Schumer Floor Remarks on Judge Gorsuch: The Answer isn’t to Change the Rules, the Answer is to Change the Nominee

Washington, D.C. – U.S. Senator Charles E. Schumer today delivered remarks on the Senate floor regarding the upcoming vote to confirm Judge Neil Gorsuch to the Supreme Court. Below are his remarks:

Now before I begin, I want to express our concern here in the United States for our friends in St. Petersburg, Russia, in the wake of an explosion on their subway system this morning. Russia has been in the news a lot recently, typically in adversarial terms. Today is a time to remember that, whatever our differences, we wish no ill to the people of any nation. Our thoughts are with the families of the Russians who were killed this morning. We wish a swift recovery to the injured and we hope the perpetrators are soon brought to justice.

Now, Mr. President, I rise this afternoon on the nomination of Judge Neil Gorsuch to the Supreme Court, which was just advanced by the Judiciary Committee.

This afternoon it has become clear that Judge Gorsuch does not have the 60 votes necessary to end debate on his nomination.

So, Mr. President, now the focus is shifting away from the issue of whether Judge Gorsuch will get 60 votes on the cloture motion and towards the fundamental question before us: will the Majority Leader break the rules of the Senate in order to get Judge Gorsuch on the bench?

My friend the Majority Leader has said several times that Judge Gorsuch will be confirmed by the end of this week, one way or another. What he really means when he says that is that if Judge Gorsuch doesn’t earn 60 votes in the Senate, which is now the likely outcome, the Republicans must exercise the nuclear option to pass Judge Gorsuch on a simple majority vote.

I think the Majority Leader reasons that if he says it enough times, folks will start believing it, that he has no choice. But they shouldn’t, it’s a premise that no one should swallow.    

The Majority Leader is setting up a false choice: support Judge Gorsuch or he’ll have no choice but to break the rules. Maybe to the Majority Leader the nuclear option is the only option – but there are many alternatives.

The Majority Leader makes his mind up independent of what Democrats do on issue after issue. But on this one, he says he has no choice. Maybe he has no choice because the right-wing of the Republican Party, and organizations like the Heritage Foundation, will go after him if he doesn’t. But he certainly has a choice to do the right and courageous thing.                          

Instead, Republicans are playing a game of “they started it.” They say Democrats started this process by changing the rules for lower court nominees in 2013. They fail to mention the history that led up to this change. The reason Majority Leader Reid changed the rules was because Republicans had ramped up the use of the filibuster to historic proportions – they filibustered 79 nominees in the first four years of President Obama’s presidency. To put that in perspective: prior to President Obama, there were 68 filibusters on nominations under all other presidents – from George Washington to George Bush. Under President Obama exclusively, in the first four years of his administration, Republicans filibustered 79 times, 79 nominees. They deliberately kept open the DC Court of Appeals because it has such influence over decisions made by the government. We all know the hard-right Federalist Society, and the hard-right Heritage Foundation want to limit what government can do. The deal we made in 2005 allowed several of the most conservative judges to be confirmed to that circuit, but when President Obama came in, they insisted on holding three seats on that court open.  They literally said they would not allow the seats to be filled at all by President Obama.

Sound familiar? Merrick Garland knows it is.

At the time, I pleaded with Sen. Alexander several times, my dear friend from Tennessee, to let us vote on some of the judges for the DC Circuit. I asked him to go to Sen. McConnell and say the pressure on our side to change the rules after all these filibusters was going to be large. Let’s avoid it, I said. But Sen. McConnell said no. Republicans refused all of our overtures to break the deadlock they imposed.

So if the Majority Leader wants to conduct this partisan, “they-started-it” exercise, I’m sure we could trace it all the way back to the Hamilton-Burr duel.                                                                

The fact of the matter is: The Republicans blocked Merrick Garland, using the most unprecedented maneuvers. Now, we are likely to block Judge Gorsuch, and that means that neither party has gotten their party’s choice in the last two years.

Mr. President, we can go back and back, and blame each other. But in the recent history of the vacancy caused by Justice Scalia’s death, we both lost. We lost Merrick Garland because of the Majority Leader’s unprecedented blockade, and Republicans will lose on Judge Gorsuch because we are doing something that we think is reasonable in asking he be able to earn 60 votes, as so many others have. We think the two are not equivalent. But in either case, we both lost.

