[Congressional Record Volume 162, Number 28 (Tuesday, February 23, 2016)]
[Senate]
[Pages S929-S937]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Filling the Supreme Court Vacancy
Mr. LEAHY. Mr. President, this past weekend the Nation honored
Justice Antonin Scalia, who was laid to rest after serving on the
Supreme Court for nearly three decades. Marcelle and I were home in
Vermont when we learned that Justice Scalia had passed. Frankly, we
were stunned by the news. I did not often agree with Justice Scalia,
but he was a brilliant jurist with a deep commitment to our country and
to the Constitution, and we enjoyed his friendship for decades. He will
be remembered as one of the most influential Justices in modern
history.
While his family and all should have had a chance to mourn his
passing, I was shocked when, in the immediate wake of his death, Senate
Republicans moved quickly to shut down the constitutionally mandated
process to fill the vacancy left on the Supreme Court. Within hours of
his death being announced, they declared they would oppose any effort
to confirm the next Supreme Court Justice this year. I have served in
this body longer than any Member here and I have heard some shocking
things during that time, but I am surprised by the political crassness
of these statements.
Before a nominee had even been named, some Republicans reflexively
decided to prematurely reject anyone--anyone--nominated by the
President. This impulsive rush to judgment runs completely contrary to
how this body has always treated nominees--always treated nominees--to
the highest Court in the land. Republicans should not allow the hyper-
partisan rhetoric of the campaign trail to trump one of the Senate's
most important constitutional duties.
I have talked to the President, and I know he will fulfill his
constitutional duty. He will nominate an individual to bring the
Supreme Court back to full strength, and of course he should. The
President has already begun consulting with Members of both parties in
Senate, but after a nomination has been made, we in the Senate should
get to work and do our jobs--the jobs we were elected to do.
I was all over my State of Vermont last week. The Vermonters I spoke
with last week reflect Americans across the country who are tired of
partisan political games that are chipping away at the foundation of
our constitutional democracy. I heard this from both Republicans and
Democrats in Vermont.
As Oliver Goodenough, a law professor at Vermont Law School, wrote
this weekend in the Rutland Herald, an extended Supreme Court vacancy
caused by Senate inaction ``would certainly create a constitutional
embarrassment.''
Mr. President, I ask unanimous consent that this article be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Rutland Herald, Feb. 21, 2016]
Court Battle--Another Shutdown?
(By Oliver R. Goodenough)
Within hours of the announcement of Anton Scalia's death,
one of our political parties was already trying to make
points with the electorate about the process of picking his
successor. At that evening's debate, the GOP presidential
candidates advocated that the constitutional process should
be suspended, either voluntarily by President Barack Obama or
by purposeful inaction by the Senate.
Mitch McConnell, the Senate majority leader, was just as
speedy, trying to warn Obama off from acting on the mandate
of Article II, Section 2, which charges the president with
nominating a replacement for Justice Scalia and the Senate
with providing its advice and consent on the president's
choice.
One can understand McConnell's disappointment. Appointments
to the Supreme Court are for life, which means only
resignation, impeachment or death will create a vacancy. In
the somewhat ghoulish game of waiting for a slot on the
closely divided Supreme Court to open up, the short-term
expectations of mortality had been focused elsewhere--Justice
Ruth Bader Ginsberg, in particular, has been a survivor of
long-odds pancreatic cancer.
So Republicans were brought up short by the death of a
conservative hero, whose replacement could shift the balance
of the court. The accidents of history will do that
sometimes.
The Constitution makes provision for what happens in such a
case--in the kind of clear, unequivocal language that is the
best target for Justice Scalia's vaunted originalism. The
president nominates. The Senate, for its part, gives the
qualifications of any nominee a serious vetting; it is not
entitled to just ignore the nomination.
Some reports have argued that such a course of process
sabotage would create a ``constitutional crisis.'' This is
probably an overstatement; it would certainly create a
constitutional embarrassment. With nearly a year left in
Obama's term, waiting for his successor to name the new
justice in 2017 would remove the ninth voice from the court
not just for the current yearly term but also for most of the
following term as well, since the replacement would arrive in
the spring and miss months of argument and deliberation. For
the better part of a year, the vacancy would sit like a
broken tooth in the operations of the court. Close cases
would often end up tied, with the result that the lower court
finding would remain the binding result. Not itself a
disaster, but a result that the constitutional provisions for
naming a successor are designed to avoid.
The embarrassment of sabotage on judicial appointments
actually already exists: Republicans in the Senate have
effectively shut down the process of nominating new judges
for the federal courts of appeal. The blockage isn't over
qualifications--such considerations would be a proper
exercise of the Senate's confirmation role, raised in
committee and on the Senate floor Rather, the nominations are
sitting in a limbo of inaction: It is simply a matter of not
doing the job at all.
This is the real crisis, a state of politics where
Republicans in the House and Senate are willing to derail the
processes of government to thwart the actions of President
Obama, good, bad or indifferent. The most obvious example was
the full shutdown of government. Limited shutdowns on matters
like judicial appointments are parts of the same pattern.
Of course, obstructionism is not just a Republican failing,
and it can be present in both parties to some degree in the
spicy stew of politics in our robust democracy. But the
bottom-line commitment of all parties should be to
maintaining a functioning government, structured and
administered in accordance with the framework set out in our
Constitution, even when it is not working to their advantage.
Why is this so hard for at least some Republicans to buy
into? Why the willingness, indeed eagerness, to bring down
the house we all live in?
The key is a widespread denial among Republicans of the
legitimacy of the Obama presidency. This is partly related to
the man himself--all the blather about his birth, his
religion, etc. While many Americans find it a vindication
that we can elect an African-American to our highest office,
for some it is an impossibility which in turn justifies the
most extreme forms of resistance. Race is our original sin as
a country, and its legacy haunts us still.
Republicans are also in denial over changes in the social
and economic fabric of America. We are, as always, in the
process of moving from what America has been to what it will
be. Conservatives have a role to play, reminding us of the
valuable parts of where we came from. Progressives have a
role, recognizing the imperatives of the future and charting
the paths of change toward positive outcomes. Politics is the
sometimes rough and tumble playing field where the dialog on
this goes forward.
The intransigence of shutdowns, however, whether of the
full government or a critical aspect like the nomination
process, exceeds the boundaries of acceptable play and hurts
us all. Obama needs to make a good faith nomination to fill
the vacancy on the Supreme Court. McConnell and his
colleagues in the Senate majority need to review it in good
faith. That is what the Constitution provides; that is what
the country needs. Get on with it.
Mr. LEAHY. We must not let that dysfunction infect the Supreme Court,
an independent, coequal branch of government that was designed to be
above politics. The next nominee to the Supreme Court deserves full and
fair consideration by the Senate. This includes a timely hearing and
then having an up-or-down vote.
I am worried that even before President Obama took office, and ever
since then--even after he was reelected by a 5 million-vote plurality--
there has been an unrelenting and cynical campaign by some hyper-
partisans to delegitimize the President's authority. There were the
birthers, and there have been and still are spurious slurs of all
kinds.
Outside of this body, the efforts to undermine President Obama's
constitutional authority to fill this Supreme Court vacancy draws some
of their vehemence and venom from these dark corners. But every one of
us took an oath of office--every one of us--and we
[[Page S930]]
are sworn to uphold our constitutional duties. Let us not be
intimidated and pressured to avoid our sworn duty. Let us act for the
good of the American people and for the good of this great Nation.
