[Congressional Record Volume 162, Number 78 (Tuesday, May 17, 2016)]
[Senate]
[Pages S2850-S2861]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRANSPORTATION, HOUSING AND URBAN DEVELOPMENT, AND RELATED AGENCIES
APPROPRIATIONS ACT, 2016--Continued
The PRESIDING OFFICER. Under the previous order, the time until 2:30
p.m. will be equally divided between the managers or their designees.
The Senator from Maine.
Ms. COLLINS. Mr. President, at this point I wish to yield to Senator
Reed of Rhode Island, the subcommittee ranking member and the comanager
of this bill.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, let me thank the chairman for her
consideration. I rise in support of the Zika supplemental amendment
offered by Senators Murray and Blunt, as well as the amendment offered
by Senator Nelson.
The threat of the Zika virus is a serious public health issue and
Congress must act to help minimize the spread before we have an
epidemic on our hands. It has been over 2 months since the
Administration asked for emergency funds for a comprehensive response
to the Zika virus and to speed up development of a vaccine. This should
not be a partisan issue, and inaction leaves us more susceptible to
this serious public health emergency. This disease is spreading rapidly
in other countries, and as we saw last year with Ebola--and with other
mosquito-borne illnesses--we are living in an interconnected world and
we are not immune to the spread of these diseases.
Already, there are over 1,000 cases of Zika virus in the United
States and U.S. territories, including over 100 pregnant women. We have
only seen two cases so far in my home State of Rhode Island, but the
virus is spreading and it isn't going away on its own. We will
certainly see these numbers increase as we approach the summer months.
I had the opportunity to host a discussion in Rhode Island about this
topic just a few weeks ago, bringing together Federal officials from
the Centers for Disease Control and Prevention and the National
Institute for Allergy and Infectious Diseases, as well as public health
officials from the Rhode Island Department of Health, among other
experts in the State. Everyone agreed that funding is needed
immediately to ensure that we are prepared for Zika.
State and local public health departments will be critical to
strengthening efforts to prevent and diagnose cases of Zika, among
other mosquito-borne illnesses this summer. While transmission of
mosquito-borne illnesses has been limited in the United States so far,
it is critical that state and local public health departments have the
resources they need--in addition to ongoing communication with the
CDC--so they have the most up-to-date information on diagnostics and
testing for mosquito-borne illnesses.
The NIH also needs more resources to help fast-track research and
development of a vaccine for the Zika virus. The Zika virus has the
potential to circulate in the United States over the long term, and we
need to be prepared for the fact that we will be combating this disease
for more than just a few months in the summer.
We also need more research on the virus. The Zika virus has been
around for decades, and there have been outbreaks in other parts of the
world, but we didn't know it could cause a birth defect called
microcephaly that impacts brain development until this year. We still
don't know the long-term impacts on these children and their mothers.
I plan to support Senator Nelson's amendment to fully fund the
administration's Zika supplemental request. I appreciate his efforts to
push this issue and to help ensure that we have robust funding to help
combat the threat of Zika.
While Senator Nelson's approach is preferable, I also plan to support
the amendment of Senator Murray and Senator Blunt to provide $1.1
billion in funding to address Zika. This amendment is a bipartisan
compromise, and my hope is that no less than this funding level will
move forward and be signed into law before we head into the summer
months.
It is so critical that we move quickly on this so our state and local
health departments will have the resources they need to deal with the
potential growing cases in the coming months. Senators Murray and Blunt
have been working for weeks on this amendment, and I want to thank them
for their commitment to get to this agreement.
I will oppose Senator Cornyn's amendment, which would make harmful
cuts to the Prevention and Public Health Fund. This is a classic case
of robbing Peter to pay for Paul. The Prevention and Public Health Fund
makes exactly the kinds of investments in our public health
infrastructure that better prepare us to deal with emergencies like
Zika or Ebola.
The Prevention and Public Health Fund also helps fund disease
prevention programs such as cancer screenings and immunization programs
that save us money in the long run. Instead of cutting the Prevention
and Public Health Fund to pay for the Zika supplemental, we should
actually be investing more into these programs. So it is my hope we
will reject this approach and instead pass emergency legislation today
to deal with the Zika virus.
The funding that will be made available as a result of today's votes
will be critical in the efforts to prevent outbreaks of the disease in
the United States and hopefully the creation of a vaccine in the near
future.
There is still a lot we don't know about the Zika virus--and once we
pass this emergency funding package, Congress will still need to work
together to continue evaluating needs and determining whether more
resources are necessary.
I look forward to working with my colleagues to protect Americans
from the potentially devastating impacts of the Zika virus.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, shortly the Senate will proceed to
consider three alternative proposals to provide much needed funding to
combat the Zika virus. I am deeply concerned about the rapidly emerging
and evolving Zika virus, which poses a particular threat to pregnant
women and can cause serious birth defects.
To learn more about this virus and other public health challenges, I
recently toured the Centers for Disease Control and Prevention in
Atlanta, GA, with my friend and colleague Senator Isakson. I was deeply
impressed by the team of extraordinarily dedicated public servants who
work there. These scientists leverage an enormous range of knowledge to
protect the American people, including through rapid response to
infectious disease threats.
CDC's experts told me they call the mosquito that carries the Zika
virus the cockroach of the mosquito world because it is so difficult to
get rid of. This mosquito can breed in water that fits within the size
of a bottle cap. It is commonly found in the United States in areas
like Florida and our gulf coast.
There are now more than 1,000 cases of Zika virus in the United
States and
[[Page S2851]]
its three territories, including two laboratory-confirmed cases in the
State of Maine. Earlier, one of our colleagues showed a map of the
States that are most affected by Zika, but the fact is, due to travel,
there are confirmed Zika cases in virtually every single State, but of
course Puerto Rico in particular has been especially hard hit, with the
number of cases soaring. These statistics are even more alarming when
we consider that we have not yet reached the summer months when
mosquitoes tend to be more prevalent. Recent studies suggest that Zika
might spread across the warmer and wetter parts of the Western
Hemisphere. As many as 200 million people in our country live in areas
where the mosquito that carries the virus could potentially thrive.
You may have read what may seem like good news--that the Zika virus
is asymptomatic in approximately 80 percent of those affected, but CDC
recently concluded that the virus causes microcephaly and a range of
other severe fetal brain defects. Americans are justifiably worried
about the Zika virus, as the failure to prevent its spread could have
devastating consequences for our families.
In addition to the human and emotional toll, the Zika virus may
ultimately cost the United States an astonishing sum of money when we
consider that we already spend more than $2.6 billion per year on
hospital stays related to birth defects. So the investment we are
making today is not only the right thing to do from a humanitarian and
public health perspective, it is also the right thing to do from an
economic viewpoint.
In addition to these serious birth defects, the Zika virus has been
linked to Guillain-Barre syndrome, a disease that can cause paralysis
and even death.
It is imperative that we take steps to combat the Zika virus without
delay. To that end, I support the bipartisan compromise agreement
worked out by Senators Blunt and Murray to provide an additional $1.2
billion to combat the Zika virus, including $361 million for the CDC
and $200 million for the National Institutes of Health. We can and we
should do more to plan for emerging disease threats through the regular
appropriations process so we do not have to turn frequently to
emergency supplemental funding, but in this case the Zika virus is an
imminent and evolving public health threat that cannot wait and that
cannot be ignored.
The CDC has a very specific plan to rapidly respond to this very real
threat, including by developing diagnostic tests that will help us
identify the virus and help to educate providers and the public about
appropriate prevention methods. I think it is important to understand
that the CDC is the interface with State and local public health
centers and agencies, so its role is absolutely critical in the
education and prevention process.
The National Institutes of Health is similarly prepared to conduct
research into vaccines that might help us better prevent the virus and
the conditions that it can tragically cause, but again that requires
funding.
The CDC has sounded the alarm in its warning about a serious Zika
outbreak in our country. It is essential we devote sufficient financial
resources to meet this new challenge. I am convinced that today the
Senate will do its part to deal with this serious threat to our public
health.
Thank you, Mr. President.
Mr. REED. Mr. President, I have a parliamentary inquiry: How much
time do we have remaining?
The PRESIDING OFFICER. The Senator from Rhode Island has 1\1/2\
minutes remaining, and the Senator from Maine has zero time remaining.
Mr. REED. Mr. President, I yield back the remaining time on our side.
The PRESIDING OFFICER. All time has been yielded back.
Cloture Motion
Pursuant to rule XXII, the Chair lays before the Senate the pending
cloture motion, which the clerk will state.
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Senate amendment
No. 3898 to amendment No. 3896 to Calendar No. 138, H.R.
