[Congressional Record Volume 163, Number 23 (Thursday, February 9, 2017)]
[Senate]
[Pages S984-S987]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Nominations

  Mr. CORNYN. Mr. President, I appreciate, as always, the courtesy of 
our colleagues.
  Earlier this week, we confirmed Mrs. Betsy DeVos as the next 
Education Secretary, and last night--finally, at long last--we 
confirmed Senator Jeff Sessions to be the Attorney General of the 
United States. That represents the eighth nominee to the President's 
Cabinet who has been confirmed. At this point in the Obama 
administration, there were 24 Cabinet members confirmed. So, obviously, 
we are way behind in terms of giving the President the team he needs in 
place in order to start his administration and advance the country's 
policies.
  We will move after today to the Department of Health and Human 
Services Secretary, Dr. Tom Price, and then to the Treasury Secretary, 
Mr. Mnuchin. The handwriting of course is on the wall. We all know each 
of these nominees will be confirmed. How do we know that? Because, 
thanks to the former Democratic leader, who invoked the nuclear option 
changing the Senate rules, only 51 votes are necessary to confirm a 
nominee since there is no filibuster, strictly speaking, no 60-vote 
requirement for nominees. So my question is this: What purpose is to be 
served by dragging all of this out?
  Unfortunately, what this does is it uses floor time, which is a 
valuable and limited resource here in the Senate. It prevents us from 
turning to bipartisan legislation that would actually help the American 
people. That is a real shame. Of course, beyond our political parties, 
beyond our differences in philosophy and opinions on various policy 
matters, we are here to work for the American people. That is the job 
we were sent here to do. In fact, I think, more than anything, the 
election on November 8 was a mandate for change.
  I think the American people had become pretty--well, I think we had 
used up all their patience in both political parties in our inability 
to actually get things done. So just slowing down the confirmation 
process for the purpose of delay I think ignores the mandate we 
received on November 8 from the American people when they voted for 
change.
  Looking back through recent history, we will see that bipartisanship 
has characterized a peaceful transition of power from one 
administration to the next. President Obama, to his credit, did believe 
in a peaceful transition of power and worked with the incoming Trump 
administration to make that possible. But it takes more than one 
President working with the next President. It takes Congress working 
together on a cooperative basis to make sure that, yes, questions have 
to be answered and, yes, nominees have to be vetted. But after all the 
questions have been asked and all the vetting has taken place, I think 
just delay for delay's sake serves no useful purpose and undermines the 
tradition that we have had in this country--that once the election is 
over, we then move, not to an election mode, but to a governing mode. 
Then, of course, we gear up for the next election in 2018. But now is 
the time for governing, not a time for electioneering. The American 
people need to accept the results of the election, and I think the 
American people by and large have. Now, activists clearly have not. But 
I don't think dragging this out in order to increase the level of 
separation and polarization in the country by not coming together and 
providing the President's Cabinet serves the public interest. Maybe it 
serves the interests of some narrow part of a political base, but 
certainly not the American people.
  Many have pointed out that since President Carter, who had eight of 
his nominees confirmed on his first day in office, the nominations 
process has been fairly uneventful. President Reagan, for example, had 
a dozen confirmed in his first 2 days of office. President Clinton had 
13 within 24 hours. President Obama had seven confirmed on day 1, and 
so did George W. Bush, when he was President.
  The obstruction and slow-walking of the President's Cabinet choices 
is unprecedented. In fact, this is the longest

[[Page S985]]

it has taken to confirm a majority of a new President's Cabinet since 
George Washington in 1789. This goes back to the origins of the 
country. That is pretty shocking.
  For our colleagues to keep the President from his advisers is not 
only a rejection of the verdict of the American people on November 8 
but to this institution and to the stability of the government and that 
peaceful transition of power that President Obama said he believed in 
and I think demonstrated by his actions.
  We need adults to stand up and say we are not going to cater to the 
extremes in either political party, but we are going to seek common 
ground for the common good of our country. That is a position many of 
our Democratic colleagues have agreed with until today.
  The day before the election last November, the Democratic leader 
indicated a willingness to work with his Republican counterparts to 
reach across the aisle in order to do so for what was right for the 
American people. Senator Schumer, our colleague from New York, said on 
November 16:

       We have a moral obligation, even beyond the economy and 
     politics, to avoid gridlock and get the country to work 
     again. . . . We have to get things done.

