he keep waiting in the frigid conditions or drive with the full load, even though the trailer's brakes had frozen. Although he returned when help arrived in around fifteen minutes, he was fired; the company claimed that the firing was proper because instead of remaining in the freezing conditions and not driving (which was his right), he drove off without the trailer instead of the dangerous way the company demanded. Gorsuch agreed with the company, claiming that finding for the driver was improperly using the law ``as a sort of springboard to combat all perceived evils in the neighborhood'' and that the objective to promote health and safety was just ``ephemeral and generic.'' The court majority agreed with the agency, calling Gorsuch's reasoning ``curious.'' If anyone missed the elements of this case when I spoke about it previously, as I have several times in the course of the night because I find it such an outrageous situation, you have a driver who is in an impossible situation. The brakes had frozen on a truck in subzero temperatures. Therefore, the braking ability on the trailer is compromised. So it is dangerous to drive it. Then the auxiliary heater in the cab had failed. So he is in subzero conditions in the cab, and as this relates he had conveyed that he had gone numb. He was having trouble breathing because of the cold. He couldn't feel his feet. So he did the logical thing to protect his own safety. He drove somewhere seeking to get some heat but didn't drive the trailer because to do so would have been to endanger everyone else. The Court said this all fits with the law. Gorsuch disagreed. In Planned Parenthood Ass'n of Utah v. Herbert, a three- judge panel had issued a preliminary injunction against Utah's governor for unilaterally cutting off Planned Parenthood (PP) funding. This is a case that I referred to earlier where you have three basic things. A Governor chooses to cut off funding, eliminating equality under the law because of some doctor videos that were released--videos that were completely discredited later on--but in this kind of political campaign he chose to discriminate against Planned Parenthood. The fact is that those videos weren't about Utah. They were about a program that wasn't even utilized by Planned Parenthood of Utah. So at every level, there was no basis for this discrimination. So the majority of the full Tenth Circuit declined to rehear the case after the preliminary injunction. Gorsuch, however, wrote a dissent for himself and several others, and argued for deferring to the governor. An important issue in the case was the governor's intent in cutting off funding, which the panel found was retaliation for promoting access to abortion. On that issue in particular, Gorsuch argued for deference to the governor in the name of ``comity.'' In the name of comity? OK. Let's get this right. It is OK to violate the equality under the law in order to make nice with the powerful government. That is what Gorsuch argued? Well, the majority certainly disagreed, noting that nobody party to the suit had asked for a rehearing. This is where you seek a rehearing by a broader group of the panel of judges. If the defendant doesn't dispute it, why would you possibly do a rehearing except to score political points on the rightwing of the universe? That is what Gorsuch did. It shows his lack of regard for reproductive rights. It also shows that he wanted comity, that he wanted to make nice with the Governor rather than defend the rights of the organization that had been discriminated against. I think this kind of deference to executive authority is certainly something that in the context of our current situation is a dangerous tendency. These are just a few of the dissents written by Gorsuch where his disagreements with his own colleagues, including other Republican appointees, show that he is far to the right and out of the mainstream. Altogether, Judge Gorsuch has written 35 dissents, which are in the following areas: workers' rights, abuse of government official authority, corporations and consumers, criminal law, and other constitutional issues. So let's take a look at each of these areas. So again, these are cases where Gorsuch is disagreeing with the majority on a case. Judge Gorsuch has written five dissents in cases concerning workers' rights. I am reading this analysis. This analysis that has been prepared by Elliot Mincberg last month, titled ``The Dissents of Judge Gorsuch: Far to the Right and Out of the Mainstream.'' So Elliot writes: Judge Gorsuch has written five dissents in cases concerning workers' rights. In all but one, the majority found in favor of the worker, but Gorsuch argued for a result that would have hurt the worker and helped a corporation or other employer. These include the Compass Environmental and TransAm Trucking cases discussed above. Those we already talked about. The two others are similarly troubling. These are not my words. I am reading Elliot Mincberg's words. In Strickland v. United Parcel Service, Inc., the court majority ruled that a lower court had improperly dismissed a complaint that UPS had committed sex discrimination against a fired female employee and had also violated the Family Medical Leave Act (FMLA), and sent the case to the district court so that the plaintiff could try to prove her claims at trial. Although Gorsuch agreed with the FMLA ruling, he dissented on the discrimination claim and argued that the dismissal of that claim should be affirmed. The majority was critical of Gorsuch's argument, noting that he ``fail[ed] to acknowledge'' substantial evidence that the worker was treated differently because of her gender. That evidence, the majority explained, included testimony from ``multiple co- workers'' that she was treated differently than male employees, including being required to meet 100 percent of sales goals and being subjected to ``increased oversight'' such as frequent ``negative'' meetings that ``interfered with her ability to do her job.'' Certainly, I think, in this day and age, we expect companies not to engage in discrimination on the basis of gender. Here the court found ``substantial evidence,'' including ``testimony from multiple co- workers that she was treated differently''--and not in a positive way-- ``than her male employees''--subjected to different sales goals, subjected to different oversight, subjected to different special meetings that interfered with her job. But Judge Gorsuch disagreed with the majority and thought that this argument of discrimination should be rejected. The article continues: Finally, in NLRB v. Community Health Services, Inc., Judge Gorsuch dissented from a ruling last year that upheld a National Labor Relations Board (NLRB) decision that granted over $100,000 in back pay to hospital workers whose hours were illegally reduced, without deducting amounts that some earned elsewhere during the period that the employees' hours were improperly reduced. The Board concluded that such deductions were improper because the outside employment was important to help address additional hardship, encourage production and employment, and prevent dilatory conduct by employers in accord with law. But Gorsuch did more than dissent. Again, I am reading now the words of Elliot Mincberg. He excoriated the NLRB, a favorite target of many right- wing Republicans, suggesting that the NLRB's decision could have stemmed from its alleged ``frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions.'' Interestingly, one of the judges in the majority from which Gorsuch dissented was Chief Judge Tim Tymkovich, also a Bush appointee who was on Trump's list of 21 possible Supreme Court nominees, but who obviously was not selected. You know the NLRB, or the National Labor Relations Board, exists to protect workers by making sure employers abide by the law, and I find that Gorsuch's language here that imputes that the Board was operating not on the facts of the case but out of the frustration that it ``can't pursue more tantalizing goals like punishing employers,'' really quite bizarre. I know that in the pursuit of protecting workers it is often frustrating to companies that they get subjected to fines for their conduct by the NLRB or are ordered to pay back pay, but isn't this now the moment in which you have a President who said he was going to fight for workers? Wouldn't he want to nominate a judge who actually wanted to have the National Labor Relations Board be able to successfully fight for fairness for workers, not someone who treated that as kind of a frivolous thing: Oh, those workers, what do they need? They are just constantly bothering our powerful corporations with things like asking for fair treatment. How inappropriate is that? I mean, that is kind of the tone of the Gorsuch approach here, and I think it is incredibly important that we have an agency that says: If you proceed to bring people in and you don't pay them for the hours they work, you must pay them. If you are supposed to pay overtime and you didn't, you have to make it up. Somebody has to hold people accountable to the law for protection and for fairness to workers. It is not as if workers in America have been doing very well. Over the last four decades, workers have been getting the short end of the stick. The wealth in America has soared and soared and soared, and the workers, unfortunately, have received very little of that wealth. The inequality in the Nation has expanded dramatically. One way of framing this is that virtually all the new income in America has gone to the richest 10 percent of Americans. So here we have an agency that is just saying basic fairness: If you are supposed to pay overtime, pay overtime. If you bring people into the job, pay them for the time they work. If you are supposed to provide a break time, provide a break time--basic fairness for workers. But instead of having this basic fairness for workers, there is this campaign to take away the power of the agency that provides that. This came up in the context of the challenge we faced in 2013 when the minority said: We are not going to allow anybody to be confirmed to the National Labor Relations Board. They wanted it to be dysfunctional so they couldn't protect workers. Now we have a President who was running to help workers but he is nominating a Justice who treats that like a frivolous goal--protecting workers. Let me return to the argument here and to the topic of the ``Abuse of Government Official Authority.'' Judge Gorsuch has written four dissents in civil cases concerning claims of abuse of government official authority-- three involving law enforcement officials and one involving a state's governor. In three out of four [of these cases], his judicial colleagues found that such abuse had occurred or at least the plaintiffs should have a chance to prove it. In all three of those cases, Gorsuch dissented and would have deferred to the government official. We discussed already the most important of those dissents, which was Planned Parenthood v. Utah. Let's go forward to consider Cortez v. McCauley. The full Tenth Circuit considered whether a couple whose home was unexpectedly invaded by the police after midnight could bring claims of abuse to a jury. In the case, a 2-year- old girl for whom plaintiff Tina Cortez had baby-sat, said that Tina's partner had molested her, which other later investigation found to be untrue. Based on that report alone and with no warrant, four police officers burst into the Cortez's home after midnight. Among their other actions, the police woke up the couple and shined a flashlight into Ms. Cortez's face, grabbed her by the arm, put her in the backseat of a locked police car, interrogated her, left her there for about an hour, and searched the home without a warrant even though the 2-year-old had not accused her of any misconduct. The couple was released and was allowed back into their house after 2 a.m. after it became clear from investigation elsewhere that the claims against Mr. Cortez were false and there was no basis to proceed any further. The majority and Judge Gorsuch were in substantial agreement on Mr. Cortez's claims of improper police conduct, but Judge Gorsuch wrote a dissent for himself and several other judges from the decision of the majority, written by another Republican appointee and joined by several others, that Ms. Cortez should be able to present her claim to a jury and that qualified immunity should not apply. The majority criticized Judge Gorsuch because his dissent ``comes very close to saying'' that the police conduct was justified simply because the 2-year-old's claim was repeated by a nurse and her mother and was then ``acted upon by police officers,'' reflecting an extraordinary and improper degree of deference to police officials. Gorsuch also attempted to minimize the harm to Ms. Cortez, describing it as simply a ``transient feeling'' of intimidation. But as the majority explained, Gorsuch ``disregard[ed] the emotional or psychological injury'' that a jury could well find ``resulting from intimidation, fear for personal safety,'' and ``loss of liberty and privacy'' as a result of being ``removed from the residence in the middle of the night'' and being ``locked'' in a police car and interrogated ``for over an hour.'' To get a better grip on that case, this is setting up a situation in which, on very minor information, police proceed without a warrant to burst into a home after midnight, grab a woman, throw her in the backseat of a locked police car, interrogate her, leave her there for an hour, search the home without a warrant, and so forth. Gorsuch described this as just a ``transient feeling'' of intimidation, according to this article. I think that if most of us were ripped out of our homes in the middle of the night and were thrown into a police car and interrogated, we would find it to be something more than just a minor transient feeling of intimidation. The point was the goal of whether she should be able to present her claim to a jury. It was not even a finding on the legitimacy of her case; it was just that she should have her day in court, that she should be able to make her claim that how she was treated was inappropriate. Gorsuch minimized the impact on her and wanted to strip her of that ability to present her case in court. Shouldn't citizens who have gone through what they believe to be extraordinary experiences--and I believe being pulled out of your house in the middle of the night and thrown into a police car and interrogated is pretty substantial--have the ability to make their case? Maybe the judge and jury agree with you and maybe they do not. This is just a case of, do you get a chance to ask for justice? In this case, Gorsuch said no, and the majority said yes, you should have a chance. There are issues here. There are issues of personal safety, issues of loss of liberty, issues of loss of privacy. In another case that Judge Gorsuch decided--and I return to reading the article--Judge Gorsuch also dissented in Webb v. Thompson, in which ``the majority affirmed a lower court decision saying that county police officials were not entitled to qualified immunity from a complaint by a man arrested at a simple traffic stop and treated improperly by county police. This included being held in jail for 5 days when, according to county police, he should have been released in no more than 48 hours.'' This was, again, a man who was arrested at a simple traffic stop and was held in jail for 5 days when the policy was that he should have been released in 2 days. The lower court had found that there was a disputed issue of fact as to whether three officers had helped cause the delay, which all agreed was improper, and therefore ruled that the victim was entitled to present his case to a jury. But Judge Gorsuch dissented from the majority's decision to uphold that ruling, claiming that the officers did not have a personal legal duty to ensure a prompt hearing. The majority easily explained the flaw in Gorsuch's argument. Whether or not they had an affirmative duty to act, the majority explained, the officers were clearly liable if they, in fact, ``caused the delay.'' Here you have an individual who was held after a minor traffic stop-- held for 5 days in jail. I do not know about any other Member of the Senate, but if a Member of the Senate were picked up on a traffic stop and held for 5 days--and while we do not have the full context of the case here, under the rules, he should have been held no more than 2--it would be pretty upsetting, and his family would be pretty upset. Thus, there is the question of whether you get a chance to present your case. Do you, as a citizen, get a chance to present your case? The majority said: Yes, there is a reasonable basis here. You get a chance to present your case. Gorsuch said: No, we are going to strip the individual of a chance to present his case. It is quite a different approach, a continuous finding on behalf of the powerful, but not always. So I return to reading the article. In one case, A.M. v. Holmes, Gorsuch dissented in favor of an individual. The primary claim in that case was against two middle school officials who had asked an Albuquerque police officer to remove a 13-year-old boy who had disrupted a physical education class and rendered a teacher ``unable to continue to teach the class.'' The student was suspended and also arrested under a State law prohibiting interference with the educational process. When the mother sued, the lower court granted qualified immunity, a 10th Circuit panel majority affirmed, but Gorsuch dissented, suggesting that the severity of the officials' reaction was not justified. The majority also was troubled by the circumstances, but explained that it is ``not our place to question or undermine'' the state's decision to ``criminalize interference with the educational process.'' In this case, Judge Gorsuch did dispute a case and did so on behalf of an individual, giving more substantial support to the mother, who was suing. I am reading from this article written by Elliot Mincberg. It is titled ``The Dissents of Judge Neil Gorsuch: Far to the Right and out of the Mainstream.'' The article turns to the issue of corporations and consumers. Eight of Judge Gorsuch's dissents involved corporations, consumers, or both, including one environmental case. One dissent involved a case of two corporations pitted against each other. In all but one of the seven others, Gorsuch disagreed with his colleagues and wrote a dissent that favored corporations, harmed consumers or other citizens, or both. In the seventh, the corporation Gorsuch ruled against was an adult bookstore. This is the case of Ragab v. Howard. Ragab v. Howard concerned the increasingly important issue of forcing individuals to go to arbitration, rather than the courts, to resolve disputes with corporations. In this case, an investment banking firm and a capital financing company tried to compel arbitration of Sami Ragab's lawsuit for misrepresentation and violation of consumer credit repair laws in connection with agreements to help him obtain financing for a new business. Both the district court and the court of appeals majority, including a Republican appointee, ruled against the corporations. Judge Gorsuch dissented, however, arguing that even though the six different agreements among the parties contained conflicting language concerning the specifics of handling arbitration, the fact that all six called for arbitration of some sort was enough, and that the court should do a ``workaround'' so that arbitration would take place. The majority strongly disagreed. The different provisions, the majority explained, created such ``irreconcilable'' conflicts that it was clear that there was no ``meeting of the minds,'' a basic principle of contract law. The majority pointedly noted that it would be improper for ``courts'' to effectively write in an arbitration requirement when the agreements did not ``demonstrate the parties'' intent. Let's talk for a moment about this issue of binding arbitration. This is a situation in which consumers are involved in a transaction, and there is some fine print that says: If we get into a dispute, you must go to an arbitrator, and the outcome of that--whatever the arbitrator decides--will be the only outcome you can get. That sounds pretty good at first. An arbitration sounds like a judicial process. Nothing about it sounds completely unbalanced. But, in fact, it is not a judicial process; it is unbalanced. The corporation hires the arbitrator. Now, if you and I are in dispute and you are essentially hiring the referee for that dispute, wouldn't you kind of figure the system was a bit rigged, especially if there are a whole series of disputes and the referee--that is, the arbitrator--wants the business of the corporation and is only going to get that business if they find on behalf of the corporation? So you are not going to get a fair hearing. You get an unfair hearing. The system is rigged because the individual being hired by the other party will get business only if they keep finding in that party's favor, so you enter the room knowing that you are going to be found against, except in a rare circumstance. It is a completely rigged system. It doesn't compensate at all. It doesn't replace any fair adjudication, and it allows companies to get away with predatory practices because there is no avenue through which to pursue fairness. In this case, the majority said there is no clear arbitration, but Judge Gorsuch wanted to write a requirement. He wanted to legislate. We have seen these other cases where he wanted to legislate. He wanted to change the way the law is written to protect truckers who operate vehicles so as not to endanger others because he didn't like that. He wanted to rewrite the law in Utah so that you could ban funds for Planned Parenthood, even though it was unconstitutional to discriminate against them, and so on and so forth. The more I read his opinions, the more I think Neil Gorsuch should run for office. He wants to change the law in case after case after case. Run for office. Theoretically, that is what legislators do, not what judges do. Judges call balls and strikes, not twist the law to mean the opposite of what it was written to be. And in this case, he is saying the court should do a ``workaround'' so that arbitration should take place, and the majority said that is not possible. These are irreconcilable conflicts between the different provisions of the different arbitration requirements. There is no meeting of the minds. It is the principle of contract law, and it would be improper for the courts to write an arbitration requirement. But that is what Judge Gorsuch wanted to do. He wanted to write an arbitration rule. He wanted to legislate. Well, run for office; don't put yourself forward to fill a stolen seat on the Supreme Court. I know that members of the Senate Judiciary Committee followed these cases during the hearings of the Judiciary Committee and looked at them carefully. The more they saw, the more they saw not a judge but someone who wanted to legislate, who wanted to rewrite the law to help the powerful over the ordinary individual, in case after case after case. Let's turn to another case. I will return to the article. This article by Elliot Mincberg, titled ``The Dissents of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream.'' The article continues: In Gorsuch's sole dissent on environmental issues, New Mexico Off-Highway Vehicle Alliance v. US Forest Service, he dissented from a ruling by two other Republican appointees and argued that the Sierra Club and other environmental groups should not be allowed to intervene in a lawsuit contesting Forest Service rules that expanded the number of trails and roads that were only for hikers and bikers. So the lay of the land here: You have a really--by two Republican appointees, and you have Gorsuch arguing the opposite side, saying that the environmental group should not be allowed to intervene in a lawsuit contesting Forest Service rules. So then the article continues: The Alliance, a nonprofit supported by Kawasaki and other motorized vehicle companies, wanted to return to old rules allowing motorized vehicles on more trails. Even though neither the Forest Service nor the Alliance objected, the district court ruled against the environmentalists' participation in the case, and Gorsuch agreed in dissent. As the majority explained, however, other 10th Circuit decisions made clear that the environmentalists had strong reasons to be involved in the case and ``should not have to rely'' on the government to protect their interests, particularly since the government did not object to the proposed intervention. The majority specifically criticized Gorsuch for appearing to rely on the opinion of just three judges in a previous case involving all 13 10th Circuit judges to try to reach a narrow and unfavorable result in the case. So I know that often Neil Gorsuch liked to say: I just apply the precedents. So what does he do? He takes the opinion of three judges in a case involving 13 Tenth Circuit judges. Well, you can see a clever strategy as presented in this article, an effort to reach a narrow and unfavorable result. The article continues: In WWC Holding Co. v. Sopkin, Gorsuch argued that a wireless service carrier should be able to avoid the Colorado Public Utility Commission's efforts to enact state-specific consumer protection standards for wireless phone service because the company was complying with relevant federal rules. The majority in the case, including the Republican appointee, disagreed and ruled that Colorado had the authority to enact and enforce state-specific rules, including requiring free calls at libraries, in school districts, and in other community gathering places, under the ``express statutory authority'' of federal as well as state law. So let's review that. Gorsuch wanted the company to avoid the public utility commission's requirements, and the majority said: Wait, there is express statutory authority for the State utility commission to be able to require State-specific things such as free calls at libraries, in school districts, and in other community gathering places. This is another case where Gorsuch wanted to be the legislator. Well, go and get elected and write a law rather than writing law as a judge when you are supposed to be calling the balls and strikes. The article continues: Judge Gorsuch dissented in three other cases in which the majority had found in favor of individual consumers. So the majority says the individual is right, and Judge Gorsuch said: Let me be clear. I want this case to come out on behalf of the corporation. The article continues: Pace v. Swerdlow, where the majority reversed the dismissal of a negligence case against an expert witness and ruled that parents should have the opportunity to prove that the expert's actions prevented them from receiving compensation related to their daughter's death. So the argument of the parents was that there was an expert witness, and the expert witness's actions prevented them from receiving compensation relating to their daughter's death, and the case should be dismissed. So the majority reversed the dismissal, but Judge Gorsuch dissented. The article continues: In Salmon v. Astrue, where the majority ruled that a hearing examiner had improperly disregarded evidence reporting a claim of physical and mental disability benefits from the Social Security Administration, but Gorsuch argued in dissent that the examiner's denial met the legal test of being supported by ``substantial evidence,'' which he equated with simply being within the ``bounds of reason.'' The majority said the examiner--just to review that--had improperly disregarded evidence. Well, certainly, if I were having a family member in that situation, I would not want a hearing examiner to improperly disregard evidence related to a claim for mental and physical disability benefits. But Gorsuch argued on the other side, against the person on the minority side. In Blausey v. Trustee, where the majority allowed a bankrupt couple to appeal an unfavorable bankruptcy court decision, the majority said the couple should be able to appeal an unfavorable bankruptcy court decision rejecting the petition, although it ultimately decided against the couple, but Gorsuch would not have accepted the appeal in the first place. He would not have allowed that bankrupt couple to appeal an unfavorable bankruptcy court decision. The majority said: We may not find in her favor, but she deserves her day in court. Judge Gorsuch said: No day in court for her. We are not letting her even argue her case. The article goes on to address another section involving criminal law: Most of Judge Gorsuch's dissents have been in criminal cases, often raising constitutional issues concerning whether people have been deprived of effective assistance of counsel under the Sixth Amendment or of rights against unreasonable search and seizure under the Fourth Amendment. A number of these were habeas corpus cases, in which the federal courts undertake limited but important review concerning criminal cases tried in state courts. Gorsuch has dissented in favor of criminal defendants on five occasions. But in almost twice as many, nine, he has dissented against rulings by colleagues, many of them Republican, that vindicated important constitutional rights. Most troubling have been Gorsuch's four dissents in cases where his colleagues found that Sixth Amendment rights were violated because individuals, usually low-income people, did not receive effective assistance of counsel. Perhaps the clearest example is provided by his two dissents in Williams v. Jones. In the three-judge panel decision in Williams, two of Gorsuch's Republican colleagues, including the very conservative Michael McConnell, ruled that more effective relief was required for an individual who, both the majority and an Oklahoma estate appellate court agreed, was deprived of effective assistance of counsel. In this case, the state had offered Williams a plea agreement under which he would serve 10 years in jail, which Williams wanted to accept but was stopped by his counsel. The lawyer claimed that Williams would be committing perjury if he accepted the agreement and said that he would withdraw from representing Williams unless the case went to trial; short of money, Williams agreed. The trial resulted in a guilty verdict and a sentence of life without the possibility of parole. The Oklahoma court of appeals agreed that the lawyer's conduct was improper and had harmed his client, but the only relief they granted was to reduce the sentence to life with the possibility of parole. The 10th Circuit accepted a habeas petition limited to the question of adequacy of the relief provided by the Oklahoma court. The panel majority explained that in light of the egregious conduct by counsel and the obvious consequences, the case should be sent back to the state court to provide a remedy ``tailored to the injury.'' What is the injury? Egregious conduct by counsel resulting in a massive penalty. The panel majority explained that in light of the egregious conduct by counsel and the obvious consequences, the case should be sent back to the state to provide a remedy ``tailored to the injury,'' i.e. the loss of a ten-year sentence as opposed to a life sentence. Gorsuch not only disagreed, but would also have gone even further. He claimed that there was no Sixth Amendment violation at all, because Williams received a fair trial in which his lawyer represented him well after the plea agreement failed. The majority was extremely critical of Gorsuch's claim. ``No federal circuit court,'' they explained, had accepted Gorsuch's view that any pre-trial Sixth Amendment violation is somehow cured if the later trial is fair. Gorsuch's claim that the Sixth Amendment is essentially limited to what happens at trial, the majority stated, has been ``rejected by the Supreme Court'' and is ``incompatible with a right to effective assistance of counsel in connection with the entire plea process.'' Let me comment here that when a person is in court and has very limited funds--unlike a very affluent person who can have a whole team of lawyers--you really depend on your lawyer representing you in an effective manner, not, as relayed here, in an egregious manner that basically undermined your path. But Gorsuch did not stop there. He dissented from a decision by the entire 10th Circuit not to rehear the case, which included several additional Republican-appointed judges, this time also claiming that the effect of the court's ruling was to overturn the later jury verdict that had found Williams guilty. One of the Republican-appointed judges on the original panel made short shrift of Gorsuch's arguments in a concurring opinion. It was not a federal court that had originally pointed out the Sixth Amendment violation requiring relief; it was the Oklahoma appellate court that found Williams' lawyer's conduct ``highly improper'' and ``deficient,'' and that Williams had ``indeed suffered prejudice by his trial counsel's action.'' Gorsuch's view, the concurrence explained, was ``impossible to square'' with Supreme Court and court of appeals' rulings on effective assistance of counsel. The Supreme Court denied review of the case. So the Supreme Court sided with the majority, essentially saying Gorsuch got it wrong. This concept of effective assistance of counsel is fundamental to the notion of a fair trial system. An ordinary person can't represent themselves; they have to have effective assistance of counsel if there is to be any possibility of a fair decision. The article continues, saying: Other dissents by Gorsuch on findings of Sixth Amendment violations include: Wilson v. Workman, in which the majority of the full Tenth Circuit agreed, in a decision by Judge McConnell and joined by other Republican appointees, that a death row prisoner suffered a Sixth Amendment violation because his lawyer failed to present important evidence of Wilson's poor mental health and other problems that could have mitigated against the death penalty. Gorsuch dissented and claimed that the court should defer to the state appellate court that had rejected the claims. But as the majority pointedly explained, deference was inappropriate because the state court had not considered available ``material, non-record evidence'' and thus had not truly ``adjudicated that claim on the merits.'' So here is another case of the lack of effective assistance of counsel, and all that counsel's representations were defective-- ``failed to present important evidence of Wilson's poor mental health and other issues that could have mitigated against the death penalty.'' Gorsuch said it doesn't matter. A majority said of course it matters. ``The state court had not considered available `material, non-record evidence' and thus had not truly `adjudicated that claim on the merits.' '' Let's turn to the case of Hooks v. Workman. Again, I am reading from this article: Hooks v. Workman, in which another Republican-appointed judge wrote a panel opinion finding that a death row prisoner's lawyer had failed to present important mitigation evidence, including concerning Hooks' brain damage, mental retardation, and a history of abuse against him. Gorsuch argued this time that even if that evidence had been presented, the jury would have sentenced Hooks to death. As the majority explained, however, the lawyer's work was demonstrably ``deficient'' and ``prejudicial,'' and there was clearly a ``reasonable probability'' that at least one juror would have refused to impose the death penalty if the Sixth Amendment violation had not occurred. So here the majority--this is not Democratic or Republicans; it is an Republican-appointed judge--found that a death row lawyer failed to present important mitigation evidence regarding brain damage and mental retardation and a history of abuse--all mitigating circumstances. The failure to present that meant the jury sentenced him to death where they might not have otherwise. The majority made it very clear that ``the lawyer's work was demonstrably `deficient' and `prejudicial,''' but Gorsuch dissented. The concept of effective assistance of counsel as presented in these cases seems to be one that Neil Gorsuch really doesn't grasp or, if he understands the concept intellectually, doesn't want to, if you will, honor the requirements of the Sixth Amendment. Turning to motions to suppress. Judge Gorsuch's record is mixed concerning dissents relating to motions to suppress evidence because of alleged constitutional violations by police. In U.S. v. Carloss, Gorsuch argued in dissent that it was improper for police officers to knock on a homeowner's doors as part of an investigation into illegal possession of a machine gun, without a warrant or exigent circumstances, when the homeowner had conspicuously posted ``No Trespassing'' signs on his door and around the property. Gorsuch listed this opinion as one of his ten most significant opinions in his response to the Senate Judiciary Committee questionnaire. In three other cases not involving trespassing at home, however, Gorsuch dissented from decisions that suppressed evidence because of improper conduct by law enforcement. In US v. Benard, he dissented from a decision to suppress statements made by Benard after he had been arrested without receiving Miranda warnings. Gorsuch argued that the error was harmless, but the majority explained that they ``cannot conclude'' that was correct ``beyond a reasonable doubt,'' as the law requires. In US v. Nicholson, Gorsuch dissented from a ruling that police officers had improperly stopped and then searched a car for an alleged traffic violation, when there was no violation at all because the driver's left turn was not illegal. Gorsuch claimed it was a reasonable mistake, but the majority explained that according to existing Circuit precedent, ``failure to understand the law by the very person charged with enforcing it is not objectively reasonable.'' To translate that, the police officer shouldn't stop somebody for making a legal left turn when the left turn is legal. And in US v. Dutton, Gorsuch dissented from a decision by two other Republican appointees that a search warrant for a storage unit contained a ``fatal flaw'' because the application lacked ``any evidence'' that the unit belonged to Dutton. Gorsuch called it a good faith error, but the majority clearly disagreed. So in these cases where he is dissenting, essentially the majority is saying: You have to hold our public safety officers to a standard required by law. And Gorsuch is saying: Well, it was good faith. It wasn't an error. They didn't mean to do it. He is choosing to basically say that the individuals will not be able to assert the error made on the public safety side. It gives them a great big leash area, a big, sizeable zone, and compresses the zone in which the individual is acting. That is the pattern we see in this. Other criminal issues. In addition to Carloss, two of Gorsuch's other dissents favorable to criminal defendants concerned prosecutions for federal firearms violations. In US v. Ford, he argued in dissent that prosecutors should have disclosed evidence suggesting that the defendant was entrapped into purchasing a machine gun, although the majority considered that evidence not material to the defense. In US v. Games-Perez, Gorsuch dissented from a decision not to rehear a case concerning a federal law prohibiting possession of a gun by a felon. Two other Gorsuch criminal law dissents that favor defendants concerned unique issues. In US v. Nichols, he argued in dissent that the full 10th Circuit should rehear a case in which a sex offender was convicted of violating requirements of the Sex Offender Registration and Notification Act that he notify authorities when he travels to another area. Nichols had been convicted prior to the date of the Act, and Gorsuch argued that Congress had improperly delegated to the attorney general wide authority to determine to what extent the law applied to such offenders. So apparently in that case the majority was pointing out that Nichols had been convicted prior to the date of the act, and Gorsuch was arguing that Congress had improperly delegated to the Attorney General wide authority to determine to what extent the law applied. Gorsuch also dissented in US v. Spaulding and disagreed with a majority ruling that a lower court did not have jurisdiction to set aside a criminal judgment that contains a term of imprisonment. In several other cases, however, Gorsuch dissented on the merits from decisions by his colleagues that disfavored prosecutors. In US v. Rosales-Garcia, he dissented from a ruling that the trial court judge had improperly enhanced the sentence of an individual convicted of re-entering the country illegally because of a prior conviction that resulted in a severe sentence. The majority stated that ``we cannot agree'' with Gorsuch's claim that the US Sentencing Guidelines could be equally plausibly read to support the government's position. As the majority explained, the sentence on the prior conviction had been later enhanced because of the individual's re-entry, not because of the original misconduct, and thus should not qualify under the guidelines as a reason to further increase the sentence imposed. Gorsuch also dissented in US v. Raymond, in which one of his Republican colleagues wrote an opinion affirming a lower court decision to dismiss an indictment that violated a previous plea agreement that prosecutors not bring additional charges against Raymond arising out of conduct known to the US Attorney before a specified date. Gorsuch argued that the district judge had committed an error, but the majority explained that ``we cannot disturb the district court's factual finding'' that the US Attorney did have such knowledge, based on specific testimony. I am reading from a lengthy article prepared or at least issued under the organization People for the American Way and titled ``The Dissents of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream'' by Elliot Mincberg. The article then turns to other constitutional issues. So I will continue reading it. This article continues: In addition to the criminal law and other cases discussed above, Judge Gorsuch has written dissents from his colleagues' opinions in three other cases related to constitutional law issues: two relating to the Establishment Clause and one relating to the Constitution's Guarantee Clause. In all three, Gorsuch's dissent was significantly to the right of even other Republican judges on the court or raised other troubling concerns. In Green v. Haskell County Board of Comm., a three-judge panel of all Republican appointees had concluded that an Oklahoma county's decision to approve the construction of and maintain a Ten Commandments monument on its courthouse lawn violated the Establishment Clause. Judge Gorsuch wrote an opinion for himself and several other judges that dissented from a decision by the full court of appeals, including several other Republican appointees, not to rehear the case. He argued that the panel's decision was inconsistent with the Supreme Court's ruling in Van Orden v. Perry that upheld the Ten Commandments monument in Texas, and suggested that the court should not even use the establishment ``endorsement'' test to decide the case. As the panel decision explained, however, the endorsement test remained the law in the Tenth Circuit (and elsewhere), the monument clearly had the ``primary effect of endorsing religion,'' and the Van Orden decision did not apply because the case involving a monument that has stood on public property for 40 years without challenge, while the monument in Green was recently erected and challenged. The Supreme Court denied review of the case. Another panel of three Republican-appointed judges simply ruled against the Utah Highway Patrol Association's construction and maintenance of a series of 12-foot crosses on public lands near roads to memorialize deceased officers, explaining the crosses had the ``impermissible effect'' of appearing to endorse the Christian religion. Judge Gorsuch wrote an opinion for himself and other judges that dissented from the decision of the full court of appeals, including Republican appointed judges, not to not rehear the case. Gorsuch again asserted that the ``endorsement'' test should not be applied, and relied on a three-judge plurality in another Supreme Court case, Salazar v. Buono, that allowed a cross to remain on public property. As the panel explained, however, the endorsement test clearly remained the law of the Circuit, and the Buono case did not apply because it concerned a cross that had been on government property since the 1930s. The Supreme Court again denied review of the case-- Which means they upheld the majority and did not uphold the position that Gorsuch was taking-- Justice Thomas alone wrote a vigorous dissent, making some of the same arguments as did Judge Gorsuch. Finally, Judge Gorsuch and several others dissented from the decision of the full 10th Circuit not to rehear a panel decision in Kerr v. Hickenlooper. The panel had upheld a district court decision to allow a claim by a number of State legislators and others that the Colorado taxpayer bill of rights, under which all tax increases must be approved in advance by voters before legislative action, violated the Constitution's Guarantee Clause. Under that clause, all States are guaranteed a republican form of government where a State legislature presumably makes such decisions. The panel did not reach the merits of the claim, but agreed that there was standing to go forward and the case should not be dismissed as raising only a ``political question.'' Gorsuch argued that the issue was an unreviewable political question because there were no ``judicially manageable standards'' to decide it. The panel disagreed, pointing out that no such standards existed in advance of the Supreme Court's decisions on the Second Amendment. In addition, Gorsuch ignored the fact, as one scholar has pointed out, that the Supreme Court itself has ruled on the merits of the Guarantee Clause claims as recently as 1992. Even more importantly, Gorsuch's dissent suggested a particularly troubling view on the subject of possible constitutional challenges to partisan redistricting. Continuing the analysis here as presented in this particular article: In particular, in trying to support the argument to his dissent, Gorsuch asserted that the Supreme Court had ``put to bed'' in Vieth v. Jubilerer the question of whether the partisan gerrymandering could be challenged constitutionally because of the lack of manageable standards of review. As the Campaign Legal Center has pointed out, however, that statement is flatly wrong. Although some justices argued that the issue cannot be reviewed, in his controlling opinion in Vieth, Justice Kennedy recognized the corrosive effects of partisan redistricting, and held the door open for appropriate and judicially manageable standards in the future. In fact, a recent decision from Wisconsin that articulated such standards in striking down partisan gerrymandering could well be reviewed soon by the Supreme Court. Gorsuch's suggestion that he already agrees with the justices in Vieth who claimed the issue should not be are he viewed at all is extremely disturbing. The article then has a short conclusion that reads as follows: This review of Judge Gorsuch's dissents yields very troubling conclusions. Consistently, he has argued in favor of corporations and government authority and against workers, consumers, environmentalists, and poor people, even when a majority of his colleagues, including other Republican appointees, disagree. In those rare instances when he does not so argue, he has frequently sided with gun and property owners. His views are clearly to the right of the Supreme Court majority--even when Justice Scalia was on the Court--on issues like the Sixth Amendment, partisan gerrymandering, the non-delegation doctrine, and the Establishment Clause. Measured against his own colleagues on the Tenth Circuit including Republican appointees, he is far to the right and out of the mainstream, and should not be elevated to the Supreme Court. So that is the article titled ``The Dissents of Judge Neil Gorsuch: Far to the Right and Out of the Mainstream.'' Let's turn to an analysis of the ways that Neil Gorsuch threatens women's rights. This is titled ``Extreme Far Right Judge'' from the Center for American Progress. ``5 Ways the Nomination of Neil Gorsuch Threatens Women's Rights.'' It is from March 23, 2017. The principle of equality is a cornerstone of American democracy. From our nation's earliest history to the present day, there has been a robust discussion about how to realize the promise of equality and the everyday experiences of people across the country. But equality in the United States has come with an invisible asterisk: Its principles have not been uniformly enjoyed across different segments of society. Given this reality, people who face discrimination have always depended on the courts to protect their access to equal justice. The article continues: For women, the ongoing quest for equality has been a deliberate--yet uneven--journey. The U.S. Supreme Court has been pivotal in determining the pace and scope of this progress. It is therefore critical that the next Supreme Court justice has an unflinching commitment to an equality that respects all women's dignity and autonomy, enables them to participate fully in society, and empowers them to make decisions about their lives that make sense for them. President Donald Trump's nominee to the Supreme Court, however, has a judicial record that suggests that he would attack--not advance--women's equality if he is elevated to the Supreme Court. A close look at Judge Neil Gorsuch's record reveals that his appointment would likely threaten women's rights in the following five ways. The first area of the article addresses his putting employers' preferences ahead of women's rights. And then it continues: Gorsuch favors protecting the religious preferences of employers at their employees' expense. If confirmed, he would further erode women's ability to make sound personal health decisions. In Hobby Lobby v. Sebelius, Gorsuch and his colleagues on the 10th U.S. Circuit Court of Appeals ruled that a closely held, for-profit corporation could refuse on religious grounds to comply with the Affordable Care Act, or ACA, requirement that health insurance cover contraception. Judge Gorsuch wrote a separate concurrence to the court's ruling, explaining the ACA mandate forced the corporations to violate their religious beliefs. A divided U.S. Supreme Court upheld the 10th Circuit's decision. While conservative judges frame the case as a dispute about religious freedom, Hobby Lobby was also a case about women's equality and the rights of employees. The ability to control fertility is one of the most personal decisions a person can make; for women, it goes to the heart of whether they have an equal right to participate in the workforce and start a family. Yet, Gorsuch deems these interests secondary to a corporation's religious preferences. The second area the article addresses is refusing to support protections from pregnancy discrimination. Because many women will take time off from work at some point in their careers for the birth of a child, the Pregnancy Discrimination Act was enacted in 1978 to make clear that discrimination based on pregnancy or child birth constitutes sex discrimination. Yet, too many women continue to confront discriminatory, outdated attitudes about their ability and commitment to work simply because they are or might become pregnant. Two of Gorsuch's former students at the University of Colorado Law School allege that, during a discussion about maternity leave in Gorsuch's legal ethics class, he stated that employers should ask female applicants whether they intend to start a family. He reportedly argued that women often manipulate maternity leave policies to take time off at the company's expense before leaving the company. When asked about this at his Senate confirmation hearing, Gorsuch first denied making the comments, claiming he had merely asked students a question from a teacher's text to illustrate the prevalence of sex discrimination. But when asked about his specific views on pregnancy discrimination laws, Gorsuch raised more questions than answers. He declined to say whether questioning a female and not male applicants about their intent to start a family would violate the law. Gorsuch's unwillingness to clearly affirm protections against pregnancy discrimination is cause for concern. Women's ability to participate fully and equally in the workforce depends on fair treatment without regard to family responsibilities. I am reading from the article, ``5 Ways the Nomination of Neil Gorsuch Threatens Women's Rights,'' March 23, 2017. The article now addresses the issue of undoing Roe v. Wade. Throughout the Presidential campaign, Trump promised to nominate a Supreme Court justice who would ``automatically overturn Roe v. Wade. Judge Gorsuch admitted he spoke with President Donald Trump about abortion in his pre-nomination interview but claimed their conversation was limited to the issue's political impact. Gorsuch has declined to discuss his views on Rowe at his hearing, beyond acknowledging that it is ``precedent.'' But his writings make his position clear. Gorsuch has argued against the legal principles on which Roe is founded, both indirectly in his opinions and more directly in his book criticizing assisted suicide. He is critical of the right to privacy and the substantive due process rationale used by the Supreme Court in support of this right. Without this right to privacy, there is no Constitutional right to make decisions about sex, reproduction, or even marriage without State interference. Moreover, preserving and protecting a women's constitutionally protected legal right to access abortion is critical to their individual dignity and autonomy. That is another section in the article, ``5 Ways the Nomination of Neil Gorsuch Threatens Women's Rights.'' The next section is ``Eliminating women's access to health care.'' This will be the fourth of the five sections. Conservatives have relentlessly attacked women's access to quality, affordable health care, threatening their agency, health, and well-being. Among the most vitriolic and inflammatory efforts: the push to defund Planned Parenthood. Anti-abortion activists have targeted Planned Parenthood because it provides abortion services, even though those services are provided with nonfederal funds and make up only a small percentage of the services the organization provides. An estimated 2.5 million people visit one of the 650 Planned Parenthood facilities across the country each year. Eliminating funding for those health centers would devastate entire communities and dramatically reduce women's access to health care. During Gorsuch's time on the 10th Circuit, the court upheld an injunction to stop Utah Gov. Gary Herbert . . . from defunding Planned Parenthood in response to misinformation to doctored videos that falsely accused the organization of selling fetal tissue. Gorsuch, however, took the unusual step of pushing for a rehearing by the full court, even though the Governor did not ask for a rehearing. When his colleagues declined to rehear the case, Gorsuch dissented and attempted to legitimize the governor's unsupported claims. The fifth section in this article titled ``5 Ways the Nomination of Neil Gorsuch Threatens Women's Rights'' is the section on ``Denying women access to justice.'' No one can vindicate their rights if they cannot even make it to court. Yet, in several cases, Gorsuch has shown a conspicuous penchant for barring women from litigating discrimination claims. In Strickland v. UPS, Carole Strickland alleged that she was discriminated against when she was held to higher performance standards than her male coworkers, even as she exceeded them in sales. The majority ruled that her case could move forward, but Gorsuch filed a dissent arguing that her evidence of discrimination, which included testimony from multiple co-workers, was insufficient. In another case, Weeks v. Kansas, former counsel Rebecca Weeks alleged she was fired in retaliation for advocating for colleagues who experienced workplace discrimination. Upon review, Gorsuch openly ignored relevant U.S. Supreme Court precedent because Weeks failed to cite it and denied her the right to proceed with her claim. If Gorsuch is confirmed, women may face new barriers to challenging discrimination in court. Judge Gorsuch could become a reliable vote against the critical rights essential to women's equality and women's progress--such as the ability to access reproductive health care, including abortion, and challenge different forms of sex discrimination in the workplace. Women deserve a Supreme Court justice who will not turn back the clock on their rights. The Senate should stand up for women and reject President Trump's Supreme Court nominee. The author, Jocelyn Frye, is a senior fellow at American Progress, and coauthor Michele Jawando is vice president for legal progress at American Progress. Let's turn now to an article on money and politics. This article by Arn Pearson appeared in the Huffington Post. It is titled ``Gorsuch Would Move the Supreme Court in the Wrong Direction on Money in Politics.'' The article starts out: Who the Senate confirms to fill the current vacancy at the U.S. Supreme Court will determine the nature of our elections for decades to come. The Court is closely divided on the issue of whether to further open the floodgates for unlimited and undisclosed political spending or allow limits designed to prevent corruption and keep powerful special interests from drowning out the voices of voters. The next justice will tip the scales one way or the other. While the court may be split on what to do about the influence of big money in politics, the American people are not. Nine out of ten voters (93 percent) want ``a Supreme Court justice who is open to limiting the influence of big money in politics,'' according to recent polling. That includes 91 percent of Trump supporters, most of whom apparently believed his populist rhetoric decrying the influence of big donors. Unfortunately, that's not Neil Gorsuch. Gorsuch hasn't handled many campaign finance reform cases, but everything in his background and record strongly indicates that he would favor fewer restrictions on political spending by corporations and the wealthy, not more. The son of two lawyers, Gorsuch has spent his life moving in elite legal and corporate circles, and has been a strong ideological conservative since his early days. He attended Columbia University and Oxford, and earned his law degree at Harvard. From 1995 to 2005, Gorsuch worked at a boutique D.C. corporate law firm representing corporate clients--including the U.S. Chamber of Commerce--in anti-trust, class action, and securities lawsuits, before briefly joining the Department of Justice under George W. Bush and being nominated to the U.S. Court of Appeals for the Tenth Circuit. The Chamber of Commerce spends more money to influence the federal government than any other organization, and was one of the top political spenders in 2016, making it among the biggest beneficiaries of the Supreme Court's 2010 ruling in Citizens United that allowed corporations to spend unlimited amounts on independent expenditures and electioneering. Gorsuch hasn't exactly left the corporate world behind since becoming a judge, and has become a millionaire in his own right. A recent story by the New York Times documents Gorsuch's close relationship with secretive billionaire Phillip Anschutz, who has amassed $12.6 billion in wealth through a sprawling business empire. Gorsuch represented Anschutz while in corporate law practice, and Anschutz played a key role in getting Gorsuch nominated to the federal appeals court. I am reading from an article entitled, ``Gorsuch Would Move the Supreme Court in the Wrong Direction on Money in Politics.'' Gorsuch has been a frequently featured guest at the mogul's annual dove-hunting retreat for the rich and powerful on his Eagle Nest Ranch. At the 2010 retreat, Gorsuch spoke about the importance of judicial nominations, ``especially when we live in a system where judges have the last word'' on the Constitution and are ``empowered to strike down legislation.'' Gorsuch implored his elite audience ``to be vigilant to all threats to our prosperity.'' Not surprisingly, Gorsuch's rulings as a federal appeals court judge have consistently favored large corporations over consumers and workers, and indicate a willingness to overturn key Court precedents that have supported efforts to reign in corporate power since the New Deal. The big question is whether Gorsuch would use his seat on the Supreme Court to further weaken anti-corruption measures when it comes to political spending. People for the American Way joined 120 other democracy reform and advocacy organizations and 110 House members this week-- This would have been March 17-- in calling on the Senate Judiciary Committee and Senate leadership to closely scrutinize Gorsuch's views on the influence of big money in politics. ``Will Judge Gorsuch's legal philosophy lead him to strike down even more protections against the use of corporate or personal wealth to influence elections, such as candidate and party contribution limits, or will he permit sensible limits on political money in order to ensure the voices and will of all Americans are fully represented within the political process?'' the groups asked. In Citizens United v. FEC, the 5-4 majority decreed that independent expenditures by corporations ``do not give rise to corruption or the appearance of corruption'' and that ``[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.'' In reaching that conclusion, the Court assumed that those expenditures would not be coordinated with candidates, and that they would be disclosed. Almost everyone in America thinks big money in politics is a problem (94 percent) and that it ``empowers wealthy special interests over everyday Americans'' (93 percent), according to a recent poll. Taken to its logical and legal conclusion, the reasoning in Citizens United--that corporations have the same right as people, that money is speech, and that laws can't distinguish between speakers--puts the little that remains of our nation's post-Watergate scandal reforms at