2577, an act making appropriations for the Departments of
Transportation, and Housing and Urban Development, and
related agencies for the fiscal year ending September 30,
2016, and for other purposes.
Marco Rubio, Debbie Stabenow, Harry Reid, Sheldon
Whitehouse, Richard J. Durbin, Al Franken, Jeanne
Shaheen, Robert Menendez, Brian E. Schatz, Joe Manchin
III, Bill Nelson, Charles E. Schumer, Michael F.
Bennet, Edward J. Markey, Benjamin L. Cardin, Tom
Udall, Gary C. Peters.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 3898, offered by the Senator from Kentucky for the
Senator from Florida, to amendment No. 3896 to H.R. 2577, shall be
brought to a close?
The yeas and nays are mandatory under this rule.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Texas (Mr. Cruz) and the Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 50, nays 47, as follows:
[Rollcall Vote No. 73 Leg.]
YEAS--50
Ayotte
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Cassidy
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Heinrich
Heitkamp
Hirono
Kaine
King
Kirk
Klobuchar
Leahy
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Peters
Portman
Reed
Reid
Rubio
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Warner
Warren
Whitehouse
Wyden
NAYS--47
Alexander
Barrasso
Blunt
Boozman
Burr
Capito
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Daines
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johnson
Lankford
Lee
McCain
McConnell
Moran
Murkowski
Paul
Perdue
Risch
Roberts
Rounds
Sasse
Scott
Sessions
Shelby
Sullivan
Thune
Tillis
Toomey
Vitter
Wicker
NOT VOTING--3
Cruz
Enzi
Sanders
The PRESIDING OFFICER. On this vote, the yeas are 50, the nays are
47.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
Cloture Motion
Pursuant to rule XXII, the Chair lays before the Senate the pending
cloture motion, which the clerk will state.
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Senate amendment
No. 3899 to amendment No. 3896 to Calendar No. 138, H.R.
2577, an act making appropriations for the Departments of
Transportation, and Housing and Urban Development, and
related agencies for the fiscal year ending September 30,
2016, and for other purposes.
Mitch McConnell, Roy Blunt, Roger F. Wicker, Marco Rubio,
Lamar Alexander, Richard C. Shelby, Thad Cochran, John
McCain, Michael B. Enzi, Jeff Flake, John Cornyn,
Shelley Moore Capito, Johnny Isakson, Richard Burr, Bob
Corker, Susan M. Collins, John Hoeven.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 3899, offered by the Senator from Kentucky for the
Senator from Texas, to amendment No. 3896 to H.R. 2577, shall be
brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The bill clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Texas (Mr. Cruz) and the Senator from Wyoming (Mr. Enzi).
[[Page S2852]]
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is
necessarily absent.
The PRESIDING OFFICER (Mrs. Ernst). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 52, nays 45, as follows:
[Rollcall Vote No. 74 Leg.]
YEAS--52
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Coats
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Daines
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johnson
Kirk
Lankford
Lee
McCain
McConnell
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Sessions
Shelby
Sullivan
Thune
Tillis
Toomey
Vitter
Wicker
NAYS--45
Baldwin
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Heinrich
Heitkamp
Hirono
Kaine
King
Klobuchar
Leahy
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Peters
Reed
Reid
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Warner
Warren
Whitehouse
Wyden
NOT VOTING--3
Cruz
Enzi
Sanders
The PRESIDING OFFICER. On this vote, the yeas are 52, the nays are
45.
Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
Cloture Motion
Pursuant to rule XXII, the Chair lays before the Senate the pending
cloture motion, which the clerk will state.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Senate amendment
No. 3900 to amendment No. 3896 to Calendar No. 138, H.R.
2577, an act making appropriations for the Departments of
Transportation, and Housing and Urban Development, and
related agencies for the fiscal year ending September 30,
2016, and for other purposes.
Mitch McConnell, Roy Blunt, Roger F. Wicker, Marco Rubio,
Lamar Alexander, Richard C. Shelby, Thad Cochran, John
McCain, Michael B. Enzi, Jeff Flake, John Cornyn,
Shelley Moore Capito, Johnny Isakson, Richard Burr, Bob
Corker, Susan M. Collins, John Hoeven.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 3900, offered by the Senator from Kentucky, Mr.
McConnell, for the Senator from Missouri, Mr. Blunt, to amendment No.
3896 to H.R. 2577, shall be brought to a close?
The yeas and nays are mandatory under the rule.
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) and the Senator from Wyoming (Mr. Enzi).
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 68, nays 29, as follows:
[Rollcall Vote No. 75 Leg.]
YEAS--68
Alexander
Ayotte
Baldwin
Bennet
Blumenthal
Blunt
Booker
Boozman
Boxer
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Cochran
Collins
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Graham
Hatch
Heinrich
Heitkamp
Hirono
Hoeven
Isakson
Kaine
King
Kirk
Klobuchar
Leahy
Manchin
Markey
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Peters
Portman
Reed
Reid
Rounds
Rubio
Schatz
Schumer
Shaheen
Stabenow
Tester
Tillis
Udall
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--29
Barrasso
Coats
Corker
Cornyn
Cotton
Crapo
Daines
Ernst
Fischer
Flake
Gardner
Grassley
Heller
Inhofe
Johnson
Lankford
Lee
Moran
Paul
Perdue
Risch
Roberts
Sasse
Scott
Sessions
Shelby
Sullivan
Thune
Toomey
NOT VOTING--3
Cruz
Enzi
Sanders
The PRESIDING OFFICER. On this vote, the yeas are 68, the nays are
29.
Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
The Senator from Maine.
Amendment No. 3946 to Amendment No. 3900, as Modified
Ms. COLLINS. Madam President, I call up the Blunt amendment No. 3946.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Maine [Ms. Collins], for Mr. Blunt,
proposes an amendment numbered 3946 to amendment No. 3900, as
modified.
Ms. COLLINS. Madam President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To require the periodic submission of spending plan updates
to the Committee on Appropriations)
On page 10 of the amendment, line 1, strike ``. The'' and
all that follows through the period on line 3, and insert the
following: ``: Provided, That such plans shall be updated and
submitted to the Committee on Appropriations of the Senate
every 90 days until September 30, 2017, and every 180 days
thereafter until all funds have been fully expended.''.
Ms. COLLINS. Madam President, I would now like to yield time to
Senator Isakson for a statement.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Madam President, I thank the Senator from Maine for the
recognition.
Amendment No. 3900, as Modified
I want to commend Senator Collins and Senator Reed for their hard
work and great leadership on this amendment, Senator Murray and Senator
Blunt for bringing this issue before us, and the Senate for having the
good sense to invoke cloture on it this afternoon.
If anybody in the audience or in this room doesn't think this is an
emergency, they should have been with Senator Collins and me 2 weeks
ago at the CDC in Atlanta. We spent 4 hours looking at the depiction of
what a Zika outbreak is going to look like if it doesn't stop and if we
don't abate it.
There have already been 1 million cases in the Caribbean, Central
America, and South America and 500 cases in the United States of
America, and it is going to grow. The faster we get our arms around it,
the better off the American people are going to be.
This is a lot of money, but it is only a pittance compared to what it
would cost if the epidemic got out of control and we didn't stop it and
defeat it. This money will go to Labor, Health and Human Services, the
State Department, the CDC, and other entities to provide the education,
training, and information necessary to get control of this disease.
Remember what happened with Ebola. When it broke out and we finally
got involved, only through CDC's ability to educate and also to contain
and control the disease did we finally get our arms around it and stop
the epidemic. The same thing is going to be true with Zika. We need to
contain, control, and get the necessary education to the countries to
see to it that we stop it.
I commend the Senate for invoking cloture on the amendment today. I
commend these two Senators for their hard work, and I am glad we are on
the leading point of the spear. I want everybody to be clear--this is
an emergency. Had we not invoked cloture on this amendment today, in
months we would have had a greater emergency because Zika would have
spread unabated in the Southern United States.
Lastly, I want to give great credit to Senator Collins for all the
hard work she has done on health and human services for so many years
and for her hard work for the CDC. On behalf of Dr. Frieden, we are
glad you finally came and visited. God bless you.
[[Page S2853]]
I yield back.
The PRESIDING OFFICER. The Senator from Maine.
Opioid Epidemic
Mr. KING. Madam President, we just invoked cloture on an amendment to
deal with the funding of an incipient epidemic--an epidemic that has
serious ramifications for our society and for our country--and it is
right that we did that.
I rise today, however, to point out the fact that we are in the midst
not of an incipient epidemic but a real epidemic that since lunchtime
today has killed 15 people in this country. Fifteen people have lost
their lives since the middle of the day today. The epidemic I refer to,
of course, is heroin and opiate drug abuse and addiction. This is a
crisis which is upon us right now.
