[Congressional Record Volume 162, Number 40 (Monday, March 14, 2016)]
[Senate]
[Pages S1451-S1458]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Filling the Supreme Court Vacancy
Mr. HATCH. Madam President, I rise to discuss the vacancy created by
the death of Supreme Court Justice Antonin Scalia. Those of us who knew
the late Justice well are still mourning the loss of a dear friend, and
the Nation is feeling the loss of one of the greatest jurists in its
history. We will never find a true replacement for Justice Scalia, only
a successor to his legacy. We owe it to the late Justice's
extraordinary legacy of service to ensure that we treat confirmation of
his successor properly.
My friends in the Democratic minority have settled upon one mantra
above all others in addressing this vacancy; that the Senate must ``do
its job.'' While I have no doubt this talking point has been poll
tested and refined to serve as the most effective political attack
possible, the truth is that this point is completely uncontroversial. I
have not heard a single one of my Republican colleagues argue that the
Senate should not do its job with respect to the Supreme Court vacancy.
Where we have a legitimate difference of opinion is how the Senate can
best do its job.
Article II, section 2 of the Constitution divides the appointment
process into two--two--distinct roles: the power of the President to
nominate and the power of the Senate to provide its advice and consent.
Despite the wild claims of some of my Democratic friends to the
contrary, the Constitution does not define how the Senate is to go
about its duty to provide advice and consent. It does not dictate that
the Senate must hold confirmation hearings or floor votes on the
President's preferred timeline. After all, how could the Constitution
provide such instruction if the Judiciary Committee did not come into
existence until 27 years after the Senate first convened in 1789?
Indeed, the Judiciary Committee only began holding confirmation
hearings in the past century, and nominees only began appearing before
the committee regularly in the past 60 years.
In fact, the Constitution prescribes no specific structure or
timeline for the confirmation process, and the Constitution's text and
structure, as well as longstanding historical practice, confirm that
the Senate has the authority to shape the confirmation process how it
sees fit. In other words, the Senate's job is to determine the best way
to exercise its advice and consent power in each unique situation.
Over the years, the Senate has considered nominations in different
ways at different times, depending on the circumstances. Consider these
precedents with great bearing on the current circumstances. The Senate
has never confirmed a nominee to a Supreme Court vacancy that opened up
this late in a term-limited President's time in office. This is only
the third vacancy in nearly a century to occur after the American
people had already started voting in a Presidential election. In the
previous two instances, in 1956 and 1968, the Senate did not confirm
the nominee until the following year. The only time the Senate has ever
confirmed a nominee to fill a Supreme Court vacancy created after
voting began in a Presidential election year was in 1916, and that
vacancy only arose when Justice Charles Evans Hughes resigned his seat
on the Court to run against incumbent President Woodrow Wilson.
Key Democrats have long expressed strong agreement with the decision
to defer the confirmation process in these circumstances. For example,
Senator Chuck Schumer, the incoming Democratic leader, argued in July
2007--with a year and a half left in President George W. Bush's term
and with no Supreme Court seat even vacant--that the Senate ``should
not confirm any Bush nominee to the Supreme Court except in
extraordinary circumstances.'' Vice President Joe Biden argued in 1992,
when he was Judiciary Committee chairman, that if a Supreme Court
vacancy occurred in that Presidential election year, ``the Senate
Judiciary Committee should seriously consider not scheduling
confirmation hearings on the nomination until after the political
campaign season is over.''
Past practice and the well documented past positions of key Democrats
certainly support the notion that deferring the confirmation process is
an option reasonably available to the Senate in certain circumstances.
As for its appropriateness in the present situation, one need only
consider how the confirmation process would be further poisoned by
election-year politics.
As a member of the Judiciary Committee for nearly four decades, I
have witnessed the judicial confirmation process become increasingly
divisive and sometimes--oftentimes, as a matter of fact--downright
nasty. First came the campaigns of character assassination waged
against Robert Bork and Clarence Thomas. Then came the
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Senate Democrats' unprecedented filibusters of President George W.
Bush's lower court nominees. Then came the attempt to deny an up-or-
down vote on the nomination of Samuel Alito to the Supreme Court--a
move supported by then-Senators Obama, Biden, Clinton, Reid, Durbin,
Schumer, and Leahy. Finally came the unilateral use of the nuclear
option to blow up the filibuster and pack the DC Circuit Court of
Appeals--widely considered the second most powerful court in the
Nation--with liberal judges committed to rubberstamping the President's
agenda.
Those who were responsible for every single one of these major
escalations in the so-called judicial confirmation wars have no
credibility to lecture anyone on what a proper confirmation process
should look like in this situation. For those of us who have fought
against the breakdown of the confirmation process, the prospect of
considering a nomination in the middle of what may be the nastiest
election of my lifetime could only further damage the long-term
prospects of a healthy confirmation process. Deferring the process is
in the best interests of the Senate, the judiciary, and the country.
The tenor of the debate since Justice Scalia's passing has only
confirmed how right we were to take a stand to defer the process until
after the election. For example, a speech I delivered to the Federalist
Society on Friday was briefly disrupted by protestors chanting ``Do
your job,'' ironically just as I began to explain why our approach to
this vacancy is the best way the Senate can indeed do its job. Now, I
do not mind protestors speaking their minds, but I don't appreciate it
when they try to prevent others from expressing differing views. That a
respectful discussion among attorneys was disrupted by professional
activists wielding materials from Organizing for Action, a political
arm of the White House and the Democratic National Committee,
demonstrates what I have been saying all along: Considering a nominee
in the midst of a Presidential election campaign would further inject
toxic political theater into an already politicized confirmation
process.
