[Congressional Record Volume 162, Number 83 (Wednesday, May 25, 2016)]
[Senate]
[Pages S3163-S3167]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017--MOTION TO
PROCEED--Continued
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Filling the Supreme Court Vacancy
Mr. WYDEN. Mr. President, I have waited to give this speech for
weeks, waited for the rhetoric to die down after the untimely and
unexpected passing of Justice Scalia, and waited to speak about the sad
state of affairs out of a hope that no more words would be necessary
before this Senate acted.
It was my fervent hope that the initial reaction to Justice Scalia's
death was due to the shock and the grief at the loss of a conservative
icon.
I, like many of my colleagues, were publicly mourning the loss, and I
assumed that my colleagues were simultaneously realizing that after
decades of trending to the right, it was now more than likely that the
Supreme Court was going to shift back to a more centrist, progressive
point of view.
But now it appears that the Senate has descended into an ``Alice in
Wonderland'' world where the Senate cannot even agree on how many
Supreme Court Justices make the Court functional. Throughout our
history, in the Senate there have been previous attempts to attack the
Court by, on the one hand, denying it members, or, on the other hand,
packing the Court. In those instances, this once august body has stood
together and always protected the sanctity of the Court--but not today.
The Senate is not only displaying contempt for the Court, but it is
demonstrating contempt of its constitutional responsibilities. It is
hard for the people we are honored to represent to make sense out of
much of what goes on here--who serves on the subcommittee that always
sounds like the subcommittee on acoustics and ventilation, what a
motion to table the amendment to the amendment to the amendment
actually means--but this is an issue the American people get.
We know there are supposed to be nine Supreme Court Justices and the
Senate ought to do its job and ensure that the Court can function
without wasting years of people's lives and dollars by allowing cases
to be undecided through deadlock.
I can state that I am going to be home this weekend for townhall
meetings. At these townhall meetings, I hear from citizens who are
exasperated.
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They tell me this in the grocery store, in the gym, and in other places
where Oregonians gather. They cannot understand how a U.S. Senator can
ignore the responsibility to advise on a Supreme Court nominee and
remain true to his or her oath.
Here is what Oregonians know for sure. They understand that the
President of the United States is elected to a 4-year term, not a 3-
year term and some number of days--4 years. We learn it in the first
quarter of high school civics class. Oregonians and Americans
understand that it is the President's job during that 4-year term to
fill vacancies on the Court, and Oregonians understand that it is the
Senate's job to advise and consent on the nomination by holding
hearings and then having an up-or-down vote.
The President has fulfilled his duty. The Senate is utterly failing
its responsibility. We have a nominee--an eminently well-qualified
nominee. Our President pro tempore in the Senate, who is widely
respected, called him ``highly qualified'' and described him this way:
His intelligence and his scholarship cannot be questioned.
. . . His legal experience is equally impressive. . . .
Accordingly, I believe Mr. Garland is a fine nominee. I know
him personally, I know of his integrity, I know of his legal
ability, I know of his honesty, I know of his acumen, and he
belongs on the Court. I believe he is not only a fine
nominee, but is as good as Republicans can expect from this
administration. In fact, I would place him at the top of the
list.
Those are the exact words of our President pro tempore with respect
to this nominee.
The then-chairman of the Judiciary Committee called him ``well
qualified,'' even though he objected to bringing the Court he was being
appointed to up to its full complement of Justices.
But despite having a fully qualified judge vetted and praised by many
of their colleagues, this intemperate rhetoric about blocking the Court
has now solidified into an indefensible position. That is why after
waiting for weeks, I am on the floor this evening.
The first blow is now well known and often quoted. The majority
leader said:
The American people should have a voice in the selection of
their next Supreme Court Justice. Therefore, this vacancy
should not be filled until we have a new President.
This was said at a time when other officials were releasing
statements offering condolences to the Justice's family, which includes
26 grandchildren.
