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Cotton Speaks on the Senate Floor on Using the Nuclear Option to Confirm Neil Gorsuch to the Supreme Court

April 4, 2017

This week, the Senate will fulfill one of our most important responsibilities: advice and consent for a nominee to the Supreme Court. The stakes don't get much higher than a lifetime appointment to the court of final appeal-especially as the Court has presumed over the last two generations to take more and more political and moral questions out of the hands of the people.

President Trump has nominated Judge Neil Gorsuch, a distinguished jurist who understands the critical, but limited, role of the federal courts in our constitutional system. To my knowledge, no senator genuinely disputes his eminent qualifications, his judicial temperament, and his outstanding record over the last decade on the Tenth Circuit Court of Appeals.

Indeed, Judge Gorsuch would appear headed toward an easy, non-controversial confirmation based on comments by Democratic senators.

The senior senator from Colorado introduced Judge Gorsuch at his confirmation hearings with this high praise: "I have no doubt that . . . Judge Gorsuch has profound respect for an independent judiciary and the vital role it plays as a check on the executive and legislative branches. I may not always agree with his rulings, but I believe Judge Gorsuch is unquestionably committed to the rule of law."

The senior senator from Indiana recently announced his support for Judge Gorsuch, saying, "I believe that he is a qualified jurist who will base his decisions on his understanding of the law and is well-respected among his peers."

The senior senator from West Virginia has noted Judge Gorsuch "has been consistently rated as a well-qualified jurist, the highest rating a jurist can receive, and I have found him to be an honest and thoughtful man."

The junior senator from North Dakota also praised Judge Gorsuch for his "record as a balanced, meticulous, and well respected jurist who understands the rule of law."

Remember, these admiring statements come from Democrats all. And all of them support an up-or-down vote on confirming Judge Gorsuch.

Even those who oppose Judge Gorsuch used to sing a different tune about the standards for judicial confirmation. For instance, the senior senator from California put it best when she said: "I think when it comes to filibustering a Supreme Court appointment, you really have to have something out there, whether it's gross moral turpitude or something that comes to the surface." Speaking of a previous Republican president's nominee, she further said, "Now, I mean, this is a man I might disagree with. That doesn't mean he shouldn't be on the court."

In fact, President Obama filibustered a Supreme Court nomination while he was a senator, yet later expressed regret over that decision. He said, "I think that, historically, if you look at it, regardless of what votes particular senators have taken, there's been a basic consensus, a basic understanding, that the Supreme Court is different. And each caucus may decide who's going to vote where and what but that basically you let the vote come up, and you make sure that a well-qualified candidate is able to join the bench, even if you don't particularly agree with them."

Despite all this, though, it appears a radical Democratic minority intends to filibuster Judge Gorsuch's nomination. And the Minority Leader is encouraging this extreme fringe, claiming, "If Judge Gorsuch fails to earn 60 votes, and fails to demonstrate he is mainstream enough to sit on the highest court, we should change the nominee not the rules."

I will return later to the Minority Leader's central and ironic role in all this, but for now let's take a trip down memory lane to understand just how radical this partisan filibuster would be.

No Supreme Court nominee has ever failed because of a partisan filibuster. Never, not once, ever in the 228 years of our venerable Constitution. One nominee-Justice Abe Fortas, to be elevated to Chief Justice-lost one cloture vote in 1968 on a bipartisan basis and then withdrew under an ethical cloud. But no Supreme Court nominee has ever been defeated by a partisan filibuster.

And this historical standard has nothing to do with changes in the Senate rules. The filibuster has been permitted under Senate rules since early in the nineteenth century. It's not a recent or novel power. The cloture rule was adopted 100 years ago. In other words, at any point in our history, a Senate minority could've attempted to filibuster a Supreme Court nominee. They had the tools. The rules permitted it. It would've only taken one senator.

Yet it never happened for a simple reason: self-restraint. While written rules are important, sometimes the unwritten rules are even more so. Habits, customs, mores, standards, traditions, practices-these are the things that make the world go round, in the United States Senate no less than in the game of life. Our form of self-government depends critically on this form of self-government.