Some have justified their call for unprecedented obstruction by
claiming it is because the American people need a voice. Give me a
break. The American people have spoken--millions of Americans--and an
overwhelming majority of Vermonters voted in record numbers in 2008 and
again in 2012 to elect President Obama. In doing so, they granted him
constitutional authorities for all 8 years of those two terms. A
President isn't elected for 1 year or 2 years or 3 years. A President
is elected for 4 years at a time. Just saying that President Obama is a
``lame duck'' President does not make it true. In fact, the next
election is not until November. The American people expect those they
elected to do their jobs for their entire term. That means both in the
Senate and in the White House. They don't expect Senators to say: Well,
we can't vote on anything this year because it is an election year. We
will collect our full salary, but we are not going to vote on anything.
The American people don't like that.
It is rare that a vacancy in the Supreme Court arises during an
election year, but it is just false to say Justices do not get
confirmed in Presidential election years. More than a dozen Supreme
Court Justices have been confirmed in a Presidential election year.
The Democrats led the Senate during President Reagan's final year in
office, and we voted. President Reagan's nominee was confirmed by a
Democratic-led Senate during the President's final year in office. He
received a hearing and a confirmation vote. It would be the height of
hypocrisy to say we shouldn't apply the same process with a Democrat in
the White House and Republicans in control of the Senate. We can't say
that we will follow our constitutional duties and do our work if we
have a Democratic-controlled Senate and a Republican President but we
can't do it if it is the other way around.
Some Republican Senators have acknowledged that the next Supreme
Court nominee should receive a fair hearing. But the process can't end
there. I have served on the Judiciary Committee for 36 years. During my
time on the committee, we have never refused to send a Supreme Court
nominee to the full Senate for a confirmation vote. Even in those cases
where a majority of the committee had opposed the nomination, we still
reported the nominee to the full Senate. Once reported to the full
Senate, every Supreme Court nominee has received an up-or-down
confirmation vote during my 40 years in the Senate. We have to uphold
this bipartisan tradition for the next Supreme Court nominee because so
much is at stake. Merely holding a hearing without full committee
process and a confirmation vote is insufficient for a Supreme Court
nominee. It would be a charade, and it would be an avoidance of our
constitutional duties.
If Republicans refuse to uphold their constitutional responsibility
to consider the next Supreme Court nominee, I believe it will harm our
constitutional system of government. If they succeed in deliberately
holding open a seat on the Supreme Court for more than a year, they
will be intentionally disabling the Court's ability to fulfill its
constitutional role, and Republicans will be harming the Supreme Court
for more than a year.
Justice Scalia once wrote that a Supreme Court of just eight Justices
risked the possibility the Court ``will find itself unable to resolve
the significant legal issue presented by the case.'' The legal issues
before the Supreme Court are significant, and the importance of a
single vote on the Court cannot be overstated. One vote on the Supreme
Court decided landmark cases concerning our campaign finance laws,
clean water and air policies, marriage equality, and voting rights.
Americans deserve a fully functioning Supreme Court.
I have traveled all over my State. I have traveled all over this
country. I have talked to Republicans and Democrats alike. What I know
about my fellow Americans that makes me so proud is that they show up
for work and they do their jobs. Americans don't have the luxury of
telling their bosses that instead of doing their job, they would rather
delay, delay, delay. If they did, they would probably be fired. The
U.S. Senate shouldn't tell the American people that we are not going to
do our jobs; that we will delay, delay, delay. The stakes are too high.
The American people actually expect us to show up for work and do our
job. Let's get to work, do the job the American people sent us here to
do. And we may want to reread our oath to uphold the Constitution. It
requires no less.
Mr. President, I don't see others on the floor about to speak. I will
yield the floor when I do.
We have allowed this whole process to become far too partisan. I am a
lawyer, a former prosecutor. I have argued cases in the State court,
Federal courts, Federal trial courts, and Federal appellate courts.
When I have gone to the Federal courts, I have always thought that the
beauty of this--whether Republican or Democratic nominees--is that I
could get a fair hearing. I thought it was a great honor to go there.
People come from other parts of the world, and they talk about our
Federal judiciary as an example for them. I recall that when a country
that had been under dictatorship changed to a more democratic form of
government, some of their people came to my office and asked about our
judicial system.
They said: Is it true that in the United States of America, people
can actually sue their government?
I said: That is true. It happens all the time.
They said: Well, is it true that sometimes the government loses?
I said: It happens all the time.
They said: Well, do you replace the judge when that happens?
I said: No. They are independent.
It was like a lightbulb went on. They realized how different we are.
Think of the image we send to the rest of the world--as well as 300
million Americans--if we say: No, we are going to politicize the
Supreme Court, the Court that is supposed to be the final arbiter on
constitutional questions. Look at what it says to them if we say: Yes,
we have time to take more recesses this year than I think the Senate
ever has, that I can ever remember, but we don't have time to do the
job we were elected to do, the job we are paid to do--have a hearing on
and vote on a Supreme Court nominee.
The American people have jobs. They can't pick and choose when they
will bother to show up. They can't say ``I know this is what I am
supposed to do in this job, but I don't feel like it'' or ``I have a
partisan reason not to do it. I am going to sit this out. See me next
year, and I may do my job.'' Nobody would accept that. But that is
really what is happening. The Republican leadership is saying ``No, we
want to sit this out. We don't want to do our work. We don't want to do
our job. See us next year, and maybe we will then.'' That has never
happened. It never happened during an election year. There have been at
least a dozen Supreme Court vacancies during an election year, and a
dozen times the Senate, no matter who was President, came together and
handled the nominee and got them confirmed. Why did Senators do that in
the past? Probably because they figured they had been elected, they
were being paid by the American people, it was part of their job, and
so they showed up and did their job.
Are we now going to change what has been the precedent ever since the
beginning of this country and say ``Oh, we are better than that. We
don't have to do our job. Keep paying us, but we don't have to do our
job even though we have taken an oath to uphold the Constitution and do
our job''? Even Justice Scalia said that would be wrong, that you
shouldn't have an eight-member Supreme Court. And we don't.
Let's actually show up and do the job we were elected to do, do the
job we are paid to do. Let's do what every other American has to do.
They have to show up for work. They have to do their jobs. They can't
say ``I don't feel like it this year. I will see you next year. Oh, by
the way, send me my paycheck.'' That is not the American way; it should
not be the Senate way.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
[[Page S931]]
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, I rise today first to praise and echo the
words of the senior Senator from Vermont, our ranking member on
Judiciary, in urging our Republican colleagues to give a fair and full
consideration of a Supreme Court nominee. I particularly wish to praise
my friend, the ranking member, for his eloquent remarks and for his
leadership of the committee when he was chair and as ranking member.
My friend from Vermont is absolutely right. Just as the President has
a constitutional responsibility to name a nominee to the Court, the
Senate has a constitutional duty to provide advice and consent on that
nominee. Frankly, it is the Senate's job to consider Supreme Court
nominees, and the American people expect the Senate to do its job. We
are telling Senate Republicans, America is telling Senate Republicans:
Do your job. Plain and simple.
My friend, the chairman of the Judiciary Committee, should commit to
holding hearings. The distinguished majority leader should commit to
holding a vote. It has been a longstanding precedent of the Senate to
consider Supreme Court nominees in a timely manner, even in election
years: Justice Pitney in 1912; Brandeis and Clarke in 1916; Cardozo at
a time when America was even more divided than now, 1932. In the middle
of the Depression, the great election between Roosevelt and Hoover,
they put in Cardozo in that last year. Murphy in 1940 and Kennedy in
1988 were confirmed. Justice Kennedy was confirmed in the last year of
a Presidency with a Republican in the White House and Democrats in
control of the Senate. That is the mirror image and the most recent
chance we have to compare how Democrats were acting, how Republicans
were acting. All of my colleagues on both sides of the aisle who were
here voted that way.