grave risk. So far, the Court has rebuffed challenges to the federal ban on direct corporate contributions to candidates and to most contribution limits, but Gorsuch's confirmation could change that. In one of his only campaign finance cases, Riddle v. Hickenlooper, Gorsuch wrote a concurring opinion that suggests he would apply the highest level of scrutiny to contribution limits that distinguish between types of contributors. To date, the Supreme Court has applied a lower level of scrutiny to contribution limits, including that reasonable limits only impose a marginal restriction on First Amendment rights. Gorsuch's opinion signals that he might be willing to strike down a ban on corporate campaign contributions on Equal Protection grounds. Relatedly, Gorsuch joined the majority in the controversial Hobby Lobby Stores v. Sebelius case, which relied heavily on Citizens United to extend religious liberty protections to corporations. Indeed, Gorsuch would like to have taken things even further to hold that any individual owners of the corporation could challenge laws that allegedly impinge on their beliefs. When viewed together, those two cases support the troubling conclusion that a Justice Gorsuch would be more likely to expand on Citizens United's anti-reform rationale than to walk it back. Outside spending has more than doubled since Citizens United and our elections are awash in cash--most of it from the super rich, and much of it secret. According to a new study by Demos, the Supreme Court's string of decisions deregulating campaign spending over the past decade was responsible for $1.3 billion in spending on the presidential race and 77 percent of the money flowing into competitive races in 2016. Campaign spending isn't charity. Most big donors have a stake in government decisions and want something in return. The result? Increasingly, concentrated economic power is translating into concentrated political power, and the rest of us are left on the sidelines. By all appearances, Gorsuch's confirmation to the Supreme Court would move the country further in that troubling direction by granting corporations new rights and crippling government's ability to protect Americans from the exercise of increased corporate power. Yet three out of four voters want Congress to reject any Supreme Court nominee ``who will help the wealthy and privileged wield too much power over our elections.'' It's not hard to connect the dots. Confirming Gorsuch would take the country down a path very few of us want, with damaging results for the health of our democracy. So that is the completion of the article entitled ``Gorsuch Would Move the Supreme Court in the Wrong Direction on Money in Politics'' by Arn Pearson from March 17, 2017, in the Huffington Post. This issue of money in politics is a huge one for the future of our country. If we do not succeed in reversing the decisions that have unleashed a flow of largely secret money concentrated in the hands of the megawealthy into campaigns, then there is no way that you end up with a House or Senate that reflects the will of the people. The President seemed to campaign saying that he cared about workers, about ordinary people, but he has nominated an individual who gives every indication of fully supporting the ability of money to be concentrated in campaigns by the most wealthiest individuals in our country and in fact corrupting the outcome. I mentioned earlier that you can see this corrupting power by looking at the disappearance of the interests of my colleagues across the aisle in the environment. It used to be that Republicans were often expressing a lot of interest in the sustainable management of the environment. It was President Nixon who created the Environmental Protection Agency and the Clean Air Act and Clean Water Act, and many colleagues expressed a lot of interest in taking on one of the most diabolical sources of pollution, carbon dioxide. But that interest has completely disappeared since the fossil fuel industry put ``bazillions'' of dollars into the Republican Senate campaigns--completely disappeared. Isn't that exactly the type of corruption that the Supreme Court said they didn't expect to see? Let me tell you that we have seen this pollutant, carbon dioxide, surge in the atmosphere. Going back 20 to 30 years ago, there was an increase per year in the parts per million in the atmosphere of about one per year. So you might go from 350 to 351 parts per million in 1 year, and 351 to 352 the next. Now what we see is that the rate of pollution has increased, and we are seeing close to an increase of 2 parts per million. This is not at one location. This is dispersed carbon dioxide pollution across the world. This pollutant is directly the product of burning fossil fuels, coal, and gas and oil. So we have been extracting and burning these fuels for 150 years, and they have greatly magnified the amount of work that can be done by a human. When we used to evaluate how much work you can do, we talked about horsepower--1 horsepower, 2 horsepower. I was working in a village once where I was asked to help a man whose nephew plowed a field in a remote hilltop, and we had a 2 horsepower plow. We actually had a horse and mule pulling that plow. The man told me that that combination was very good because the horse responded to commands better and got the mule to behave, and the mule was better at pulling the plow. So that was the combination. That was 2 horsepower. But when you burn fossil fuels, you create a tremendous amount of energy. We don't talk about our cars with 1 or 2 horsepower; we talk about 100 horsepower or 200 horsepower. Burning fossil fuels has enabled us to transform the face of this planet in a few generations. Sometimes that has been an extremely positive development--better housing, better transportation systems. But there is an enormous dark side to the burning of fossil fuels, and that dark side is the product, the pollutant, carbon dioxide. As it is accumulating in the atmosphere, it is providing the blanket that is causing the Earth to warm, and that warming is a very destructive force on our farming, on our fishing, and on our forests. We used to talk about computer models and what might happen in the future. Now we simply pick up a newspaper and every day there is a news story of some impact of global warming. In my home State of Oregon, we have a fire season that is two months longer than it was 40 years ago, with more acreage of forests burning and more heat doing more damage. We have the spread of insects like pine beetles, which would have been killed by colder winters but are not killed by the warmer winters. We have a snowpack in the Cascades that, while it can go up and down year to year, in general has been declining, meaning less water for streams. So we have warmer, smaller trout streams, and we have less water for irrigation, and we have over on the coast a challenge with our oysters that reflects another consequence of the growing pollution of carbon dioxide. That carbon dioxide is absorbed into the ocean. A significant amount of it is absorbed into the ocean and converted into carbonic acid. This acid then, having changed the chemistry of water, makes it much more difficult for sea life to form shells. At about the time that I was running for office--running for the U.S. Senate in 2007, 2008--there was a problem encountered by the Whiskey Creek Oyster Hatchery in that its baby oysters were not thriving, often dying, and they wondered why. They turned to researchers at Oregon State University. They thought maybe that this was a virus, but it was not. They thought maybe this was a bacteria, and it was not a bacteria. Finally, they found something that had been staring them in the face, which was that the water was too acidic. The water they were pulling through a big pipe out of the ocean was too acidic because of the carbonic acid. The result was that the baby oysters had difficulty in forming their shells. It is not just the baby oysters, as coral reefs are being profoundly impacted across the world. There is a researcher from Oregon State University, Professor Dickson, who has made studying coral reefs his life's work. He did a briefing here in DC. It was probably 7 or so years ago--6 or 7 years ago. He showed some slides of the coral reefs that he had been studying--what they used to look like and what they looked like today. He said: These reefs are my babies, and my babies are dying. They are dying because the temperature of the water is warmer and more acidic. You may wonder how this affects the corals. First, as with the oyster shells, they have more difficulty in forming their bodies. Coral is an animal, and it lives in a symbiotic relationship with algae. When the changes occur in the water, the algae can multiply at a rate that is not supportable by the coral, and the coral ejects them. This is referred to as bleaching. If circumstances do not change quickly, the coral will die because it has ejected its symbiotic partner on which it depends in order to live. There are reports that, over the past few years, 80 percent of the Great Barrier Reef, off of Australia, has died. So here we have this massive problem that is facing the planet-- carbon pollution. It is having a huge impact on our farming for irrigation water. Certainly, in our fishing, it is affecting things like coral reefs and oysters and in our forests, with there being more intense forest fires. Yet we here are doing so little to face this and address this. Why are we doing so little? We are doing so little because the coal and oil billionaires have proceeded to invest so much money in third-party Senate campaigns to elect one side of the aisle and defeat the other side. They become the controlling power behind what happens here on the floor of the Senate. Those interests, most prominently represented by the Koch brothers, do not want us to take on this issue of global warming and carbon pollution because to take it on means to transform our energy economy from extracting and burning fossil fuels, which they own vast amounts of, to clean and renewable energy, which does not create carbon dioxide--solar energy and wind energy. This group of companies--the Koch brothers and friends--is doing everything it can to make sure that this body sustains the subsidies we give to it and not help the success of the clean and renewable energy that might replace the fossil fuels. Look at it this way: Imagine that you have a set of doctors and they have an enormous disease affecting a city, but the donors behind the doctors have a big stake and do not want them--the doctors--to address the illness. That is corruption, and that is what we have right here, right now. We have a Senate that is corrupted by Citizens United and dark money that flows through the campaigns and causes Senators who were concerned about the environment to decide that, if they want to stay in office, they had better not talk about it and they had sure better not do anything about it. In addition, this fossil fuel cartel wants to make sure it has a corps that continues this corruption. That is why they put so much pressure on Senators not to consider Merrick Garland when he was nominated last year, in 2016. For the first time in the history of our country, when there was a vacancy during a campaign year--an election year--the Senate failed to do its responsibility under the advice and consent clause of the Constitution. There were 15 times when we had previously had a vacancy during an election year, and 15 times the Senate had responded, but not last year, not on turn No. 16. Why was that? It is because the oil and coal cartel did not want Senators to consider a Justice who might, actually, end this corrupt system of the funding of campaigns. You can see that their influence comes on multiple levels in terms of direct pressure on policies for those who sit in the Senate but also in terms of determining who sits in the Senate to begin with. In this article, Gorsuch would move the Supreme Court in the wrong direction on money and politics. This is not just one issue among dozens of others. This is a key issue as to whether or not we have a ``we the people'' government, which we are in the process of losing. We are fighting this nomination because we are fighting to keep this vision-- our constitutional vision. Our Founders were well aware that the powerful want to have a government that serves the powerful. They saw it throughout Europe. They said: We are going to do it differently in the United States of America. We are not going to have a government by and for the powerful. We are going to have a government by and for the people. This is where Jefferson was concerned about whether we could sustain such a government--one that would make decisions that reflected the will of the people. He noted that we must, in order to have that happen, have individuals--each citizen--have an equal voice. But Citizens United and the philosophy for the powerful of Neil Gorsuch is the opposite of Jefferson's mother principle. It is the opposite of ``we the people.'' That is why, when we come to a vote on closing debate on this nominee, at least 41 of us are going to stand up and say: absolutely not. We are going to stand for the integrity of the United States. We are going to stand for the integrity of our Constitution. We are going to stand for the integrity of the Senate, and we, certainly, are going to stand for the integrity of the Supreme Court. That vote should be 100 to zero to oppose closing debate, but at least 41 of us care about this Constitution, and we will be doing all we can to try to save our Nation. I am going to share an article by Paul Gordon: ``Real People, Real Lives: The Harm Caused By Judge Gorsuch.'' This article was written in February of 2017. When Donald Trump was running for president, he outsourced his future selection of potential Supreme Court nominees to two right wing organizations, the Federalist Society and the Heritage Foundation. They provided him a list of 21 people who were acceptable to them, Trump (the candidate) promised to select a nominee from the list they gave him, and they and their right wing colleagues agreed to support him. Neil Gorsuch was nominated as the product of this political arrangement. So it is no surprise that Judge Gorsuch has a history of regularly finding ways to put corporations and the powerful first. In that way, he is much like his idol and role model Antonin Scalia and the other far right conservatives on the Supreme Court. And while this unbalanced approach to cases might make for interesting reading, the courtroom is not an academic paper. Each case involves real people with real problems. While a judicial decision might be just another day at work for some judges, it is often one of the most important and impactful days in the lives of the people involved. Below are some of the cases Judge Gorsuch has been involved with and the people who have been affected by them-- people who have been victimized outside the courtroom and, to the extent Gorsuch's view prevails, are victimized again. (Mr. JOHNSON assumed the Chair.) The article continues by turning to the case of Pinkerton v. Colorado Department of Transportation, 2009. How many men serving as Federal judges on circuit courts have experienced increasingly blatant sexual harassment from a supervisor over a period of weeks and months? Probably not many. Perhaps that played a role when Judge Neil Gorsuch joined Paul Kelly's opinion upholding the dismissal of a fired woman's case alleging outrageous sexual harassment and retaliation. Betty Pinkerton experienced two months of escalating sexual harassment from David Martinez, her supervisor, at her job with the Colorado Department of Transportation. The harassment began in December 2002 when Martinez asked her, ``What does a divorced 52 year [old] lady do when she gets sexual urges?'' As she unfortunately had to do several times over the next two months, Pinkerton told him he was being inappropriate in asking such personal questions. The harassment continued through January and February. Every time she made it clear that his comments were not welcome, but the harassment continued. So on February 19, 2003, she reported the harassment to the office of the civil rights administrator and formally filed a written complaint on February 24. About three weeks later, Martinez was removed as Pinkerton's supervisor, and on March 21 he was formally found to have engaged in sexually inappropriate conduct with her. But six days later, Pinkerton was fired. She sued the Department of Transportation, claiming it was liable for the hostile work environment Martinez had imposed on her. But in Pinkerton v. Colorado Department of Transportation, Judges Gorsuch and Kelly uphold the ruling of a magistrate judge that she had waited too long (two months) to report the harassment and the claim could not go to trial. But as the dissenting Judge, David Ebel, pointed out, there could have been justifiable reasons for the delay. Perhaps she felt the harassment wasn't sufficient enough to file a complaint until it elevated to a certain point, or maybe she thought she could get her supervisor to stop without the involvement of the civil rights office and without possibly damaging her relationships with others in the office. In addition, although this was not mentioned in the dissent, perhaps the judges in the majority had insufficient personal familiarity with repeated sexual harassment to know the many reasons a woman might not promptly file a complaint. But instead of letting a jury decide the question of fact as to whether she waited ``too long,'' Gorsuch and Kelly took it upon themselves to be the jurors and decided this factual issue on their own. Pinkerton also claimed that the Department of Transportation had fired her as retaliation for reporting the sexual harassment, while her employer cited poor performance as the cause, each side having supporting evidence. Here too, Judge Gorsuch took the issue away from a jury. He joined Judge Kelly's majority opinion in a detailed analysis of all the evidence (like a jury would have done at trial), decided that no reasonable jury would find the Department of Transportation fired her for any reason but poor performance, and therefore dismissed her retaliation claim. That's the jury's job, not theirs. As Judge Ebel noted in his dissent, each side presented evidence supporting their position, and the case should have gone to trial so the jury could do what it is supposed to do: Determine the motive for the firing. Judge Ebel listed several factors that a jury might consider to determine that the employer's rationale of job performance was simply a pretext for her firing. For instance: The State Department of Transportation director testified that the most serious error leading to Pinkerton's firing was an allegedly mishandled call from an employee's daughter that had happened about four years earlier. The director tried to get Pinkerton another job with the state Department of Transportation only months before she was fired. As Judge Ebel noted, ``It is a jury's function to determine whether an employer acted with a retaliatory motive.'' But Judge Gorsuch chose to join his colleague as the jury so that Pinkerton would not have the issue decided by a jury of her peers. I am reading from an article called ``Real People, Real Lives: The Harm Caused By Judge Gorsuch,'' by Paul Gordon, March 2017. The article now turns to the case of Caplinger v. Medtronic in 2015. The headline of this section is ``Medical Device Maker Pushes Misuse of Product: Protecting a Corporation From Its Victims.'' It starts out saying: Illness can be frightening. We turn our health and our lives over to medical personnel and there are many devices of healing. While the physician is highly trained in medicine, the device manufacturers are highly trained in selling their products to the physicians. Patricia Caplinger learned this the hard way. Suffering from a degenerative disc condition, Patricia Caplinger and her doctor discussed her options. Medtronic had developed the ``Infuse Bone Graft device,'' which stimulated bone growth. The FDA had only approved its use for surgeries entering the body from the front, but a Medtronic representative recommended an ``off-label'' usage: Enter from behind to use the Infuse device. Not knowing that Medtronic had evidence that such posterior approaches could actually cause serious complications, both Caplinger and her doctor chose to follow Medtronic's advice. The company's representative was even present for the operation. The consequences of the company's recommendation were terrible for Caplinger, because posterior use of the device resulted in too much bone growth. Two or three months after the procedure, her symptoms returned and worsened. She developed foot drop as a result, which in turn led to a knee ligament tear requiring surgery. The rapid overgrowth of new bone in her spine led to additional surgery, but the overgrowth continued nonetheless, requiring yet another surgery. Because of the harm she suffered, Caplinger filed a complaint against Medtronic in court. In her lawsuit, Caplinger presented evidence of the lengths to which Medtronic went to facilitate off-label use of its Infuse product. These included bribing doctors, paying kickbacks for promoting such uses, and funding misleading scientific studies that provided a false impression of the safety of these off-label uses. Nevertheless, writing for a split panel in Caplinger v. Medtronic, Gorsuch agreed with the lower court that every charge of Caplinger's state-law lawsuit was preempted by federal law. The dissenting judge agreed in part, but concluded that Caplinger's negligence and failure-to-warn claims were not necessarily preempted. He wrote: ``My disagreement with the majority opinion does not turn on the substance of federal preemption law. Instead, our disagreement turns on our respective characterization of Caplinger's pleadings and understanding of the proper burden at this stage of the litigation.'' All three judges seemed to agree that Caplinger's briefs were not written very clearly to address all the facets of the preemption issue. One judge was willing to interpret them to give her another chance to make her case, but Gorsuch chose to characterize Caplinger's pleadings in such a way as to ensure her case would be dismissed. The executives at Medtronic were very likely very relieved. This article, ``Real People, Real Lives: The Harm Caused by Judge Gorsuch'' now turns to address ``Gorsuch and Children with Autism: Removing the Chance to Learn Lifetime Skills.'' When Congress passed the Individuals With Disabilities Education Act, it was a major step forward in making sure children with disabilities had a free and appropriate public education. But Luke P., a child with autism living in Colorado, was denied this right by Judge Gorsuch, negatively affecting not just him but other kids throughout the Tenth Circuit. Luke was two years old when he was diagnosed with autism, and when he entered school, he had an education plan specific to his needs, as required by IDEA. Between kindergarten and third grade, he made significant progress in skills relating to communication, self-care (including use of the toilet), independence, motor skills, social interactions, and academic functioning. But there was an enormous problem for Luke. He was generally unable to transfer his skills into environments other than school. So when he was home or otherwise out of school, he continued to have significant problems. Fortunately, his parents learned about a residential private school specializing in educating children with autism. If he could gain admittance, Luke would live at the school for 44 weeks of the year, and he would be supervised 24 hours a day. It was a great opportunity to not only advance in the skills learned in school, but to generalize them so they weren't place-dependent. His parents enrolled him there with updated education goals and a new plan to achieve them. They then applied to the school district to reimburse them (since IDEA promises a free education). But the district refused. They were willing to accept Luke's updated plan, but they insisted those goals could be met at the public school he'd been attending. His parents refused to send him back to a school that had achieved some success but had also failed Luke in many important ways and continued to seek reimbursement. A hearing officer, an administrative law judge, and a federal district court judge all agreed that Luke's inability to generalize his skills demonstrated that the school district had failed to provide him with the free appropriate public education required by law. Only the residential program could do that, meaning the district needed to reimburse Luke's family. Then Judge Gorsuch stepped in, taking away Luke's opportunities and risking his entire future. Writing for a Tenth Circuit panel in Thompson R2-J School District v. Luke P., Gorsuch ruled in favor of the school district. They had met their obligation to Luke because all they had to do was provide an educational benefit that was more than de minimis. That is quite a low bar, one that could easily prevent Luke and other children from acquiring the critical lifetime skills they will need throughout their school years and for the rest of their lives. Fortunately, there is hope: This term, the Supreme Court is considering a different case challenging the ``de minimis'' standard. A decision in Endrew F. v. Douglas County School District is expected by the end of June. Luke's family and families across the nation will be looking to the Supreme Court to protect their children. What this article doesn't note is that the Supreme Court just handed down a decision 8 to 0 overturning the position Judge Gorsuch had in this case. They ruled that the IDEA Act was intended to ``provide an educational benefit that was more than de minimis.'' Merely more than nothing, I believe, was Gorsuch's standard. Merely more than nothing-- if you have done that, you have met the test. The Supreme Court said: No, the whole point of the act was to provide an appropriate education. It wasn't one or two Justices rejecting Gorsuch's writing, his interpretation of the law--basically, his decision to ignore the law, which is what he did in his decision. They ruled 8 to 0. They basically kicked that decision clear out of the field of common sense or a rational interpretation of what the IDEA Act says. So that was a powerful addition to that story. Let me return to the article. This section is called ``No Leave Extension for Leukemia Patient: Gorsuch's Cramped View of What Makes an Accommodation Reasonable.'' This is the case of Hwang v. Kansas State University, in 2013. Grace Hwang, a longtime assistant professor at Kansas State University, received frightening news in June of 2009: Her doctors diagnosed her as having leukemia. Without aggressive chemotherapy and a bone marrow transplant, she would die. She had to spend six months in medical facilities, during which time she was on a paid leave of absence. But she made sure her work got done: She prepared the instructors who were stepping in for her, including by sharing her teaching materials, lesson plans, and syllabi. Even while she was hospitalized, she consulted with the substitutes through phone calls and e-mails. In January, after her six-month ordeal, Professor Hwang was looking forward to returning to work. But there was a severe outbreak of swine flu on campus, and her physicians warned her that, due to her compromised immune system, she should stay away from campus. So she informed university officials that she would need some additional leave--hopefully, a short time, but potentially as long as the entire semester, depending on the flu situation and her immune system. But the university refused to grant her additional leave. Their reason? Because they have a policy that caps a leave of absence at six months, which she had used up. Professor Hwang sued them for violating the Rehabilitation Act, which requires employers to provide a reasonable accommodation for someone's disability. She was unsuccessful before the district court. The Rehabilitation Act calls for accommodation requests to be evaluated on a case-by-case basis. Every situation is unique, depending on any number of factors. That is why Congress chose not to set a point at which a leave of absence was no longer a reasonable accommodation. But when Professor Hwang appealed to the Tenth Circuit, Judge Gorsuch ruled against her in an opinion very much focused on the length of time from its very opening (Hwang v. Kansas Sate University (2013)). He set Professor Hwang up to lose in the very first paragraph. He could have opened the opinion in a neutral manner by asking whether extending her leave would create an undue burden for the university. Instead, he chose to frame the legal issue from the university's perspective, casting the employer as the victim: Must an employer allow employees more than six months' sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no. Judge Gorsuch concluded that the professor simply could not perform the duties of her job without being present on campus, and an accommodation past six months was not reasonable under the Rehabilitation Act. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise disqualified disabled persons to work--not to turn employers into safety net providers for those who cannot work. Since Professor Hwang performed work while hospitalized to ensure her classes were taught effectively in her absence, it is hard to imagine that she could not do any work from home. She was simply seeking a hopefully-short extension of her leave so she could do her work in person without risking her life. It is also difficult to see how her efforts to retain a job she'd excelled at for more than a decade was just an effort to turn her employer into [as Judge Gorsuch termed it] ``a safety net provider.'' When Professor Hwang was first diagnosed, she probably had no idea that her treatment would cost her her job. These are stories from the article, ``Real People, Real Lives: The Harm Caused By Judge Gorsuch.'' The next section is titled ``Excessive Force: Immunity For Police Officer Who Kills Young Man Over Marijuana Plants.'' Wilson v. City of Lafayette (2013). Wendy and Jack Wilson learned about Gorsuch's approach to the law the hard way when they sought to hold police officer John Harris accountable for needlessly killing their son Ryan. Their son had been standing near an area known for growing marijuana, and he admitted the plants were his. Then he ran. Officer Harris chased him until Ryan reached a fence, where he stopped. Officer Harris saw Ryan start to reach into his pocket and warned him not to, in case it held a weapon. As Ryan turned to run again, Officer Harris shot him in the back of the head or neck with a Taser, killing him. But in Wilson v. City of Lafayette (2013), Judge Gorsuch concluded that Harris hadn't used unconstitutionally excessive force, so the parents' case shouldn't even go to trial. Another judge observed in her dissent that Gorsuch's opinion . . . fails to give sufficient weight to the fact that the Taser used by Officer Harris on August 4, 2006, had a targeting function, that Officer Harris fired at Ryan Wilson from only ten to fifteen feet away, and the training manual specifically warned officers against aiming it at the head or throat unless necessary. Given all this, the Wilsons certainly had a legal argument of excessive force they should have been able to present at a trial. But Gorsuch shut that possibility down. After losing their son, they lost the opportunity to hold anyone accountable for his completely unnecessary killing. So much for ``And Justice For All.'' The next story in this article, ``Real People, Real Lives'' is ``Worker Dies Due to Inadequate Training, but Gorsuch Tries to Rule for the Company,'' the case of Compass Environmental, otherwise known as the case of the electrocuted miner. Chris Carder also died needlessly, but in this case it was from a workplace accident in which he was electrocuted. Carder worked as a trench hand at a mine site, which involved using rubber and metal hose with a metal nozzle to dispense grease. Since there was a live power line crossing over the construction site, the safety training everyone received warned trench hands and others to keep at least twenty feet from the powerline. However, Carder started on the job a week after everyone else and, in a decision that had tragic consequences, this safety measure was not included in Carder's individual training. An accident ensued when the nozzle was too close to the power line, and Carder was fatally electrocuted. Looking into the accident, the Department of Labor's Occupational Safety and Health Review Commission (OSHRC) concluded that Carder could have avoided electrocution had he been adequately trained by his employer (Compass Environmental) about the highly dangerous situation he faced--training that the other on-site employees had received. OSHRC [Occupational Safety and Health Review Commission] issued a serious citation against Compass for inadequate training, and it imposed a financial penalty against the company. This was upheld by a Tenth Circuit panel, but with Judge Gorsuch in dissent. While the majority in Compass Environmental v. OSHRC (2011) criticized Gorsuch's case analysis, perhaps most striking was Gorsuch's decision to open his dissent with an ideological criticism of federal agencies in general: Administrative agencies enjoy remarkable powers in our legal order. Their interpretations of ambiguous statutes control even when most everyone thinks Congress really meant something else. Their regulations bind as long as they can make the modest boast that they haven't behaved arbitrarily or capriciously. Their factual findings rule the day unless someone can show they have not just erred but clearly erred. Gorsuch wrote that this was such a case, where the agency had erred in finding Compass had violated the law. But the superfluous ideological introduction cast a shadow on his entire approach to the case and whether he analyzed it as a disinterested judge or as an anti-government conservative seeking to use his position on the federal bench to make a political point. Either way, if it had been up to Gorsuch, the company responsible for Carder's death would not have been held accountable. Well, it wasn't up to Gorsuch, because the majority of the panel said: Yes, of course if you put a worker in a highly dangerous situation, you have the responsibility to train them about that situation. Somehow, Gorsuch managed to find the opposite conclusion: If you put a worker in a highly dangerous place and don't train them, that is OK, even if they die as a result. I am reading stories from the article, ``Real People, Real Lives: The Harm Caused By Judge Gorsuch.'' The next section is, ``Die or Be Fired: The Case of the Frozen Trucker.'' I have relayed the facts of this several times since I began speaking a few hours ago, so I will try to do an abbreviated version of this. TransAm Trucking v. Administrative Review Board (2016). While Chris Carder died on the job, Alphonse Maddin was fired for not dying on the job. He was a truck driver hauling cargo in subzero weather, and the brakes on his trailer froze. He stopped, called the company to report the problem, then waited for a repair person. Unfortunately, the heater in the cab of the truck was broken, wasn't working, so after a couple of hours, his body became numb, his speech was slurred, and he couldn't feel his feet at all. He called the company two more times and reported his increasingly perilous state; he was even having trouble breathing. Maddin unhitched the trailer from the truck. With the repair person still not there, he called the company to let them know he was leaving to get help, but he was told not to leave the trailer behind. He was given two choices: Drag the trailer despite its frozen brakes (either impossible or wildly dangerous), or keep waiting for the repair person in the cold and put his own life at risk. Rather than die in the cold, Maddin drove off in the truck for help, leaving the trailer behind and returning with assistance in about 15 minutes. A week later, the company fired him for abandoning his cargo. The Labor Department found that the company had violated whistleblower protection regulations, since Maddin had reported a problem, not obeyed an order relating to that problem that could have killed him, and was fired for it. Not surprisingly, . . . a panel of Tenth Circuit judges upheld the Labor Department's actions. But Judge Gorsuch dissented. The Surface Transportation Assistance Act protects a worker from refusing to operate an unsafe vehicle. I am now interjecting--which is what he did because he refused to drive with that trailer attached with the frozen brakes, which could have endangered many people on the road. Now I will return to the article. . . . a panel of Tenth Circuit judges upheld the Labor Department's actions. But Judge Gorsuch dissented. The Surface Transportation Assistance Act protects a worker from refusing to operate an unsafe vehicle, but Gorsuch reasoned that the driver wasn't ``refusing to operate'' anything at all; instead, he was choosing to operate the vehicle in a way that he'd been instructed not to. And that, wrote Gorsuch, isn't covered by the law. And that is how a person who wants to be a legislator turns the law on its head, to reverse the outcome clearly laid out in the law to begin with. Back to the article. So according to Gorsuch, a law passed to protect workers from being forced to drive unsafe vehicles doesn't cover workers who drive away to avoid the particularly unsafe situation of death. The law empowers companies to make workers choose between their jobs and their lives, according to Gorsuch. Fortunately, Maddin survived his ordeal and Gorsuch's analysis did not carry the day. The next section of this article, ``Real People, Real Lives: The Harm Caused By Judge Gorsuch''--the title is ``Defer to the Governor, Facts Notwithstanding: Gorsuch Turns a Blind Eye to an Unlawful Effort to Defund Planned Parenthood.'' This is also a case that I have read a fair amount about in the course of the last few hours, so I will just summarize it. The Governor of Utah said: Well, there is this video out, and it is about a program in which Planned Parenthood sells tissue for research. I don't like what they are doing, so I am going to refuse to provide State funds to Planned Parenthood. Planned Parenthood basically pointed this out: Well, first, the video didn't have anything to do with Utah. Second of all, Planned Parenthood in Utah is not involved in this tissue research program, so it had nothing to do with us in that regard. And refusing to provide State funds to us is unequal treatment under the law and unconstitutional. The case was tried, and the judges found for Planned Parenthood for all the reasons I just mentioned. Neither the Governor of Utah nor Planned Parenthood saw any reason to appeal this. Planned Parenthood had won, and the Governor recognized that there were seriously strong arguments that had been made. But Gorsuch did something very unusual: He asked the Tenth Circuit to reconsider the decision of the three- court panel en banc, which means with all the judges of the Tenth Circuit. He essentially retried the entire case with a larger group. Gorsuch accused the majority of not showing ``the sort of comity this court normally seeks to show the States and their elected representatives.'' Let's treat the Governor nicely. The job of the court is not to treat the Governor nicely; the job is to determine whether someone's rights have been violated or whether someone has suffered damage that needs to be compensated. One of the fellow judges in the majority criticized Gorsuch's mischaracterization of the record, and he noted that Gorsuch ``mischaracterizes this litigation and the panel opinion at several turns.'' The article continues: It would be hard to estimate how many women would have become ill or died if Judge Gorsuch had been in the majority. The next section of this article, ``Real People, Real Lives: The Harm Caused By Judge Gorsuch'' is titled ``No Understanding of Another's Perspective: The Department Of Motor Vehicles and the Rehabilitation Act.'' This is the case of Barber v. Colorado. Julianna Barber and her mother, Marcia Barber, learned just how out of touch Judge Gorsuch could be . . . and the pain that he would impose on people with disabilities and their families. Fifteen year-old Julianna wanted to practice her driving. Colorado law restricted her to driving with a parent or guardian with a driver's license. Since her mother Marcia was blind and therefore didn't have a license, she asked the DMV for a reasonable accommodation: Let Julianna drive with her grandfather. After consulting with the State attorney general, the DMV refused, but suggested that Marcia could give Julianna's grandfather some form of guardianship. She refused to even discuss signing away her parental rights, and the family sued under the Rehabilitation Act. The Barbers lost in the Tenth Circuit with a panel consisting of judges nominated by Ronald Reagan, George H.W. Bush, and George W. Bush in Barber v. Colorado. The majority acknowledged that the State had discriminated against Marcia Barber but ruled against her because she refused to negotiate with the DMV over reasonable accommodation. But Judge Gorsuch wrote a concurrence going even further: Citing Colorado Revised Statute Section 15-14-102(4). Gorsuch pointed out that the guardian for purposes of driving does not have to be someone with full guardianship authority. He also cited Colorado Revised Statute 15-14-105's provision that a parent can delegate ``any power,'' however small, ``regarding care, custody or property'' of a child to someone else. Therefore, all Marcia Barber had to do was find a sheet of paper and write that Julianna's grandfather had the right to supervise her driving. She wouldn't need to file the paper in court or go through any other formal process. According to Gorsuch, this option is available to anyone, does not discriminate against anyone based on disability. The DMV wasn't even required to make a reasonable accommodation for the family. At no point in the opinion is there any suggestion that Marcia Barber understood that the DMV was talking about anything but surrendering some of her parental rights, so it was not surprising that she wouldn't consider discussing it further. No reasonable judge can expect a regular person to be sufficiently familiar with the details of Colorado statutes to know everything about guardianship that he cites. How would she know this? Gorsuch's inability to comprehend the worldview of another person is perfectly captured in the footnote to his concurrence. The article says it is worth quoting in full. Here is that footnote: Plaintiffs argue that, in a February 23, 2005 letter, the State misrepresented its Colorado law by asking Ms. Barber to sign a document giving full, not limited, guardianship authority to another person. The letter, however, simply stated that, for the ``youngest of drivers just learning to drive,'' State law required ``that they be under the direct and immediate supervision of someone with full parental authority.'' By definition, a limited guardian has full parental authority, albeit for prescribed purposes, sometimes even very modest purposes (such as the supervision of a minor while driving). The State thus did not misrepresent to plaintiffs the availability or nature of its limited guardianship statutes. Perhaps 95 to 99 percent of the Nation's population, like Marcia Barber, would not know that someone with full parental authority could include someone whose only authority is permission to supervise her daughter's driving. A good judge recognizes that different people can reasonably interpret the same thing differently based on their different education, upbringings, and life experiences. I think if somebody told me that they wanted me to grant full parental authority to someone else, I certainly would say: Hold on. That is not happening. What Neil Gorsuch points out is that full parental authority can apply to a very small set of activities, but the phrase ``full parental authority'' implies a broad range. How would an ordinary citizen possibly know the point Neil Gorsuch is making? And therefore I think virtually everybody would respond the way she did. Full parental authority--I am going to pass that away? No, of course not. Why don't they call it limited or special cause parental authority? Then maybe an ordinary person might have some idea. But that was not the case. The next section in ``Real People, Real Lives: The Harm Caused By Judge Gorsuch'' is titled ``Sex Discrimination: Never Mind the Evidence.'' Many of the appeals before the 10th Circuit involve plaintiffs whose cases were dismissed before trial or jury verdict because (the trial judge ruled) they had not presented enough evidence to possibly support their legal claim. That is what happened to Carole Strickland, a UPS driver who was promoted to key account executive. She presented evidence that she had been the subject of sex discrimination at the new job and quit under pressure. Her coworkers testified that supervisors treated her differently than her male colleagues. Even though Strickland met between 93 and 104 percent of her sales quotas and was outperforming at least some of her coworkers on every measure, only she was required to attend individual meetings with the supervisors. Only she had to make written sales commitments, even though no one was at 100 percent of every sales quota. One of the men in her office had lower performances than Strickland in almost every sales measure, but he was not required to attend meetings to discuss performance, was not denied assistance, and was not counseled for failing to reach 100 percent in every sales measure. At the same time, UPS pointed out that there was one other woman in Strickland's office, and she did not report being treated differently. In addition, there had been one man among the staff whose treatment approached that given to Strickland. The district court ruled that she didn't have a case and dismissed it. The Tenth Circuit panel of judges who heard her appeal in Strickland v. UPS (2009) disagreed. While her employer's evidence might have undercut Strickland's case, she had nevertheless presented enough evidence for a jury to consider her arguments, consider UPS's arguments, and conclude that she had indeed been subject to unlawful sex discrimination. That is what the 10th Circuit said. Judge Gorsuch dissented, deciding for himself that Strickland's supervisors were not motivated by sex discrimination. Therefore, Gorsuch concluded, since no reasonable jury could agree with Strickland about the cause of her treatment, her case should be dismissed before she could make her case to a jury. Everyone deserves their day in court. Except for some people. In case after case that I have been talking about in the course of the last few hours, we see that the judge said: No, we are going to stop that person from ever getting their day in court. Generally, the article attacked the conduct of a powerful corporation. The next section of ``Real People, Real Lives'' is regarding ``The Most Vulnerable: Children With Disabilities.'' This case is ``A.F. v. Espanola Public Schools (2015).'' The Individuals with Disabilities Education Act, IDEA, ensures that students with disabilities are provided ``free appropriate public education.'' Under the law, such children have individualized education programs designed to provide educational benefits. Congress included a requirement that if a parent believes their child's needs are not being addressed, . . . they must first exhaust the administrative remedies IDEA makes available before they can go to court. Congress has also passed other laws relevant to children with disabilities, some of which have remedies that IDEA lacks. They also require all IDEA administrative remedies to be exhausted first before going to court. A.F., a child with dyslexia, had her case heard on appeal by Judge Gorsuch who read IDEA to limit parents' options to most effectively address their children's educational needs. A.F.'s mother Christine felt the school hadn't adequately assessed her daughter and created an IEP [an Individual Education Plan] for her as IDEA requires. She filed a complaint and reached an agreement in which the school recognized that A.F. had a disability. Believing she had met the requirement to exhaust IDEA's administrative remedies, she then went to court to obtain remedies available under statutes like the Rehabilitation Act and the Americans with Disabilities Act. But in A.F. v. Espanola Public Schools . . . Judge Gorsuch shut her down. Writing for a divided panel, he ruled that she hadn't exhausted her administrative remedies because she had reached a settlement with the school district on her IDEA case. To pursue relief available only through statutes other than IDEA, he concluded, a parent must refuse to resolve the IDEA claim. Judge Mary Beck Briscoe pointed out the bind Judge Gorsuch was imposing on parents with children with disabilities, against Congressional intent. Judge Briscoe wrote: [Judge Gorsuch's] interpretation is inconsistent with the very purpose of IDEA. It forces a claimant to choose between mediating a resolution to her IDEA claim . . . and thereby obtaining some or all of the relief sought under IDEA . . . ,or forgoing any relief at all and waiting (while the child ages and potentially continues to receive something other than the requisite ``free appropriate public education'') in hopes of later filing suit and obtaining relief under both IDEA and other statutes. So his position just places the parent in an impossible situation and obviously a good share of the panel disagreed. Of course there are parallels there on that IDEA case to the autism case that we looked at earlier. Certainly, in both cases, the judge was not sympathetic to the role of the family seeking an appropriate education for their child. In the autism case, the Supreme Court just recently overturned Judge Gorsuch and the principle he asserted, which is basically all that was required of the school district was ``merely more than de minimus,'' merely more than nothing. That is inconsistent with the whole purpose of the IDEA, which is to provide a free appropriate public education. So here again, we see much the same attitude being displayed, an attitude of rewriting the law to be something that it clearly is not. ``The Sixth Amendment: Undermining the Right to Counsel. Williams v. Jones.'' I am reading another section from ``Real People, Real Lives: The Harm Caused By Judge Gorsuch.'' Perhaps no government power is more awesome--and more dangerously susceptible to abuse--than the right to imprison someone, completely taking away their freedom. Because our liberties require robust protection, the Bill of Rights establishes certain requirements that the government must meet before it is allowed to exercise its authority to lock any of us away. Since the criminal law can be used mistakenly or even inappropriately against anyone, these procedural requirements are guarantors of our freedom. The Founders recognized that unjustified imprisonment would be less likely if each criminal defendant had someone advocating for them who knew the law inside and out. Hence, the Sixth Amendment guarantees that the criminally accused ``shall enjoy the right . . . to have the Assistance of Counsel for his defence.'' As a constitutional provision that is part of the Bill of Rights, this indicates that, as a nation, we believe that no one should be stripped of their freedom just because they are not experts in the law. But Judge Gorsuch appeared to disagree, as he showed in 2009 case of Williams v. Jones. In this case, Michael Williams was being prosecuted for first-degree murder. The prosecution offered him a deal which he would plead guilty to a lesser crime (second-degree murder) and he would serve ten years in prison. Williams wanted to accept. However, his attorney said that if Williams accepted the deal, he (Williams) would be committing perjury and the lawyer would withdraw from the case. Faced with this terrible legal advice and threat from his attorney, Williams reluctantly rejected the plea deal and went to trial. He was found guilty of first-degree murder and sentenced to life in prison without parole. At the Tenth Circuit, the panel majority addressed the appropriate remedy for the unconstitutional ineffective assistance of counsel. While the remedy was not an easy issue to address, the majority had no difficulty whatsoever in identifying the constitutional violation. Indeed, a state court in Oklahoma had already found that there was a Sixth Amendment violation in this case. Judge Gorsuch dissented both from the panel decision and from the whole court's decision not to reconsider the case en banc. He found no constitutional violation in the first place, because he claimed that the right to effective assistance of counsel only covers the trial, not any pretrial plea bargaining. Since the trial itself appeared to be fair, Gorsuch concluded, Williams didn't have a case. He wrote that ``due process requires a fair trial, not a good bargain.'' A little commentary here: What Judge Gorsuch was doing was saying that the Sixth Amendment right to legal assistance is only in the case of the trial, not in the legal work done before the trial starts. That is what is being referred to by the panel majority as an ``extremely cramped view of the right to counsel.'' So the article continues: The panel majority harshly criticized this extremely cramped view of the right to counsel, noting that it had been rejected by the Supreme Court and was ``incompatible with [the Supreme Court's precedents involving] a right to effective assistance of counsel in connection with the entire plea process.'' When the circuit without comment declined to reconsider the case en banc, one judge wrote . . . a concurring opinion solely to correct the errors in Gorsuch's dissent. They cited the Supreme Court's prior holdings and statements that would have made no sense if the Sixth Amendment's right to counsel didn't apply at the pretrial plea-bargaining stage. The Sixth Amendment protects both the guilty and the innocent. Judge Gorsuch's narrow interpretation is particularly frightening in the age of Trump. That concludes that section. But it certainly is disturbing that Neil Gorsuch made a decision that completely disregarded the Supreme Court precedents and made no sense because when you have a lawyer, that lawyer is assisting you through the legal process. Part of that is the negotiation that occurs before you are actually in court. It is all part of the process of your case being considered. To try to put up a wall and say the Sixth Amendment does not apply to any of the legal work done, including negotiations over a potential plea, makes no sense. So you have Judge Gorsuch writing his own law, ignoring the Supreme Court precedents, and being reprimanded, in essence, by the panel majority. Returning to the article, ``Real People, Real Lives,'' the conclusion of the article reads as follows: These are far from being the only people who have been or could have been greatly harmed by the way Judge Gorsuch approaches cases. When Gorsuch's view carry the day right now, the damage he does is limited to States covered by the Tenth Circuit; he has also been limited by the Supreme Court precedent he may disagree with. Were he to be elevated to the High Court, however, he would be in a position to overrule precedents that have gotten in his way over the past 10 years, and the damage he would impose would be nationwide and unreviewable. Judge Gorsuch may be affable and have many friends, but that is not at all relevant to whether he should be confirmed to the Supreme Court. Few if any of the parties Gorsuch has unfairly ruled against would feel better knowing that he is reputed to be a great guy outside the courtroom. So, that is the article ``Real People, Real Lives: The Harm Caused By Judge Gorsuch.'' The next article is from the New York Times by Emily Bazelon and Eric Posner from April 1, 2017. No, this was not an April Fools' article. This is a serious article: ``The Government Gorsuch Wants to Undo.'' It starts out as follows: At recent Senate hearings to fill the Supreme Court's open seat, Judge Neil Gorsuch came across as a thoroughly bland and nonthreatening nominee. The idea was to give as little ammunition as possible to opponents when his nomination comes up this week for a vote, one that Senate Democrats may try to upend with a filibuster. But 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. In strongly opposing the administrative state, Judge Gorsuch is in the company of incendiary figures like the White House advisor Steve Bannon, who has called for its ``deconstruction.'' The Republican- dominated House, too, has passed a bill designed to severely curtail the power of federal agencies. Businesses have always complained that government regulations increase their costs, and no doubt some regulations are ill-conceived. But a small group of conservative intellectuals have gone much further to argue that the rules that safeguard our welfare and the orderly functioning of the market have been fashioned in a way that is not constitutionally legitimate. This once-fringe cause of the right asserts, as Judge Gorsuch put it in a speech last year, that the administrative state ``poses a grave threat to our values of personal liberty.'' The 80 years of law that are at stake began with the New Deal. President Franklin D. Roosevelt believed that the Great Depression was caused in part by the ruinous competition among companies. In 1933, Congress passed the National Industrial Recovery Act, which allowed the president to approve ``fair competition'' standards for different trades and industries. The next year, Roosevelt approved a code for the poultry industry, which, among other things, set a minimum wage and maximum hours for workers, and hygiene requirements for slaughterhouses. Such basic workplace protections and constraints on the free market are now taken for granted. But in 1935, after a New York City slaughterhouse operator was convicted of violating the poultry code, the Supreme Court called into question the whole approach of the New Deal, by holding that the N.I.R.A. was an ``unconstitutional delegation by Congress of a legislative power.'' Only Congress can create rules like the poultry code, the justices said. Because Congress did not define ``fair competition,'' leaving the rulemaking to the president, the N.I.R.A. violated the Constitution's separation of powers. The court's ruling in the Shechter Poultry Corp. v. the United States, along with another case decided the same year, are the only instances in which the Supreme Court has ever struck down a federal statute based on this rationale, known as the ``nondelegation doctrine.'' Shechter Poultry's stand against executive-branch rulemaking proved to be a legal dead end, and for good reason. As the court has recognized over and over, before and since 1935, Congress is a cumbersome body that moves slowly in the best of times, while the economy is an incredibly dynamic system. For the sake of business as well as labor, the updating of regulations can't wait for Congress to give highly specific and detailed directions. The New Deal filled the gap by giving policy-making authority to agencies, including the Securities and Exchange Commission, which protects investors, and the National Labor Relations Board, which oversees bargaining between unions and employers. Later came other agencies, including the Environmental Protection Agency, the Occupational Safety and Health Administration (which regulates workplace safety) and the Department of Homeland Security. Still other agencies regulate the broadcast spectrum, keep the national parks open, help farmers and assist Americans who are overseas. Administrative agencies coordinated the response to Sept. 11, kept the Ebola outbreak in check and were instrumental in the last financial crisis. They regulate the safety of food, drugs, airplanes, and nuclear power plants. The administrative state isn't optional in our complex society. It's indispensable. I am reading from the article ``The Government Gorsuch Wants to Undo'' by Emily Bazelon and Eric Posner. It continues: But if the regulatory power of this arm of government is necessary, it also poses a risk that federal agencies, with their large bureaucracies and potential ties to lobbyists, could abuse their power. Congress sought to address that concern in 1946, by passing the Administrative Procedure Act, which ensured a role in the judiciary in overseeing rule- making by agencies. The system worked well enough for decades, but questions arose when Ronald Reagan came to power promising to deregulate. His EPA sought to weaken a rule, issued by the Carter administration, which called for regulating ``stationary sources'' of air pollution--a broad wording that is open to interpretation. When President Reagan's EPA narrowed the definition of what counted as a ``stationary source'' to allow plants to emit more pollutants, an environmental group challenged the agency. The Supreme Court held in 1984 in Chevron v. Natural Resources Defense Council that the EPA and any agency could determine the meaning of an ambiguous term in the law. The rule came to be known as the Chevron deference: When Congress uses ambiguous language in a statute, courts must defer to an agency's reasonable interpretation of what the words mean. Chevron was not used as a left-leaning decision. The Supreme Court decided in favor of the Reagan administration, after all, voting 6 to 0 (three justices did not take part), and spanning the ideological spectrum. After the conservative icon Justice Antonin Scalia reached the Supreme Court, he declared himself a Chevron fan. ``In the long run Chevron will endure,'' Justice Scalia wrote in a 1989 article, ``because it more accurately reflects the reality of government, and thus more adequately serves its needs.'' That was then. But the Reagan administration's effort to cut back on regulation ran out of steam. It turned out that the public often likes regulation--because it keeps the air and water clean, the workplace safe, and the financial system in working order. Deregulation of the financial system led to the savings and loan crisis