Let's reconsider some recent nominees in light of these facts. Justice Clarence Thomas was probably the most controversial nomination in my lifetime. He was the subject of a vicious campaign of lies and partisan smears-a "high-tech lynching" in his words. He was confirmed in 1991 by a bare majority of 52-48.

Yet Justice Thomas did not face a filibuster. Not a single senator tried to block the up-or-down vote on his nomination.

Not Joe Biden.

Not Ted Kennedy.

Not Robert Byrd.

Not John Kerry.

Not one. Why? Any one senator could've demanded a cloture vote-could've insisted upon the so-called "60-vote standard" and perhaps defeated Justice Thomas's nomination. But they didn't, because they respected two centuries of Senate tradition and custom.

Likewise with Justice Sam Alito, whose nomination unquestionably shifted the Court's balance to the right in 2006. He too received fewer than 60 votes for confirmation-58, to be exact. But he received 72 votes for cloture. Here again, a large bipartisan majority upheld the Senate tradition and custom against partisan filibusters of Supreme Court nominees.

Even Judge Robert Bork-whose name is now used as a verb to mean unfair, partisan treatment of a judicial nominee-received an up-or-down vote in 1987. Yes, Judge Bork, who only received 42 votes for confirmation, didn't face a partisan filibuster.

But let's not stop with Supreme Court nominations. Let's also consider other kinds of nominations, so we can understand just how radical is the Democratic minority's position.

To this day, there has never been a cabinet nominee defeated by a partisan filibuster. Never, not once, ever, in 228 years of Senate history.

And to this day, there has never been a trial-court nominee defeated by a partisan filibuster. Never, not once, ever, in 228 years of Senate history.

And until 2003-just 14 years ago-there had never been an appellate-court nominee defeated by a partisan filibuster.

That's just how strong the custom against filibusters of nominations was-it had never successfully happened in 214 years. From our founding through secession and civil war through world wars, no matter how intense the feeling and how momentous the occasion, no matter how partisan the atmosphere, senators always exercised self-restraint and allowed up-or-down votes on nominees to the Supreme Court, the court of appeals, the trial court, and the cabinet.

But that changed in 2003, thanks in no small part to the senior senator from New York, Chuck Schumer, now the Minority Leader. With the help of left-wing law professors, he convinced extremists in the Democratic caucus to filibuster President Bush's appellate-court nominees. So for the first time in more than two centuries of the United States Senate, a radical minority defeated nominations with a partisan filibuster.

Why did the Senate start down this path? Some point to racial politics and Miguel Estrada, one of the most talented appellate litigators of his generation and President Bush's nominee to the D.C. Circuit. That court is often a proving ground for future Supreme Court nominees, and Mr. Estrada's confirmation might have enabled President Bush to nominate him subsequently to the Supreme Court. A Republican president appointing the first Hispanic Justice? Well, surely the Democrats couldn't allow that.

But whatever the reason, there can be no doubt that the Minority Leader set in motion a chain of events over the last 14 years and brought us to the point he claims to deplore today. So the Democrats can spare me any handwringing about Senate traditions and customs.

The Minority Leader and like-minded extremists in the Democratic caucus can also spare us their exaggerated claims of Republican obstruction of President Obama's judicial nominees. The Democrats, after all, were the ones who broke a 214-year-old tradition specifically to obstruct ten of President Bush's nominees. Of course, the Republicans followed suit, though I'd note they filibustered fewer judges over more years spent in the minority.

Put simply, the Democrats broke one of the Senate's oldest customs in 2003 so they could filibuster Republican judges. And they subsequently filibustered more judges than did the Republicans. So it should come as no surprise that the Democrats took an even more radical step in 2013, when they used the so-called "nuclear option" to eliminate the filibuster for executive branch, trial-court, and appellate-court nominations. They broke the Senate rules by changing the Senate rules with a bare majority-not the effective two-thirds vote required under the rules.

The radical Democrats will accept no constraints on their will to power-when in power. Whatever it takes to pack the courts with liberal extremists-or block eminently qualified Republican nominees-is exactly what they'll do.