I know today our Republican colleagues point to what Senator Biden
said. They have pointed to what Chairman Leahy said. They have pointed
to what I and other Democrats have said. There are equal quotations
that Senator McConnell, Senator Grassley, and others have said, each
voicing a different view than maybe is being voiced today. But none of
those were held up. You can have all the competing quotes you want;
they amount to nothing. The American people are strong--Democrats and
Republicans--in telling Senate Republicans: Do your job.
The bottom line is very simple. To say that there will be no hearing,
no vote, no consideration whatsoever even before a nominee is named to
a vacancy, that is not doing your job; that is quitting before you
start. Senator Leahy said it well. Imagine someone showing up at work.
Imagine if an average American showed up at work and said: I am going
to take a year off, but you still have to pay me. Your boss wouldn't
stand for it. Well, our boss, the American people, will not stand for
this because it will take over 300 days before a Supreme Court nominee
is filled, at best.
The kind of knee-jerk political obstruction the American people have
grown so frustrated with in the Congress is what our Republican
colleagues are saying. If Republicans truly respect the Constitution,
they should follow it and consider a nomination from the sitting
President rather than playing political games. Instead, they are once
again threatening to bow to the most extreme rightwing voices and
engage in the kind of political obstruction that brought us a 3-week
government shutdown that cost us hundreds of thousands of jobs and took
$15 to $20 billion out of the economy.
In 2013, after the hard right didn't get its way in its fight to undo
the Affordable Care Act, they waged a war to shut down the government.
Republican leaders listened. They probably knew it was wrong in their
heads, but they listened. What happened? After 3 weeks with their tails
between their legs, the leadership had to say we have to open up the
government even though we haven't repealed the Affordable Care Act. The
now-junior Senator from Texas had urged that course, and they were
foolhardy to follow. The junior Senator from Texas is now urging the
course of having no hearings and no votes. I tell my Republican
colleagues--and to his credit, Senator McConnell said we have to get
the Senate working again--that this is a foolhardy course, and it will
not stand. It will not last because the American people are telling
Senate Republicans: Do your job.
Republicans say the American people should have a voice in choosing a
Supreme Court Justice. Well, guess what. President Obama won reelection
by a large margin in 2012. Many of the issues they bring up now were
there then, such as security and the Affordable Care Act. There was a
referendum on all these kinds of things.
The people spoke loudly and clearly on November 6, 2012, when they
elected the President to another 4-year term. That is 4 years, as
called for in the Constitution, not 3 years, as some of my Republican
friends like to say now. If Republicans get their way, we would have a
4-to-4 gridlocked Supreme Court for a year that would tie the Court and
large parts of the country in knots. Let me say, if we have a tie in
the Supreme Court decision, the decision has no Presidential value. You
get gridlock and confusion. America doesn't want gridlock. They don't
want gridlock on the floor of the Senate, they don't want gridlock on
the floor of the House, and they don't want gridlock in the Supreme
Court. The American people expect the Senate to do its job. They are
tired of obstruction and ``my way or the highway'' politics.
Again I say that our friend, the junior Senator from Texas, likes to
quote the Constitution. He likes to walk around carrying the
Constitution. That is great. I am all for that. I would like him to
show me the lines in the Constitution that say in the last year of the
President's term, he doesn't have the power or the right to nominate a
Supreme Court Justice. Of course he does. Yet the Republican majority--
at least by its stance now--is taking away that right because they will
not even have a hearing.
Some people say: Well, they will just vote no after the hearing.
Maybe yes, maybe no. I believe every Member has the right to vote no if
they think the nominee is out of the mainstream, and I will be the
first to admit mainstream is defined differently by different people.
But hearings are amazing things. If the candidate is being open and
honest, hearings help us to get to know the candidate better. Whatever
one thinks of hearings, the last four nominees of the Supreme Court--
two under President Bush, two under President Obama--got bipartisan
votes and passed.
This idea of not having a vote is wrong. For the sake of our
Constitution and for the sake of getting our country moving again, I
urge and plead with my colleagues on the other side to do their job.
That is what the American people want, plain and simple.
It is time for the Senate to do its job. Once the President nominates
someone, we need to have hearings with our Republican colleagues in a
careful and thoughtful way. They don't have to rush a nominee through--
no dilatory tactics--and then there should be a vote.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Lankford). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Remembering Justice Antonin Scalia and Filling the Supreme Court
Vacancy
Mr. DURBIN. Mr. President, on February 13 the Nation was shaken by
the news that Supreme Court Justice Antonin Scalia had passed away.
Justice Scalia served on the Nation's highest Court for 29 years, and
he was a major figure on the American legal landscape. Justice Scalia
was described by Judge Richard Posner of the Seventh Circuit as ``the
most influential justice of the last quarter century.''
Over the years I came to know Justice Scalia. He was a man of great
intellect, good humor, and he was a very social person. We certainly
disagreed on many fundamental issues, but even those who disagreed with
Justice Scalia on legal matters still admired him as a person.
Justice Ruth Bader Ginsburg--no ideological ally of Justice Scalia--
wrote
[[Page S932]]
after his death, ``we were best buddies.'' She described him as ``a
jurist of captivating brilliance and wit, with a rare talent to make
even the most sober judge laugh.'' Justice Ginsberg said she and
Justice Scalia were ``different in our interpretation of written
texts,'' but they were ``one in our reverence for the Constitution and
the institution we serve.'' I have great respect for the decades
Justice Scalia spent in public service. My thoughts and prayers clearly
go with his family.
As surprised as I was by the news of Justice Scalia's passing, I was
amazed at how quickly the Senate majority leader, Senator McConnell of
Kentucky, issued a press release saying, ``this vacancy should not be
filled until we have a new President.'' His statement came out within
90 minutes of the press report of the Justice passing. This statement
clearly came at a time when most people reflected on the loss of the
Supreme Court Justice, and just like that, the conversation shifted
from the passing of an American legal giant to an attack on President
Obama's authority to fill his vacancy on the Supreme Court.
What does the Constitution tell us about filling a vacancy on the
Supreme Court? There are very few oaths a person takes in their life.
As Members of the Senate, we swear each time we are reelected to a new
term to uphold and defend that Constitution.
What does the Constitution say about a vacancy on the Supreme Court?
If you go to article II, section 2, it is explicit and very simple. The
President ``shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint . . . Judges of the Supreme Court.''
The President, under the Constitution, has an express responsibility
to submit to the Senate the nomination of a person who is qualified to
serve on our Nation's highest Court. Then, of course, the Senate has a
job to do: Give that nominee a fair hearing and a timely vote. This is
our constitutional responsibility as U.S. Senators. This is what we
have been elected to do. Aside from voting on a declaration of war, I
believe there is no greater responsibility than voting on the
confirmation of a Supreme Court nominee.
I serve on the Judiciary Committee, and it has been my privilege and
honor to consider the nominations of four of the current Supreme Court
Justices. There is no question that we have the time remaining to meet
our constitutional responsibility in a thoughtful and careful way.
It is now February of 2016. We are almost a year away from January of
2017 when President Obama will officially leave office. The Republican
leader would have us leave a seat on the Nation's highest Court vacant
for at least 1 year. Not since the Civil War has the Senate taken
longer than a year to fill a Supreme Court vacancy, and it certainly
shouldn't happen now.
Usually it takes the Senate about 2 months to consider a Supreme
Court nominee. Senator Leahy, the ranking Democrat on the Judiciary
Committee said that on average it takes about 67 days. So we have more
than enough time to do this in a thoughtful and responsible way.