In some respects this reaction should have been expected. When
President Obama took office, it seemed that the goal of some was to
oppose anything he did, however reasonable. Senators such as myself who
have been here long enough to see the ebbs and flows of the Senate
figured that this stance was probably just a temporary slump. Senators
put in long hours and travel endlessly to make a difference on issues
that are important to them and to their States. Even if the solemn
responsibility and constitutional duty with which they are entrusted
weren't enough to encourage action in this serious situation, it would
seem, for the sake of our country and our people, that many here hoped
this body would find its way back again.
Unfortunately, that has not been the case. So the majority leader's
response to the death of Justice Scalia becomes yet another example of
the scorched-Earth approach to politics the far-right has taken since
the very beginning of the Obama Presidency. It is a sad and unworthy
response to Americans who expressed their will at the ballot box.
Many Americans list choosing a Supreme Court Justice as one of their
leading reasons for choosing a Presidential candidate. Sometimes--many
times--this is given as the most significant reason for voting for a
President. In the last Presidential election, the American people chose
Barack Obama as the duly elected President of the United States. I
state this because, for many of my colleagues, that fact somehow seems
to have just vanished from their minds, or perhaps there is just a
refusal to recognize the results of the 2012 election. Americans chose
President Obama to be the Commander in Chief, to administer the laws,
and, yes, to appoint a new Supreme Court Justice for any vacancies that
occur between January 20, 2013, and January 20, 2017. The unanimous
position or near unanimous position of the majority is that elections
don't really seem to matter, that the rule of force becomes the rule of
law, and saying ``no, we will not'' is an acceptable response for being
asked to fulfill constitutional responsibilities. Basically, this
position disenfranchises the constitutionally ratified choice of more
than 65 million Americans because the majority in the Senate simply
doesn't agree with them.
This is not a response worthy of U.S. Senators. It is choosing party
and ideology over the needs of our country, and it is a political
choice that many of my colleagues are beginning to understand they
cannot support.
My colleagues have said: It is not the position; it is the principle.
But this is a position without principle. It is really pure politics--
pure politics of the worst kind. It calls into question whether
perpetrators can effectively do their jobs as Senators going forward.
Today the Senate, this venerable institution, continues to find
itself in the hands of the most insidious form of politics--small ``p''
politics. It is the kind of politics that seems just devoid of reason,
revolving around what seems to most Americans to be a truly
straightforward portion of the Constitution.
Article II, section 2, paragraph 2, of the Constitution states:
[The President] shall have Power, by and with the Advice
and Consent of the Senate, to . . . nominate, and by and with
the Advice and Consent of the Senate, shall appoint . . .
Judges of the Supreme Court. . . .
Now, I am a lawyer in name only. I don't profess to be a
constitutional scholar. But at this point, I am one of the longer
serving Members of the Senate, and I have placed a special priority on
working with colleagues across the aisle, trying to find common ground,
recognizing that the Senate is at its best when colleagues work
together. But to my mind, the current approach taken by the majority
toward the President's duty to nominate a Supreme Court Justice and the
duty the Senate has to advise and consent on the nominee has led this
Senate to an unprecedented and dangerous situation. It seems to me that
by denying Judge Garland a hearing, we are denied the opportunity to
ask the nominee questions to which the American people are owed
answers.
The current position of refusing to ask those questions and hear
those answers is an insult to our form of government, one understood by
originalists, strict constructionists, and liberal interpreters alike.
The Senate's decline has been particularly vivid in the case of
judicial appointments. The U.S. Court of Appeals for the District of
Columbia is the primary judicial forum for appeals of Executive and
regulatory actions prior to the Supreme Court. As such, it has become
the focus of ideologues who oppose environmental regulations, consumer
regulation, anti-trust, and many other hallmarks of our system of
government for the past century.
When three vacancies opened on this court and Presidential
appointments were made, Senate Republicans proceeded to filibuster each
and every one of those nominees, claiming--in my view ridiculously--
that the President was engaged in ``court packing.''
Now, in the interest of fairness, court packing is the reprehensible
course of action chosen by a liberal icon, President Franklin D.
