On Senate Floor, Portman Discusses Importance of Bipartisanship, Support for Judge Gorsuch
Last night, Senator Portman delivered remarks on the Senate floor to discuss the importance of bipartisanship, as well as his support for Judge Neil Gorsuch’s nomination for Associate Justice of the Supreme Court. Senator Portman confirmed his intention to vote for Judge Gorsuch in February following their meeting, and spoke about his decision on the Senate floor in March. He also wrote about his support in a recent weekly column.
A transcript of the speech can be found below and you can watch the video here.
“Mr. President, I rise today to express my strong support again for Judge Neil Gorsuch
“I spoke on the floor the other day about Judge Gorsuch, and I just heard my colleague talk about him, and you did a terrific job. This guy, Neil Gorsuch, is the right person for the job – he’s qualified, he’s smart, he’s fair.
“A bipartisan majority of the United States Senate will vote for this worthy candidate tomorrow. Now let me underscore that, a bipartisan majority of the United States Senate will vote for this worthy candidate tomorrow. And he will end up getting on the Court.
“I must tell you that I regret that some of my colleagues on the other side of the aisle refuse to provide him an up or down vote without going through the process we have had to go through today. As someone who has gone through two Senate confirmations myself, I know they are not always easy, but I will tell you, it is a whole lot better for this institution and for this country when we figure out ways to work together. And in this case, to continue a Senate tradition to allow up or down votes.
“I like to work across the aisle. I have done that throughout my career. I can point to 50 bills that I have authored or coauthored that have become law within the past six years. They are bipartisan by definition, because they got through this body. They were signed into law by President Obama. I have voted for the president’s nominees – President Obama’s nominees, before President Trump’s. When President Obama has put a well-qualified judge on the floor, I voted for that judge – I voted for Loretta Lynch. Not an easy vote, and I took some heat for it back home, but I thought she was qualified.
“I think that is what we ought to do in this body, and I am disappointed in the situation we are in. I think we could have followed more than 200 years of Senate tradition and not have allowed for a partisan filibuster to block this nomination. We chose not to do that in this body. Never in the history of this body has there been a successful partisan filibuster of a Supreme Court Judge. Never. Some of my colleagues have said, well how about Abe Fortas—well that was several decades ago, and that was bipartisan. Abe Fortas was a Supreme Court justice that had some ethics issues, and he actually dropped out of trying to get the nomination because of it. But never have we stood up as Republicans or as Democrats and blocked a nominee by using the filibuster. It has just not been the tradition. Instead, it has been to allow an up or down vote—a majority vote.
“There are two justices on the Supreme Court right now that got confirmed with less than 60 votes. One is Clarence Thomas, probably the most controversial nominee in the last couple of decades, I would say. I was not in the Senate then, but I was watching it, as many of you were, and it was certainly controversial, and yet he got to the Court with 52 votes. Justice Alito was confirmed with 58 votes only 10 years ago. So, these nominees were not filibustered.
“And by the way, President Obama’s nominees were not filibustered. Sonia Sotomayor, Elena Kagan, they were not filibuster by Republicans. They were given an up or down vote. In the history of the Senate, 12 nominations have been defeated on the floor, but again, never a successful partisan filibuster. Even Judge Robert Bork—some of you remember that nomination—that was very controversial. His nomination was defeated in 1987. He was a Reagan appointee, but he was not filibustered. They had an up or down vote, and he was voted down.
“So what are these objections to Judge Gorsuch that would rise to that level? Where we would want to say that 200 years of Senate tradition ought to be shut aside and we ought to stop this man. What are these objections? I must say, I have listened to the floor debate, and I have listened to some of my colleagues, and I have made my case and they have made their case, but I just do not see why this man is not qualified. He was a law clerk for two Supreme Court justices, he served in the Justice Department, had a distinguished career there. He was also a successful lawyer in the private sector, and, of course, he has been a federal judge for a decade.
