Washington, D.C. – U.S. Senator John McCain (R-AZ) delivered the following remarks on the floor of the U.S. Senate on the nomination of Judge Neil Gorsuch to be Associate Justice of the United States Supreme Court:
“Mr. President, I regret having to come to the floor today to speak, once again, on the issue of eliminating the 60-vote threshold on judicial nominations – specifically a nominee to the United States Supreme Court. It is particularly troubling to do so because of the nominee in question. Judge Neil Gorsuch has impeccable legal credentials and a strong reputation and record as a fair- and sharp-minded lawyer and jurist. The American Bar Association and many others of all political stripes agree that his distinguished career as a lawyer and a jurist makes him very well qualified for the position of Associate Justice of the United States Supreme Court.
“Regrettably, my colleagues in the minority have decided to filibuster the nomination of this good, decent, highly qualified man.
“Numerous times over the years, the Senate has come to a standstill over nominees – whether they were judicial or executive branch. That gridlock has inevitably led to threats from the Majority to use the ‘nuclear option’ – basically changing the Rules of the Senate to strip the Minority party of their right to filibuster certain nominees.
“I have been privileged several times to be a part of a group of Senators who were able to come together and negotiate agreements to end the gridlock surrounding nominees, avert the nuclear option, and allow the Senate to move forward with our work on behalf of the American people. My work in these groups – often referred to as ‘gangs’ – has won me both praise and condemnation, and has often put me at odds with some in my own party.
“In 2005 for instance, I joined 13 of my colleagues in an agreement that allowed for votes on three of President Bush’s judicial nominees who were being filibustered by the Democrats – who were in the minority at that time. Part of that agreement addressed future nominees. It stated:
‘Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.’
“Recently, I have had conversations with colleagues on both sides of the aisle in an attempt to once again come up with a way forward and avoid both a filibuster of Judge Gorsuch, and the nuclear option. Sadly, I learned on Monday that those efforts had failed and that the Democrats had secured the necessary votes to successfully filibuster this highly qualified Supreme Court nominee – for the first time in our history. In response, the Majority Leader has indicated that he will move to change the Senate Rules and eliminate the ability of the minority to do so.
“In 2013 then Majority Leader Harry Reid changed the Senate Rules to eliminate the 60-vote threshold on most judicial and executive branch nominees. Those in my party – myself included – were enraged. Rightly so. We warned that the Democrats would not be in control of the Senate or the White House forever and that they would come to regret their actions. We were right. Their actions came back to haunt them. I believe ours will as well.
“In an op-ed on November 27, 2012, Senator McConnell, knowing of the Democrats plans to change the Senate Rules in their favor, wrote this:
‘A serious threat has been quietly gathering against one of the most cherished safeguards of liberty in our government—the right of a political minority to have a voice. Until now, this has always been the defining characteristic of the Senate. That's why all senators have traditionally defended the Senate as an institution, because they knew that the Senate was the last legislative check for political minorities and small states against the kind of raw exercise of power large states and majority parties have always been tempted to wield.
‘The threat I'm referring to is the effort by some Democrats, most of whom have never served a day in the minority, to force a change in the Senate rules.’
“How soon we forget.
“In fact, Chairman Grassley exactly predicted what is about to happen. In November, 2013 he said:
‘Not too many years ago, my colleagues on the other side described their fight to preserve the filibuster with great pride. Today the other side is willing to forever change the Senate because the Republicans have the audacity to hold them, the majority party of today, to their own standard.’
‘The silver lining is that there will come a day when roles are reversed. When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court.’
“Senator Alexander said at the time (Nov. 21, 2013):
‘This action today creates a perpetual opportunity for the tyranny of the majority because it permits a majority in this body to do whatever it wants to do any time it wants to do it’ . . .
‘In my view this is the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them at the beginning of our country.’