Roosevelt, when faced with a court that opposed his will. That attempt
was a dangerous time for our constitutional system of checks and
balances and must be remembered, lest it be repeated.
Not only was it dishonest to apply this term to the regular process
of filling existing vacancies, the accusers were, in fact, attempting
to accomplish FDR's same goal of bending a Federal court to their will
in a blatant attack on our system of checks and balances.
Today, we are witnessing another attack on the Constitution in this
refusal to do our job and proceed to the confirmation process for Judge
Garland.
This is a grave assessment, and maybe I am being a bit too harsh to
colleagues in laying their refusal to duty on purely political grounds.
So I want to just take a couple of minutes to unpack some of the
justifications that have been given for what we have heard. Some
Members have argued there is a longstanding tradition that the Senate
does not fill a Supreme Court vacancy during a Presidential election
year. This has been referred to as an ``80-year precedent'' and as
``standard practice.''
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Unfortunately, that turns out not to be the case. There is no such
precedent. Or, I would say, there is no such precedent unless you
define your terms so narrowly that the concept of precedent becomes
meaningless. This can be contrived, for example, by limiting the
discussion to nominations made during a Presidential election year
rather than nominations considered during a Presidential election year.
However, that is like saying: We never previously filled a Supreme
Court vacancy in a year in which Leonardo DiCaprio won an Oscar and
Denver won the Super Bowl. This is true enough, but it covers such a
small set of cases that it provides no meaningful guidance. If
anything, the relevant historical precedent favors the Senate
considering a nomination to fill the current vacancy.
Since 1912, the Senate has considered seven Supreme Court nominations
during Presidential elections. Six of the nominations were confirmed:
Mahlon Pitney in 1912; Louis Brandeis and John H. Clarke in 1916;
Benjamin Cardozo in 1932; Frank Murphy in 1940; and the most recent
example, Anthony Kennedy in 1988, who was nominated by President Reagan
and confirmed unanimously by a Senate in which Democrats held the
majority.
In one other case, that of Abe Fortas in 1968, the nomination was
rejected in an election year. However, even then, the Senate did its
job. It held hearings, reported the nomination from committee, voted on
whether to invoke cloture on the nomination on the Senate floor.
In the face of this historical record, some Senators have argued
another point. They have invoked the so-called Biden rule, based on a
speech that Vice President Biden gave on the Senate floor in 1992 when
he was chairman of the Senate Judiciary Committee. In that speech,
according to some Members, Senator Biden established a binding rule
that the Senate should never consider Supreme Court nominations during
Presidential election years.
First, as discussed above, there is no such thing as a binding Senate
rule. We make them. We break them. We change them. It is the
flexibility of this institution that has allowed it to continue to
serve Americans for 225 years and the current inflexibility of my
colleagues that threatens to bring it to harm.
Now, let's look at Senator Biden's 1992 comments in perspective. He
gave a speech, perhaps intemperate, but in 1988, as I just described,
he led the Senate in confirming Justice Anthony Kennedy.
Further, in 1987 and 1991, when Presidents Reagan and Bush submitted
the highly controversial nominations of Robert Bork and Clarence
Thomas, the Senate Judiciary Committee, chaired by then-Senator Biden,
held hearings on the nominations and took them to the floor for up-or-
down votes. So when Senator Biden chaired the Judiciary Committee, he
always provided a Republican President's Supreme Court nominees with a
hearing, a vote in committee, and a vote on the Senate floor.
It is also important to consider the overall point that Senator Biden
was making in 1992. The Supreme Court was about to adjourn, which is a
time when Justices frequently announce their retirement. Senator Biden
was arguing that there should not be a trumped-up retirement, designed
to create a vacancy for which the President would submit an
ideologically extreme nominee as ``part of a campaign to make the
Supreme Court an agent of an ultra right conservative social agenda
which would lack support in the Congress and the country.''
Senator Biden was arguing against partisanship. He was counseling
restraint. He said that ``so long as the public continues to split its
confidence between branches, compromise is the responsible course both
for the White House and for the Senate.''