A month or so ago, we passed with great fanfare the CARA bill, the
comprehensive addiction bill. It was the right thing to do. It was a
good bill, but it had no funding. Passing a bill like that with no
funding is like sending the fire department to a fire with no water. We
cannot deal with this problem until we have the capacity to provide
treatment to the people who need it.
Right now there is a huge shortage of treatment beds. There is even a
shortage of detox beds, let alone treatment. When a person finally gets
to the point where they are struggling with this terribly destructive
disease and they are ready to embrace and take on the treatment, to not
have it available or to have it available at an exorbitant cost is
tragic.
We are losing lives every hour--47,000 people a year--and it is
expanding and exploding, and it is tearing our communities apart.
I am delighted that we invoked cloture on an amendment involving the
Zika virus. It is important that we do so. But we also should be
attending to this crisis that is staring us right in the face and is
tearing our country apart.
I hope we can soon get to an amendment that will allow us to begin
the process of funding the resolution of this scourge before it takes
more lives and before it tears apart more families and communities.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mrs. SHAHEEN. Madam President, today the Senate invoked cloture on an
amendment to provide more than $1 billion in emergency spending to help
combat the Zika virus. I support this effort. I think it is a good
amendment, and I commend our leaders in the Appropriations Committee
for reaching this bipartisan agreement.
However, I join my colleague from Maine, my colleague from West
Virginia, and all of those who are disappointed that the opioid
epidemic is not being treated with the same degree of urgency.
Some Senators on the other side of the aisle have said it is their
preference to deal with the opioid epidemic through the regular
appropriations process. Let me say that I am not encouraged by the
results so far. With all due respect to my colleagues, an extra $1
million here and there for a few programs, which is what we are seeing
in the appropriations process, is not going to address the nationwide
crisis that Senator King has said is going to kill tens of thousands of
Americans this year.
While the HHS appropriations bill is still being drafted, because of
the tight budget caps that are in place for this fiscal year, I am not
optimistic that it will include the type of game-changing funding that
we need to stem the tide of this crisis. Unfortunately, we saw that the
Commerce, Justice, and Science appropriations bill included only minor
increases to programs to address the heroin and opioid epidemic. That
is why we need emergency funding, and we need it now.
In March, the Senate had an opportunity to provide $600 million in
emergency funding to address this crisis, but despite strong bipartisan
support, that amendment was defeated on a point of order. Congress
needs to rise to this challenge, just as it has done during previous
public health emergencies and just as we are doing right now to address
the Zika virus. Just last year Congress approved $5.4 billion to combat
the Ebola outbreak, which killed one American, but in 2014, 47,000
Americans died from drug overdoses. Each day we wait, another 120
people die of drug overdoses. We are losing one person a day in New
Hampshire.
Now is the time to act. I urge my colleagues to reconsider.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. MANCHIN. Madam President, first of all, I thank my good friend
from New Hampshire, Senator Shaheen, for putting in this most needed
funding to fight this epidemic, and I thank Senator King from Maine as
well. We are all fighting it.
My State has been hit the hardest of all the States, and New
Hampshire is right behind us as far as having more deaths from opioid
drug abuse than any other State. If you put what we are asking for into
perspective and look at what we have done over the years since the war
on drugs began about four decades ago, we have spent $1 trillion in the
United States, but we are fighting this war the wrong way. We have all
looked at this as a horrific crime, and we have just kept putting
people away. In that period of time, we spent $450 billion to lock up
these people in Federal prisons and most of them were locked up for
nonviolent crimes.
We need to look at this. This is an illness, and to treat an illness,
you have to have funding. We just talked about Zika, and we have done
it for Ebola. I even checked what we have done with polio. Since we
eradicated polio, we have saved this country $220 billion. Can you
imagine what would have happened if we hadn't? We wanted to have it
eradicated around the world by the year 2000.
The savings is enormous, but the bottom line right now is
productivity. I have the lowest workforce participation in the country
right now in West Virginia. A lot of it is due to the addictions that
people have. In 2014, we had 42,000 West Virginians--including 4,000
youth--who sought treatment for illegal drug use but failed to receive
it. There was no place for them to go. They wanted to change their
lives. They asked in every way possible to do that, but we have no
treatment centers.
This goes a long way to basically help treat an illness which is
absolutely destroying America, not just in West Virginia, New
Hampshire, and Maine, but I am talking about all 50 States. We have an
epidemic we are dealing with today. Yet we are not dealing with it
because we have no treatment, and that is because no one has put the
priorities and values that we have in this country to eradicate this
horrible scourge in our country.
I ask all of my colleagues to please reconsider the funding that is
needed to fight opioid abuse with proper treatment around the country.
I thank the Presiding Officer and yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Brown v. Board of Education Anniversary and Filling the Supreme Court
Vacancy
Mr. KAINE. Madam President, I rise to discuss the pending vacancy on
the U.S. Supreme Court, and I do so on a very momentous day in American
legal history. May 17, today, is the anniversary of the Supreme Court's
decision in the pivotal case of Brown v. Board of Education. On May 17,
1954, the Supreme Court ruled that the promise of equality--stated as
paramount in the Declaration of Independence and then reaffirmed in the
14th Amendment to the Constitution passed in the aftermath of the Civil
War--could not be denied to little school children based on their skin
color. The Brown v. Board case was actually five cases consolidated
together--one from Virginia, one from Kansas, one from Delaware, one
from South Carolina, and one from the District of Columbia.
While most of us know what the Brown case resolved, few remember that
the Brown ruling was in serious jeopardy because of the death of a
Supreme Court Justice and the deep divisions on the Court among the
remaining eight members. It was only through the prompt filling of a
judicial vacancy that the Court was able to come together and render a
ruling in America's best interest.
The Brown case was originally argued in 1952, and the court that
heard the argument was hopelessly divided. In fact, it was so divided
that they asked that the case be reargued in 1953, and then to make
matters worse, Chief
[[Page S2854]]
Justice Fred Vinson died before the reargument. By many accounts, his
death left the Court evenly divided over an issue of the most
fundamental importance. Had the vacancy left by the death of Judge
Vinson persisted, there is no way of predicting whether the Supreme
Court could have even resolved the case. Imagine how different our
history as a Nation would be if the Supreme Court had been unable to
decide on a matter of fundamental importance.
President Eisenhower nominated former California Governor Earl Warren
to fill the vacancy. The Senate did its job, held a prompt hearing, and
confirmed the appointment. Chief Justice Warren then used his skill to
cut through the division and convince his colleagues that the Court
should speak unanimously and say that a child's skin color should not
determine which school he or she should attend. Because the Senate did
its job, the Court was able to do its job, and all of America was
lifted.
I have listened to my colleagues and Virginia citizens about the
current Supreme Court vacancy for 3 months. I have come to this
conclusion: I think the Senate is treading on dangerous ground here. We
are communicating--and I think the communication could be
unintentional--a message to our public that is painful, and our actions
in this high-profile matter are creating pain among many of my
constituents. I fear that a precedent is about to be set that could
undermine all three branches of our government.
I offer these comments today because the Senate can correct the
dangerous message we are sending, and I hope that calm reflection will
call us to honor the great traditions of this body.
The death of Justice Scalia on February 13 created a naturally
occurring vacancy on a Court that is statutorily required to have nine
members. Within hours of Justice Scalia's death, the majority leader
announced a blockade on the vacancy, declaring that no nomination by
President Obama would ever receive a hearing or a vote. This hastily
announced blockade has been described as follows: The majority thinks
the American people should decide on the Presidential race, and
therefore, this nomination should be for the next President to make,
even if that means a Supreme Court vacancy for more than a year.
I want to examine the majority's rationale. What has the Senate done
in other instances when a vacancy has occurred during the last year of
a President's term? Well, that is easy enough to find out. Before
Justice Scalia's death, more than a dozen Justices have been confirmed
during a Presidential year. For the last 100 years, with the exception
of nominees who have withdrawn their nomination, the Senate has taken
action on every pending nominee to fill a vacancy on the Court.
In the past, some Senators have suggested that a vacancy occurring
during the final year of a Presidential term should be entitled to less
deference than other Executive nominations, but that is related to the
question of whether or not a Senator votes yes or no, and, of course,
Senators are free to vote yes or no on nominees. But the refusal to
even consider a nominee is unprecedented.
Beyond the precedent of previous Senate actions, let's look at
article II, section 2, of the Constitution. It says that the President
``shall nominate'' and ``appoint''--``by and with the Advice and
Consent of the Senate''--various officials, including Supreme Court
Justices.
