[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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