April 05, 2017

Kaine Delivers Senate Floor Speech On Nomination Of Neil Gorsuch

WASHINGTON, D.C. – Today, U.S. Senator Tim Kaine delivered a speech on the Senate floor about the nomination of Judge Neil Gorsuch to the Supreme Court. In his remarks, Kaine shared his belief that Gorsuch has repeatedly taken an activist approach to cases involving a woman’s right to make her own health care decisions.

“I don’t think you have to be an activist on everything to be an activist. But, I do believe he is an activist. It shows through in no area clearer than in cases dealing with women’s ability to make their own decisions about their own health care – especially reproductive health,” Kaine said. “Somebody who looks at women making their own choice on contraception as, ‘the wrongdoing of others’, that is very telling.”

Griswold v. Connecticut has been used repeatedly in the last 50 years to basically create a body of constitutional precedent that says the relationships of people – the romantic and intimate relationships – should be free from the intrusion of big government. You can’t criminalize somebody because of their relationship,” Kaine continued. “Somebody  who is not willing to commit to that principle is somebody who has not earned my vote.”

After meeting with Judge Gorsuch, reviewing his past decisions, and listening to his testimony before the Senate Judiciary Committee, Kaine announced last week that he intends to vote against cloture and final confirmation for Gorsuch’s nomination.

**You can watch Kaine’s full speech here: https://www.facebook.com/SenatorKaine/videos/1261443957238028/  **

A full transcript of Kaine’s speech is available below:

I rise to discuss the Supreme Court nomination of Judge Neil Gorsuch of the Tenth Circuit. I take this very seriously. I started my legal career as an appellate law clerk in the 11th Circuit Court of Appeals in the South, working for a spectacular jurist, Judge R. Lanier Anderson III. He taught me about what it was to be an appellate judge: humility, not making a case a personal cause, careful application of the law. I then went on to practice law in the state and federal courts, the trial and appeal courts, including the United States Supreme Court as a civil rights lawyer for 17 years.

When I was the governor of Virginia, I twice had to appoint members of the Virginia Supreme Court and grappled with qualifications to serve on an appellate bench, and maybe most especially, Madam President, my wife was a judge. So with a judge in the house, she was a judge for eight years, I spent a lot of time also thinking about the characteristics of a good judge.

Judge Gorsuch has some strong characteristics, educational background, professional experience. These are characteristics that are worthy of respect, but I have decided that there is an additional characteristic that's very important: judicial philosophy. As I have looked at Judge Gorsuch's judicial philosophy, I have concluded that I cannot support him. I have read scores of his opinions. I met with him in my office. I'm so proud of my colleagues Democratic and Republican because in two months, Judge Gorsuch has enjoyed something that Merrick Garland didn't get in ten months.

Judge Gorsuch has had meetings with virtually all Senators. He's had a Judiciary Committee hearing. He’s had a Judiciary Committee vote. He is getting floor debate and he will get a floor vote. Those are the five things that he's entitled to, and he's getting all of them. Judge Merrick Garland was nominated. Republicans wouldn't meet with him, they wouldn't hold a hearing, they wouldn't do a committee vote, they wouldn't do floor debate and they wouldn't do a floor vote. He got nothing. He got nothing that he's entitled to as a sitting judge on the D.C. Circuit and also the Senate didn't exercise the advise and consent function that is part of our constitutional job description.

Let's talk about Judge Gorsuch's record, and many of my colleagues have been speaking for hours. I want to just focus on one aspect of his record. Judge Gorsuch was promoted by President Trump as not an activist. Not an activist. Judge Gorsuch has written with scorn about activist judges, saying that judges who impose their moral or social preferences on others can't square their position with the Constitution. He even scorned activists in courts, saying that liberals are addicted to the courtroom as if somehow bringing constitutional claims in courts are wrong. So I think it's fair to look at Judge Gorsuch by his own standards, is he an activist or not?

The best definition of a non-activist judge was the definition given by Chief Justice Roberts during his confirmation hearing. He said, look, I am an umpire. I have no platform, I have no agenda. I calls balls and strikes, without fear of any party, without favor to any party. I'm an umpire. I looked at Judge Gorsuch's record and then talked to him about a set of cases to determine whether that was, in fact, true. And I have concluded that Judge Gorsuch is definitely an activist. He may not be an activist on everything. I don't think you have to be an activist on everything to be an activist, but I do believe he is an activist. It shows through in no area clearer than it shows through in cases dealing with women making their own decision about health care, especially their reproductive health.

There is a famous 2013 case that has been much discussed during these discussions and in committee, Hobby Lobby v. Burwell. It was a challenge that was brought up in the Tenth Circuit where Judge Gorsuch now sits, and the legal question before the Supreme Court was pretty straightforward. Under a congressional act designed to protect religious liberty, the Religious Freedom Restoration Act, could a company claim that its religious views conflicted with the contraception mandate of the Affordable Care Act, and if so could they gain protection for their own position.