Even during Presidential election years, the Senate has routinely
confirmed Supreme Court Justices. It has happened over a dozen times,
most recently in 1988, when Justice Anthony Kennedy was confirmed by a
97-to-0 vote during President Reagan's final year in office. President
Reagan--a Republican President about to leave office--submitted a name,
Justice Kennedy, to the Supreme Court, and a Democratic-controlled
Senate approved it with a vote of 97 to nothing. So to argue that this
has never happened before is to ignore history, and even recent
history.
In the past, Senate Republican leaders have said that the
confirmation process should move forward with as little time as a month
before an election. Consider the Presidential election of 1968. On June
13 of that year, Chief Justice Earl Warren informed the President he
wanted to step down. On June 26 of the election year, Johnson nominated
Associate Justice Abe Fortas to become Chief Justice and nominated
George Homer Thornberry to fill his seat.
President Johnson had already announced he would not run again, but
Senate Republican leaders did not call President Johnson a lame duck
and question his right to put forward nominees. In fact, Senate
Republican leader Everett Dirksen of my State of Illinois said on July
13 of that year, ``I find that term `lame duck' as applied to the
President of the United States as an entirely improper and offensive
term.'' Republican Senator Dirksen was referring to the lame duck
status of President Lyndon Johnson, a Democrat.
The Senate gave the President's nominee a prompt hearing in the
Judiciary Committee. As it turned out, the hearing uncovered a range of
ethics concerns about Justice Fortas, and in late September and early
October, Senate Republicans filibustered his nomination. Fortas
subsequently withdrew. But on October 3--same election year, just a
month before the election--the New York Times reported that ``Senator
Dirksen said there was still time for the President to submit a new
name and rush it through the Senate before the Congress adjourned.''
The Republican leader said that even with a month left, we should try
to fill the vacant seat. This was a month before the Presidential
election. Where are the leaders like Everett Dirksen in today's
Republican Party, Senators who are willing to roll up their sleeves and
get down to the work of considering the nominees on their merits so the
Supreme Court can do its work? We have a constitutional responsibility,
as does the President.
Make no mistake--the Supreme Court needs a full complement of
Justices on the bench. When the Court has an even number, as it does
today, four to four, important cases are increasingly likely to end up
in a tie vote. When that happens in a case, the ruling of the lower
court stands and it is as if the Supreme Court never heard the case at
all.
Major legal and constitutional questions are constantly brought
before the Court. When the Court is frozen at an even number of
Justices, many of those questions go unresolved and millions of
Americans who are impacted by these questions have to wait. That is not
fair to the American people. That is why historically the Senate moved
to fill vacancies of the Court. That is why so many Americans are
troubled by Senate Republicans' call for a 1-year hiatus in filling the
Supreme Court vacancy.
Former Justice Sandra Day O'Connor said in an interview last week
that she disagreed with the idea of waiting for the next President to
appoint a new Justice. Justice O'Connor said, ``We need somebody there
now to do the job. Let's get on with it.'' I agree with Justice
O'Connor.
When President Obama submits a nominee, which he will do in coming
days, the Senate needs to do its job, its constitutional
responsibility, and give that nominee a fair hearing and timely vote.
My Republican colleagues can choose to vote for or against the nominee.
That is their prerogative. They should not simply duck the vote. We
were not elected to this job to ignore important issues; we were
elected to cast votes on important issues. This is too important an
issue to simply ignore.
When it comes to giving the President's nominee a fair hearing, I
certainly hope Senate Republicans don't adopt the Donald Trump
position. When asked about the President's nomination, Mr. Trump, as he
is wont to do, gave us a juicy quote. Here is what he said: ``I think
it's up to Mitch McConnell and everybody else to stop it--it's called
delay, delay, delay.''
I am sure the Senate Republicans were not happy with that statement
by Trump, but he did speak for a number of people who believe that is
the right strategy: stop the President from using his constitutional
authority; stop the Senate from accepting its constitutional
responsibility. I hope my Republican colleagues don't follow Mr.
Trump's lead and try to stop President Obama's nominee through endless
delays. No one is going to be fooled if Senate Republicans spend weeks
haggling over unreasonable document requests or swamping the nominee
with endless written questions. Mr. Trump has already made it clear
that ``delay, delay, delay'' is simply a strategy to stop the seat from
being filled.
If Republicans delay in an effort to run out the clock, we will know
it, and the American people will know it. The American people want us
to act. They want us to accept our constitutional
[[Page S933]]
responsibility. It is time for us to get down to work and do our job.
The Senate can't afford to sit on its hands for 1 year and leave the
Supreme Court hanging in the balance.
When President Obama names a nominee, I urge my Republican colleagues
to give that person a fair hearing and timely vote.
Mr. President, I yield the floor.
The PRESIDING CHAIR. The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, I come to the floor today to express my
serious concerns with the FDA's actions on opioid pain relievers and my
concern that they have not sufficiently addressed what we are seeing as
an epidemic in my home State of New Hampshire. The implications of
prescribing opioids and ensuring that we take a very strong public
health approach toward these pain relievers is important.
I know my that my colleagues--Senators Markey, Manchin, and
Blumenthal--have been on the floor previously to discuss the concerns
they share about the FDA as well. I thank them for their leadership on
this important issue.
I think what is important to understand here is what we are facing
when it comes to heroin, the drug deaths that are occurring in my home
State of New Hampshire, the connection between people who are misusing
prescription opioids and then becoming addicted to heroin, and the
deadly use of a drug called fentanyl, which is 50 times more powerful
than heroin. When we bring this all together, we have a situation with
opioid abuse which includes painkiller abuse, heroin use, fentanyl
abuse, and it is killing people in New Hampshire and across this
country.
Across this country, approximately 30,000 people died of heroin or
prescription opioid overdoses in 2014. As we come to receive the 2015
numbers, unfortunately, if the experience is anything like my home
State of New Hampshire, the numbers are going to be much larger than
30,000 because in New Hampshire, every corner of my State has been
impacted by this.
I had the privilege of serving as attorney general before I came to
the Senate, and I dealt with many drug issues as attorney general. In
fact, I had a drug task force that reported to me. We dealt with the
surge of methamphetamine, cocaine, and other illegal drugs that
certainly have caused addiction and people to struggle with addiction.
Obviously, alcohol is also something people struggle with when it is
misused, but I have never seen anything like this.
I talk to my law enforcement officers and I talk to my first
responders about what they are dealing with. In 2015, in New Hampshire,
we had over 400 overdose deaths, and those 400 deaths were situations
where there was a combination--many of them, hundreds of them--of
heroin and/or fentanyl. And that was a dramatic increase over 2014. In
2014, we had 320 deaths. And by the way, that is a 60-percent increase
from the year before.
Unfortunately, this is not stopping. It is the single most important
public health and safety issue facing the State of New Hampshire right
now, but I know New Hampshire is not alone. Certainly working with my
colleague Rob Portman from Ohio, I know this is hitting Ohio. Working
with Sheldon Whitehouse from Rhode Island, I know this is hitting Rhode
Island. Amy Klobuchar from Minnesota--this is hitting so many different
places in our country. That is why I know Senator Markey from
Massachusetts is concerned about this and Senator Manchin from West
Virginia, who was on the floor earlier. This is about our quality of
life in this country and the ability for people to live full lives and
about our public safety and about our children most of all.
The headline from the Union Leader over this weekend: ``Fentanyl,
other drugs suspected in three Manchester deaths.'' So we had three
deaths in New Hampshire, in our largest city, within 24 hours, and
those three deaths were from a combination of heroin and fentanyl.
According to Assistant Fire Chief Daniel Goonan, in just 24 hours in
Manchester, these overdoses claimed the lives of a 23-year-old man, a
29-year-old woman, and a 34-year-old man. That was in just a 24-hour
period.
