[Congressional Record Volume 162, Number 108 (Wednesday, July 6, 2016)]
[Senate]
[Pages S4794-S4798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Sanctuary Cities Legislation

  I rise to address the legislation we are going to be voting on later 
this afternoon, two procedural votes to take up legislation. Both bills 
were inspired by a horrendous event that occurred almost exactly 1 year 
ago. On July 1, 2015, a 32-year-old woman named Kate Steinle was 
walking on a pier in San Francisco with her dad, and out of nowhere 
comes a man who starts firing his weapon at her, shoots her, and within 
moments Kate Steinle bled to death in her father's arms.
  As appalling as that murder was, one of the particularly galling 
things about it is that the shooter should never have been on the pier 
that day. The shooter had been convicted of seven felonies and had been 
deported from America five times because he was here illegally. Even 
more maddening is that just a few months earlier, San Francisco law 
enforcement officials had him in their custody. They had him, and the 
Department of Homeland Security, discovering that fact, put out a 
request that said: Hold on to this guy. Detain him until we can get one 
of our guys there to take him into custody because we want to get him 
out of this country. He is dangerous; we know he is.
  What did the San Francisco law enforcement folks do? They said: 
Sorry, we can't help you. They released him onto the streets of San 
Francisco, from which he later shot and killed a perfectly innocent 
young woman.
  Why in the world would the San Francisco law enforcement folks 
release a seven-time convicted felon, five-time deported person who was 
known to be dangerous, in the face of a request from the Department of 
Homeland Security? Why would they release such a person? Because San 
Francisco is a sanctuary city, which means it is the legal policy of 
the city of San Francisco to refuse to provide any information or to 
cooperate with a request to detain anyone when the Department of 
Homeland Security is requesting such cooperation with respect to 
someone who is here illegally. This is madness. It is unbelievable that 
we have municipalities that are willfully releasing dangerous people 
into our communities.
  Let me point out that the terribly tragic case of Kate Steinle is not 
a unique case. According to the Department of Homeland Security in an 
analysis looking at an 8-month period in 2014--the most recent period 
for which we have data--sanctuary cities across America released 18,000 
individuals and 1,800 of them were later arrested for criminal acts. 
That is what is happening across America, including in the great city 
of Philadelphia in my home State of Pennsylvania, which has become a 
sanctuary city.
  Today we are going to vote on two different bills. We are going to 
take a procedural vote which will determine whether we can proceed to 
two bills inspired by this terrible tragedy. First is my legislation 
called the Stop Dangerous Sanctuary Cities Act, S. 3100. I am grateful 
for my cosponsors, Senators Inhofe, Vitter, Cotton, Johnson, Cruz, and 
Wicker. Let me explain how this is structured.
  There is a court ruling that has caused a number of municipalities 
that would rather not be sanctuary cities to believe they need to 
become sanctuary cities. The ruling is from the Third Circuit Court of 
Appeals, which has jurisdiction over my State of Pennsylvania, and also 
a Federal district court in Oregon. They have held that if the 
Department of Homeland Security makes a mistake--let's say it is the 
wrong John Doe--and they ask a police department somewhere to hold that 
person, if it turns out they are holding him wrongly, according to 
these court decisions, the local police department can be held liable 
even though they were just acting in good faith at the request of the 
Department of Homeland Security.
  Well, that doesn't make any sense, and it is easily corrected. My 
bill will correct it. What my bill says is that if a person is wrongly 
held in such a circumstance where the local police are complying in 
good faith with a request from the Department of Homeland Security, if 
that happens, the individual wrongly held can still sue, they can still 
go to court, but they wouldn't go to court against the local police or 
local municipality, they would take their case against the Department 
of Homeland Security, where it belongs. After all, it was the error of 
the Department of Homeland Security that caused the person to be 
wrongly held. So that solves the problem of a municipality being 
concerned about a liability that would attach to their doing the right 
thing.
  Given that solution, which is in our legislation, if we pass this and 
make this law, then there is no excuse whatsoever for any municipality 
willfully refusing to cooperate with Federal immigration and law 
enforcement officials.
  The second part of my legislation says that if a community 
nevertheless--despite a lack of legal justification--chooses to be a 
dangerous sanctuary city, well, then, they are going to lose some 
Federal funds--specifically, community development block grant funds, 
which cities get from the Federal Government. They love to spent it on 
all kinds of things.