Now, Madam President, it was sort of a controversial case because the notion that a company could assert religious views was sort of a novel theory at the time, but the majority in the Tenth Circuit ruled with Judge Gorsuch as part of the majority that, yes, a company could assert a claim based on sincerely held religious beliefs under the RFRA statute, and they could assert that their beliefs conflicted with the ACA's contraception mandate. And then in 2014, that ruling was upheld by the United States Supreme Court, a controversial decision, but the majority agreed with the position that, yes, a company could assert that its sincerely held religious beliefs were in fact in conflict with the statute and they could get relief from the statute for doing that.

Judge Gorsuch joined the ruling, which I indicated was later affirmed by the Supreme Court, but what interested me about Judge Gorsuch in the case was that he chose to write a concurring opinion. Now, if you are not a lawyer, when a panel writes an opinion, there is the majority opinion that is a ruling in the case. If a judge feels it is wrong, the judge will write a dissenting opinion, saying no, you're wrong and here's why. You’re sort of duty-bound if you think the majority is wrong to write a dissent. But a concurring opinion is about as voluntary as it gets. A concurring opinion is I agree but I have a point that I want to make but I can't convince the rest of the majority to go along with me and I want to make this point.

So Judge Gorsuch wrote a concurring opinion that was incredibly revealing. It was voluntary. That shows you a little bit about a person's philosophy, incredibly revealing. Revealing for two reasons.

First, Judge Gorsuch had already joined the majority opinion to say that the employer, Hobby Lobby, could challenge the employer mandate of the ACA. He had already joined that. But he stretched beyond to rule that in addition, the individuals owning the company should be able to sue to challenge the employer mandate even though they weren't the employer. The ACA mandate only applied to the employer of the female employees. The employer was Hobby Lobby. But even though the mandate didn't even apply to the Green family that owned the company, Judge Gorsuch said they should be able to challenge the ACA anyway. I practiced law for a long time. There is a complete separation -- there's supposed to be -- between individuals and an incorporated company. You can run a business and not incorporate it, and in that case, there is no separation, but as soon as you incorporate it, you get all kinds of protection. Especially you can protect your own personal assets from liability for corporate actions. The Green family had done that, but Judge Gorsuch said even though you voluntarily separated yourself from the company and even though the mandate doesn't apply to you, you should be able to file a lawsuit to challenge the mandate. I found that to be highly, highly unusual, a great stretch. And I asked him about it when we talked, and he did not give me a satisfactory answer.

But here is the thing about the Hobby Lobby case that was more notable. It was the way that Judge Gorsuch described what the case was about. The majority opinion in the Tenth Circuit and the majority opinion in the Supreme Court described the case the same way. They basically said the owners of this company claim that the contraception mandate is contrary to their religious views. That's what the case is about. The clash was between the owners' religious beliefs and the statute. That’s what the case was about. But Judge Gorsuch described the case completely differently. Here were his words, “All of us must face the problem of complicity. All of us must decide the degree to which we are willing to be involved in the wrongdoing of others.”

He didn't describe it as a clash between the owners and the statute. He described it as a case about whether you're willing to be complicit in the wrongdoing of others. That wasn't the legal issue at all. What does that phrase mean in the Gorsuch concurring opinion in Hobby Lobby, the wrongdoing of others? Who are the others he's talking about? He’s talking about female employees of Hobby Lobby who wish to make their own choice from among available and lawful methods of contraception. Those are the others he's referring to. And he is a he is also referring to that choice as wrongdoing. That is completely editorial comment that's not drawn from what a lawyer said or what a plaintiff said. That's his own characterization of a case, and it is completely irrelevant, and I would argue insulting. It is a completely irrelevant and insulting reference to something that wasn't part of the case at all, except Judge Gorsuch decided to inject it into the case.

Somebody who looks at women making their own choice of contraception as the wrongdoing of others, that's very telling.

I draw support for my conclusion about that language from two other cases that Judge Gorsuch was involved in in the Tenth Circuit. One case dealing with contraception and one case dealing with the -- an effort to defund Planned Parenthood in Utah. In both cases the Tenth Circuit reached a decision that was pro-women's health, pro- women's health access. And both parties were fine with these decisions. They were going back to the district court and they didn’t apply to have the cases reheard en banc.

But in both of these cases Judge Gorsuch took the highly unusual step of trying to get the appeals heard anyway, even though the parties didn't want to have them reheard. In my experience as an appellate advocate that is virtually unheard of, and I’ve talked to litigators in the Tenth Circuit and they’ve said the same thing. It's highly rare. And the fact that Judge Gorsuch would do it in two cases, both of which involved women’s health access, is important.

Finally, in his confirmation hearing, Judge Gorsuch was asked directly whether he agreed with the decision in Griswold v. Connecticut, the 1965 decision that said that married couples could not be criminalized for using contraception. He said it was a precedent worthy of respect like all precedents. But he would not say he agreed with the case. Chief Justice Roberts during his confirmation said he agreed with the case. Justice Thomas said I have no quarrel with Griswold. Justice Alito said he agreed with the case. But Judge Gorsuch would not. Griswold v. Connecticut has been used repeatedly in the last 50 years to basically create a body of constitutional precedent that says the relationships of people, romantic, intimate relationships, should be free from the intrusion of big government. You can't criminalize somebody because of their relationship. And somebody who is not willing to commit to that principle, I think is somebody who has not earned my vote. And with that I yield the floor.

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