[Congressional Record Volume 163, Number 23 (Thursday, February 9, 2017)]
[Senate]
[Pages S977-S978]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



      The President, the Travel Ban, and an Independent Judiciary

  Mr. President, I rise on a few topics. First, our President has shown 
a deeply troubling lack of regard for an independent judiciary. He 
criticizes individual judges in the court system in general. He has 
gone so far as to preemptively blame future terrorist attacks on the 
judiciary for putting a stay on his Executive order. I have not heard a 
President--I can't recall a President in history doing something like 
that, certainly not in my lifetime.
  Let's look at the facts.
  Our President all too often seems fact averse. I have experienced 
that personally, but much more importantly, in general. Not one 
terrorist attack has been perpetrated on U.S. soil by a refugee from 
one of these countries--not one.
  Since 1975, 3,024 Americans have been killed on U.S. soil in 
terrorist attacks. I know that painfully because some of them are 
people I knew who died on 9/11 in that awful, vicious, horrible attack 
that still stays with me every day I wear the flag, this flag on my 
lapel in memory of those who were lost, and have since 9/12/2001. So I 
am aware of the danger of terrorists. But of those 3,024 Americans 
killed, zero of these deaths were the result of an attack by a person 
from one of the countries listed in the ban. Do you know where I got 
that information? Not from some liberal publication but from the 
libertarian-leaning Cato Institute. I hope the President is not going 
to attack them now.
  What are the threats of terrorism? The great threats, if you ask the 
experts, are two things above all: the lone wolves and the visa waiver 
program. The lone wolves caused the terror recently in both San 
Bernardino and Orlando. They were American citizens importuned by the 
evil ISIS--American citizens who were probably disturbed or off base in 
a lot of ways. ISIS propaganda got to them, and they acted. Nothing in 
the President's proposed law would have stopped them, even if it were 
in effect.
  The visa waiver program is the gaping hole. The visa waiver program 
tells 29 countries that they can send people here without going through 
extensive checks and background checks. They are mainly countries that 
are friendly, such as the countries of the EU. But what has happened 
recently is that those countries have become a place of refuge for 
terrorists. People trained by ISIS, Belgian citizens, French citizens 
perpetrated the horrible attacks in those countries. One of those 
terrorists could, God forbid, get on a plane, come to America with few 
questions asked. The President's proposal does nothing to stop that. 
The President's proposal, if anything, encourages lone wolves because 
it makes them even more outcast. Those are not my words; they are 
Senator John McCain's words, and he is one of the greatest experts in 
this body and in this country on terrorism.
  If the President wants to do something on terrorism, instead of these 
back-of-the-envelope, quickly and shabbily put together proposals, he 
ought to study it, talk to the experts, and certainly close these two 
loopholes or greatly decrease the danger of terrorism from these two 
places.
  To blame judges for future attacks because they didn't pass this law 
when not a single American has died because of people coming from these 
countries and to leave open these other two gaping loopholes--I want to 
work to close them right now. I will work with the President. I will 
work with Senator McCain. I will work with our Republican colleagues; 
we all will on this side of the aisle. But the President put together 
something that didn't seem to have much thought, didn't seem to have 
much coordination. Despite the fact that the admirable General Kelly 
took the lance and said ``I'll take the blame''--we all know that 
didn't happen. He was not consulted at length nor was his Department.
  The President seems to preemptively say: Well, if there is terrorism, 
blame the judge. It is dangerous for him to say this. It is dangerous 
because it diverts us from going after the big gaping loopholes of 
terrorism--lone wolves and the visa waiver program.
  It also underscores the fact that we need judges who are going to be 
independent of this President. If this President can attack the 
judiciary the way he does, if this President has so little respect for 
the rule of law or for separation of powers, our last and best refuge 
is the courts.
  So in my opinion, this new nominee to the Supreme Court has to pass a 
special test: true independence from the President. I worry that he 
doesn't have it. His answers to my questions--I won't go into them 
today--were disappointing in terms of that independence. You can't just 
assert ``I am an independent person,'' which he did. You have to show 
examples. I await them.
  When I met him, he said: Well, I am disheartened. He said it to me, 
he said it to Senator Blumenthal, he said it to Senator Sasse. To 
whisper in a closed room, behind closed doors to a Senator ``I am 
disheartened,'' and not condemn what the President has done to the 
judiciary and not do it publicly--what he did does not show 
independence; it shows his ability to desire an appearance of having 
independence without actually asserting it. There is even more reason 
to do it now because the President--I don't know how; I don't know who 
told him about those meetings, but the President tweeted that Judge 
Gorsuch didn't say those things, as mild as they were and, at least in 
my opinion, as insufficient as they are to showing independence. To 
whisper to a Senator but to refuse to say anything publicly is not 
close to a good enough showing of independence.
  From my view, it is not a good start for Judge Gorsuch--not a good 
start. I haven't made up my mind completely. I am willing to--there is 
going to be a process. There are going to be papers filed; there are 
going to be hearings. Judge Gorsuch may go further, but right now it is 
an uphill fight to get my support.
  While this President is attacking everyone under the sun, most of it 
with no basis in fact, just assertions--and by the way, I will talk 
about this more later, but if we become a nation where facts don't mean 
anything, the sun will set on this great country.
  We have always been a fact-based country. The Founding Fathers had 
different views, but they never disagreed on the facts as they debated 
issues in Philadelphia, for the Declaration, for the Constitution. In 
this Chamber, where we have had great Senators--the Clays, the 
Websters, the Calhouns--they never disputed the real facts. Neither, in 
my opinion, has any President, Democrat, Republican, liberal, 
conservative, until this one, and he just seems to make it up as it 
goes.
  Today he attacked not only my colleague Senator Blumenthal in what I 
thought was a cheap way, but he attacked John McCain, one of the most 
respected voices on national security.

[[Page S978]]

  John McCain voiced his views on what happened in Yemen. Most of the 
independent reports corroborate what John McCain said. The President, 
of course, said it was a great success. I don't know if anyone 
believes--he is saying so many things that are not fact-based that I 
don't know if anyone believes him anymore. It would be amusing, except 
it is not; it is sad, very sad.
  It is not the first time he has impugned a Republican Senator. He has 
had harsh words for the Senator from Nebraska, Ben Sasse. Ben is one of 
the most independent, thoughtful Senators who I have ever come across 
on either side of the aisle. I really respect that man. We have spent 
some time together. We see each other in the gym.
  He has attacked the Senator from South Carolina, my friend Lindsey 
Graham. He has attacked the Senator from Florida. He has attacked the 
Senator from Kentucky, the junior Senator from Arizona, and so many 
others.
  I would ask my colleagues, who I know care about this Chamber--and 
the Senator from Utah's heartfelt plea that we can get over these bumps 
in the road and start working together is one I feel we share--but are 
we going to let this new President, who seems to have so little respect 
for other institutions and people, other than himself, oftentimes; are 
we going to let him force us to change the rules of this great 
body? Are we going to let him force us to change the rules of this 
great body? He immediately demanded a changing of the rules on the 
Supreme Court. I hope not.

  In conclusion, I hope these attacks on an independent judiciary are 
restrained. I hope my colleagues will join some of us in voicing 
discontent with those attacks and asking the President to cease and 
desist. I hope the President himself will stop attacking Senators 
personally, whether it be the Democratic Senator from Connecticut or 
the Republican Senator from Arizona--which just happened this morning. 
I hope we will not let the President intimidate us into changing the 
way this body works and instead try to come together, not let him 
divide us.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.