While all agree that the advice and consent provision gives the
Senate the ability to affirm or reject a nominee, there is nothing in
the clause suggesting that the Senate can blockade the consideration of
a nominee, and there is certainly nothing in the clause to suggest that
the President's appointed powers or the Senate's confirmation powers
are somehow limited in the last year of a Presidential term.
Finally, the meaning of the constitutional clause was extensively
discussed as the Constitution was drafted, approved, and ratified by
the States, and Alexander Hamilton's Federalist Paper 76 also discusses
the provision at length. All understood that the advice and consent
provision was an opportunity for the Senate to determine whether a
Presidential nominee for a Senate confirmable position possessed ``fit
character.'' That is the check against Presidential power intended by
the clause. The President, knowing that a Senate would inquire into the
character of a nominee, would not just nominate people purely for
partisan, personal, or regional reasons--wanting to fill it with people
from my State, for example. ``Fit character'' would require that the
President nominate somebody who could pass that scrutiny in the Senate.
``Fit character'' is a phrase with some significant subjectivity to it,
giving each Senator the ability to decide what it means in a given
instance. But the position that the character of the nominee doesn't
matter at all--as evidenced by the majority's view that there would be
no meetings, no hearings, and no vote regardless of the person
nominated for the vacancy--is directly contrary, in my view, to the
intent of the provision.
I look at this, and I believe the asserted rationale that we should
not take up the Garland nomination because the vacancy occurred in the
final year of a Presidential term is at odds with the text of the
Constitution, with the clear meaning of the text, as explained during
the drafting of the provision, and with the clear line of Senate action
in previous cases.
What could explain the blockade of Judge Garland? I obviously don't
know, and I can't comment upon motivations that I am unaware of, but I
do want to discuss how it appears--a perception that we are leaving,
possibly unwittingly, based on my discussions with Virginians. The
current Senate blockade is variously interpreted as an opposition to
the nominee, as opposition to the particular President making the
nomination, or as some effort to undermine judicial independence.
Let's look at those three interpretations that are very commonly held
by Virginians and others. The first interpretation: Is it opposition to
the nominee? I think we can dispense with that pretty quickly. The
blockade strategy is not based on the character of the nominee, Judge
Merrick Garland, and I can assert this safely because the blockade
strategy was announced--no meeting, no hearing, no vote--before the
President even nominated Judge Garland. It was said that regardless of
the character of a particular nominee, they would not entertain a
nomination from this particular President. This is ironic, given that
the nomination for a Supreme Court Justice is fundamentally about the
very essence of justice and that the essence of justice must carry with
it a duty to consider each individual on his or her own merits. The
position that we would refuse to consider Judge Garland on his own
merits seems contrary, to me, to the very notion of justice itself.
Now that Judge Garland has been nominated, we also know that the
blockade is not about the character of the nominee. Judge Garland has
an esteemed record as a prosecutor, private practitioner, and Federal
appellate judge on the D.C. Circuit Court of Appeals. He is the chief
judge on that court. His judicial service alone is approaching the 20-
year mark on a court that most believe is second in importance only to
the U.S. Supreme Court.
I have not seen any Member of the majority assert any credible
weakness in Judge Garland's background, integrity, experience,
character, judicial temper, or fitness for the position. Indeed, the
majority's senior Member, a respected former chair of the Judiciary
Committee, has praised Judge Garland as exactly the kind of jurist who
should be on the Supreme Court.
In my recent interview with Judge Garland, I came away deeply
impressed with his thoughtful manner and significant experience as a
trial attorney and judge. This is no ivory tower jurist, but instead a
man who understands the real-life struggles of plaintiffs and
defendants, lawyers and juries, legislators and citizens, and trial
judges who depend upon the Supreme Court to give clarity and guidance
to the rules that impact the most important issues of their lives.
I think we should give President Obama his due in proposing a nominee
with such impeccable credentials. I reject the first possible
explanation that the majority's opposition is about the nominee. In
fact, a determination that Merrick Garland was not of fit character to
even receive consideration as a Supreme Court Justice would set such a
high bar for appointees that it is hard to imagine anyone ever clearing
it.
[[Page S2855]]
Since the Garland blockade has nothing to do with the character of
the nominee, many perceive that it is instead explained by the
majority's views of this President.
Is there something about President Obama that would warrant his
Supreme Court nominee receiving second-class treatment compared with
past Senate practice?
Could it be the circumstances of the President's election? Some
Presidents have been elected with less than a majority vote of the
American public and have thus been burdened with the notion that they
did not have a mandate from the American public, but President Obama
was elected in both 2008 and 2012 with overwhelming majorities in the
electoral college, and his popular vote margins in both elections were
also relatively strong in comparison with the norm in recent
Presidential elections. So there is nothing about the legitimacy of
President Obama's elections that would warrant treating this
President's nomination different from previous Executives.
This makes extremely puzzling the majority's claim that they want to
``let the American people decide.'' The American people did decide.
They gave President Obama the constitutional responsibility to nominate
Justices to the Supreme Court from his first day in office to his last.
Some may not be happy with the decision, but it is insulting to the
President and it is insulting to the American electorate who chose him,
according to longstanding and clear electoral rules, to demean the
legitimacy of his election.
Could it be the unique unpopularity of this President? I think one
could hypothesize a situation where a President, in the last year of
his term, is so unpopular that a Senate might conclude that the public
is no longer supportive of the Executive, but that is not the case with
President Obama. The President's current popularity is actually quite
strong compared with other Presidents during their final years in
office. So there is nothing about the President's popularity with the
American electorate that would warrant treating his court nominee
different than the treatment afforded to past nominees.
So what could it be about President Obama that would warrant the
blockade of his Court nominee in a manner completely different than the
way the Senate has treated all other occupants of the Oval Office? In
what way is this President different to justify such treatment?
I state again what I have said before. Obviously, I don't know the
answer. I cannot say why the Senate would be so willing to break its
historic practice and, by my reading of the Constitution, to refuse
consideration of a nomination made by this particular President, but I
can say it is painful and offer some thoughts about how it appears to
many of my neighbors, to many of my constituents, as well as to many of
my parishioners with whom I attend church. They reacted with alarm when
news came that certain leaders had declared, soon after President Obama
was elected, that their primary goal was to assure that he would not be
reelected. They watched with sadness as some in Congress raised
questions about whether he was even born in the United States. They saw
some in Congress question his faith and his patriotism. They observed a
Member of Congress shout ``you lie'' at this President during a
televised speech to the entire Congress. They noticed, recently, as the
Budget Committees of both the House and Senate refused to even hold
hearings on the President's submitted 2017 budget--the only time a
President has been treated in such a manner since the passage of the
Budget Control Act of 1974. In short, they are confused and they are
disturbed by what they see as an attack on this President's legitimacy.
I am not referring to an attack on this President's policies, which
should always be fair game for vigorous disagreement, and I have often
attacked this President's policies, but instead what people are worried
about is some level of attack on the very notion that it is this
individual occupying the Oval Office.
This latest action--the refusal to even consider any Supreme Court
nominee afforded by President Obama in his final year, when other
Presidents were granted consideration of their nominees--seems highly
suspicious to them. When that blockade is maintained, even after the
President affords to the Senate a nominee of sterling credentials, the
suspicion is heightened. When the asserted reason is the need to ``let
the people decide,'' thus suggesting that the people's decision to
elect this particular President twice is entitled to no respect, they
are deeply troubled. What can explain why this President--the Nation's
first African-American President--is singled out for this treatment?
Again, I don't know, but we cannot blind ourselves to how actions are
perceived. The treatment of a Supreme Court nomination by this
President that departs from the practice with previous Executives and
that cannot be explained due to any feature of the particular nominee
under consideration feeds a painful perception about motivations. The
pain is magnified when it is in connection with an appointment to the
Supreme Court, whose very building proclaims in stone over its entrance
the cardinal notion of ``Equal Justice Under Law.''
There is a third interpretation of the Garland blockade that is also
troubling. Some see the blockade as just sort of power politics--as an
attempt to slant the Court. The death of Justice Scalia creates concern
among those who fear a natural transition on the Court, so there is an
effort to stop that natural and lawful transition.
The blockade on filling a naturally occurring vacancy, in my view, is
harmful to the independence of the article III branch. Even in the 3
months since Justice Scalia's death, the Court's rulings have shown the
challenges of an eight-member Court. On four occasions already, the
Court has been unable to render a clear decision in a case of great
importance. Since the blockade, if successful, will probably maintain
the artificial vacancy until the spring of 2017, it is likely to happen
in other cases as well. So lower courts, and all persons whose rights
and liberties are subject to rule by this Court, are deprived of the
clarity on Federal issues that the Court was designed to provide, but
it is more than just a hobbling of the Court's ability to decide
individual discrete cases.