Madam President, I ask unanimous consent to have printed in the
Record a copy of an article from Politico detailing the extensive
political coordination between the White House and the parent
organization of these protestors that risks turning what should be
serious consideration of a weighty lifetime appointment into an
election-year political circus.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From POLITICO, Mar. 13, 2016]
White House Preps Supreme Court Battle Plan
(By Edward-Isaac Dovere and Josh Gerstein)
As soon as President Barack Obama announces a Supreme Court
nominee from his short list--which is now set--the White
House and its allies will unleash a coordinated media and
political blitz aimed at weakening GOP resistance to
confirming the president's pick.
Administration allies have already started putting a ground
game in place. Obama campaign veterans have been contracted
in six states--New Hampshire, Illinois, Ohio, Pennsylvania
and Wisconsin, where GOP incumbents are most vulnerable, plus
Senate Judiciary Chairman Chuck Grassley's Iowa.
With Republicans flatly refusing even courtesy meetings
with a nominee, let alone confirmation hearings, they're also
looking into photo ops with Senate Democrats, and could
pursue mock hearings or other events meant to highlight GOP
intransigence, according to sources familiar with the
planning.
Still, the West Wing is trying to strike a balance between
pushing the nominee forward to create pressure and the danger
of seeming to politicize the fight or accidentally straying
into hypothetical discussions of future court decisions.
Obama is expected to announce a nominee as early as this
week. Many believe that the choice will be one of three
federal appeals court judges: Sri Srinivasan, Merrick Garland
or Paul Watford.
The first calls for outside help went out from the White
House as soon as Antonin Scalia's death was confirmed and
Senate Majority Leader Mitch McConnell (R-Ky.) ruled out
confirming a successor. That Thursday, senior Obama adviser
Valerie Jarrett and White House counsel Neil Eggleston
gathered in the Eisenhower Executive Office Building for a
larger version of their regular judicial nominations action
meeting, with participants including Judy Licthman of the
National Partnership for Women & Families, frequent White
House collaborator Robert Raben, People for the American Way
and the Leadership Conference On Civil and Human Rights. Tina
Tchen, chief of staff to the First Lady, also attended.
In follow-up conference calls and smaller meetings, a plan
and strategy took shape, which they agreed would be led by
Obama 2012 deputy campaign manager Stephanie Cutter, with
White House communications director Anita Dunn leading the
media plan, and recently departed legislative affairs
director Katie Beirne Fallon taking the lead on the Hill. The
following week, leaders of more of the operational groups
gathered in Jarrett's office for a brainstorming and
coordination meeting, with Eggleston and political director
David Simas attending. Among the outside groups that
attended: Center for American Progress president Neera
Tanden, Americans United for Change president Brad Woodhouse,
political consultant Bob Creamer and Patty First from the
Raben Group.
The White House is still unsure how to deploy Obama. Some
advisers feel like the presidential bully pulpit is the only
way to bring enough pressure to have a chance at making
Senate Republicans crack. Others have been advising that the
more this is about Obama, the worse their chances are, and
the more they can focus attention on the nominee, and his or
her qualifications, the better they'll do.
Obama's aides haven't made a final decision on the long-
term strategy. They're more focused for the moment on
finalizing plans for the roll-out, hoping to at least
generate some initial buzz around the nominee.
Outside allies are lining up progressive organizations,
labor leaders, women's groups and black ministers, to focus
attention on the battle, which is likely to drag on for
months. Monday morning, for example, the Leadership
Conference on Civil and Human Rights is releasing a letter
from law school deans pushing the Senate to act.
``We are building this campaign for the long haul. Our
number one goal is that Senate Republicans do their job,
follow their Constitutional responsibility and take up the
president's nominee and put that person on the court,'' said
one of the people involved in the outside efforts. ``But if
they want a political fight, we're more than willing to
accommodate them. And if they maintain this unprecedented
obstruction, they can kiss their majority goodbye.''
Senate Democrats have been pitching in too. First up:
photos and video of the nominee going to meet with Democratic
senators on Capitol Hill, hoping will keep the nominee in the
news. The administration and Senate Democrats are also
weighing whether to stage mock hearings or other photo ops
highlighting the nominees inability to even talk to
Republicans--all in the hope of generating embarrassing
footage for the GOP.
``Unprecedented Republican obstruction calls for an
unconventional response,'' is how one Senate Democratic
leadership aide put it.
Traditionally, Supreme Court nominees go completely silent
except for their private meetings with senators and committee
hearings. Though White House aides appear ready to break with
that tradition, they'll only go so far: the nominee won't be
making the rounds of Sunday talk shows, but some outside
advisers have pushed for more contained and scripted
appearances, like speeches at bar associations or law
schools.
But the White House is proceeding carefully, feeling that
the politics work best for them if they're able to keep the
focus on Republican obstructionism.
``It's going to be largely about the person, so it's up to
us to be as serious and dogged about how we present that
person to the country,'' a White House aide said.
Top aides remain optimistic that McConnell will ease his
blockade, but right now there's zero indication Republicans
plan to back down. With that in mind, the administration is
prepared for the fight to become more about ramping up
embarrassment for Republicans up and down the ballot going
into November, hoping they can help elect a Democratic
president and more Democrats to the Senate, who would then
fill the seat in January.
Asked aboard Air Force One on Friday whether the White
House is prepared to have the nominee do interviews or
whether the president will take a more public role, White
House press secretary Josh Earnest said, ``it's too early to
say exactly how this will play out.''