  I bet at the time Senator Schumer said that, he expected Hillary 
Clinton to be President. But now President Trump has won the election, 
and I think the same obligation applies to a Trump Presidency that he 
felt should apply to a Clinton presidency.
  Now, the Democratic leader is singing a different tune, and we know 
what the results are. I actually don't envy our friend from New York, 
the Democratic leader. He has perhaps one of the toughest jobs in 
Washington, DC. He has allowed a narrow political base full of people 
who want him to block, stall, and obstruct this President at every 
turn. But I have worked with the Senator from New York before. He and I 
see the world through a different lens, but we have found ways to come 
together and work in practical ways that benefit our constituents and 
the country.

  But I can tell he is being pulled in directions that he is not 
particularly comfortable with. But what he is doing is allowing that 
loud narrow base of his political party to lead his conference and his 
party. I think he knows what is good for the country and for the people 
we all work for, and that would be to resist the urge to feed the 
radical elements and to work together for the interests of the American 
people.
  Just last week, President Trump announced the nomination of an 
incredibly well-qualified judge for the next Supreme Court Justice. As 
of today, several Senate Democrats have indicated they want an up-or-
down vote on that nomination. I think that is positive. I hope those 
are representative of the cooler heads that will prevail on the other 
side of the aisle when it comes to taking up the nomination of this 
incredibly qualified judge for the U.S. Supreme Court.
  People on the right and on the left alike have acknowledged that 
Judge Gorsuch is an incredibly qualified nominee, a mainstream 
candidate, and widely recognized as such by liberals and conservatives 
alike. Some of our friends on the other side are grasping at straws, 
searching for ways to call his background or qualifications into 
question, basically using the nomination as a way to continue to 
contest and deny our new President the mandate he received from his 
election on November 8.
  The Democratic leader even suggested that because Judge Gorsuch would 
not answer all of his questions in a private meeting, he was somehow 
hiding something. Well, our friend across the aisle knows--he is a 
smart Senator. He is a good lawyer, and he understands. Judges are not 
supposed to answer before they get on the bench how they would decide 
cases once they are on the bench.
  Judges are not politicians, wearing black robes, unelected, life-time 
tenured super legislators. So it would be completely inappropriate for 
any nominee for the Court to come, either in a private meeting or in a 
public setting, and say: Well, if I am elected, I will decide this case 
or this issue in this way. That is completely contrary to the 
responsibility of a judge, and I think mistakes the important 
distinction between how judges and legislators ought to act.
  Judges are not politicians. We don't want them as politicians. We 
want them as an independent judiciary that can interpret the 
Constitution and laws as written. This is an important difference 
between some of our friends on the left and those of us who believe in 
a traditional judiciary. I believe that because judges are life-tenured 
and they are unelected, they are ill-suited to become policymakers for 
our country.
  Indeed, as to Justice Scalia, I thought this was one of his life's 
work. He said:

       A judge's job is to interpret the written word, either the 
     Constitution or the statutes written by the elected 
     representatives of the people. It is not to pursue a separate 
     and independent policy agenda or personal agenda just because 
     you have the power to do so as a lifetime tenured judge.

  So the fact that Judge Gorsuch does not answer questions about how he 
would decide cases once confirmed, I think, means he is being true to 
his responsibilities as a judge. If someone were willing to make those 
sort of campaign promises before they were confirmed, I think they 
would be disqualified from serving. Take the example of Justice Ruth 
Bader Ginsburg during her confirmation hearings in 1993. She said she 
did not want to give any hints or previews about how she might vote on 
an issue before her. So she politely declined to answer those 
questions.
  Nominees have since followed her example so much that it has now 
become known as the Ginsburg rule. So I hope our friends across the 
aisle don't now take the position that Judge Gorsuch would be 
disqualified because he invokes the Ginsburg rule, which all 
responsible judges or nominees to the Supreme Court should invoke. It 
has been a consistent theme throughout.
  So let's drop the excuses, and let's get to work. I hope that at some 
point the fever will break and our friends across the aisle will decide 
to quit the foot dragging, quit the slow walking for delay's sake 
alone. I don't know who benefits from that--certainly, not the American 
people.
  When it comes to nominees like Judge Gorsuch, I hope our colleagues 
will apply the same standard that was applied when a Democratic 
President nominated somebody for the Supreme Court like Justice 
Ginsburg. I hope they will not have a double standard but will agree 
that the standard should be the Ginsburg rule and give this good judge, 
an outstanding nominee for the U.S. Supreme Court, the up-or-down vote 
he deserves.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Ms. CANTWELL. Mr. President, I come to speak on the nomination of 
Congressman Price to lead the Health and Human Services Department. But 
I have to respond to my colleague from Texas on his remarks. He wanted 
to know why Members of our side of the aisle wanted to have information 
about nominees or why it might take so long.
  There are a record number of billionaires in this Cabinet. There is 
nothing wrong with people making money. But when you have conflicts of 
interest, clearly people on this side of the aisle feel like we should 
do our job and find out about those conflicts of interest. Even in 
record time, these nominees have moved through this body, coming to 
votes in committee without our even having all of this information that 
we wanted to have on their conflicts of interest.
  For one nominee, the Commerce Secretary, we were negotiating even the 
day of the vote to clarify whether he was going to recuse himself if 
any of his transport vessels ever entered U.S. waters and would have a 
conflict on the Oil Spill Liability Trust Fund.
  So there is the notion that somehow we have been dragging our feet on 
a Cabinet, when a billionaire Cabinet has been nominated by this 
President, who seems to want to tweet against commerce. The conflicts 
are here, and we want them cleared up.
  As to Mr. Price, there are issues here that even the committee was 
not given the chance for a second hearing to get information about his 
conflicts of interest. So for my colleague--who thinks for a party that 
railroaded Zoe Baird because of a housekeeping issue, and yet there are 
nominees that we have moved forward on who have the