in the 1980s and the financial crisis a decade ago, costing taxpayers billions. Businesses, however, have continued to complain that the federal government regulates too much. In the past 20 years, conservative legal scholars have bolstered the red-tape critique with a constitutional one. They argued that only Congress--not agencies--can create rules. This is Shechter Poultry all over again. And Judge Gorsuch has fortunately joined in. Last year, in a concurring opinion in an immigration case called Gutierrez- Brizuela v. Lynch, he attacked Chevron deference, writing that the rule ``certainly seems to have added prodigious new powers to an already titanic administrative State.'' Remarkably, Judge Gorsuch argued that Chevron--one of the most frequently cited cases in the legal canon--is illegitimate in part because it is out of step with (you guessed it) Shechter Poultry. Never mind that the Supreme Court has not since relied on its 1935 attempt to scuttle the New Deal. Nonetheless, Judge Gorsuch wrote that in light of Shechter Poultry, ``you might ask how is it that Chevron--a rule that invests agencies with pretty unfettered power to regulate a lot more than chicken--can evade the chopping block.'' At his confirmation hearings, Judge Gorsuch hinted that he might overturn Chevron without saying so directly, noting that the administrative state existed long before 1984. The implication is that little would change referring to the E.P.A.'s or Department of Labor's reading of a statute. Judges would interpret the law. Who would object to that? But here's the thing: Judge Gorsuch is skeptical that Congress can use broadly written laws to delegate authorities to agencies in the first place. That can mean only that at least portions of such statutes--the source of so many regulations that safeguard Americans' welfare--must be sent back to Congress, to redo or not. On the current Supreme Court, only Justice Clarence Thomas seeks to strip power from the administrative state by undercutting Chevron and even reviving the obsolete and discredited nondelegation doctrine, as he explains in opinions approvingly cited by Judge Gorsuch. But President Trump may well appoint additional justices, and the other conservatives on the court have expressed some uneasiness with Chevron, though as yet they are not on board for overturning it. What would happen if agencies could not make rules for the financial industry and for consumer, environmental and workplace protection? Decades of experience in the United States and around the world teach that the administrative state is a necessary part of the modern market economy. With Judge Gorsuch on the Supreme Court, we will be one step closer to testing that premise. That is the conclusion of the New York Times article ``The Government Gorsuch Wants to Undo'' by Emily Bazelon and Eric Posner, dated April 1. The next article I will share with you is an editorial from November 7, and I believe the other is from December 24 of 2016. This is by the editorial board of the New York Times, and it reads as follows: People don't usually remember it this way, but on December 13, 2000, Vice President Al Gore gave one of the most important speeches in American history. Mr. Gore had contested initial results of the Florida vote count and prevailed in Florida State courts, but the Supreme Court had voted 5-to-4 the day before to end the recount and effectively hand the presidency to George W. Bush. ``Now the U.S. Supreme Court has spoken,'' Mr. Gore said. ``Let there be no doubt, while I strongly disagree with the court's decision, I accept it.'' The frenzied battle over a few hundred votes had spawned intense anger across the country--but it had been resolved ``as it must be resolved, through the honored institutions of our democracy.'' Mr. Gore's concession that night still stands as the most powerful reaffirmation in modern times of the Supreme Court's unique and fragile role in the American system of government. Millions of people were furious in the justices' decision in Bush v. Gore--many believed it was the result not of legal reasoning but of rank partisanship--and yet virtually everyone followed Mr. Gore's selfless lead, accepted the court as the final arbiter of the dispute, and moved on. There were no riots in the streets, no attempted coups, no ``Second Amendment solutions.'' There was, instead, a peaceful transfer of power: the hallmark of a civil society operating under the rule of law. Sixteen years later, the Supreme Court sits crippled, unable to resolve the most pressing legal questions before the country. Two events--the sudden death of Justice Antonin Scalia in February and the unprecedented refusal of Senate Republicans to even consider President Obama's pick to fill the vacant seat--have converged to throw the court's future as a functioning institution into doubt. This scenario would have seemed unimaginable a year ago. But Tuesday's vote--for president and for control of the Senate--will determine whether the court remains short-handed for months or, as Republicans are now threatening if they hold the Senate, for years. Last month, Senator Richard Burr, of North Carolina, told supporters that if Hillary Clinton wins, ``I am going to do everything I can to make sure four years from now, we still got an opening on the Supreme Court.'' Senator Ted Cruz of Texas suggested he was happy with the current situation, and said, ``There is certainly long historical precedent for a Supreme Court with fewer justices.'' Even Senator John McCain, who once joined with Democrats in an effort to depoliticize the judicial nomination process, recently told a radio show, ``I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were President, would put up.'' Step back for a moment and consider the radical absurdity of this position. Senate Republicans first justified their refusal to hold hearings or a vote on Mr. Obama's nominee before the presidential election because ``the people's voice'' needed to be heard. That was always a transparent lie. Now, apparently believing their candidate, Donald Trump, will lose, they are acting as though the Supreme Court is the property of the Republican Party. This mind-set isn't just a matter of a few senators going rogue. Leading conservative groups are embracing the argument, happy to destroy a principle of American politics-- to privilege partisanship over the Constitution itself. Ilya Shapiro, a senior fellow at the influential Cato Institute, wrote two weeks ago that ``it would be completely decent, honorable, and in keeping with the Senate's constitutional duty to vote against essentially every judicial nominee'' a President Clinton would name. Last Thursday, the Vice President of Heritage Action for America, a top conservative think tank, said Senators McCain, Burr and Cruz were taking ``exactly the right position,'' and that an effective, long- term blockade of the court will require ``an immense amount of willpower'' from Senate Republicans. A small number of Republican senators have expressed discomfort with this idea, but when was the last time public interest won out in today's Republican Party? The indefinite blockade not only hobbles the justices' ability to resolve current cases, it takes open aim at the court's legitimacy as the sole unelected branch of government. Because the court ``has no influence over either the sword or the purse,'' as Alexander Hamilton wrote in the Federalist Papers, its legitimacy and authority depend entirely on the shared public acceptance of its verdicts. Today's Republicans are essentially saying the court is nothing but another political body, and that justices should be treated as ideological sock puppets of the president who nominated them. Yes, the justices come with political beliefs and backgrounds, but that makes it all the more important to demand that they work harder than the rest of us to struggle and preserve their independence. This is why, for instance, Justice Ruth Bader Ginsburg was wrong to comment on Mr. Trump's candidacy--words for which she later apologized. Until this year, no one disputed that the president should have wide latitude in picking justices. In 1993, Senate Republicans voted overwhelmingly in favor of Justice Ginsburg, President Bill Clinton's first nominee. And even though they voted in large numbers against Mr. Obama's first two nominees, Sonia Sotomayor and Elena Kagan, they did not try to block those nominations from going forward. Senate Democrats voted unanimously to confirm Ronald Reagan's choice of Justice Scalia in 1986 and allowed full votes on Robert Bork and Clarence Thomas, both of whom they strongly opposed. In 2016, Republicans have blown this delicate balance to pieces, all to keep a conservative majority. Of course, the court has had a majority of Republican-appointed justices for nearly half a century, through the normal processes of advice and consent. But now, Republicans want to maintain that majority, even if that means tossing out all political norms. This majority, they hope, would promote a world view where fewer people have rights, where women do not have reproductive choices, where lawmakers can make it harder for minorities to vote, where religious people are free to disregard laws protecting people they don't like. Such a court could use a severe interpretation of the Constitution to ensure that American politics can be flooded with unlimited money, that reasonable gun restrictions are struck down, that corporate interests prevail over those of consumers, and that basic environmental regulations are turned back. Make no mistake: That is the court Americans would get under a President Trump. Still, Senate Democrats would have an obligation to consider and vote on his nominees, just as Republicans would have that obligation to Mrs. Clinton's choices. No doubt, there would be Democratic voices demanding that their Senators mimic the Republicans' shameful example. But the Constitution asks more of us than that. In the next Congress, regardless of who wins on Tuesday, the very survival of the court as an independent body will be at stake. I certainly agree that the very survival of the Court as an independent body is at stake right now. That is why I am here on the floor at 4:20 in the morning. It is because so much is at stake in terms of the legitimacy of the Court. This is probably a good moment to return to the central premise of where we are. Where we are is that for the first time in U.S. history, a seat has been stolen from one President and delivered to another in a Court-packing scheme. If that were to succeed, it would set a precedent that would haunt the Court for decades to come, and it will haunt this body, the Senate, because if a theft succeeds, then it changes the analysis of every future Supreme Court vacancy. If there is a vacancy and it is an opportunity for the Democrats to steal a seat back and deliver it to a future President who might be a Democrat, will they do so, and would they be right in doing so--to rebalance the Court after a seat has been stolen? We should never have to ask these questions--questions such as, if you can steal a seat and get away with it, when a seat becomes vacant a year before a President leaves office, can you do it 2 years before the President leaves office? Can you do it for 3 years? Can you keep a seat vacant for 4 years, as suggested by the article I just read and the comments of some of my colleagues in that they would be determined to reject any nominee put forward by Hillary Clinton? These questions are being asked because of this crime against our Constitution--the crime of stealing a Supreme Court seat in an effort to pack the Court. The second big issue we are facing is the investigations underway of the Trump campaign and its possible coordination with the Russians to change the outcome of the election. We know a lot about what the Russians did. We know they created false news stories. We know they had a team estimated to be 1,000 individuals in a building, doing social media to amplify the impression that Americans were writing negative comments about Hillary Clinton. We know they had a system of bots--a botnet, if you will--to use computers to respond and add commentary on comments people were making on social media so that it looks like there are far more people--far more disgruntled individuals--who were criticizing the Democratic nominee. We know that their strategy involved trying to influence the outcome in terms of groups like Facebook, identifying something as ``trending'' and then putting it up as ``trending news'' so that the false news, now being driven by the thousand social media folks in some building and the botnet, is amplified to the degree that it is now scrolling on your Facebook, looking like very legitimate news. We know the Russians broke into computers to obtain information and worked to release it in a fashion that was designed to damage the Presidential nominee from the Democratic Party. That is a pretty comprehensive strategy of fake news and fake social media comments and botnet-generated comments and breaking into computers to secure information and release it in a fashion to damage the Democratic nominee, Hillary Clinton. We will learn more about all of those things, but that is a pretty good list of serious attacks on the United States of America, attacks on the integrity of our electoral system. What we do not know--and why there are investigations underway--is how much the Trump campaign communicated with and conspired with that Russian operation. Each day, drip by drip, we hear more about some contact. This morning, it was the media and the Seychelles that we did not know about previously. Every day, it seems like there is one little additional piece, and we do not know where it will all lead to, if anywhere. Maybe it leads nowhere, but we must pursue it because if anyone conspired with the Russians to undermine the integrity of our elections and change the outcome of the elections, that is traitorous conduct, and it must be prosecuted to the full extent of the law. Right now, we do not know a lot about how much communication and how much potential collaboration or conspiracy there was, so we have investigations to get to the bottom of it. The FBI has an investigation into it, as well as the House Intelligence Committee and the Senate Intelligence Committee, and we should not be considering this nomination while those investigations are underway. Of course, a third significant reason that we should not be pursuing this is that the President failed to recognize the role of the supermajority requirement--the 60-vote requirement--that anyone who serves on the Supreme Court should be able to get bipartisan support from 60 Members. Therefore, nominating somebody from the far right, the extreme right, and all of the opinions we have talked about over the last many hours are related to crushing the rights of individuals and helping the most powerful. Certainly an individual who is at that far point in the spectrum is not from the mainstream of judicial thinking. It is another reason this should be set aside. Then we have that information that came out at about 11 p.m., earlier this evening, Tuesday time. Now we are 5\1/2\ hours later, but the information was about the number of cases in which Neil Gorsuch had lifted passages from others virtually word for word without giving them credit. That is known as plagiarism. Hopefully, that issue will get a fair amount of attention and be examined closely. The next article I am going to read is in the Sunday Review, December 24, 2016, entitled ``The Stolen Supreme Court Seat.'' Soon after his inauguration next month, President-elect Donald Trump will nominate someone to the Supreme Court, which has been hamstrung by a vacancy since the death of Justice Antonin Scalia in February. There will be public debates about the nominee's credentials, past record, judicial philosophy and temperament. There will be Senate hearings and a vote. No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat. It was stolen from Barack Obama, a twice-elected President who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge. It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them because they wanted to preserve the court's conservative majority. The main perpetrators of the theft were Mitch McConnell, the majority leader, and Charles Grassley, chairman of the Judiciary Committee. But virtually all Republican Senators were accomplices; only two supported holding hearings. The Republican Party line--that it was an election year, so the American people should have a ``voice'' in the selection of the next justice--was a patent lie. The people spoke when they re-elected Mr. Obama in 2012, entrusting him to choose new members for the court. And the Senate has had no problem considering and usually confirming election-year nominees in the past. Of course, Supreme Court appointments have always been political, and the court's ideological center has shifted back and forth over time. But the Senate has given nominees full consideration and a vote even when the party in power has opposed a president's choice. That is, until this year, when Republicans claimed that though the Constitution calls for the Senate's ``advice and consent,'' Senators aren't obligated to do anything. This is a bad-faith reading of that clause, even if there is no clear way to force a vote. It certainly obliterates a well-established political norm that makes a functioning judicial branch possible. As Paul Krugman wrote in his column on Monday, institutions are not magically self-sustaining, and they ``don't protect against tyranny when powerful people start defying political norms.'' This particular norm is of paramount importance because the court's institutional legitimacy depends on its perceived separation from the elected branches--a fragile concept in the best of times. By tying the latest appointment directly to the outcome of the election, Mr. McConnell and allies took a torch to that idea--an outrageous gambit that, to nearly everyone's shock, has paid off. But while Republicans may be celebrating now, the damage they have inflicted on the confirmation process, and on the court as an institution, may be irreversible. The slope is both slippery and steep. If Republicans can justify an election-year blockade, what's to stop Democrats in the future from doing the same? For that matter, why should the party controlling the Senate ever allow a President of the opposing party to choose a justice? Indeed, in the weeks before the election, Senate Republicans were threatening, with the encouragement of leading conservative thinkers, never to confirm anyone to fill the vacancy if Hillary Clinton won. Can anything be done to repair the harm? One step--as obvious as it is unlikely--would be for Mr. Trump to renominate Mr. Garland. Conservatives will scoff, but they know he is as qualified for the job as anyone in the country. When Mr. Garland was floated as a possible choice for the Supreme Court in 2010, Orrin Hatch, the senior Republican Senator from Utah, called him a ``consensus nominee'' and said there was ``no question'' that he would be confirmed with bipartisan support. That's partly why Mr. Obama nominated him this time, and also why Mr. McConnell denied him a hearing--he knew he couldn't prevent a Senate vote once Americans saw an eminently qualified and reasonable jurist testify on live TV. At the very least, Mr. Trump could follow President Obama's example and pick a centrist--someone who commands wide respect and operates within the bounds of mainstream legal thought. That would be an appropriate gesture from a man who lost the popular vote by more than 2.8 million votes and will enter office with the lowest approval ratings in recent history. The shameful, infuriating actions of the Senate Republicans won't be ignored in the history books. In a desperate effort to keep a conservative majority in the court, they rejected their own professed values of preserving American institutions. There's little hope they will come to their senses now, but they and Mr. Trump have the power and the obligation to fix the mess they have created. That is the article ``The Stolen Supreme Court Seat,'' an editorial from the Sunday Review of the New York Times. I do hope that there is a path in which this damage can be avoided because it is enormously significant to confirm a Justice when the seat has been stolen. It is enormously damaging to confirm a Justice when the President's team is under investigation for possible collusion with the Russians. It is enormously a big deal to confirm someone way out of the mainstream of judicial thought in America. So should this progress, should we find that there are 41 individuals who will stand up for our institutions and block this nomination under the filibuster tradition, the 60-vote tradition--60 votes required to proceed--we will have the question of whether we are going to change the rule or change the nominee. And always in the past, when the Senate rejected in any fashion, including closing debate on a motion to proceed, a nominee by tabling them--rejected a nominee by voting them down--the answer was to change the nominee, to protect the integrity of the Court. I think the advice in the December 24 editorial, ``Stolen Supreme Court Seat,'' which calls on the President to nominate a centrist, is terrific advice because it may give a chance for healing to take place. But there will be no healing if the seat is filled by Neil Gorsuch--a seat that belonged to President Obama under the Constitution of the United States of America, a seat that was stolen for the first time in U.S. history. That dynamic will haunt us for a very, very long time. This editorial is from January 31 from Time Magazine, entitled, ``Sorry, Neil Gorsuch, the Supreme Court Vacancy was Already Filled,'' and written by Geoffrey Stone: If Antonin Scalia died today, and Donald Trump thereafter nominated Judge Neil Gorsuch as his successor, I might support Judge Gorsuch's confirmation. Although Judge Gorsuch has not yet established himself as a jurist of any distinction, he is generally regarded as a capable judge with good character. Moreover, although he is a very conservative jurist, he will be replacing a justice with a similar ideological disposition. In such circumstances, just as I supported the confirmation of Judge John Roberts to succeed Chief Justice William Rehnquist, so too would I be inclined to support the nomination of Neil Gorsuch to succeed Antonin Scalia, even though I strongly disagree with Gorsuch's very conservative ideology. But Antonin Scalia did not die today. He died almost a year ago, and President Barack Obama nominated Judge Merrick Garland to succeed him. Chief Judge Garland is a jurist of impeccable credentials and personal character who is widely celebrated for his moderate approach to the law. President Obama nominated Garland not only because of his distinguished reputation as a jurist, but also because as a relatively moderate judge, he should have been more than acceptable even to the most conservative Senate Republicans. In typical Obama fashion, Garland's nomination was an effort to compromise in order to win the support of Senate Republicans. Chief Judge Garland should have been confirmed easily. Indeed, every Supreme Court nominee in living memory with anything approaching Chief Judge Garland's impeccable credentials and record of moderation has been easily confirmed by the Senate, without regard to whether the Senate was controlled by the President's party or by the opposing party. This was true, for example, of such Republican nominees to the Court as Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, and David Souter. Even the extremely conservative Antonin Scalia was confirmed by a vote of 98-0. But not Merrick Garland. In a completely unprecedented abuse of power, Senate Republicans, under the ``leadership'' of Senate Majority Leader Mitch McConnell, refused to confirm, or even to consider, Judge Garland's nomination. This unconscionable maneuver was nothing less than a dishonorable and dishonest effort to steal this seat on the Supreme Court for the right wing. Senator McConnell had the audacity to maintain that the ``people'' should decide who should fill this particular vacancy. By employing his duplicitous strategy, he managed to shift this appointment from a President who had won the popular vote by a margin of five million votes in 2012 to one who lost the popular vote by a margin of three million votes in 2016. This crass and unprincipled manipulation of our democracy should not be allowed to succeed. Anyone who cares about the proper and legitimate functioning of our American democracy must oppose Judge Gorsuch's nomination, not because he is necessarily unqualified, but because of the undermining of our American democracy by Senate Republicans. Anyone who cares about the rule of law must oppose this nomination. If we fail to take this stand, the Senate Republicans will have succeeded in placing a justice onto our highest Court who has no business being there. They will have undermined the credibility of the Supreme Court as an institution, an institution that is critical to the functioning of our Constitution. Judge Gorsuch's nomination should be withdrawn, and the President should nominate in his place a genuinely moderate justice who is acceptable to Democrats and Republicans alike. Only then can we move on with a sense of institutional integrity. Short of that, every decision of the Court decided by a margin of five-to-four with Neil Gorsuch in the majority will justifiably be castigated as fundamentally illegitimate. That was in Time Magazine, by Geoffrey Stone, and op-ed opinion editorial entitled, ``Sorry, Neil Gorsuch, the Supreme Court Vacancy Was Already Filled.'' This commentary is from Rolling Stone, entitled, ``Grand Theft Judiciary: How Republicans Stole the Supreme Court.'' It is subtitled: ``Pray that Ruth Bader Ginsburg and her fellow liberal justices stay healthy and don't retire,'' by David Cohen, written in November of 2016. The Republicans just pulled off one of the greatest heists in American political history--they stole a Supreme Court justice. Since 1789, there have been 112 justices on the Supreme Court. Having the opportunity to appoint a new justice is one of the prize opportunities for a president. With the right young justice, a president can influence American law and society for decades to come. For instance, Anthony Kennedy, the current ``swing justice'' on the Court, was appointed by President Reagan. Since he sits in the ideological middle of this current court, Kennedy's views on the law often determine how American justice work. And for that, we owe thanks to a president who was last elected 32 years ago and has been dead since 2004. That's the power of a Supreme Court appointment. These opportunities are often completely unpredictable. Justices are appointed for life, so they leave their position only when they retire or die. Sure, a president can make an educated guess about particular justices' life expectancies or end-of-career plans, but knowing exactly when a justice is going to leave the Court is out of the president's control. When Justice Scalia died suddenly in February, President Obama was gifted the opportunity to fill his third seat on the Court. He had previously replaced David Souter with Sonia Sotomayor and John Paul Stevens with Elena Kagan. Neither of those appointments shifted the Court's ideological balance, as in each case Obama replaced, broadly speaking, a judicial liberal with another liberal. Replacing Scalia, on the other hand, was going to be a monumental shift in the Court. Scalia was one of the most conservative justices in the history of the Supreme Court. An Obama replacement would give the Court its fifth liberal and shift it to the left in historically significant ways. President Obama and Democrats were salivating at the opportunity. The Republicans, though, were having none of it. Through unflinching and unified obstructionism combined with Tuesday's election of Donald Trump, they succeeded in stealing a seat right out from under President Obama's nose. It was a staggering case of grand theft judiciary. This all started almost immediately with Scalia's death, with the Republicans claiming a new theory that a president should not be able to appoint a justice during an election year; rather, the people should be allowed to speak and decide on the direction of the Court, they said. Never mind that justices have been confirmed regularly throughout history in election years, and that presidents have constitutional authority to appoint judges to the federal judiciary in all four years of their terms, not just their first three, and that the Court would have to (and continues to) function with only eight justices. The Republicans understood the stakes of shifting the Court's ideology, so they put up a united obstructionist front and never wavered in saying they would not confirm an Obama appointee this year. President Obama, as he often does, thought he could break through the Republican wall by trying to appease them. Instead of nominating a young liberal firebrand or a judicial first, he nominated a well-respected but moderate, not-young white male: Merrick Garland. Obama thought Garland, who had been praised throughout his career by politicians on both sides of the aisle, would be unobjectionable and would break the logjam. The president couldn't have been more wrong. Without any interest group to cheerlead his cause, Garland was quickly forgotten and faded into the distant background of American politics. As a result, there was no movement whatsoever, and Garland's nomination has lingered with no action longer than for any nominee in history. During the campaign, Democrats occasionally brought up this issue, trying to paint Republican senators as obstructionist and against good government. But the issue never stuck in Senate races, and Hillary Clinton never really led the charge over the Supreme Court either. As a result, according to an ABC exit poll, of the 21 percent of Americans who said the Supreme Court was the most important factor in their vote, 57 percent of them voted for Trump and only 40 percent voted for Clinton. Now that Trump is president-elect, he's going to have the opportunity to fill Justice Scalia's seat; even though it means the Supreme Court will remain short-handed for months longer, there's no chance in hell Republicans will do anything to move Garland's nomination between now and inauguration day. They want their stolen prize, and they'll wait for it. Trump has given a list of 21 possible justices he would nominate, all of whom have varying pedigrees as conservatives. If he follows through and nominates someone from that list, the Democrats could respond with a similar blockade. Though the Republicans still control the Senate, and thus would be able to move the nominee through the judiciary committee to a floor vote, Democrats could try to filibuster. A filibuster requires 60 votes to break, so the 52 Republicans in the Senate would not be able to stop it. There are two problems with this plan, though. First, Democrats have been less unified in the past when it comes to opposition than the Republicans have been, and the Democrats would need to make sure no more than seven Senators broke ranks. With several Dems up for reelection in 2018 in very conservative states, that's something that may be more difficult than it should be. Second, the Republicans may opt to get rid of the filibuster altogether. This option, commonly referred to as the ``nuclear option,'' would eliminate the filibuster as a tool for Supreme Court nominees. Because of Republican opposition during the Obama years, the Democrats eliminated the filibuster for lower court justices when they controlled the Senate. However, they kept it for Supreme Court nominations because they understood just how controversial and serious such a move would be. The author continues: I have no expectation that the Republicans would do the same. They have been laser focused on wrestling this nomination away from President Obama and are not going to let the Democrats ruin their fun. The Senate rules allow the filibuster to be eliminated with a majority vote, and the Republicans will probably do so very soon after Trump nominates his justice and the Democrats announce their filibuster. What will this mean for the Supreme Court? Filling this seat will put a younger conservative in Justice Scalia's seat. It will dash liberals' hope of a new progressive Supreme Court and likely continue its recent history as one of, if not the most, conservative Courts in American history. However, the Court will still have Justice Kennedy as the swing justice. Obviously, this was written before the nomination of Neil Gorsuch. It notes that if Republicans go nuclear, there is almost nothing the Democrats can do to stop it. That is certainly true. We don't have a mechanism that can prevent this body from reinterpreting the application of its rules. It happens in a very simple fashion. A Member asks for a ruling of the Chair on whether the super majority provision to close debate applies to closing debate on Senate nominees. The Chair consults with the Parliamentarian and probably says: Yes, it does clearly apply. Then the majority leader challenges the ruling of the Chair. If 51 folks vote to overturn the ruling of the Chair, that is it. The precedent is then set. The supermajority does not apply to Supreme Court nominees, to closing debate on Supreme Court nominees. It is that simple. It is not a change in the rules. The Senate rules require a supermajority to change the rules. It has just not always been helpful. It has meant that the Senate has not adjusted to the changing culture of the Senate to keep it functional. A lot of the time, State legislatures are far more functional than the U.S. Senate because when they have problems develop as the culture changes or people develop new tactics for obstruction, they adjust the way they operate in order to make sure they can keep making decisions. It is not unusual in my home State in Oregon for us--that is, the body in the house or the senate in Oregon--to consider 8 or 10 bills in a day. With a bill raised, everybody who wants to speak to it for 5 minutes or less gets to speak to it. Then there is a vote, it is decided, and we go on to another. There is more conversation sharing of viewpoints on the floor of the Oregon House in the course of a single day than there is a sharing of views and debate on the floor of the Senate in an entire year. We have, basically, completely lost anything resembling a conversation about any issue before the Nation here on the floor of the Senate. That is a tragic situation. It could be changed if we changed the way that we operate. (Mrs. ERNST assumed the Chair.) The L.A. Times editorial board wrote an essay titled: ``It's not Neil Gorsuch's fault, but we can't support his ascension to a stolen Supreme Court seat.'' As we can see from this series of articles, no one will ever forget that, for the first time in U.S. history, the majority is stealing a seat from one President and delivering it to another in an audacious effort to pack the Court. No one should ever forget that, and we should come to our senses and end this before the theft is completed by confirming the nominee to this seat. This article in the L.A. Times, by the editorial board, says: A decade ago, The Times urged the Senate to confirm John Roberts to the U.S. Supreme Court even though he was a conservative judge nominated by a conservative president and was likely to pull the court to the right for decades to come. We backed him, despite our disagreements with his judicial philosophy, because we believe that presidents-- Democrats and Republicans alike--are entitled to significant deference when they nominate justices to the high court, so long as the nominees are well qualified and scandal-free, respect precedent and fall within the broad mainstream of judicial thinking. Under normal circumstances, that same reasoning would lead us to support the nomination of Judge Neil Gorsuch. Like Roberts, he is conservative but competent, with more than a decade of experience on the appellate bench and a ``well- qualified'' rating from the American Bar Assn. But these are not normal times. Not after the outrageous obstruction of Judge Merrick Garland's nomination for 10 full months by Senate Republicans. That debacle began in March 2016, when President Obama nominated Garland, a moderate and well-respected appeals court judge, to fill the seat on the court that had become vacant with the death of Justice Antonin Scalia. Instead of doing what the Constitution requires and offering their advice and, if merited, their consent, Senate Republicans refused even to engage in the process. They denied Garland a confirmation hearing and in many cases wouldn't even meet with him--on the hastily fabricated pretext that a president in his final year of office shouldn't be allowed to name a new justice because . . . well, it was never really clear what the supposed principle was behind this self-serving position. They stonewalled the nomination until Obama was safely out of office and a Republican had won the election. And now, with Gorsuch subbed in for Garland, their cynical and dishonorable strategy is about to deliver its rewards. Some people think it's hyperbolic to suggest that a seat was ``stolen.'' But how else to describe it? Republicans took the opportunity to fill the vacancy away from Barack Obama without justification and delivered it up instead to Donald Trump. Gorsuch could now tilt the balance on the increasingly polarized Supreme Court for the next 30 or more years, influencing rulings on free speech, gay and transgender rights, campaign finance, abortion and gun laws, among other subjects. He may not be outside the mainstream of judicial thinking, but he is a textualist, an originalist and a likely ally of the court's conservative justices. The Republicans' underhanded ploy to subvert the Garland nomination has put the Democrats in an untenable position. They can now do what would ordinarily be the right thing do-- by going high after the Republicans went low. They could grumble a little bit but then decline to filibuster, or they could even vote in favor of Gorsuch--effectively capitulating in the quixotic hope that an act of good faith would encourage the Republicans to behave more honorably in the future. Alternately, they can go down kicking and screaming. We say ``go down'' because no matter how hard they kick or how loud they scream, they seem unlikely to win this battle. The reality is that without filibustering, they don't have the votes to defeat Gorsuch. And if they do mount a filibuster, Senate Republicans can vote to do away with the filibuster for Supreme Court nominees entirely. Under either scenario, Gorsuch gets his job. To be clear, Democrats and Republicans share the blame for the long roll down the slippery slope of polarization and dysfunction of the judicial selection process. (Some Democrats have even suggested in the past that presidents shouldn't fill Supreme Court seats in election years.) As that selection process has become increasingly politicized, the court itself has become more ideologically driven as well. Although there are differences between Roberts and Justice Samuel Alito, for example, on some important 1st Amendment issues, it's also true that in recent years, justices appointed by Democratic presidents have tended to vote for ``liberal'' outcomes and justices appointed by Republicans for ``conservative'' outcomes. That polarization is a bad trend. The judicial system works best when justices are neither rigidly ideological nor biased along partisan lines. To get there, we need a less highly politicalized selection process, along with a measure of cooperation, compromise and civility in Congress. For the moment, though, it is imperative to remind the world of what the GOP did. By all means, let's hear a cri de coeur from Democrats, even if it is in vain. The Republican misuse of power took partisan obstructionism to an extraordinary new level and must not be ignored now as if it never happened. President Obama's nominee was robbed of his right to a hearing, and the Senate Democrats are under no obligation to be complicit in the theft. I do believe it is our responsibility to cry out from our hearts that this is wrong. Stealing a Supreme Court seat is wrong. Having this deliberation while the President is under a cloud for his team's potential collaboration with Russians is wrong. And while this article described Gorsuch as a bit more mainstream, as people have become familiar with his opinions--opinions that were widely criticized by other Republican jurists, and, in one case, overturned by the Supreme Court on an 8-to-0 vote--they have come to the recognition that he is way far out on the fringe, not in judicial mainstream. So how do we fix this? We fix it by each Senator asking what they would do if the tables were turned and the Democrats had stolen a seat. The Republicans would cry out: It was wrong. They would ask Democrats to join them in rejecting that theft. I invite my colleagues to go through that exercise. How would you respond if a seat had been stolen from a Republican President and delivered to a Democratic President? How would you respond if that Democratic President was being investigated for potential collaboration with the Russians to sway the outcome of our elections? How would you respond if the nominee was not from the mainstream, but from the far edge? I am quite confident about how each person would respond because that situation would be outrageous. We must be able to step into each other's shoes and say: If we are going to preserve this institution, we have to be willing to recognize when it has gone off course, and it has gone dramatically off course this last year. This article is by Dawn Johnsen and is titled: ``Trump's Nominee Shouldn't Get a Hearing Until Merrick Garland is Seated.'' There really is--as several of these articles have mentioned--a path to righting this wrong, and that is to go back in time, to recognize that Merrick Garland was not considered by the Senate, and that we need to tell the President that we are not entertaining any person other than Merrick Garland to be in the seat. We will debate whether he should be in the seat. We will vote on whether he should be in the seat, and thereby rectify this theft--this stolen seat theft that will otherwise haunt this body and haunt the Supreme Court for the rest of our lives and maybe well through our children's lives. But we haven't committed the crime yet. This theft has not been completed. So we should all be pondering how to prevent that from happening. The article starts out: As President Donald Trump's nominee for the vacant Supreme Court seat receives public scrutiny in the coming days, it's incumbent for us to remember one thing: This seat was not Trump's to fill. In fact, the U.S. Senate should refuse to confirm anyone President Trump nominates to the Supreme Court--until Trump renominates and the Senate confirms Judge Merrick Garland. It then refers to a Senate filibuster as the only correct approach. To recap: The Senate failed to fulfill its constitutional responsibility with this unprecedented refusal even to consider President Obama's nomination of Garland. Obama made the nomination with about a year left in his presidency, but from day one the Republican Senate leadership insisted it would permanently block it. No one ever questioned Garland's qualifications--an impossibility for this brilliant, dedicated public servant. The obstruction constituted an insulting challenge to Obama's legitimacy, accompanied by calls for the people to decide via the election of the next President. The Republicans effectively have attempted to steal this Supreme Court seat. If this effort succeeds--as has appeared likely ever since Trump's surprise election--it will create a fundamental imbalance in the third branch of our federal government, the independence and integrity of which is vital to our constitutional system. An essential role of the federal judiciary is to check unlawful actions of the political branches--Congress and the president. When political actors conspire to distort the makeup of the court, as they did in denying President Obama his basic constitutional role, we the people must demand that the balance be restored. The confirmation of Garland to the court would provide perfect justice. This may not be quite so far-fetched as it might seem initially. President Trump is likely to have the opportunity to make more than one Supreme Court appointment. As Trump is not nominating Garland this time, the Senate should keep the current vacancy open until a second seat becomes vacant. It should then confirm Garland, followed by the consideration of the Trump choice. The only appropriate alternative--given the constitutional stakes--would maintain an eight-person or fewer court for four years. I don't suggest this lightly: I experienced firsthand-- Again, I am reading this article. So the ``I'' is the author. The author is Dawn Johnsen. I don't suggest this lightly: I experienced firsthand the personal toll of the Senate refusing to vote on my nomination to head the Department of Justice's Office of Legal Counsel in 2009 and 2010. One Republican senator sought to reassure me it wasn't personal; it was politics, how the game was played: ``You do it to us; we do it to you.'' My husband, two sons, and I spent more than a year in confirmation limbo, in a rented house far from home, awaiting the Senate vote repeatedly predicted for the next week, next month--but that never came. Of course, the politicization of a presidential appointment is wrong. Each of the president's nominations ordinarily should be assessed on its individual merits. Notwithstanding Trump's awful first 10 days in office, the Senate should continue to offer the president's executive branch nominees this same fair standard of treatment. In particular, Trump's nominee to head the Office of Legal Counsel--the office to which President Obama nominated me and the same office I headed for part of the Clinton administration--should be confirmed expeditiously, as long as the nominee is personally qualified. This president is in desperate need of good legal advice. But this Supreme Court vacancy is different. It exists only as the result of the wrongful denial of the legitimacy of Obama's presidency. It is the breakdown of the very function of our democracy and a slap in the face to constitutional norms. It is an attempted theft that, if permitted, would bring longstanding consequences. Its end was to prevent the court from having a majority of justices appointed by Democratic presidents for the first time since 1969. That's almost half a century with a court majority appointed by Republican presidents, a striking imbalance that does not reflect the presidential vote: Since 1961, Democratic and Republican presidents have served equal numbers of years. The flimsy and transparently specious argument Republicans offered was: ``Let the people decide.'' Of course, the people decided when they elected President Obama to a second four- year term. And 3 million more Americans decided they preferred Obama have a Democratic successor rather than Trump make this appointment. Those who value an independent judiciary, and a Senate committed to democracy, can fix this constitutional problem by insisting on Merrick Garland's appointment to the seat he already should be occupying. The pick after that can belong to President Trump. I think that accurately sums it up. There is an idea embedded in there of saying: How about this? How about this, fellow Senators--that we suspend the consideration of Neil Gorsuch at this point in time until there is another Supreme Court seat that opens up, and at that time, Merrick Garland gets at least considered for the first seat, the seat that he was rightly nominated for. President Trump has his person rightly considered for the second seat. That would be a way to heal the mess that has been created through the theft of the Supreme Court seat: We have stolen it, but we will not act on it, and so eventually we will enable the same nominee to be considered for that seat. That is an interesting idea, a face-saving idea, an idea that gives President Trump the opportunity to make the nomination that corresponds to a seat that comes open during his administration, and President Obama's nominee to be considered for the seat that came open under President Obama's control of the Presidency--his time in office. The LA Times January 31 editorial said--the title kind of sums it up: ``When the GOP stole Merrick Garland's Supreme Court seat, they set the stage for a miserable battle.'' That is pretty much the situation we are in. The previous article I read laid out an idea of a way around it at this point, in which we leave the Scalia seat empty until there is a second seat, and then Merrick Garland gets considered for the first seat, and if the President wants his nominee to be considered for the second seat, he would have to make that nomination, and then the President gets his nominee considered for the seat that came up under his administration, so suddenly there is no longer a stolen seat, and we are on the path to a future in which the Supreme Court's integrity is not completely decimated. This article starts out as follows: The outrageous obstruction of Merrick Garland's nomination to the Supreme Court--the 10-month-long stonewall by Senate Republicans that not only stymied the high court's ability to do its job but effectively stole the nomination of a new justice from President Obama--is now delivering its rewards to the cynical politicians who carried it out. Having denied Garland even a committee hearing from the time of his nomination in March until Obama was safely out of office, the GOP-controlled Senate is now smugly offering that opening to President Trump to fill. The new president, who has repeatedly promised to select a new justice in the mold of the late conservative Justice Antonin Scalia, has said he will announce his nominee Tuesday evening. This was written just before the President announced Neil Gorsuch as his nominee. The article continues: It's hard to express how head-shakingly unfair this is. Trump will now have an opportunity to affect the balance of the increasingly polarized court for the next 30 or 40 years--influencing rulings on abortion, the rights of gay and transgender people, free speech, corporate and union spending on elections, labor issues, the separation of church and state, the ubiquity of guns, criminal justice reform and endless other hot button subjects. But Trump never should have been handed this opportunity. The seat was Obama's to fill subject to Senate ``advice and consent,'' and he fulfilled his constitutional responsibility in good faith, only to be kneecapped by a body that would neither advise nor consent but merely gummed up the machinery in a transparent effort to preserve the court's conservative majority. The GOP's feeble justification for its behavior-- that an appointment made by a duly elected president was somehow illegitimate because he had only 10 months remaining in office--was believed by no one. The Senate's misbehavior affected more than just the court. It also constituted a new low in the tit-for-tat cycle of dysfunction in Congress, in which each side obstructs its opponents wherever possible even if that produces a stalemate that brings the operation of government to a halt. Working cooperatively across the aisle to solve the nation's problems has gone out of fashion. The Democrats have been put in a terrible bind. Do they take the Republican bait, declare the seat stolen and launch a filibuster? Or do they roll over, brand themselves patsies and allow Trump to appoint a Scalia clone? What message do the Democrats send if they allow themselves to accept this theft supinely without exacting any punishment? How should they fight if the nominee is truly outside the mainstream? And what if he or she is a conservative who is well-respected and competent--what strategy makes sense then? It's an awful predicament and it's hard to see how it ends well. Frankly, the Democrats are not in a terribly strong position. They don't have a majority in the Senate, and though they can filibuster for a while, most Senate Republicans would sooner do away with the filibuster for Supreme Court justices than allow the seat to sit empty indefinitely. That's the so-called nuclear option. At the end the day-- Says this article-- Senate Majority Leader Mitch McConnell will probably win this round, thus ensuring the long roll down the slippery slope of polarization and dysfunction continues at an ever- accelerating speed. He should be, but presumably is not, ashamed of that contribution to history. His obstructionism exacerbated the weakening of governmental institutions and continued the erosion of bipartisan cooperation and civility. Yet if democracy is to work and the nation is to prosper, the political system must allow for compromise and rationality even among determined opponents. For now, another Justice Scalia or someone even more extreme will probably be enstooled, potentially endangering the rights of women and non-whites, threatening backward movement on same-sex marriage and abortion, offering more protection for powerful businesses and less for the environment. Even in these difficult days, this disgraceful move by Senate Republicans to manipulate a U.S. Supreme Court seat for partisan purposes stands out as sad and egregious. Well, that was the LA Times article from January 31: ``When the GOP stole Merrick Garland's Supreme Court seat, they set the stage for a miserable battle.'' In the course of conversing about the dilemma we face, I have noted that there are three big problems. The first is that the seat has been stolen from one President and delivered to another in an effort to pack the court. The second is that the nominee from President Trump is way outside the judicial mainstream. I have gone through many of the cases. The third is that there is a big cloud hanging over this administration. The Trump administration's connections to Russia during the campaign and throughout the transition are numerous, and we keep learning about pieces of the puzzle every day. Contact between the campaign and Russians or dialogue in itself is not necessarily wrong. But it is wrong if that dialogue was about how to coordinate, to basically tilt the playing field in favor of Donald Trump and against Hillary Clinton. The Russian activity was designed to change the outcome of the election. So, that in itself is a problem we have to pay a lot of attention to. We have to understand every piece of how the Russians operated. We have to convert that knowledge into a strategy that prevents it from happening again. We certainly have to work with our allies to make sure that we help all of the democratic Republics of the world resist such meddling by the Russians. So far, we have a pattern of a lot of contacts. That pattern of Trump associates misleading the public about meetings and relationships with Russian officials does raise red flags. If meetings were innocent, why not be forthcoming? That is why we have to have a strong set of investigations to get to the bottom of this. We have to understand and recognize that what Russia did in their strategy was equivalent to an act of war on the United States. They were attacking our core institution, the bedrock of our democratic Republic, our election system. That is unacceptable. If anybody conspired with the Russians, that is treasonous conduct, and we have to get to the bottom of it. We certainly should get to the bottom of it before this Supreme Court seat conversation continues. The subsequent handling of the investigation by the House Intelligence Committee and the actions taken by the chair of that committee, Representative Nunes, underscore how serious the situation is. We definitely have to get to the bottom of what happened. That fact only emphasizes how seriously the Senate needs to consider slowing down, setting aside, pressing the pause button on the debate regarding the nomination of Judge Neil Gorsuch. Until the FBI and Congress complete the investigation of these contacts, the ongoing coverup confirming President Trump's lifetime appointment to the Court is premature. On top of possible collusion, it is also worth remembering why it is so troubling that President Trump has gushed about Putin's leadership while turning some of our longest and most strategic relationships on their heads. Putin operates a repressive regime, one that cracks down on freedom of expression and whose opposition leaders frequently perish in mysterious and suspicious ways. Someone carrying an item up to their apartment magically falls and dies or is shot down near the Kremlin or a whole host of different ways. The actions of Putin are not the actions of a friend of America. The actions of Putin are not actions that reflect the values shared by the American people. They are not values honored in our tradition. They are not values embedded in our Constitution. The Putin strongman model is very contrary to our system of government. There are no checks and balances. Those who rise up in the streets are likely to be cut down in the streets. Those who cry out for justice are likely to be silenced. Those who march to improve things may well find themselves behind bars. That is Putin. That is Russia. We should not have a significant improvement in our relationship with Russia unless there is a vast improvement in the fundamental values of a free and fair society within Russia. There is an enormous amount of evidence that the Trump campaign was familiar with and in conversation with Russia. If we pursue the investigations aggressively, we will find whether there was collusion. Paul Manafort, a Republican strategist and longtime Washington operator, joined Trump's campaign team last spring. He was elevated to be campaign manager after Corey Lewandowski was fired in June. But with just 3 months to go until the Presidential election, Manafort resigned amid questions over his campaign role and his extensive history of lobbying overseas, particularly in Ukraine, where he represented a pro- Russian interest. Manafort also worked as an adviser on the Ukrainian Presidential campaign of Viktor Yanukovych and his Party of Regions during the same time span--from December 2004 until February 2010, the Ukrainian Presidential election--even as the U.S. Government opposed Yanukovych because of his ties to Russian leader Vladimir Putin. Manafort was hired to advise Yanukovych months after massive street demonstrations, known as the Orange Revolution, overturned Yanukovych's victory in the 2004 Presidential race. According to a 2008 U.S. Justice Department annual report, Manafort's company received about $64,000 from Yanukovych's Party of Regions over a 6-month period for consulting services. That was in 2008. In 2010, under Manafort's tutelage, the opposition put the Orange Revolution on trial, campaigning against its leader's management of a weak economy. Returns from the Presidential election gave Yanukovych a narrow win over Prime Minister Yulia Tymoshenko, the leader of the 2004 demonstrations. Yanukovych owed his comeback in the Presidential campaign to a drastic makeover of his political persona, and this makeover is credited to Paul Manafort. From 2007 to 2008, Manafort was involved in investment projects with Russian oligarch Oleg Deripaska and Ukrainian oligarch Dmitry Firtash. The Associated Press reported that Manafort negotiated a $10 million annual contract with Deripaska to promote Russian interests in politics, business, and media coverage in Europe and the United States. We are talking about 2005. In 1980, Manafort, along with Roger Stone, were founding partners of the Washington, DC-based lobbying firm Black, Manafort, Stone and Kelly. Roger Stone--what do we know about him? He is a former Trump adviser, a self-described master of political dark arts, and has been labeled as the dirty trickster of delegate fights. He has worked with the campaigns of Richard Nixon and George H.W. Bush and Ronald Reagan. Stone repeatedly claimed throughout the final months of the 2016 campaign that he had back-channel communications with WikiLeaks founder Julian Assange, and he knew of the forthcoming document dumps, which disseminated materials that were hacked by Russia from Democratic computers. He admitted in March 2017 that during August of 2016, he had been in contact with Guccifer 2.0, who was believed to be tied to Russian intelligence and was claimed to be behind the hack of the DNC. August 10, Stone tells a local Republican Party group in Florida: I have actually communicated with Julian Assange. August 12, Stone says on a podcast that he believes Assange has emails deleted by Clinton aides Huma Abedin and Cheryl Mills. He adds that he knows he has them, and they should be expected to drop in the next 3 months. ``In fact, I know [Assange] has them,'' Stone said, ``and I believe he will expose the American people to this information within the next 90 days.'' August 14, Stone engages in direct messages with the DNC hacker, Guccifer 2.0, according to direct messages reported by the Washington Times and the Smoking Gun. Stone tells the hacker he was delighted that Twitter had reinstated his account. A day later, Stone says that he has communicated with Assange, and forthcoming material will be related to the Clinton Foundation. A day after that, Stone tells radio host Alex Jones that he has back- channel communication with Assange, who has political dynamite on the Clintons. August 18, Stone says in an interview on C-SPAN that he has been in touch with Julian Assange through an intermediary, someone who is a mutual friend. WikiLeaks would later tweet in response: ``We are happy to hear true information from everyone. But so far, we have not heard from Mr. Stone.'' On August 21, Stone tweets that it will soon be Podesta's time in the barrel. Stone later says his tweet was about Podesta's business dealings. On the same day, Stone denies that Guccifer 2.0 is connected to the Russians. August 26, in an interview with Breitbart radio, Stone says: I'm almost confident Mr. Assange has virtually every one of the emails that the Clinton henchwomen, Huma Abedin and Cheryl Mills, thought that they had deleted, and I expect that he's going to drop them at strategic times in the runup