  The fact is, sanctuary cities impose costs on the rest of us--
security costs, costs to the risks we take, the unspeakable costs the 
Steinle family incurred--so I think it is entirely reasonable that we 
withhold this funding as a way to hopefully induce these cities to do 
the right thing.
  I say there are two pieces of legislation we will be taking 
procedural votes

[[Page S4795]]

on today. The other is Kate's Law. I commend Senator Cruz for 
introducing this legislation. As I pointed out, Kate Steinle's killer 
had been convicted of seven felonies and deported five times. How many 
times is this going to happen? What Kate's Law simply says is that 
there will be a mandatory 5-year prison sentence for someone who 
illegally reenters the United States after having already been 
convicted of an aggravated felony and after having been convicted of at 
least two previous offenses of illegal reentry. If that gets confusing, 
the bottom line is that they have come into the country four times 
illegally and have been convicted of an aggravated felony. At some 
point, they need to go to jail, and that is what Kate's Law does.
  Let me get back to my legislation because there is a mistaken 
impression and I want to set the record straight. Some have argued that 
if my legislation were passed, if we passed legislation to correct the 
legal problem and then withhold funding from cities that become 
sanctuary cities, that might discourage victims of crime and witnesses 
to crime from coming forward if they are here illegally because they 
will have a fear of being deported.
  Let's be very clear. Our legislation explicitly states that a 
locality and municipality will not be labeled a ``sanctuary 
jurisdiction''--so they would not be at risk for losing any Federal 
funds--if their policy is that when a person comes forward as a victim 
or a witness to a crime, local law enforcement does not share 
information with DHS and does not comply with a Department of Homeland 
Security request for a retainer. In other words, there is a big carve-
out. There is an exception. There is a carve-out for people who are 
victims of crime or witnesses of crime, so we don't discourage people 
from coming forward. I think it makes perfect sense.
  Some have also argued erroneously that my bill creates a mandate for 
local law enforcement to take on the Federal immigration duties--duties 
that are a part of the Federal Government. The fact is, that is a 
misreading of the legislation. Our legislation does not require local 
law enforcement to do anything. It doesn't even require that local law 
enforcement comply with any requests from the Department of Homeland 
Security. What it says is that you will be defined as a sanctuary city 
if you have local legislation that forbids cooperation. That is what it 
says. So the police can make their best judgment and can cooperate with 
the administration when they see fit without being in violation of 
their own laws. Our legislation does not at all impede the enforcement 
of criminal law, and it does not impose any burdens.
  There are four law enforcement groups that have endorsed my bill: the 
Federal Law Enforcement Officers Association, the National Sheriffs' 
Association, the National Association of Police Organizations, and the 
International Union of Police Associations, which is an AFL-CIO entity. 
The reality is that the vast majority of local law enforcement wants to 
cooperate with the Federal Department of Homeland Security folks, 
immigration officials, and law enforcement people because they are all 
about keeping our communities safer and they don't want to release 
someone onto the streets who is likely to be a criminal or even a 
terrorist.
  Let me stress that support for my legislation is bipartisan, and 
opposition to the kind of sanctuary city policy that we have in 
Philadelphia is bipartisan. Ed Rendell is the former mayor of 
Philadelphia, the former Governor of Pennsylvania, and the former 
chairman of the Democratic National Committee, and he has criticized 
the policy Philadelphia has put in place. Mayor Nutter--the recently 
outgoing mayor--reversed the sanctuary city policy that they used to 
have in place because he realized it is a bad policy for keeping 
Philadelphians and Pennsylvanians safe. The Obama administration asked 
the Secretary of the Department of Homeland Security, Jeh Johnson, to 
travel to Philadelphia personally, and he pleaded with Mayor Kenney, 
the mayor of Philadelphia, to at least make some narrow exceptions to 
the sanctuary city policy precisely so that when we have suspected 
terrorists in the custody of local police departments and the 
Department of Homeland Security discovers this, they will get some 
cooperation so we can take custody of these people.
  This, to me, is just common sense. It is not principally about 
immigration; it is almost entirely about security and keeping dangerous 
people off our streets.
  The vote today is not a final disposition of the legislation; it is a 
vote on whether we can even take it up and begin a debate.
  I don't know how anyone could defend the proposition that we 
shouldn't even consider this legislation. If someone wants to oppose 
it, by all means. But the vote we are going to have today is a 
procedural vote on whether we proceed to this legislation and just 
begin this discussion. For me, it shouldn't be a question at all. For 
the safety of the American people, we ought to proceed with this 
legislation. In my view, the life of Kate Steinle matters.
  I hope my colleagues will vote to enable us to proceed, and let's 
have a vigorous debate about the merits of this, about whether we ought 
to tolerate sanctuary cities that knowingly and willfully refuse to 
cooperate with Federal immigration and law enforcement officials. Let's 
have the discussion, by all means, but let's start by getting on the 
bill so we can attempt to find a consensus and resolution to this.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. BOOKER. Madam President, I rise today in support of the 
confirmation of Judge Brian R. Martinotti to be a U.S. district court 
judge for the U.S. District Court for the District of New Jersey. I am 
very proud to support his nomination and grateful that my senior 
Senator Robert Menendez is here as well.
  Judge Martinotti is an outstanding public servant who has honorably 
served the people of New Jersey in both private practice and public 
service for decades. I am grateful that Judge Martinotti is finally 
getting the confirmation vote he deserves more than a year after his 
nomination. I thank Senator Menendez for his support of this nomination 
throughout this long process.
  During my first year within the Senate, I had the honor to recommend 
Judge Martinotti to President Obama. He is a talented jurist, he has an 
impressive legal background, and he is more than qualified to be a 
Federal judge.
  As a judge in the New Jersey Superior Court, Judge Martinotti is a 
well-known and highly regarded leader in the New Jersey legal 
community. As a State superior court judge, he served 14 years and has 
judicial experience, having presided over 90 cases that have gone to 
judgment. He previously served as a public defender, a prosecutor, a 
tax attorney, and even city council member, the same position where I 
began my political career. He served as a legal counsel for the Italian 
American Police Society and has worked in private practice for 15 
years.