Noting his support of the nominee, though nominated by an opposing
President, Senator Biden was urging both sides to step back from
partisan ideological warfare. Senator Biden urged Congress to develop a
nomination confirmation process that reflected divided government by
delivering a moderate, well-respected nominee who would be subject to a
reasonable, dignified nomination process.
Senator Biden went on to say, ``If the President consults and
cooperates with the Senate or moderates his selections absent
consultation, then his nominees may enjoy my support, just as did
Justices Kennedy and Souter.''
That is precisely the approach that President Obama is following
here--moderating his selection. In nominating Judge Garland, the
President has not politicized the process. The President has not
nominated some left-wing ideologue who thrills progressives but angers
conservatives. You already heard what I quoted directly from our
esteemed friend, the President pro tempore of the Senate, Senator
Hatch. The President has gone to the middle, seeking compromise. He has
nominated someone who is widely regarded as sound and moderate and
capable. Indeed, not long ago, leading Republican Senators cited Judge
Garland as the very example of the type of person they were hoping the
President would nominate.
Judge Garland is the kind of person about whom my colleagues on the
other side of the aisle said: This is the kind of person we would
really like to see for this job.
Now, there have been other attempts to defend the indefensible, and
they all go back to the facts that I have just outlined. No matter the
politics, no matter your concern about a primary challenge from the
right, no matter the faint hope that a Member of your party might win
the White House and nominate an ideological kindred spirit, no matter
the pressure to choose party over country, it is time to do our
constitutional duty, hold hearings, ask questions, get answers, and
vote on the nominee.
Perhaps, as with Abe Fortas, the nominee will be rejected. If that is
the Senate's will, so be it. But denying a duly nominated candidate a
responsible and dignified confirmation process is choosing to further
endanger the people we serve and the body that we serve in.
Finally, every Republican Member must know that having a meeting or
calling for hearings and a vote without taking any action to make it so
is pretty much naked politics, and Americans are not going to be
fooled. If Members of the majority actually wish to see the Senate do
its job, they can force the Senate to make it happen by denying the
leadership the ability to act on other less pressing matters until they
take up this responsibility.
To go home and claim that you would like hearings--that you would
like a vote--without taking action to make it happen is simply lip
service to the constitutional responsibility of a Senator.
I am going to close with just a couple of last thoughts. My
colleagues have the opportunity to redeem this body. My colleagues have
repeatedly said: It is not the position; it is the principle. But it
was understood during FDR's time, and it should be understood now, that
threatening the makeup of the Supreme Court is a position without
principle.
Intemperance appears to be the hallmark of political rhetoric in this
day. Somehow, if it is loud and intemperate, that is what people are
going to pay attention to. But this sort of intemperate rhetoric is
certainly corrosive to this institution.
The Senate still has an opportunity to sober up, regardless of what
was said, buckle down, get to work, hold hearings, and vote on a
nominee. Political rhetoric can be forgiven. Allowing intemperate
rhetoric to control the solemn responsibility of every Senator is
unforgivable.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. ROUNDS. Mr. President, I rise today to speak about the National
Defense Authorization Act of 2017, or the NDAA. This bill was reported
out of committee 2 weeks ago with 100 percent support from our friends
across the aisle and nearly unanimous support from the majority party.
I am thankful for the leadership of Chairman McCain and Ranking
Member Reed. I think they have done a marvelous job. These are two
veterans who have served their country well before becoming Members of
this body. As Members of this body, they have worked very hard to find
consensus between Republicans and Democrats with regard to how we work
to prepare an authorization bill for funding for our military.
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The reason I am here today is I think it is important to share my
thoughts about the need to move forward with a discussion of the
National Defense Authorization Act on the floor of the Senate in an
appropriate timeframe.
For those individuals who wonder how the Senate works, sometimes we
find it frustrating because we would like to move on. And as my friend
the Senator from Oregon just indicated, they would like to have votes.
In this particular case, he was suggesting a vote on the Supreme Court,
but on that one there are challenges and there are concerns on the part
of Members of the majority party.