to this race. On the 29th, Stone says on local Florida radio of Assange and the Clinton Foundation: ``Perhaps he has the smoking gun that will make this handcuff time.'' September 16, Stone says on Boston Herald radio that he expects Assange and WikiLeaks to ``drop a payload of new documents on a weekly basis fairly soon. And that of course will answer the question of exactly what was erased on that email server.'' Assange has been in touch with them through an email intermediary. October 1, Stone tweets: Hillary Clinton is done. You go back to the comments he was making, where he seemed to know what was going to happen before it happened, and we saw it happen. It clearly suggests, from this public record, the appearance there--it is hard to imagine with these conversations that there wasn't some form of collaboration about what was going on. That is why we need to get to the bottom of it. Was there collaboration? Those kinds of comments are deeply, deeply disturbing. We have Carter Page, who worked for 7 years as an investment banker at Merrill Lynch. His biography said--took him to London, New York, and Moscow for 3 years in the mid-2000s before Trump last year listed him as a foreign policy adviser in response to a question from the Washington Post. Page has regularly espoused views at odds with much of the foreign policy community in Washington in particular, questioning the U.S. approach toward Russia and calling for warmer relations between the two countries. He has expressed views in support of Vladimir Putin and harshly criticized U.S. policy. He is frequently quoted on Russian television as a famous American economist. In September of 2016, U.S. intelligence officials investigated alleged contacts between Page and Russian officials subject to U.S. sanctions. Page rejected the accusations and said he would take a leave of absence from the Trump campaign. In January of 2017, Page's name appeared repeatedly in the leaked Donald Trump-Russia dossier containing contract intelligence from the former British intelligence operative Christopher Steele in the employ of a private American firm. In January of 2017, Page is under investigation by the FBI, CIA, NSA, and ODNI. Page contends that he has done nothing wrong. In February 2017, Page said that he had not met with Russian officials in 2016, but 2 days later, he appeared to contradict himself and stated he did not deny news reports that he met with Russian Ambassador Sergey Kislyak during the Republican National Convention in Cleveland, OH. This month, Page was called on by the Senate Intelligence Committee investigating the links between the Trump campaign and Russian dealings. Michael Flynn attended a gala in Moscow in honor of Russia Today, now known as RT, a Russian Government-owned English language media outlet on which he made semiregular media appearances as an analyst after he retired from U.S. Government service. Flynn was paid $45,000 by Russia Today for the 2015 talk and provided an all-expense-paid 2-day trip paid by Russia. National Security Adviser Michael T. Flynn was forced to resign once it was revealed that on December 29, 2016, the day Obama announced sanctions against Russia, Flynn discussed the sanctions with the Russian Ambassador to the United States. Flynn had earlier acknowledged speaking to the Ambassador but not discussing the sanctions. The New York Times, on March 2, reported that Kislyak had met with Michael Flynn and Jared Kushner in December 2016 to establish a line of communication with the Trump administration. This is just a series of contacts. What we need to know is: Did these contacts involve communications for coordinating campaign tactics? Did Russia release information on Hillary at a time suggested by the Trump campaign? Was there any form of coordination? That is why we need this robust investigation now. We have the investigation in the House Intelligence Committee. That investigation has sputtered and has all the appearance of going nowhere, and it has been compromised by the comments of the House chair. There is another investigation on the Senate side, with Senator Burr as the chair and Senator Warner as the ranking member, and they are working pretty well together. We hope that continues. I know that they believe that we have a responsibility to get to the bottom of this issue, and I know there are many Members on both sides of the aisle who put a high priority on getting to the bottom of this issue. I applaud the work the Senate committee is doing, but we all know that the Intelligence Committee is a hard place to get information out of. For example, when the torture report was completed, it was extraordinarily difficult to get that into the public's hands. This should not be the only strategy. Certainly, we have another strategy with the FBI, and we had the briefing on the Hill. The FBI Director, a week ago Monday, came to speak to the House, and he shared a fair amount in terms of confirming that the investigations are underway, and it is important that the FBI use its talents and assets and connections to find out what really went on in order to get to the bottom of this. I would like to also see us have a special prosecutor who pursues this, who puts together a team and specifically drills in to get to the bottom of this. I would like to see a bipartisan commission--a Watergate-style commission--so that some of this could be done in the public realm and not hidden behind the veil of classifications. Of course, I would like to see a robust investigation by the press--by the fourth estate. If all of those things happen or if some do not happen but the others are done well, we will get to the bottom of this--and the sooner the better. I am going to continue by sharing some comments that the Senate Democratic leader made in a floor speech on February 16. These are excerpts of Senator Schumer's floor speech: The recent reports about General Flynn detailing constant high-level contact between members of the Trump administration and the Russian Government raise serious doubts about this administration's competence in the realm of foreign policy and national security and even graver doubts about the sanctity of our democratic process. We do not know all the facts, and in the coming days and weeks, more information may well surface about these disturbing revelations, but we already know that something is rotten in the state of Denmark. All of us can agree that right now what are required are the facts. We have to evaluate the scope of Russia's interference in our election and assess if agents of their government have penetrated to the highest levels of our government. Throughout the process, we have to avoid jumping to conclusions or engaging in wild speculation. We must seek the truth, the whole truth, and nothing but the truth. Once we have the facts at our disposal, Democrats and Republicans alike can debate what to do next. Senate Democrats are faithfully committed to keeping this issue above partisan politics. The gravity of this issue demands nothing less . . . I am very hopeful the other side wants to get at all the facts, just as our side wants to get at all the facts. This is an issue on which patriotism must prevail over politics because before we are Democrats or Republicans, we are Americans, with respect for the rule of law. Those are excerpts of Senator Schumer's floor speech on February 16, and I certainly, passionately, agree with him. This investigation of what went on in the election is one in which patriotism must prevail over politics because, above all, we are Americans with respect for the rule of law. I will add that, as leaders in America, here in this Senate Chamber, we have a huge responsibility to get to the bottom of this, to urge forward the investigation by the Senate Intelligence Committee to make sure the results, as appropriately compiled and vetted to protect confidential sources, are shared with the American public so that the American public can know what transpired and so that we, then, act on that information. If that information shows that there have been treacherous acts of collaboration with the Russians to undermine the integrity of our elections, we must pursue it to the full extent of the law. This next excerpt is from Senator Schumer's speech, on March 6, which called for a special prosecutor: So my Republican colleagues should understand that what they know in their hearts is the right thing to do. Do a strong, impartial investigation and get to the bottom of this. That is where the American people want them to go. The American people disagree with President Trump and want a thorough and impartial investigation--even 43 percent of the Republicans. They are right. A special prosecutor is the best way to ensure that an investigation proceeds impartially for several reasons. In a conversation with POLITICO, our Democratic leader said on March 21: You can bet if the shoe were on the other foot and a Democratic President was under investigation by the FBI the Republicans would be howling at the Moon about filling a Supreme Court seat in such circumstances. It is unseemly to be moving forward so fast on confirming a Supreme Court Justice with a lifetime appointment while this big, gray cloud of an FBI investigation hangs over the Presidency. The Washington Post notes it is unseemly to confirm Gorsuch amidst an FBI probe of the Trump campaign. I would like to point out that it is the height of irony that Republicans held the Supreme Court seat open for nearly a calendar year while President Obama was in office but are now rushing to fill the seat for a President whose campaign is under investigation by the FBI. It is unseemly and wrong to be moving so fast on a lifetime appointment in such circumstances. On March 21, a report on the Hill by Jordain Carney said: Senate Minority Leader Charles Schumer is urging Republicans to delay a vote on Neil Gorsuch, President Trump's Supreme Court nominee, because of an ongoing investigation into potential ties between Trump officials and Russia. ``It is unseemly to be moving forward so fast on confirming a Supreme Court Justice with a lifetime appointment while this big, gray cloud of an FBI investigation hangs over the Presidency,'' the Senate's top Democrat said, echoing language used the day before by Republican House Intelligence Committee Chairman Devin Nunes. Schumer's request, which is unlikely to gain traction with Republicans, comes as Gorsuch is into his second day before the Judiciary Committee . . . but the New York Democrat argued that it was ``the height of irony'' that the Republicans blocked then-President Obama from filling the Supreme Court seat left vacant by Antonin Scalia's death . . . but are now rushing to confirm Gorsuch. Just before I started speaking yesterday evening, the majority leader came to the floor, gave a short speech, and said he was filing a petition to close debate. That is the first time in U.S. history that a petition to close debate has been filed on the first day of a Senate debate. Generally, the Senate will, if people have more to say, go for many days--go for weeks--without somebody's filing a petition to close and shut off debate. Why are we rushing into the completion of this nomination in this extraordinarily inappropriate, condensed, accelerated fashion when there is so much to consider? This is not a nomination in normal times. This is a nomination for a seat that has been stolen from one President and delivered to another. It is the first time it has happened in U.S. history. This is a nomination during a moment in which the President making the nomination has a team that is under investigation for potentially conspiring with the Russians to change the outcome of the Presidential election. That is the big cloud that must be dispelled and resolved and should be resolved before this conversation on the floor continues. This is a nominee who comes from the far right of the spectrum, with case after case after case--the frozen trucker case, the autistic child case. There is case after case in which he finds a way to turn the law to do the opposite of what the law was written to do. As I have read through those cases over the course of the nearly, roughly more than 11 hours, you will see the pattern of decision after decision being made for the powerful and the privileged, of his writing a dissent from the majority that says this decision by a labor board was very reasonable and in compliance with the law because it exactly fits the law. Yet Neil Gorsuch wrote a dissent because he wanted to find a way to find for the powerful organization. Here we have these three big factors. This is a time when there should never be a petition to close debate because people have a lot to say, and there are 100 Members of this body. When they expend their energies and they are through with their conversations, then ask the question: Are people ready to close debate? At that moment: Are there 60 votes for this nominee? This effort to ram this through not only does not fit the tradition of the Senate or fit the circumstances, but it raises a question: Is there an effort to put this through before information comes to the surface that might change the outcome? At 11 o'clock last night, we got this posting--or, I guess, it was posted at 11 p.m. and we got it at about midnight here on the floor--of the article by POLITICO. It laid out a side-by-side comparison of language that Gorsuch had used that was, essentially, lifted from other people's writings without attribution. Several experts have said that this meets the standards of plagiarism because the language was lifted without attribution, and that is what plagiarism is. Others said maybe not. Maybe it does not quite meet that standard. Is this one of the reasons that we are trying to shove this nomination through in such an extraordinary way when it is under such a cloud to begin with? Is there more information like this that needs to come out? This is a guarantee that Senators would vote against closing debate if there is the possibility that this is trying to be done fast--to have a vote--before significant information is put into the public realm. (Mr. GARDNER assumed the Chair.) The New York Times had an article on March 29, 2017: ``Senate Intelligence Committee Leaders Vow Thorough Russian Investigation'': Senators leading the investigation into Russia interference in the November election pledged on Wednesday to conduct an aggressive inquiry, including an examination of any ties to President Trump, as they sought to distance themselves from the flagging efforts in the House. In a conspicuous show of bipartisanship during a fractious time at the Capitol, the top Republican and Democrat on the Senate Intelligence Committee vowed to forge ahead by interviewing key players connected to Mr. Trump and pressing intelligence agencies to provide all relevant information. But their display of collegiality seemed intended primarily as a contrast to the explosive and often bewildering statements in recent days from the Republican chairman of the House Intelligence Committee, Representative Devin Nunes of California, whose perceived closeness with the Trump White House has raised doubts about his ability to conduct an impartial investigation. The chairman of the Senate Intelligence Committee, Richard M. Burr, a Republican from North Carolina and a supporter of Mr. Trump during the campaign, suggested on Wednesday that he would not retreat from a process that could damage the reputation of a Republican President. ``This investigation's scope will go wherever the intelligence leads,'' Mr. Burr said during a rare joint news conference. Asked later whether he had encountered any direct links between Mr. Trump and Russia's interference, Mr. Burr was stern. ``We know that our challenge,'' he said, ``is to answer that question for the American people.'' The Senate investigation amounts to a credibility test for Republicans under the Trump administration--a chance to prove their willingness to ask uncomfortable questions of a Republican President, even if the answers might weaken his or the party's standing. Democrats are skeptical. But they are also mindful that the Senate most likely remains their best hope on Capitol Hill for gathering information, making them disinclined to abandon the Senate Intelligence Committee's investigation. The F.B.I. is also investigating. On Wednesday, Mr. Burr and his Democratic counterpart on the committee, Senator Mark Warner of Virginia, offered some evidence of what they had reviewed so far, saying they had begun to schedule the first of at least 20 interviews. Mr. Warner drew attention to reports of perhaps 1,000 internet trolls in Russia generating fake news stories and targeting them in swing States like Wisconsin, Michigan, and Pennsylvania. ``Russia's goal, Vladimir Putin's goal,'' said Mark Warner, ``is a weaker United States.'' Mr. Burr noted that the Russians were now ``actively involved'' in the French elections. On Thursday, the committee will hold a public hearing on Russian influence on campaigns broadly. The two also left little doubt that they viewed the House's unruly process as an afterthought, one that should not reflect on their own efforts. ``Let me set the ground rules real quick,'' Mr. Burr said, ``before taking questions. We will answer anything about the Senate Intelligence Committee's investigations. We will not take questions on the House Intelligence Committee.'' Mr. Burr could not suppress a smirk. Mr. Warner laughed outright. But the drama in the House has already complicated the Senate's task, according to Senate committee members, leading the public to question congressional inquiries across the board. ``I worry that the chaos on the House side has affected the public's view on whether Congress can credibly investigate this matter,'' said Senator Susan Collins, a Republican from Maine and a committee member. ``I believe the answer to that is still yes, and the Senate is the place.'' Lamenting the ``debacle'' in the House, Senator Kamala Harris, Democrat of California and another committee member, said she believed ``the public is now shifting to us.'' The Congressional investigations are not related, but their focuses overlap, leaving the Senate panel to defend itself in the face of Mr. Nunes's assorted claims. While a vast majority of Republicans in the House have stood by Mr. Nunes amid calls for him to recuse himself, his furtive maneuvering--including bypassing the committee to brief the White House about relevant intelligence--has placed House committee members in a difficult spot. And at least one Republican lawmaker, Representative Charlie Dent of Pennsylvania, suggested on Wednesday that the Senate should take the lead on Congress's investigation into ties between the President's orbit and Russia. The Senate majority leader has long resisted calls for a special prosecutor or select committee, saying the Senate can do the job through regular protocol. On the House side, a string of perplexing decisions by Mr. Nunes has threatened to unravel the panel's investigation altogether. Last week, he abruptly announced that he had obtained information indicating that people associated with the Trump transition may have ``incidentally'' been caught up in legal surveillance of foreign operatives. He also bypassed the committee's top Democrat, Representative Adam B. Schiff of California, to brief Mr. Trump. The President seized on the information, misleadingly, as evidence for his thoroughly debunked claim that President Barack Obama had wiretapped Trump Tower--an allegation dismissed not only by senior law enforcement officials like the F.B.I. Director James Comey, but also by the heads of the House and Senate investigations, including Mr. Nunes. Another obstacle to bipartisanship came on Monday, with the revelation that Mr. Nunes had viewed what he characterized as ``dozens'' of reports containing classified information on the grounds of the White House. Democrats fumed, their suspicions fueled by speculation that the source of Mr. Nunes's information was a Trump administration official and that Mr. Nunes may have even coordinated with the White House. While Mr. Nunes defended him by saying he needed to be at the White House to view the sensitive documents in question, one can peruse sensitive information at the Capitol and at other spots around Washington. The story of the House investigation melting down continues, and it really emphasizes how important the Senate investigation is. I have been very impressed by Senator Burr and Senator Warner working together to pursue that investigation. I feel that more needs to be done. Yes, the FBI needs to investigate, and the Senate Intelligence Committee, and the press, but we should also have a special prosecutor. We should also have a bipartisan commission. But if each part of this puzzle pursues their work aggressively and in good faith, we may get to the bottom of what went on. It is so important to hold people accountable, and if traitorous crimes have been committed, they need to be pursued to the full extent of the law. The article goes on: Democrats have also chafed at Mr. Nunes's shuffling of the hearing schedule. Earlier this month, with Mr. Schiff by his side, he announced plans for three former officials to testify, a group that would include Sally Q. Yates, who briefly served as acting Attorney General and alerted the administration that Michael Flynn, Mr. Trump's former National Security Adviser, appeared to have lied about his contact with Russian officials. Last week, Mr. Nunes scrapped that public hearing, arguing that the committee first needed more time to question intelligence leaders. But on Tuesday he said this hearing had been postponed as well--as the Washington Post reported that White House officials had tried to stymie Ms. Yates's testimony. Democrats have accused Mr. Nunes of trying to stall not only the investigation but also the committee as a whole. Mr. Warner said on Wednesday he would ``like to see Ms. Yates at some point'' before his committee. At the same time, the Senate investigation has not been blemish-free. Well, this can be summed up by saying that each of them are saying that they are partners and they are working on this together. And I urge them to continue that work aggressively. ``I'll do something I've never done: I'll admit I voted for him,'' Mr. Burr said of Mr. Trump. ``But I've got a job in the United States Senate.'' And we have a job to address. We are here at this critical moment, wrestling with what to do with this stolen Supreme Court seat, knowing that if we confirm a nominee to this seat and confirm and complete the theft, it will damage the Court through the rest of our lifetimes. It will set a precedent that will cause more turmoil, more politicization. It will call into question every 5-to-4 decision of the Court. That is our responsibility, to figure our way out of this. One of the articles I read earlier suggested a path out of this. It said to keep this seat empty. Set this aside until there is a second seat, and then the nominee, Merrick Garland, who should have been considered for the first seat, would be considered, and the second nominee would be whoever President Trump wants to put forward, and maybe that is the same nominee we have now. Maybe it is Neil Gorsuch; maybe it is somebody else. But the point is you eliminate the stolen seat syndrome. Maybe there are other pathways out of this, but proceeding to the completion of this week, in confirming Neil Gorsuch, that is where this week ends. It is truly deeply damaging to the Supreme Court for the balance of our lives. Let us not be partners to such a destruction of a key branch of our government. The damage won't just be to the Supreme Court. It is also to this body. Because once this body conspired in the theft, the wounds here are deep and will continue to cause tremendous acrimony as we go forward, and it will lead to future acts in the Senate--perhaps balancing out the first theft with a second theft--and so on and so forth, in which nobody wins. So let us come to our senses and not have this week end in the manner in which it has been predicted that it will. NPR wrote, or it has a piece done by Philip Ewing: ``4 Unanswered Questions About the FBI's Russia Investigation,'' March 20. FBI Director James Comey lit the fuse Monday on a political time bomb and no one--including him--knows how long it will take to burn or what kind of damage it may cause when it goes off. Comey confirmed to Members of Congress that his investigators are looking into possible collusion between the campaign that elected President Trump and the Russian government. In fact, he said, the FBI has been doing so since last July. The signs had been there, from press reports to the announcement by Attorney General Jeff Sessions that Sessions would recuse himself from any such probe. Now, Comey's disclosure to the House Intelligence Committee removes all doubt that the FBI believes there is sufficient evidence to look into the connection between Trump's one-time political aides and the Kremlin. The case that Russia interfered in the presidential campaign has been made. The U.S. intelligence community laid out an unclassified version in December, and then President Barack Obama responded by expelling a group of Russian spies and sanctioning some of its key officials. But details about the role Trump's team might have played in the making of that mischief still are murky, and Monday's hearing did not include much explosive new information. In fact, the panel's chairman, California Representative Devin Nunes, who served on Trump's transition team, and his fellow Republicans, spent as much of their time as they could drawing the focus away from the Russian collusion narrative. The real outrage, Republicans argue, is the leaking of classified information to the Washington Post and other newspapers, especially the identity of former lieutenant general Mike Flynn as having been swept up in U.S. Government surveillance of Russian ambassador Sergei Kislyak. I am sure I will be corrected on that later, with the correct pronunciation. Flynn resigned after a brief stint as Trump's National Security Adviser and has since retroactively registered as a foreign agent for his work representing Turkish interests. Democrats revealed on Friday that Flynn had also taken more than $50,000 in payments from Russian government entities. Democrats, led by ranking member Adam Schiff, also of California, used their time on Monday to put Trump and the Russians together as closely as possible, including in an extended opening statement by Schiff that laid out his theory of the case. Much of Schiff's statement, however, relied on information that is already publicly available, which has been called into question. Monday's session did not include major new details about the alleged ways that the Trump camp may have worked with the Russian intelligence services. But it did raise new questions about the imbroglio--some of which lawmakers may answer at a second session now scheduled for March 28, and some of which might not be cleared up until the FBI announces the results of its investigation. The first question: 1. How much evidence is still to be discovered? And how reliable is what's now public? Schiff crafted a narrative about the Russians' first exploration of the presidential candidates to a critical period from July to August of 2016. If Moscow began by trying simply to learn more about the potential next U.S. president, it shifted to trying to hurt the likely Democratic nominee, Hillary Clinton, and then helping her opponent--or so the argument goes. Schiff relied on information that has appeared in press reports and some that appears in a controversial dossier passed from a former British intelligence officer to Comey by Sen. John McCain, R-Ariz. NPR and other news organizations have refrained from reporting such details because of the unknown providence of the dossier--but does Schiff's use of it in the public hearing indicate that at least some of the information has been verified? The Democrats' case also rests on conversations between Trump advisers and people connected to the Russian military intelligence service, the GRU, or other top Russians. But how much more detail exists about what was said in those meetings? How much effort are congressional or FBI investigators making to interview Trump's campaign advisers? So the first question in the NPR report is, How much evidence is still to be discovered and how reliable is what is now public? The second question in this report: 2. Might Trump aides have colluded with Russia without knowing it? One new thread that emerged from Monday's hearing came as part of an exchange between Comey and Illinois Democrat Mike Quigley, who asked whether it's possible for Americans to help a foreign power and not know about it. Yes, Comey answered cautiously--an American might give information to someone he legitimately believes is a Chinese researcher and isn't aware is actually a Chinese intelligence officer. Or an America might fall in love with someone and not realize he or she is in a relationship with a foreign agent: ``Romance could be a feature,'' he said. That could explain denials by people at the center of the Trump-Russia imbroglio, including former Trump campaign manager Paul Manafort, who resigned after reports about his connections to pro-Kremlin government factions in Ukraine. The New York Times referred to Manafort in a story in February about U.S. intelligence officers documenting many alleged connections between the Trump camp and Russians. Manafort called the report ``absurd'' and told the newspaper: ``It's not like these people wear badges that say, `I'm a Russian intelligence officer.' '' Manafort's comment caused head-scratching at the time it appeared, but Comey and Quigley's exchange on Monday created the prospect for a story about Russia not necessarily using Trump campaign aides as agents, but dupes. The third question in this NPR article: 3. What did Trump know--and when did he know it? If Comey's investigation results in no charges or no new information about ties between Trump's camp and Russia, the White House would get rid of an albatross that has been around its neck for months. But if the FBI charges former Trump campaign officials or reveals links between the Trump camp that haven't already been aired publicly, that could escalate quickly and land the president or his top campaign aides in hot water. Trump never retreats and never apologizes and so far has mounted a brash defense. He flits between sometimes acknowledging the Russian mischief during the presidential race and sometimes dismissing it as a fiction created by Democrats to excuse their loss. That strategy has continued to be workable, and Republican aides on Capitol Hill have shown continued willingness to carry water for the White House in responding to press reports or handling inquiries like those on Monday. But charges against Trump aides, or new revelations about collusion between the campaign and Russian agents, would change all that--and fast. Democrats may never forgive Comey for revealing just before Election Day that the FBI had resumed inquiries into Hillary Clinton's private email server, which Clinton and Democrats say threw a close election to Trump. Now the president, the White House and their Republican allies on Capitol Hill are under a similar Sword of Damocles. The fourth question: How will Russia respond to the investigations and their outcome? Comey, National Security Agency Director Michael Rogers and other top U.S. intelligence officials have taken care not to say whether they believe Russia succeeded in influencing the outcome of the 2016 election--only that they're confident Moscow conducted an influence campaign. Will Russian President Vladimir Putin turn out to have invested wisely or to have been the dog that caught the car? If Putin wanted the U.S. to relax the Obama-era sanctions imposed after Russia's invasion of Ukraine, that ship may have sailed--the scrutiny of Trump's connections to Moscow may have now made even the appearance of any deal impossible. And American military deployments in Eastern Europe, including of armored units along NATO's frontier with Russia and ships with aircraft in the Black Sea, have continued. None of this means, however, that Putin is finished meddling in American politics, Comey warned. He told members of Congress on Monday that the Russians, for their own purposes, likely are satisfied with their work--having sowed confusion and undercut faith in the U.S. democratic process-- and may try it again. ``We have to assume they're coming back,'' he said. We have to assume they are also working to undermine the elections in other democratic countries, and we need to be working with our allies and fellow democracies to fully understand and thwart this Russian strategy of undermining the foundation for our democratic Republic's elections. The NPR article raised very good questions--questions to which we don't have answers. But just the breadth of the questions shows how significant this situation is. I understand the Sun is coming up behind the Supreme Court. I was struck just how beautiful the weather was yesterday, while the weather inside this building was so dark and gloomy. Mother Nature gave us a beautiful, beautiful day. The partisan politics gave us a very, very ugly setting here in the Senate Chamber as we started debating over a nominee nominated to fill a seat which did not open up under President Trump's watch and which he has no right to propose a nominee. This is a seat stolen from the Obama administration, delivered to President Trump. Wouldn't it have been something if President Trump said: I talked a lot about bringing this country together, and that starts by honoring our institutions. So I am going to heal this rift. I am going to end this theft by nominating Merrick Garland. Sixteen times--the President could have said--16 times in the history of our country, there has been an open seat during an election year on the Supreme Court. And we already know the past; that is, 15 times the Senate considered the nominee and either confirmed or rejected them but always considered them--except with Merrick Garland. We are going to heal that damage, the President could have said, and so first we will put forward Merrick Garland. Then when a seat opens legitimately on my watch, I will put forward a nominee I would choose according to the principles I laid out in my campaign. But I am not going to damage the Supreme Court for generations to come by participating in this strategy of packing the Court. If the President had given that speech, that would have been an impressive moment--a moment of bringing this country together, of saying that he is the President not of the Republican Party but of the United States of America, which has these beautiful key branches of government, coequal branches--the executive branch, the legislative branch, the judicial branch--bringing all three of those together in that conversation and saying: What the legislative branch did sets the stage to damage the Supreme Court, and as President, I won't participate in it. I will solve it. I will bring people together. I am the great negotiator. I know how to make a deal. Right now, the only deal is a bad deal that damages all three branches, a deal that was crafted within a few minutes following the death of Antonin Scalia, on the same day the majority leader came to the floor and said: We are going to do something never done before in American history. We are going to steal a seat. Of course, those are not the words he used. His words were: We are not going to have any Senate action on this nominee, the nominee the President will put forward for this seat. If only at that moment the Senate had been the cooling saucer. That is the idea that Washington reputedly put forward, considered to be apocryphal, but it is a nice image that sums up the difference between the House and the Senate--the Senate elected for 6 years, seats rotating every 2 years. And when there are wild ideas crafted in the passion of the moment, the Senate comes along and says: We will bring a little more experience and thoughtfulness. We will bring a little more deliberation, and we will craft something that will strengthen America, strengthen our institutions, not destroy them. But we didn't have that reaction on that day when Antonin Scalia died. Instead, we had not the cooling saucer, but we had the immediate rush to a principle that will do so much damage. And I say ``principle'' only in the context of an asserted argument; that is, an argument that, well, it is an election year, so we really shouldn't consider someone. It should go to the next President. There was no principle behind it and no history behind it. As I pointed out, 15 seats were open during the election year in the history of our country, and the Senate acted on every one until the 16th, when Antonin Scalia died, and within just a couple hours, the majority leader announced that we will do what we never did, and that is, fail to honor the advice and consent responsibility of the U.S. Senate.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise to address the nomination of Neil Gorsuch. I will start by noting that just moments ago the majority leader was on the floor and did something that has never before been done in U.S. history; that is, on the first day--indeed, in the first hours of debate on a Supreme Court Justice on this floor, the majority leader filed a petition, called a cloture petition, to close debate. So here we are on the first day, just hours into the debate, and the majority leader has said: Enough. We do not want to hear any more about this topic. We are going to shut down debate. The rules provide some protection for this, and that is that it cannot be voted on until Thursday. So there is time between now and Thursday for us to air our views. Historically, often debates went on for a substantial amount of time--a week, some for many weeks--with no cloture petition being filed, with no closing of the debate. Certainly, never before has the majority leader shut down debate, filed that petition on day one in his trying to ram this nomination through. This is just a continuation of firsts--first events that do absolutely no credit to this institution, no credit to the Supreme Court, no credit to our Nation. In fact, they pose a substantial danger. It was February 13, a little over a year ago, that Supreme Court Justice Scalia died. Almost immediately, the majority leader indicated that when the nomination came down from President Obama, this Chamber would not exercise its responsibility of advice and consent under the Constitution in that it would not provide an opportunity for Merrick Garland to be able to appear before a committee and answer the questions of the committee members, the questions of Republicans and the questions of Democrats, so that they could assess whether that individual was appropriate to serve in a Supreme Court seat. The majority leader made it clear that there would be no committee hearing and no committee vote and no opportunity to come here directly to the floor, bypassing the committee. In other words, he closed off every opportunity for the President's nominee to be considered. This is the first time--this is the only time that has happened in our Nation's history when there was a vacancy in an election year. What is the essence of this extraordinary and unusual action when this Chamber fails to exercise its advice and consent responsibility under the Constitution? Were we at a time of war, like the Civil War, in which the Capitol at times was under assault? Were we at a moment in which the building was aflame and we had to flee or there was some other significant threat to the functioning of this body? Was there some extraordinary set of circumstances--perhaps a massive storm headed for the Nation's Capital--that led the Senate for the first time in U.S. history to say that it could not take the time to exercise its constitutional advice and consent responsibility? There was no storm. There was no fire. There was no threat. There was no earthquake. There was nothing that would have prevented this Chamber from doing its responsibility. The President has a responsibility under the Constitution when there is an open seat, and that is to nominate. He proceeded to consult with Members on both sides of the aisle, and he nominated an individual, Merrick Garland, who had an extraordinary reputation and who essentially was considered to come straight down the Main Street of judicial thought, with opinions that were neither labeled ``progressive'' nor ``conservative.'' They were straight down the middle. The President made that nomination on March 16, which was a month and 3 days after the seat became vacant, but that was the last action to occur, the last action this Chamber took. A few individuals did courtesy interviews, knowing that it would lead to no committee hearing and no committee vote because the majority team in this Chamber decided to steal a Supreme Court seat. Again, such a theft never, ever has happened in the history of our Nation. There have been a substantial number of seats that have come open during an election year--16. There have been a substantial number of individuals who were confirmed to those 16 seats, and there were individuals who were turned down by this Chamber. Yet, in all of the 15 cases that preceded the death of Justice Scalia, the Senate acted. The Senate exercised its responsibility. But this time was different. This time, the majority said: We intend to pack the Court of the United States of America--not by adding seats to it; that would not work under a Democratic President who could then nominate more individuals--to pack the Court by taking a seat, failing to exercise the responsibility that each of us has under our oath of office of advice and consent, and send it in a time capsule into the next administration, hoping that time capsule would be opened by a conservative President who would nominate someone who was very conservative, indeed, to create a 5-to-4 bias. What was that bias the majority was looking for? It was not a bias toward ``we the people''; it was a bias toward the powerful and the privileged. If you take a look at our Constitution, that initial opening of our Constitution, it does not say ``we the privileged'' and ``we the powerful.'' It lays out a vision of a form of government with checks and balances to be designed to function of, by, and for the people. The majority was afraid that Merrick Garland would be just that kind of judge, one who would call the balls and strikes under the Constitution in support of the constitutional vision of ``we the people.'' They did not want a judge who would call the balls and strikes under our Constitution; they wanted someone who would find a way to twist a case in favor of the privileged and the powerful. Tonight, I will lay out a lot of how they knew that was important both from the perspective of the decisions of the 5-to-4 Court that preceded the death of Justice Scalia and also Merrick Garland's writings and decisions, who found every opportunity to take a case and find some word, find some phrase, find some idea--``to operate is not to operate,'' ``to drive is not to drive,'' which is just language from one case--in order to find some way to find in favor of the powerful over the people. Merrick Garland's nomination lasted 293 days. That is the longest time in Supreme Court history. Now I am going to turn and go through the election-year vacancies because I do not want folks to take my word for the case that the Senate has always done its job. For more than 200 years, it has done its job--until now. Let's take a look at those vacancies. There were a couple of cases--three cases in which there was an election-year nominee and the vacancy occurred after the general election. This happened when President Adams was in office, when President Grant was in office, and when President Hayes was in office. So there was very little time left in the Presidents' terms. In a number of these cases--all three--the President did not change office until March of the following year, but the Senate did not even need those extra 2 months that it had before we amended the Constitution. President Adams nominated John Jay. He nominated him 3 days after the vacancy occurred in the year 1800, and the Senate confirmed the nominee. Here is an interesting twist: The nominee then declined the position. You do not see that very often in the history of the Supreme Court. Then you go to 1872 when President Grant was President. He had a vacancy occur on November 28, which was just a month before the end of the year and a few months before the Presidency would turn over. It was following the election. He nominated Ward Hunt. The Senate acted in a little more than a week, and they confirmed him. They vetted him. They exercised their advice and consent responsibility, and they said: Yes, this individual is appropriate to serve on the Court. Then there was President Hayes. A vacancy occurred in December 1880, and he nominated William Woods. Here we have a nominee being put forward very shortly afterwards and confirmed. Those were the first three. That is the set of cases in which the vacancies occurred after the November elections in election years. Let's look at the next set of vacancies. In these cases, the vacancy occurred before the elections, but the nominees were not nominated by the Presidents until after the elections. So, again, the Senate had a relatively short period of time in which to act. We have the August 25 vacancy of 1828 with President Adams. He nominated quite a few months later--almost 4 months later--John Crittenden. In this case, the Senate acted, but they acted to table the nomination, so he was turned down. Then we have President Buchanan in 1861, who nominated Jeremiah Black. This is a little strange to us because we think of the Presidency as changing in January, but the Presidency did not change until March. The nomination occurred in February, and the motion to proceed was rejected by the entire body. So that nominee was rejected. Then we turn to President Lincoln. The vacancy occurred in the month preceding the election. President Lincoln nominated Salmon Chase just after the election, and the Senate said: There is plenty of time. We will review that. And he was confirmed. Then we can turn to Eisenhower. Once again, the vacancy occurred in the month before the election, just 3 weeks before the election. Eisenhower didn't put a nomination to the Senate until January, but the Senate said: We have a responsibility of advice and consent. We will review it, we will vet the nominee, and we will vote. And they voted to confirm. That is the second set of nominations. Those are 7 of the 16 nominations, so there are still 9 to go. Let's take a look at those. In this case, the Senate had more time to act. The vacancy occurred before the general election. The nomination occurred before the general election. Before I go through them, let me just note that of these nine, the Senate acted to confirm in 1804, to table in 1844, to table in 1852, to confirm in 1888, to confirm in 1892, to confirm in 1916, to confirm again 6 months later--still before the election; two in the same year-- and then finally, in 1932, the Senate confirmed a nomination made in February. On February 15, the Senate acted. Of these nine individuals, we have six who were confirmed and two were tabled. But I have left one out. There is one more nomination that occurred in an election year--just one more--and that happened last year. President Obama--we go back to Antonin Scalia dying on February 13 and Merrick Garland being nominated on March 16. So of those 16 we have looked at, the previous 15, the Senate acted each and every time because they had taken an oath of office to uphold the Constitution that has a requirement that the Senate participate in advice and consent. But this time, no action. No action. No committee hearing, not a set of committee hearings, not even one. No vote in committee. No effort or acceptance of moving the nomination to the committee of the whole, which would be here on the Senate floor. For the first time in U.S. history, the Senate stole a seat from one President in order to pack the Court. I have to tell my colleagues that it isn't just a clever new tactic. It isn't just an excessive exercise of partisanship. This is a crime against our Constitution and the responsibilities of this body. This effort to pack the Court is a major assault on the integrity of the Court. For every 5-to-4 decision that we see in the future, everybody is going to look and say: Five-four. How would that be different? And it will always be different if the stolen seat and the judge who fills it is on the right side because that side would otherwise have lost. The tie goes to the lower court's decision. So what this does is not only change the trajectory of our Constitution from one where it is designed for ``we the people'' to a different vision of government by and for the people--it doesn't just change that trajectory, but it draws into question everything the Court does in the future. Wouldn't it have been incredible if President Trump's nominee-- knowing the constitutional responsibility for the Senate to act, knowing that the Senate seat had been stolen from a previous President, knowing that it would bias all the outcomes of the Court in the future--had stood up and said ``I will not participate in this crime against the Constitution'' and declined the nomination? Wouldn't that have been an act of integrity? Well, we didn't get that act of integrity from President Trump's nominee, so here we are today, on the first day of the Senate deliberation on this nominee, and just moments ago was the first time in U.S. history that the majority has exercised a petition to close debate on the first day of a Senate debate on a Supreme Court Justice. Why is the majority in such a rush? Why is the Senate majority determined to push this through so quickly, in contravention of the tradition of due deliberation on this floor? I know that if the circumstances were reversed and the Democrats had participated in stealing a seat from a Republican President, my colleagues would be screaming on this floor, and they would be fully justified. I am proud that my colleagues on this side of the aisle have never participated in such an assault on our Constitution or a failure to exercise our responsibilities under our oath of office or a theft of a Supreme Court seat or an effort to pack the Court, but if we had, my colleagues across the aisle would absolutely be standing and saying what I am saying tonight--that this is wrong, this is destructive, this is damaging, and we should stop and rethink this. There is really only one nominee who would be a legitimate nominee for President Trump to make--only one way to heal this massive wound, this massive tear and rip in the heart of our Constitution, this massive failure of this Senate body to do its job. There is only one way to heal that, and that is for President Trump to nominate Merrick Garland and for him to get that committee hearing, for him to get that committee vote, for him to get that deliberation here on the floor. Maybe he would be approved and maybe he wouldn't, because that is what we see every time the Senate has acted. It has not always been to confirm a nominee, but it has acted and deliberated and voted and decided, as the Constitution calls upon it to do. That would be a healing of the wound. It would be a healing of the wound if the Senators were to vote the same way they would have voted last year had there been a completely legitimate, ordinary consideration. Then we could go forward without this damage. So I call upon my colleagues, who I know have--each and every one of them--considered that it is their responsibility to build up and strengthen our institutions of government, not to tear them down. Therefore, I call upon them to reverse this deed before the dark act is completed of stealing a seat and packing the Court. I wish to turn to consider another piece of this puzzle. If the seat had not been stolen and we were simply considering President Trump's nominee under ordinary circumstances, what would we find? We would find a far-rightwing judge completely outside of the mainstream. Why is it that throughout its history, this body has honored the rule of having a supermajority needed to close debate on a Supreme Court Justice? It has been to send a message to the President that you must nominate someone who is in the judicial mainstream, not way out in one direction or another, with bizarre findings that would undermine the integrity of the Court, not a pattern of attempting to twist the law so that we the people lose and we the powerful win time after time after time--no, someone in the middle of the judicial mainstream. Well, that is certainly where Merrick Garland was, but that is not where Neil Gorsuch is. He is a lifelong conservative activist, rewriting the law to make it something that was never intended to be. A Washington Post analysis of his decisions that have been considered by the Supreme Court found that he would be, by far, the most conservative member of the Court--not where Scalia was, not where Justice Thomas is, not where Justice Alito is; he would be the most conservative member of the Court, to the right of Justices Alito, Thomas, and Scalia. Quote: The magnitude of the gap between Gorsuch and Thomas is roughly the same as the gap between Justice Sotomayor and Justice Kennedy. In fact, our results suggest that Gorsuch and Scalia would be as far apart as Justice Breyer and Justice Roberts. That is the Washington Post. It is a pretty big gap, way to the right. Let's take a look at some of the cases that lead to this conclusion. There is a case known simply as the frozen trucker case. Alphonse Maddin, the trucker, was fired for refusing to freeze to death. After waiting more than 3 hours with a disabled trailer on the side of the road, he unhooked the trailer and he started up the cab and he went to get warm before he could return to meet the repairman for the truck. Now, why couldn't he just carry the trailer with him? The brakes were frozen. Why was he himself freezing? Because the heater on the truck was broken. He fell asleep for some hours, woke up, and his body was numb. He became concerned about his life, so he unhooked the trailer, went to get warm, and came back to meet the repairman. The Labor Department determined that under the Surface Transportation Assistance Act, he was wrongly fired because that act is designed to say that if you refuse to operate a truck in a fashion that is unsafe for you, the driver, or unsafe for others, you can't be fired for that. Safety comes first. The whole message of the act: Safety comes first. But in this case, Neil Gorsuch dissented. He wasn't writing the majority opinion. He went out of his way to write the minority opinion. The Tenth Circuit upheld the fact that he was correctly operating the truck, leaving the trailer behind. You could ask, Was he operating the full truck or part of the truck? The point is that the Tenth Circuit said yes; the firing was wrong. They upheld the Labor Department under the surface transportation act, and said: He did exactly what the act had intended. You have to restore his job. The Tenth Circuit said yes, absolutely. But Judge Gorsuch went out of his way to write a dissent, saying no. It is completely taking words out of context and twisting them. I encourage others to read it for themselves because it is truly a bizarre opinion, an effort to find a way--some way, some path--to find for the company instead of the trucker, who was protected by the laws written and passed in this Chamber and the House and signed by the President. That is how far out of common sense and theory of the law Neil Gorsuch is. Let's turn to a case often referred to as the autism case, Thompson R2-J School District v. Luke P. This case says a great deal because in this case Judge Gorsuch tried to rewrite a law referred to as the IDEA law--Individuals with Disabilities Education Act--to effectively invalidate the law. The law written here was to ensure that individuals with disabilities were provided an education by the school district, not babysitting but an education. Neil Gorsuch rewrote that law to say that babysitting is OK. Despite years of special education in a public school, Luke P. wasn't showing any progress at home. His parents enrolled him in a private school that specializes in autistic children, where he made advances-- because the school district was only babysitting him. They fought to get the school district to reimburse them. Gorsuch ruled in favor of the school district. The standard he put forward was the standard that babysitting is OK, even though the law was written to do the opposite. This decision that Gorsuch wrote is so far out of the mainstream, it is so far out of common sense, it is so contrary to the law written here in this Chamber that the Supreme Court--yes, our Supreme Court, our eight-member Supreme Court--proceeded to say, 8 to 0: That is absurd and wrong, Neil Gorsuch. And they reversed him. When have we had a nominee reversed 8 to 0? When have we had cases like the frozen trucker case and the autistic child case, where he went to great lengths to find for the powerful over the individual? We can turn to the Utah en banc request in a case called Planned Parenthood Association of Utah v. Herbert. ``En banc'' means that the entire bench hears a case. Neil Gorsuch was such an activist, so committed to undermining an organization--Planned Parenthood--that he took the extreme step of initiating, himself, an en banc review of a decision to block a Utah defunding effort. Governor Herbert of that State had used the cover of false and misleading videos to strip Utah's clinics of their funding. The Governor later made clear in testimony that he was in fact punishing Planned Parenthood for its constitutionally protected advocacy and services and that the organization had not done anything wrong. The Tenth Circuit granted a preliminary injunction against Utah for violating the organization's--Planned Parenthood's--constitutional rights. The Tenth Circuit decided this, but Neil Gorsuch--ever the activist judge, rewriting law to make it say the opposite of what was intended--sought to have a review by the entire bench. Let me explain, that is not normal. Other people may call for an en banc review because they don't like the outcome, but to have a participating judge on the Tenth Circuit initiate it is unusual. It is a message to the world: Everyone, pay attention to me. I am an activist, far-right judge, and if you like that--someone who is going to find for the powerful and the privileged over ordinary people--pay attention. That is who I am. It is kind of like trying out for a future Supreme Court opening. Gorsuch's entire adult life has been a mission to revoke a lot of the norms we have come to embrace in our pursuit of the transitions in our society and in our government as we pursue that constitutional vision of equality under the law, protections to vulnerable populations, to workers and to kids and to women and to minorities. But Neil Gorsuch doesn't like that arc of seeking to provide the protections our constitutional vision laid out. As far back as college, he was an ideological warrior who championed a severely reactionary worldview. In a conservative newspaper article, he characterized efforts to fight racism as ``more a demand for the overthrow of American society than a forum for the peaceable and rational discussion of these people and events.'' That is a very strange way to characterize efforts to fight racism. Racism, discrimination, is to slam the door of opportunity on American citizens because of their gender, because of their race, because of their ethnicity, because of their sexual identity--slam the door and disrupt that opportunity for each and every citizen to be treated equally under the law. He also used the opportunity to advocate for social inequality, saying that ``men . . . of different abilities and talents to distinguish themselves as they wish, without devaluing their innate human worth as members of society,'' and arguing that a responsible system required a governing class of men of exceptional political ability to make the big decisions for society. Well, there is not much equality and opportunity in that statement. As a judge, in case after case, he finds expansive rights for corporations at the expense of their employees, consumers, and the public interest. We have talked about the frozen trucker case and the autistic child case. There is also the electrocuted mine construction worker case. A worker started at a project a week after it begun and wasn't trained on how this should be done. It was a training that was really required because of the highly dangerous circumstances. When you are operating equipment near power lines, that is just a setting that everyone in the construction industry knows is extraordinarily dangerous. If you connect that equipment to the power line, perhaps somebody has their hand on the side of the equipment, and the next thing you know, they are electrocuted. The worker mistakenly brought a piece of equipment too close to that overhead power line, and it was the worker himself who was electrocuted and killed. The Occupational Safety and Health Review Commission fined the employer for not properly training the worker under these dangerous circumstances. The Tenth Circuit took a look at it and said: Yes, the company failed to do the proper training, and the result was that someone lost their life. But Judge Gorsuch dissented. He said that there was no evidence the company had been negligent. Really? Failure to train in a highly dangerous situation that results in loss of life--there is no problem there. Why should we require companies to train people in dangerous circumstances? Again, there was a complete lack of common sense, a determination to overturn what a review board had found, what the circuit court had found. We can turn to the Hobby Lobby case. In this case, Neil Gorsuch found that closely held, for-profit corporations have the right to choose the contraception coverage, or lack thereof, for their employees if doing so conflicted with the corporation's religious beliefs. Now, we didn't actually have corporations--in the sense that we have them now--when our Nation was founded. There were some charters, but not the modern