  Judge Martinotti has litigated both criminal and civil cases, which I 
am confident will make him a well-balanced jurist. Judge Martinotti 
possesses a sharp legal mind, a breadth of experience, solid judicial 
temperament, and he is prepared to do the work of a Federal jurist.
  The American Bar Association Standing Committee on the Federal 
Judiciary rated Judge Martinotti unanimously ``well qualified,'' giving 
him their highest possible rating.
  Last October, the Judiciary Committee voted unanimously in support of 
Judge Martinotti's nomination. I am confident this well-qualified 
nominee will serve honorably on the Federal bench.
  While I am pleased Senate leadership has finally scheduled this vote, 
this body still has work to do when it comes to confirming more well-
qualified judicial nominees. Currently, our Federal courts have 83 
Federal vacancies nationwide, 30 of which have been deemed judicial 
emergencies. Despite the number of vacancies, the pace of judicial 
confirmations has been historically slow. Last year, the Senate 
confirmed only 11 judicial nominees, matching the record for confirming 
the fewest number of judicial nominees in more than half a century. 
Now, more than 17 months into this Congress, there have only been 20 
judges who have been confirmed. Yet, with a Democratic majority during 
the last 2

[[Page S4796]]

years of the Bush administration, the Senate confirmed 68 judges.
  I fear the Senate's slow pace of confirming judges will harm the 
judicial branch and make it harder for Americans to achieve simple 
justice in federal courts.
  Even after today's vote, we still have 2 of the 17 judicial seats 
vacant in the District of New Jersey and 24 judicial nominees pending 
on the Senate floor. We have to do better.
  We do not yet have an agreement to vote on the nomination of Judge 
Julien Neals, whose nomination has now been pending before the Senate 
for 18 months.
  His nomination has the support of both myself and Senator Menendez 
and was unanimously passed out of the Judiciary Committee last 
November. It is time that Judge Neals' nomination receive a full Senate 
vote. Our Federal justice system cannot function as intended when 
critical posts are left vacant for months on end. It hurts our economy, 
our civil rights, and the overall principles of justice in our country.
  I urge our leadership to act to address the judicial vacancy crisis. 
I also urge my fellow Senators to vote to confirm Judge Martinotti as 
U.S. district judge for the Federal district court of New Jersey. Thank 
you, Madam President.
  The PRESIDING OFFICER. The senior Senator from New Jersey.
  Mr. MENENDEZ. Madam President, I am pleased to be joining my 
colleague from New Jersey Senator Booker in his recommendation to the 
President of Judge Martinotti and today on the floor in support of his 
confirmation. It was one of Senator Booker's first opportunities to 
recommend to the President an exemplary recommendation that again I was 
very pleased to support.
  I rise to express to all of my colleagues my wholehearted, 
enthusiastic support of Brian Martinotti's nomination and his 
confirmation by the Senate to the U.S. District Court for the District 
of New Jersey. In his life and in his career, he has shown himself to 
be a judge with the necessary wisdom, experience, and judicial 
temperament the district court requires.
  For well over a decade, he has been a superior court judge in Bergen 
County, NJ, which--for my colleagues who may not be familiar with the 
State--is a densely populated county, with all the inherent needs for 
someone such as Judge Martinotti, who has repeatedly shown the 
intellect, the judicial temperament, and the observance of precedent--
which I know is very important to many of my colleagues--that it takes 
to make a fair judgment based on the law.
  Beyond his glowing record in the family division and now in the civil 
division, where he is handling a diverse caseload from complex mass 
tort litigation to environmental lawsuits, housing issues, and 
countless other areas, the fact is, he is exceptionally well regarded 
by those who have appeared before him on both sides of the table, the 
defense and the prosecution tables. That says more about the man than 
any list of cases he has heard.
  He has a wealth of knowledge from private practice, and that will 