Within the White House, the planning is being overseen by
Jarrett, Brian Deese, the senior adviser whom Obama tapped to
lead the process, and Shailagh Murray, the senior adviser and
former newspaper reporter who's specialized in developing
unconventional media strategies for this White House. White
House principal deputy press secretary Eric Schultz has
become the point person for the media approach.
Jarrett's chief of staff, Yohannes Abraham, has been
organizing about 125 outside experts, including legal
experts, law school deans, former Supreme Court clerks,
officials from previous administrations, former elected
officials (including dozens of Republicans), civil rights
leaders, mayors, union officials, CEOs and environmental
leaders.
They've also convened conference calls with leaders broken
down by groups. Asian Americans and Pacific Islanders,
Latino, African-American, civil rights, small business, state
and local elected officials, academics and law school deans,
disability advocacy, faith, youth, labor and progressives,
women and lawyers.
``The coordinated grassroots effort that has already proven
a powerful tool to put
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pressure on Republicans will only ramp up,'' said Amy
Brundage, a former deputy communications director at the
White House currently helping coordinate communications for
the outside effort at Dunn's firm. ``That includes events in
targeted states with real working Americans pushing Senate
Republicans to do their jobs, press events with key
Democratic members and groups, and coordinated validator
pushes like those with the legal scholars, historians and
attorneys general.''
So far, the administration doesn't have a set calendar for
each day following the submission of the nomination, but
they're developing the plan to accommodate variables such as
who the nominee is, what that person's biography includes,
and what that person's current job allows for. With the short
list reportedly limited to sitting federal judges, there may
be less room to maneuver. Judges face more restrictions on
their activities than a practicing attorney, academic or
politician.
``The formal ethics rules applicable to appellate court
judges wouldn't apply to a senator,'' said Indiana University
professor Charles Geyh. The standard rules for judicial
candidates technically don't apply to Supreme Court nominees,
Geyh pointed out. Strategic considerations have led recent
nominees to be fairly evasive about their views, but that
doesn't preclude trying to keep the spotlight on the
nomination.
``I wouldn't hesitate to have cameras at the ready to the
extent this person is having doors slammed in his face, using
that as a way to embarrass the Republicans, but that's
different from having the nominee out there chatting about
what he'd do as a judge,'' Geyh said, adding that most of the
reticence nominees have shown in recent years ``is all
strategic and has nothing to do with ethics.''
Democrats have already been talking about holding
unofficial hearings on a potential nomination. Whether the
nominee him- or herself would attend is an open question, but
experts say it would also be within ethical bounds.
``We're entering uncharted waters here. We've never had a
situation in which the party in power, in this case the
Republicans, were denying even a hearing to the nominee,''
said Nan Aron of the liberal Alliance for Justice.
If the fight stretches into late summer and the Democratic
focus turns to an election-focused campaign, the situation
gets dicier. A nominee who's a sitting judge would need to
steer clear of events where those arguments are being made,
and even a non-judge would be wise to do the same.
Conservatives say they're bracing for an aggressive
campaign by the White House and Democrats who'll be looking
to keep the Supreme Court fight on the front burner. Already,
some groups have been circulating opposition research about
several of the potential nominees whose names have been most
discussed, hitting Sri Srinivasan, Jane Kelly and Ketanji
Jackson.
``This is just going to push the boundaries,'' said veteran
GOP judicial nominations advocate Curt Levey, now with
Freedomworks. ``They can certainly make the meetings with
Democratic senators into a show--more of a show than it
normally is.''
The White House theory is that if there's enough pressure
to get Republicans to cave on a hearing, that will start the
ball rolling in a way that'll make winning confirmation a
real possibility.
Democrats pounced on Sen. John Cornyn's (R-Texas) promise
last week that the Republicans will turn Obama's nominee into
a pinata. That raises additional questions about who Obama
chooses, since the person will have to endure not just a
stranger than normal process, but likely a very negative one.
As Cornyn warned, that could be enough to make some potential
picks say no. If this fight goes on long enough and the
nominee is a judge who'll likely recuse from pending and
future cases, the person could be open to attacks of getting
paid for not working--or going back to their day job and
appearing to throw in the towel.
Levey said he expects the fight will eventually morph into
full-blown election politics. ``At some point this is going
to turn,'' Levey said. ``It may turn very quickly in terms of
the White House giving up whatever little hope they have.''
Mr. HATCH. Furthermore, Madam President, the minority leader has
turned his daily remarks on the floor into constant diatribes against
the chairman of the Judiciary Committee. These diatribes rank among the
most vicious and most personal attacks I have heard on the Senate floor
in my nearly four decades in this Senate body. Having myself served as
chairman of the Judiciary Committee for more than 8 years, I know that
the position is no stranger to controversy and political hardball. But
the vile and unfair attacks on Senator Grassley's independence and work
ethic have gone too far.
I have had the privilege of serving with Senator Grassley for more
than 35 years. I know no one more committed to doing his job. Senator
Grassley has not missed a vote in a record-setting 27 years--when he
was home in Iowa, touring the awful damage of the Great Flood of 1993--
and yet still manages to hold townhall meetings in all 99 of his
State's counties every year. He sets the gold standard of service in
the Senate.
If anyone knows his mind, it is Senator Grassley. Each of us is
entitled to our opinions on issues that come before this body, even
controversial ones, but I want to condemn in the strongest possible
terms the notion that a difference of opinion with Senate Democrats
means that Senator Grassley is compromising his own integrity or the
independence of the Judiciary Committee he leads. These attacks come
very close to impugning his character, and that sort of behavior is
beneath the dignity of this body.