But in the case of the National Defense Authorization Act, this is
one which has been passed out of the Senate, passed by the House, and
signed by the President for 54 years in a row. It is a bipartisan work
effort. It is one in which we have agreement; we find consensus. It
seems only appropriate that we try to move forward on this particular
bill before Memorial Day, the day in which we honor those individuals
who have given the ultimate sacrifice.
Let me share with you what we understand has happened. I understand
that when the majority leader had asked for a unanimous offer or an
agreement that we take up this bill early--take it up and begin to
debate it; not pass it, but debate it and accept amendments to this
particular bill about how to appropriately direct our military for the
coming year--the minority leader objected, which is his right, and said
he would not allow us to move forward, even to debate the bill.
In fact, we had to file what they call cloture or a closure of the
time with a 30-hour period, which we are in right now, before we can
even take up the bill. That seems inappropriate. At least to me, it
seems that if we really wanted to show we honor those individuals--and
we talk about the memory of those who lost their lives serving our
country--the least we could do would be to move forward with this
particular one in some sort of a united effort since there does not
appear to be anything that is of a challenge in passing the bill.
I think about Memorial Day because I lost an uncle. As a matter of
fact, I am named for him. My name is Marion Michael. I go by Mike, but
I was named for an uncle who died in World War II on the island of
Okinawa in May of 1945. He never had a chance to vote, never had a
chance to have a family. My family lost something. He lost his life,
but we lost an uncle, a brother.
This is the time period in which we remember what these folks--these
soldiers, sailors, and warriors--have given to our country. It seems
appropriate that this would have been a great time to make an example
of our working together. That sense of sacrifice didn't stop in World
War II; it continues on.
I had the opportunity, the privilege, to work as Governor of South
Dakota during the time in which we were sending young men and women off
to wars in Afghanistan and Iraq. I remember one time in particular that
was an example of the generations supporting our country. It happened
to be with a mobilization ceremony in the little town of Redfield. When
we send young men and women off in South Dakota, we have a mobilization
ceremony that is attended by literally the entire town. In this case it
was the 147th Field Artillery, 2nd Battalion. I was working as Governor
at the time, and when we came into this town, we went to the high
school gymnasium. You couldn't park win three blocks of that gymnasium
because it was filled.
When we walked inside, there were people everywhere. They were even
sitting on the window sills because there were a little over 105
soldiers who were being deployed, and they were going to Iraq.
I remember it specifically because as we finished the ceremonies for
deployment in this packed crowd, we went down the line, and we started
thanking each soldier for their service. I walked through the line
saying: Thank you. We appreciate your service. Be careful. Come back
safely.
I looked at one of the soldiers and looked at his last name. He was
gray haired, clearly he was a sergeant, and he was one of the leaders.
I said: Thank you for your service. Do your job, but bring these guys
home safely.
He said: Yes, sir.
The next man in line--I looked at his name, and it was the same name
as the individual ahead of him. I looked at him and I said: Is that
your dad?
He said: No, sir, that is my uncle. My dad is behind me.
Three generations, three separate members of the same family were
serving in the 147th, three of them offering their own and their
families' time to support our country. I don't know whether they were
Republican or Democrat. All I know is that they were wearing the
uniform of the United States of America.
Sometimes, as we talk about what we do, we have to remind ourselves
that when these young men and women deploy, they are not deploying as
Republicans or Democrats. They really don't care about how we see the
progression of the votes that we take here. What they look at is
whether or not we are united as Americans.
This would be a very appropriate time for the minority leader to
perhaps consider giving back some of the time that he is holding for
debate on this bill to begin. Let's begin the debate on this bill
before we leave for Memorial Day. Let's begin the process of letting
these families know that this is important to us, too, and that we
understand the significance of Memorial Day.
For that particular family I talked about in Redfield, this is
especially important this year because that young man came back and
carried the Cross of War with him. They lost him earlier this year.
This year, Memorial Day means a little bit more.