[[Page S986]]

same issue--now to say to us that we don't have the right to find out 
what these conflicts of interest are, I would say that you are wrong.
  On this issue for Mr. Price, my issue is the issue of our health care 
delivery system, which was very hard to pin him down on as it relates 
to the Affordable Care Act. My view is that this vote is the first vote 
in the repeal of the Affordable Care Act. Why? Because Mr. Price held 
nothing but his own views about this before coming to our committee.
  When we asked repeatedly what would he endorse as it related to the 
reforms in the Affordable Care Act that are saving Americans money, 
that are clearly working for Americans, he failed to make a commitment. 
So my newspaper in Washington State, the Seattle Times, has said: 
``President-elect Donald Trump and his nominee for U.S. Secretary of 
Health and Human Services have doubled down on Republican promises to 
scuttle the Affordable Care Act (ACA).''
  So that is not what I want. That is not what I am going to vote for 
in the nomination of Mr. Price. If Mr. Price had given us a little bit 
of an inkling of his desire to work across the aisle on what is working 
in the Affordable Care Act, what is working in Medicaid expansion, what 
is working to help save Americans dollars on their health care, it 
would be a different discussion here. But Mr. Price has put forth a 
budget in the House of Representatives that would cut Medicaid by one-
third within 10 years. His budget cuts $1 trillion from States over a 
10-year period of time.
  So this philosophy has raised a lot of concerns by my colleagues 
here. We had no other choice but to look at his record since he would 
not give us any answers on these programs. His record clearly shows 
that he has actively and aggressively worked to cap Medicaid with a 
block-grant program; trade away Medicare's guarantees with a voucher, 
instead; defund Planned Parenthood; and switch guaranteed benefits for 
a fixed tax credit that would steadily buy less and less and less and 
become more of a standard of actually giving Americans less health 
care.
  Why is this so important? The reality is that 7 percent of Americans 
get their health insurance through the individual health insurance 
market, and that while people talk about the exchanges, the expansion 
of Medicaid, which so many States took advantage of, is a critical 
program. Nationally, nearly half of pregnant women depend on Medicaid 
for prenatal and postnatal care to ensure healthy pregnancies.
  Medicaid covers 64 percent of nursing home residents and is the 
largest payer for long-term care. Many Americans in the United States 
are now going into nursing homes because they can't afford to save for 
retirement. Medicaid is critically important. In hospitals across the 
Nation, one in two births are financed by Medicaid. Medicaid insurance 
actually costs less than private insurance. So, it is a very efficient 
way to cover a population.
  I know a lot of my colleagues are going to come out here and talk 
about Medicare. I am sure seniors in America will be very anxious about 
Mr. Price's statements on Medicare. But I am speaking here now about a 
program that is keeping people off of uncompensated care, keeping them 
from flooding our hospitals, and putting them on a system that is 
working for our Nation to cover people who need to have an option.
  Now, I say ``option.'' Why? Because Medicaid itself is an optional 
program. States don't have to participate. But guess what. Every State 
in this country does participate. In fact, in Washington State, we know 
that Medicaid reduces, as I said, infant mortality. It helps with long-
term health care, and it is helping us make sure we are becoming more 
efficient in our delivery system.
  So in Washington, we expanded Medicaid and covered 600,000 additional 
Washingtonians, most of whom were previously insured. It helped us 
reduce our uninsured rate by 60 percent, to less than 6 percent; that 
is, 6 percent of Washingtonians are now not with a health insurance 
program.
  So why am I so concerned about this? Because in the Affordable Care 
Act, reforms are working. We would like a nominee who would at least 
address and agree that those things are working. For example, as I just 
mentioned, because the Medicaid population and long-term care costs are 
rising, and the number of people are living longer, they are going to 
drive a huge balloon into our Medicaid budget. So we came up with an 
idea of saying: You should ``rebalance'' from nursing home care to 
community-based care.
  Why? Because people would like to live in their homes longer, because 
we can deliver more affordable care that way. It is better for the 
patient, and it is better for our health care delivery system. So what 
did we do? We put incentives into the Affordable Care Act to give the 
patients a cheaper, more affordable way to stay in their homes and get 
long-term care.
  It is really amazing to me how many States in our Union took up the 
opportunity to participate in this program: Arkansas, Connecticut, 
Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Mississippi, 
Missouri, New Hampshire, New Jersey, New York, Texas, Illinois, Maine, 
Ohio, Nevada, Massachusetts, Nebraska, and Pennsylvania.
  All of those States decided to use this part of the Affordable Care 
Act because they agreed in philosophy that taking this population and 
rebalancing would save dollars in Medicaid, give people better health 
care choices, and save us money overall. In fact, the State of Georgia 
received $57 million from the Affordable Care Act to do this and has 
been able to shift 10 percent of its long-term care costs from nursing 
home care to community-based care with the help of this program. So it 
is a winning strategy.
  Yet we could not get a commitment or an awareness by Mr. Price about 
this program, what it does, why it is so successful, or the concept 
that having people get care in their homes would be appropriate for so 
many Americans over the very expensive nursing home care that so many 
States are burdened with and so much of our Federal dollars are going 
to be burdened with in the future.
  We also tried to discuss with him another incredible idea from the 
Affordable Care Act; that is, the Basic Health Plan: the idea that 
customers should be able to buy in bulk. I call it the Costco plan, 
because everybody knows that when you buy in bulk, you are going to get 
a discount.
  But beyond the Medicaid eligibility level, so much of what Americans 
have not been able to do is to buy in bulk. So part of the Affordable 
Care Act said that you could buy in bulk as a State and give a benefit.