help him as he deals with the practitioners who will be before him. He 
has a wealth of experience in mediation before the Bergen County 
Superior Court, in the New Jersey State Board of Mediation, American 
Arbitration Association, National Arbitration and Mediation, and as a 
court-approved mediator.
  His experience is impeccable, going back to his time as a judicial 
law secretary for the Honorable Roger M. Kahn and when he was a student 
at Fordham University and Seton Hall University School of Law in 
Newark.
  He has been a leader in New Jersey, the very definition of a pillar 
of the community, serving as a member of the Bergen County Law and 
Public Safety Institute, Palisades Medical Center, the March of Dimes, 
the Bergen County Community College Foundation, the Italian American 
Police Society of New Jersey, not to mention the many honors and awards 
he has received from countless community organizations.
  Given his experience, his temperament, his proven abilities, and 
personally knowing the kind of man he is, it is no wonder his name is 
before the U.S. Senate today. Indeed, the American Bar Association 
Standing Committee on the Federal Judiciary unanimously rated him 
``well qualified'' to serve on the bench. That is the bar association's 
highest rating.
  As I have traveled the globe as a senior member of the Senate Foreign 
Relations Committee, I can tell you that when we talk about American 
exceptionalism, one of the elements of American exceptionalism is the 
rule of law. As part of that rule of law, it is the judicial functions 
that take place--where any citizen can expect to walk into a courtroom 
in the Nation, find themselves before a judge who is enormously well 
qualified, and who can have a fair day as it relates to the issues they 
are litigating before that court. That is an essential part of American 
exceptionalism.
  Judge Martinotti, upon confirmation, will only enhance that American 
exceptionalism, far beyond even where it is today.
  I urge my colleagues to join us and unanimously confirm this 
eminently qualified nominee to the U.S. District Court for the District 
of New Jersey.
  With that, I yield the floor.
  Mr. LEAHY. Madam President, this week we mark the signing of the 
Declaration of Independence and celebrate the values upon which this 
Nation was founded. Back in Vermont, we celebrated on July 4 with 
parades and fireworks displays, as did millions of Americans around the 
country. It is important, however, not only to celebrate our values on 
July 4, but also to live by them year-round. This means that we should 
embrace those public servants who, while working hard to build better 
lives for themselves and their families, enrich our communities and 
contribute so much to our Nation.
  We see the true meaning of patriotism in those hard-working Americans 
who ask what they can do for their country and pursue public service. 
Chief Judge Merrick Garland, who has served for nearly two decades as a 
Federal judge on the DC Circuit Court of Appeals, is a perfect example. 
Chief Judge Garland also served for several years in the Justice 
Department, where he was charged with leading the Federal response to 
the deadliest act of domestic terrorism in our history. This is a 
person who makes us all proud to be Americans, but instead of honoring 
Chief Judge Garland's service, Senate Republicans have undertaken an 
unrelenting campaign of partisan obstruction against his nomination to 
the Supreme Court.
  Recently, Reid Hoffman, the Silicon Valley entrepreneur and founder 
of LinkedIn, penned an op-ed criticizing the Senate Republican blockade 
of Chief Judge Garland's nomination:

       ``Effectively, [Majority Leader McConnell] and his allies 
     are in the midst of a year-long strike.
       ``Imagine if entire departments at Fortune 500 companies 
     announced they were going to stop performing key functions of 
     their job for a year or more, with no possibility of moving 
     forward until a new CEO took over. Investors would start 
     dumping their stock. Customers would seek out alternatives. 
     Competitors would make these companies pay for such 
     dysfunctional gridlock. Eventually executives and employees 
     would be fired.
       ``In Silicon Valley, such behavior would be corporate 
     suicide.''