What I would ask today is that we send a message to all of the men
and women who wear the uniform. Politics is gone. We will debate the
bill, we will spend time on the bill, we will make it better, but we
will not hold it hostage. We will do what they want us to do as
Americans protecting our country and honoring the memory of those who
have given everything in defense of our country.
This is the time to vote--to vote for those who died before they ever
had a chance to vote. This is a chance to share our strong belief that
when it comes to the defense of our country, we are Americans first,
Republicans and Democrats last.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Water Resources Development Act
Mr. PETERS. Mr. President, tonight I rise to speak about the pressing
need to invest in our aging infrastructure across this great country,
especially drinking water infrastructure.
What makes the ongoing crisis in Flint so tragic is that it was
preventable. Steps could have and should have been taken over months
and even years that would have prevented the poisoning of the citizens
of Flint. Because these steps were not taken, efforts to mitigate the
effects of lead exposure and repair the damage will be necessary for
many years to come.
Our drinking water supply is largely dependent on systems built
decades ago that are now deteriorating. Many of the pipes in some of
our older cities were installed before World War II, and many are made
of lead. The EPA estimates about 10 million homes and buildings are
serviced with lead lines.
The American Water Works Association has said that we are entering
``the replacement era.'' Water systems are reaching the end of their
lifespan, and we must replace them. We have no choice.
If we want to simply maintain our current levels of water service,
experts estimate a cost of at least $1 trillion over the next two
decades. That is why it is so important that we pass a new Water
Resources Development Act, or WRDA. We now have the opportunity and the
ability to dedicate resources to Flint and to communities dealing with
infrastructure challenges all across our country.
The Environment and Public Works Committee listened to water experts,
State and local elected officials, and the shipping industry, as well
as stakeholders, to craft a WRDA bill that makes crucial infrastructure
investments in drinking and wastewater projects as well as our ports
and our waterways.
My friend Senator Debbie Stabenow and I were proud to work with
Senator Jim Inhofe and Senator Barbara Boxer to include bipartisan
measures that would include emergency aid to
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address the contamination crisis in Flint and provide assistance to our
communities across our country facing similar infrastructure
challenges.
The Flint aid package included in the bipartisan WRDA bill includes
direct funding for water infrastructure emergencies and critical
funding for programs to combat the health complications from lead
exposure. This includes a drinking water lead exposure registry and a
lead exposure advisory committee to track and address long-term health
effects.
Additionally, funding for national childhood health efforts, such as
the childhood lead prevention poisoning program, would be increased in
this bill.
The Water Resources Development Act also includes funding for secured
loans through the Water Infrastructure Finance and Innovation Act, or
WIFIA program. This financing mechanism was created by Congress in 2014
in a bipartisan effort to provide low-interest financing for large-
scale water infrastructure projects. These loans will be available to
States and municipalities all across our country.
There are also a number of other important provisions in this year's
WRDA bill. It promotes restoration of our great lakes and great waters,
which include ecosystems such as the Great Lakes, Puget Sound,
Chesapeake Bay, and many more.
In fact, the bill includes an authorization of the Great Lakes
Restoration Initiative through the year 2021, which has been absolutely
essential to Great Lakes cleanup efforts in recent years. It is
important to know that the Great Lakes provide drinking water for over
40 million people.
The WRDA bill also will modernize our ports, improve the condition of
our harbors and waterways, and keep our economy moving.
A saying attributed to Benjamin Franklin rings especially true with
this WRDA bill. He said: ``An ounce of prevention is worth a pound of
cure.'' If we make the necessary infrastructure investments now, we
will preserve clean water, save taxpayer money in the long run, and
protect American families from the dangerous health impacts of aging
lead pipes.
The Environment and Public Works Committee passed the Water Resources
Development Act with strong, overwhelming bipartisan support last
month. This bill is ready for consideration by the full Senate, and
communities across our country--including the families of Flint--are
waiting for us to act.
I am hopeful that this body will do just that in the coming weeks,
and I urge my colleagues to prioritize this commonsense, bipartisan
infrastructure bill for a vote on the Senate floor.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
____________________