But don't take my word for it. Let's review what Democrats were saying last year, when they all believed they'd be in power, with Hillary Clinton as president and Democrats controlling the Senate. We didn't hear much talk about the sacred "60-vote standard" back then. On the contrary, the Democrats were promising to use the "nuclear option" again, this time to confirm a Democratic nominee to the Supreme Court.

Former Senate Minority Leader Harry Reid said, "I have set the Senate so when I leave, we're going to be able to get judges done with a majority. . . . [I]f the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I've told 'em how and I've done it . . . in changing the rules of the Senate."

The junior senator from Virginia, who would've been Vice President had Secretary Clinton won, said quite frankly about the Supreme Court vacancy, "If these guys think they are going to stonewall the filling of that vacancy, or other vacancies, then a Democratic Senate majority will say we're not going to let you thwart the law."

The junior senator from Oregon warned ominously, "If there's deep abuse, we're going to have to consider rule changes."

The senior senator from New Mexico perhaps summed it up best of all when he said, "The Constitution does not give me the right to block a qualified nominee no matter who is in the White House. . . . A minority in the Senate should not be able to block qualified nominees."

Don't think for a minute that the radical Democrats wouldn't have made good on these threats. They've exercised little restraint on judicial nominations over the last fourteen years. They betrayed over 200 years of Senate tradition and custom. They wouldn't start respecting those traditions now.

In reality, there were good reasons to respect and uphold the old Senate tradition against filibusters of nominees before 2003. First, our responsibility under the Constitution is not to choose, but to advise and consent. A partisan filibuster would essentially encroach upon the president's power to nominate the person of his choice.

Second, nominations aren't susceptible to negotiation. We can't split someone down the middle, Solomon-like. We can vote yes or no. This isn't the case with legislation, where differences can be split, compromises negotiated, bipartisan consensus reached.

Third, when legislation fails to win 60 votes, it's not the end of the world; it can go back to the drawing board or be enacted through other legislative vehicles. But when nominations are long delayed or defeated, then real work is left undone. Cases go unheard. Disputes go unresolved. The law remains unclear.

It would've been better for the Senate if the Minority Leader and Democrats had recognized these things in 2003 and not started us down this path, the end of which we reach this week. It's rarely a good thing when an institution ignores or breaks its customs and traditions, its unwritten rules. They should've known better, and they should've acted better.

But we have come to this point because the radical Democrats didn't act any better. Now, they propose to create a new standard, never known to exist before: the Senate will not confirm a Republican president's nominees to the Supreme Court. Because if Democrats will filibuster Neil Gorsuch, then they will filibuster any Republican nominee. I will never accept this double standard, and neither will my colleagues. Republicans aren't going to be played for suckers and chumps.

After this week, the Senate will be back to where it always was and where it should've remained: nominees brought to the floor ought to receive an up-or-down, simple-majority vote. And don't expect to hear regret from me about it.

There's no moral equivalence here between the two parties. To suggest any equivalence is to divorce action from its intent and aim. In 2003 and again at this moment, the radical Democrats overturn venerable Senate traditions. The Republicans are acting to restore them. Those who cannot see the difference, to borrow from Bill Buckley, would also see no difference between a man who pushes an old lady into the path of an oncoming bus and a man who pushes the old lady out of the path of the bus; because, after all, both men push around old ladies.

So I'm not regretful. I'm not wracked with guilt. I'm not anguished. I'm really not even disappointed.

There are no schoolyard taunts of "you did it first."

There are no charges of hypocrisy.

There's no pox on both our houses.

The Republicans are prepared to use a tool the Democrats first abused in 2013 to restore a 214-year-old tradition the Democrats first broke in 2003.

And we're supposed to feel guilty? Please.

The radical Democrats brought this all on themselves and on the Senate. The responsibility rests solely and squarely on their shoulders.

The Minority Leader is hoist with his own petard. The Senate is restored to a sensible, centuries-old tradition. And Judge Gorsuch is about to become Justice Gorsuch.

Not a bad outcome. Not bad at all. Pretty good, in fact.