In fact, what our first responders are seeing--I did a ride-along
with the Manchester fire department. I was there less than an hour. We
went to an overdose, and I saw the firefighters and their emergency
personnel bring someone back to life using CPR and Narcan. If we did
not have that drug, the over 400 we had in New Hampshire--I can't even
tell you what the numbers would be, because not only did I do a ride-
along with the Manchester fire department, I did one with the police,
too, and we went to two overdoses in an hour and a half, and I saw them
bring those individuals back to life.
But lest we think this is something that happens on some other street
or in some other neighborhood, I can assure you that this can happen to
any family, and that is something we need to understand. That was
really brought home for me from a wonderful family I met, Doug and Pam
Griffin, who lost their beautiful daughter Courtney. They are wonderful
people.
I think about what our first responders are facing. This same article
I just talked about, over the weekend--unbelievable. Twice the fire
department in Manchester revived a woman who was 4 months pregnant,
working on her in front of her young children.
I will never forget the overdose I went to. The firefighters came
into the room, and there was a young man on the ground. They
administered the Narcan and brought him back. But do you know what was
in the corner? A crib with a baby in it. The firefighter grabbed the
baby and was bringing the baby over. The father was lying on the
ground.
So this is having a tremendous impact on not only those who are
struggling with addiction but also their families and the children
around them and the future generations.
In this article, the assistant fire chief from Manchester basically
said: It is more deadly than we have ever seen.
So that is why I have been proud to work with my colleagues, proud to
work with Senators Whitehouse, Portman, Klobuchar, and so many others
on the Comprehensive Addiction Recovery Act. I thank the members of the
Judiciary Committee for voting that important piece of legislation out
of the committee, and I look forward to us taking that up on the floor.
Right now pending on the floor, we have an important nomination for
the FDA. That is why I come to the floor today, because if you look at
what we are addressing here, we are concerned about heroin and
fentanyl, but there is a very important connection for us to
understand, unfortunately, and it is also why I have been such a strong
supporter of prescription-monitoring programs. The opiates that are
prescribed--SAMHSA has found that four out of five individuals who
turned to heroin actually started with prescription opiates and
misusing prescription opiates or overusing those and then transitioning
to heroin because heroin is cheaper, unfortunately, on our streets.
So it is very important that we have the FDA engaging on this issue
very aggressively with our medical community, that the FDA take a
prominent role in ensuring that what they are saying is, this is the
appropriate use of prescription opiates. In my humble opinion, the FDA
needs to take a much more aggressive role than it has in recommending
the appropriate uses and engaging the medical community and the
pharmaceutical community, very importantly, on this discussion, this
public health crisis we are facing.
We have come together as a body on this issue, and I think it is
important that we have been working on this in a very bipartisan basis.
But just to talk about the importance of the FDA and the leadership we
need there, in 2013 we saw the FDA approve Zohydro--a powerful, pure
hydrocodone drug--without an abuse-deterrent formulation, and an abuse-
deterrent formulation is important so that it will be used for its
intended purpose and not chopped up or otherwise abused. Yet the FDA
approves Zohydro--this powerful, pure hydrocodone drug--without an
abuse-deterrent formulation despite the fact that its own advisory
committee voted against approving the drug by a vote of 11 to 2.
I see Senator Markey coming to the floor, and I appreciate his
leadership on this. One of the things that I know have troubled Senator
Markey, Senator Manchin, and me as well is that last year the FDA
approved OxyContin
[[Page S934]]
for use by children as young as 11, and when they did that, they did
not have an advisory committee or use an advisory committee before
taking that step.
So I would say that I certainly appreciate that I had the opportunity
to sit down with Secretary Burwell on this issue and learn more about
the FDA's action plan that it issued, but unfortunately I believe the
agency has to go further than it is going. The example I would use is
the issuance of the recommendations for the children as young as 11
with OxyContin, without an advisory committee on something so
important, seems--to me, it just doesn't pass the commonsense test. So
I would recommend to the FDA, let's make sure we have an advisory
committee look at this issue carefully and then reissue a
recommendation, because to me it seems important that we have that
guidance and the careful, thoughtful approach of the advisory
committee. Of course, what troubles me is we hope they would take the
advisory committee's recommendations, unlike what happened with
Zohydro, unfortunately.
So we need leadership right now in the FDA. I have concerns that we
are not going to be in a position where we get the strongest leadership
we can have. We have a nominee pending on the floor. These concerns are
very important. I hope, if he is confirmed, he will be aggressive on
this issue and that the FDA will take a stronger leadership role on
opiates, understanding that they have a very important role when it
comes to this public health concern.
Right now I am not satisfied with where we are. I believe there is so
much more we need to do. That is actually why yesterday I voted to not
go forward with this nomination, because I haven't heard this clear
statement, I haven't heard what the leadership plans are on this issue.
While I appreciate some of the steps the Department of Health and
Human Services has taken, those steps to me need to be very much
strengthened. As I look at the FDA's action plan, it pledges to make
the use of advisory committees more frequent, but it should require the
use of advisory committees for all opioid pain relievers, not just when
we decide we want to use it. This should be consistent, given that we
unfortunately know that the data is there on the connection between
misuse of opioid pain relievers and the connection to those who
unfortunately then turn to heroin, with the deadly combination of
fentanyl, which is killing people in this country.
Again, I wish to thank Senator Markey for his leadership on this
issue. There isn't a place I go in my State where I don't hear from a
mother, a father, a sister, a brother, a grandmother, a grandfather, a
friend about someone who lost a loved one, lost someone they care
about, because of heroin, opioids, fentanyl, the deadly combination
that is killing people.
We have an opportunity, not only with the important work in the
Comprehensive Addiction and Recovery Act to add more resources to
address prevention, treatment, and support for our first responders but
also the FDA has a very important role, and we need stronger leadership
there and greater engagement of our medical community on the best
prescribing practices for opioids. To me, this is an opportunity where
I would like to see stronger leadership and I would like to hear a much
more aggressive stance from this FDA.
Of all the issues we struggle with, the things we disagree on in this
body--heroin, fentanyl, they don't care whether you are a Republican or
a Democrat, I can assure my colleagues, or an Independent or a
Libertarian because these drugs are taking everyone's lives. So as I
think about all the issues we can come together on, this is one about
our public health, about our public safety, about our quality of life,
and it requires all of our leadership. There is nothing partisan about
this.
I hope we will see stronger leadership from the FDA. I hope we as a
body will build on what the Judiciary Committee did and bring to the
floor the CARA bill that many of us have worked hard on and support
each other's efforts to do all we can to end this public health crisis
and ensure that none of us have to run into families of people in our
State whom we represent who are losing people they love to heroin or
fentanyl or misuse of opioid prescription drugs.
This is devastating. I know we can make a difference. This is
something we can make a difference on in this body.
I thank the Chair.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. MARKEY. Mr. President, I want to follow on with the discussion
that Senator Ayotte from New Hampshire was bringing to the Senate
floor. What she is saying is just so accurate in terms of the pervasive
nature of this opioid-driven epidemic--pandemic--in the United States
of America. It is time for us to come together in a bipartisan fashion
to deal with what is now the great medical storm sweeping across this
country.
There has been a quadrupling of opioid-related deaths in just the
last 14 years in our country. This is something that has to be
understood. I heard Senator Ayotte mention it, but we can't say it
enough: 80 percent of all people in the United States who die from
heroin overdoses begin with prescription painkillers--opioids--that
have been given to them by physicians. Let me say that again. Eighty
percent of the people who die from heroin overdoses started on
prescription pills. They got addicted to the prescription painkiller.
