[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

[[Page S1452]]

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

[[Page S1453]]

     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

[[Page S1454]]

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

[[Page S1455]]

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.

                          ____________________