[Congressional Record Volume 163, Number 122 (Wednesday, July 19, 2017)]
[Senate]
[Pages S4061-S4063]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Healthcare

  Mr. McCONNELL. Mr. President, ObamaCare was imposed on our country 7 
long years ago. It has been hurting the people we represent ever since. 
Families were supposed to spend less on healthcare costs. They actually 
paid more. Families were supposed to have more healthcare choices. They 
ended up with fewer, sometimes none at all.
  Worse still, for many years, we had an administration that often 
waived away the concerns of middle-class families who were hurting. 
Today, we thankfully have an administration that has chosen instead to 
listen and agrees with us that Americans deserve a lot better.
  I appreciate the efforts of the administration at every step of the 
process to move beyond the failures of ObamaCare. The President, the 
Vice President, Secretary Price, Administrator Verma, so many others--
we thank them for all the work they have done so far. We look forward 
to continuing these collaborative efforts when we travel to the White 
House later today because we have a very important task before us.
  As I announced last evening, after consulting with both the White 
House and our Members, we have decided to hold a vote to open debate on 
ObamaCare repeal early next week. The ObamaCare repeal legislation will 
ensure a stable 2-year transition period, which will allow us to wipe 
the slate clean and start over with real patient-centered healthcare 
reform. This is the same legislation that a majority of the Senate 
voted to send to the President in 2015. Now we thankfully have a 
President in office who will sign it, so we should send it to him.
  Mr. President, today the Senate will vote to move forward on the 
nomination of John Bush, of Kentucky, to serve as a judge on the Sixth 
Circuit Court of Appeals.
  As I said when I introduced Mr. Bush to the Judiciary Committee, I am 
pleased to join the bipartisan chorus of voices supporting his 
nomination. More than 100 lawyers and law professors from around the 
country have written in support of his nomination. Nearly one-third of 
those supporters are Democrats. They laud Mr. Bush's ``excellence, 
professionalism, and leadership in the legal profession.'' They also 
note his ``capacity to approach issues with an open mind and to 
respectfully consider the viewpoints of others.''
  In addition, some of his supporters from across the ideological 
spectrum and from around the country who have known Mr. Bush for 
decades have written separately to underscore their support for his 
nomination. They are confident he understands the role of a judge, 
which is to fairly consider the arguments of both sides in a case and 
then to decide that case based on the law and nothing else. Indeed, it 
is precisely because of his firm belief in the rule of law that they 
strongly support his nomination, despite the fact that he and they may 
hold different political and policy views.
  As an illustration, I think we can all agree it is not common for 
current or former leaders of Planned Parenthood

[[Page S4062]]