  I could not agree more. We cannot allow Senate Republicans to 
unilaterally decide to refuse to do its job, and essentially create 
``dysfunctional gridlock.'' I ask unanimous consent that a copy of the 
article be printed in the Record at the conclusion of my remarks.
  Instead of scheduling a hearing for an impeccably qualified nominee, 
Republicans are holding Chief Judge Garland's nomination hostage in 
their hopes that the Republican Party's presumptive Presidential 
nominee will be elected and make a different nomination. This is the 
same candidate who has displayed a stunning misunderstanding of the 
role of the judiciary and who accused a sitting Federal judge of bias 
simply because of his heritage. While some Senate Republicans have 
rightly condemned those racist attacks on Judge Gonzalo Curiel, they 
are still standing by the man who launched those racist attacks.
  As former U.S. Attorney Steven Dettelbach in Ohio put it in a recent 
op-ed, ``if country really does come before party, how can anyone who 
calls himself an American leader still support this man who openly 
berates public servants based on their race?'' I ask unanimous consent 
that a copy of the

[[Page S4797]]

article be printed in the Record at the conclusion of my remarks.
  Senate Republicans' partisan refusal to do their jobs extends to the 
lower courts as well. In the 19 months that Senate Republicans have had 
a majority, they have allowed just 21 votes on judicial nominations. As 
a result, Federal judicial vacancies have skyrocketed. This is not how 
the Senate should operate, and the American people deserve better. When 
Democrats controlled the Senate during the last 2 years of President 
George W. Bush's administration, we worked hard to confirm judicial 
nominees with bipartisan support. During those 2 years, we confirmed 68 
of President Bush's judicial nominees and reduced the number of 
judicial vacancies to 34. We even held hearings and confirmation votes 
into late September of the election year, because filling vacancies 
with qualified nominees with bipartisan support is more important than 
scoring partisan points. Senate Republicans have not shared that 
priority, or else they would never have allowed judicial vacancies to 
nearly double from 43 to 83 since they have controlled the Senate, 
leaving two dozen judicial nominations pending on the Senate floor.
  The nominee the Senate will finally vote on today, Brian Martinotti, 
was nominated over a year ago to fill a vacancy on the U.S. District 
Court for the District of New Jersey. Judge Martinotti has been 
awaiting a floor vote for over 250 days, even though his nomination was 
reported by voice vote by the Judiciary Committee last October. Since 
2002, Judge Martinotti has served as a judge on the Superior Court of 
New Jersey. Prior to that, he spent 15 years in private practice. Judge 
Martinotti has also served as a public defender, as a prosecutor, and 
as a municipal tax attorney. The ABA Standing Committee on the Federal 
Judiciary unanimously rated Martinotti ``Well Qualified'' to serve on 
the district court, its highest rating. He has the support of his home 
State Senators, Mr. Menendez and Mr. Booker. I support his nomination.
  Even after today's vote, there will still be 24 judicial nominations 
languishing on the Senate floor. One of them was reported at the same 
time as Judge Martinotti and has also been awaiting a vote for over 8 
months. We still do not have an agreement to vote on the nomination of 
Edward Stanton to the Western District of Tennessee. In 2010, the 
Senate voted unanimously to confirm Mr. Stanton as the U.S. attorney 
for that district. His current nomination is supported by his two 
Republican home State Senators, and he was unanimously voice voted out 
of the Judiciary Committee. I hope the Republican Senators from 
Tennessee will be able to persuade the majority leader to schedule a 
vote for Mr. Stanton's nomination before we leave for the 7-week recess 
he has scheduled.
  It is the Senate's duty to ensure that our independent judiciary can 
function. Senate Republicans must be responsible and act on Chief Judge 
Garland's nomination, as well as the 24 judicial nominations that are 
languishing on the Senate floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    [From Medium.com, June 29, 2016]