Seventy years ago, when Winston Churchill spoke at Westminster
College about the descent of an Iron Curtain across Europe, he defined
the differences between free societies and those driven by tyranny. Key
to his description of free societies was an independent judiciary. It
is an independent judiciary that serves as a bulwark against Executive
or legislative power grabs, protecting the liberties of an individual
from an overreaching Executive or from a majoritarian legislature that
does not fully grasp the rights of minorities. That is what an
independent judiciary is designed to do. I think we all know this
independence of the American judiciary has been one of the great
hallmarks of American democracy.
In my view, the blockade of the Garland nomination undermines this
independence. The Judiciary Act of 1869 sets the composition of the
Court at nine Justices with life tenure, and that statute has remained
in force for 150 years. When President Franklin Roosevelt didn't like
certain rulings of the Supreme Court in the 1930s, he tried to expand
the Court and elbow out older Justices by proposing a forced retirement
age and an expansion of the numbers in that Judiciary Act of 1869.
Everybody understood that FDR's actions were an attempt to attack the
independence of the judicial branch, and so congressional leaders of
both parties stood up to stop him.
I think this current blockade is the legislative equivalent of what
President Roosevelt tried to do. Refusing to consider an Obama
nomination in order to artificially maintain a Court vacancy for more
than a year is as much an attack on the judiciary as trying to expand
it beyond nine members. I hope we would agree with this: Whether an
independent judiciary is attacked by the executive or the legislative
branches, we need to be equally diligent in repelling that attack.
American diplomats work every day around the world trying to convince
other societies of the virtues of the rule of law and the independent
judiciary, but the current blockade, unless corrected, suggests that we
do not practice what we preach. By refusing to fill a naturally
occurring vacancy,
[[Page S2856]]
we send the message that the rule of law and an independent judiciary
are ultimately secondary to having a more favorable or a more compliant
judiciary, even when we have to weaken it to obtain what we want.
I once lived in a country with a military dictatorship that held this
view of the judiciary. The judiciary was not prized for its
independence but instead was priced for its slavish obedience to a few
in control of society. By refusing to fill a Supreme Court vacancy
because a partial and weakened Court is deemed more acceptable than a
full and lawfully constituted Court, we move away from one of our best
traditions--to become more like legal systems that we are working to
change around the world every day. In doing so, we weaken the judiciary
by leaving this vacancy that has already affected proceedings, we
weaken the Executive by hobbling the constitutional power to fill
dually constituted executive and judicial positions, but we also weaken
the legislative body, which has that important duty of checking these
nominees for fitness of character, and by doing it without even being
willing to cast a vote, I think we hurt our own institutional
credibility.
In conclusion, I harken back to 1954. A matter of fundamental
importance to our Nation was before the Supreme Court. The death of a
Justice left an eight-member Court that had already shown it was deeply
divided and likely unable to reach a ruling, but the Senate did its job
and filled the Court and the Court could then render a ruling that
changed the course of American history for the better.
We should learn from that history and do our job. Persisting with
this current blockade and sending these possibly unintentional messages
is deeply dangerous. The refusal to carry out the commands of the
Constitution and the Judiciary Act of 1869, to abide by the Senate
precedents, to fill a naturally occurring Supreme Court vacancy, to
offer the advice and consent that is part of a Senator's job
description, and to entertain a well-qualified nominee--even for a
hearing, much less a vote--will not be viewed favorably in the bright
and objective light that history will shine on all of our actions.
We can fix this. If the Judiciary Committee will hold a hearing, cast
a vote, report Judge Garland to the floor, and then ensure that the
Senate debates this nomination and holds a floor vote, we will uphold
our responsibility. Judge Garland might be confirmed or he might be
rejected, but in taking action--rather than mounting an unprecedented
blockade--we preserve the ability of each Senator to make the judgment
about whether Judge Garland possesses the fit character necessary for
this position. We act in accordance with the Constitution and the
Judiciary Act of 1869, we follow the traditional practices of the
Senate--practices that have served us well, as the case of Brown v.
Board of Education shows--and we cure the painful and dangerous message
that is communicated by the current blockade strategy.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. COONS. Madam President, I rise to follow the eloquent remarks of
my colleague from the State of Virginia and to remark upon 62 years--62
years since Brown v. Board was handed down by our Supreme Court; 62
days since Judge Merrick Garland was nominated by our President to fill
a vital vacancy on our Nation's highest Court. I wish to thank and
commend my colleague, a very able attorney and someone who has argued
cases passionately around a wide range of issues but none so much as
civil rights.
As Senator Kaine rightly pointed out, the history of Brown v. Board
is that a series of cases were brought together from across several
States--including his State of Virginia and my State of Delaware--
gathered together and argued in front of the Supreme Court by Thurgood
Marshall, then chief counsel of the NAACP, and ultimately decided in
1954. Initially, a divided Court was unable to render judgment because
in the spring of 1953, Chief Justice Vinson had died, leaving the Court
then in a similar situation as it is now--divided on a range of vital
and important issues.
The good Senator from Virginia has reminded us that our failure to
act now--our failure to do our job and to follow the dictates of our
Constitution, the ``shall'' language in article II, section 2--the
failure of this body to offer any hearing or vote on this very capable
circuit court judge sends the wrong message, not just here within this
country to our citizens but around the world.
The Senator from Virginia spent time--and it changed his life and his
perspective--in Central America as a younger man in a country where
judicial independence was a fiction on paper. I, too, spent time in the
1980s in a country in Southern Africa known as South Africa, where this
same legal system that existed here under Jim Crow existed there under
the name of apartheid. It is to that country I go in just 2 weeks, with
Congressman John Lewis of Georgia and with the children of Robert
Kennedy, to commemorate the 50th anniversary of a speech given in Cape
Town 50 years ago.
It is a striking moment for us to reflect on the importance and the
power and the centrality of Brown v. Board in wiping away the dark
stain of Plessy v. Ferguson, that obscene legal fiction rendered in
1896 that ``separate but equal'' allowed us to square the horrible
distension of justice in our country of a separation between the races
with the words in our Constitution, the words above the Presiding
Officer, the words above the entrance to our Supreme Court, the words
above the Presiding Officer's desk in our Chamber, ``E pluribus
unum''--from many, one--more importantly, the words above the Supreme
Court entrance, ``Equal Justice Under Law.''
We have these soaring words in our foundational documents and in our
most important government buildings that suggest that we will
``dispense justice equally,'' that we will be gathered from many
differences in backgrounds into one. Yet the reality in this country,
for its initial decades, more than its initial century, was anything
but.
It was 62 years ago today that the Supreme Court of these United
States issued a unanimous decision wiping Plessy v. Ferguson away.
I rise briefly to comment that I grew up in a small town in Delaware
known as Hockessin. It was a so-called ``Colored'' school in Hockessin
that was the basis of one of these cases. There were actually two cases
from Delaware: Belton v. Gebhart from Claymont, related to the Claymont
High School, and Bulah v. Gebhart, relating to the Hockessin Elementary
School. In both cases, a famous lawyer from Delaware named Louis
Redding took their cases to the Delaware courts. A brave judge, Judge
Collins Seitz, rendered a judgment that found the discriminatory
practices in the State of Delaware illegal. It was that case that was
affirmed--of the five gathered--in Brown v. Board.
Although Delaware has a very troubled and checkered racial history,
these cases are ones of which I and my constituents can justifiably be
proud. Moments when the courts of this country have stepped up and
wiped the stain of racism and of legal segregation from our books are
moments of which we can and should be proud.
As my colleague from Virginia pointedly reminded us, for 62 days the
incredibly qualified and capable district court judge nominated by our
current President has waited--waited for an answer from this body,
waited for a hearing before the Senate Judiciary Committee, on which I
serve, waited for a vote. In the century that there has been a
Judiciary Committee of this body, every previous nominee who has not
withdrawn has received a hearing, a vote, or both.
What are we so afraid of in allowing this talented judge to come
forward, to lay his views and his credentials and his experience before
this body or a committee of this body? What is the concern? My
colleague from Virginia has asked and I ask, what is the animating
concern that insists that for 62 or 63 or 64 or more days, Judge
Garland must wait, throughout this entire year perhaps, into next year?
How many cases will remain undecided by an equally divided Court due to
our unwillingness or the unwillingness of many in this Chamber to do
their job, to take up the challenge, to have a hearing, and to cast
their vote?