The minority leader came to the floor to seize on the comments of the
senior Senator from Texas to manufacture what I consider to be another
cheap political attack on the Republican majority. In those comments,
Senator Cornyn had speculated that the election-year political
environment could, unfortunately, turn any Supreme Court nominee into a
political pinata. The minority leader's comments are a total
mischaracterization of Senator Cornyn's record of fairness toward
nominees of both parties and of Senate Republicans' intentions in this
situation. After all, the whole point of deferring the nomination and
confirmation process is to limit the mistreatment of any nominee, as
Senator Cornyn suggested in his remarks. This unfounded accusation is
also deeply ironic, coming from the party that stooped to the character
assassination of Robert Bork and Clarence Thomas.
If there is anyone who has been treated like a pinata in this debate,
it has been Senator Grassley. Now, Chuck Grassley is as tough as they
come, and I have every confidence that he will weather these attacks.
But if these scorched-earth political tactics reflect the length some
of the Democratic minority are prepared to go in an election-year
confirmation battle, there can be no better illustration of why we
should defer this process.
Madam President, 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.
Ms. WARREN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. WARREN. Madam President, today the Senate will vote on the
confirmation of Dr. John King to be the next Secretary of Education.
While there is only 1 year left in the Obama Presidency, this is still
one of the most important jobs in Washington because the Department of
Education has a powerful set of tools available that it can use to
stand up for people who are struggling with student loan debt and tools
to help make a quality, affordable college education a reality for
millions of Americans.
Secretary of Education must be one of the most difficult jobs in
Washington because for years there has been some kind of problem at the
Department of Education that has made it practically impossible to get
the Department to put the interests of students ahead of the interests
of private contractors and for-profit colleges that are making the big
money off our students.
The Department has powerful tools to make sure that fraudulent
colleges aren't sucking down billions of taxpayer dollars of student
loans. But for the most part, these tools gather dust on the shelf
while shady institutions like Corinthian Colleges spend years gobbling
up taxpayer money while they defraud their own students.
The Department has powerful tools to help students when they get
ripped off by fraudulent colleges. But for years, it has been like
pulling out your own teeth simply to get relief for the victims who got
cheated by for-profit colleges like Corinthian.
There are literally dozens of examples of how the Department of
Education's trillion-dollar student loan bank has been putting profits
for these companies and for-profit colleges ahead of the needs of
students. One of the worst has been the bank's approach to overseeing
the student loan servicing companies that are paid by the government to
collect student loan payments.
Consider the case of Navient, a student loan servicer that got caught
redhanded ripping off tens of thousands of
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active duty members of the military. Two years ago, the Department of
Justice and the FDIC fined the company $100 million for breaking the
law and overcharging our active duty military on their student loans.
But the Department of Education didn't take any action against Navient.
Instead of following the lead of the Justice Department and using the
Justice Department's evidence--no, the Department of Education
announced its own separate review of whether soldiers were harmed.
A year later, they released their results, and notwithstanding the
fact that Navient was already sending checks to thousands of
servicemembers under the DOJ and FDIC agreement, the Department of
Education student loan bank concluded that everything was just fine,
and the Department's bank had no need to impose any additional fines or
restrictions on Navient. In fact, things were so fine that the
Department's bank rewarded Navient by renewing a $100 million contract.
If that sounds stinky to you, it should. The Department's inspector
general took a close look at what was going on over at the Department's
bank, and 2 weeks ago they released a scathing report on the bank's
whitewash. The IG slammed the Department for a report that was a
complete and utter mess, loaded with errors, calling for ``inconsistent
and inadequate actions.'' The IG concluded that the Department of
Education's happy-face press release announcing that everything was
fine with the servicer was ``unsupported and inaccurate.''
When a private company breaks the law and steals from American
soldiers who are literally in the field fighting overseas, those
companies should be held accountable. The Justice Department held
Navient accountable. The FDIC held Navient accountable. But the
Department of Education's bank decided it was more important to protect
Navient than to watch out for our military students.
Let's not mince words. The Navient fiasco is outrageous, but it is
not surprising. At a Senate hearing 2 years ago, I asked James Runcie,
who runs the Department of Education's student loan bank, how he could
turn around and renew the contract of a company like Navient that had
just copped to ripping off American soldiers. His answer, essentially,
was that moving borrowers away from Navient would simply be too
disruptive. Senator Harkin said at the time that sounded an awful lot
like too big to fail. And Senator Harkin was right. So long as that
theory remains the operating principle of the Department of Education,
the American people can forget about the law because there will be no
real limits on how much money big private companies and large
fraudulent schools can steal from students and taxpayers.
Dr. King didn't create any of these problems. These problems have
grown and festered over a long time, and they won't be easy to solve.
For several weeks now Dr. King and I have talked about these issues,
and I believe he understands the magnitude of the task he faces. He has
committed in no uncertain terms to a top-down review of the way the
student loan program is administered and the way the Department
oversees financial institutions. He has announced that he will force
all of the major student loan servicers to review their records and
make refunds to all members of the military who were illegally ripped
off. And he has embraced strong, new proposals to protect borrowers who
are taken in by fraudulent colleges so they can get their money back.
These are serious steps in the right direction. For those reasons, I
will vote for him today, but let's be clear that this is not the end of
the story. Dr. King has an enormous amount of work to do to get the
Department's higher education house in order, and the American people
will be watching closely for results.
One of the first things that must be done is a total reform of
student loan servicing to make sure nothing like the Navient disaster
ever, ever happens again. Here are five simple principles that should
guide that reform:
First, put students and families first--every time, every decision.
The Department exists to serve students, not student loan companies. It
is time they acted like it.