It deals with the same receptors in the brain. It creates the same kind
of need in the brain, and when people get addicted to prescription pain
medicine, it is ultimately a very short to a product which is much less
expensive--heroin--on the streets of the United States.
This epidemic has to be dealt with and it has to be dealt with where
it starts and it starts at the FDA. It starts at the Food and Drug
Administration. It starts with the agency that approves these drugs for
sale in the United States of America.
Yes, the FDA stands for Food and Drug Administration, but over the
last 20 years it really stands for ``Fostering Drug Addiction,'' and it
has to end. This is why the nomination right now of Dr. Robert Califf
to be the new head of the FDA gives us an opportunity to talk about
this issue, to talk about where it all starts, how it began, and what
we are going to have to do in this body to reverse this trend, which
last year led to the deaths of 30,000 people in our country. Again, I
say to my colleagues that between 2000 and 2014, the heroin overdose
death rate has quadrupled in the United States of America.
This is something that is recent. It is related to the FDA, and we
have to now have an honest discussion about the role that agency is
playing because we have become the ``United States of Oxy.'' We have
become a nation of 5 percent of the world's population that consumes 80
percent of the prescription painkillers in the world.
This overprescribing, this consumption of Oxy and Percocet, down the
line has led to this epidemic, this contagion that is killing people on
a daily basis in our country who otherwise would never have even
contemplated using heroin or using any of these other more dangerous
drugs.
That is why we are here. That is why I am recommending a ``no'' vote
on Dr. Robert Califf.
The FDA has a chance to change its policies. Thus far, it is saying
it will not change its policies.
In 2012, health care providers wrote 259 million prescriptions for
opioid painkillers. That is enough for every single adult in America to
have a bottle of these pills in their medicine cabinet. We should
understand as we talk about this that the molecular composition of
OxyContin is very similar to heroin. In fact, Oxycodone is the sole
ingredient in OxyContin. OxyContin stands for oxycodone continuously in
the bloodstream of the patient who is taking these pills. It creates
this sense that you are able to deal with the pain. It creates this
sense that you are being taken care of, but if it is not handled
correctly over time, it then creates an addiction, and that addiction
then leads to, once you are off these pills, to being out on the street
buying the heroin or buying the Oxy you need in order to continue this
habit.
So we have to start to deal with the issue very realistically in
terms of this pathway that has been created into the minds of millions
of people all across this country.
Thirteen hundred people died in Massachusetts in 2014, of the 30,000
people
[[Page S935]]
in our country, as a result of this issue. We have the FDA, going back
to the year 1996, accepting the misrepresentation of the pharmaceutical
company Purdue, which represented to the FDA that OxyContin, in its
original formulation, was abuse deterrent, meaning that since it was
time-released inside of the patient, that, therefore, it was abuse
deterrent and it could be prescribed safely to people all across our
country. Well, it turned out that not only was that a misrepresentation
to the FDA, but Purdue Pharma subsequently was fined millions of
dollars and its executives punished for the misrepresentation they made
to the Food and Drug Administration.
That was a brief 20 years ago, but that is pretty much where it all
started. That is the original sin--accepting this whole notion of abuse
deterrent.
Let's go to the FDA in more recent times. In 2012, there was a new
opioid that the FDA had to consider for approval. That new opioid's
name is Zohydro. The FDA impaneled 13 experts to examine that drug for
the FDA. When those 13 experts concluded their examination of the drug
by an 11-to-2 vote, the expert advisory panel voted, no, do not allow
this new Zohydro drug out on to the marketplace. They said the
standards for abuse are too low. The standards to deal with addiction
are too low. The standards to deal with a diversion of the drug are too
low. What did the FDA do in 2012? It approved Zohydro for sale in the
United States over the objections of the advisory panel that had voted
11 to 2 against it--and these are experts.
Moving forward, the FDA decided to reexamine what it was going to do.
So when it was considering Targiniq, when it was considering Hysinla,
it decided to solve the problem by having no expert advisory panels
which it would convene to examine the impacts of that drug before it
got approved. That is a good way to solve the problem--just accept the
representations of the company that it had abuse deterrent in it, and
then you don't have to worry because you will not have to talk to
experts on the outside again. So those two drugs got approved.
Then, in August of 2015, there was an application by Purdue Pharma,
once again--that company's name just keeps coming back into the
equation--they wanted approval to sell OxyContin to children ages 11 to
16. Now mind you, the actual standards at the FDA require an outside
expert panel to look at approval for opioids being sold in America if
it is controversial, if it could have a huge social impact in our
society. And it specifically says in the FDA's own guidelines that if
pediatric doses--if the proper dose for a child is involved--then the
FDA should have an expert panel. What did the FDA do? The FDA decided
no expert panel would examine the appropriateness of OxyContin being
prescribed for children ages 11 to 16 in our country--no expert
advisory panel, which brings us to the nomination of Dr. Robert Califf.
We are now in a process where we are examining his nomination and his
qualifications. This Senator leaves aside his own personal
qualifications. This is not a debate, really, over Dr. Califf. It is a
debate over the agency because the agency is saying--even today as we
will be voting on Dr. Califf's nomination--they will not change. They
will not convene expert outside advisory panels to look at this new
generation of opioids with abuse deterrents built into them to
determine whether or not they are actually appropriately being put into
our society.
Today is the day to begin this debate. This nomination is the
occasion that we can use in order to debate what has gone wrong at the
Food and Drug Administration. If we don't start with a brandnew
definition that gets created for abuse, for addiction, for what the
standards should be for the use of these opioids, then this issue is
just going to escalate until we are losing a Vietnam war's number of
people every single year in the United States.
This is a pharmaceutical industry-created problem. This is a
physician-created problem. This is an FDA-created problem. It is
created by men and women, and it can be solved by men and women. This
is not Zika, this is not Ebola, and this is not some disease that you
can't really point to that is responsible. This is us, this is our
country, and this is our culture. We did it. We created this problem.
We are 5 percent of the world's population consuming 80 percent of all
opioids--crazy. Really, it is crazy.
We have to finally come to the recognition that this is no longer
some inner city heroin epidemic. This disease knows no barrier--racial,
income, geography, employment--no barriers at all. It is spread across
every single segment of the American population, top to bottom. There
is no discrimination whatsoever.
We have to decide what we are going to do in order to make sure that
we put the proper safeguards in place. Senator Manchin and I, Senators
Ayotte, Sanders, Blumenthal, and others have been raising these
questions. To the credit of the Senate Judiciary Committee, they are
considering legislation to bring to the floor. I thank Senators
Whitehouse, Portman, Shaheen, Ayotte, and Senators Grassley and Leahy
for their work on that legislation, but that legislation does not
conclude anything on this issue that I am talking about right now. This
has to be solved by the FDA.
That is why this Senator has put a hold on this nomination, saying
that they will not get this nomination until they change their
policies. We are in the eighth year of this administration, and the
policies still remain in place.
Abuse deterrent is really a contradiction in terms. If you take these
pills--you are a carpenter or an ironworker, and you have a bad back--
you start taking these OxyContin pills right now, and you take them as
they are prescribed, and you keep going month after month after month.
You are increasing the likelihood on a daily basis that you are going
to become addicted to these pills.
We have heard these stories over and over again about the pathway in
from family members. They come into the office and talk about the
pathway in that their child, husband, or son took. It all starts with
the same story. They were given the prescribed pills.
Right now the industry is saying: Don't worry; there is an abuse
deterrent. Tell that to these family members. Tell that to the families
who have lost their loved ones. The drugs are not abuse deterrent. It
is a contradiction in terms, like jumbo shrimp. There is no such thing.