corporation in the sense that we have. Yet Neil Gorsuch said: We will just give this corporation personhood, and we will let the corporation exercise religious beliefs that overrule the religious beliefs of the individuals. But it was the individuals the Constitution was written to defend. It was the individuals' religious beliefs the Constitution and the Bill of Rights were laid out to protect--not a corporation. But in a never-ending quest to find for the corporation, to find for the powerful, to find for the privileged, Neil Gorsuch twisted the law, found that path, and laid it out. In writing a brief as a lawyer in 2005, Neil Gorsuch urged the court to ignore the statutory and legislative history of the Securities Exchange Act, advocating that the court limit the ability of those defrauded by corporations to band together to seek redress. This really goes to the difference between ``we the people'' and ``we the powerful.'' We have a nominee before us right now who doesn't like the idea of individuals being able to operate with a class action suit against the predatory actions of a powerful corporation. In an article about the case, he launched into an attack on the lawyers for providing the ability for individuals to challenge the very powerful corporation, and he said these are frivolous claims--frivolous claims--that take an enormous toll on the economy. They put a burden on every public corporation in America. I will quote: ``frivolous claims that impose an enormous toll on the economy, affecting virtually every public corporation in America at one time or another and costing business billions of dollars in settlements every year.'' He didn't like this burden on corporations to respond when they were challenged for predatory practices. Often, the transactions between a company and an individual are quite small. Maybe they involve a monthly fee to access telecommunications services. Maybe they involve a purchase of a single consumer item that costs $50. But the corporation misrepresented what that item was or didn't disclose that it had dangerous paint on it or some other feature. The only way that ordinary people, ``we the people,'' can challenge the predatory practice of a powerful corporation is to put their cases together in a class action suit so that everybody--the thousands of people who bought that $50 item--can say: You are doing something wrong. You are selling something dangerous and not telling us. You are selling something our children will choke on and not telling us. You are defrauding us in any of a whole series of possibilities. Perhaps it is in stock cases or other financial transactions. Perhaps it is the way mortgages are constructed. But the individual couldn't possibly take on the powerful companies' roomful of top-notch lawyers to reclaim that $50 or that small modest sum, so a class action is the tool through which the people, ``we the people,'' proceed to take on the powerful, and Neil Gorsuch doesn't like that. He doesn't like workers having the chance to confront corporations on the issues of sexual harassment. In Pinkerton v. Colorado Department of Transportation, Judge Gorsuch joined an opinion discounting Pinkerton's evidence of discrimination and concluding that Pinkerton's performance--not discrimination-- resulted in her termination. Judge Gorsuch dissented from an opinion-- by its very nature saying dissent--where the majority found a different path, holding that Pinkerton provided ample evidence that she was regularly outperforming her male colleagues yet was treated less favorably than them. The list goes on and on--removing Federal Government protections in a variety of cases. But there is a third big problem with the fact that we are here tonight considering this nomination. The first big problem was that the seat was stolen by the Republican majority. That is the first time a theft like that has happened in the history of our Nation in an effort to pack the Court. That is a big deal. The second is that Trump nominated somebody completely outside the judicial mainstream. The third is something that should give every American pause, and that is that at this very moment, investigations are taking place into the conversations, into the meetings between the Trump campaign and the Russians. Now, we know it is very public that the Russians conspired to affect the outcome of our Presidential election. We know the tactics they used. They wrote false news stories. They proceeded to have a building with hundreds--I am told a thousand people in a building--doing social media commentating to try to have people in America see those comments and go: Oh, my goodness, isn't that Democratic nominee terrible? Look at what happened. It was an effort to give, in other words, some sort of validation to the false news stories that they were creating and to spread those false news stories via social media. We know that Russia used a series of bots--basically, computers-- around the world designed to reply automatically on social media and Facebook and to do so in order to make it look like there were more than a thousand--millions of people out there--commenting on how terrible the Democratic nominee was. So they amplified this message with the goal of causing the algorithms used by companies like Facebook--affecting those algorithms so Facebook would start streaming the false news on their Facebook site. You see that and go: Oh, my goodness, it must be true; it is on Facebook. That was the core strategy the Russians used. I am not sharing with you anything that is classified. I am also on the Intelligence Committee. All of this is in the public realm, the FBI is investigating not whether all that took place--they continue to look to see what else there is and the details of that--but whether there was coordination or collusion with the Trump campaign in how they did this. Let's be clear. The investigation is not concluded. We don't know the answer. We don't know if the Trump campaign coordinated with the Russians. But let's also be clear about this: Anyone on that campaign who collaborated with the Russians to affect the outcome of the U.S. elections has committed a treasonous act. So we have this cloud of this investigation over us right now. We find out in a few weeks if there were treasonous acts that completely delegitimize the election that put Donald Trump in the Oval Office. Will we find that? We don't know. We don't know the answer to that. What we do know is that we have a risk of being in a situation where a swing vote on the Supreme Court is coming from a team that is being investigated. Let's get to the bottom of that and, therefore, know whether there is an issue of illegitimacy before we complete this conversation about filling this Supreme Court seat. There is an enormous amount of evidence that the Trump campaign was familiar with the efforts of a foreign power to alter the outcome of the election. The names have come up with the press. Paul Manafort, Michael Flynn, Roger Stone, and other figures in the Trump orbit are under scrutiny for that--several of them. The communications have been articulated where and how, and that cloud is very real. We had the unusual event a week ago Monday in which the Director of the FBI came here to Capitol Hill to talk to the House and to say that it is not normal to confirm that our investigations are under way but that he thought, under this circumstance, it was appropriate that he do so. So those are the three big issues that we are facing. It is why every Senator who values this institution, each Senator who has pondered their responsibility under advice and consent and the theft of the Supreme Court seat last year recognizes that the administration is under a big cloud and that cloud has not been resolved in terms of the legitimacy of the election or whether there was collusion with a foreign power. I said that if there was collusion, it was a traitorous act. Here is why. Attacking the integrity of our elections, as Russia did, is an act of war on the United States of America. It is attacking the fundamental institutions of our democracy, of our democratic Republic. We must never let this happen again. We must work with other democratic republics to make sure that Russia isn't able to do it in other countries, which we know they are attempting to do in other elections. But we should absolutely get to the bottom of it before this Chamber takes a vote on whether to close this debate or before it takes a vote on whether to confirm the Justice. So that is the very broad presentation of the three big reasons we should pull the plug on this nomination or at least put it in deep freeze until such a time as the Russia investigation is completed. And we have already considered Merrick Garland. That is what we should do. I am going to spend considerable time going into more detail about these three issues because in my time in the Senate, there has not been an issue that has had such grave consequences for the integrity of our Nation, the integrity of our Senate, the integrity of the Supreme Court, and, quite frankly, the integrity of the Presidency, as well. It affects all three branches because this crime of stealing a seat couldn't be completed without the direct involvement of the executive branch's nominating Neil Gorsuch. So I will go back over each of these in much greater detail. I was pondering why I feel so strongly about this--apart from the reasons I have already laid out--and it is that for generations to come, this Chamber will be compromised. For generations to come, the Supreme Court will be compromised. If we act together, if we hit the pause button, perhaps we can prevent that. So I feel more compelled to be here, to raise my voice, and to call for those who care about our Nation to stop the insanity of this judicial nomination discussion here on the floor of the Senate. That is why I am going to go on for some time exploring this. I think back to when I came here in 2009. When I came to the Senate, my memories were of the Senate from the 1970's and 1980's, which now makes me really an old guy. I was able to come here as a 19-year-old, as an intern for Senator Hatfield. At that point in time, there wasn't a camera on the floor of the Senate and there wasn't email, and it wasn't easy to get a document across Capitol Hill in a short time. Interns were put to work running paperwork around the Hill. But I will tell you that the institution was in a very different place. So I came here. I was the third of three interns to arrive that summer of 1976, our bicentennial summer. The most recent intern is put to work opening the mail each morning. So I came in early. We had about 100 letters in envelopes. You would run them through a machine that sliced the envelopes opened. You would stack up all the letters, start going through them, and say: This one is on this topic, and this goes to this legislative correspondent. This one is on this topic, and it goes to that legislative correspondent. I think there were three or four in the office of Senator Hatfield. You would go through those 100 letters and put them on the desk of the legislative correspondent. Those correspondents had the newly developed electronic memory typewriters. They had written paragraphs to respond to different topics, and they would mark on the letter the different paragraphs that should go here. This is the introductory paragraph we will use. We need to address this issue in this letter and use paragraph 56 from the memory bank, and we use number 84 to address another issue. Then, those letters, all marked up, would go to the typing team that would run those memory typewriters, and get responses out before the day was over. I saw a lot of it that summer. It was possible to actually get mail to come directly in because we didn't worry about white powder being inside the envelopes. Now if you write an actual physical letter to a Senator in this Chamber, it goes through a warehouse. It goes through a warehouse where they have to examine it and check it for poisons before it can be delivered to Capitol Hill. It will take weeks. People knowing this often choose to write by email. So a lot of the mail--most of the mail--comes in electronically. But that summer, one of the legislative assistants was leaving for an extended period for a vacation in South America. He was looking to have someone take over the Tax Reform Act of 1976. I was asked to take over working on that act. So what that involved was that you would look at all the mail that came in on that tax topic. You would research those issues and you would draft responses. Those draft responses would go up and be approved or modified by the legislative director and by the Senator. Then you would make sure those got into the database and people got their questions answered. I learned a lot about taxes that summer of 1976. I must say, when I was first asked to work on taxes, I was kind of disappointed because I thought: Well, it will be really interesting to work on education; it will be really interesting to work on healthcare; it will be really interesting to work on the environment; it will be really interesting to work on jobs policy. Taxes? Not so interesting. So the next few days, as I threw myself into responding, drafting responses to these issues being raised in letters, I was transformed in my opinion about working on tax issues because the taxes affect everything in our body of law. Taxes have environmental consequences, or they may be an environmental incentive, such as the provisions we have in the Tax Code to encourage people to insulate their homes or to drive a non-fossil-fuel burning car. They affect health, such as the provisions we have in the Tax Code that proceed to say that if your employer provides health insurance, it is not considered taxable income. It affects job incentives. It affects everything. There were farmers writing in about tax issues that were being raised. There were teachers writing in. The teachers were concerned that there was a home office deduction that was on the chopping block. What this means is if you used a bedroom in your home or a study in your home as your office to work as an elementary teacher or a high school teacher, you could deduct the cost or the value of that portion of your house as a work expense. Well, often, when there is an opportunity like that, some people expand the definition of the office to a point in which it is ridiculous, and there were some individuals who were saying: Well, now my entire home is my office. I will deduct the entire cost of my home, which was never the intention. But teachers were concerned that, in the course of correcting that, that they might lose the deduction that was a legitimate work expense. There are dozens and dozens of these things. So the bill happened to come up on the floor of the Senate, in this Chamber right here. Because I was working that bill, I was assigned to come over and follow the debate. I was up in the seats up above. We considered amendment after amendment after amendment. Now, there was no negotiation between the two sides over what amendment would come up next. Once one amendment was finished, there would be a group of Senators trying to get the attention of the Presiding Officer. Whoever got that attention first, whoever was fastest or loudest and was called on, their amendment was next. They presented it, and the staff hovered around following it and tried to get a copy of it and tried to analyze it. Then we would run down when the vote was called and meet our respective Senators coming out of those elevators that are just through those doors right there--those beautiful double doors of the Senate. I would stand there, and out would come Senator Church, and out would come Senator Goldwater, and out would come Senator Humphrey, and out would come Senator Kennedy and Senator Inouye, and then my Senator could come out. I would say: OK, here is the story. Here is the amendment. Here is what it does. Here is what people have said about it. He would come in here and vote. That was a very lucky set of circumstances that I had, but it allowed me to sit up in the Chamber and watch this Senate. You did not have a cloture petition on anything--a cloture petition meaning a petition to close debate. Now, there was mutual respect. There was a determination of this body to give people a chance to say what they wanted to say, but very rarely did people go on at length, and more rare than that would be a case where a petition was filed to shut down debate. You know, the principle, the idea that originated with our original Senate, was that there is time for everyone to make their views known to each other so we can benefit from their insights, so that we can benefit from their life experience, and then we can make the decision. So it was a mutual courtesy among Senators at the very start of our democratic Republic. I saw that courtesy here on the floor as an intern 41 years ago. What a difference it is today, where today, for the first time in U.S. history, the majority filed a petition to shut down debate on the first day of a debate over a U.S. Supreme Court seat, under circumstances that are more complex and more disturbing than virtually any circumstances we have seen in more than 200 years over the nomination of a Supreme Court justice. It is the first time in U.S. history that a nominee in an election year was not accorded any consideration, the first time a seat was stolen, perhaps the first time that a cloud hung over a nominating President--President Trump and his team--because of the way the campaign was conducted and the possible collaboration with Russians. Certainly, it one of the first times. Since the analysts have found that the views of Neil Gorsuch are to the extraordinary far right, that too adds a certain change from the tradition of the supermajority of the President nominating from the judicial mainstream. So we have these complex sets of circumstances that should be thoroughly vetted. This should be a situation where no Member of this Chamber would even think about filing a petition to close debate and would not even consider the possibility of trying to cut off debate. Debate has gone on for Supreme Court folks for weeks and weeks and weeks without a petition being filed. Sometimes, that nominee was confirmed and sometimes the nomination was withdrawn, and in the course of it, the American people learned a great deal, and they were riveted to that conversation. But this time, the majority said that 200 years of history--that 200 years of developed comity here in the Senate Chamber, the traditions that were still here when I was an intern 4 decades ago--we are going to wipe that away. Well, that is a great concern. After I was here for a summer, I was very intrigued by the beauty of what we do on Capitol Hill, the profoundness of what we do on Capitol Hill. We can make a policy that can destroy home ownership for literally millions of families, or we can make a policy that creates the opportunity of fair home ownership for millions of families. That is the power of the discussions that take place on this floor of the Senate, of this Chamber, and the Chamber on the other side of Capitol Hill. So, during that summer, I was wrestling with a question, and that question was: My talents are in math and science. But is there a way to pursue a career dedicated to making the world a better place? Is there a way to actually pursue public policy as a career? I didn't know the answer to that question. I went back to college for 1 trimester out in California. At the end of that trimester, President Carter was going to be inaugurated in January of 1977. I thought: You know, it will be very interesting to see what a new President does. Let's see what policies he puts forward, how he builds his Executive team, how he delivers his ideas to Capitol Hill, how he works with Capitol Hill. So in January, I took a Greyhound bus across the Nation. I arrived here and proceeded to work on a variety of internships while also waiting tables and washing dishes. I worked as a hotel desk clerk up on 14th Street on Thomas Circle. I worked washing dishes and waiting tables for a Lums Restaurant, which is kind of a sit-down hamburger joint. But it was all so I could be here and see the magic of public policy and the work done that could affect millions of lives here in this Chamber, the work done on the far side of Capitol Hill that would affect millions of families--to the better or to the worse. In the course of that year, I interned for a group called New Directions. It was an environmental nonprofit working on the Law of the Sea. There was a question on the outside of our territorial boundaries: Will the nations cooperate so that we don't destroy the resources in the international space of the oceans? How far should our national space extend? How do we write those rules so that our Continental Shelf is clearly under our control? These are the sorts of questions considered. That treaty, the Law of the Sea Treaty, has never made it here to Capitol Hill. Every time there is a new Presidency coming in, someone says: Hey, remember that treaty from four decades ago? It might really strengthen U.S. control of our offshore areas, and maybe we should bring it up for discussion. It still hasn't been discussed here. But I also went door to door for a group called Virginia Consumer Congress. They were working to create attention to consumer protection issues in the State capitol in Virginia. They would go door to door. They would have a team go door to door. You would proceed to explain the issue that you were working on--the bill you were working on, that the organization was working on--and ask ordinary citizens to sign a petition in support of that bill being considered at the State capitol. You would ask: Would you like to support the work of this organization so we can keep doing it? If they made a donation, that helped strengthen the organization. This was the model that became the Public Interest Research Group model, or the PIRG model. Specifically, the issue we were working on as we went door to door was to say: We can save consumers a huge amount of money if we can simply implement peak-load pricing. Now, what is peak-load pricing? What it means is that you have a meter so that when there is a huge demand for electricity, it charges a higher price. By so doing, it alerts the consumer: Hey, don't use electricity now; use it at another time. Now, why would that save consumers millions of dollars? Well, here is why. The electric power company wanted to build a nuclear powerplant to meet just the peak load. So they wanted to build a very, very expensive nuclear powerplant, which they would then charge all the utility customers for, and a lot of utilities--it is kind of written in the law--receive an automatic 8-percent return on whatever they invest. So there is an incentive for them to invest more. The more they invest, the bigger their revenue stream is. That revenue stream is paid for by the citizens who buy electricity. So few could convince the utility, instead of building a nuclear powerplant, to put in meters that would tell people: Hey, don't use your dryer now because it is more expensive, and shift that peak load. Then everybody benefitted. You did not have to have the risk of a nuclear powerplant. At that point we had a lot of concerns. We had had a lot of difficulties in some of our plants with near meltdowns. The idea that you could have a radioactive cloud or a China syndrome occur somewhere near a metropolitan area was a very scary thing. So you simultaneously greatly improved public safety while saving people a huge amount of money. So that is what we were petitioning people for door to door. It was my first introduction to a legislative process that was happening outside the national legislative process. I must say, when you go to door to door, you have so many interesting experiences. You never know what is going to happen when you walk through that door and start to explain to people what you are fighting for and they start sharing their stories. The president of the board of VEPCO, Virginia Electric Power Company--I went to his and his wife's house. I did not know it was their house at the time--a huge, huge house in suburban Virginia. The wife greeted me. She talked with me about these issues. She said: You know, my husband is president of the board of VEPCO, but, as to the issues you are raising, I never hear them raising those issues, and these are good points you are making. So I want to buy the Virginia Consumer Congress newsletter. It was a $15 donation. That was the biggest donation at the door I ever had while I was working there. There were many, many other conversations. But the reason I came back to be here for those first 9 months of the Carter administration was to continue to see: How does Capitol Hill work? How do nonprofit advocacy groups work? How does a new administration work? How does the Senate work? The Senate was so near and dear to my heart after the internship with Senator Hatfield. In the course of that year, I came to believe that there was a path to work on public policy. Specifically, I decided to work on third- world economic development. Part of the reason that I choose that area was that, when I was in high school, I had a chance to be an AFS exchange student in Ghana, West Africa. There were only six exchange students sent to Africa outside of apartheid South Africa. Of those six, five went to cities and one went to a modest town with a family of very modest means. I was the student who was sent to that very modest town to the family of modest means. The experience was such that I was surrounded by people barely able to afford to eat or sometimes not able to afford to eat. My host family was middle class. My host father was a schoolteacher, and my host mother was also a schoolteacher. One was in a public school, and one was in a private school. Because of the connection to the public school, my host father, who, if I recall right, had a sixth grade or ninth grade education--that was enough to be a teacher because they didn't have enough people who were high school graduates or college graduates. He was afforded a government-built house that had three concrete rooms and screens over the windows to keep out the mosquitoes. There was electricity in the house, an outlet. The family had one appliance, and that appliance was an iron to iron clothes. Every night, my host father would take the clothing that had been washed that day and he would iron the clothing. Nobody else could touch that iron because that was an incredibly valued appliance. They had one other thing that was considered a real amazing thing for a family to have, and that was a bicycle. They had a bicycle. I wanted to borrow the bicycle to go outside this town and visit some very tiny villages. My host father was so afraid that I was going to break this bicycle, that I wasn't going to be careful, that I was going to go through potholes, that I was going to dent the rim, because it was such a valued commodity to the family. I decided in college, after my time here in 1976 and 1977, that I would work on economic development overseas because I had seen the families who surrounded my host family often earning just a dollar a day and trying to feed a family of six or seven. The children couldn't go to school because they had to go down to the main street, running through town to try to sell things through the windows. The only way for the family to eat was for every child to be working. (Mr. ROUNDS assumed the Chair.) Well, I tell you this because it is all tied in to how I view the sanctity of this room, this Senate Chamber, because the events that were to transpire unexpectedly brought me back to Capitol Hill after graduate school. I pursued that path of working on third-world economic development, and I thought I was going to spend my life overseas. When I graduated from college, I was hired for a job to work for the United Nations in the Philippines. My job was going to be going throughout the region to evaluate U.N. development projects. What a perfect position, to be able to be in multiple countries--it would have been in Malaysia, the Philippines, Vietnam, a whole host of nations--to evaluate projects on the ground, giving reports on what was working and what was not working and why. It was a 2-year post. I was so excited about doing this. It just seemed like all life had come together. I was going to have a job after I got out of college, and I could start repaying those student loans. I felt like I was landing on my feet. I went down to the organization, the nonprofit at my university that would set up these jobs. The individual who ran it said: Jeff, come here. I have a letter for you to read. The letter said: The United Nations has just eliminated the position to evaluate those projects in the Philippines. So suddenly, before I ever got on the plane, my job was gone. I didn't get to go. Again, I was very worried. Well, what am I going to do after I graduate? I proceeded to go down to Mexico and work in a village with the American Friends Service Committee. Then I went to New York and worked an internship with the Carnegie Endowment for International Peace. I worked on a variety of international issues. Then I decided to join a friend, and we went and bought the cheapest bus available from California to Costa Rica. We proceeded to go through country after country--Mexico and Guatemala, Honduras. We bypassed El Salvador. We got off the Pan-American Highway because in Salvador, in 1980, people were being pulled off of the buses and shot. The other nations were in turmoil. It was the year after the Sandinista Revolution in Nicaragua. In Guatemala, there was an army group who was going from village to village killing the young men. There was a war between one group and another group. There was a lot of chaos there. But we went all the way through to Costa Rica. Then I worked in a village again on an environmental project. I had a chance to work in India. I expected the whole time that I was going to be going overseas for my life. You never know what door is going to close and what door is going to open. After I got out of graduate school and was ready to go fulfill this vision that I developed back in 1977 when I extended my stay here in DC and was doing these internships, I was at the World Bank. I was hired at the World Bank, but I didn't want to be at the World Bank for long doing mathematical modeling. I was doing the shadow pricing of petroleum products. If that doesn't sound very interesting, well, it kind of is, actually, if you love how numbers can give you a vision of what is going on and how the imports and exports of oil products were right or wrong and expensive. By understanding shadow pricing, you could understand the challenges various developing nations faced. Still, it was working with mathematical formulas and data here in DC, and I wanted to be in the field. So I was preparing to go to southern Africa, where I had not been. In that preparation, I was also applying for a Presidential fellowship in foreign relations. One of those openings was at the Office of the Secretary of Defense. Each year, the Office of the Secretary of Defense would have 5 openings for Presidential management fellows, and there were 12 finalists for this. They called us in, and they had this big kind of arc of the high-ranking folks, civilian and uniform, from the team of the Secretary of Defense. Then they had a chair in kind of the middle of that arc. I just remember thinking it felt like we were going to be interrogated, and it was kind of an interrogation. This is the first question I was asked: We see here that you interned for Senator Hatfield, and he votes against all of the defense appropriations. You worked for the American Friends Service Committee. They are an arm of the Quaker Church, and the Quaker Church has a peace testimony. Why would we ever hire you here in the Office of the Secretary of Defense? I thought that was a very good question. I was kind of surprised that I was a finalist for a position, but I responded that national security is so much broader than simply military money, that it involves an understanding of culture, an understanding of history, an understanding of economic dynamics, an understanding of the things that trigger dissent and how it might be responded to, an understanding of alliances, and that all these things put together enable us to have a foreign policy that is part and parcel of our national security. Well, I probably said a more complex version of that, but that was the gist of it, and they hired me. The reason I took that job rather than heading off to Africa was because at that moment, the biggest threat to the world was nuclear power--not nuclear power electricity but nuclear weaponry, atom bombs. The fact is that we were concerned that there might be a nuclear war that would destroy the planet as we knew it--certainly destroy the Soviet Union and the United States. Since that was the biggest threat to the world, I felt compelled to pivot from third-world poverty to work on nuclear weapon policy, and I did that through the 1980s, first for the Secretary of Defense and then for Congress, which now completes why I was telling you that story, because that brought me back to be in regular contact with this Senate, with this Chamber, with the folks who work here, who are trying to figure their way through a series of difficult issues involving nuclear weapons. Outside of this Chamber, in the path walking between the Russell Office Building, a curved path, and coming into the outside doors that are outside of these double Senate doors, there is a tree. That tree is known as the peace tree. It is directly connected to the work that was being done in this Chamber on nuclear weapon policy. Senator Hatfield and Senator Kennedy were working together. A Republican and a Democrat were working together to try to address the risk of nuclear weapons. Well, in 1985, there was an intern walking with Senator Hatfield. He liked to walk outside on that curved path back to the Russell Office Building. It is a path on which I have had the chance to walk with him a number of times. He talked about the different trees along the way. I remember in particular his lecture on the ginkgo tree. There are several ginkgo trees out there between here and the Russell Office Building. I was relaying this to a 1985 intern of Senator Hatfield's named Sean O'Hollaren. Sean said: You know, I had those same walks with Senator Hatfield, and he gave me the same stories about the tree. He was interested in that. Sean O'Hollaren said to Senator Hatfield--Sean O'Hollaren obviously was much quicker to seize the moment. It never even occurred to me. He said: Senator Hatfield, you love these trees so much, why don't you plant one? Senator Hatfield said: Sean, that will be your intern project. So Sean worked on that. Senator Hatfield wanted to plant a tree that doesn't fit the Olmsted plan for the landscaping of the Capitol. The problem is that the Olmsteds, who had designed Central Park and Forest Park in Oregon and much of the DC landscape here on the Capitol grounds, had in mind broadleaf trees, not the type of tree Senator Hatfield wanted to plant. What did he want to plant? There is a very interesting story here because in the Pacific Northwest--of course Oregon is part of the Pacific Northwest--there used to grow millions and millions of a cousin of the grand sequoia and the coastal redwoods. This cousin was different in that it lost its needles during the winter. It went extinct. It was out-competed by the cedars and the Douglas firs and the regular redwoods and so on and so forth. It went extinct, but its fossils are everywhere in the Northwest. How could Senator Hatfield plant this tree when it had been extinct for millions of years in North America? He could plant it because in the late 1940s, a small grove was found in China of this particular tree--the only place on the planet where it still existed. So he arranged to get one of those trees. He was going to plant it there. At that moment, as they were getting ready to plant, his team saw Senator Kennedy's team and said: Senator Kennedy, you should come out and join Senator Hatfield. They went out by this walkway between here and Russell. Senator Kennedy said: In honor of the work we are doing together, this bipartisan work on nuclear weapons, this should be known as the peace tree. They were working on the zero option, the nuclear freeze movement-- let's not add any more nuclear weapons to the world; they are already dangerous enough. They did a lot of work on nuclear weapons, and I must say I was reminded of it. When I came here, John Kerry and Dick Lugar--a Republican and a Democrat--were working on New START together. They considered that treaty here on the floor of the Senate, but it became much more difficult now than then to have this sort of bipartisanship work. At any rate, please take a walk, if you are here in DC and on the grounds of the Capitol, and take a look at that peace tree. That peace tree is just on the verge of becoming the tallest tree on the grounds. It is now 32 years old. Let's hope that as it becomes the tallest tree, it will have kind of a Biblical influence and bring more peace to a world in desperate need of it. We need more of that peace tree influence here in this Chamber. That influence is sorely lacking. The type of cooperation between Democrats and Republicans that existed doesn't exist today, and we are here at this very moment on a tragic course to destroy the centuries-old tradition of a 60-vote, bipartisan majority to proceed to approve a nominee to the Supreme Court. That tradition ensures that Presidents don't nominate extremists and hopefully ensures that the folks who serve will serve the Constitution, the ``We the People'' Constitution, not some ideological extreme to the right or to the left. So I want to go back to the core premises of why I am here tonight talking to the Chamber, sharing these thoughts with all those who are watching the Chamber, and that is we must recapture the type of cooperation and bipartisanship that made this Chamber able to address the problems facing America. Mahatma Gandhi said that to simply operate by the premise of an ``eye for an eye only . . . [makes] the whole world blind.'' Well, if we operate on the premise of the Senate that we are never going to work together to solve problems because we are of different parties or a different party than the President, and we want to make sure the President doesn't get any credit for having helped improve a situation, then all of us suffer from the broken existing policies, the dysfunction of existing policies, the poison of the superpartisanship. Let's go back to the basic premises that we need to address--the three premises. The first is that this seat is a stolen seat--and if we could put up the chart with the nine Justices. Here is the story in a nutshell: 16 times in our history there was an open seat during an election year, 15 times the Senate acted, 12 of those times they confirmed the Justice, and 3 of those they rejected the Justice. But the point is, in 15 out of 15 times before Antonin Scalia died and Merrick Garland was nominated by President Obama, the Senate acted. Here are nine of those. These are the nominations that occurred, like Merrick Garland's, in which the vacancy and the nominations occurred before the election. So they are most similar to the situation of Merrick Garland. Then there were another seven under more difficult circumstances where the nomination did not occur until after the election, and the Senate had very little time in which to vet and make a decision, but they did make a decision in each and every case until last year, when the majority said: We will not consider the President's nominee. We will not hold a hearing, we will not hold a vote, we will discourage folks from even talking to him, and we will not exercise our advice and consent responsibility. That is the first big issue. The second big issue is that the nominee himself is from the extreme right. There is a chart that shows--and we don't have it with us; maybe we will have it later tonight. There is a chart that shows the distribution of decisions, and it has basically two curves with a big kind of bell curve with a big gap in between. So it goes up, it comes down, and it goes up and it comes down, and it reflects the ideological division of the Court from decisions they have made. On this chart the folks analyzing these decisions said: Where would Neil Gorsuch be? Would he be in the ``we the people'' bell curve of decision making? Would he be in the ``we the privileged and powerful'' bell curve? They found that not only would he be in the ``we the powerful'' bell curve, but his position on the curve would be to the far right of the curve. I mentioned earlier the analysis by the Washington Post. This is an individual who was rated by the professional analysts as being more conservative than anyone who serves on the Court. I went through a series of cases, and I will be going through them again as the night wears on, in which he twisted the law to find for the powerful over the individual time and time and time again. Someone who is way outside the judicial mainstream and who twists the law to find for the powerful over the people doesn't belong in the Supreme Court of America. So that is the second big problem. The third big problem is that the President's team is under investigation for collaborating with the Russians interfering in our November general election. This is a very serious question. There is a very dark cloud over the legitimacy of the election and therefore the legitimacy of this President. If President Trump worked to conspire with the Russians or his team conspired with the Russians at his direction or his knowledge, that is traitorous conduct because the Russians attacked the fundamental institutions of our country. Trying to delegitimize and change the outcome of our election and conspiring with a foreign power to attack the foundation of our Democratic Republic--that is traitorous conduct. We have to get to the bottom of it, and we shouldn't be considering on this floor a nominee under that set of circumstances. Let's complete the investigation, find out what went on, and if the cloud clears, then we can proceed. So those are the three substantial issues for why we should not be here considering this nominee. The stories I was sharing with you about how I first came to the Senate as an intern for Senator Hatfield and then came back to Capitol Hill working for a think tank sponsored by Congress, the Congressional Budget Office--my responsibility was to analyze the impacts of various potential strategies in the development and deployment of our strategic triad, our nuclear triad. We have air-delivered and ballistic missiles, land-based ballistic missile delivered weapons, and marine weapons-- that is the triad. That was my job, to consider the implications of the path we might go to. What were the budgetary implications, what were the performance implications, what were the implications for deterrence or the circumstances that might trigger a nuclear war. So I was back here on Capitol Hill in that capacity. What I saw was a Senate fundamentally different than the one we have today. I was reminded of this when, back in 2013, I was working to bring a bill to the floor called the Employment Non-discrimination Act. This is an act that Senator Ted Kennedy had sponsored, and if I recall right, it was first sponsored in 1994. Then, 2 years later--I believe it was in 1996--it was considered on the floor of the Senate, and it lost by one vote. It lost 50 to 49. The Senator who was missing, it was believed, would have voted for it, and the Vice President breaking the tie would have voted for it, but people felt, well, it will be back up before the Senate soon enough. The point here is that the vote was a simple majority in that setting, and the filibuster was reserved for very rare circumstances. This happened to be a bill related to ending discrimination for our LGBT community in employment, and anything involving what some may construe as a social issue is one that many people have politicized greatly. This was simply an issue of fairness in employment, but nobody required a simple majority to close debate. They reserved the simple majority for profound principles. It was so that this body can function because it was primarily a simple-majority organization. When I was covering the Tax Act of 1976, the issues on these amendments came up one after another--what seemed like every hour--were simple-majority votes with a lot of bipartisan cooperation. We have become so polarized, we have become so divided, and this nomination and this hearing right now are going to reverberate through the decades to come as the lowest point, the biggest failure of this institution. We do have the power to prevent that from happening because we haven't yet voted on closing debate. Yet we have just a short period of time to set this nomination aside. Set it aside. Tell the President we need to heal this institution and the Court by nominating Merrick Garland. Set it aside because the nominee, Neil Gorsuch, is from the radical rightwing fringe, out of the tradition of having mainstream Justices. Set it aside because there is an enormous cloud over President Trump as to whether he is a legitimate President, given the investigations into the conspiracy with Russia. For all those reasons, set it aside. Also set it aside because never before has a majority leader tried to shut down this debate with a petition to close debate on the very first day. It takes 2 days for that petition to ripen. There are folks who have said that almost never is a Supreme Court nominee filibustered. Well, it gets a little confusing because what does filibuster mean? Does it mean deliberation at length? In this case, we have had a lot of nominees filibustered because they have been deliberated at length. Does it mean that we vote on a petition to close debate? Well, that really changes the analysis because we have rarely had a petition to close debate on a Supreme Court nominee, and we have never had a petition to close debate filed on the first day of debate because of the mutual respect that all the voices would be heard, and with someone who was controversial enough for people to want to talk for days and days and days, this body heard them out. The American people heard that conversation and responded to it, and trends developed. People said: Do you know what? No, this person really is suitable. And they were confirmed. Sometimes they were withdrawn by a President. The point is, in rare cases was a petition filed to close debate. Yet here we have for the first time in U.S. history--it just happened a couple hours ago--shutting down the debate as fast as they can. That is the opposite of a deliberative body. When I was back here as an intern, we had that age-old saying about the Senate being the world's greatest deliberative body. I saw that body. I saw people here on the floor talking to each other, listening to each other, holding a debate, voting on amendments and immediately going to the next amendment. I remember on one occasion--I mentioned that once an amendment was done, there wasn't another one negotiated between the Democrats and Republicans, so there were long periods of silence, the way we operate now. No, it was the next person recognized by the Chair, and the Chair heard a lot of people at once, probably working to send one amendment to the left side of the Chamber and one to the right side of the Chamber, one to a senior Member, maybe one to a more junior Member, but eventually, because of the expeditious consideration, everyone got to have their idea considered and pretty much voted on by a simple majority. How different that is from what is happening right now at this moment in this Chamber when we are at the very peak of pointed partisanship coming from my colleagues across the aisle. They have stolen a seat for the first time in U.S. history. They have proceeded to put it on the floor and, for the first time in history, they have filed immediately a petition to close debate. Every 5-to-4 vote from here on until who knows when--our children's children--will be looked at, and people will ask: Is this a decision because of the stolen seat? Would this have been a ``we the people'' decision rather than a ``we the powerful'' if not for that stolen seat? That is a huge erosion of the legitimacy of the Court. Do Members of this Chamber really want to do that kind of profound damage? They will do that profound damage if the current direction continues over the next couple of days, and that is a place in which I do not want us to be. Therefore, this is kind of my own, personal protest of where we have come, and it is my own request that we change direction. I plan to keep speaking for quite a while longer, as long as I am able. That will, hopefully, be, at least, a couple of more hours. I am going to go into more depth about these issues that I have laid out, and I am going to start by going through each piece in a lot more detail. Where do we start? This journey began with Justice Scalia's death on February 13, which was a little over a year ago. Then it was a month later that the President fulfilled his responsibility under the Constitution and nominated Merrick Garland. There were still 10 months left in the administration at that time. Earlier, I heard the majority leader say that no one has ever filibustered a Supreme Court nominee. That is not quite true. There have been some filibusters, more or less, if I can find them. Yet what happened last year was a 293-day filibuster of Merrick Garland by my Republican colleagues. It was not just an ordinary filibuster but a special sort of failure to exercise their constitutional responsibility of advice and consent. It was the first time in our history that a nominee was not acted on when the nominee was being considered for a seat that came open during an election year. There are a few of my colleagues who like to say that the former Vice President, Joe Biden, gave a speech and said--it was theoretical because there was not an open seat--if a seat comes open in the summer of an election year, maybe we should not consider it until the intensity of the campaign has passed, meaning after the election. We saw earlier, when we put up the chart--and I will put it up again--that there were seats that opened up before an election. On these seats here--these four seats--the vacancies were before the elections. They were in August, May, October, and October. The nominations did not come until after the November elections--in December and February or in December and January. Yet the Senate acted in those situations. No matter how you slice it, 15 times there have been open seats. Some occurred after the elections, and the Senate acted on the nominees. Some occurred before the elections, but the nominations did not occur until after the elections. The Senate acted in these cases. Then there were another nine cases in which the nominations opened up before the elections. Biden made the simple point that, if the seat opens in the heat of the summer, before the November election, maybe it would make sense to hold off considering the nominee until after the election. That is completely consistent with our history. My colleagues tried to twist it into something else--as an argument that we should not consider a nominee during an election year. Of course, that is not what Biden said at all. It was not even close. Let me tell you, when you have to try to find one sentence from 20 years ago from one of the people who has served in the Senate and when that is the only evidence you can find to back up your case, you are not just on thin ice. You have fallen through the ice and into the pond. Your argument is that weak and that terrible. Whenever you hear my colleagues ask: Didn't the Vice President, when he was a Senator, suggest a theory that we should not consider a nominee during the heat of the campaign right before an election? Yes, he said you should wait until after the heat of the campaign. It was one sentence, 20 years ago, from one Senator. If your argument is that weak, please try to find some better argument to make. We are not here considering something of small importance. We are here, considering an issue that has profound consequences for the integrity of the Senate because it is the first time in U.S. history that a Supreme Court seat has been stolen. It has a huge impact on the integrity of the Supreme Court because this is a court-packing scheme. If the Court is packed, it delegitimizes its decisions. Let's not pack the Court. That is why I am here, speaking tonight. On February 13, the very same day that Antonin Scalia passed away, the majority leader came to the floor and released a statement that read, essentially: We intend to steal this seat. Here is what Majority Leader McConnell said: The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until after we have a new President. He reiterated opposition to any Obama nominee on the day that President Obama fulfilled his constitutional responsibility by standing in the Rose Garden and nominating Merrick Garland. When our majority leader reiterated his opposition, what did he quote? He quoted the one passage that was taken out of context from Biden's speech from 20 years ago. That was the foundation on which he based a proposition to forgo our responsibility as a Senate to provide advice and consent under the Constitution--one sentence out of context. He turned the meaning on its head of a former Senator from 20 years ago. That is how weak the case was that the majority leader presented for failing to perform our constitutional responsibility. That was how weak the case was that he presented for stealing a Supreme Court seat in a court-packing scheme. He said to give the people a voice. The American people voted overwhelmingly for Hillary Clinton. She won by more than 3 million votes. She would have won by a lot more if it were not for voter suppression. We have one party that generally believes in voter empowerment--that the foundation is ``we the people'' and that part of citizenship is to vote. We have one party that has resorted to trying to prevent people from voting--voter suppression, gerrymandering, changing the shape of a district to deprive people of having a voice here in Congress, changing the dates in which early voting can occur so that people have less of an opportunity to vote, changing the locations of precincts, which is where your voting takes place. Some of the voter suppression tactics involve things that are just misinformation--false information--and telling people that the vote has already occurred or the location has been moved when it has not or that the votes are going to close earlier than they are actually scheduled to close--or a whole host of things. The majority leader said to give the people a voice. The people voted overwhelmingly for Hillary Clinton. So it would follow that the majority leader would come to this floor and say: The people voted overwhelmingly, by 3 million votes, and it would have been a lot more. So we will now consider Merrick Garland because he was the nominee from a Democratic President--the seat he stole. The people have spoken. The majority has said that we do not want the Republican, that we want the Democrat. So we will go ahead and hear the Democratic nominee, and we will vet and vote on Merrick Garland. But it is a funny thing in that that did not happen because the goal was not to give people a voice. The goal was to steal the seat and deliver it to a Republican President who would nominate someone from the extreme right and pack the Court, undermining ``we the people'' in favor of ``we the powerful and the privileged.'' The Democrats did not politicize the Court. The Republicans politicized the Court. The American people did have a voice in Garland's nomination. They had a voice by their voting twice for President Obama. Throughout our entire history, the Senate has considered the nominee from the President in power, when the vacancy occurs--even when it is an election year--because that is what the Constitution tells us to do--not to steal the seat, not to pack the Court. This politicization, this gamesmanship, this hypocrisy is so extreme and so dangerous. I heard that some of my colleagues were asked if they would want their election year rule to apply to President Trump--that he could not fill a seat that would come open in the fourth year of his Presidency. That was the principle they advocated for last year. Their answer was no because there was no principle to the position. It was a warfare tactic of partisanship to pack the Court. It was the end justifies the means even if the means violates the core premise of the Constitution and does deep damage to the Senate and does deep damage to the Court. Just this past Sunday, while speaking to Chuck Todd on ``Meet the Press,'' the majority leader began to walk back his past statements that a Supreme Court vacancy should not be filled in an election year. Todd asked: Should that be the policy going forward? Are you prepared to pass a resolution that says: In election years, any Supreme Court vacancy will not be filled, and let it be a sense of the Senate resolution that no Supreme Court nominations will be considered in an even numbered year? The majority leader responded: That is an absurd question. Why is it an absurd question given that it is the principle that election year nominations should go to the next President? I will tell you why it is absurd. It is absurd because it is contrary to the Constitution. Mitch McConnell, the majority leader--my majority leader, the majority leader of the Senate, the top person in charge--was right when he said it was absurd because, of course, we should not abandon our constitutional responsibilities. It is an absurd argument to make today, and it was an absurd argument when he made it last year. If it were only absurd and not deeply damaging, then we could all perhaps not be so deeply, deeply concerned about the situation. Merrick Garland's record. Judge Garland had more Federal judiciary experience than any Supreme Court nominee in our Nation's history. So the nominee put forward by President Obama had more Federal judiciary experience than any nominee in our Nation's history. He graduated summa cum laude and valedictorian from Harvard College. After graduating, he clerked for Judge Henry J. Friendly in the U.S. Court of Appeals for the Second Circuit. He clerked for Justice William Brennan, Jr., in the U.S. Supreme Court. He was in private practice at Arnold & Porter, focusing on litigation and pro bono representation of disadvantaged Americans. He left his partnership for a low-level prosecutor position in the administration of George H.W. Bush. In 1993, Merrick Garland went to the Justice Department as Deputy Assistant Attorney General in the criminal division, and that is where he oversaw prosecutions in the Oklahoma City bombing, helping bring Timothy McVeigh to justice. He helped oversee prosecutions in the case against Ted Kaczynski, the Unabomber, and the Olympics bombing committed by Eric Robert Rudolph that killed 1 person and injured 111. He made a name for himself in these cases by being a strictly by-the- book prosecutor. He insisted on obtaining subpoenas, even when companies volunteered to hand over evidence. He insisted on keeping victims and relatives informed as the cases developed. He served for 19 years on the DC Circuit Court. That is a lot of experience. And all that happened before he was nominated by President Bill Clinton in 1995 for the DC Circuit Court. He received a confirmation hearing in the Senate Judiciary Committee in December of that year, but Republicans did not schedule a floor vote on his confirmation because of a dispute over whether to fill the seat. So President Clinton renominated Merrick Garland for the circuit court on January 7, 1997, and he was confirmed on the Senate floor by a vote of 76 to 23 that year, in March. At the time of the consideration of Merrick Garland on the floor, my colleague from Utah, Senator Hatch, had very flattering things to say about Merrick Garland. He said: To my knowledge, no one, absolutely no one, disputes the following: Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned. He continued: I do not think there is a legitimate argument against Mr. Garland's nomination, and I hope our colleagues will vote to confirm him today. Then he said: In all honesty, I would like to see one person come to this floor and say one reason why Merrick Garland doesn't deserve this position. The Senator went on to suggest that his colleagues who were blocking the confirmation vote were trying to obstruct his confirmation and were ``playing politics with judges.'' I so respect the statement that my colleague from Utah made in 1995, admonishing his colleagues to quit playing politics with judges. But what has happened between 1995 and 2017, over these last 22 years? A huge amplification of playing politics to the point that when Merrick Garland came back before this body, only a couple of Republicans were willing to stand up and say: Let's quit playing politics. And they were quickly silenced. During his 2005 confirmation hearing, Chief Justice John Roberts remarked about serving on the Circuit Court with Merrick Garland: ``Any time Judge Garland disagrees, you know you are in a difficult area.'' So here is the Chief Justice, considered one of the conservatives on the Court, who is saying that if you disagree with Merrick Garland, you are in a difficult area. You have to go and figure out why you would disagree because he is so good at working his way through the law and coming to a position of calling the balls and strikes. That is the type of respect there was for Merrick Garland. And this respect and admiration continued right up to his official nomination on March 11, 2016. Five days before his nomination, my Senate colleague-- my colleague from Utah--told a reporter that if President Obama named Judge Garland, ``who is a fine man,'' to fill Scalia's seat, he would be a ``consensus nominee,'' and there would be no question of his receiving a bipartisan confirmation--five days before the President nominated Merrick Garland. The President recognized that the Senate was controlled by the Republican majority. He consulted on both sides of the aisle. He chose a nominee admired on both sides of the aisle. Standing in the