Second, punish bad actors. Navient broke the law and cheated
soldiers, but the Department bent over backward to protect them. Right
now Navient owes the Federal Government $22 million it stole in another
scam, and the Department hasn't even bothered to collect it. The
Department needs to show it is willing and able to punish companies
that break the rules, and that includes kicking them out of the student
loan program if necessary.
Third, change the financial incentives for servicers. Two years ago,
the Department renegotiated the servicer contracts and basically ended
up paying the companies more money for the same bad outcomes. No more.
Our country pours millions of tax dollars into these companies, and it
is time to leverage those dollars to make sure the companies are
working for students.
Fourth, release more data. The Department of Education adamantly
refuses to share basic data about the student loan program with anyone,
even other folks within the Department of Education. That means
nobody--nobody--can even see how this bank is being run. It is time for
some sunshine.
Fifth, take responsibility for aggressive oversight of student loan
servicers. The Department needs to act before this problem
metastasizes, and when the Department doesn't have the tools to act, it
needs to get out of the way and let the CFPB or other Federal agencies
do their jobs.
Five simple principles. Everyone in government who is serious about
standing up for the tens of millions of student loan borrowers in this
country should embrace them because we shouldn't be running the student
loan program to create profits for private companies. We should run it
for students.
We are facing a crisis in higher education. Student debt is
exploding, crushing our young people and threatening the economy.
Opportunity is slipping away from millions of Americans. The time for
reform is now--not in the next Presidency, not 5 years from now but
now. Reform starts with the Department of Education, and if he is
confirmed today, it is my strong hope that Dr. King will make fixing
these problems a top priority from his first day on the job to his last
day on the job.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Coats). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. LEE. 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. LEE. Mr. President, I ask unanimous consent to speak for up to 15
minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. LEE. Mr. President, last week the Senate Health, Education,
Labor, and Pensions Committee voted to advance President Obama's
nominee for Secretary of Education, Dr. John King. Tonight the
nomination is set to come before the Senate not for a robust debate but
for a hasty vote, and by all accounts confirmation is expected.
I rise to oppose the nomination of Dr. King and to urge my colleagues
to join me in voting against his confirmation as Secretary of
Education. I have studied Dr. King's professional record--most notably,
his time in New York's Department of Education. I have reviewed the
transcripts of his confirmation hearing. Based on the policies he has
supported, the bipartisan opposition he has invited throughout his
career, and his uncompromising commitment to the designs of bureaucrats
and central planners over the lived experiences of parents and
teachers, I believe it would be a grave error for the Senate to confirm
Dr. King's nomination at this time.
Indeed, I believe it would be difficult for anyone to support Dr.
King's nomination on the basis of his record. The problem is not that
Dr. King lacks experience. On paper, you might even think that
Secretary of Education is the natural next step in his career. After 3
years as a teacher and a brief stint at managing charter schools, Dr.
King has risen through the ranks of the education bureaucracy, climbing
from
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one political appointment to the next, but do we think that someone who
has spent more time in a government agency than in a classroom is best
suited to oversee Federal education policy? More to the point, what
matters aren't the jobs someone has held but the policies that person
has advanced. This is the problem with Dr. King's nomination.
Look closely at his record, especially look closely at the 3\1/2\
years he spent as New York's education commissioner, where he forced on
an unwilling school system unpopular Common Core curriculum and
standards, an inflexible testing regime, and a flawed teacher
evaluation system.
All of this proves that Dr. King is the standard bearer of No Child
Left Behind--the discredited K-12 regime that has become synonymous
with dysfunctional education policy in classrooms and households all
across America. This is not just my opinion. It was the opinion of New
York's parents, teachers, legislators, school board members, and
superintendents. The vast majority of them opposed and protested
against Dr. King and the policies he championed while at the helm of
the State's education department.
This Congress and President Obama have promised to move Federal
education policy in the opposite direction established by No Child Left
Behind. Under these circumstances, Dr. King--the embodiment of the
failed K-12 status quo--is not the person who should be put in charge
of the Department of Education. If confirmed, Dr. King would serve as
the head of the Department of Education for 10 months, until January
2017, when the next President is sworn into office. This may sound like
an insignificant amount of time for a Cabinet Secretary to serve, but
in reality the next 10 months are crucially important to the future of
Federal education policy in America.
Just a few months ago, Congress passed and President Obama signed the
Every Student Succeeds Act, or ESSA--a bill that reauthorized the law
governing Federal K-12 education policy. Now the Department of
Education will begin implementing the ESSA, which will set the course
of the Department for years to come. So what happens over the next 10
months within the Department of Education will have sweeping, far-
reaching consequences for America's schools, teachers, and students--
consequences that will affect not just the quality of education
students receive as children but the quality of life available to them
as adults.
One of the most serious flaws of the ESSA, and one of the primary
reasons I voted against the bill, is that it reinforces the same K-12
model that has trapped so many kids in failing schools and confined
America's education system to a state of mediocrity for half a century.
This is a model that concentrates authority over education decisions in
the hands of Federal politicians and bureaucrats instead of parents,
teachers, principals, and local school boards.
There is no government official who is granted more discretion or
more authority under the ESSA than the Secretary of Education. The ESSA
purports to reduce the Federal Government's control over America's
classrooms by returning decisionmaking authority to parents, educators,
and local officials. For instance, there are several provisions that
prohibit the Secretary of Education from controlling State education
plans or coercing States into adopting Federal standards and testing
regimes, but when you look at the fine print, you see that in most
cases these prohibitions against Federal overreach contain no
enforcement mechanisms--only vague, aspirational statements encouraging
the Secretary to limit his own powers.
So the question is, If confirmed as Secretary of Education, would Dr.