With that, I simply want to say that it is to me of grave concern
that we have not acted as a body, that we have
[[Page S2857]]
not acted collectively to provide a path forward for this talented,
capable judge. Many in this Chamber may find him not to be capable or
qualified, but without a hearing, how would you know? He has submitted
a full response--thousands of pages--to the questionnaire typically
expected before the Judiciary Committee of any nominee. His record is
before us--abundant, voluminous. He has more experience than any
previous nominee as a Federal circuit court judge. What is the concern
that would prevent us from moving forward?
On this 62nd anniversary of the most important decision, in my view,
in the history of the U.S. Supreme Court, Brown v. Board, I call on my
colleagues to once again show the courage of Louis Redding, of Judge
Seitz, of Justice Warren, and of all of those who rendered central
decisions in the history of this country that allowed our Supreme Court
to operate independent of political interference and capable of making
real the promise above our Supreme Court of ``Equal Justice Under
Law.''
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. BLUMENTHAL. Madam President, I am very honored and I feel very
privileged to be a member of this body today as we commemorate the
anniversary of Brown v. Board of Education. I thank my colleagues, the
distinguished Senator from Delaware, and most especially my very good
friend and colleague from Virginia for his very eloquent and powerful
remarks and also for bringing us together in this colloquy today.
Sixty-two years ago on this day, the Supreme Court unanimously struck
down as unconstitutional the segregation of schools by race, declaring
that ``separate but unequal schools are inherently unequal.'' Today,
that proposition seems so obvious as to be indisputable and the fact of
a unanimous Supreme Court seems inevitable, but it was hardly
inevitable 62 years ago.
It is a triumph and tribute to American justice that it happened and
that it happened at all given the staunch and implacable resistance
that there was to that proposition 62 years ago. In fact, the Supreme
Court courageously stepped forward to advance American justice and
establish a milestone and reestablish the principle that it is
enshrined in our Constitution that every citizen is entitled to equal
protection under law.
The battle to upend years of racial and educational inequity remains
unfinished today. If we emerge from this colloquy with any message, it
must be that the work remains unfinished and there is so much more work
to be done in the spirit and letter of the law.
The culmination of decades-long work and strategy by innovative
lawyers, community organizations organizers, and other advocates of
social change was that decision. It is a tribute to their work as well
and a reminder that individuals can make a difference in our system,
can litigate to a successful conclusion, can advocate principles that
are a matter of moral imperative. It took an act of the Supreme Court,
of an independent judiciary, to declare educational segregation
unconstitutional and integration the law of the land.
As a law clerk on the U.S. Supreme Court in the 1974-1975 term,
working for Justice Harry Blackmun, I had the chance to watch
arguments, some of them on pressing issues of the time, but also to
talk with some of the Justices who watched or even participated in the
Brown decision, including Justice Thurgood Marshall, the chief counsel
for the plaintiffs in Brown.
Anybody who thinks that decision was inevitable should talk to some
of the lawyers who were involved in the litigation and who eventually
advanced it to the Supreme Court and to its successful conclusion and
read the history of the controversy within the Court and the internal
debate that took place about the proper role of the Court and the
principles to be applied. It was far from inevitable. But it also shows
how the branches of government, working together and collaboratively
advancing justice in America, are important to the fundamental dynamic
of our constitutional system.
The Brown decision took enforcement. President Dwight Eisenhower led
that effort in one of the toughest tests in the massive protest in
Little Rock, AR, just 3 years after Brown.
Ten years after Brown, Congress expanded the logic of this great
decision to pass the Civil Rights Act of 1964 making segregation in
public places like restaurants illegal as well.
Reading and reviewing the dynamics of the Court at the time, one
wonders what would have happened if there had been only eight members.
How history might have been different. Justice might have been delayed
and perhaps history changed for the far worse, justice denied as a
result of that delay.
The group of Justices who unanimously issued the decision was no
intellectual monolith; they were members nominated to the Court by
Presidents Roosevelt, Truman, and Eisenhower. Before the Court came an
issue of major significance, which they came together to evaluate on
principles of law that we all share, that discrimination is invidious
and intolerable and violations of the Constitution will be held
unacceptable in the Court.
Today, congressional Republicans, very frankly, hamper the ability of
the Supreme Court to answer important legal questions of our time by
refusing to hold even a hearing or a vote for Judge Merrick Garland.
Their doing so has left the bench of the Supreme Court with only eight
Justices. That lack of a ninth Justice diminishes and in many respects
even disables the Court, as we saw just yesterday in a decision that
might well have been decided otherwise if there had been nine Justices
to give a majority to one point of view or another.
Justice Scalia warned against this very issue, stating that ``eight
justices raise the possibility that, by reason of a tie vote, [the
Court] will find itself unable to resolve the significant legal issue
presented by the case. . . . Even one unnecessary recusal impairs the
functioning of the Court.''
Justice Scalia's foresight was prescient. In two recent cases, even
before the one yesterday, the Court deadlocked, unable to reach a
definitive pronouncement on the law, because of a 4-to-4 tie.
Unnecessary circuit splits cause uncertainty, which in turn hampers the
activities of ordinary citizens, of small businesses wondering what
rules will apply to them, whether it is banking rules or investment
regulations, hampering their ability to plan and create jobs.
The Washington Post recently reported that the Court's acceptance of
new cases has slowed significantly, leaving crucial unresolved legal
questions without definitive answers. That is not how our system is
supposed to work. That is not how the Founders saw it. That is not how
the Supreme Court could resolve the Brown v. Board of Education
challenge. The Supreme Court must have a full complement of Justices to
effectively address these complex, challenging, urgent issues faced by
our Nation today.
I reject the notion that the Senate's refusal to act, as laid out in
no uncertain terms by our Republican colleagues, fulfills our
constitutional obligation. It is our obligation to advise and consent
on the President's nominee. We ``shall'' do so. That is the
constitutional mandate--not when it is politically convenient, not when
we think it is advantageous, but when the President nominates, whoever
the President is, whether it is President Eisenhower nominating Earl
Warren or Presidents Truman and Roosevelt, who nominated other Justices
on the Supreme Court who decided Brown v. Board of Education.
We cannot afford to weaken the Federal judiciary's credibility, the
trust and confidence of the American people in the authority of our
judiciary. Its authority depends on it being above politics. Alas, what
the Senate is doing is dragging the U.S. Supreme Court into the muck of
partisan bickering.
Brown v. Board of Education became the law of the land because of the
U.S. Supreme Court's credibility. The Supreme Court had no police force
to enforce it. It had no armies or mandatory physical force. It had its
credibility and its authority, its moral authority because it was above
politics in the minds of most Americans. That is the reason President
Eisenhower was able to do what he succeeded in enforcing at Little Rock
and the Presidents afterward have done similarly.
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Most importantly, I hope we all take time today to reflect on the
importance of the Brown decision and recognize the grit and courage of
the men and women who fought to end school segregation only 62 years
ago. The best way of honoring their legacy is to do our job and our
duty constitutionally, to fulfill that duty and their legacy by
considering Judge Garland's nomination without further delay.
I yield the floor and recognize my distinguished colleague from New
Jersey.
The PRESIDING OFFICER (Ms. Ayotte). The Senator from New Jersey.
Mr. BOOKER. Madam President, I rise to discuss--along with my friends
and colleagues on the Senate floor--what is a momentous anniversary for
our country, the 62nd anniversary of the Brown v. Board of Education
decision, its legacy, and the work that still remains before us.
I thank my colleagues for standing and speaking on this anniversary
and understanding that it was 62 years ago today the Supreme Court
unanimously affirmed that separate could never be equal, that under the
law--at the very least--every child born in America, regardless of the
color of their skin, had the right to pursue a quality education.
The Court found that separate schooling of children based on their
race was in direct violation of the 14th amendment of the Constitution.
The Court's finding is perhaps best summarized by this excerpt from
Justice Warren's opinion when he said:
We come then to the question presented: Does segregation of
children in public schools solely on the basis of race, even
though the physical facilities and other ``tangible'' factors
may be equal, deprive the children of the minority group of
equal educational opportunities? We believe that it does.
Those were historical words. This not only made clear at the time
that the deep and profound illegality of segregation was real, but it
set a legal standard for generations in posterity that reflects our
deepest held American values, that we as a nation believe in equality.
We as a nation believe in our interdependency to one another.
In the decades since the Brown ruling, the implementation of the
Court's decision has contributed to a lot of progress. Frankly, I stand
here today because of the progress and momentum that was exhibited by
that decision.
Right before Brown v. Board of Education, only about one in seven
African Americans, then compared with more than one in three Whites,
held a high school degree.
Today we have come so far the Census Bureau reports that 87 percent
of Black adults have a high school degree, nearly equal to that of
Whites, which are at 89 percent. Before Brown, only about 1 in 40
Blacks earned a college degree. Now, more than one in five Black
students are going to college. This is extraordinary progress we have
seen in our country, something we should all celebrate.