Rose Garden on March 16 of last year, President Obama officially nominated Judge Garland to replace the late Justice Antonin Scalia, and President Obama called Merrick Garland the right man for the job: He deserves to be confirmed. His nomination had endorsements from a broad range of organizations and individuals. The American Bar Association, the Hispanic National Bar Association, eight former Solicitors General, including Neal Katyal, Gregory Garre, Paul Clement, Theodore Olson, Seth Waxman, Walter Dellinger, Drew Days, and Kenneth Starr. You recognize some of those names. Some come from the right side of the spectrum, some from the left. The point was that eight former Solicitors General--Ken Starr, 1989 through 1993, and Drew Days who followed him, and Dellinger, who followed Days, and Waxman, who followed Dellinger, and Olson, who served from 2001 to 2004, and Clement, who followed Olson, and Garre, who followed Clement, and then Neal Katyal, who served in 2010 and 2011. Endorsement from the American Bar Association Standing Committee on the Federal Judiciary rated him ``well qualified'' as a Supreme Court nominee, the highest rating they can give, and their evaluation of his record stated that Judge Garland ``meets the very highest standards of integrity, professional competence, and judicial temperament.'' So there we have our President, President Obama, last year consulting in a bipartisan fashion, choosing a nominee who had been highly complimented by Senators on both sides of the aisle, seeking to find someone straight down the judicial mainstream, and what was the response of the majority leader of our body, our assembly here? His response was: We are going to steal this seat. It doesn't matter that this nominee is highly qualified. It doesn't matter that Democratic and Republican Senators have complimented him highly and have high respect for him. It doesn't matter that the Chief Justice has enormous respect for his judicial thinking. We are going to steal this seat in hopes of being able to pack the Court. That is what happened later in the day, after Merrick Garland was nominated. The Senate has always functioned by cooperation, with a big element of tradition thrown in. A defining feature of the Senate is a commitment to the traditions of fair play, allowing us to continue functioning to solve America's problems in politicized circumstances. This is enormously important to the success of this Chamber. I had heard when I was running for the Senate in 2007 and 2008 that something terrible had happened with this Chamber in the years that I had been back in Oregon and that a group had decided that they would use this Chamber as a weapon against any Democratic President rather than as a forum to solve America's problems. I didn't believe it. I didn't believe that the Senate I saw as an intern in 1976; that I saw when I was volunteering for organizations and working here in DC, washing dishes and waiting tables in 1977; that the Senate I saw when I was a Presidential fellow with a Republican Defense Secretary, Caspar Weinberger; that the Senate I saw when I worked for Congress in a think tank on strategic nuclear weapon policy for the Congressional Budget Office--I couldn't believe that a group of Senators had decided to use this Chamber as a weapon against the executive branch, if the executive branch happened to be from the other party. I didn't believe it. I dismissed the commentary I was hearing about what was occurring in this Chamber. Then I arrived in 2009, and I quickly saw that I was wrong; that the stories about this Chamber being taken over by an urge to use it as a weapon against Democratic Presidents had, in fact, been true. We all were nearly knocked over when the majority leader announced that his goal was to make sure--his top goal, his determining vision--was to use this Chamber to prevent President Obama from being reelected. And we are sitting here going: Let's work together on healthcare policy. Let's work together to make a fair tax system. Let's work together to develop the infrastructure that is so needed because the infrastructure our parents built is wearing out. Let's work to develop that infrastructure because we have new demands of a different economy. We need better bridges and better railways and better ports and better electric transmission lines, and we certainly need better broadband, or at least broadband of some kind, as a starting point in rural America. Those are the challenges we face. Let's work together. And then I watched as a key issue was turned into a political weapon against the President, rather than working to solve problems here in America, and that issue was healthcare. In April 2009, I was handed a brief written by Frank Luntz, who was a strategist for the Republican team, and that brief said, Whatever ideas that the Democrats work to pursue on healthcare, here is our strategy: Don't cooperate; call it a government takeover--whatever they do. I came to the floor of the Senate, and I gave a floor speech in 2009. I waved around the Frank Luntz memo, and I said: This is what is wrong with America. We have millions and millions of people without access to healthcare in America, and instead of working together, the Republican strategist is saying, Whatever ideas to improve the healthcare system they come up with, oppose them and call it a government takeover. Democrats said: You need bipartisan cooperation to get a healthcare bill through here. So they held 5 weeks of hearing in the HELP Committee--Health, Education, Labor, and Pensions Committee. I was assigned to that committee. Senator Ted Kennedy had assigned me to be on that committee, in partnership with Majority Leader Harry Reid. I was so happy to be on that committee. For 5 weeks around a square table, I saw idea after idea presented as amendments were discussed, debated, and voted on. Approximately 150 Republican amendments were adopted. Imagine a committee adopting today, under the control of the Senate, 150 Democratic amendments on a major bill--adopting, not just considering. Democrats went through every title, with television there and all of America watching for 5 weeks. That was just for the HELP Committee. Then there was a whole other process with the Finance Committee in which Senator Baucus led a group with Senator Grassley, if I am not mistaken. They had three Democrats and three Republicans, and they worked on the finance side to come to a bipartisan conclusion. But eventually Frank Luntz's vision won out: Whatever is suggested, oppose it and call it a government takeover. That would do the most damage to the President. That was the strategy. Democrats said: Well, it looks like we are going to have to take the Republican healthcare plan. What was the Republican healthcare plan? The Republican healthcare plan was to use a marketplace in which private companies would offer their insurance. Compare the insurance, one policy to the other, to find out which one best suited your family, and then based on income, you could get tax credits to be able to afford to acquire that insurance policy, so that essentially we would have a pathway to healthcare for every American citizen, for the millions and millions of people who didn't have that pathway. That was the Republican plan. It came out of the American Enterprise Institute as the marketplace solution for healthcare. It wasn't a public option. It wasn't, let's lower the age of Medicare. It wasn't single buyer. It was the Republican marketplace plan. It was already one that had been tested by a Republican Governor in Massachusetts. It was known as RomneyCare. So it was a Republican think tank plan and a Republican Governor-tested plan. Democrats said: OK, let's go that way. We think there are better pathways, but we will go with that because we need to be able to bring this Chamber together. But my colleagues across the aisle, under this vision of using the Senate as a weapon against a Democratic President, decided they were going to oppose it just like Frank Luntz laid out in those first few months of 2009. We see that same profound partisanship in this first-ever theft of a Supreme Court seat. We see that same profound partisanship in the strategy behind that theft, which is to pack the Court. We see that same profound strategy in the action that happened a couple hours ago. That was the first time in U.S. history a motion to close debate was filed on the first day of a Senate debate. So turn the clock back to those first 13 States and 26 Senators trying to figure out how the Senate would operate. They weren't really planning on it being a public forum, but they did have this sense that it would be wrong to close debate before every Senator had shared from their experience. So they had a rule. In their initial rules of the Senate, they had a rule to close debate. They never used it. They never used it, as far as we know, not once, because they wanted to give everyone the chance to be heard. Of course, the Senate was only a quarter of the size--26 Senators instead of 100 Senators. When they rewrote the rules of the Senate, they said: We don't need to have a rule for closing debate by simple majority called to question, if you will. We don't have to have it because we are going to hear everybody out before we vote. So that kind of launched that tradition of hearing each other out. Later, when the Senate restored a rule in which a supermajority could close debate, it took a supermajority. At another point, the Senate said: We need to have a little smaller supermajority. The reason that triggered, going back to having a strategy for closing debate--and I know historians will correct me if I have this wrong--in World War I, the President wanted to put military defenses on some of the commercial ships to fend off the threat from the Germans. There were Senators who said: This will draw us into war. We are not in the war yet. This will draw us into war by weaponizing our commercial ships. There was a date set for the Senate to adjourn. They proceeded to keep talking until that time arrived so the Senate could not act to pass that law, which the vast majority of the Senate thought was appropriate. They said: Well, we can't have just a small group, which basically would be the tail that wags the dog. That denies our ability to make decisions. So we will have to have a strategy for closing debate. So they established that strategy. The general principle behind it was most of the time you hear people out here in the Senate rather than closing debate. But what we saw tonight for the first time in U.S. history--a cloture petition filed on the very first day. James Madison, speaking to the Constitutional Convention, remarked that the Senate was a necessary fence to protect the people from the transient impressions into which they themselves might be led. It was a reason for the longer terms for the Senate. They have 2 years in the House; we have 6 years in the Senate. The Senate rotates so a third are elected every 2 years for 6-year terms. There is a saying attributed to President Washington--as far as we know, he never said it, but still it was clever enough that it has reverberated on down through the centuries--that the Senate would be the cooling saucer, so that you had your tea and it was too hot, and you poured it into the cooling saucer until it was just right. You don't act impulsively because you have 6-year--longer--terms and a smaller body who can ponder the issues more carefully. So here is the Senate, intended to be the cooling saucer, but what do we have right now? We have the stove turned up to the highest possible temperature. There is no stepping back from this course of undermining the integrity of the Senate and the integrity of the Court. It is full steam ahead. File the petition on the first day of debate so we can close this debate and have this vote done by Friday, the majority leader said. Vote on Thursday. Somehow we are going to maybe change the rules and vote on Friday if there are not enough votes to close debate. Back in 2013, there was an enormous blockade using the advice and consent power to obstruct both executive branch nominees and judicial nominees. This enormous blockade was used by colleagues across the aisle as a weapon against the judiciary and executive branch. When the conversation occurred back among the Founders, they said: Advice and consent power won't have to be used very often to turn down a Presidential nominee because just the very fact that the Senate can serve as a check on a Presidential nomination will cause a President to make wise appointments. They had actually wrestled with how to construct this situation. How do you construct this check and balance? Some said: The executive branch--why don't we have the President head it but have the positions filled by Congress? Others said: That is not such a good idea because one Senator's friend will be nominated for this position in exchange for another Senator's friend being nominated for that position, and the people will never really know who, where, why. There is no accountability. That is what it came down to. So we will have a single person--the President--nominate for the executive branch. Plus, that way the President can nominate people to help fulfill the vision the President campaigned on, which makes a lot of sense. The people didn't just elect a name; they elected a vision for the country. And the person responsible for helping to implement that--the executive branch--the President, should have a team who can go forward with that vision. Then the crafters of the Constitution said: But what if the President goes off track and starts nominating people who don't actually have the skills to fill the positions to which they are nominated? What if the President nominates people because they have done some favor for the President in the past, so that there is a conflict of interest? What if the President nominates someone of poor character? Shouldn't there be a way to put a check on a deeply misguided nomination? The founders said: Yes. We will create an advice and consent power for the U.S. Senate to be a check on misguided nominations. So here we are looking at that original philosophy of the Senate and the responsibility to stop misguided nominations through advice and consent, and we have had two profound betrayals of that responsibility last year and this year. The betrayal last year was that the Senate refused to exercise its responsibility at all. It stalled the seat. It sought to pack the Court. Now we have a deeply misguided nomination before us, an individual who is from the extraordinary right, not from the mainstream, who has twisted the law time and time again to find for the powerful and the privileged over ``we the people,'' and yet that nomination is here on the floor, not a single vote in the Judiciary Committee from across the aisle. This chart reflects the distribution of Federal judge ideology. If we had been putting up this chart decades ago, we would have probably seen a single bell curve. There would be folks on the right and folks on the left. But now we have the twin peaks chart of judicial decisionmaking. So the decisions are falling more and more into a ``we the people'' camp that says ``Let's fulfill the vision of our Constitution'' and a ``we the powerful'' camp that says ``Let's turn the Constitution upside down and run this country by and for the powerful.'' Where does this nominee fall? Not into the ``we the people'' vision of our Constitution and not even within the left side of that ``we the powerful'' twin peak but to the right side of it. That is where we are. The supermajority to close debate--commonly referred to as the filibuster--is a power we have sustained in order to have nominees who are not from the ideological extremes. But now we have one. We have one who, when a trucker was protected by the law--because of his personal safety, and he was freezing in subzero temperatures and had to go get warm and come back, and the law protected him from getting fired--he got fired. The court said: Absolutely, you can't fire someone for protecting their safety or others. Judge Gorsuch found a way to turn that on its head. When we wrote a law to say that you have to provide an education to disabled children, Judge Gorsuch said that babysitting is fine, as long as there is basically--not exact words, kind of mere fringe of advancement--something that was essentially equivalent to babysitting. And the Supreme Court, all eight Justices occupying both of those peaks, said that was absurd, and they overturned Judge Gorsuch, 8 to 0. We have this role from our Founders of being the cooling saucer. We have this role of being a check on the abuse of or misguided Presidential nominations, and we failed it last year by not doing our job. We fail it this year by considering anyone other than Merrick Garland. And we certainly fail it in the context of closing--considering the possibility of closing debate. That is the conversation that the majority leader has been invested in--that if this judge is so extreme as to not to get the 60 votes to close debate, we will change the rules. Well, how about we change the nominee? How about we save the integrity of the Senate? How about we save the integrity of the Supreme Court? Change the nominee. Ideally, put Merrick Garland up, because that way we solve the problem of the stolen seat--this enormous court- packing plan that is unfolding right before our eyes. And if the schedule on which the majority leader has said he wants to complete this court-packing occurs by Friday, it will be too late. We will have done the damage. George Washington shared his view of the Senate's role. The story goes that Thomas Jefferson returned from France to take on the duties as our first Secretary of State. He was having breakfast with President Washington and called for the President to account for having supported an unnecessary legislative Chamber in the Senate of having this conversation. That is when that conversation came up. We believe it to be apocryphal, but still the response, as written down at some later point in time, was that Washington asked: Why did you now pour that coffee into your saucer before drinking? Jefferson responded: To cool it. My throat is not made of brass. Washington said: Even so, we pour our legislation into the Senatorial saucer to cool. Is there a way that we can avoid what is unfolding now, this tragic miscarriage of the Senate's responsibilities? Whether that conversation took place, as I mentioned, is not actually known, but the fact that the story is still here means that it had some power behind it, whether it took place or not. And that was that for 200 years and counting, the government has counted on the Senate to pause, to not give acceleration to the momentum of the day, but to pause and be thoughtful in considering the integrity of our institutions. And that integrity, that moment when we need to be the cooling saucer, is now. Unanimous consent has been a tool that the Senate has used. Many times, if you are watching the Senate, you will hear ``unanimous consent'' to do this or that. Earlier, the majority leader came and spoke. He said: ``I ask unanimous consent,'' and he laid out a plan for tomorrow about how this debate would proceed. That unanimous consent-- each and every one of those represents a form of cooperation, often the last vestige of cooperation. It also goes to this observation that the Senate is about hearing each other and working together. Robert C. Byrd once remarked: That is what the Senate is about. It's the last bastion of minority rights, where the minority can be heard, where a minority can stand on its feet. One individual, if necessary, can speak until he falls. Well, you can't keep speaking if a cloture petition has been filed. So come Thursday, the phrase is the ``petition ripens,'' which means that it will be voted on, and generally it is 1 hour after we convene after an intervening day. So tomorrow, Wednesday, is the intervening day, and the vote will occur on Thursday. That is the opposite of what Senator Byrd was referring to because at that point, anyone who wants to be heard, can't be heard. The tradition of having weeks and weeks of conversation about a nomination that creates complexities or has complexities behind it-- that is being destroyed. That comity permeated many controversial debates the Senate has had over time. That willingness to hear each other and to vote is something that was embedded in the Senate as I saw it four decades ago and later in my life when I was working for Congress. There is no denying that the Supreme Court nominations have always been subject to a certain level of politics, but there has also been a certain level of cordiality to the process. Daniel Patrick Moynihan, in a debate on the nomination of Ruth Bader Ginsburg back in 1993, said: [The Senate] is perhaps most acutely attentive to its duty when it considers a nominee to the Supreme Court. That this is so reflects not only the importance of our Nation's highest tribunal but also our recognition that while Members of the Congress and Presidents come and go . . . the tenure of a Supreme Court Justice can span generations. We are not here on the floor debating who will serve in some office in the executive branch for the next couple of years. We are here debating the nomination for the highest Court that could ``span generations,'' in the words of Daniel Patrick Moynihan. So what else would we consider more important than a Supreme Court nomination to adhere to the traditions of the Senate and to honor the 60-vote requirement in our rules? We don't always like the nominee the other side has selected. We question them vigorously in confirmation hearings, and we end up voting against them. But until the situation last year with the death of Antonin Scalia, every vacancy in an election year for which a President proposed a Justice who has made a nomination--every time, the Senate did its job. It confirmed most. It rejected a few, but it did its job. Over the course of our Nation's history, there have been a total of 164 Supreme Court nominations; 124 of those were confirmed, roughly 3 out of 4, including elevating current Justices to Chief Justice. There have been 112 individuals who have served on the Supreme Court, and 39 Presidents to date have appointed at least one Supreme Court Justice. But only once--last year--has the majority conspired to reject its responsibility to consider a nominee for a position that opened in an election year. Only once has the majority conspired to steal an election-year Senate seat and send it to the next President and pack the Court. The action last year is different from anything that has occurred before. There were some individuals--some colleagues across the aisle-- who advocated for the Senate fulfilling its constitutional duty in the case of Merrick Garland and for continuing the traditions of this great institution. One of my colleagues told a townhall audience last year--one of my Republican colleagues said: I can't imagine the President has or will nominate somebody that meets my criteria, but I have a job to do. I think the process ought to go forward. Another colleague sat down and met with Judge Garland, even knowing that the Republican leadership was saying that he would not get a hearing. That colleague declared, and I quote, that colleague was ``more convinced than ever that the process should proceed. The next step, in my view, should be public hearings before the Judiciary Committee.'' So I pause to thank my Republican colleagues who worked to stand up for the integrity of the Court and the integrity of the Senate and for due deliberation on a Presidential nomination during an election year. Thank you to my colleague from Kansas. Thank you to my colleague from Maine. There may have been others I didn't hear about, and I imagine there were because I think Members of this body take their responsibility extremely seriously. They take their oath of office seriously, and they were put in an impossible position when their leadership asked them not to exercise their advice and consent responsibility under the Constitution. That is where we were last year. Here we are, on the brink of doing devastating damage to the Court. Shouldn't we pause and be the cooling saucer? Shouldn't we send this nomination back to the President and ask for him to put forward Merrick Garland or someone who basically is on the same path that Merrick Garland was on--the path that was so honored and complimented by Senators on both sides of the aisle? Shouldn't we address this before we set the precedent of a stolen seat? Think about what this precedent means going forward. A few years from now, there may well be another vacancy, and this vacancy may be under a Republican President, and maybe the Democrats control this Chamber. At that point, do they say: We are going to rectify the wrong in the past and restore the integrity of the Court by taking that seat and forwarding it to the next President, hoping that it will be a Democratic President, and there will be a nominee who will restore the integrity of the Court because there will be a nominee more like Merrick Garland? Or will there be future leadership that says: Hey, their team stole a seat that occurred--an opening that occurred in January of election year. Let's steal one that happens in October the year before the election to balance it out. If you can steal it for 12 months, why not steal it for a few more? Where does that end? What good does that do to our institution? What honor does that give to the 5-to- 4 decisions of the future? That is where we are headed. We are headed to a place that is breaking two centuries' worth of tradition and establishing a precedent that will do enormous damage to the Senate and to the Presidency and to the Court. That is why I am here addressing it at length tonight. I did find that when the majority leader didn't want to put into a resolution that the same rule he advocated for last year should apply to this President, it was clear--as clear as you could possibly make it--that what happened last year had no principle in it; it was an issue of partisan tactics to amplify the strength of one party and one vision-- that of government by and for the powerful--at the expense of the other vision. Don't we owe more in our role as Senators, especially on something as important as the Supreme Court and the integrity of the Court, than just another partisan strategy? I will tell you, I think about why it is that we are at this place right now. There are a couple of things that are very, very different from the Senate I first saw four decades ago and the America of four decades ago. One of those is that Senators four decades ago lived here with their families. They had a Monday-to-Friday workweek. They had evenings to build relationships, and they had weekends to do things with other colleagues across the aisle. They took a lot of bipartisan congressional delegations. They all knew each other well as friends. But now the Senate comes in on Monday night for a vote at 5:30 p.m. and we leave after a vote at roughly 3:30 p.m. on Thursday. So it is 3 days--Monday afternoon to Thursday afternoon. We don't have the time in the evenings because of that compressed schedule. We don't have the time on the weekends because we are back in our home States or traveling somewhere else. So we don't have the relationships. We just don't have the common activities. There used to be lunches where the Democrats and Republicans ate together. Now there is a partisan Republican lunch, three out of three lunches and two out of three for the Democrats. We don't have that meal together to get to know each other, so you have to work extraordinarily hard to set up a meeting to try to work with a colleague on a topic. If it is something larger than you can discuss here during the middle of a vote, it can take a month to get a 20-minute meeting to ponder with a colleague how we might work together on a problem. So that is a change in this Chamber, but there is another big change. That second big change is related to the role of the media. We had big issues in our country decades ago, but we also had community newspapers, and we had three network television stations that essentially provided a foundation of information. We might have had different views about that information and different views about what we should do in the future, but we had a common foundation of information. Now we don't have a common foundation of information. Information flows in every possible direction, much of it made up. I was very struck when--I hold a lot of townhalls. My first summer as a Senator--2009--I was out holding townhalls. I do one in every county every year. Folks said: You know, why are you supporting this Senate healthcare bill that has a death panel in it? That was one of those false news stories. What was the real story? The real story is that a Republican Senator from Georgia had proposed--a Republican Senator had proposed that we pay doctors for the time they spend with their patients informing them about how to do a living will so that if they were incapacitated in the future, their desires would be followed, not someone else's desires-- not a death panel, their desires would be followed. That is as American as apple pie. We were going to make sure that we could control, each of us, our own future. It was a Republican proposal, a good proposal, a proposal that made a lot of sense so that people could have control over their future medical decisions if they were incapacitated. But for partisan political reasons, a candidate had twisted that into a death panel and turned it on its head, that someone else would make the decisions instead of you making the decisions for yourself, which is what it was all about. So I was at this townhall, and a constituent, an Oregon citizen, raised this issue. I said: You will be happy to know that they don't exist. You will be happy to know that the idea from which the false news story began was about empowering you to make your own decisions. Don't you feel better now knowing that the conversation in the Senate was about you controlling your own destiny? The woman said to me: I don't believe you. I said: Well, you don't have to believe me; I have the text right here that was proposed. I had heard about this issue, and so I wanted to make sure that people knew about it and that I could answer if asked. So I shared the text with her. She said: Well, I don't believe you. Who am I going to believe--a U.S. Senator or a television policy analyst? She meant Glenn Beck. Glenn Beck and others were simply making stuff up and putting it on their television show or their radio show, designed to infuriate people by setting up this false story--this false story that there was a government takeover and this false story that there was a death panel. If you want to understand what happened 2 weeks ago in the House when the House failed to pass a healthcare bill to replace ObamaCare, it is a story about false news. It is a story about partisanship over policy. It is a story about a year-plus of bipartisanship being trumped by Frank Luntz's vision of whatever is proposed, call it a government takeover. Even if--his memo didn't say this, but as it turned out, even if it was the Republican strategy of having a marketplace for people to get their health insurance, call it a government takeover. So when the Republicans said they were going to replace ObamaCare, the problem was that ObamaCare was the Republican plan, so they did not have anywhere to go. They could either tear down healthcare completely and put 24 million people on the ice--that is, out of reach of healthcare--by the way, not just individuals but rural healthcare institutions because the rural clinics were powerfully strengthened through the Affordable Care Act. The rural hospitals were powerfully strengthened through the Affordable Care Act. There was so much uncompensated care previously that hospitals and clinics had to give away for free, and now they were getting paid because people had insurance, so they were much stronger. So it was about 24 million people, but it was also about a vast healthcare infrastructure in rural America that the Republican plan would destroy. But they could not propose their own plan because their own plan had been adopted in 2009--marketplaces with private companies competing against each other, tax subsidies, tax credits so people could afford to buy those policies. That was the American Enterprise Institute plan. That was the Republican Governor's plan. That was RomneyCare. So where do you go if your plan has already been enacted into law? If 150 of your amendments were accepted as part of that process, where do you go when you have used a false story, a false commentary to the American people year after year after year saying that something is some terrible thing that it is not? Well, where you go is the process blew up. That is where it went because it was based on a false foundation, the entire 8 years of attack on the Affordable Care Act--a false premise just like Sarah Palin's death panels were a false attack. We can't keep going through this extreme partisanship and save the Senate at the same time. Another challenge we have--in addition to the fact that the friendships that cemented the Senate together are not as developed as they were decades ago because we are not here and we don't spend enough time with each other--another problem is that we have all of these false stories being generated continuously to make people angry with each other. Those are certainly problems, but we have another big problem, and that problem is the concentration of campaign money, the dark money, the Citizens United money that is corrupting our political system. I can't convey how much damage this has done. Let's just review the biggest example of this strategy. The Koch brothers decided in 2013 that they wanted to have a legislature that would support their extraction and burning of fossil fuels. There was this pesky little problem threatening the entire planet called global warming in which the burning of those fossil fuels was polluting the air, raising the temperature of the Earth, and having profound consequences. So people were talking about, how do we transition off of fossil fuels? The Koch brothers said: Well, that is our business. We can't let that happen. We have to have control of the House and Senate. So the story with the Senate is they decided to spend a vast sum of money on the campaigns of 2014. The result was that they influenced the elections and had a positive outcome, from their point of view, in Louisiana, Arkansas, North Carolina, in Iowa, Colorado, and Alaska. There were a few other States that they came to that year, including Oregon, my home State. So they won most of those campaigns. They put the Republican majority into office so they would have a Senate that would not be discussing the biggest threat to our planet--carbon pollution and global warming--and instead would have one that would sustain tax breaks to accelerate the extraction and burning--the profitability of extracting and burning fossil fuels. Then they did something that should be recorded as a significant moment in U.S. history. In January, as the Senate was coming in with this new Republican majority, they did not say: Well, that is great. We have a Republican majority, and now we have folks who will support our fossil fuel extraction and combustion. We will make a lot of money. They will keep the tax breaks in place for us. No, they didn't say that. They said: Pay attention. This was January 2015, 2 months after the election, and we were just coming in. The Republican majority was just coming in. The Koch brothers said: Pay attention. We are committing to spend the better part of $1 billion in the next election 2 years from now. I don't know that such a statement has ever been made by a body in the United States, a similar statement. Next election--we had just had this election--next election we are going to spend almost $1 billion. They wanted everyone in this new Republican-majority Senate to know who was in charge. The Koch brothers are in charge. They paid for the third-party ads that put your election in the victory column. You will pay attention--at your own risk if you don't. A number of my colleagues shared that this was a very real threat, that the Koch brothers would be happy to find a primary opponent and not just undermine them in the general election or fail to fund them in a general election--and the first bill up was one of the Koch brothers' top priorities, the Keystone Pipeline. So we now have a body about which, at least, you can say that a very significant behind-the-scenes force of this body is the Koch brothers. Well, how does this tie in with what happened in 2016 when Antonin Scalia died and there was an open Senate seat? Here is how it ties in: You had a 5-to-4 Supreme Court that had decided that it was OK for groups like the Koch brothers to spend billions of dollars in dark money, third-party campaigns, eviscerating the opponents on the other side of the issue. Four Justices had said no. In our ``we the people'' Republic, having that concentration of power is a corrupting force. It is an attack on the very design of our country, but you had five others who said: No, no, no, it is OK. That makes me think about a letter that Jefferson wrote. Jefferson was writing to a friend, and he said: There is a mother principle, a mother principle in our design of the government. He said: That is that decisions will only be made in the interest of the people if each person carries an equal voice. He recognized in using the term ``voice,'' something broader, more powerful than just a vote. That is why I said ``voice.'' What has happened with Citizens United, with respect to the five Justices, is that it is OK to have some individuals who have a voice in our campaign that is equal to thousands or tens of thousands or even 100,000 other citizens. We didn't have such a way to amplify one's voice--not anything close to that amplification when the Founders designed our government. Yes, you could put an article in the newspaper. Yes, you could hand out pamphlets. But with the growth of radio and television and now the internet and all the strategies through social media and internet advertising, through all of that, money can amplify one's voice. You can have the equivalent of a stadium sound system that drowns out the voice of the people. That is the opposite of Jefferson's mother principle, Jefferson's principle that we will only be a government that pursues the will of the people if each citizen has an equal voice. Now, granted, we all know that vision was flawed. Women weren't given the vote. Many minorities were excluded. But we have worked overtime toward that vision of inclusion, opportunity, and equality, and we have come a long way. But in one case, we have gone in the opposite direction, and that is the Citizens United concentration of money corrupting our elections, undermining the legitimacy of this Chamber and undermining the legitimacy of the House Chamber. Instead of being elected to do government of, by, and for the people, it is the product of an enormous concentration of power by and for the few. You can see it in the policies that are pursued. Three decades after World War II, we had an economy that worked really well for working America. American workers participated in the wealth that they were creating, and the result was that families had a leap forward. My parents have lived under humble circumstances. I had a grandmother who at one point had lived in a railroad car. I had a grandfather who put all the children into a car and drove from Kansas to Arizona with all of the individuals in the family and their possessions in a single car, going west, trying to find work and find a future. Those were incredibly hard times. Folks were living in shacks. Then, after World War II, we had these three decades when we had this big leap forward in the standard of living, as workers shared in the wealth they were creating. From about the time I got out of high school, which was 1974, in the middle of that decade--let's call it 1975--and in the next four decades, virtually all of the new income in America has gone to the top 10 percent, which means that 9 out of 10 Americans have been left behind in this economy. I live in a blue collar community, the same community I have lived in since third grade. I was there from third grade through graduating from high school. I moved back into that community the year my son Jonathan was born 20 years ago. It is a blue collar community. It has changed over time. It has become much more of a diverse community. There are many ethnicities from all over the world, and a lot of languages are spoken in the school. It is a blue collar, working community. Folks there say: My parents were able to buy a house in this community, but the only way I am going to own a house in this community is to be able to inherit it from my parents because of the disappearance of living-wage jobs. That is what has been going on in this economy. We provide these enormous, enormous tax breaks for the best off in our society. Well, there is a concept referred to as the Buffett rule. Warren Buffett said: Why should I, a billionaire, be taxed at a lower rate than my secretary? Why does my secretary pay a higher rate than I do? So every now and then, we have had on the floor of the Senate an effort to correct that and say: Hey, a billionaire should pay at least the same tax rate as the secretary or the janitor. But we haven't corrected it because the vast influence of funds in this Chamber are working on behalf of the privileged and the powerful. So here we are, trying to figure out why last year we had, for the very first time, a majority leader who engineered the theft of a Supreme Court seat from the Obama administration to another administration. It was the first time in U.S. history. To understand 2016, you have to understand 2014, when the Koch brothers invested this vast sum in all the campaigns so they could control the Senate. You have to understand that in January 2015, the Koch brothers sent a message that you had better pay attention. You have to understand that the Koch brothers' strategy is based on the dark money, third-party campaigns that Merrick Garland might possibly have voted against--a 5- to-4 Citizens United decision that Merrick Garland might have found 5- to-4 in the other direction. We don't actually know where he stood on this. He was so square down the middle and so complimented by people on the right as well as the left. We don't know how he would have voted on that. But in order to ensure that the dark money could continue, in order to ensure that decisions would be made by and for the powerful, to ensure that the fossil fuel companies could be swept clear of regulations that would diminish the amount of fossil fuels they could extract out of the ground and sell for combustion, in order to ensure the profits of the Koch brothers, that drove this unique case of the theft of the Supreme Court seat last year. There was that effort to pack the Court by sending that seat to the next President in the hopes that it would be a conservative President and then to have that nominee say: I will only nominate somebody who comes off a list from two conservative groups on the far right--boy. That was exactly the vision. It has unfolded exactly as--I guess you could say--those in that powerful group wanted it to unfold. We have a different responsibility. We don't have a responsibility to a ``we the powerful'' vision. We don't have a responsibility to a ``we the privileged'' vision. We have a ``we the people'' Constitution. We have Jefferson's mother principle that says: We should be in a situation, if we want the will of the people to be enacted, in which people have an equal voice. There is this third-party, dark money that is corrupting America, our fundamental institutions, our election institutions. It is corrupting this institution--both sides, the House and the Senate. That is why I hope there is a Supreme Court that eventually says this is wrong; this is out of sync with our constitutional vision. The Court said: We think transparency will do the job. They kind of assumed that there would be transparency in where the money came from and where it went. It used to be that colleagues on the right side of this Chamber would say: Oh, we love transparency. Transparency will be the sunlight that disinfects the potential corruption of campaign donations. We love transparency. Many of those who opposed McCain-Feingold caps on donations said: We love transparency, the sunlight, the disinfectant. Won't that be wonderful. Then, we had a transparency bill on the floor and said: People have to know where every donation comes from so there is not this dark money, unidentified money surging through the veins of the American campaign system, surging through the arteries. Suddenly they say: Oh, wait; we don't like transparency so much because that might hurt the prospects for the powerful folks who got us elected. So then you have the picture of why this unique circumstance occurred and why we are where we are and how much damage it is going to do and how it undermines the legitimacy of the Court. Merrick Garland's treatment is unprecedented in the history of Supreme Court nominations. There was a hastily fabricated pretext that we shouldn't do a normal process under our advice and consent responsibilities in the final year of a Presidency or the fourth year of a Presidency. Now, you can read the Constitution from one end to another, but you won't find that principle in the Constitution--that suddenly we can ignore our responsibility in the fourth year of a Presidency. The responsibility to be here in the Senate Chamber doesn't end in a fourth year. No other responsibility ends. The responsibility of the President to nominate for empty positions doesn't end, but that pretext was one which was so quickly concocted. The foundation was so quickly destroyed, and it was just revealed for the destructive partisan tactic that it was--this Court-packing tactic. One colleague said: We have 80 years of precedent of not confirming Supreme Court Justices in an election year. That is an exact quote. One colleague came to the floor--a colleague, by the way, who ran for President--and said: We have 80 years of precedent not confirming a Supreme Court Justice in an election year. Wrong. There have been 15 vacancies in an election year, and 15 times the Senate acted, and in most of those cases, it was to confirm the Justice. We could even look at the fact that there were some vacancies that occurred before an election year and were confirmed in an election year, just like the nomination of Anthony Kennedy--who sits on the Supreme Court today--in 1988. To my colleague who said we have 80 years of precedent of not confirming a Supreme Court Justice in an election year--that is his exact quote--not only is that not true, if you look at history, at every single nomination vacancy that occurred in an election year--and most were confirmed, but the Senate always acted--it is simply not true, if you look at Justice Anthony Kennedy, who sits on the Court a few yards from here, who confirmed just a few years ago--in 1988-- within the memory of most Members who serve in this Chamber. If you go back just one more election--let me put it differently. Until Merrick Garland's nomination last year, we hadn't had an election-year vacancy for a sizeable period of time. That is why I am going to have these three charts put back up. If we look at these charts here in this situation, these are some vacancies that occurred in an election year. Look at this group here--in 1928, 1860, 1864, and 1956. Well, 1956 was a good period of time ago. That was about 60 years ago, 61 years ago. That is quite a while. Let's look at the next chart. Well, vacancies in an election year-- year 1800, year 1872, year 1880. They happened a long time ago. How about the last chart of nine. Again we see a lot of 1800s--1804, 1844, 1852, 1888, 1892, in 1916 twice, and 1932. The point is taken that it has been quite a long time since we have had a vacancy in an election year. So if you concoct a premise within an hour or two of a Supreme Court Justice dying and get it wrong--but then there is also a colleague who had the time to look up the facts who got it wrong as well. In the 1932 election between Franklin Roosevelt and Herbert Hoover, we did have an election of a Supreme Court nominee. Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes. On February 24, 9 days later, the Senate confirmed Cardozo. That was the last time we had a Supreme Court seat open up in an election year, except for the Eisenhower occasion. Why don't we go back to Eisenhower. The seat opened up 1956, an election year, and it was the following January that he was confirmed. So we can look to the fact that the Senate acted on all 15 of the 15 election-year vacancies, confirming most of them. Here we see two out of the four confirmed, and of these eight before Merrick Garland, we see six of the eight confirmed. Then the other group of three were the folks where the vacancy occurred after the general election, but the Senate still confirmed all three, whether up or down. So if you look to history, my colleague who said that we were in a situation where we had been in the tradition of not confirming people during an election year, 80 years of precedent not confirming a Supreme Court Justice in an election year, well, that is a phony, phony, incorrect, fallacious--insert your own adjective here--argument because in our entire history, every single seat that became vacant in an election year was actually done by the Senate before the next President took office. Three vacancies occurred after the general election. We saw the three in this chart here. John Jay in 1800, with the Adams administration, was nominated to be Chief Justice on December 18 after Chief Justice Oliver Ellsworth retired. Jay was the first Chief Justice but retired in 1795 to serve as the second Governor of New York for two terms. After that, Jay's nomination was confirmed in the Senate, and he ended up declining the position and retiring from public life instead. For those of you who are thinking about political trivia, who was the election-year nominee confirmed by the Senate? The vacancy occurred late in December. He was confirmed 3 days later and declined it. Now you know the answer. It is the nominee John Jay, who had served as Governor of New York for two terms. Adams was more successful when his second choice, John C. Marshall, was confirmed on January 27. That confirmation happened after the term. In 1872 Ward Hunt was nominated by Ulysses Grant a month after easily winning reelection, on December 3, 1872, to replace the retiring Justice Samuel Nelson. Hunt was confirmed by the Senate 8 days after being nominated. William Woods was nominated by Rutherford Hayes in 1880. He was nominated to replace William Strong, who was stepping down while still in good health at the age of 72. That set an example for several infirm colleagues who refused to do the same. I hope his influence was substantial because that is one of the challenges of having a lifetime appointment--sometimes the Justices stay in office beyond their ability to exercise clear reasoning. It is a good example that William Strong set. As a member of the U.S. circuit court, Justice Woods was easily confirmed by the Senate 39 to 8 on December 21, 1880. He was the first person to be named to the Supreme Court from a former Confederate State. So there is another little bit of Supreme Court trivia. There were four vacancies that occurred before the general election but the nomination didn't occur until afterward. Why did Presidents delay until afterward? This probably is a different story in each case. We see basically a four-month delay with J.Q. Adams. We see it delayed another 9 months with President Buchanan. There was a delay of a couple months by Lincoln and 3 months by Eisenhower. One reason might have been to clear from the heat of the election season. That would be interesting because that is essentially what Biden referred to when he said if a vacancy occurred in the heat of the election season in the summer, we should perhaps wait to act on it until after the election season is over, until after the election. John Crittenden was nominated in 1828 by John Quincy Adams. In 1828, a month after losing his bid for reelection, President Adams nominated Mr. Crittenden to replace Justice Robert Trimble, who had died in August from malignant bilious fever. On February 12, the Senate voted to table his nomination, but they acted. They acted in their advice and consent role, unlike what happened last year. Although President Adams' nominee was not confirmed, he did receive a fair shot when the Senate voted on his nomination on the Senate floor. Jeremiah Black was nominated in 1961 by President Buchanan. On February 5, 1861, President Buchanan nominated his Secretary of State, Jeremiah Black, to fill the seat of Justice Peter Daniel, who had passed away at the end of May. On February 21, 16 days later, the Senate rejected Mr. Black's nomination, and they rejected it by a single vote. They did so not by tabling the nomination but by rejecting the motion to proceed to the nomination. There has been a change in Senate rules in regard to that motion to proceed to a nomination. But again, even though his nomination was rejected by a single vote, Jeremiah Black still received the treatment of the Senate. The Senate acted. They considered and they acted. Salmon Chase in the Lincoln administration, 1864. Chief Justice Roger Taney passed away October 12, 1864, and 2 months later, on December 6, 1864, after winning his reelection in a landslide, President Lincoln nominated his Treasury Secretary, Salmon Chase, to fill Chief Justice Taney's seat. Well, in this case, on the same day he was nominated, December 6, 1864, the Senate confirmed him and confirmed him by a voice vote. Well, I don't think we are going to see another Senate or another Supreme Court nominee confirmed by a voice vote for a very long time to come. William Brennan, Jr., was nominated by President Eisenhower in 1956. On October 15, just 2 weeks before the general election, Justice Sherman Minton stepped down because of his declining health. On that very same day, Eisenhower named William Brennan, Jr., as his nominee. Then on January 14, the recently reelected Eisenhower officially nominated Justice Brennan to the Supreme Court. First he was nominated as a recess appointment--another interesting piece of Supreme Court trivia--but then in January he was renominated as a regular nominee to be considered by the Senate. The Senate was back in session, and his nomination--that is, the President's nomination--did face opposition from the national news. They were worried that, as a Catholic, he might rely more on religious beliefs than on the Constitution. That is an interesting conversation that is hard for us to identify with today. Justice Brennan was opposed by Senator Joseph McCarthy because he made a speech decrying the overzealous Communist investigations as ``witch hunts.'' But on March 1957, Justice Brennan was confirmed by the Senate almost unanimously. The only ``no'' vote was Senator McCarthy. Let's take another look at those vacancies that occurred before the general election where the nomination also occurred before the general election. We have William Johnson in 1804, who was nominated by President Jefferson. On January 26, Justice Alfred Moore had stepped down because of declining health, and 2 months later, President Jefferson nominated William Johnson. Two days after that nomination, he was confirmed to the Senate by a voice vote. Then we turn to a couple of nominations the Senate considered, but they rejected them through votes to table the nomination. President Tyler nominated Edward King in 1844. Justice Henry Baldwin passed away on April 21, and on June 5, President Tyler nominated Edward King to fill the seat. But the Senate did deliberate on that nomination and decided to reject it. They tabled it. Later that year, Tyler renominated King to fill the vacancy, but the Senate again voted to table the nomination. They said: What was said before still goes. Mr. King did not make it to the Supreme Court, but he did have the opportunity to present his case and have the Senate act on his nomination, not once but twice. In 1852 Edward Bradford was nominated by the Fillmore administration. Edward Bradford was nominated on August 16, about a month after Justice John McKinley passed away. He too had his nomination tabled by Members of the Senate--by the full Senate--voting and saying no, but they did act. They did vote--Melville Fuller under Cleveland. Now we get into a whole series in which the Senate said yes, not only in reacting but in ``we think you are qualified to serve on the Court.'' They made it not just from the advice stage but to the consent stage. (Mr. SCOTT assumed the chair.) Justice Morrison Waite passed away in March of 1888, and President Grover Cleveland nominated Melville Fuller to fill the vacancy on April 30. Over the course of his nomination, Fuller faced opposition because he had avoided military service during the Civil War, and he had tried to block wartime legislation as a member of the Illinois House of Representatives. Those were the flaws that the Senate found as they vetted his nomination. He did not receive every vote in the Senate, but the Senate did act. The Senate voted, and they voted 41 to 20, by a 2-to-1 margin. The Senate looked at his record and said: Yes, it has flaws, but on balance, it is qualified and appropriate. And they confirmed him. President Harrison nominated George Shiras in 1892. Earlier in the year, in January, Justice Joseph Bradley had died, but it was not until July 19 that Harrison nominated George Shiras to fill that seat, which was still before the election. In spite of the 6-month period between the vacancy and the nomination, Shiras was confirmed, yet again, by a voice vote in the Senate one week after being nominated. Now we turn to the 20th century, the 1900s. President Wilson nominated Brandeis. This seat was open because, in January, Justice Joseph Lamar had died. Because Brandeis' nomination was bitterly contested, it became the first time in American history that the Senate Judiciary Committee had held a public nomination hearing. Today, we think of the fact that nominations have always gone to the Judiciary Committee when, in fact, the Senate used to serve as a Committee of the Whole. The nomination came to the floor and was considered by the entire Senate--debated by the entire Senate--without there being a previous committee action, committee hearing. Brandeis was the first for whom the Judiciary Committee held a hearing. He was denounced by a number of folks because they argued that he was unfit to serve. There was, by many people's estimations, a heavy dose of anti-Semitism at work. Despite that, Justice Brandeis was confirmed by the Senate by a vote of 47 to 22. Then we turn to John Clark--also in 1916. Justice Charles Hughes had resigned from the Court in June of that year in order to run for President against the sitting President, Woodrow Wilson. He is the only Supreme Court Justice ever to resign from the Court and run against a sitting President. In fact, as far as I know, he is, perhaps, the only one to resign from the Court and run for President at all. A month later, on July 14, Wilson nominated John Clark to fill the open seat. On July 24, 10 days later, the Senate confirmed him. This brings us to Benjamin Cardozo in 1932. Benjamin, prior to Scalia's dying, was the last of this group of nominees who had the vacancy occur before the election and the nomination occur before the election. Benjamin Cardozo was nominated on February 15 by President Herbert Hoover to replace retiring Justice Oliver Wendell Holmes. Because he was a Democrat who was appointed by a Republican President, his nomination is considered to be one of the few Supreme Court appointments in which one could find no trace of partisanship. On February 24, 9 days after the nomination, Justice Cardozo received a unanimous voice vote by the Senate. So there are the 15 times that there has been a vacancy in an election year, and in all 15 times, there was action by the Senate until last year. That brings us to 2016 when the vacancy occurred, the nomination was made, and the Senate chose not to act. We certainly have entered new territory with this decision to amp up partisan tactics to pack the Court by stealing a Supreme Court seat. No one in this Chamber should be comfortable with that. For any of my colleagues who are feeling comfortable with it, just pause for a moment and ask yourself: Would you feel comfortable if the parties were reversed? If this were a Democratic majority stealing a Supreme Court seat from a Republican President, I ask you: Would you feel comfortable if the tables were reversed? I think, probably, every Member on the Republican side of the aisle would say it would be outrageous if the Democratic majority stole a seat--a tactic never before used in our history--to deliver it to a future Democratic President. That would be unacceptable. That is the ability to walk in someone else's shoes and to look at an issue from the viewpoint of our obligation to the institution rather than from simply advancing the desires of the short-term political rewards, if you will. For 293 days, no action was taken on the nomination. It was a complete break with Senate tradition, with Senate precedent, with U.S. history. There were 16 nominations to fill a Supreme Court seat that became vacant in an election year, and only one seat was stolen--the seat that opened up when Antonin Scalia died and Merrick Garland was nominated. Among the hastily crafted pretexts for stealing this seat--and I mentioned this earlier, but I will mention it again--some raised the so-called ``Biden rule.'' There is no such rule in our rules, and there is no such speech that presented a rule. There was a speech in which Vice President Biden said that if there is an open seat, the Senate might be wise in an election year not to consider it in the heat of the election. That is simply a statement of respect for the Senate's ability to be the cooling saucer, to have thoughtful dialogue that maybe could not take place in the final months of a Presidential campaign. I think most of us would say, if we had a