King adhere to the spirit of the ESSA and voluntarily return
decisionmaking authority to parents, teachers, and local officials?
There is little reason to believe he would.
Dr. King's former boss and would-be predecessor, Arne Duncan,
certainly had no qualms about violating similar prohibitions against
Federal overreach found in No Child Left Behind, nor has he shied away
from advertising the fact that ESSA would function in much the same way
as No Child Left Behind.
In an interview with POLITICO, Duncan discussed whether the ESSA
would, in fact, reduce the Federal Government's control over America's
classrooms. He was asked: ``How do you respond to the notion that
you've had your wings clipped on your way out the door?'' This was
Duncan's response: ``Candidly, our lawyers are much smarter than many
of the folks who were working on this bill.''
In other words, Congress can write whatever bill it wants, and the
administration's lawyers will be able to figure out a way to implement
it according to the preferences of the Cabinet Secretaries and their
armies of bureaucrats. This is certainly a brazen admission of
bureaucratic arrogance by former Secretary Duncan, but it is exactly in
line with the way Dr. King approached his job as education commissioner
of New York just a few years ago.
Under Dr. King's leadership, New York became one of the first States
to implement Common Core standards and testing requirements starting in
2011. Dr. King was one of the only education commissioners in the
country to insist on rolling out the tests before teachers had been
given adequate time to adapt to the new curriculum imposed by Common
Core. To the surprise of no one--except perhaps for Dr. King--the
results were a disaster.
The 2013 Common Core tests only widened the achievement gap and
sparked the Opt Out movement in New York, which mobilized 65,000
students to opt out of the Common Core tests in 2014 and more than
200,000 students to opt out in 2015. To make matters worse, around the
same time teachers were being forced to test their students on material
they hadn't been given time to incorporate into their curriculum, Dr.
King implemented a teacher evaluation system that relied heavily on
these distorted student test scores. This evaluation system was so
unpopular that in 2014 one of New York's teachers unions called for Dr.
King's resignation.
What is most troubling about Dr. King's tenure as education
commissioner isn't that he centralized decisionmaking authority within
the State's education department, imposing one-size-fits-all policies
across a diverse school system. Plenty of education commissioners are
guilty of the same, if not worse. No, the real problem with Dr. King's
record is that he routinely and apparently as a matter of policy
ignored the advice and feedback of teachers, parents, principals, and
school board members. Even as his centrally planned house of cards was
tumbling down around him, Dr. King stayed the course, believing against
all evidence that when it comes to running a classroom, bureaucrats and
politicians know better than teachers, parents, and local school
boards.
When the Senate confirms a Presidential nominee, we are doing more
than just approving a personnel matter; we are accepting, to a degree,
what that nominee stands for. As we consider this nomination, we must
ask ourselves, what kind of policy do the American people want? What
kind of policy do America's elementary and secondary students deserve?
We know that local control over K-12 and even pre-K education is more
effective than Washington, DC's, prescriptive, heavyhanded approach
because we have seen it work in communities all across the country. The
point isn't that there is a better way to improve America's schools but
that there are 50 better ways, thousands of better ways, but Washington
is standing in the way, distrustful of any alternative to the top-down
education status quo. And under the leadership of Dr. King,
Washington's outdated, conformist policies will continue to stand in
the way. America's students deserve better than this. The least we can
do is to not accept the failed status quo.
I urge all of my colleagues to join me in voting against this
nomination.
I thank the Presiding Officer.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak for up
to 15 minutes before the vote, to be followed by Senator Murray for as
much time as she may require, and then we will have a vote.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak for 5
minutes following Senator Alexander.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
[[Page S1456]]
Mr. ALEXANDER. Mr. President, the Senator from Utah has given an
excellent speech about why it would be a good idea to have a Republican
President of the United States, but we don't have one.
The reason we are voting today is because we need a U.S. Education
Secretary confirmed by and accountable to the U.S. Senate so that the
law to fix No Child Left Behind will be implemented the way Congress
wrote it.
In December, at the ceremony where President Obama signed the Every
Student Succeeds Act, the new law to fix No Child Left Behind, I urged
the President to send a nominee to the Senate to be the Education
Secretary to replace Arne Duncan. Without that, we would have gone a
whole year without a leader of that Department confirmed by and
accountable to the U.S. Senate. I made that recommendation to the
President because this is such an important year for our 100,000 public
schools and the 50 million students who are in those schools. We need
an Education Secretary who is confirmed and accountable to Congress
while we are implementing a law that may govern elementary and
secondary education for some time. I want to be sure we are working
together to implement the law the way Congress wrote it. That law was
passed with broad bipartisan support. It passed the U.S. Senate by a
vote of 85 to 12. It passed the House of Representatives by a vote of
359 to 64.
We achieved that result because, as Newsweek said, No Child Left
Behind was a law everybody wanted fixed and fixing it was long overdue.
Governors, teachers, superintendents, parents, Republicans, Democrats,
and students all wanted No Child Left Behind fixed. Not only was there
a consensus about the need to fix the law, there was a consensus about
how to fix it, and the consensus was this: Continue the important
measures of academic progress of students, disaggregate the results of
those tests, report them so everyone can know how schools, teachers,
and children are doing, but then restore to States, school districts,
classroom teachers, and parents the responsibility for deciding what to
do about those tests and about improving student achievement.
This new law is a dramatic change in direction for Federal education
policy. In short, it reverses the trend toward what had become a
national school board and restores to those closest to children the
responsibility for their well-being and academic success.
The Wall Street Journal called the new Every Student Succeeds Act
``the largest devolution of federal control of schools from Washington
back to the states in a quarter of a century.''