to praise judicial nominees of Republican Presidents, just as it is not 
common for me to quote leaders of that organization.
  More than one has praised the President's nomination of John Bush 
because of his fairness, thoughtfulness, and respect for the views of 
others, regardless of his personal opinions. For instance, Christie 
Moore is on the board of directors of Planned Parenthood of Indiana and 
Kentucky. She has practiced law with Mr. Bush for nearly two decades. 
She is ``confident'' that ``he will follow the rule of law regardless 
of his personal or political opinions. In my experience, John naturally 
approaches issues with an open mind and has always been respectful of 
differing viewpoints. In fact, I am a living example of John's ability 
to seek out and respect differing viewpoints and opinions. John and I 
come from opposite ends of the political spectrum--I am a life-long 
registered Democrat and proudly approach life and politics as a 
Democrat. Yet John and I have practiced closely together and enjoy a 
strong and respectful relationship.''
  She concludes: ``I can personally attest John is a consummate 
professional, and I believe he will be a tremendous asset to the 
federal court of appeals.''
  Her law firm colleague, Janet Jakubowicz, similarly explains why Mr. 
Bush will do an outstanding job on the Sixth Circuit. She states that 
he ``has shown himself to have both the legal ability and temperament 
to be an outstanding judge.''
  She writes it is precisely because she is a ``long time registered 
Democrat'' that she can say ``with extreme confidence'' that John Bush 
``approaches issues with an open mind and has always been respectful of 
differing viewpoints'' and that he will make decisions on the bench 
``in the same manner, and follow the rule of law regardless of his 
personal or political opinions.''
  Sheryl Snyder, also from my hometown, notes that he and Mr. Bush 
``come from different political parties and have different perspectives 
on many political issues.'' Mr. Snyder says that he is ``a Member of 
the American Civil Liberties Union, and not the Federalist Society.'' 
Nevertheless, he has ``every confidence that as a Court of Appeals 
Judge, John will scrupulously follow the law and apply precedent.'' He 
notes that Mr. Bush is ``well known . . . as an experienced, capable, 
ethical litigator'' and that ``his knowledge of the law is 
unquestioned.''
  Praise for Mr. Bush is not confined to those from the Commonwealth of 
Kentucky, however. Ted Boutrous, Jr. practices law in Los Angeles. 
Among other matters, Mr. Boutrous represented the plaintiffs in their 
challenge to California's Proposition 8. He has known John Bush for a 
quarter century. He writes that ``while we come from different 
political parties . . . I am certain John will make an absolutely 
superb Circuit Judge. He is an extraordinary lawyer and an 
exceptionally fair, decent, and honest person. I have every confidence 
that as a judge, John will scrupulously follow the law and Constitution 
and precedent.''
  Mr. Bush has received numerous professional awards. For instance, the 
Best Lawyers in America named him the ``Louisville Litigation-Antitrust 
Lawyer of the Year in 2017,'' this year. Last year, the same 
organization recognized him as the ``Louisville Appellate Practice 
Lawyer of the Year.'' He has been included on the Kentucky Super 
Lawyers list every year for the last decade.
  Beginning in 2012, the Sixth Circuit appointed him to serve on its 
advisory committee on rules, in recognition of his in-depth knowledge 
of the court's practice and procedure.
  In sum, as evidenced by the impressive testimonials of those who 
actually know him, John Bush is a man of integrity and considerable 
ability. He will do an outstanding job on the Sixth Circuit.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I rise in open opposition to the 
nomination of John Bush, nominated to serve a lifetime appointment on 
the Sixth Circuit Court of Appeals.
  The Federal courts of appeal have a significant impact on the lives 
of many Americans. Because the Supreme Court only reviews a limited 
number of cases each year, decisions by the circuit courts represent 
the final word on thousands of legal matters that involve a host of 
important issues.
  The Senate has to take very seriously its obligation to consider 
candidates for these important courts. We have to make sure they have 
the qualifications, the temperament, and the judgment to serve for the 
rest of their lives. Based on Mr. Bush's record and his testimony 
before the Judiciary Committee, I believe he falls short of this 
standard.
  Over the course of his legal career, Mr. Bush has made dozens of 
provocative comments, casting serious doubt on his temperament, his 
judgment, his impartiality, and his ability to serve as a fair and 
impartial judge.
  Consider the following things that this nominee has said or done:
  In 2008, Mr. Bush compared abortion to slavery, writing in an 
anonymous blog, I might add, that ``the two greatest tragedies in our 
country--slavery and abortion--relied on similar reasoning and activist 
justices at the U.S. Supreme Court, first in the Dred Scott decision 
and later in Roe.''
  Senator Feinstein and I decided to ask Mr. Bush to explain this 
statement at his hearing. He did not disavow the comparison he made in 
this anonymous blog. Here is what he said instead. He claimed that he 
had referred to Roe v. Wade as a tragedy ``in the sense that it divided 
our country.''
  I asked Mr. Bush to explain his logic, asking whether he would 
characterize Brown v. Board of Education as a case that divided our 
country. He answered: ``I wasn't alive at the time of Brown, but I 
don't think it did.''
  That is an incredible statement made by a man who seeks to serve on a 
Federal circuit court for the rest of his life. His logic and his 
historical analogy have fallen apart. There is no dispute that Brown v. 
Board of Education, which ended up in the official desegregation of 
public schools across America, was a landmark Supreme Court decision 
that deemed racial segregation unconstitutional and, as a result, led 
to controversy and division across the United States.
  I can't believe a man from Kentucky, a border State--a neighboring 
state of my State of Illinois--could not measure the impact of Brown v. 
Board of Education and whether it divided our country. That, to me, is 
incredible. The reason, of course, he didn't is because he didn't want 
to concede, quite obviously, that he was just opposed to a woman's 
right to choose, and this was a rationalization for this position.
  There were many other instances in which Mr. Bush expressed 
provocative and troubling views. He wrote that public financing of 
election campaigns is ``constitutionally dubious'' and ``runs afoul of 
constitutional guarantees by forcing taxpayers to subsidize candidates' 
political speech and contravention of those taxpayers' First Amendment 
rights.''
  This is a view which is hard to understand because it contradicts 
decades of Supreme Court precedent. Mr. Bush, seeking this opportunity 
to serve for the rest of his life on a Federal court, has now 
questioned a Supreme Court precedent which has been on the books for 
years.
  He gave a speech where, sadly, he made an anti-gay slur about the 
town of Louisville, KY. He wrote blog posts supporting the nomination 
of a voter suppression advocate Hans von Spakovsky to the Federal 
Election Commission. In response to a written question I sent to him, 
he refused to disavow President Trump's claim that 3 to 5 million 
people voted illegally in 2016. He said it was ``the subject of 
political debate.'' That assertion by the President has been rejected 
and discredited by every objective person who has been challenged but 
not by Mr. Bush, who seeks this lifetime appointment to the court.
  Mr. Bush wrote blog posts that repeatedly placed the terms global 
warming and climate change in quotes, insinuating they did not exist.
  He described then-House Speaker Pelosi as ``Mama Pelosi'' and wrote 
that someone should ``gag the House speaker.''
  He posted articles from right wing websites, speculating that former 
President Barack Obama was born in Kenya.
  He wrote in a blog post during the 2016 Republican National 
Convention, ``Time to roll with Trump.''

