Durbin Opposes President Trump's Supreme Court Nominee

WASHINGTON—U.S. Senate Democratic Whip Dick Durbin (D-IL), a member of the Senate Judiciary Committee, today announced his opposition to President Donald Trump’s nominee to the Supreme Court, Judge Neil Gorsuch. Durbin reiterated his concerns over Gorsuch’s record of siding with powerful interests over working Americans, students with disabilities, and victims of discrimination.

In light of the legal and constitutional disputes surrounding President Trump, Senator Durbin also stressed the need for a Supreme Court that will serve as an independent check on an out-of-control Executive.

“We are at a unique moment in history.  The President has already fired an Attorney General and had his unconstitutional executive actions blocked by many federal courts.  The President, in the first few weeks, has also launched unprecedented attacks on the integrity of the federal judiciary. And now, the Federal Bureau of Investigation has confirmed it is investigating Russian involvement in his election,” said Durbin. “In this context, the Senate cannot simply rubber stamp a lifetime Supreme Court appointment for the President. Neil Gorsuch is the man Donald Trump urgently wants on the Supreme Court. That should give many Americans pause, and it certainly gives pause to me. I cannot support the nomination of Neil Gorsuch.  I will vote no when his nomination comes before the Judiciary Committee next week, I will vote no on cloture, and I’ll oppose his nomination on the Senate floor.”

Video of Durbin’s remarks on the Senate floor are available here.

Audio of Durbin’s remarks on the Senate floor is available here.

Footage of Durbin’s remarks on the Senate floor is available here for TV Stations.

Last week, the Senate Judiciary Committee held its confirmation hearing on the nomination of Judge Neil Gorsuch. Over the course of four days, Senator Durbin questioned the nominee and outside witnesses about Gorsuch’s principles and rulings in key cases. He pressed Gorsuch on his controversial dissent in the case of Alphonse Maddin, who was fired after refusing to stay with his broken trailer in life-threatening weather conditions, and his ruling denying a child with severe autism access to the educational services to which he was legally entitled under the Individual with Disabilities Education Act (IDEA).

Durbin has served on the Senate Judiciary Committee for 18 years, during which he has considered the nominations of four current Supreme Court justices. In January, Senator Durbin held a courtesy meeting with Judge Gorsuch and discussed the importance of judicial independence in the Trump Administration.

Durbin’s floor remarks as prepared for delivery are available below:

Senator Dick Durbin

Remarks on the Nomination of Neil Gorsuch to the Supreme Court

March 28, 2017

I rise to speak on the nomination of Judge Neil Gorsuch to serve on the Supreme Court.

It is important to remember how we reached this point.

It has been more than a year since the untimely passing of Justice Antonin Scalia in February 2016.

Under Article 2, Section 2 of the United States Constitution, President Barack Obama had a duty to make a nomination to fill that vacant seat.  He met that obligation by nominating Chief Judge Merrick Garland in March 2016.

But the leader of the Senate Republicans, Majority Leader McConnell, announced that for the first time in the 230-year history of the Senate, he would refuse the President’s nominee, Judge Garland, a hearing and a vote.  He went further and said that he would refuse to even meet with Judge Garland.

It was a transparent political decision, made by the Republican leader in the hopes that a Republican would be elected President.

And it was part of a Republican political strategy to capture the judicial branch of government at every level of the court system.  Not only did Senate Republicans keep a Supreme Court seat vacant for over a year, they also turned the Senate Executive Calendar into a nomination obituary column for 30 other judicial nominees who had been reported out of Committee with bipartisan support.  They were hoping a Republican president would fill all of these seats.

And what kind of nominees were the Republicans hoping for?  Nominees who were blessed by big business and Republican advocacy organizations.  Last year, then-candidate Trump released a list of 21 potential Supreme Court candidates who were hand-picked by two Republican advocacy groups, the Federalist Society and the Heritage Foundation.

It was unprecedented for a President to outsource the judicial selection process to outside special interests.  But President Trump did.  And true to his word to these special interest groups, he nominated one of the names on this list, Judge Gorsuch.

The first call Judge Gorsuch received during this outsourced nomination process was not from the White House; it was from the Federalist Society.  Eventually, Judge Gorsuch made it to the interview stage with President Trump’s inner circle, meeting with Steve Bannon, Reince Priebus, and President Trump himself.

Those men took the measure of Judge Gorsuch and gave him their approval to serve for a lifetime appointment on the highest court in the land.  President Trump, who had announced numerous litmus tests for judicial nominations, appeared very satisfied with Judge Gorsuch as a nominee.