I suppose you could say it didn't go far enough, but that would be
like standing in Nashville and waiting 7 years to hitchhike to New York
City, and when somebody offers you a ride to Philadelphia, you say: I
think I will wait another 7 years. I think I would take the ride and
then see if I could get another ride to New York City, and that is what
85 U.S. Senators thought when they voted for this.
There is no group more interested in restoring responsibility to
States than the Nation's Governors. The Governors gave our new law the
first full endorsement of any piece of legislation since their
endorsement of welfare reform 20 years ago in the U.S. Congress.
I believe the law can inaugurate a new era of innovation and student
achievement by putting the responsibility for children back in the
hands of those closest to them: the parents, classroom teachers,
principals, school superintendents, school boards, and States.
The Senate Education Committee, which I chair and on which the
Senator from Washington is the senior Democrat, will hold at least six
hearings to oversee implementation of the new law. All of those
hearings will be bipartisan, as our hearings almost always are. We
already held the first hearing on February 23 with representatives of
many of the groups who worked together to pass the law, and now they
are working together to implement the law. They already formed a
coalition made up of the National Governors Association, the School
Superintendents Association, the National Education Association, the
American Federation of Teachers, the National Conference of State
Legislatures, the National Association of State Boards of Education,
the National School Boards Association, the National Association of
Elementary School Principals, the National Association of Secondary
School Principals, the National Parent Teacher Association, with the
support of the Chief State School Officers.
They sent Dr. King a letter saying:
Although our organizations do not always agree, we are
unified in our belief that ESSA is an historic opportunity to
make a world-class 21st century education system. And we're
dedicated to working together at the national level to
facilitate partnership among our members and states and
districts to guarantee the success of this new law.
They go on to say:
That new law replaces a top-down accountability and testing
regime with an inclusive system based on collaborative state
and local innovation. For this vision to become a reality, we
must work together to closely honor congressional intent:
ESSA is clear. Education decisionmaking now rests with the
states and districts, and the federal role is to support and
inform those decisions.
You may say something different, but you are disagreeing with the
Governors, the school superintendents, the NEA, the AFT, the State
legislatures, the State boards of education, the National School Boards
Association, the National Association of Elementary School Principals,
the National Association of Secondary School Principals, and the
National Parent Teacher Association.
Our first oversight hearing with Dr. King will be April 12.
Some have objected to this nomination on the grounds that Dr. King
was supportive of common core when he was education commissioner in New
York State. I want those who are worried about that to know that this
new law has ended what had become, in effect, a Federal common core
mandate. More than that, it explicitly prohibits Washington, DC, from
mandating or even incentivizing common core or any other specific
academic standards. That is in the law. What standards to adopt
entirely up to States, local school boards, and classroom teachers.
Here is what Senator Roberts of Kansas, who wrote this part of the
law, asked Dr. King at our hearing on February 25:
I know that we have differences on Common Core. I don't
want to get into that. But it is part of the existing
legislation in law. And I want to be absolutely clear, the
language says, no officer or an employee of the federal
government, including the secretary, shall attempt to
influence, condition, incentivize or coerce state adoption of
the Common Core state standards or any other academic
standards common to a significant number of States or
assessments tied to such standards.
Senator Roberts continued:
I know that we, again, have differences. But nevertheless,
will you give us your commitment that you will respect the
intent as well as the explicit binding letter of that
prohibition?
Dr. King said: ``Absolutely.''
That is why we needed a confirmation hearing. That is why we need to
have a confirmed Secretary of Education.
In my questions to Dr. King, I said this about my exchanges at an
earlier hearing with Dr. Tony Evers, the Wisconsin State superintendent
of public instruction, who is also the president of all the chief state
school officers. I said to Dr. Evers:
Do you read the new law to say that if Wisconsin wants to
have Common Core, which it does, I believe, that it may? If
it does not want to have Common Core, that it may not? That
if it wants part of Common Core or more than Common Core, it
can do that? It simply has to have challenging academic
standards that are aligned to the entrance requirements for
the public institutions of higher education in the state.
The superintendent said he agreed with that.
In other words, to be blunt, it doesn't really make much difference
what Dr. King thinks of common core. Under the law, he doesn't have
anything to do with it. He doesn't have anything to do with whether a
State adopts it or whether a State chooses not to adopt it.
The new law also ended the practice of granting conditional waivers,
through which the U.S. Department of Education has become, in effect, a
national school board for more than 80,000 schools in 42 States.
Governors have been forced to come to Washington to play ``Mother, may
I?'' in order to put in a plan to evaluate teachers or help a low-
performing school, for example. That era is over. It ends the ``highly
qualified teacher'' definition. It ends the teacher evaluation mandate.
It
[[Page S1457]]
ends the Federal school turnaround models, Federal test-based
accountability, and adequate yearly progress. Those decisions--after
all the reports are made about how schools, teachers, and children are
doing--will be made by those closest to the children. The new law moves
decisions about whether schools, teachers, and students are succeeding
or failing from Washington, DC, and back to States and communities,
where those decisions belong.
In conclusion, please permit me to add a personal note. This day is
actually 25 years to the day since I was confirmed as the U.S.
Education Secretary. I believe the Senator from Indiana was on the
Education Committee at that time. But here is the difference: Under a
Democratically controlled Senate, my nomination took 87 days from the
day it was announced and 51 days from when the nomination was formally
submitted to the Senate. Under a Republican-controlled Senate, Dr.
King's nomination has taken 32 days. His nomination was announced and
formally submitted on February 11.