“Senator Shelby said (Nov. 21, 2013):
‘Democrats won’t be in power in perpetuity. This is a mistake — a big one for the long run. Maybe not for the short run. Short-term gains, but I think it changes the Senate tremendously in a bad way.’
“Senator Thune said (Nov. 21, 2013):
‘I think Democrats are playing with fire. This is very dangerous in terms of what it means for the Senate. What goes around comes around. And someday they’re going to be in the minority.’
“Senator Burr said (Nov. 21, 2013):
‘The American people know what they get when the minority party is stripped of its filibuster rights: they get unchecked power by the Executive Branch.’
‘If sweeping legislation and lifetime appointments cannot muster 60 votes in the United States Senate, then it probably is not a good idea to force either on the American people.’
“My colleagues on this side of the aisle need to remember our own words and heed our own warnings. We will not control this body forever. We will not hold the White House in perpetuity. What we are poised to do at the end of this week will have tremendous consequences, and I fear that someday we will regret what we are about to do. In fact, I’m confident we will.
“Having said that, Mr. President. It is hard for me to keep a straight face when I hear the current righteous indignation coming from the other side. After reading the comments some my Democrat friends made in 2013, it is difficult to have much sympathy for where they find themselves today.
“Senator Merkley, perhaps the biggest proponent of changing the rules at that time, said this (Nov 21, 2013):
‘Without the nuclear option Republicans are going to disable the executive branch.’
‘Ending the abusive filibuster on nominations is a big step toward restoring the functionality of the Senate, and that matters for all of us.’
‘This is a terrific vote for the U.S. Senate.’
“Senator Udall said (Nov. 21, 2013):
‘I’m just so encouraged now that we’re going to be able to — without filibusters — put people on the courts in an orderly way,’
“Senator Warren said (Nov 13, 2013):
‘We need to call out these filibusters for what they are: Naked attempts to nullify the results of the last election.’
‘If Republicans continue to filibuster these highly qualified nominees for no reason other than to nullify the president’s constitutional authority, then senators not only have the right to change the filibuster, senators have a duty to change the filibuster rules. We cannot turn our backs on the Constitution. We cannot abdicate our oath of office.’
“Senator Sanders said (May, 14, 2013):
‘If we bring this nomination to the floor and there is a request for sixty votes, which we’re not going to get, I think it is time for the Democratic leadership to do what the American people want and that is to have a majority rule in the United States Senate.’
“Elections have consequences, my friends.
“I hope my colleagues on both sides of the aisle keep this in mind. Now that we are entering into an era where a simple majority decides all judicial nominations – we will see more and more nominees from the extremes of both the left and the right. I do not see how that will ensure a fair and impartial judiciary. In fact, I think the opposite will be true and Americans will no longer be confident of equal protection under the law.
“When Majority Leader Reid changed the Senate Rules in 2013, there was no one more critical of his actions then the Senator who stands before you now. I fought hard to convince my colleagues of the damage those changes would do to this body. I did so because I love the Senate. I revere this institution and the place it holds in our system of government. It is imperative that we have a functioning Senate where the rights of the minority are protected – regardless of which party is in power at the time. While what happened in 2013 was infuriating to our side, it was also heartbreaking. It was heartbreaking because it seemed to me that the uniqueness of the Senate had been irreparably damaged, and along with it, any hope of restoring meaningful bipartisanship.
“The unprecedented nature of the Democrats filibuster of a Supreme Court nominee has left me in the difficult position of having to decide whether to support finishing what Harry Reid and the Democrats started in 2013 and eliminate the 60-vote threshold on Supreme Court nominations. I find myself torn between protecting the traditions and practices of the Senate, and the importance of having a full complement of Justices on the U.S. Supreme Court. I am left with no choice. I will vote to change the Rules and allow Judge Gorsuch to be confirmed by a simple majority. I will do so with great reluctance. Not because I have any doubts that Judge Gorsuch will be an excellent Justice, but because of the further damage, perhaps irreparable, it will do to the Senate.
“Thank you, Mr. President.”