“We can look at his record. My colleague from Georgia just spoke about that record. That is why the American Bar Association—a group not known to be a conservative body—decided that he was well qualified. They unanimously declared him to get their highest rating of well qualified. This is what they said about him: ‘based on the writings, interviews, and analyses we have scrutinized to reach our rating, we discern that Judge Gorsuch believes strongly in the independence in the Judicial Branch of the government and we predict that he will be a strong, but respectful voice in protecting it.’ In protecting the independence of the judiciary. That is why the American Bar Association gave him their highest rating.
“Not qualified? By the way, nobody objected, nobody, for any reason, to his nomination to serve as a federal judge, to be a circuit court judge, right below the Supreme Court, back in 2006. Not a single senator objected, and by the way, those senators included Senator Hillary Clinton, Senator Barack Obama, Senator Joe Biden, a number of senators, of course, that are still here today with us that chose to filibuster this nomination. So, I do not know. I have heard some of my colleagues talk about some of his decisions. They have picked one or two of his decisions as a federal judge over the past ten years and said they did not like the outcome, and that is why he is not qualified to sit on the Supreme Court.
“I have a couple concerns with that argument: one, Judge Gorsuch has decided over 2,700 cases. I am sure we can all find one or two of these that we did not like. That is true for any judge. As I said, I voted for a number of President Obama’s nominees, and I voted against others. It was based on their merits. It was based on their qualifications. It did not mean that I agreed with them on everything, trust me, or that I disagreed with them on everything. But, the odds are very good that you agree with Judge Gorsuch’s decisions a lot more than you disagree with them. You know why I say that? Because the odds are really good that you agree with him, let’s try 97 percent because 97 percent is the number of his decisions that were unanimous with the other judges on a three-judge panel. 97 percent of the time his decisions were unanimous.
“So who’s on these three-judge panels? Well, it’s usually bipartisan in the sense that it’s nominees who have been nominated by different presidents of different parties. In the case of his circuit court there is Judge Paul Kelly who was appointed by President George H.W. Bush. But there have also been several of his colleagues who were appointed by President Bill Clinton. Judge Gorsuch even mentioned in his testimony that he was in judge panels and presided with Judge William Holloway, who was appointed by President Lyndon B. Johnson. So, these three-judge panels tend to have judges who were appointed by Republicans and Democrats alike. 97 percent of the time unanimous; 98 percent of the time his decisions were in the majority. So again, I think it’s pretty good, the odds are pretty good that we’re going to agree with judge Gorsuch a lot of more than we disagree with him when we look at his cases.
“He’s a consensus builder. He’s a guy that figures out how to come to a decision that people agree with on different sides of the aisle and from different points of view. That’s what his record is. Actually that doesn’t surprise me at all because he clerked in the Supreme Court for two justices. One was Byron White and the other was Justice Anthony Kennedy. Those are two justices who get a lot of heat, Byron White did, Anthony Kennedy does, from both sides. Why? Because they tend to be in the middle, right? They tend to write a lot of decisions that are consensus decisions. They tend to be that fifth vote on a 5-4 decision. That’s who he clerked for.
“So, to note that somehow this guy shouldn’t be confirmed for the Supreme Court because of one or two decisions, that just doesn’t seem to be legitimate to me. This is a guy who had thousands of decisions, and the vast majority, 98 percent in the majority, 97 percent unanimous. He had one decision that went to the Supreme Court, that was appealed to the Supreme Court because the litigants must have thought he was wrong, so they took it to the Supreme Court to correct him. What happened? The Supreme Court affirmed it. They agreed with Judge Gorsuch. So, look, I don’t know who you could find out there among judges who’s got a stronger record.
“In every case somebody wins and somebody loses, I get that. But think about this, out of judge Gorsuch’s 180 written opinions only one has ever been appealed to the Supreme Court. Wow. And they agreed with his ruling. He made it clear that he makes decisions not based on the outcome he likes, but based on what the law says. He thinks his job on the court for the last decade and going forward is to actually look at the law and decide what the law says and what the constitution provides, not what he wants. I think that’s the kind of judge that we would want, particularly those of us who are lawmakers right? We are the ones writing the law. We would hope that would be respected and judges wouldn’t try to legislate.