                 Obstructionism is Terrible Governance

                           (By Reid Hoffman)

       As an entrepreneur and investor, I prioritize construction 
     and collaboration. Whether it's a five-person start-up or a 
     global giant, the companies that are most productive are the 
     ones whose employees operate with a shared sense of purpose 
     and a clear set of policies for responding to changing 
     conditions and new opportunities.
       That's why I'm so appalled by what's happening in the 
     Senate this year, and how starkly it illustrates the 
     differences between Silicon Valley and Washington, DC.
       Just hours after Supreme Court Justice Antonin Scalia 
     unexpectedly died in February, Senate Majority Leader Mitch 
     McConnell told the American people not to expect a 
     replacement any time soon. The vacancy created by Justice 
     Scalia's passing, McConnell insisted, ``should not be filled 
     until we have a new president.''
       Since then, Leader McConnell's position has remained 
     unchanged--he won't even meet with any nominee until January 
     2017. Effectively, he and his allies are in the midst of a 
     year-long strike.
       Imagine if entire departments at Fortune 500 companies 
     announced they were going to stop performing key functions of 
     their job for a year or more, with no possibility of moving 
     forward until a new CEO took over. Investors would start 
     dumping their stock. Customers would seek out alternatives. 
     Competitors would make these companies pay for such 
     dysfunctional gridlock. Eventually executives and employees 
     would be fired.
       In Silicon Valley, such behavior would be corporate 
     suicide. In Washington, DC, it's business as usual.
       So Mitch McConnell's strike goes on and on--he refuses to 
     even meet with any nominee until a new president takes 
     office. Other senators like Richard Burr (R-NC), Sen. Chuck 
     Grassley (R-IA), and Rob Portman (R-OH) have followed 
     McConnell's lead, either refusing to even informally meet 
     with Judge Garland, or meeting but still reflexively 
     insisting that a formal Senate hearing is not an option.
       But the Constitution does not give the job of nominating 
     and appointing Supreme Court Justices to the next President--
     it gives it to the current one.
       Respecting the Constitution's authority and the obligations 
     of his job, President Obama nominated a potential replacement 
     for Justice Scalia, Judge Merrick Garland, on March 16. To 
     date, only two Republican senators--Senator Mark Kirk (R-IL) 
     and Susan Collins (R-ME)--have resisted peer pressure and 
     publicly stated that Judge Garland should be given a formal 
     hearing. The rest are joining McConnell in his strike.
       In a 2013 op-ed, New York Times columnist Thomas L. 
     Friedman explored the difference between Silicon Valley's 
     conception of collaboration and Washington, DC's. In the 
     nation's capital, Friedman observed, collaboration ``is an 
     act of treason--something you do when you cross over and vote 
     with the other party.'' In Silicon Valley, companies that are 
     ``trying to kill each other in one market [are] working 
     together in another--to better serve customers.''
       As Friedman went on to explain, Silicon Valley's version of 
     collaboration doesn't mean groupthink or lockstep consensus. 
     Vital organizations and industries cultivate diverse and 
     competitive viewpoints, because it's this very ``clash of 
     ideas'' that tends to produce innovation and adaptation.
       But Silicon Valley situates its clash of ideas within a 
     larger framework of cooperation and compromise, under the 
     premise that what's good for the ecosystem as a whole will 
     also benefit individual players, even if they sometimes have 
     competing interests.
       What's striking about McConnell's stance is how vividly it 
     illustrates DC's preference for reflexive obstruction over 
     the kind of collaboration and consensus-building that 
     characterizes healthy and productive organizations.
       It's not as if the Constitution doesn't give senators like 
     McConnell broad room in which to operate in dissenting 
     fashion. Specifically, Article II, Section 2 of the 
     Constitution invests the President with the power to make 
     appointments ``by and with the advice and consent of the 
     Senate.''
       This language clearly gives the Senate a confirming but 
     open-ended role. It doesn't instruct the Senate to hold 
     hearing within a specific number of days, for example. It 
     doesn't even explicitly mandate that the Senate must hold 
     formal hearings or meet with a nominee.
       The Constitution simply directs the Senate to advise the 
     President in his effort to nominate and appoint nominees. But 
     how can the Senate credibly and effectively fulfill this 
     obligation without making any effort to gather information 
     about nominees and deliberate on their qualifications?
       In keeping the language so broad in this instance, the 
     Constitution effectively places the Senate in far more than a 
     rubber-stamping role. As Barack Obama himself suggested in 
     2006, when he was still a senator, the Senate arguably has 
     the authority to examine a nominee's ``philosophy, ideology, 
     and record,'' not just his general character.
       What Article II, Section 2 ultimately does, in other words, 
     is set the stage for clashes of ideas, albeit within a larger 
     framework of collaboration and consensus. Importantly, the 
     Constitution advises the Senate to work ``with'' the 
     President, not ``against'' him or in opposition to him.
       And it presumes that the Senate will indeed be working.
       Still, instead of holding hearings in which to assess Judge 
     Garland's suitability for the Court, McConnell and his 
     colleagues are doing nothing.
       If their obstructionism goes unchecked, it will continue 
     harming American citizens in very tangible ways. Having only 
     eight Justices on the bench increases the possibility of a 
     deadlock.
       When cases end in deadlock, nothing gets decided. Resources 
     are expended, and the American public is left hanging until 
     the Court can hear the case again or consider another case 
     with similar issues.
       This has happened twice already--last week when the Court 
     deadlocked on an immigration reform case, and in March, in a 
     case regarding whether individuals should be required to 
     guarantee their spouses' loans. Traditionally, laws regarding 
     this practice have differed in various parts of the country, 
     creating confusion for small business owners and their 
     spouses about what their obligations are. Unfortunately, this 
     confusion and lack of clarity will persist indefinitely 
     because of the Court's deadlock.
       What would happen if President Obama told Congress not to 
     bother passing any more bills this year, because he had 
     decided he would automatically veto any of them that made it 
     to his desk? How many private sector organizations would 
     tolerate personnel who refuse to perform key job 
     responsibilities until the current boss is replaced by 
     someone new?