The President’s chief of staff, Mr. Priebus, even said, “Neil Gorsuch…represents the type of judge that has the vision of Donald Trump.”   There was no political subtlety in that evaluation.

After Judge Gorsuch’s nomination was announced, a dark money machine shifted into gear.  A national campaign costing at least ten million dollars was launched to support the nomination.  We don’t know who is bankrolling this effort, but it is a safe bet that the suppliers of this dark money have an interest in cases before the Supreme Court.

Despite this unprecedented and unsettling process that led to Judge Gorsuch’s nomination, the Democrats on the Senate Judiciary Committee gave Judge Gorsuch a courtesy that Republicans denied to Judge Garland: a hearing and a vote.

Why?  Because Senate Democrats take our constitutional obligations seriously.   We do not turn our backs on our constitutional responsibility of advice and consent - even though our Republican colleagues ignored this obligation last year with Merrick Garland.

Last week the Senate Judiciary Committee met for four days to consider Judge Gorsuch’s nomination.

Leading up to this hearing, I had made clear on the Senate floor that Judge Gorsuch had a burden to bear at his hearing.

On February 2nd, I said on the floor that Judge Gorsuch needed to demonstrate that he would be a nominee who would uphold and defend the Constitution for the benefit of all of us, not just for the advantage of a privileged few who engineered his nomination.

I also said that Judge Gorsuch needed to be forthright with the American people about his record and his views.  I made clear that avoiding answers to critical questions was unacceptable.

I said he needed to demonstrate that he would be an independent check on President Trump, and that he was prepared to disappoint the President and the right-wing groups that hand-picked him if the Constitution and the law required it.

Judge Gorsuch was given a full and fair hearing.  He was given every opportunity to explain his judicial record and his views, and to meet the expectations I had laid out for him.

I came away from his hearing firmly convinced that I must oppose the nomination of Judge Gorsuch.

There are a number of reasons why I have reached this conclusion.

First, Judge Gorsuch’s hearing reinforced my fear that he would favor corporations and special interest elites at the expense of American workers and families.

Big business and special interests have found a friend under the Roberts Supreme Court.  As I noted at the hearing, a study by the Constitutional Accountability Center found that the Roberts Court has ruled for positions advocated by the Chamber of Commerce 69 percent of the time.

I’m concerned, based on a review of his record, that Judge Gorsuch is likely to increase the pro-business leanings of the Roberts Court.

In a series of decisions involving workers’ rights, discrimination claims, consumer rights, and access to the courts, Judge Gorsuch has largely favored corporations.   Often, he has substituted his own judgment for that of agencies tasked with protecting workers’ rights.

No case was more egregious than the TransAm Trucking case, which we discussed repeatedly at the hearing.

The facts are well-known by now.  Alphonse Maddin, a truck driver from Detroit, was stuck on the side of I-88 in Illinois in 14-degrees-below weather.  The brakes on his trailer were frozen, and after waiting for a repair truck for several hours without heat in his cab, his body was going numb.

Al Maddin was told by his trucking company that he had two options: stay in the truck or drag the frozen trailer down the road.   Both of these options were risks to health and safety.

Instead, Al Maddin unhitched the trailer and drove to a gas station to fuel up and get warm, and then he returned to his disabled trailer.  For this, he was fired from his job and blackballed from the trucking industry.

Seven judges heard Al Maddin’s case, and six of them said that his firing was unlawful.  The one judge who found for the company was Neil Gorsuch.

Judge Gorsuch’s dissent claimed that he was merely looking at the plain text of the law and a dictionary’s definition, and that this allowed Al Maddin to be fired.  But the 10th Circuit majority said that Gorsuch was cherry-picking one dictionary’s definition to favor the company.  Other dictionaries, and the law’s purpose of protecting health and safety, favored Mr. Maddin.

Republican nominees like Judge Gorsuch often claim they are using the supposedly neutral philosophies of “originalism” and “textualism” to guide their decisionmaking.  But Al Maddin’s case shows how Judge Gorsuch uses selective textualism to advance a pro-business agenda and diminish the rights of American workers.

There are many other cases in Judge Gorsuch’s record that demonstrate this trend, leading the Associated Press to say that Gorsuch’s workers’ rights opinions are “often sympathetic but coldly pragmatic, and they’re usually in the employer’s favor.”

Take a look at the Hobby Lobby case.  In that case, Judge Gorsuch expanded the idea that a corporation is a person to permit a for-profit corporation to impose its owners’ religious beliefs on more than 13,000 employees and limit their access to health care.

In finding for the corporation, Judge Gorsuch barely acknowledged that this decision burdened these thousands of employees and their constitutionally-protected religious beliefs and choices. 