“This is what he said in his testimony, quote, ‘a judge who likes every outcome he or she reaches is likely a bad judge. I watched my colleagues spending long days poring over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night, but the answers we reach are always ones we believe the law requires.’ Interesting perspective. It’s kind of saying hey, if you like all your decisions probably you’re not a very good judge because your personal beliefs aren’t always going to be consistent with what the law or what the constitution says.
“He goes on to say, ‘I’ve ruled for disabled students, for prisoners, for the accused, for workers alleging civil rights violations, and for undocumented immigrants. Sometimes too I’ve ruled against such persons. My decisions have never reflected a judgment about the people before me, only a judgment of the law and the facts at issue in each particular case.’ Again, it seems to me that’s the kind of person you want on the court. Making a decision as a judge is not about ruling in favor or against somebody because you like him or don’t like him. It’s about applying what the law says.
“As he said in his testimony recently, his philosophy ‘is to strive to understand what the words on the page mean, to apply what the people’s representatives, the lawmakers, have done.’ That’s us. That’s the House. That’s people who are elected back home by the people who expect us to be the elected representatives, listen to their concerns and then vote, and those laws should not be rewritten by the judiciary. That’s the approach he takes. I would think any legislator would want to be sure the laws we pass are applied as written.
“Much more importantly, that’s what people want, too, and that’s what people should insist on. We want our votes to count. We want our voices to be heard. President Lincoln warned in his first inaugural address that if judges legislate from the bench, he said, ‘the people will have ceased to be their own rulers.’ The people will have ceased to be their own rulers if judges legislate from the bench. I think President Lincoln was right. When judges become legislators, the people do have less of a voice. Judge Gorsuch summed it up himself. He said ‘if judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of government by the people and for the people would be at risk.’ I think that’s the deeper issue here. And again, I think he’s the kind of judge we should want.
“Judge Gorsuch and I had the chance to sit down and talk about this philosophy. We talked about his background and his qualifications. I asked him some very tough questions, as he got asked in the Judiciary Committee nomination process. His hearings were something that all Americans had the opportunity to watch, and he did a great job, in my view, because he did focus on how he believes that his job is not to allow his personal beliefs to guide him but rather upholding the law as written and the constitution. I think that approach is a big reason why he’s earned the respect of lawyers and judges from across the spectrum, by the way.
“If you look at the people who say this guy is a great judge, it goes all the way across the political spectrum. Professor Laurence Tribe of Harvard Law school, an advisor to former President Obama, has said that judge Gorsuch is ‘a brilliant, terrific guy who would do the court’s work with distinction.’ Those of you who know Laurence Tribe, well regarded, considered to be a liberal thinker on many issues, but he’s looked at the guy, he’s looked at his record, he knows him, he says he’s brilliant, terrific, would do the court’s work with distinction. Neil Katyal, you also heard about him, he was the acting Solicitor General for President Obama, a guy who knows a thing or two about arguing before the Supreme Court, said that Judge Gorsuch’s record should ‘give the American people confidence that he will not compromise principle to favor the president who appointed him. He’s a fair and decent man.’ This goes to what the A.B.A. said about him, ‘independent.’ He will protect the independence of the judiciary.
“Look, he’s smart, no question about it. You saw him answer those questions. You have seen his record. He’s qualified, as we’ve talked about. Certainly a mainstream judge when you look at his opinions. 98 percent of the time in the majority, 97 percent of the time unanimous three-judge panels. And again he has the support, the bipartisan support of a majority of the United States Senate. By the way, the American people, as they plugged into this, also think he ought to be confirmed. There’s a recent poll by the Huffington Post, again not considered a conservative newspaper or entity. They have said the people want us to confirm Neil Gorsuch by a 17-point margin. Why? Because they’ve watched this, they’ve looked at the guy, they saw the hearings, they’ve looked at his record. People believed that he is the right person to represent them on the United States Supreme Court. And so again, while I’m disappointed this process has become so polarized and divisive here in this body, I am glad to see this good man take a seat on our nation’s highest court. I believe he deserves our support."