[[Page S4798]]

       According to Gallup, 84 percent of Americans disapprove of 
     the way Congress is doing its job. Or perhaps more 
     accurately, not doing its job.
       Indeed, from 1900 through 1980, it took the Senate a median 
     of 17 days after nomination to confirm or reject a Supreme 
     Court nominee.
       Like today's senators, those senators took an oath to 
     support the Constitution and ``faithfully discharge the 
     duties of [their] office.''
       Now, however, scorched-earth partisanship has thoroughly 
     compromised Congress's ability to operate functionally. More 
     than 100 days have passed since President Obama nominated 
     Judge Garland--and there aren't even any plans to begin 
     hearings yet.
       No wonder so many Americans believe our government is 
     severely broken.
       If we truly want to make Congress a collaborative 
     enterprise that efficiently works in the interests of the 
     American people, the American people must apply pressure 
     directly to senators like McConnell, Burr, and Portman.
       While some people might insist that these senators are 
     simply fighting partisanship with partisanship, blocking a 
     nominee that a Democrat president is trying to force upon 
     American voters without their say, that's a false 
     equivalency.
       President Obama is a democratically elected official, 
     faithfully discharging the duties of his office. In 
     democracies, we aren't always governed by the people or the 
     parties that we voted for. But when officials are elected, we 
     must respect their authority, as long as they're exercising 
     that authority within the bounds of whatever regulatory 
     frameworks are in place to guide them. (In this case, it's 
     the Constitution.)
       Every American citizen should understand this. And our 
     elected officials shouldn't just understand this--they should 
     be setting an example that all Americans can follow. Instead, 
     McConnell and his colleagues are doing the opposite.
       Ultimately, they're not telling President Obama that they 
     don't think his nominee is a good one. They're saying that 
     they refuse to acknowledge President Obama's legitimacy as an 
     elected official.
       This kind of partisanship is endemic in Washington, DC now. 
     But this latest behavior is such an egregious example of 
     Congressional dysfunction that Senator McConnell and his 
     colleagues must be held accountable.
       That's why I have signed this Change.org petition urging 
     McConnell to give Judge Garland a hearing, and why I strongly 
     encourage others to join me.
       Our elected officials must understand that we, the American 
     people, expect them to perform the duties of their office, 
     even when that means working with other elected officials 
     from different parties.
       They must understand that we're fed up with business as 
     usual in Washington, DC. They must understand that we want 
     leaders who look for opportunities to collaborate and work 
     together productively, instead of pursuing obstructionism 
     that serves political parties rather than citizens.
       So let Mitch McConnell know that it's time to quit 
     abdicating around. Tell him to do his job and schedule a 
     hearing for Judge Merrick Garland now.
                                  ____


   Is Trump's Attack on Judge Racist? If It Quacks Like a Duck . . .