Under the law, at the very least, the Supreme Court clearly affirmed
all Americans' right to a quality education and in doing so affirmed
equal value, dignity, and worth of our kids.
However, it is also worth reflecting on the anniversary of Brown that
our Nation has struggled to live up to these standards in full. Brown
advanced a civil rights movement that helped desegregate many parts of
American society, but we still have work to do. Let us take this
anniversary to recognize not just our progress, to celebrate not just
that milestone, but to understand that the work of equality, the work
of recognizing the value, the worth, and how much we need each other as
a community still goes on.
In fact, just yesterday, six decades after the Supreme Court in Brown
struck down the doctrine of ``separate but equal,'' a Federal judge
ruled that a school district in Mississippi was continuing to operate a
segregated, dual secondary school system: one set of schools for Whites
and one set of schools for Blacks.
Across the country right now, about 40 percent of Black and Latino
students attend intensely segregated schools--meaning more than 90
percent minority student body--and White students are similarly
segregated from their peers of color. Only 14 percent of Whites attend
schools that one would consider multicultural, multiracial, and
reflecting the diversity of our country, and too many of our schools
continue to fall short of our low-income and minority students. In
other words, too many of our students of color and of low-income
students are concentrated in poor-performing schools.
More than 1.1 million American students are attending over 1,200 high
schools in our Nation that fail to graduate one-third of their
students. To me, this is an outrage. It is an immoral affront to whom
we are. We still have work to do.
Our Nation is still struggling to live up to the ideals and, indeed,
the judicial standards set by Brown in the realm of education in many
ways because of our failure to live up to this standard in so many
other areas of our American life.
There still exists, in the words of Dr. Martin Luther King, that
``Other America.'' Dr. King spoke of this in the year before I was
born--in 1968--about the ``Other America.'' He spoke of the duality
that persisted, the disparities in housing, education, employment, and
in income. He spoke of what he referred to very pointedly as the myth
of time, the misguided idea that only time can solve the problem of
racial injustice, the idea that things will work out for themselves.
As happy as I am about the progress we have made as a country, I have
to say that we still have so much work to do almost 50 years after King
spoke those words. Time has not solved the problem. There remain
challenges in our country. This duality is more subtle in some ways
than it was in 1954, but there still exists injustice in America. From
housing to education, de facto segregation along socioeconomic and
racial lines has blended together, in many ways replacing what was then
de jure segregation.
Census data has shown that residential segregation by race has
declined very slowly but that Whites still live largely in
neighborhoods with low minority density. People of color still live in
neighborhoods with high minority density. Many of these neighborhoods
were designed through policies that were discriminatory against
minorities. We still are seeing the legacies of those policies from
redlining to FHA policies, to HUD policies that were designed to create
segregation. The legacy of that still exists in segregated
neighborhoods today.
While poverty rates among African Americans has fallen over the past
half century--something we should be proud of--Black poverty rates are
still more than double that of Whites. That means the same for kids
today. Children of color are often twice as likely to be poor as White
children.
In fact, one out of the three Hispanic children growing up today are
growing up in poverty. One in six African-American children live in
what is called extreme poverty on less than $8 a day.
This is not who we are as a nation. Our children are our greatest
natural resource. In a global, knowledge-based economy, when we are
competing against other nations from Germany to Japan, in this kind of
economy, the most valuable natural resource a nation has is not oil or
coal or gas, it is the genius of our children.
Many people think Brown was about achieving greater justice for Black
people, but what we really understand--especially in retrospect--as we
see African Americans now contributing in every area of life, the
reality is this was about bringing justice to all of America.
Brown was saying that, hey, we as a country cannot stand if we are
apart because a house divided does fall. Brown was saying the truth is,
we do better when we are together, like the old African saying that
says: If you want to go fast, go alone. But if you want to go far, go
together--because we as a country need each other. It is like those
words on the Jefferson Memorial, written in our Declaration of
Independence, when we knew--to make this country work--we needed one
another, so much so that those Founders pledged to each other their
lives, their fortunes, and their sacred honor.
In this competitive nature, we cannot afford to waste things. Worse
than the gulf coast oilspill, we are wasting the potential of our
children when we leave so many floundering in poverty and lack of
educational opportunities.
[[Page S2859]]
Children growing up in poverty right now have dramatically negative
life outcomes compared to people who are not growing up in poverty. In
fact, right now in America, where 20 percent of children live in
poverty, only 9 out of every 100 kids born in poverty will make it to
college, often an index of being able to be successful, manifesting
your genius, finding greater ways to contribute to the whole.
We have work to do. In particular, we have work to do in an area that
drives so much of the injustice in our country. One of the great ways
we are seeing injustice in my generation that was not the case in my
parents' generation, that was not a reality in the 1950s, has been the
criminal justice system. Something has happened and exploded. Injustice
in our country is growing like a cancer on the soul of our country.
The same Supreme Court where that great case was decided, where
written above the wall is ``Equal Justice Under Law,'' we now see a
nation that has a criminal justice system that is not affording equal
justice to all Americans.
Unfortunately, we see that often falling among racial lines. We have
this explosive drug war, which has not been a War on Drugs, but it has
been a war on people, particularly the most vulnerable people in our
society, from people who are addicted to substances, from people who
have mental illnesses, from people who are poor, and, yes,
disproportionately directed toward minorities.
We now see a criminal justice system where we know, based upon data
analysis, there is no difference between Blacks and Whites in usage of
drugs. In fact, there is no difference in selling drugs between Blacks
and Whites, but the reality is, if you are African American in this
country, you are 3.7 times more likely to be arrested for those drug
crimes.
If you are churned into the criminal justice system as a result of
those arrests, just one arrest for a nonviolent drug offense--something
that the last two Presidents have admitted to doing--and you are
arrested for that, then you find yourself in a world where, as the
American Bar Association says, you have literally 40,000-plus
collateral consequences, where you find it exceptionally difficult to
find employment when you finish with your sentence. You find it
incredibly difficult to get a loan to perhaps start a business, to even
attempt to get a business license or a Pell grant. If you can't feed
yourself, in many cases, you find it hard to even get food stamps or to
find public housing assistance.
We now live in a nation where we have so overincarcerated
disproportionately some areas of our country, that today 1 in 13 Africa
Americans are prevented by law from even voting. They have lost their
right to vote because of a felony conviction. In some States, the
overincarceration for drug crimes is so great that we see, in places
such as Florida, that one out of every five African Americans has lost
their right to vote.
This isn't just affecting those people who are churned into the
system, it is affecting their children as well.
Today in America, one in nine Black kids are growing up with a parent
behind bars, which means it affects their financial well-being and it
affects their ability to rise up out of poverty because they are being
thrust down into it. In fact, a recent study has shown that we as a
country--as a whole--would have 20 percent less poverty if we had
incarceration rates similar to those in other industrial nations.
So here we celebrate the anniversary of this momentous decision that
took a huge step for our Nation in the march toward justice and
equality, but because of staggering injustices like we see in our
broken criminal justice system, kids often struggle more in school and
are poorer and have fewer opportunities for success.
So 62 years after Brown, we know our schools don't exist in vacuums.
They exist because of the communities around them. When communities of
privilege have the same amount of violations of drug crimes as
communities of poverty, yet the communities of poverty experience a
criminal justice system that has so much more incarceration, we are
often condemning children to having greater hills to climb and greater
mountains of injustice in front of them.
I stand here on this day to celebrate so much this great decision but
also to remind us that we have work to do in this country until we can
begin to live up to this ideal of patriotism, which is love of country
and which to me necessitates that we love each other. We don't always
have to agree with one other. We don't always have to get along. But we
have to recognize that every one of us in this Nation has value, has
worth. We need each other, and we need our children to do well because
if my neighbor's child loses, I lose. If they go to prison, I pay. But
if they succeed--if they become a teacher, an artist, a biologist, an
inventor, a businesswoman--then they contribute to this country and my
children benefit because your children succeeded. That is the story of
America.
We cannot afford to leave people behind as we, as a nation, strive
for excellence and greatness. We cannot be a nation that is truly
reaching its potential if we are wasting so much of that potential on
the sidelines.
I would be remiss if I did not also speak to a process issue. While
we are still working to fulfill the vision of Brown, it is more urgent
now than ever that we have a fully functioning Supreme Court. We were
fortunate to have had a functioning Supreme Court in 1954. There were
nine Justices doing their job, a President willing to do his job, and a
Senate--all working in a time of great tumultuous change in our Nation.