Judge Gorsuch also has a troubling record when it comes to protecting the rights of Americans with disabilities and victims of discrimination.

It was quite a scene last Wednesday when the Supreme Court – during the hearing – issued a ruling unanimously rejecting a standard created by Judge Gorsuch.  This standard had weakened protections for students with disabilities under the Individuals with Disabilities in Education Act.

In 2008, Judge Gorsuch wrote in the Luke P. case that under the IDEA, schools need only provide an educational benefit to students with disabilities that is merely more than de minimis.

At issue was the legal responsibility of a school district to provide educational opportunities for a child with disabilities.  In this case, Luke was a boy from Colorado who suffered from severe autism.

With the assistance and support of his teachers, Luke made significant progress at school in kindergarten and first grade. But then, after his family moved to a new home, he had to change school districts.

At his new school, Luke began to lose the skills he had gained, and his behavior worsened at home. After unsuccessful attempts to address these concerns, Luke’s parents decided that they “could not in good conscience continue to expose Luke to this environment that was so detrimental to his educational and behavioral development.”

They decided to enroll Luke in a residential school dedicated to the education of children with autism spectrum disorders. A due process hearing officer, a Colorado state administrative law judge, and a federal district court all found that the school district had failed to provide the education guaranteed to Luke under IDEA and was therefore required to reimburse the cost of the private residential school placement that Luke needed.

His parents were desperately trying to give him a chance in life, but then Judge Gorsuch ruled against them, creating a new, lower standard for school districts in the process.

I asked Judge Gorsuch about this and he claimed that he was only following precedent in his decision.  But, as I pointed out at the hearing, that’s not accurate. A legal analysis showed that Judge Gorsuch was the first judge on the 10th Circuit to add the word “merely” to this standard.

Luke P’s father, Jeff, testified at the hearing and said that Judge Gorsuch’s “subtle wordcraft” had the effect of “further restricting an already restricted precedent, with unfortunately my son in the bullseye of that decision.”

According to the opinion by Chief Justice Roberts, “when all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress [the Gorsuch standard] from year to year can hardly be said to have been offered an education at all.”

The Supreme Court sent a strong message when they released this opinion last Wednesday during Judge Gorsuch’s hearing.  The Court unanimously said that Judge Gorsuch’s standard was inconsistent with the law, so on this issue the nominee was to the right even of Justice Clarence Thomas.

This case is not an outlier.  In fact, an analysis of his disability decisions showed that Judge Gorsuch had ruled against disabled students in 8 out of 10 IDEA cases.

And there was also a consistent pattern in Judge Gorsuch’s record on discrimination and retaliation cases involving employers.  Bloomberg BNA analyzed this record and found that he ruled for employers 8 out of 12 times.

For example, he ruled against:

  • a sex discrimination claim brought by a UPS saleswoman (Strickland v. UPS);
  • a disability discrimination claim brought by a cancer-stricken college professor (Hwang v. Kansas State Univ.);
  • an age discrimination claim brought by two maintenance workers (Almond v. Unified School District #501);
  • a race discrimination claim brought by an African-American grocery store employee who was called a “monkey” by his supervisor (Young v. Dillon Companies, Inc.);
  • a gender and disability discrimination claim brought by a female county accountant with multiple sclerosis (Johnson v. Weld County, Colorado);
  • and a discrimination claim by a transgender woman seeking to use the restroom of her gender identity (Kastl v. Maricopa County Community College District).

The case of Grace Hwang was particularly troubling to me.  Ms. Hwang had been a college professor for 15 years when she was diagnosed with cancer and needed a bone marrow transplant.  When her six months of sick leave was about to expire, a flu virus was sweeping across the campus.  Ms. Hwang asked to extend her leave and work from home so she would not get infected.

The university denied her request and effectively terminated her employment.   Judge Gorsuch authored an opinion upholding the dismissal of Ms. Hwang’s disability discrimination complaint.

Judge Gorsuch would not let a jury consider the reasonableness of Ms. Hwang’s request for an accommodation.  Instead he wrote that six months’ leave was “more than sufficient,” and wrote that the purpose of disability law is “not to turn employers into safety net providers for those who cannot work.”

Grace Hwang’s children said that Judge Gorsuch’s opinion “removed the human element from the equation.  It did not bring justice.”

Also, during the hearing Judge Gorsuch refused to distance himself from the extreme and bigoted views of his dissertation supervisor, Professor John Finnis, a man he publicly praised as recently as 2011.