You need to be realistic about what this drug represents once it is
consumed over and over again by people in our country who think that
because the doctor has given them a bottle of pills, that is going to
help them. That is one of the stories we hear over and over again from
family members.
They say that they question themselves. Could they have done more
themselves to help their family member before they became addicted? The
common theme from each of them is that you have to assume, when a
doctor is giving you a bottle of pills for your family member, that it
must be good for them. It must be good for them.
It turns out that for 30,000 people in 2014, it wasn't good for them.
This number is going to continue to escalate because we haven't put
tough enough standards on the books in order to deal with these issues.
By refusing to convene expert advisory boards to come in and to create
the guidance which is going to be needed in our country going forward,
we are going to have a continued flood of opioid deaths that could have
been stemmed if we had dealt with this issue in the proper fashion.
This is not a hypothetical concern. The policy announced last week by
the FDA would not have guaranteed an advisory panel for OxyContin on
the market today. The FDA must change its decision not to seek expert
advice against the risk of addiction before it approves any and all
opioids.
I want to tell a little story. It is a story about one of maybe the
five greatest basketball players ever to come out of the State of
Massachusetts. His name is Chris Herren. Chris became a Boston Celtic.
He was the greatest basketball player in Fall River history, was
drafted in the first round by the NBA, and went to the same college I
went to--Boston College. In an excerpt of remarks he recently made in
DC at the Unite to Face Addiction rally on the National Mall, here is
what Chris Herren said:
[[Page S936]]
I truly believe when it comes to prevention and educating
our kids, we need to stop focusing on the worst days and
start educating about the first day.
At 18 years old, on the campus of Boston College I was
introduced to cocaine. I promised myself one time--just one
line. That one line took me 14 years to walk away from.
Despite myself at 22, my dream came true. I was 33rd pick
in the NBA draft, but that same year I was introduced to a
little yellow pill--a 40 milligram OxyContin that cost a 20
dollar bill. That 40 milligrams turned into 1600 milligrams a
day. And that 20 dollars became a $20,000-a-month Oxy habit.
And just 2 years later, that pill turned into a needle and
that needle stayed in my arm for the next 8 years.
I often say if you can't find it in your heart to have
empathy for someone who is battling their illness, then you
must know that he or she has a mother, father, son or
daughter that is at home with a broken heart that wants them
back. Just one pill, lives impacted, some recover and many
are lost.
Another story--Kaitlyn Oberle from Scituate, MA. Here is what she
says:
I have survived a fatal opiate overdose, yet I never abused
opiates.
On November 13, 2015 I spoke to my 27-year-old brother for
the last time. Less than 30 minutes after our final
conversation, he passed away from an opiate overdose.
He was only 16 years old when he first encountered the
demon that consumed the better part of his adult life; sadly,
that same demon ultimately killed him. Injuries from a dirt
bike accident left him with two broken arms, a knee injury,
and what felt like an unending supply of prescription opiate
painkillers. After his bones mended, he was left with an
untreated gaping open wound that would never fully heal
itself: an opiate addiction.
During my brother's recovery he painted a picture for me of
how easy it was for him as a high school teenager and student
athlete to call his doctor and request refills for his pain
pill prescriptions. When he no longer had injuries to
substantiate a prescription, he turned to illegal forms of
opiates in both pill and intravenous form. Unfortunately, the
damage to his brain had been done.
There are many facets to what may cause someone to become
addicted to opiates, and there are equally as many angles of
attack before there is substantial progress to a viable
solution. Mr. Senator, I am writing to you because I am a
survivor. I've lived through my worst fear by knowing I can
be a voice in helping prevent future deaths caused by opiate
addiction.
As you convene to debate the fitness of Dr. Robert Califf's
nomination for head of the Food and Drug Administration,
please ask the Senate to reflect on his time as deputy
commissioner.
As second in power at the FDA, he has had a chance to do something
about these issues. It is time for a change in culture at that agency.
A third letter--final letter written by Stephen Jesi, from Malden,
MA:
I am writing to you as a longtime Maldonian and a father of
a 33-year-old daughter Stephenie who passed away on December
13, 2015 of a heroin overdose.
Stephenie overdosed on Thursday, two days prior to her
death and was released by the hospital at 11:39 p.m. on to
the streets. We've experienced this first hand many times.
Thank God for Chief Campanello of the Gloucester Police
Department who picked up the phone, talked to us, talked to
Stephenie, and assisted us in every way he could to get her
into treatment. Everybody else just said sorry, there is
nothing we can do.
I believe that our medical community along with the
pharmaceutical industry are grooming and developing drug
addicts and putting them right into the hands of the cartels
and the drug dealers. Way too many prescriptions are written
for more narcotics than are necessary after surgeries with no
follow up. Many of those who are predisposed to addiction,
either by genetics or co-existing mental health issues, are
easy prey for these drugs that begin as legally prescribed.
Once they are addicted and can no longer afford the medically
prescribed version of the medication they fall into illegal
drugs and from there too often the addiction has taken
control of their lives.
The pharmaceutical industry along with our medical
community has to prescribe these highly addictive narcotics
much more carefully and offer less addictive medication
whenever possible. Most patients take these narcotics for
just a couple of days after the surgery but are provided a
much longer supply where they can easily fall into the hands
of the addict. Our legislators and government officials
cannot be tied to the desires of the pharmaceutical
lobbyists.
This is the cry that is coming out from every community in America.
Individuals are saying: How did this happen to my family? How could
that accident with the broken leg or the back pain turn into an opioid
overdose? How could it have happened? Well, it happened because the
medical community and the pharmaceutical industry have not put the
protections in place for us to be able to deal with it.
Let me give you this number. This is a crazy number. It is a crazy
number. Over the last 15, 20 years, there has been a dramatic increase
in the number of prescription opioid pills that have been allowed to be
sold in America.
So I am just going to ask people who are listening to this, pick a
number. How many 10 milligram prescription opioids were allowed to be
made in America last year? Just pick a number. We have 300 million
people in America. How many of these pills were allowed or given the
permission to be made by pharmaceutical companies? Here is the answer--
14 billion. May I say that again--14 billion opioid pills for our
country.
The numbers are out of control. The overprescribing is out of
control. We have to find a way to dramatically reduce the amount of
drugs that are being sold legally in our country. Before we even reach
illegal, you have to start with legal. That is the problem because the
Drug Enforcement Administration, the agency responsible for deciding
how much each pharmaceutical company can manufacture each year, doesn't
even announce how much each company is given permission to manufacture;
instead they just announce the gross number of total opioid materials
that can be put into pills in our country each year.
Does anyone understand this in America, that that is the process? The
FDA allows the company to sell it. Then it goes over to the DEA. Then
the DEA picks a number of pills that can be sold, and then physicians
are allowed to prescribe these pills, but this is the FDA's own number.
Listen to this. The FDA asks for voluntary guidelines to be put
together for physicians' education so they know what they are doing
with these opioids. Pick a number in your brain as to how many
physicians have voluntarily accepted medical education on the
consequences of prescribing opioids.
Pick a number. Here is the correct answer: 10 percent of physicians.
That is it. On something that is so catastrophic, something that is
creating an epidemic in our country, you would think this would be
mandatory; that the medical associations at the State level, the
national level had created some kind of mandatory education. It hasn't
happened.
Is it mandatory in medical schools across America that they receive
education as to what the consequences are of prescribing opioids? Not
at all.
So who would think a physician would have to be trained in how to
handle pain? I mean, a physician is only dealing with the issue all day
long, every single day. You would think there would be some
understanding then of what the consequences were of the medicines they
were prescribing. No courses in medical school are mandated. No courses
are mandated after you have graduated, you are practicing medicine, and
now you are licensed by the DEA to prescribe opiates--no courses.