People were focused and steadfast--in both parties--toward creating
greater justice. With people in their seats, in their jobs, I have
faith in America and in our ability to get it right.
We need to make sure that today we give every opportunity to get the
job done, to do the work that is necessary. It is important that we
fill positions and vacancies, and the one on the Supreme Court now is
clearly needed.
So today is an important day of remembrance, but history shows that
we cannot simply get stuck applauding our past. The glory and greatness
of ancestry is truly worthy of our reverence. But if we are to honor
those who struggled before, if we are to honor those milestones, if we
are to celebrate the history that shows us at our best when we came
together--Black American, White American, Latino American, Indian
American, Asian American--if we are to celebrate those great days of
the past, we must celebrate them not just with cheers and remembrances
but by redoubling our work in accordance with those values.
We must have a sense of urgency. Time is not neutral. We must use it.
We cannot just count the great days of the past. We must make this day
count as we continue the work of our Nation, as we continue to be the
country that we say we are--a nation of liberty and justice for all.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Honoring Police Detective Brad Lancaster
Mr. MORAN. Madam President, I rise this afternoon in the middle of
this debate on an appropriations bill because of the timing of a
tragedy in our State and the reality that this is a week of importance
to reflect upon what happened in Kansas just a few days ago.
I wish to honor the life of Police Detective Brad Lancaster. He was a
member of the Kansas City, Kansas Police Department, and he was killed
in the line of duty. On May 9 of this year, Detective Lancaster joined
Kansas City, KS, patrol officers in responding to a call about a
suspicious person. When law enforcement arrived, the suspicious person
fled into a field where Detective Lancaster exchanged gunfire and was
hit twice. Unfortunately, ultimately, he died from his injuries.
Detective Lancaster gave his life to keep his community safe, and he
deserves our highest respect and appreciation, our love and care for
his family, for his service, and for his sacrifice. His friends,
family, and neighbors remember Brad Lancaster's commitment to his
community and its extension beyond his 9 years of service to the Kansas
City, Kansas Police Department.
Before joining the police department, Brad served in the U.S. Air
Force and completed two tours of duty abroad, including one in Kuwait
during Desert Shield. Neighbors say Brad was a family man and one who
was always there to offer a helping hand.
Detective Lancaster is survived by his wife Jamie and two daughters,
[[Page S2860]]
Brianna and Jillian. I join the Kansas City community and law
enforcement agencies across the country in our prayers for Detective
Lancaster and his family as we mourn his death.
This tragic loss occurred just prior to National Police Week, a time
in which we celebrate those who leave their homes and families each day
and put their lives on the line to keep our neighborhoods safe. So
today, during this National Police Week, and especially in the wake of
this tragic death in Kansas City, I wish to express my sincere thanks
and appreciation to American law enforcement officers and their
families and to thank them for working tirelessly amid dangerous
conditions for the sake of others and for upholding the law and for the
burdens they shoulder and the sacrifices they make on a daily basis. We
owe so much to these everyday heroes.
Law enforcement officers perform some of the most difficult and
hazardous jobs in America. A routine traffic stop can turn into deadly
gunfire, a shootout without warning. Members of this legislative body
and communities across America alike must do everything we possibly can
to prioritize and protect the lives of those who protect us.
Federally, efforts like the Justice Assistance Grant Program and the
bulletproof vest grant program help enhance the safety of our law
enforcement officers, and Congress's continued support of these efforts
is important. This body passed the Fallen Heroes Flag Act, which was
signed into law on Monday. This week, I hope the Senate will
unanimously adopt a resolution to express appreciation to the police
officers and honor each of the 123 who were killed in the line of duty
last year.
Support and appreciation for law enforcement must be delivered not
only in the communities where officers have been killed but to every
officer every day. When we as Americans commit to the safety, training,
and support of law enforcement, we can help to secure our streets,
strengthen our communities, and, hopefully, reduce the number of deaths
in the line of duty.
May Kansas City, KS, police detective Brad Lancaster and each of
those fallen heroes rest in peace.
Madam President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. McCAIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Madam President, I ask unanimous consent to address the
Senate as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of Eric Fanning
Mr. McCAIN. Madam President, I am here with my good friend from
Kansas and dedicated Member of the U.S. Senate--an expert on national
security, a person who has served with honor in the U.S. Marine Corps,
and has served in this body and in the other body honorably in
positions of responsibility. Where we may have had a disagreement, my
friend has shown he is a man of conviction regarding the detainees from
Guantanamo coming to the United States of America. But he also
understands fully the importance of the position of the Secretary of
the Army.
Senator Roberts and I have worked closely together on this year's
Defense Authorization Act to ensure the administration does not have
the authority to release or transfer detainees on the mainland.
Unfortunately, the administration has failed for over 7 years to
present a substantive plan on how they intend to close Guantanamo Bay,
to me, to the Congress, to my colleagues, or the American people.
Thanks to Senator Roberts' efforts, this year's bill extends the
prohibition to any reprogramming request to transfer or release
detainees. These provisions confirm that President Obama will not be
able to move detainees to the mainland of the United States of America
in the coming year.
I want to point out that I understand Senator Roberts' emphasis and
value that he places on Fort Leavenworth. Fort Leavenworth is the
intellectual center of the United States Army. This is where General
David Petraeus spent 2 years developing strategy for the surge--at Fort
Leavenworth. This is where the up-and-coming leaders of the U.S. Army--
and other services as well, but primarily the U.S. Army--go to get
their training, their intellect, and their ability to lead. So I can
fully understand why my friend from Kansas would be adamantly opposed
to the transfer of detainees to Fort Leavenworth, which would change
the complexion and the makeup of that very important place in the past,
present, and future of the U.S. Army.
So I thank my colleague from Kansas for his agreement today. I would
ask him to say a few words before I ask consent that this nomination be
considered.
Again, I appreciate my old friend whose passion, whose commitment to
the people of Kansas is without equal--which also accounts for the fact
that they have sent him here to represent them on several occasions.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. ROBERTS. Madam President, I thank my colleague and my good friend
from Arizona for enabling me to make a few remarks to address the
nomination of Mr. Eric Fanning to serve as Secretary of the Army.
I have pledged to the people of Kansas that I would do everything in
my power to stop President Obama from moving terrorist detainees to
Fort Leavenworth, KS. The Senator from Arizona has certainly described
the situation very well: It is the intellectual center of the Army. I
believe today that I can tell Kansans that the threat from this
administration will go unfulfilled.
Last week, in a private meeting with Deputy Defense Secretary Robert
Work, I received the assurances I needed to hear to release my vote on
Mr. Fanning. Make no mistake. I think President Obama's threat to act
by Executive order still remains. However, Secretary Work has assured
me that, as the individual charged with executing a movement of
detainees to the mainland, he would be unable to fulfill such an order
before the close of this administration. Practically speaking, the
clock has run out for the President.
As I have stated on this floor and to my good friend and colleague,
the distinguished Senator from Arizona, my issue has never been--let me
make this very clear--with Mr. Fanning's character, his courage, or his
capability. He will be a tremendous leader as Army Secretary and will
do great by our soldiers at Fort Leavenworth, Fort Riley, and--let me
emphasize--every soldier serving our Nation today.
I just talked to Mr. Fanning this afternoon and let him know I was
releasing this hold and wished him good luck on his speech to the
graduates of West Point. I look forward to voting for Mr. Fanning, who
has always had my support for this position.
I am happy to support his nomination today with these new assurances
from the administration and from the chairman and ranking member of the
Senate Armed Services Committee to work with me to strengthen
provisions on funding for the transfer of detainees to the mainland in
this year's National Defense Authorization Act. I have worked closely
with Chairman McCain and Ranking Member Reed. I look forward to
completing work on an authorizing bill shortly. Additionally, the
Senate Appropriations Committee is committed to prohibiting funding for
construction or modification to any facility in the United States for
the purpose of housing detainees in this year's MILCON funding bill
currently on the floor.
With the clock running down on the last months of the Obama
administration, it is increasingly improbable that this administration
could bring high-value terrorists and their associated risks to an
American community like Fort Leavenworth, KS.
The bottom line is this: We have run out the clock, and Congress
looks to prohibit this administration from moving detainees to the
mainland at every turn. As the Secretary of Defense and the Attorney
General have testified before Congress, moving detainees to the
mainland is prohibited by law and will remain so through the end of
this President's term.
I again thank my friend and my colleague, Senator McCain, for working
[[Page S2861]]
with me to work this out. My congratulations to Secretary Eric
Fanning--Army Secretary Eric Fanning.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, I again thank my old friend from Kansas
for his agreement to move forward. I look forward to continuing our
long, many years' effort together to keep this Nation safe.
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