nomination and we were coming together in September or October of an election year to consider it, maybe it would be better to wait until after the election in November to be able to have that thoughtful dialogue then. That is really merited by the importance of a Supreme Court vacancy and nomination. Virtually everyone here would agree with the comment that Senator Biden made, but recognize this: His comment was in the abstract. There was no open seat. His comment was in the context of a speech in which he went on to say shortly thereafter, with regard to his theoretical situation in which he would consult with both sides of the aisle, if the President were to nominate somebody in the mainstream, he would probably win his vote, which was conveniently left out by my colleagues who referred to this. The idea that we try to depoliticize and thoughtfully consider, which was the gist of Biden's comment, is one we should all respect. If you have to go back to a comment that was made in a speech many, many years ago by one Senator in order to justify the stealing of a Supreme Court seat and if you ignore history, ignore precedent, and ignore the Constitution in order to do so, you really know that your argument is not just on shaky ground, but it has no grounds. I will read a little bit of what this was all about. These are the remarks I have that were given back then. It begins: Given the unusual rancor that prevailed in the (Clarence) Thomas nomination, the need for some serious reevaluation of the nomination and confirmation process and the overall level of bitterness that sadly affects our political system and this Presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination are remote. In my view, politics have played far too large a role in the Reagan-Bush nominations to date. One can only imagine that role become overarching if choices were made this year, assuming a Justice announced tomorrow that he or she was stepping down. Should a Justice resign this summer . . . actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention, it is a process already in doubt in the minds of many and would be become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate, itself. There it is. Depoliticize the debate that we are to have. Move that debate outside of the context of the heat of a campaign. He went on to say: President Bush should consider following the practice of [some] predecessors and not . . . name a nominee until after the November election is completed. Get the nominee out of the heat of the political campaign. That was actually something that we saw in a couple of these nominees. These are cases in which the vacancies occurred before the elections, and the Presidents waited until after the elections to name the nominees. That is the essence of what Biden was referring to: Get the nomination out of the heat of the campaign. I do think that you have such an imbalance in this argument to anyone who opens his eyes to the conversation. You have, on the one side, our history of 15 vacancies during an election year, when the Senate acted on all 15 before Antonin Scalia died. On that same side of the scale, you have our constitutional responsibility to provide advice and consent. On the other side of the scale, you have a comment by former Senator Biden, then Vice President Biden, who was saying, actually, take a nomination out of the heat of political passion for it to be considered, which is completely consistent with our history. It is the Constitution and our history versus an out-of-context comment made by a former Senator, in a theoretical situation, but he actually did not say what folks said he said. It is clear where the weight of this argument lies. That is what makes it such a transparent transgression against our Constitution, a transparent transgression against the integrity of the Senate because the majority leader asked the Senators not to do their constitutional responsibility to provide advice and consent, a transgression against the Supreme Court because we now have a stolen seat and a precedent that will haunt the legitimacy of the Supreme Court for decades to come should we proceed down this route, should we continue with this conversation, should we have a vote, and should we--and I so hope we do not conclude with this theft being fully accomplished this week. It is such significant damage to everything-- our institutions, the credibility of the Court, our responsibilities. Well, some have said: Why filibuster? Every time I say ``filibuster'' it gets very confusing because it is hard for people to think--what does ``filibuster'' mean? Is it speaking at length? Well, yes, it is. In some historical context, speaking at length has delayed action. It was the set of speeches when Woodrow Wilson wanted to arm commercial ships before World War I that prevented the Senate from acting to approve that. Those speeches were around the clock. By the way, the term ``filibuster,'' where does it come from? What does it mean? Well, it is, I guess, an evolution of the word ``freebooter.'' A freebooter was a pirate, so I guess you could say piracy. The folks who spoke at length to stop consideration of putting arms on our commercial ships took over the Senate and didn't let it act. But that is one way to view it. Another way of viewing it is that we had the courtesy of hearing everyone in the original Senate. The Senate got rid of the direct motion to close debate because they didn't need it, because they wanted to hear from everyone. It is a tradition of letting everyone be heard and protecting that tradition. So now that we have restored this motion to close debate, where the Senate rules require a supermajority, they were basically saying most of the time we are going to hear everybody out. It will take the large bulk of the Senators to close debate. That was used in a very few circumstances--almost never on a motion to proceed, almost never on an amendment, and rarely on final passage of a bill because it was considered that the Senate needs to act. It is a legislative body. On the other hand, we don't want to have this place be paralyzed. To use the analogy of George Washington's cooling saucer, he said the Senate should be a cooling saucer, not a deep freeze. But too often, the abuse has resulted in the Senate being unable and paralyzed to act. So here we stand with this concept that it is hard to put your hands around, and many of us are saying we should not close the debate on this nominee, if such a debate--if such a vote is held on Thursday, we should vote against closing debate. In the modern Senate rules, that is what a filibuster is; you are voting against closing debate. It comes down to this: 60 Senators have to be supportive for someone to be on the Supreme Court. That is to protect the integrity of the Court so that you don't have nominees from the extreme edges. The President, knowing that the Senate might not have 60 votes for someone from extremes, is thereby encouraged to produce a nominee that is someone from the mainstream. That is the power of the supermajority. And having people from the mainstream of judicial thought sustains the integrity of the Court in the eyes of the citizens. That is why many of us believe that we should vote against closing debate. If we close debate on Thursday--and let me repeat again that this is the first time in U.S. history that the majority leader has filed a petition to close debate on the very first day of debate, the first time another of this stream of incredibly partisan tactics designed to pack the Court--the first time in U.S. history. It takes two days before the vote can actually be held. The majority leader announced to file the petition earlier today, and the vote cannot be held until Thursday. When that vote is held, there will be at least 41 Senators who say we should not close debate. In other words, there will not be a supermajority of 60 necessary to close debate. That is what I am predicting. That is what my crystal ball says. Why do I believe that there will not be 60 Senators to vote to close debate? Well, I will tell you now that I can say that is very likely because at least 41 Senators have announced that they will vote against cloture. They have made their announcements. Turn the clock back to when I first stood up and said: This seat is stolen, and we should not vote to close debate. We must filibuster, which means the same thing under the rules of the Senate. I said this in order to stop the theft of Supreme Court seat-stealing. If this theft is successful, it will damage the Court forever, and it will result in not just the integrity of the Court being damaged, but the different decisions--a different set of decisions because, while we don't know exactly how Merrick Garland and Neil Gorsuch would vote on any individual case, we know from their records that one is straight down the middle and the other is on the very, very far right from a list vetted by two rightwing Republican organizations. So we can ask: Did the President ask the nominee how they would vote on this case or that case? Take, for example, the right of a woman to reproductive health that she feels is correct, keeping the politicians out of the exam room. Well, what we know is that the nominee before us at this moment came through a process of rightwing vetting through two organizations before being put on a list that was sent to the President. So we have a pretty good idea of how the nominee is going to vote on this issue. The nominee wouldn't answer any questions before the Judiciary Committee. It was pretty much what you would call a farce: a question asked, a question not answered; a question asked, a question not answered; a question asked, a question not answered. A number of my colleagues went into that Judiciary Committee hearing feeling they were really open to hearing the judicial thought and seeing if this nominee was really as far off the charts as everything else indicated. And the fact that he refused to answer a question over a week of hearings basically said to them, yes, now we know; now we know the answer. So it is to protect the integrity of the Court that we must not close this debate on Thursday. That is why we want to insist on keeping the 60-vote standard. That is why the 60-vote standard exists. There are some who have said: Hey, maybe we should try to figure out a way that we can preserve the 60-vote standard by not really using it as a tool for this particular nominee, and by not making it an issue, we have a tool for their future. It is kind of like coming into a confrontation and a person has a confrontation and they pull out their swords, and then say: I am going to lay down this sword and let you have your way until next time because that way I will still have my sword when I come back again. So you come back again next time: Oh, I have to lay down my sword again. What are they confronting? Why are they saying we should perhaps consider not honoring the tradition of utilizing the 60 votes when there is a cloud over a nominee--not utilize the filibuster? There is this goal of saying: Well, that way maybe we keep the rule as it is. And why are they worried about that? Because the majority has said that they will consider changing the rule. Well, many of us have a message for the majority--a message based on the way the Senate has acted over hundreds of years. If you don't have the votes, change the nominee, not the rule. That is the way it has been done time after time after time. On those 15 occasions when there was an open seat prior to Antonin Scalia passing away, the Senate didn't approve every nominee; they rejected several of them, but they considered every single one. And when they were rejected, they didn't change the rule; the President changed the nominee. That is what should happen in this case. Some have said: Well, we have seen such disrespect for the Constitution. We have seen the urging of the majority leadership to not exercise our advice and consent responsibility under the Senate last year, and they made it happen. They enforced it. We have seen the first-ever filing of a cloture petition to close debate on a Supreme Court nominee on the first day of a Senate debate; it has never happened before, to ram this through in a way never seen before in U.S. history. And is it too much to imagine that the Senate majority would also, instead of following Senate tradition when a nominee doesn't have the votes and telling the President to change the nominee, would instead change the rules? Yes, it is possible, when you look at that. But that is a decision that we can't control on our side. When we looked at the tremendous obstruction that was being used for executive nominations and lower court nominations, we had to find a way to quit having advice and consent being used as a tool of legislative destruction against the other branches of government. Our whole Constitution was founded on three coequal branches of government, but you can't have three coequal branches if one branch wields a tool--a tool that was intended to be used very rarely--of rejecting nominees when nominees weren't suitable, using it as a wholesale power to destroy the executive branch and undermine the judiciary. So we addressed that in 2013, but we left in place the supermajority for the Supreme Court. In some ways, you can think of the fact that, well, we tolerate a wide range of positions coming out of the lower courts. There is a check and balance there. It is called the Supreme Court. But there is no check to the Supreme Court. They are the final decision maker. That is why you leave in place the supermajority requirement to tell a President: Do not nominate from the extremes. We have a President who likes to, well, I would say run counter to tradition. So that is maybe part of the appeal and why he is in the office. He looked at the power of the Senate, and we don't know if he even actually understood any of the background as to why we had a supermajority to close debate, why we had a 60-vote requirement. He said that he didn't care; he was going to nominate from the extreme anyway. And having nominated from the extreme, now the same groups that want extreme rulings for the powerful and the privileged are pushing tremendously hard, just as they did last year, for the majority to steal the seat in the first place. But aren't we 100 individuals who could possibly set aside those tremendous pressures from those powerful dark-money interests and actually do the right thing for the Constitution and the Senate and the Supreme Court? Don't we have the ability, the soul, the insight to defend this institution at this moment? What everyone here must understand is that when people look back--if the decision this week is to destroy the 60-vote requirement that tempers the nominations to the final decider about what our Constitution needs--this is stripping away a key element in protecting the integrity of the Court, and it will be looked on as a very, very dark moment in which the Senate failed in its responsibility. Let us not fail. Let's have some Senators who will remember that they stood up on that podium and they took an oath of office, and that had to do with advice and consent which was violated last year. Embedded in that was the responsibility to protect this institution and the rest of the other two branches of government, so they could function in a way our Founders intended them to. I know that come Thursday, if there is a motion to change the interpretation of the rule--the way this works is that the majority won't actually change the rule. They will change the interpretation of the rule. For all practical purposes, it is basically the same thing. At that moment, we are going to be put to the test. The reason it is called the nuclear option is because changing a rule--a basic function of the Senate, designed to protect the integrity of the Supreme Court--and undermining and damaging the integrity is like blowing up the institution. That is why it is nuclear. It is the big bomb. It is the most destructive weapon known in the legislative arsenal. There will be some Members, I know, who will hesitate, some from the viewpoint that they have a responsibility to protect the institution. There will be others who will hesitate from political expediency. They will say: Yes, this is a pretty good deal to get the justice in place that our backers want. But on the other hand, the shoe might be on the other foot in 4 years. There may be a Democratic President, and maybe that President gets three nominations. If we blow up this rule, there will be nothing to temper the type of appointment made by that future President. That is something I am sure people will consider. Apart from the out-of-context, standing-on-its-head example from Vice President Biden's speech, the other argument was: Well, let's let the American citizens decide. That was the second excuse for stealing the seat. Well, the people did speak. They spoke when they elected Barack Obama in the first election, and they spoke again when they elected him for the second election. They didn't elect him to serve 3 years out of 4, but to serve 4 years out of 4. They didn't elect him to execute his constitutional responsibilities 3 years out of 4. They elected him to serve his responsibilities, including nomination responsibilities, for 4 out of 4. He won that second term by a margin of over 5 million votes. That is a big margin. President Trump lost the citizens' vote by a margin of over 3 million votes. That is a pretty big disparity. It is an 8 million vote disparity between Obama's victory and Trump's loss of the citizen vote. So if we want to have the people have a voice, they have weighed clearly and President Obama considered his nominee. As to the fact that they wanted the people to weigh in, they weighed in and said they trusted Hillary Clinton more than Donald Trump to execute the responsibilities of office. That is the citizen vote by more than 3 million. When the President campaigned, he said: I am going to drain the swamp, I am going to take on Wall Street, and I am going to help out workers. We have seen quite the opposite. The very first action he made--the very first action--was to make it $500 a year more expensive for families of modest means to buy a house. How does that possibly fit with fighting for working Americans? How does that possibly fit with that? Then he put forward a plan on healthcare--TrumpCare--in partnership with Ryan. Ryan wants it to be called TrumpCare; Trump wants it to be called RyanCare. Neither one wants their name on it because it takes away healthcare from 24 million Americans. It makes healthcare out of reach for working Americans. That certainly wasn't fighting for working Americans, stripping healthcare. It is, basically, a weapon that hurts in two ways: If you don't have access to healthcare, you are worried that your loved one won't get the care they need. Then you are worried that if you do find access by basically paying much higher rates than anyone with insurance has, you will be bankrupt, and America had this vast number of bankruptcies. So Trump, who campaigned on helping workers, said: I am going to strip away your healthcare. I am going to take away your peace of mind that your loved one will get care. We are going to return to a world where, if you do find care, you will be bankrupt. How do you like that plate of potatoes? Working America didn't like it. They called Capitol Hill and said: Stop this diabolical plan to undermine healthcare. Stop this plan. They said it on phone calls, they said it on emails, they said it at the townhalls, and the House abandoned the plan due to the outcry of workers across America who had finally--finally--found access to healthcare, thanks to the Affordable Care Act. Then President Trump sends his anti-worker budget--what they called the skinny budget, the outline of the budget--over here to Capitol Hill. I was out doing townhalls in rural Oregon, and I think I got much the same reaction that probably everyone else did across the Nation. This wasn't America first. This was rural America last, including rural workers--especially rural workers. The President campaigned for workers. He makes buying a home more expensive. He tries to strip away their healthcare, and, then, he hits them with a budget in rural America that will devastate their communities. You have a challenge with affordable housing? I am going to take away a good share of the housing grants used as a flexible tool. You have other challenges in your community that you use community development block grants for. We are going to strip those as well. Your rural county has a lot of Federal land? This is probably more true in the West, where I come from, than in many other States. Your rural county has a lot of Federal land so you are compensated through Payment in Lieu of Taxes, the PILT Program? I am going to devastate that program. Your rural community has essential air service? Well, we don't need that. Let's take that away. We don't need air service in rural America. It made me think about the airport in Klamath Falls, in my home State. Klamath Falls is not on an interstate. I-5 goes down through Medford and goes through Ashland. So it travels further west, on into California, not through Klamath Falls. We have some very substantial manufacturing capability in Klamath Falls. We have an F-15 base. Both of those are essential to the community. But to keep that manufacturing there, to keep those companies there, to keep that airbase there, we have to have a functioning airport. The company that was servicing that town stopped, moved their assets somewhere else, and left that town stranded. I immediately called the mayor and called the House Member representing that district and said: We have to get air service back. The managers of the manufacturing capability in doors and windows are not going to want to have their operation in a place they can't fly into. Flying into Medford and driving a dangerous, winding mountain road for well over an hour--often impassable or very dangerous in winter--is not going to cut it. We have to restore that air service. We went to work and we teamed up. We teamed up with colleagues across the aisle. Why did we undertake this? Because air service was essential to that economy. So here is President Trump, sending a ``rural America last'' budget which devastates rural air. Let's talk about the Coast Guard. Oregon is a coastal State. My colleague presiding is from a coastal State. Our Coast Guard is pretty important to our States. But President Trump said: Let's savage the Coast Guard. Here is the thing. The Coast Guard actually stops a lot of bad things from happening along our coastlines. They save lives, and they stop drug traffickers. Ere is Trump's anti-worker budget: Let's take away the wall along the ocean--the Coast Guard--which stops drugs and other bad things from happening, and rescues people, and spend it on a wall on the southern border. What? I thought, Mr. President, you said the wall on the southern border was going to be paid for by some other country--that country on the southern side of the border, not the American taxpayers. You are going to essentially take away that virtual wall of defense along our coastlines in order to build this wall on the southern border? I went down on a congressional delegation to meet with Mexican officials in Mexico City. We met with the Attorney General. We met with the head of their economic policy. We met with a whole group of Mexican senators, and we heard a lot. But what I found even more interesting was going to the border on the American side and talking to the American experts on the border. We asked them: How do drugs come across the border? They said: Well, they come through freight. There is so much freight moving. You can tuck drugs into a freight truck. We find some of them but not most of them. They said: Second of all, it comes across in tunnels. The tunnels are very expensive to build. They are often very long, well-engineered, and very expensive. You don't use them for people because they would be easily detected then and shut down and you would lose your investment. You use them to bring drugs into the country. The point the border experts made is that the wall will be useless against stopping drugs from coming into our country because the drugs come through freight and they come through tunnels, but they don't come through backpacks. OK. That was interesting for the President to argue that was something he was going to address, to stop this massive inflow of people coming from Mexico to the United States. We looked at statistics, and it turns out that over the last 8 years, the net flow has been out of our country to Mexico, not into our country from Mexico--by a million people. So that is really a situation where you have the triple threat against workers that President Trump is applying--making home ownership more expensive, proceeding to take healthcare away from millions of American families, and putting forward a budget that savages rural America in method after method after method. I am sure my colleagues will work on both sides of the aisle to stop the savaging of rural America, but clearly that is the President's vision. That was the worker part. Then you had the ``I am going to take on Wall Street'' part. What did he do? He put the economy under the control of Wall Street. He had attacked a colleague here in the Senate from Texas during the primary campaign for his ties to Goldman Sachs. He attacked his general election opponent, Hillary Clinton, for ties to Goldman Sachs. Then he puts Goldman Sachs in charge of our economy, Treasury Secretary, strategic adviser. The list goes on and on. So much for taking on Wall Street. Then there is the ``drain the swamp'' proposition. Well, big, powerful, fabulously rich folks deeply connected to those interests-- that is the Cabinet. So you have Big Oil and big banks and billionaires. That is the Cabinet. That is the swamp Cabinet. So all three promises the President made, after he lost by 3 million votes, he has gone on to devastate over the last few months. That is the foundation for saying ``Let the people speak''? The people spoke against--they voted majority against this President. They voted vastly for the election of Barack Obama, and the vacancy occurred on Obama's watch. This is a seat stolen from one Presidency and shipped to another with the packing the Court and a flimsy excuse from a quote from Biden taken out of context, a flimsy excuse of ``Let the people speak.'' When the people spoke, they supported President Obama by this vast number of popular vote. And Trump lost. So I guess the people did speak, but they spoke to the opposite side. So much for the foundation for this crime against our Constitution. Speaking of the President, it is unacceptable that we are considering this nomination at this moment. At this moment, when the Trump campaign is under investigation--an investigation being conducted by the FBI, another investigation by the House Intelligence Committee, and another investigation by the Senate Intelligence Committee--it is unacceptable that we are considering this nomination at this moment when there is a cloud over the Presidency because of the conduct during the campaign. We know some things, and we don't know others. We know that Russia sought to influence the U.S. election. We know they used an extraordinarily intense, carefully crafted strategy to influence the American election. What we don't know is the full extent of the conversations between the Trump campaign and the Russians who sought to get Trump elected. We don't know that. That is why we are having investigations. If those investigations find that there was collaboration between the Trump campaign and the Russian Government, that is traitorous conduct-- conspiring with an enemy to attack the institution at the foundation of our democratic republic, our elections. That is a very big deal, and that is why this debate should not be here on the Senate floor until that issue is fully addressed. We should not have the sitting President's nominee debated with the potential of being put on the Supreme Court when many questions remain about whether they conspired with a foreign government to undermine and tip the election we held in November. Then there is the fact that the nominee is an extreme far-right nominee, even further right than Justice Scalia or Justice Thomas. Analyzing the opinions of the Tenth Circuit since Judge Gorsuch joined in 2006, the Washington Post found that Gorsuch's actual voting behavior suggests that he is to the right of both Alito and Thomas, and by a substantial margin. The magnitude of the gap between Gorsuch and Thomas is roughly the same as the gap between Justice Sotomayor and Justice Kennedy during the same time. In fact, our results suggest that Gorsuch and Justice Scalia would be as far apart as Justices Breyer and Chief Justice Roberts. Gorsuch has advocated far-right conservative positions--not ``we the people'' positions, ``we the powerful'' over the people positions-- positions even Scalia has opposed. This nomination matters. Are we going to have decisions that reflect our Constitution, ``we the people'' decisions, or decisions that turn our Constitution on its head and create a government of, by, and for the powerful? We have a 4-4 split--the analysis of decisions to concede the twin peaks. Decades ago, we would have probably seen a single bell curve, not twin peaks, but what used to be here has migrated. Half of the Court migrated over there, as the Court has gotten further and further away from the fundamental vision of the five-vote majority. The Court now, without Scalia, is split 4 to 4, so this nominee will change the balance of the Court. There is certainly an opportunity to put in somebody who is straight down the middle. We didn't really know exactly where Justice Merrick Garland would end up, and by all counts, it was anticipated he would be right down the middle. We know something different about Neil Gorsuch. The Court is split 4 to 4 now, and this nomination will change that balance. That is a very important reason that accentuates why this nomination should be set aside until we know if the President's team conspired with the Russians. We should clear up that cloud first. I am going to go back and review some of the cases that give us substantial concern. I am going to try to locate more details. Meanwhile, I will just share a little bit about the record of 5-to-4 decisions. Senator Whitehouse has proceeded to do an analysis--or shared an analysis done by others--to look at 5-to-4 decisions of the Court and what has happened in recent memory. Were those decisions designed to accentuate the ability of powerful special interests that changed the makeup of the body? Was it that sort of interference? Was it interference that favored corporations or decisions that favored corporations over people? If I can get the details, I will go through it in detail. What this analysis found was that the previous decisions of the Court with Scalia on it made campaign finance decisions and other decisions related to things like the Voting Rights Act that made it harder to have the elections that really reflected the voice of the people. Let me give some context. The Voting Rights Act was passed in 1965. It was passed because different groups around America were messing with the elections to try to keep people from voting. There were elements of this that went way back in our history. There were tests that were applied, constitutional tests. African Americans might try to seek to register to vote and would be given a test that was an impossible question to answer. The same test would be given to White voters. There were all sorts of strategies to try to bias the election process. So it was a big deal in 1965, and the Senate and the House said: No, we are not going to allow these types of tactics to be developed and utilized because they are an attack on the rights of Americans--the fundamental right to vote, to have a voice, and to help direct the direction of our country by campaigning and voting for those who have a better vision of where we are going to go. So Congress acted and did so by saying: If you have new strategies for how you are going to control the elections, you are going to have to get those strategies preapproved because the record in your particular State has been that you abused those strategies to suppress the fundamental right of individuals to vote. So one of those decisions was to say by a 5-to-4 decision: We are going to take away the power of the Voting Rights Act--which is almost unexplainable. The argument was more or less a version of, we don't need this anymore. We moved past that. We don't have the same problem. So we should have the same rules for all the States. But what we immediately saw with the lifting of the Voting Rights Act was that those States that were under the Voting Rights Act immediately started working to do voter-suppression tactics--efforts to prevent individuals from voting in all kinds of ways--phony ID strategies, all sorts of manipulation of the precincts. (Mr. CRAPO assumed the Chair.) So it matters. The fifth seat on the Court matters a great deal. We have six decisions that have flooded the elections with special interest money and affected access to the ballot. In these 5-to-4 decisions, the people have lost in all six cases. So I am going to share those. Then there are 16 cases in which there have been 5-to-4 decisions. In all 16, the 5-to-4 Court ruled in favor of the corporations over the people. So in terms of campaign shenanigans, we have lost in 5-to-4 decisions 6 to 0. When I say ``we,'' I am talking about the American people who care about the integrity of elections have lost all six times under the Court that Scalia was on. On corporations over people, we have lost 16 to 0. I will start sharing these cases to show how much this matters. Let's look at the issue of unleashing corporate spending. Citizens United v. the FEC in 2010. Under the First Amendment, donations and political contributions are considered free speech. The government does not have the right to keep corporations from spending money on political candidates. Money may not be given directly to candidates but instead may be spent on any other means necessary to persuade the public. The decision held that political speech is crucial to a democracy and that it is equally as important when coming from corporations. So it essentially said: Look, if we translate that, what that means is that you have a group who was designed to take small amounts of investments from many, many people and combine them together to create the ability to take on larger commercial enterprises. That is a corporation. They sell shares. People provide funds through those shares. They provide those funds to the corporation by buying the shares, and the corporation can take on the big projects. Out of those sometimes hundreds of thousands of shareholders, there is a small group, a board who decides how that money is spent. So you don't have the shareholders deciding how that money is spent; you have the small board. They aren't spending their own money; they are spending other people's money without asking their permission. Are you kidding me? This entity didn't exist in this form. The Constitution didn't say that corporations are people and that these entities that really didn't even exist then have the same rights of ``free speech.'' The Constitution didn't say money is speech. No. Remember Jefferson's mother principle, which was that we will only make decisions and be successful as a democratic republic if each citizen has its equal voice. Citizens United is the opposite. It says: Those who sit on the board of gazillion-dollar corporations get a voice that is a gazillion times larger than the voice of an ordinary citizen. It is a complete contravention of the Constitution, and it is deeply corrupting and damaging our Nation. That is the 5-to-4 Citizens United case. Then there was the American Tradition Partnership v. Bullock case in 2012. That overturned a Montana Supreme Court decision that banned corporations from spending money on political candidates and campaigns and found that political speech is protected regardless of the source, even when it comes from a corporation. In other words, Citizens United applies to this case as well. The four dissenting judges did not believe that the Court was ready to review the same issues as discussed in Citizens United in spite of the fact that Montana's Supreme Court had noted the extreme power of corporations in politics. OK, what is the story behind this? Montana was controlled by the copper kings. Back about 100 years ago, the people said: Enough. We want Montana to be controlled by the people of Montana, not by this vast concentration of special interest money that is making all the decisions. So they passed a law, and they kept corporate money out of their elections to restore the integrity of elections. The Supreme Court turned a deaf ear on that case. How about McCutcheon v. Federal Election Commission in 2014, which eliminated aggregate campaign limits. The decision found that aggregate campaign limits are invalid under the First Amendment because they restrict political expression. Aggregate limits do not further the government's interest in preventing the appearance of corruption--one of the main goals under the Bipartisan Campaign Reform Act. They also found that corporations cannot be limited in the number of political candidates they donate to, as this restricts the influence of the corporations which they were equating to free speech. So this was another erosion of the effort to have the vision Jefferson spoke to, the mother's principle that the government would express the will of the people. That is the same basic idea that Lincoln had when he phrased it in his famous address and said ``government of the people, by the people, for the people.'' But if you allow this vast concentration of money to be spent on campaigns to corrupt those campaigns, it is not government of, by, and for the people. It is like the copper kings. It is the fossil fuel kings. It is the Koch brothers running it. In the Copper King case in the State of Montana, which Montana shrugged off and reclaimed and restored their government--versus the situation we have at the national level now with a similar parallel-- the fossil fuel kings, the coal kings, the oil kings putting vast sums in--to Citizens United. There was a case that had to do with whether laws were OK that restricted judicial candidates from directly soliciting donations for their campaign. My memory is that the Court said: You know what, it is OK to restrict judges who are directly soliciting donations because that would affect and bias their decisions and it would create the appearance of bias. So there was the reality of bias and the perception of bias. In other words, it would corrupt the courts. So on an issue involving Justices, that ``we the powerful'' group-- Roberts, Alito, Thomas, Scalia, Kennedy--that group said: Do you know what? No. No, we can't let money corrupt the election of judges. But none of them have served in the Senate or the House, and they couldn't translate the fact that they wanted to defend the integrity of judges and that that was important under the Constitution and allow restrictions on how campaigns were done--they couldn't translate that to the bias and the corruption of what happens here. I mean, anyone looking at the United States can see that a few years ago, we had a whole host of Republican environmentalists who cared about the next generation and the generation after and fought for clean air and fought for clean water. It was President Nixon who put forward the Clean Air Act and the Clean Water Act. It was President Nixon and the Republicans who proceeded to create the Environmental Protection Agency. But what happened when the fossil fuel money fueled the campaigns that created the new Republican majority in the Senate? All concern for the environment was gone. That is corruption, plain and simple. The Supreme Court--five Justices--proceeded to rubberstamp that it is OK to have that corruption--the complete opposite of the vision of our Constitution. They understood it when it was for judges, but they found for the powerful and the privileged and supported the corruption when it came to this body and the House. Then there is the suppression of access to the ballot box. The Shelby County v. Holder decision of 2013 struck down section 4 of the Voting Rights Act, which included a suspension on many of the prerequisites or tests to vote. The Court held that this part of the Voting Rights Act no longer reflects the current conditions of voting. The formulae for determining whether a State can change its voting laws should no longer be federally reviewed, the Court said. The decision declares that this section puts undue burden on local government during elections. Really? We saw how the fundamental right of citizens to vote was savaged in these States before the Voting Rights Act, and we have seen how those practices have returned after the Supreme Court struck down section 4 of the Voting Rights Act. That is why it matters. Let's take a look at Bartlett v. Strickland in 2009, a case that affirmed the North Carolina Supreme Court decision that the State's redistricting plan does not violate the Voting Rights Act section 2. State officials do not have to ensure that minority voters have the opportunity to join with crossover voters to elect a minority candidate. In this case, the Court found that the vote would not be diluted because the minority was comprised of less than 50 percent of the voting population. Due to the fact that the African-American minority was only 39 percent on the voting population, State officials had no requirement to redraw district lines. What are we talking about here in real terms? Is gerrymandering OK to change the outcome of the congressional delegation? And the Court said it is OK. Then there was Vieth v. Jubelirer--redistricting of a Pennsylvania congressional delegation from a Republican-controlled State legislature to favor Republican congressional elections. The Pennsylvania General Assembly was challenged by Vieth--that is the name of the challenger-- that the redrawing of the lines was political gerrymandering, violating Article I and the equal protection clause in the 14th Amendment. The opinion of the lower courts was affirmed, and Scalia wrote the four-member plurality which dismissed the case due to the fact that the Justices could not agree on an appropriate remedy for political gerrymandering. Scalia wrote the four-member plurality. Kennedy wrote a concurring opinion--so it is 5-to-4--but sought a narrow ruling so that the Court would still seek a solution. Well, the bottom line is that in a 5-to-4 Court, that fifth vote matters. In these six cases, the decisions were all in favor of undoing the vision of voter empowerment and supporting the strategy of voter suppression, undoing the restrictions on gerrymandering to change the makeup of the congressional delegation or the makeup of State delegations and supporting such bias being written into the system. These 5-to-4 decisions were all about allowing the most powerful, richest people to have a voice equivalent to a stadium sound system that drowns out the people in a position completely contrary to the equal-voice premise that Jefferson called the mother's provision, the foundation for whether or not our government would be able to make decisions that reflected the will of the people. Then there is a set of decisions 5-to-4 opinions that were relevant to corporations over individual rights, and some of those overlap: Citizens United, McCutcheon, the American Tradition Partnership v. Bullock that we have already covered. Let's look at some of the others. How about Burwell v. Hobby Lobby. Fighting to require corporations to provide female employees free access to contraceptives violates the Religious Freedom Restoration Act. The Court held that Congress intended RFRA to be applied to corporations. Corporations face a significant burden if they are forced to fund an action that goes against the corporation's religious beliefs. So let's give corporations a soul that has a religious belief. So not only has the Court extended the vision to corporations that they are somehow the equivalent to a super-rich bazillionaire individual, but they also have a soul and a religious belief. So concentrating this fantastic concentration of power and realizing that if the corporation made the decisions on the basis of the stockholders, with all of them having, essentially, input--but they don't because that is not the way a corporation works. You have a very difficult time trying to influence the thinking of a board of directors. You can make efforts. Rarely you might have a successful vote by a group of shareholders who take something to the annual meeting. But in general, that board operates in a world all its own, and they are spending the money--not their own money; they are spending the money of the stockholders without disclosing it to them. They actually steal the political speech by using the money in political speech without disclosing what it is. But that was the decision in Burwell which gave a corporation the ability to follow its religious choices-- that is, the board's religious choices--over the workers' religious choices in an area as sensitive as women's access to reproductive birth control. Let's turn to Walmart v. Duke in 2011, a class action lawsuit brought by six women against Walmart claiming that Walmart policies resulted in lower pay and longer time for women to acquire a promotion--lower pay and longer time to get a promotion. The Supreme Court found that the six women who were applying could not represent a class of the 1.5 million women employed by Walmart. They found that the employment decisions for this large number of people did not have enough commonality to be represented in one case--a 5-to-4 decision. In a class action lawsuit, you have principals, and they represent a class of folks who have been treated similarly. Certainly this is an example of where in general you would expect that the experience these women had could represent the experience that women were getting at Walmart as employees, but the Court turned them down 5-to-4. Four said these women and other like-treated individuals deserve a hearing, and the majority of five said: No, no, no, let's protect Walmart. Let's look at American Express Company v. Italian Colors Restaurant. Several merchants of the American Express credit card company brought individual cases alleging that the company's card acceptance agreements violate antitrust laws. The Supreme Court found that the American Express clause prohibiting class action lawsuits is enforceable. The high cost of bringing cases forward on an individual basis, which is impossible for an individual to do, was not a sufficient reason for the Court to override the company. Federal antitrust law does not guarantee a cost-effective process. So here you have a 5-to-4 decision in which, again, you have individuals who have been on the receiving end of bad practices or at least alleged bad practices by a financial company saying: We were shorted a few dollars or maybe a few hundred dollars, but we can't possibly take on this powerful company's enormous office building full of lawyers unless we have a class action where we have everyone who has been similarly affected able to bring their case at one time, with one set of representatives, so that maybe there will be a little bit of a fair playing field. You can't hire lawyers. It will cost you $1 million to hire lawyers to pursue a $100 issue. So unless there is a class action, there is no justice. It is justice denied and a green path for predatory practices by the large and powerful. Five-to-four decisions matter. Comcast Corporation v. Behrend. SCOTUS ruled that a district court is not allowed to certify a class action lawsuit without acceptable evidence that the damages can be measured on a class-wide basis. They found that the lower court failed to properly establish the impact of the damages on all of the plaintiffs. Courts must find that the model to prove damages are class-wide and quantifiable. Let's translate this. What does this mean? The Court, on a 5-to-4 basis, is setting very high standards for establishing the legitimacy of a class action lawsuit. You have to be able to prove that the entire class is affected, not just probably, and it is quantifiable. So they are making it very difficult. Four Justices said: No, that is ridiculous. That is absurd. That is a standard that makes no sense. But the five ruling for the powerful and privileged said: OK, we can tighten this up and make it harder to challenge predatory actions by large corporations. We have AT&T v. Concepcion. Customers of AT&T brought a class action claiming that the company's offer of a free phone was a scam because they were still charged the sales tax on the new phone. It wasn't free; they had to pay a tax. SCOTUS found that the Federal Arbitration Act displaces State law stopping companies from offering contracts that do not allow class action lawsuits. Therefore States cannot make laws that allow companies to prohibit their customers from bringing forward class actions. But the bottom line is that the way this was framed, it had an impact of a 5-to-4 decision with corporations over people. Janus Capital Group v. First Derivative Traders in 2011. Most folks didn't even know there were these many cases affecting powerful corporations and their predatory practices and the ability of ordinary people to take them on, but here they are one after another. Janus Capital Group created Janus Capital Management as a separate entity from Janus Capital. The plaintiffs claimed that JCG should be held liable for misleading statements by JCM regarding various funds, most notably the market timing of the fund's practice of rapidly trading in and out of a mutual fund to take advantage of inefficiency in the way the funds are valued. This was not permitted. The Fourth Circuit Court found in favor of the plaintiffs because the investors would have inferred that even if JCM had not itself written the alleged statements, JCM must have approved the statements. After all, JCM was created by JCG. But SCOTUS reversed the circuit court's finding that the false statements were made. So each of these cases involved efforts to tighten or narrow the channel through which ordinary people can challenge the conduct of the powerful. The powerful can use a series of strategies--in this case, creating a subsidiary--to bypass responsibility for misleading statements. Ashcroft v. Iqbal in 2009. The case concerns the arrest and subsequent treatment of Javaid Iqbal at the Metropolitan Detention Center in Brooklyn, NY. Iqbal and several thousand other Arab Muslim men were arrested as a part of the investigation into the then recent September 11 terrorist attacks. Upon his release, Iqbal brought suit alleging discrimination and 21 constitutional rights violations by the Department of Justice, Bureau of Prisons, and FBI. The defendant argued that their official government roles protected them from suit. The U.S. district court denied the defendants' motion to dismiss-- that is, protected the ability of the suit to be brought--and supported their qualified immunity defense. The U.S. Court of Appeals for the Second Circuit affirmed the district court's ruling with one exception: They ruled that under the defendant's qualified immunity defense, it was not a violation of due process given the context of the terrorist attacks' unique circumstances. The Supreme Court then upheld the finding of the Second Circuit. Again, each case is a narrowing and a finding of individual against a corporation or a larger entity in a 5-to-4 decision. These cases--I don't think I will go through all of these remaining six cases, but I think you get the general idea. The bottom line: In 5- to-4 opinions, corporations won 16 times and ordinary people won zero times. So I want to go back to the fact that Gorsuch himself is an extreme judge, and I think it is important to talk about the cases he was involved in directly. What I have just been laying out is that a 5-to-4 Court makes an enormous difference. Is the Court going to look for every possible way to deny the opportunity for ordinary citizens to take on the powerful and the powerful to get away with predatory practices, or are they going to honor the vision of government of, by, and for the people? That is the fundamental question in a 5-to-4 Court. And Gorsuch fits right into that because the vision of honoring the ability of people to take on the powerful in a system of justice versus a system that perpetrates injustice by allowing the powerful to get away with predatory practices against ordinary people and constrains the right of individuals and expands the rights of corporations--that turns corporations into predator superhumans with more money than any one individual and more power than any one individual and more campaign cash than any one individual. In fact, a corporation will often have more cash to be spent in a campaign than the rest of America--perhaps the entire rest of America put together. When the Koch brothers said in January 2015 that they were going to spend nearly $1 billion in the next election, do you think there were many Americans who said: Well, well, I can do that. No. That would represent the political spending by virtually all the rest of America. That is the challenge of the concentration of power in our country. We have seen that there are a whole series of cases that allow gerrymandering and voter suppression and campaign spending and dark money designed to corrupt the ``we the people'' elections, the foundation of our democratic Republic. We saw a whole series of cases that involve finding for the powerful corporations in restricting the rights of people to band together to challenge them through class action lawsuits. That is the difference between these two parts of the judicial decisions, and Neil Gorsuch is way to the right. So let's look at the preamble to our Constitution: ``We the People of the United States, in order to form a more perfect union, establish justice''--those are the next words, ``establish justice.'' What kind of justice is there if the Court continuously allows the corruption of our elections? What kind of justice is there if the Court continually restricts the power of ordinary people to bring a case against a predatory practice of a powerful institution? That is the question. Our Constitution that starts out with those three beautiful words that I quoted many times tonight, ``We the People,'' also has a vision of establishing justice. How is it that this group of Justices has forgotten that our Constitution was about establishing justice? Well, that is a big concern. However, what we find is that Neil Gorsuch is coming to his court decisions and to his writing from a viewpoint of how to arrange the details to help the powerful come out on top. (Mr. STRANGE assumed the Chair.) Let's look at the frozen trucker case. Anphonse Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. Maddin did the responsible thing: He didn't move the trailer anymore because without brakes, he would have been endangering the lives of everyone on the road. So to protect others, he refused to operate the truck. After reporting the problem to the company, he waited 3 hours in freezing temperatures for a repair truck to arrive. He could not even wait in the cab of his truck to keep warm because the auxiliary power unit was broken. After waiting 3 hours in subzero temperatures, his torso went numb, and he began having difficulty breathing. He could not feel his feet. He felt his life was at risk. He unhitched the disabled trailer with its frozen brakes because he thought it was absolutely dangerous to drive with a full load without brakes, and he drove the cab to a place where he could get warm. Even as he was driving away, even after he had reported his numbness and difficulty breathing, the company was still radioing Alphonse Maddin to wait in the dangerous, frigid condition or to drive with a full load and frozen brakes. The company wanted him to drive with frozen brakes. The company wanted him to drive in those temperatures, with ice on the road, and with a full load. Help arrived about 15 minutes after Maddin made the decision to leave. As soon as he heard that, he turned around, and he returned to the trailer, but TransAm Trucking fired him for leaving the trailer unattended. The argument that TransAm Trucking had used for firing Alphonse Maddin was, instead of remaining in the dangerous, freezing conditions and refusing to drive because of there being a disabled trailer, he drove away without the disabled trailer. In the company's mind, Maddin had two choices: one, freeze to death or, two, drive the disabled vehicle with the frozen brakes and trailer attached, putting other people's lives at risk. He had two choices: Put his own life at risk or put everyone's life at risk. The Department of Labor looked at this and said that the truckdriver was fired in violation of the Surface Transportation Act's protections and that he should be reinstated with back pay. The case made its way up to the Tenth Circuit. The Tenth Circuit said: Absolutely, the law is written so that truckdrivers will not operate under dangerous conditions in order to protect their safety and the safety of the public. That is the way the law is set. The Tenth Circuit said: Yes, that is the way the law is set. That is what is written in the law. Judge Gorsuch wrote a dissent. He twisted and strained the statute. He wanted to find ways to minimize the word ``health'' and the word ``safety'' and stated that the finding for the driver was improper because it used the law as a springboard to combat all perceived evils, which is a quote: ``as a sort of springboard to combat all perceived evils.'' No, the law was designed to protect against a specific evil, which is people operating vehicles in a manner that endanger themselves or others. You cannot be fired as a truckdriver for operating a vehicle in order to protect the lives of others. The truckdriver, who was operating responsibly--Alphonse Maddin, who was operating responsibly-- said: I am not going to endanger others. He was fired for it. The Department of Labor said: No, you cannot fire him. That is why the law is written that way. The Tenth Circuit said: No, you cannot fire him. That is why the law is written that way. Yet Neil Gorsuch found some way of twisting the words to say: Huh, let's find a way to make this work for the corporation rather than the individual. Even the law says that you are protected from being fired for refusing to operate a truck that endangers yourself or others. Even the law says that. Let's find a way to go the other direction and find on the side of the company. Gorsuch wrote that his employer gave him the very option the statute it must. Once he voiced safety concerns, TransAm expressly permitted him to sit right where he was and wait for help. They gave him two choices: Sit and freeze in the cab, even though his torso had gone numb and at his own risk to his own health, or drive the trailer and endanger everybody's life--a lose-lose proposition. Gorsuch ignored the side of the statute that involved the safety of the driver as well as of the people. He dismissed the Department of Labor's view in saying that there is simply no law that anyone has pointed to us giving employees the right to operate their vehicles in ways their employers forbid. Yes, there is. The law says that you cannot fire someone for driving or for refusing to operate a vehicle in a manner that endangers other people's lives. The majority of the court that supported the Labor Department's reasoning called Gorsuch's reasoning ``curious.'' That is the polite way of saying that we have no idea how he could possibly have twisted the law in this fashion. If Gorsuch had gotten his way, there would have been no justice for Alphonse Maddin--a pure decision of the frozen trucker, a decision devoid of common sense, totally detached from the law as written. That is the frozen trucker case. Let's look at the autistic child case of Thompson R2-J School District v. Luke P. Because he is a youngster, his last name was not used. It was a 2008 case. Luke P., a young child with autism, began receiving special education services in kindergarten at his public school. He had an education plan that was specific to his needs as was required by the Individuals with Disabilities Education Act, or IDEA. In early grades, he had made progress in skills related to communication, self-care, independence, motor skills, social interactions, and academic functioning, but he was not making progress in generalizing his skills and applying skills learned in school to other environments, such as his home life. Despite the situation at school, there were a lot of problems in his conduct, and the public school's inability to meaningfully improve Luke's ability to generalize basic life skills beyond the walls of the school posed significant limitations on his future. The basic story is this: The school was failing to provide the type of education that was necessary for Luke to gain the ability to operate in life. They found a school that could provide that ability. They said: To save our child, we will transfer him to that residential school near Boston that specializes in serving children with autism. It was a great opportunity for him to learn, and he got in and began to flourish--a huge change. Luke's parents, in their knowing that IDEA entitles children with disabilities to a free education, applied to the school district for reimbursement of the tuition. The school district refused. The long and short of it is that, at a State-level hearing, Luke's parents prevailed. The case went to the Federal district court, and his parents prevailed under the Individuals with Disabilities Education Act. At each level, a hearing officer or judge determined that Luke was not getting the help he needed at his public school. They concluded that the school district had failed to provide him the free and appropriate education that was entitled to him under the law. You have decisions made at multiple levels that the school district was not meeting the standard of the law. Each declared that only a residential school could provide Luke with the education he needed. Therefore, the reimbursement of the tuition to the family was necessary and appropriate under the law. The school district appealed all the way up to Judge Gorsuch on the Tenth Circuit Court. In writing the opinion for the majority, Judge Gorsuch--and they reversed the lower court's ruling--stated that the educational benefit that was mandated by IDEA must be ``merely more than de minimis.'' Here is the new judge's--Neil Gorsuch's--law. He is rewriting the trucker law so that truckers can be fired for protecting their safety and the safety of others. He is rewriting Individuals with Disabilities Education Act so that, instead of having an education that is appropriate to the student, in fact, all that is required is ``merely more than de minimis.'' ``De minimis'' means the minimum--like nothing, like babysitting. Gorsuch said that the benefit provided to Luke--essentially, the babysitting--satisfied that standard. In effect, Judge Gorsuch argued that, under IDEA, all the school system had to do was to provide disabled children with the bare minimum, which is an incredibly low bar. I will tell you that the whole intent of IDEA--the whole debate held here in the Senate, the whole debate held in the House, the signing, the whole framework for this act--was that we have to do right by our disabled children. Therefore, schools were mandated to provide appropriate education. The whole of Gorsuch's finding was to say: No, I am rewriting the law--minimal, babysitting, ``merely more than de minimis.'' It is merely more than nothing when translated. What would be enough? It is as if the whole debate had never occurred over the vision of requiring schools to provide an appropriate education to students. This is not just an example of some narrow reading of the law. This is judicial activism--rewriting the law to a completely different thing than it was intended to say. How could Judge Gorsuch argue putting disabled children like Luke in a room and giving him nothing other than merely more than nothing after having met the standards of a substantial act of Congress that was fully designed to give an appropriate education for disabled children? How do those things even come close to equating? ``Merely more than nothing'' versus ``you must provide an appropriate education''--how do you square those two things? How do you have a judge completely rewrite the law and say that he is qualified to sit on the Supreme Court? We can tell you that the High Court disagreed completely with Judge Gorsuch. We can tell you this because, just this year--just a few days ago--the Supreme Court ruled on this case, and they overturned Judge Gorsuch. They did so not by 5 to 3; they did so by 8 to nothing--8 to zero. Eight Justices--four conservative, four liberal--looked at this and said that the law says ``appropriate education.'' Judge Gorsuch said ``merely more than nothing.'' That is not the law as written. That is rewriting the law to find on behalf of the powerful, the larger--in this case, the school district--over the individual. It is a pattern we see in his rulings time and time and time again. That is why, if you do nothing about the fact that this seat was stolen for the first time in U.S. history--a seat stolen for the Supreme Court from one administration and sent forward in an effort to pack the Court--and if you did not know anything about that and if all you knew was this set of decisions, you would ask: How can we possibly put on the Supreme Court an individual who rewrites the law to mean the opposite of what it is written to say--that black is white and white is black; that ``do something significant'' means ``do nothing'' or ``merely nothing''; that protecting those drivers who operate in safety for themselves or safety for the people on the road--Judge Gorsuch says to strip away that protection.