Let me conclude the way I started. The reason we are voting today is
that we need an Education Secretary confirmed by and accountable to the
U.S. Senate so that the law that 85 of us voted for to fix No Child
Left Behind is implemented the way we wrote it. This vote is not about
whether one of us would have chosen Dr. King to be the Education
Secretary. Republicans won't have the privilege of picking an Education
Secretary until we elect a Republican President of the United States.
What we need is an Education Secretary confirmed by and accountable to
the U.S. Senate so that the law to fix No Child Left Behind will be
implemented the way we wrote it.
I urge my colleagues to vote yes. I conclude my remarks, but I want
to do so with thanks to the Senator from Washington, Mrs. Murray, who
played such a crucial role in passing the law fixing No Child Left
Behind.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I come to the floor as well today to
speak in support of Dr. John King's nomination to serve as Secretary of
Education.
This is really an important time for students when it comes to early
learning. We have seen improvements, but we have much more to do to
expand access to high-quality preschool so more of our kids can start
school on strong footing.
This is a critical moment as well, as we just heard, for K-12
education as schools and districts and States transition from the
broken No Child Left Behind to the bipartisan Every Student Succeeds
Act that the President signed into law late last year.
I hear all the time from students and families who are struggling
with the high cost of college and the crushing burden of student debt.
With all of these challenges and opportunities, the Department of
Education will need strong leadership, and I am glad President Obama
has nominated Dr. John King who is currently serving as Acting
Secretary of the Department.
I want to commend Senator Lamar Alexander, chairman of our HELP
Committee, for moving forward with Dr. King's nomination in a timely
and bipartisan manner in our committee. I also appreciate Majority
Leader Mitch McConnell for bringing this nomination to the floor.
Dr. John King has a longstanding commitment to fighting for kids.
Through his personal background, he knows firsthand the power that
education can have in a student's life. He has enriched students' lives
as a classroom teacher and as a principal. He has worked with schools
to help close the achievement gap. And he served as the commissioner of
education for New York State for 4 years. No one can question his
passion for our Nation's young people.
This administration has a little less than a year left in office, but
that is still plenty of time to make progress in several key areas, and
that progress is more likely with a confirmed Secretary in place at the
Department.
In higher education, I, along with my Democratic colleagues, will
continue to focus on ways to make college more affordable, reduce the
crushing burden of student debt that is weighing on so many families
today, and continue working to fight back against the epidemic of
campus sexual assaults and violence.
I would also like to see the Department take new steps to help
protect students who are pursuing their degrees. As one example,
students like those who went to Corinthian Colleges, have the right to
seek loan forgiveness if they attended a school that engaged in
deceptive practices. I am really pleased the Department has a new
proposal to set up a simple way for students to get relief. And all
borrowers should receive the highest levels of customer service and
protections under the law, particularly our servicemembers and our
military families. This is an issue I and others have raised directly
with Dr. King during his confirmation and one where we are finally
seeing the administration make progress.
The role of Education Secretary has become especially important as
the Department begins implementing the Every Student Succeeds Act. I
expect the Department to use its full authority under the Every Student
Succeeds Act to hold our schools and States accountable, to help reduce
the reliance on redundant and unnecessary testing, and to expand access
to high-quality preschool.
A good education can be a powerful driving force for success in our
country and help more families live out the American dream. That is
what makes education such a vital piece of our work to help our economy
grow from the middle out, not from the top down. I hope to partner with
Dr. King as Secretary of Education to work toward that shared goal.
I urge all of our colleagues today to support his nomination.
Thank you.
I yield the floor.
Mr. ALEXANDER. Mr. President, I yield back all time.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the King nomination?
Mr. ALEXANDER. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Texas (Mr. Cruz), the Senator from Arizona (Mr. Flake),
the Senator from Illinois (Mr. Kirk), the Senator from Arizona (Mr.
McCain), the Senator from Ohio (Mr. Portman), the Senator from Florida
(Mr. Rubio), the Senator from Alabama (Mr. Sessions), and the Senator
from Pennsylvania (Mr. Toomey).
Further, if present and voting, the Senator from Florida (Mr. Rubio)
would have voted ``nay.''
Mr. DURBIN. I announce that the Senator from Ohio (Mr. Brown), the
Senator from Vermont (Mr. Sanders), and the Senator from Virginia (Mr.
Warner) are necessarily absent.
The PRESIDING OFFICER (Mr. Cassidy). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 49, nays 40, as follows:
[Rollcall Vote No. 36 Ex.]
YEAS--49
Alexander
Baldwin
Bennet
Blumenthal
Booker
Boxer
Cantwell
Cardin
Carper
Casey
Cassidy
Cochran
Collins
Coons
Cornyn
Donnelly
Durbin
Feinstein
Franken
Hatch
Heinrich
Heitkamp
Hirono
Kaine
King
Klobuchar
Leahy
Manchin
Markey
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Peters
Reed
Reid
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Warren
Whitehouse
Wyden
NAYS--40
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Coats
Corker
Cotton
Crapo
Daines
Enzi
Ernst
Fischer
Gardner
Gillibrand
Graham
Grassley
Heller
Hoeven
Inhofe
Isakson
Johnson
Lankford
Lee
Moran
Murkowski
Paul
Perdue
Risch
Roberts
Rounds
Sasse
Scott
Shelby
Sullivan
Thune
Tillis
Vitter
Wicker
NOT VOTING--11
Brown
Cruz
Flake
Kirk
McCain
Portman
Rubio
Sanders
Sessions
Toomey
Warner
The nomination was confirmed.
[[Page S1458]]
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table and the President
will be immediately notified of the Senate's action.
____________________