Overall, Judge Gorsuch’s record raised serious concerns about what his confirmation would mean for the vulnerable and the victimized.

We also learned that Judge Gorsuch was an aggressive defender of executive power when he served at the Justice Department during the Bush Administration.

In June 2004, after the Abu Ghraib torture scandal, I authored the first legislation to ban the cruel, inhuman, or degrading treatment of detainees.  This legislation became the McCain Torture Amendment, which, despite a veto threat, passed the Senate in December 2005 by an overwhelming 90-9 vote.

But Judge Gorusch advocated that the President should issue a statement claiming that the McCain Amendment was “essentially codifying” torture techniques like waterboarding.  This is despite overwhelming evidence from Senator McCain and others in Congress that this amendment was intended to do the exact opposite by outlawing cruel, inhuman and degrading treatment.

Judge Gorsuch testified that he was simply an attorney working for his client, but Gorsuch’s email correspondence revealed that he was viewed as a “true loyalist” to the Republican Administration.  And this is a client that the Judge actively lobbied to serve, even though their troubled record on torture was already a matter of public record.

These documents from Gorsuch’s tenure at DOJ, which were not available during his 2006 confirmation hearing for the 10th Circuit, provide a revealing look at his beliefs on executive power.  They raise deeply troubling questions about what Judge Gorsuch would do if he is called upon to stand up to a President who claims the power to ignore laws that protect fundamental human rights.

For the majority of questions from Democratic Senators at his hearing, Judge Gorsuch failed to meaningfully respond at all.  He had a standard set of evasions and non-answers that he used whenever he was asked about fundamental legal principles and landmark cases.  It didn’t take long before I could finish his sentences for him.

In ducking these critical questions, Judge Gorsuch ended up saying nothing at his hearing to assuage my concerns about Reince Priebus’s pronouncement that Judge Gorsuch “has the vision of Donald Trump.”

The Supreme Court must serve as an independent check on President Trump, not a rubber stamp.  But Judge Gorsuch wouldn’t even comment on the original meaning of the Constitution’s Emoluments Clause, apparently for fear of implicating the President who nominated him.

Judge Gorsuch may not be the first nominee to have avoided answering questions about his views.  But he went further than others by avoiding these questions so completely.  As a result, members of the Committee can only look to his judicial record and his work for the Justice Department to decide whether he should be given a lifetime appointment to the Supreme Court. 

His record on the bench and his record at the Justice Department make it clear that Judge Gorsuch is not the right person to serve on the highest court in the land.

We all want judges to follow the law and apply the facts fairly.   But it is naïve to believe that this is some robotic exercise.

Every judge brings values to the court.   In close cases those values can tip the meaning of the law or facts before the court.  One key purpose of these hearings is to provide reassurance that the nominee’s values are in the American mainstream.

I did not find this assurance in Judge Gorsuch’s testimony last week, and I did not find this assurance in his record.  He received a fair hearing, but he did not earn my vote at that hearing.

Because Republicans control the Senate, we can expect Judge Gorsuch to be reported out of the Judiciary Committee next week and then to receive a vote on the Senate floor.

But no one should be surprised that Judge Gorsuch will need to meet the threshold of 60 Senate votes in order to be confirmed.

Majority Leader McConnell has made clear time and time again that 60 votes is the standard for matters of controversy in the Senate.  I’ll cite a few of the Leader’s more memorable quotes:

  • On December 2, 2007 he said “I think we can stipulate once again for the umpteenth time that matters that have any level of controversy about it in the Senate will require 60 votes.”
  • On October 28, 2009 he said “Well, it’s fairly routine around the Senate that controversial matters require 60 votes.”
  • And on July 17, 2007 he said “Sixty votes in the Senate?  As common as gambling in Casablanca.”

Sixty votes is a threshold that Supreme Court nominees have met for the past quarter-century.   If a Supreme Court nominee cannot garner 60 votes in the Senate, then the President should put forward a new nominee.

We are at a unique moment in our history.  The President has already fired an Attorney General and had his unconstitutional executive actions blocked in court.  The President has also launched unprecedented attacks on the integrity of the federal judiciary.

And now the FBI has confirmed it is investigating Russian involvement in his election.

A new bombshell is revealed almost every day.

In this context, the Senate cannot simply rubber stamp a lifetime Supreme Court appointment for this President.  Neil Gorsuch is the man Donald Trump urgently wants on the Supreme Court.  That gives many Americans pause, and it gives me pause. 

I cannot support the nomination of Neil Gorsuch.  I will vote no when his nomination comes before the Judiciary Committee next week, I will vote no on cloture, and I will oppose his nomination on the Senate floor.