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, last week the Senate watched the House and the American people watched the House because the House was on the verge of taking away access to healthcare for 24 million Americans. Then last Thursday, a week ago from today, the House said: We are going to postpone that vote. We are not sure we have the votes to take healthcare away from 24 million Americans, but maybe we will vote tomorrow, Friday. That was 6 days ago. Friday came, and the House said: No, we are not going to do that vote today because we don't have the votes. Why didn't they have the votes? Because across the country, millions of Americans said that taking away healthcare is the wrong thing to do--to take away healthcare from Medicaid expansion, the Oregon Health Plan; to take away healthcare by restricting standard Medicaid as it existed before ACA; to take away the healthcare bill of rights that people so much appreciated; to undermine the ability of low-income working families to buy policies with significant subsidies on the exchange--all of that. The House set it aside. I thought that was tremendous because this week, we are not going to have a diabolical bill destroying healthcare here on the floor of the Senate. But the majority party decided: No, we can't go a week without destroying healthcare, so we are going to put up this Congressional Review Act that would take healthcare away from 5 million mostly low-income women who gain access to healthcare through Planned Parenthood. We won't bring up on the floor the bill that failed in the House for 24 million Americans; no, we will just focus on 5 million mostly low-income women and take away their healthcare. That is what this vote is about right now, later today. Clearly this attack on healthcare for women across America is wrong, just as it was wrong to try to destroy healthcare for 24 million Americans. It is an attack on women's right to choose what to do with their own bodies. It is an attack on the basic decency and compassion of the American people. Since 1970, the title X family planning provider network has been dedicated to providing individuals with comprehensive family planning and critical health services, such as screenings for breast and prostate cancer and sexually transmitted diseases. Just in 2015 alone, title X provided basic primary and preventive healthcare services, including Pap tests and breast exams and birth control and HIV testing, to more than 4 million low-income women and men at nearly 4,000 health centers across the country. That is a huge impact on the health of the individuals served through title X. In 2010, title X services prevented 87,000 preterm or low birth weight births. I can tell you, when my wife Mary was carrying each of our two children, I so much hoped that we would not have a complication that would result in a low birth weight birth or a preterm birth in which the child might not even survive. So failing to provide that care is really setting back not just the health of thousands of babies but maybe affecting whether they live or die. Title X services prevented 2,000 cases of cervical cancer. That is a big deal, cervical cancer, and it is a good deed to have title X services preventing it. For 40 percent of women in America, their visit to a title X family planning health center is the only healthcare they receive annually. So let's be honest about what repealing this rule means. It means family planning providers can be discriminated against by States that want to withhold Federal funding from family planning providers for reasons other than their ability to offer family planning services. It means less access to quality care and less access to affordable care. By overriding this regulation, Republicans empower States to pick and choose who provides services on a criteria that has nothing to do with the quality of care patients receive. States have done this in the past, and it resulted in dramatically fewer women accessing critical family planning and healthcare services. We know what this is about. It is about any Federal funding for Planned Parenthood, an organization that provides care and resources to 5 million women every year. They have been doing it for 100 years. And they are the target. But what has been their mission? Their mission has been to provide easy and affordable access to address reproductive health and enable women to make their own decisions about their healthcare. But now, thanks to this Congressional Review Act proposal before us, that principle is under attack, that principle of easy and affordable access to women's healthcare and women's control over healthcare choices, to keep the politicians out of their choices. This resolution is about putting the politician in charge of the individual healthcare decisions of women in America, and that is just wrong. I encourage my colleagues to take a close look at this. You were spared having to vote on eliminating healthcare for 24 million Americans, but now you are required today to vote on eliminating healthcare for 5 million women--mostly low-income women--in America. Are you going to attack the healthcare of those women? Are you going to injure the babies they are carrying? There will be more low birth weight and preterm babies. That is the wrong thing to do. Vote no.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, the most important words in our Constitution are the first three words. Our Founders made sure that, when the Constitution was written, those were displayed--``We the People''--in super-sized font so that, generations later, we would not forget what our Constitution is all about. Our Constitution was not crafted to create a government that would make decisions by and for the powerful. It was not crafted to create a government that would make decisions by and for the privileged. That was the power of the ``we the people'' vision, as President Lincoln so eloquently stated, ``a government of, by, and for the people.'' Well, that is the vision we have the responsibility of maintaining, and it is a vision that is facing a dramatic test in this coming week--a test that affects the integrity of this body, a test that affects the integrity of the Supreme Court. Back in January of last year, a Supreme Court seat came open. A Supreme Court seat for which the President had a responsibility to nominate a replacement, a new Justice to serve on the Court. We here in the Senate had a responsibility--a responsibility to exercise advice and consent. That meant that we would vet the nominee, that we would research, have a committee hearing, have a committee vote, and then forward it to the floor, where we would have a floor debate. But for the very first time in the history of the United States of America, the majority party decided that they would not exercise their constitutional responsibility, that they would instead steal this seat from the Obama administration, wrap it up, pack it into a time capsule, and send it into the future, in hopes that they would be able to succeed in packing the Court by having a different President, a more conservative President, proceed to fill the vacancy. I am going to go through the 16 cases in our history where there has been a vacancy during an election year, and in 15 cases, the Senate acted. But last year, this Chamber refused to act, for the first time, in trying to exercise a seat-stealing, Court-packing scheme, and that diabolical act against our Constitution will have its final chapter of discussion next week. I think it is important that the Members of the Senate understand the history of the United States of America and the setting in which this debate is going to occur. If you read the Constitution from start to finish, nowhere does it say that the Senate has the option of refusing to consider a Supreme Court nominee in the final year of a Presidency. This strategy was announced within hours of Judge Scalia dying. And why would the majority choose to reject their responsibility under their oath of office? Why would they choose to do that? Certainly it wasn't because Merrick Garland wasn't qualified. He hadn't been nominated yet. Certainly it wasn't because there was a precedent because there was no precedent in U.S. history for stealing a Supreme Court seat. Here is what transpired. The majority said: This might be a nominee who will fight for the ``we the people'' vision of our Constitution, and we don't want that because we are committed to a different vision-- a vision of government by and for the most powerful people in the United States of America--and we want to make sure that the Court has a 5-to-4 majority to keep turning the Constitution on its head, destroying the vision that this Constitution, our Constitution, was designed for. Well, the President proceeded to carry out his responsibility despite the fact that the majority said: We are not going to consider your nomination because we are not going to honor our responsibilities under the Constitution. Despite that, the President said he would honor his responsibility, and he nominated Merrick Garland on March 16. The story here in the Chamber was that if he was on this floor, he would have plenty of votes, far more than 60 votes to be confirmed. So that kind of hardened the opposition, because there were more than 60 Senators who were going to say: Yes, let's embrace this mainstream judge who wants to fight for our ``we the people'' Constitution. But the leadership said no. What have we seen unfold over the last few years of dark money ruling American campaigns? In 2014, we saw the Koch brothers decide that they wanted to control this Chamber, so they said: We are going to spend vast sums to elect a majority that will respond to our perspective as billionaires, coal and oil billionaires, kind of like a government by and for the powerful. So they spent huge sums of money in Arkansas and in Louisiana and in North Carolina and in Iowa and in Colorado and in Alaska and in my home State of Oregon, and they won most of those States. Suddenly, there was the majority they had hoped for. Then they sent a warning message to the Republican leadership in the form of this: In January 2015, the Koch brothers said: Pay attention because we plan to spend nearly $1 billion in the next election, 2 years from now, and if you cross us, you might know the consequences because we can spend money in primaries as well as in general elections. That is the background on how the Senate majority decided to steal this seat for the first time in U.S. history. Just to make sure we are checking all of our facts on this, let's take a look at those various vacancies. As I mentioned, there have been 16 in our history. In one group of nominations, those vacancies occurred after the election, so there was very little time for the Senate to act. Nominee John Jay--President John Adams--was nominated on December 18. At that point in time, the new President took office in March, so there wasn't very much time, but nonetheless the Senate acted and confirmed the nominee, and, in kind of an interesting twist of fate, the nominee turned down the post. When Ward Hunt was nominated by Ulysses Grant in December of 1872-- again, just a couple of months before the next President would come in--the Senate acted. Let's take a look at William Woods. The nominee from President Rutherford Hayes was also nominated in December of that year, just months before the new President would come in, but nevertheless the Senate acted. In all three cases, they confirmed the nominee within that short period of time. They debated. They vetted. They acted. They fulfilled their responsibility under the Constitution. Now there is another group of nominees in an election year where the vacancy occurred before the election, but the nominee was nominated after the election, and there are four in that group. We have President John Quincy Adams, who nominated John Crittenden. The day he nominated him was in December of 1828--again, just a few months before the new President would take office--and in that case, it was proceeded to be acted on by the Senate. The Senate chose to postpone the action, but they acted. They took a vote. They decided. There was Jeremiah Black, the nominee, in February 1861. There was a motion to proceed. The Senate voted, and they rejected it. Then we have a nominee from Abraham Lincoln in 1864, and that nomination was confirmed. Finally, under President Dwight Eisenhower, there was William Brennan, and that nomination was confirmed as well. In all of these cases, even though the nomination occurred after the election and there was little time, the Senate acted. There is a set of nine more nominations that occurred in an election year, and these are cases where both the vacancy occurred before the election and the nomination occurred before the election. Nominee William Johnson under Thomas Jefferson. Final result: The Senate acted. They confirmed. Edward King under President John Tyler. The Senate acted. They rejected that nomination, but they acted. They tabled it. Edward Bradford under Millard Fillmore. They proceeded to again reject the nomination, but the Senate acted. Melville Fuller--nominee under Grover Cleveland--was confirmed. And realize this was in May of that year. George Shiras under Benjamin Harrison. He was confirmed. That happened in July that the nomination occurred. Brandeis under Woodrow Wilson. He was nominated in January. Confirmed. John Clarke, also Under Woodrow Wilson. Nominated in July. Confirmed. All of these were before the election in a parallel case to the situation with Justice Scalia passing away and a nomination in the election year. Benjamin Cardozo was nominated by Herbert Hoover. He was confirmed. So there we have 16 cases--actually, I have only mentioned 15 so far--15 cases in our history in an election year, and in each and every case, the Senate acted--in each and every case except for the tragedy, the desecration of the Senate process that occurred last year. Merrick Garland was nominated by Barack Obama in February. No action. The first no action in U.S. history. The first stolen seat in U.S. history. Let's understand that this is politics out of control when Senators would ignore their oath of office, would proceed to engage in a Court- packing scheme and steal a Supreme Court seat. This is politics completely unhinged. This is driven by the dark money of the Koch brothers. This is the powerful, behind-the-scenes puppet master telling the Senate what to do because they cannot afford to have a Justice who hadn't been appropriately vetted by conservative think tanks to make sure how they will vote on Citizens United possibly get on the Supreme Court. Nobody knew how Merrick Garland would vote on Citizens United. On the Democratic side, we worried that he might sustain it. On the Republican side, they worried that he might strike it down and be a ``we the people'' Justice. But instead of engaging in responsible Senate action required by our oath of office, for the first time in U.S. history, the majority, driven by a powerful special interest, the Koch brothers, decided to steal the seat. So that is the setting in which next week's debate will occur. We have heard some very self-righteous words coming from the majority side saying: Look how qualified he is. How could you possibly say there is anything wrong with this nomination? Well, I asked my fellow colleagues to realize the reality of what they are engaged in, that they had a responsibility and that every Senate majority in U.S. history exercised that responsibility until last year. And it corresponds to this enormous growth of dark, secret money under Citizens United entering our campaigns. It corresponds to the threat that the Koch brothers made in January of 2015 that they were going to spend nearly $1 billion in the 2016 election. One of our Republican colleagues said he thought the Senate should do their job. He thought we should hold a debate, we should hold a vote. And there was a tremendous pressure brought to bear on that colleague from the suppliers of this dark money, and then 3 days later he changed his position. This is a corruption of the very foundation of our democracy, and that is why there is only one legitimate nominee who President Trump should put forward to end this act of theft, to honor the integrity of the responsibility of the Senate, and that is Merrick Garland. We don't know where he stands on lots of issues. He has been a judge who came right down the middle. He has been a judge whom everybody respected. He wasn't from the extreme. But the process of stealing the seat was to get a judge whom everyone knew where he stood, because they wanted to make sure that he would sustain Citizens United, that he would take the corporate side against the consumer time after time after time. This is why there is a tragedy unfolding right now. I urge the American people to pay attention because the very foundation of our democracy, of the integrity of our institutions are being shattered, degraded, and destroyed right before our eyes. Those who care about the Constitution, those who care about the integrity of the Senate doing its job under its oath, those who care about the integrity of the Court must stand up and say no to this effort to pack the court. One of the arguments colleagues made, not knowing the history of the United States, was that there just wasn't time. There was just not enough time to consider a nominee. So here is a little bit of information regarding time. Since the 1980s, every person appointed to the Supreme Court has been given a prompt hearing and a vote within 100 days. Since 1975, the average is 67 days. So to those who said that this seat opened up in January and there wasn't time left to have the Senate exercise its responsibility, we can see that they were just presenting a falsehood, that there was plenty of time for the Senate to exercise its responsibility. To those who said that the nomination didn't come until March, there was still 10 months left. So from the time that Merrick Garland was nominated, 293 days were left in the administration. For Kagan, consideration took 88 days; for Sotomayor, 67; for Alito, 83; for Roberts, 63; for Breyer, 74; and for Ginsberg, 51. Do we hear any numbers equivalent to 293 days? Let's look at Thomas, 69 days, Kennedy at 65, Scalia himself at 85, Rehnquist at 89, and O'Connor at 33. They all fall into the same pattern of a couple of months for the paperwork to be done, the investigation to be completed, and the committee to hold hearings and to act. But there is Garland, with 293 days, and the Senate failing to act. This simply reinforces the pretense put forward that there wasn't enough time, or that there was a tradition of not considering a nominee for a seat that became available in an election year, because it has happened 15 times previously in our history, and in all 15 times the Senate acted--every single one. So every argument put forward was phony, was wrong, and was based on falsehood. It was driven by dark money puppeteers of this Chamber wanting to make sure they could keep open their Citizens United money corrupting American campaigns and debasing our democratic Republic. So to everyone who cares about the integrity of the Senate and the integrity of the Court, let this Senate know that they must return to respecting this institution and to respecting the Court. That means Merrick Garland must be the nominee until the Senate has acted on him, and the nominee before us must be rejected. To do anything else is to desecrate the integrity of this Court and this Chamber.

Mr. MERKLEY. Madam President, here in America we hope that families will have the opportunity to build successful lives in preparation for a beautiful retirement. That involves many different factors. It involves the solvency of Social Security. It involves the foundation of a good, living-wage job. It involves, certainly, the question of whether, through one's life, they are able to save for retirement. This has become more and more important over time because fewer and fewer jobs have a retirement pension plan. Without that, it is really incumbent on the individual to be able to succeed to put money aside, and we know how difficult it is for an ordinary working family to have the extra funds to be able to put into a retirement account. Certainly, we want to make that as simple and as easy as possible. But what we know is that the simplest strategy--which is to be able to save through your work, to be able to have funds automatically deducted from your paycheck so you never actually get it in your hands--is often unavailable. According to one 2013 study, 40 percent of small business owners themselves had no retirement savings, 75 percent had no plan to fund their own retirement, and of those who are working for employers who hire and have 100 or fewer employees, more than 60 percent--62 percent of the workers--do not have access to a work-based retirement plan. We can imagine the difference between going to work at a job where the employer says: Hey, we have a retirement plan. You just need to sign this document, and you will be part of it. Please sign up. After a few months, if you feel you can't afford to keep setting those funds aside, you can change what you are doing. You have that flexibility. You can choose between options for different types of investments. But it is all right there. It is all very easily accessible. All you have to do is do it. The difference between that and a situation where there is nothing in the workplace--no benefit in the workplace, no retirement structure--is that in that situation it becomes a much more complicated undertaking. Fifty-five million Americans--nearly half of private sector workers-- work for employers that do not offer any form of workplace retirement saving or pension plan. Roughly 45 percent of working-age households, half of which are headed by someone between 45 and 65 years old, lack any type of retirement account asset. So if there is no structure to make it simple to plan for retirement, it is more likely that one goes into those golden years without any form of gold; that is, without the resources in the bank to back up Social Security. We know that more than half of the folks who are on Social Security depend on it for more than 90 percent of their income. Or, more simply stated, for more than half of Americans in retirement, Social Security is essentially their only source of support, and it is often not enough to maintain even the minimal essentials of life. Why is it that so many businesses don't set up a workplace plan? What it really boils down to is complexity for the employer. A lot of small businesses don't have a human resources person. They don't have an extra individual who can do the administrative work to set it up. Maybe the plan requires a match, and the employer isn't sure they will be able to afford a match. There are all sorts of reasons that this is complicated. It is difficult either financially or just in terms of additive overhead for a small business. So they don't set up the plan. We know that if they had a plan, employers would participate. We know that because in States that have plans, the employers participate. In addition, the General Accounting Office did a study in 2015 which found that the overwhelming majority of workers would participate in an employer-sponsored retirement plan if they had the opportunity to do so. So this brings us to the fact that many States are saying: Let's make it easier for employees. There are 30 States that are looking at the possibility of the State setting up a retirement plan that wouldn't be attached to a single employer, so that an individual could carry it with them. For example, imagine that your teenager has their first job serving yogurt--one of the jobs that my daughter had--or as a lifeguard at a local swimming pool or serving coffee--those first service jobs they get. What would happen if, from that first job, 3 percent of their income was placed automatically into a retirement account--a retirement account that they could control the options of, a retirement account where they could increase the amount of their income to go into it if they wanted, or a retirement account that they could always opt out of if they chose to do so. But if they were automatically enrolled, we know the vast majority of individuals stay in the plan. If you go, then, automatically from job to job to job--and in our economy that is the way it works; people don't sign up with one company and serve there for 30 or 40 years--in every job 3 percent was being automatically deducted. Then when you actually went into retirement, you would have a sizable nest egg to complement Social Security. That is what States are looking at. That is what they are pursuing. In more than half of the country, States are considering legislation to create a retirement savings opportunity for small business employees who do not have a work-based plan. Seven States, including my home State of Oregon, are already working at implementing these plans. On July 1 of this year, Oregon is going to launch its plan with a voluntary pilot group, and then it is going to expand to employers with 10 or more workers in 2018 and finally to all employers in the State in 2019. Under this plan, employees who do not have an employer-provided savings account will be allowed to save part of their paycheck in their own personally managed accounts, and it will be automatically deducted unless the employee decides to opt out. Once it expands to all employers, 800,000 Oregon workers are expected to have access to a State-sponsored retirement savings program. Again, this will be an automatic-in, opt-out strategy to make it really simple. In Oregon, 95 percent of our businesses are made up of small businesses. More than half of our workers are employed by those small businesses. So this is a pretty good arrangement to facilitate this opportunity. Now, here is something that we may not immediately think about. When an employee saves for their retirement and is, therefore, financially better off in retirement, it reduces the cost of government programs. Within the first decade after these plans are established, total State spending on Medicaid could drop by $5 billion. In Utah, a recent study found that the State would save $3.7 billion for five essential government support programs--not just Medicaid--over the course of 15 years. When I first read about Medicaid costs dropping because of a retirement plan, I said: How does that work? It turns out to be very simple. If you have saved money and are financially better off, you are not in a position where you would be in the Medicaid Program, thus reducing the number of people who are in it. This study found that over 10 years, for the States that are already working to implement plans, California would save more than half a billion dollars; Maryland would save more than $100 million; Connecticut and Oregon, about $60 million a piece; and Illinois, a quarter of a billion dollars. So that is just an interesting piece that we should be recognizing--that when families do better, not only do they do better, but they lower the cost of government programs, which I think many folks here, on both sides of the aisle, would say would be a terrific thing. Then there is this principle of experimentation at the State level. Why would we in this Chamber, having failed to provide an automatic-in, opt-out opportunity as people move around the country to various jobs, having failed to do a Federal version of this, stop our municipalities and our States from experimenting to see if this is something that will increase the success of our families? Why would we stop a State from experimenting? Now, I hear all the time here about States' rights. I hear all the time about how States are the place for experimentation, to see what works and what doesn't work, innovation. Give them the opportunity to try things. Well, this Congressional Review Act proposal says the opposite. It says: Let's stomp out experiments by our municipalities. Let's devastate and decree that you cannot experiment and innovate at the State level on a very significant challenge facing America. So whether you want families to succeed or whether you simply believe in the power of local innovation and opportunity, you should be against this proposal. What this proposal is about is this: There is a twist in the national retirement law known as ERISA that an employer might possibly have liability related to an employee signing up for a State-sponsored or a municipality-sponsored account. Well, that pretty much puts a wet blanket over employers signing up under these State plans or under these local plans, because the thought that you might have liability for something you have no control over doesn't sound like a good place to be. So to correct or clarify this, a regulation was issued and it should be obvious why it is right, which is that the employer will not have liability over provisions of a State- or municipal-sponsored retirement account. They didn't set it up. The employer didn't advocate it. The employer is not choosing where the investments go within the account. They are not deciding which companies' retirement plans get to participate as options or whether there are even company retirement plans. The employer is not doing any of that. The employer is simply the host. The whole point of the plan is to make it very easy for the employer, because that has been the burden in the past of an employer- by-employer plan. In this case, it is just automatically set up. In States like Oregon, they are setting up a pilot project, where employers are willing to experiment and be a part of it so they can learn from that. Then, they can design a better plan for larger small businesses, those that have more than 10 employees. Then, they can make it, after having worked the kinks out of it, work for everyone, including very small employers. If along the way they run into an obstacle, they can pause and work on that. This is absolutely the best in policy strategy in America. Give municipalities, give States the opportunity to experiment, and on an issue that can help families thrive, help our young ones thrive. I know that my son and my daughter are going to be better prepared for retirement and in a better financial position if, in every job they pursue in Oregon, they are automatically saving 3 percent of their income--or more if they choose to or less if they opt out. But certainly, the vast majority of workers, once in a plan, stay in the plan. It is kind of how it is with deductions on your Federal and State taxes. When it comes out of your payroll automatically, you get used to it, you adjust to it, and you say: Hey, that works. So, to my colleagues, please oppose this Congressional Review Act proposition that will squash innovation by municipalities, and its companion will squash programs by States--programs that are very valuable, both for us to understand possible important policies to help set a platform for the success of our families, and it is very important to the families themselves. Please vote no. Madam President, I suggest the absence of a quorum.

Mr. MERKLEY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that Dara Greene, my intern, be granted privileges of the floor for the balance of the day.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I ask unanimous consent that my intern, Brandy Boyce, be granted privileges of the floor for the remainder of the day.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, the most important words in our Constitution are the first three words, ``We the People.'' With those words, our Founding Fathers laid out the vision, the principles, and the foundation for our new Nation's government. It would be, as President Lincoln so eloquently described, ``a government of the people, by the people, and for the people.'' It would not be a government by and for the privileged. It would not be a government by and for the powerful. It would not be a government by and for the elite, and it certainly would not be an authoritarian government. I believe it is more important than ever for us to recommit ourselves to that vision, a vision of a nation that measures successes, not at the boardroom table but at the kitchen tables of hard-working Americans across this land, the vision of a nation that derives its power and authority from the people. In order to do that, we must resist President Trump's dangerous tilt toward authoritarianism. Throughout his candidacy and now within the walls of the White House, President Trump has viciously and repeatedly attacked the media. He has inflamed people's anger toward immigrants, toward religious minorities, toward refugees, and he has undermined or attacked individuals who publicly stand up to him and the shortcomings of his policies. These are four strategies used by authoritarian leaders from time immemorial to consolidate power. These are strategies that are incompatible with our constitutional ``we the people'' construction of government, and we must call out and resist these strategies. President Trump's authoritarian leanings were there from the beginning. Like many figures throughout history, he rode into office as much on a cult personality as on the merits of his policies. It started with the nicknames and the unrestrained insults, calling opponents crooked and lyin' and phony, calling critics dumb as a rock, incompetent, crazy, or dishonest. He escalated the calls to toss out or hurt protesters at his rallies. At one point, he promised to pay the legal bills of a man arrested for punching a protester at a rally in North Carolina. Then there were the ``lock her up'' chants that he repeated himself, calling for imprisoning a political opponent. Threatening to throw your opponent in jail if you win is a strategy usually seen only with dictators. Mr. Trump himself best summed up his populist cult personality when he said at one campaign event: ``I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?'' The scary thought is that he was probably not so far off the mark. This aggressive and unswerving loyalty is a challenge to our ``we the people'' democracy. Let's take a look at Senior White House Policy Adviser Stephen Miller's declaration on Face the Nation last month. He said: ``Our opponents, the media, and the whole world will soon see as we begin to take further actions, that the powers of the President to protect our country are very substantial and will not be questioned.'' That is an interesting statement to make: The President's powers will not be questioned. What a bold, un-American, authoritarian statement to make because here in America, our Nation, our national government, is premised on the concept that we can challenge our leaders. It is not only a privilege, it is a responsibility. Yet Mr. Trump has repeatedly attacked this fundamental American principle and those who exercise it. Take, for instance, his attack on freedom of the press. Demosthenes, an ancient Greek statesman, orator, and legal scholar of the third century B.C. once said: ``There is one safeguard known generally to the wise, which is an advantage and security to all, but especially to democracies as against despots--suspicion.'' What Demosthenes was saying is that in a democracy we don't take the statements of our political leaders simply at face value. We test those statements against the facts to find our way to the truth. In the United States, a free and open press is how we exercise that suspicion and find our way to the truth. Thomas Jefferson believed that. He said: ``Our liberty depends on the freedom of the press.'' Our liberty depends upon the freedom of the press. Benjamin Franklin echoed that belief when he said: ``Freedom of speech is ever the Symptom as well as the Effect of a good Government.'' John Adams wrote: ``The liberty of the press is essential to the security of the state.'' It is so essential, in fact, that the Founding Fathers enshrined our commitment to a free and open press to the very First Amendment to the Constitution, that ``Congress shall make no law . . . abridging the freedom of speech, or of the press.'' Yet what we have seen time and again from President Trump is an endless attack against the fourth estate, against the press. He said: ``The media is very unfair. They're very biased.'' He complained on FOX News last August. He attacked the New York Times in that same interview, not for the first or last time, saying: ``You look at The New York Times, I mean the fail--I call it `The Failing New York Times.' '' Apparently any news story critical of the President is now ``fake news.'' He tweeted in February: ``Any negative polls are fake news.'' And when asked about leaks from the intelligence community during last month's press conference in the East Room, he said: ``The leaks are absolutely real. The news is fake because so much of the news is fake.'' His staff has gotten into the action, too, pushing at one point the Orwellian term, ``alternative facts.'' During an interview on NBC's Meet the Press, Kellyanne Conway said: ``Sean Spicer, our press secretary, gave alternative facts,'' and, in the administration, ``we feel compelled to go out and clear the air and put alternative facts out there.'' The White House has taken their fight with the media so far as to block access to outlets they disagree with, banning outlets such as CNN, POLITICO, the New York Times, and Los Angeles Times from an off- camera press briefing last month. But of all of President Trump's relentless attacks against the media, the most disturbing to me was when he tweeted in February: ``The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!'' President Trump, I have a message for you: A free and open press is not the enemy of the American people. A free and open press is the salvation of our democratic Republic. It is an essential warrior in our Republic against fake news, charlatans, and those who would use fake news and attacks on the press to advance authoritarian government. I thought my colleague from Arizona, Senator McCain, made a very apt analysis when he said that suppressing free speech is how dictators ``get started . . . when you look at history, the first thing that dictators do is shut down the press.'' Senator McCain went on to say: ``If you want to preserve democracy as we know it, you have to have a free and many times adversarial press.'' So this is a major concern, this attack on the media, and particularly an attack on news organizations that work to vet their reporting before they share it with the American people. In other words, we are in the ironic situation that the very groups under attack by President Trump are the groups that work hardest to get true facts, actual facts, vetted facts, carefully fact-checked information to the American people. That is the foundation for a national dialogue: carefully vetted information so that we know when we read it, it is reliable. That is the type of news we need more of in this Nation. Mr. Trump's authoritarian tactics aren't just limited to his war on the media. His second approach is to attack and scapegoat immigrants, religious minorities, and refugees ever since he stood in the lobby of Trump Tower and said: When Mexico sends its people, they're not sending their best. . . . They're bringing drugs. They're bringing crime. They're rapists. Since then President Trump has made it his mission to turn the American people against Mexican immigrants, to make them the enemy. He has talked about the ``bad hombres'' flooding across our southern border, stealing our jobs, committing crimes, and murdering American citizens. In his mind, the people coming from Mexico are all dangerous, violent cartel members transporting an endless supply of drugs across our country in order to ruin America. But this storyline is completely at odds with the facts. First, drug cartels do not ship their products into our country through the backpacks of immigrants. Recently I traveled with a congressional delegation to the U.S.- Mexico border to examine this issue. The experts on the border told our delegation that drugs come into the United States through freight, in trucks, and through tunnels--not through backpacks. What this means is that a proposal to build a wall, whether it is 20 feet high or 30 feet high, will be absolutely useless in diminishing the flow of drugs into our country. I will tell you what else they told us. They said that an end zone defense does not work against drugs. If you want to stop the flow of drugs, you have to work carefully with regard to everything from the moment they are being manufactured or shipped into Mexico until they migrate north. That means you have to work in close cooperation with the security agencies of Mexico, with the police, and with the intelligence agencies of Mexico. That cooperation requires a very close coordination between respected partners, and disrespecting the partners of Mexico is the best way to damage the ability to intercept drugs that are coming into the United States. We also know that the underlying premise of there being a flood of Mexican immigrants coming into our country is false. A 2015 study from the Pew Research Center found that between 2009 and 2014, there was a net outflow of 140,000 Mexican immigrants from the United States. They were migrating from the United States to Mexico, a net outflow. A more recent Pew Study determined that the number of undocumented Mexican immigrants in America has declined by more than 1 million since 2007. If you take the span during the Obama administration, there was an outflow, not an inflow--the exact opposite of the story line the President is presenting. What about those violent crimes being committed by undocumented criminals? The data does not support the President. In fact, the New York Times reported that ``several studies, over many years, have concluded that immigrants are less likely to commit crimes than people born in the United States.'' Between 1980 and 2010, among men aged 18 to 49, immigrants were one-half to one-fifth as likely to be incarcerated as those born in the United States. When you look closer, the attacks on immigrants fall apart, as I have pointed out, but that is what authoritarian leaders do. They create a false enemy, and they use the perception of that enemy to generate hate and fear. They use that hate and fear to consolidate power. It is our responsibility as citizens, as the press in the United States, and as legislators to resist this authoritarian strategy of President Trump. Another of his strategies is to attack religious minorities in our country and abroad. Take for instance his pledge on the campaign trail for a ``total and complete'' shutdown on Muslims entering the United States. As we know, Mr. Trump followed up on this approach after the election by asking Rudy Giuliani to help fashion a legal Muslim ban. During a FOX News interview, Mr. Giuliani said: Trump called me up. He said, Put a commission together. Show me the right way to do it legally. To attempt to meet constitutional muster, Trump aimed his ban at immigrants from seven Muslim-majority nations. Rudy Giuliani went on to say in that same FOX News interview: What we did was we focused on, instead of religion, danger--the areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that's what the ban is based on. But, as William Banks, the director of the Institute for National Security and Counterterrorism at Syracuse University, observed, ``Since 9/11, no one has been killed in this country in a terrorist attack by anyone who emigrated from any of the seven countries.'' The President's own Department of Homeland Security recently reported that citizens from the countries listed in the Muslim ban are ``rarely implicated in U.S.-based terrorism.'' In fact, the report concluded that individuals who died in the pursuit of or who were convicted of terrorism were far more likely to be U.S.-born citizens than to be immigrants. Here is the great irony and the tragedy of President Trump's effort to demonize Muslims: Instead of protecting the United States, he is damaging the security of the United States. His attacks feed perfectly into and therefore strengthen ISIS's recruiting strategy of claiming that the United States is at war with Islam. Video of his speeches and public statements, especially Trump's call for a Muslim ban, has already been featured in ISIS's recruiting tools. In addition, it weakens the Muslim leaders we are seeking to partner with in taking on ISIS. It undermines those leaders' support from their own countries in their cooperating with the United States. Trump's strategy does double damage to American security, and I wish his impact against religious minorities stopped there. I wish it stopped long before there because it is incompatible with the fundamental premise, the fundamental values of the United States of America, which is religious freedom. Yet, throughout the course of his campaign, he gave voice time and again to the views and opinions of White nationalists and anti-Semites. He did not directly attack the Jewish community, but his White nationalist rhetoric and actions have had the effect of doing it indirectly. When he needs news or information, he turns to the White nationalist Breitbart News--a fake news source which has infamously attacked American Jews with stories like ``Bill Kristol: Republican spoiler, renegade Jew'' and another one that attacked Anne Applebaum of the Washington Post, which read: ``Hell hath no fury like a Polish, Jewish, American elitist scorned.'' But President Trump does not just tap into the Breitbart White nationalist themes; he brought the former executive chair of Breitbart, Steve Bannon, into the White House as his chief strategist and then appointed him to the Principals Committee of the National Security Council. This individual has no business being anywhere near the Capital of the United States and certainly not on the Principals Committee of the National Security Council. Bannon is a man who has not only been embraced by White supremacists for his views, but according to testimony from his ex-wife, he has said he does not want his children going to school with Jewish kids and had once asked a school administrator why there were so many Hanukkah books in the library. If you think this theme has not had a real effect on our country, you are wrong. When Donald Trump was elected, the KKK and other White nationalist groups celebrated. They felt free to come out of the shadows. They felt bold enough to hold an annual White nationalist conference right here in Washington, DC, at the Ronald Reagan Building, steps from the White House, because they finally felt like they had one of their own in the Oval Office. These nationalist groups are so emboldened that we have seen more than 100 bomb threats called in to Jewish community centers around the country since January. We have witnessed the desecration of Jewish headstones in cemeteries in St. Louis and in Philadelphia. Last month the President, speaking to a roomful of State attorneys general, said he condemned these threats. I applaud him for condemning them. But then he turned around and said: ``You have to be careful, because the reverse could be true.'' What did he mean by that? Commentators have suggested that the President meant by ``the reverse could be true'' that the bomb threats, the Swastika graffiti, and the desecration of Jewish burial sites might actually be the work of Jewish Americans to generate criticism of President Trump. There is no evidence of that, and I certainly do not believe it to be true. What I do believe is that a ``blame the victim'' tactic is reprehensible and in itself an anti-Semitic strategy. The President has also dedicated a significant amount of time to trying to make the country fear refugees, to demonize refugees. Many of us grew up in a world in which Lady Liberty's words of ``give us your tired, your poor, your huddled masses yearning to breathe free'' stirred our hearts because, unless you are 100 percent Native American, you are tied in through your parents, your grandparents, your great- grandparents, your ancestors. You are tied to those who immigrated to the United States, who came here, often fleeing persecution, often fleeing famine. This Nation gave them a place to stand and in which to build a new life and thrive and hand down a better, stronger nation to their children. That is a property of our history. That is a value deeply rooted in our hearts. The President, instead, has dedicated his energy to attacking refugees, those, like our ancestors, who came here, fleeing persecution and fleeing famine, especially Syrian refugees, who are fleeing for their lives in search of a safe haven. He has falsely claimed they represent a ``great Trojan horse'' that threatens the safety of Americans. Mr. Trump says these victims of war have to be subjected to extreme vetting because we have no idea who these people are or where they come from. The fact is that we do know who they are. We know exactly where they come from because before they can come here as refugees, they already go through extreme vetting. It takes 18 months to 2 years of vetting, on average, before refugees are given tickets to come to the United States of America, and if at any point during that 18 to 24 months something does not add up, they do not get the tickets. Now, if ISIS or another terrorist organization wants to get people who are dangerous into our country, they do not go through an 18- or a 24-month vetting process. No. They come on tourist visas or student visas or business visas. Going through the refugee process would be the worst possible way to do it. As an analysis by the Migration Policy Institute reminded us in October of 2015, of the 784,000 refugees who have been resettled in our country since September 11, 2001, 3 have been arrested for planning terrorist activities. None of them got past the planning phase, and only one of those three was talking about potential attacks here in the United States. The others were talking about sending money and weapons to al-Qaida. In other words, no one has been injured by those 784,000 refugees. These are just some of the pieces of the President's authoritarian strategy to demonize groups, to create hate, to create fear, and to try to consolidate power. As a result of his activities, we have seen waves of hate crimes and violence and bigotry sweep across our Nation. Latino and Latina students in our schools and in our classrooms have been forced to confront classmates' bullying and taunts, chants of ``build the wall'' and ``go back to your country,'' and graffiti sprayed on walls to ``build the wall higher.'' We have heard reports of verbal and physical attacks against people of the Muslim faith. A woman at San Jose University lost her balance and choked when a man attempted to rip off her head scarf. A Muslim student at the University of Illinois Urbana-Champaign campus reported having a knife pulled on her. A Muslim teacher in Georgia found left on her desk a note that read that a head scarf is not allowed anymore and that she should hang herself with it. Within the last 8 weeks, four mosques around the country have been burned to the ground. Just recently, a man in Kansas went into a bar, hurled ethnic slurs at two Indian engineers, and shot them, killing one and seriously injuring the other. As I mentioned earlier, since January, there have been more than 100 bomb threats against Jewish community centers. Throughout history, we have seen this tactic used by an executive here, an executive there, by a dictator here, a dictator there, in country after country, to characterize minority communities as a threat to be feared in order to make the body politic afraid, to make them angry, and to make them willing to support authoritarian exercise of power. What is our job? It is our job to expose this strategy, to call attention to this strategy, to address the myths that are used to instill fear and the falsehoods that are used to instill hatred. It is our job to oppose this authoritarian game plan in every way possible. The third leg of President Trump's authoritarian attacks are ones that go against public opposition to him and attack the protests of the people of the United States. What was the President's response after millions of people in cities all around the country--and all around the world, for that matter--joined the women's march to stand up for the fundamental values of peace, tolerance, and equality? His response was a rebuke and a dismissal. He tweeted: Watched protests yesterday but was under the impression that we just had an election! Why didn't these people vote? Well, President Trump, they did vote, and they all voted overwhelmingly for your opponent, by a 3 million-vote margin. We saw similarly disparaging responses from Republican lawmakers like the Facebook post from a State Senator in Mississippi who said: So a group of unhappy liberal women marched in Washington, D.C. We shouldn't be surprised; almost all liberal women are unhappy. After countless citizens around the country began showing up at townhall meetings to make their voices heard, what was his response? He dismissed these engaged citizens as ``so-called angry crowds,'' and then he tweeted: ``Professional anarchists, thugs and paid protesters are proving the point of the millions of people who voted to make America great again!'' I have held a lot of townhalls since January, many of them filled beyond capacity with regular citizens who are deeply distressed by what they are seeing in our country. At one townhall, more than 3,500 people showed up. We had so many people that the hundreds of folks who couldn't get in had to stand outside the building in the cold, listening. We took a speaker and put it in the window so those outside could hear, and they watched through the windows. This is ``we the people'' government. This is American citizens saying: Your strategy, President Trump, is not OK. Your strategy to divide us into factions in America and to pit one faction against another, to demonize groups, to incite hate is just wrong. I find it truly disheartening to see the President attacking citizens exercising their voice, which is often the most basic civic duty. President Jefferson said there is a mother principle for our government, and the mother principle is that the actions of the government will only reflect the will of the people if each and every citizen has an equal voice. We know, in the modern day of campaign financing, some citizens and, indeed, often some noncitizens--that is, massive rich corporations--have a very loud voice compared to the average citizen. So citizens, to compensate, are saying: We are going to show up. We are going to take our time and our energy and we are going to join together and we are going to send a lot of emails to Capitol Hill, a lot of letters to Capitol Hill, but we are also going to show up in the parks and the streets to march in order to say this strategy, this authoritarian strategy, or this strategy to take away healthcare from millions of Americans is absolutely unacceptable. And the President somehow is living in a fantasy world where he thinks they are paid? I don't think so. I don't think this last weekend, when 800 people showed up at Redmond, OR, to my townhall, that a single one of them was paid--not a single one. When we look across the country and we see the 7-year-old who wanted to be at a townhall because he doesn't want us to cut funding for PBS in order to build a wall, he wasn't paid, or the Muslim immigrant who risked his life for our Nation in Afghanistan as a military interpreter and now wants to know ``Who is going to save me here,'' he wasn't paid. American citizens are using their voice as designed in our ``we the people'' Constitution, but in the mind of our President and in the words of his adviser, Stephen Miller, his powers are very substantial and will not be questioned, not even by the citizens and voters of this great Nation. Well, they are being questioned, massively, by citizens raising their voices in every possible way. American citizens everywhere are deeply disturbed by what they are seeing unfold in our Nation. They fear we are headed down a dark and dangerous path that will betray the founding principles of our ``we the people'' government, and they have every right to be anxious and concerned. There have been allusions made by a number of experts to Mr. Trump's actions and the early days of Vladimir Putin's regime and especially his relentless war with the media. All of these are reasons citizens are fired up, raising their voices to oppose the authoritarian tactics of this administration. While the President seeks to dismiss the legitimacy of these voices, I stand here today to praise those Americans for standing up, for taking on their responsibility as citizens to create a powerful, courageous chorus, a public stand against the authoritarian strategy of President Trump--his strategy of attacking the media, his strategy of attacking immigrants, his strategy of attacking refugees, and his strategy of attacking religious minorities. A friend sent me a message the other day saying: I'm more devastated daily. I can't believe the Republicans are not stopping this, saying something. How can this be happening? Don't the Republicans see what's happening? I weep for my kids. Millions of Americans across the country are feeling those same fears. It is up to all of us here, imbued with the awesome responsibility to speak for and represent the people of this Nation, to stand up against advancing authoritarianism. It is right for us to fight for a free, open democratic republic, with a ``government of the people, by the people, for the people.'' Mr. President, I yield the floor. I suggest the absence of a quorum.

Mr. MERKLEY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. MERKLEY

Mr. MERKLEY. Madam President, both of my unanimous consent requests have been rejected, as is the right of any Member. But still, there is a principle here--a principle of executing our responsibilities and a principle of transparency, a principle of understanding whether or not the individual before us is a fit character to serve in the office. So I am going to make a formal motion, which is allowed under the rules, to extend this debate. The rules call for 30 hours of debate but provide a clause that, by a vote, we can extend that debate. I propose we extend that debate for an additional 248 hours. That 248 hours would take us until Monday evening, on the evening we return. So again, no time is lost with the agenda before this body, but we would all have the chance to review those 3,000--or at least the first batch of those emails--to determine if there is information that is related to whether the nominee is fit or unfit to hold this office.