So as we move forward on the legislation that is going to be coming
out on the floor of the Senate, I intend to make an amendment--Senator
Blumenthal and I tried to make it in the Judiciary Committee, and we
are going to be making it on the Senate floor--requiring the Drug
Enforcement Administration to require mandatory education for any
physician who wants to prescribe these drugs. That is the minimum, the
minimum that the medical profession should have to accept as a
responsibility before they are allowed to prescribe these drugs.
There is another amendment which I am working on with Senator Paul of
Kentucky, and that is an amendment that is going to increase access to
medication that can help people deal with their addictions. Again, that
is a classic example of a Democrat and Republican working together on
these issues. Senator Ayotte and I have an amendment that would create
a Good Samaritan protection for any American, any family member who
wants to apply Narcan to a family member or someone who has overdosed
and would die in the absence of Narcan, the antidote, being applied to
them. Senator Ayotte and I are working on that amendment.
We are trying hard to find ways where, unfortunately, legislatively
we can act. This should have happened at the agencies. This should have
happened in the medical profession. We shouldn't be forced to debate
this on the Senate floor, but it is absolutely,
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indispensably necessary for us to take this action.
This is the epidemic of our time. The death rates now in the age
group that is affected by this epidemic are now declining at the same
rates as they did during the war in Vietnam. We haven't seen anything
like this since the war in Vietnam in the death rates--30,000 people--
quadrupling in 14 years, escalating on a daily basis. It is time for
the Senate to take real action on this issue so we can deal with it.
In Boston, MA, we had a police chief who saw that something had gone
wrong, Chief Campanello. He said that incarceration doesn't work and
instead treatment should be substituted. So beginning last June, what
Chief Campanello said in Gloucester, MA, was that if you come in and
you are an addict, you have a problem, you come into the police
station, bring your drugs with you, we are not going to arrest you, we
are going to put you into treatment immediately--no arrests. Four
hundred people have walked into that police station in Gloucester, MA,
in just 8 months--400 people. By shifting the paradigm from arrests to
treatment, 800 more people--800 total across the country--as city after
city, town after town adopts this model, have now accepted that as a
better route for them in their lives, to just turn themselves in at the
local police stations.
He has partnered with a man named John Rosenthal. John Rosenthal is
an activist in our State, and he helps to fund this program. Last
Wednesday night, tragically, John Rosenthal's own nephew, Nathan
Huggins-Rosenthal, age 34, died of an overdose in Calgary, Canada. My
heart goes out to the Rosenthal family because obviously they were
committed to dealing with this issue, pioneering ways to have addicts
be able to have a place they can go. Yet in John Rosenthal's own
family, his nephew overdosed just last Wednesday night.
As Senator Ayotte was saying, there is no neighborhood immunity.
There is no family who is completely protected. This epidemic has been
created by pharmaceutical companies, by physicians, by the agencies
responsible to deal with it, and it is now time for us to put in place
the protections which are needed to deal with it.
Let me give you opioids 101 so you can understand how we get to
this--what are opioids, how do they work, and why do they lead to
heroin abuse. Here is how it works. It starts with a seed pod of the
opium poppy. We get the morphine, a naturally occurring opiate pain
reliever from that pod seed. The morphine interacts with so-called
opioid receptors that are found in high concentrations in areas of the
brain that control pain and emotions. Taking opiates can increase the
levels of dopamine in the brain's reward areas and produce euphoria or
a rush of pain relief and relaxation. In fact, morphine, which was
first identified in the early 1800s is named after Morpheus, the Greek
god of dreams.
In 1895, the Bayer Corporation, Bayer Aspirin--the Bayer Corporation
in Germany introduced a new cough suppressant marketed as a safer
alternative to morphine. This new wonder drug was called heroin. In the
1920s, drug manufacturers began making fully synthetic analogs to
morphine. They were called opioids. These drugs contain the same basic
chemical framework as morphine, and they have exactly the same
mechanism of action in the brain. They share common chemical features
that allow them to buy into the brain's opioid receptors, and they all
are considered highly addictive. These drugs vary widely in potency.
That is the amount of the drug required to reach the same level of pain
relief and sedation as morphine.
OxyContin, for example, is 150 percent as strong as morphine. Heroin
is also an opioid. They share the same fundamental chemical structure.
Heroin binds to the very same receptors in the brain and produces the
same euphoria and sedation, and heroin is plagued by the same addiction
potential. Heroin is classified as a schedule I drug, the most
dangerous class, because it has no accepted medical use and a high
potential for abuse and addiction.
So this is the pathway between opioids and heroin and why that
pathway is very short. It is all about the chemistry because OxyContin
has the nearly identical molecular constitution as heroin. Over time,
the brain, the receptors are saying: I need to have to continue to have
that hit. Thus, we have this epidemic where 80 percent of all people in
the United States who are dying from heroin overdoses started on
prescription opioid drugs that had been prescribed by their physicians.
Physicians should have to be educated. The FDA should have expert
advisory panels that give the strongest possible guidance to the
pharmaceutical companies. That is what is missing in this equation. It
starts there.
We need a debate on $1.1 billion for more treatment and more
education, and we are going to have that debate on the Senate floor.
These local families, these local groups, they are heroes, but heroes
need help, and it is time for us to fund those programs in the same way
we funded the Ebola crisis and the same way we are being asked to help
to fund the Zika crisis. We have a crisis in America ourselves, but if
we don't deal with the issue right from the beginning at the FDA, at
the DEA, and at the AMA, we are not going to solve this problem. We are
just putting medical facilities in place to deal with the consequences
of having no policy. This is our great opportunity to have a debate in
our country.
I can't thank the Members enough for beginning to deal with this
issue on a serious basis, but we can't be afraid of the pharmaceutical
industry. We can't be afraid of the American Medical Association. We
can't be afraid of the bureaucrats in these agencies who say: Oh, Mr.
or Ms. Senator, we are the experts. You don't know what you are talking
about.
Well, just let me tell you this. The people of the United States
don't trust the experts anymore in these agencies. They want more
accountability. They want other experts to come in to check those
experts, to ask the tough questions on behalf of the American people.
That is why I have a hold on Dr. Robert Califf's nomination for the
FDA, because right now the FDA is saying it is going to continue
business as usual and that is just wrong. That is just plain wrong. It
has to stop there. The signal must come from this administration.
I thank all the Members for this discussion, for where we are today
and where we are going to have to go in the months ahead, but I don't
think we should end this year without a fundamental change that has
taken place in our society in this relationship.
I will just add one final issue, and that is the issue of how many
pills, how many pills a doctor can prescribe initially to a patient. We
are now debating that issue in the State of Massachusetts. Governor
Baker has been saying it should only be 3 days' worth of pills. One of
the counterproposals is 7 days of pills that can be used by the
patient.
I do know this. We have to start here because right now doctors are
handing out bottles of 60 to patients who only need a week's worth or 3
days' worth. When you leave a dentist's office, you don't need 60 days'
worth of pills for your wisdom teeth that have been removed. When you
have some pain that you just got from playing a softball game and you
have twisted your back, you don't need a bottle of 60 or 30. You might
need a few pills for 3 days or 7 days, but you don't need the 60.
Having that 60 in that medicine cabinet is the beginning of the
problem.
I thank Governor Baker for what he is doing on this issue. They
haven't resolved it in Massachusetts. I think we have to debate that in
the Halls of Congress as well. They are all related, how these pills
get into the blood system of our country.
Again, I thank all of the Members for their consideration of this
issue.
Mr. President, I yield back the remainder of my time.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Scott). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. MORAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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