We are back to square one and the Republicans have total freedom of choice in this situation. No one is forcing them to break the rules. They don’t have to treat the nuclear option as if it’s their first and only option. It’s a false choice.                            

To my friends on the other side: The answer isn’t to change the rules, the answer is to change the nominee. Presidents of both parties have done so in the past when Supreme Court picks failed to merit confirmation. Again, the answer isn’t to change the rules. The answer is to change the nominee.

The Majority Leader should have the vision and courage to see past this impasse…and I believe he should seriously consider a different option: the President, Senate Republicans and Democrats should sit down together to come up with a mainstream nominee who can earn bipartisan support. We are willing to meet with them anywhere, anytime to discuss a consensus nominee.

Now I know my colleagues on the other side will say Judge Gorsuch was a mainstream nominee and Democrats would never support any Judge nominated by President Trump. We disagree. We probably can’t support any nominee vetted by the Heritage Foundation and the Federalist society. They were the sole gatekeepers for the Scalia vacancy, and each is known to be a right-wing, wealthy special interest group dedicated to moving the bench way to the right. Their selection of Judge Gorsuch shows it. Both the New York Times and the Washington Post did analyses that showed Judge Gorsuch would be a very, very conservative  -- many would say right-wing – justice on the bench. The New York Times said he’d be the second most conservative justice on the bench, second only to Justice Thomas, and the Washington Post actually said he’d be the most conservative justice based on his record, even more conservative than very, very conservative Justice Thomas.

In fact, we Democrats have never let the special interest groups be the gatekeeper. We have never said to any special interest group, as President Trump did: give us a list and we’ll choose from that list. That’s what the Republicans did.

And in the past, Presidents have done just what we’re suggesting for selecting Supreme Court Justices. President Bill Clinton sought and took the advice of Republican Judiciary Committee Chairman Orrin Hatch in nominating Justices Ginsburg and Breyer, instead of Bruce Babbit. President Obama took the advice of Republican Senators when he picked Merrick Garland -- a consensus, mainstream nominee.

President Trump, on the other hand, ignored the Senate and only sought the advice and consent of right-wing special interest groups when making his Supreme Court picks. He was running. He had to shore up his support on the hard right, so he said, I am outsourcing the entire selection process to two groups who, again, are not consensus groups. They would admit that themselves, the Heritage Foundation and the Federalist Society. Lo and behold, that process didn’t produce a nominee who could earn 60 votes. By contrast, Justice Ginsburg earned 93 votes. Justice Breyer earned 87.

So, Mr. President: we’re offering the president and our friends on the other side a way forward. They don’t have to break the rules to get a Justice on the bench. They don’t have to break the Senate confirmation process -- fundamentally weakening the constitutional principle of “advice and consent” – to get a Justice on the bench. The president, President Trump, could simply consult with members of both parties to try to come up with a consensus nominee who could get approved and meet a 60-vote threshold.

The answer, again, isn’t to change the rules, it’s to change the nominee.

And we Democrats are not going to oppose every Republican nominee. Of course we realize a nominee selected this way would not completely agree with our views, but Judge Gorsuch is so far out of the mainstream that he isn’t able to earn the votes to pass the Senate. Even Justices Roberts and Alito, two conservative judges, earned a bunch of Democratic votes – and each got more than 60.

So Mr. President, the Republicans are free actors. They can choose to go nuclear, or they can choose to sit down with Democrats and find a way forward that preserves the grand traditions of this body. As the Majority Leader has said, “the one thing the two leaders have always agreed on is to protect the integrity of [this] institution.”          

 “I think we can stipulate…” he has said, and this is a direct quote, “that in the Senate it takes 60 votes on controversial matters.”

And he has long stood for that proposition for the many years I’ve been here.

A Supreme Court seat, I believe, meets the Majority Leader’s standard for 60 votes. And I hope, instead of crippling the Senate in a partisan way, removing that 60-vote threshold for controversial matters like the Supreme Court, my Republican friends consider the option of working together to find a solution we can both accept. It sometimes may seem like a novel concept around here…but that option is always on the table.