                         (By Steven Dettelbach)

       Judge Gonzalo Curiel, the latest victim of Donald Trump's 
     racist attacks, is not allowed to defend himself under the 
     judicial rules. So I will defend him.
       I will defend him as a fellow, former federal prosecutor. I 
     will defend him because I am the husband of an immigrant from 
     Mexico and the father of our two children. And I will defend 
     him as an American, because what Donald Trump is doing is 
     decidedly un-American.
       Curiel is a respected jurist. Before becoming a judge, he 
     made a name for almost two decades as a federal prosecutor, 
     investigating and prosecuting Mexican drug cartels. As a 
     former U.S. attorney and career prosecutor myself, I know 
     firsthand that these cases are some of the most difficult and 
     dangerous in our criminal justice system. That work earned 
     Curiel death threats from those same Mexican cartels he 
     fought, threats that did not deter him from protecting this 
     nation for a moment.
       Unlike Trump, Curiel comes from Midwestern working-class 
     roots. He was born just hours to the west of here--a place 
     Trump will visit to become the GOP nominee--in Indiana. His 
     parents came to this country and became citizens. His father 
     worked in the steel mills, just like those who built our 
     community, to help put his son through both Indiana 
     University and law school. He was first appointed to the 
     bench in California by another immigrant, Republican Gov. 
     Arnold Schwarzenegger, and then elevated to the federal bench 
     by President Obama after unanimous U.S. Senate confirmation. 
     Curiel's life is a true American success story.
       None of this matters to Trump, though. All that matters to 
     Trump are that: 1) Trump thinks he is losing in the Trump 
     University lawsuit before Curiel and 2) the judge's parents 
     came to this country from Mexico, which is of course the only 
     reason he can possibly be losing the lawsuit. Apparently, 
     when things don't go Trump's way, he plays the race card.
       In truth, Trump can't hold a candle to Curiel. Unlike 
     Trump, Curiel has done more than talk about protecting our 
     borders. He spent two decades on the border, fighting 
     dangerous drug cartels. Unlike Trump, Curiel was not born as 
     heir to a real estate empire. He earned all he has achieved 
     through hard work and merit.
       I am a lawyer. I know that it can be frustrating when a 
     case does not go your way. But Trump's response to losing in 
     that case is to play the race card. That temperament is not 
     only unpresidential, it is dangerous.
       Those supporting Trump need to re-evaluate whether lending 
     their own credibility to his racist rants is still tenable. 
     If country really does come before party, how can anyone who 
     calls himself an American leader still support this man who 
     openly berates public servants based on their race?
       As a U.S. attorney, I saw the way career law enforcement 
     like Gonzalo Curiel worked to protect us. As a parent, I tell 
     my children that all citizens in this nation must be judged 
     based on what they accomplish, not how they look or where 
     their parents were born. That is America.
       Trump evidently understands neither of these basic points. 
     Trump and his supporters say they value plain talk. Well, 
     here is some: Ignoring a person's record and judging him 
     based on ethnic heritage is the definition of racism. Trump 
     did just that. What does that make him?
       Quack.

  Mr. MENENDEZ. 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. THUNE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the question is, Will the Senate advise and 
consent to the Martinotti nomination?
  Mr. THUNE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  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 South Carolina (Mr. Graham) and the Senator from Utah (Mr. 
Lee).
  Mr. DURBIN. I announce that the Senator from Ohio (Mr. Brown) is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Toomey). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 92, nays 5, as follows:

                      [Rollcall Vote No. 118 Ex.]

                                YEAS--92

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Bennet
     Blumenthal
     Booker
     Boozman
     Boxer
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Coats
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cotton
     Cruz
     Daines
     Donnelly
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Gillibrand
     Grassley
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kaine
     King
     Kirk
     Klobuchar
     Lankford
     Leahy
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Paul
     Perdue
     Peters
     Portman
     Reed
     Reid
     Roberts
     Rounds
     Rubio
     Sanders
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Tillis
     Toomey
     Udall
     Vitter
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--5

     Blunt
     Crapo
     Risch
     Sasse
     Sullivan

                             NOT VOTING--3

     Brown
     Graham
     Lee
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table and the President 
will be immediately notified of the Senate's action.

                          ____________________