  What is the outcome of that? Well, the State of New York is using the 
Basic Health Plan and has signed up more than a half million people 
under that plan.
  Right now, a family of four in New York making about $37,000 a year, 
if they were buying just on the exchange, might have to pay $1,500 in 
annual premiums, with tax credits. Because of the Basic Health Plan, 
they are paying about $250 per year in premiums. That is a savings of 
over $1,000 per year for those families. This is an important program. 
Why? Because those in the delivery system have certainty that they are 
going to see those patients, just as Costco, when they buy in bulk for 
so many Americans across the country, knows that Americans are going to 
shop there and take advantage of the discount that they were able to 
negotiate, and it works for everyone. The producers know they will have 
volume, the customer knows they will get the best price, and more 
people are covered.
  The fact that New York has used the Basic Health Plan, as well as 
Minnesota, has shown us that these kinds of expansions of Medicaid--and 
programs like the Basic Health Plan that exist just above the Medicaid 
eligibility rate--work successfully for us and are the types of things 
we wish Mr. Price would endorse. But, again, he failed to endorse these 
kinds of things.
  What he has said, instead, is that he wants to cap these programs, 
which is not an improvement to the system but almost a truncating of 
the cost. In my mind, it is like a surgeon going into surgery but 
instead of taking a scalpel, he is taking an ax.
  Given what the people of Washington State have done successfully in 
driving down health care costs and improving outcomes, I am not willing 
to take a risk on somebody who will not take a risk and say that these 
programs are working successfully.

[[Page S987]]

  I hope our colleagues will listen to these concerns. This is the 
first vote in the dismantling of the Affordable Care Act. It is the 
first opportunity we have to say: Either tell us what is working or 
tell us what you are for.
  But on Mr. Price, all we have is his record. And I hate to say, his 
record, by capping and desiring to cut Medicaid and Medicare, is not 
the direction our country needs to go.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The President pro tempore.