[[Page S4063]]

  The list of comments goes on and on. On a range of policies and legal 
issues, Mr. Bush has already made crystal clear where he stands.
  At his hearing, Mr. Bush asked the Judiciary Committee to trust that 
he could completely set aside everything I have read into the Record 
this morning; that he can walk away from his personal views if he is 
confirmed to serve on the circuit court. Unfortunately, he has given us 
little reason to trust that assurance. He has no judicial experience 
demonstrating that he could be impartial. He spent his entire career in 
private practice.

  At his hearing before the Judiciary Committee, Mr. Bush was asked by 
Senator Tillis, a Republican Senator: ``Do you think that impartiality 
is an aspiration or an absolute expectation?''
  Mr. Bush responded: ``It is an aspiration. I will do my best to be 
impartial.''
  In other words, Mr. Bush claims that he will try to be impartial but 
that the Senate shouldn't expect that he will be completely successful.
  Here is what Senator Tillis, my Republican colleague, then said in 
reply: ``I actually have a concern with someone who thinks impartiality 
is an aspiration. I think it is an expectation.''
  I agree with Senator Tillis.
  I believe Mr. Bush's failure to commit to impartiality disqualifies 
him from this lifetime position.
  Mr. Bush's views are far outside the judicial mainstream. He provided 
no evidence that he could set aside his views if confirmed.
  I understand that Mr. Bush does check many of the boxes we have seen 
for recent nominees from this administration. Most important and 
absolutely essential to his nomination is the fact that he is a 
longtime member of the Federalist Society.
  The Federalist Society describes itself as ``a group of conservatives 
and libertarians dedicated to reforming the current legal order.'' The 
Federalist Society is funded by big money, rightwing interests like the 
Koch brothers, the Chamber of Commerce, and the Ed Uihlein Family 
Foundation. This is the group President Trump personally thanked for 
selecting his list of Supreme Court nominee finalists. So far this 
year, every Trump judicial nominee who has had a hearing before our 
Senate Judiciary Committee has been a Federalist Society member. 
Coincidence? I don't think so.
  I urge my Republican colleagues not to let the Federalist Society 
serve as the selection committee--the secret handshake--to become a 
Federal judge for life in the United States of America. We want a 
Federal bench that welcomes independent and impartial thinkers. Mr. 
Bush's Federalist Society membership shouldn't be his ticket to the 
Federal bench.
  In conclusion, this vote, when it comes to his nomination, is really 
not a close call. It is clear that Mr. Bush has friends in high places, 
but he has demonstrated a temperament and a judgment which we should 
not put in a lifetime position on the Federal court of appeals. I urge 
my colleagues to oppose his nomination.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cotton). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.