Mr. President, the Senate has decided on a purely partisan basis to resolve the impasse over Judge Gorsuch's nomination by invoking the "nuclear option."  For the first time in our history, nominees to the Supreme Court of the United States may advance from nomination to confirmation with a simple majority in this body.  I've heard many of my colleagues ascribe blame equally to both sides, and I've heard analysts and experts say the same.

One can question that diagnosis, as some very respected scholars like Norm Ornstein of the American Enterprise Institute and Thomas Mann of the Brookings Institute have demonstrated that our political polarization, and hence our current impasse, has been driven predominantly by the ever more conservative ideology of the Republican Party.

Regardless, here we are.  The Gorsuch nomination lacks the traditional level of support required for a Supreme Court seat, and the Majority Leader has chosen a step that Democrats clearly and emphatically rejected when we needed to confirm nominees who had broad support, but were blocked because they were submitted by President Obama.

I had hoped it was not too late for cooler heads to prevail.  Unfortunately, adherence to the principle of 60 votes for consideration as a justice of the Supreme Court and indeed the existing rule in the Senate was ignored and we are at this impasse.

Since many have drawn a false equivalence between the so-called nuclear option vote of several years ago and what occurred today, let me take a moment to explain, for my part, why I reluctantly supported a change to Senate precedent for nominees other than those to the Supreme Court in 2013.

During President Obama's tenure, Republicans necessitated more cloture votes than were taken under every previous president combined.  Let me repeat that - during President Obama's tenure, Republicans necessitated more cloture votes than were taken under every previous president combined.  In numerical terms, Republicans demanded cloture votes 79 times over just 5 years. In contrast - from the Founding Fathers all the way through George W. Bush, the Senate only faced that situation 68 times.  Republicans obstructed Obama nominees more in five years than the U.S. Senate obstructed all nominees combined over the course of more than two centuries.  The bitter irony, of course, was that, after a nominee would breakthrough, Republicans often would vote overwhelmingly to confirm the very nominees they so adamantly delayed. It was clear their sole guiding principle was obstruction.

Judges nominated by President Obama faced some of the longest median and average wait times under the five most recent presidents, and President Obama tied President Clinton for the fewest number of circuit court nominees confirmed during that same period.  All that time, judicial vacancies stacked up, justice was delayed and denied, other critical public service roles went unfilled, and the American public came to regard Congress as a place where nothing of substance can occur.

It was under those dire and unprecedented circumstances that I reluctantly joined my colleagues to change the filibuster rules for executive nominations other than the Supreme Court.  But there really is no equivalence between that decision and what the majority did today.  Even in 2013, at the height of Republicans' partisan attacks on President Obama, Senate Democrats believed the Supreme Court was too important to subject to a simple majority vote.  The Supreme Court is a coordinate branch of our government, and its lifetime appointees have final authority to interpret the Constitution.  We understood then, as we do now, that the traditional 60-vote threshold to conclude debate on the highest court in our nation was too important to the consensus-driven character of this body to sacrifice.

I think we also have to acknowledge that a president already has nominated a consensus choice capable of earning 60 votes to this seat on the Court: Chief Judge Merrick Garland.  The disgraceful treatment he received by the Majority has already made this one of the most infamous and politicized Supreme Court nominations in American history.  It is all the more disconcerting that Judge Gorsuch witnessed Judge Garland be treated so poorly, but now seems to feel entitled to this seat on the Court, even if the Senate must change its precedents to give it to him.  I have already addressed this body about my deep concerns regarding Judge Gorsuch's judicial record of ideological activism and championship of the powerful over the powerless. But it is worth going into greater detail on one of his opinions that is emblematic of this that has recently come to the fore.

In 2008, Judge Gorsuch heard what is popularly referred to as the Luke P. case.  In that case, the parents of an autistic child sought reimbursement from a school district for the cost of specialized education because the school had not provided adequate accommodations for the child under the Individuals with Disabilities Education Act, or IDEA.  The case presented heart-wrenching facts that are too familiar for families affected by disabilities such as autism.  The child, Luke, experienced severe behavioral issues in public and at home, and his parents sought advice from the best sources available to create the most effective atmosphere for him to progress in school.  Ultimately, they recognized that the public school Luke had attended could not provide the learning atmosphere required by law for Luke, so they placed him in a different school setting.

Luke's parents exercised their rights under IDEA, and the Colorado Department of Education, the Colorado Office of Administrative Courts, and a federal district court all agreed that the law entitled them to reimbursement from the school district that was not able to provide an adequate learning environment for Luke.  This should have been the end of the matter, but when the school district appealed the case to the Tenth Circuit, Judge Gorsuch's decision reversed all these factfinders to hold in favor of the school district.

In order to reach his conclusion, Judge Gorsuch went to great lengths – picking and choosing passages from previous decisions to weave a new standard that essentially eviscerated the protections under IDEA. His strict interpretation of this landmark law, utterly ignored Congressional intent and created a new precedent that schools need only provide "merely more than de minimis," or, inplainer terms, just a little bit more than zero educational opportunity for children with disabilities.  The immediate result of this decision was to force Luke back into an inadequate learning environment, and leave his parents with yet another unexpected financial burden and hardship.  At the same time, Judge Gorsuch's new legal standard, threatened to degrade the quality of education for children with disabilities all across the country.

The good news for Luke's family and so many others is that the Supreme Court intervened in a rare unanimous opinion reversing Judge Gorsuch's position during his confirmation hearings.  The nation has been spared the potential harm that could have resulted from lowering expectations for schools nationwide and leaving families like Luke's without a sufficient recourse.

Yet, as my colleagues and I have pointed out at every turn of this confirmation process: this is far from the only decision by Judge Gorsuch that is wildly outside the mainstream of modern jurisprudence.  He is not, and was never intended to be, a consensus nominee to fill the vacancy on the Supreme Court.  It should not come as a surprise, therefore, that this body is divided over his nomination to the highest court in the land, and that Judge Gorsuch could not earn enough support under the traditional 60-vote threshold. Mr. President, the filibuster was intended to be an institutional safeguard that protects the minority by requiring broad consensus for major decisions by this body.  It should be equally apparent that, in this circumstance, the filibuster did its job.  A large minority of this body viewed Judge Gorsuch as too extreme for the Supreme Court and that minority blocked cloture on his nomination.  There was no national emergency, no danger, and no serious consequence whatsoever that prevented the Majority from reversing course and working with Democrats and the President to find a consensus nominee.

In one day, the Majority has lessened the distinctions between our chamber and the one across the Capitol, all the while lowering ourselves further in the eyes of the nation and opening the door to an even more polarized judiciary.  I regret that this is the case, and I hope this body can turn back from the course we find ourselves on today.