[Congressional Record Volume 163, Number 122 (Wednesday, July 19, 2017)]
[Senate]
[Pages S4064-S4067]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Order of Procedure

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
recess from 1:45 p.m. until 4 p.m.; further, that all time during 
morning business, recess, adjournment, and leader remarks count 
postcloture on the nomination.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Ohio.
  Mr. BROWN. Mr. President, today's vote to move forward the 
President's nominee to join the Sixth Circuit Court of Appeals is a new 
low. It is a new low that sets a dangerous standard for judges who have 
power to make critical decisions that impact the everyday lives of the 
people we serve.
  John Bush has a clear record--think about it. He is going to be a 
judge if this place moves forward tomorrow. John Bush has a clear 
record of promoting bigotry and discrimination that have no place in 
our courts. We can't let this nomination slide through this body.
  Mr. Bush advocated to the U.S. Supreme Court that women should be 
barred from attending our military institutions--in this case, Virginia 
Military Institute. Think about that. There are people in this body who 
just voted on the motion to proceed--a very small majority that passed 
this--they are

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voting for a judge who says to the Supreme Court that women should be 
barred from attending military institutions like VMI. He went so far as 
to call the legal standard allowing women to attend ``destructive.'' 
And we are going to put him on the court? That wasn't 1950. That wasn't 
1960. That wasn't in the 1970s. That wasn't even in the 1980s. It was 
in the 1990s when he said that. Luckily, our Nation's Supreme Court 
disagreed with Bush's retrograde and sexist opinion by a vote of 7 to 
1.
  But, alas, Bush wasn't deterred. To this day, he is still a member of 
an organization that doesn't allow women to join. He has been a member 
of groups that have a history of barring Jews and African Americans. 
Maybe we see some signs of that at the White House, but we shouldn't be 
affirming that on the Senate floor. One of these groups actually 
changed its street address after the city of Louisville renamed the 
street where the front entrance sits for the boxing legend Muhammad 
Ali. Think about that.
  Senator McConnell himself resigned from that same organization 
because, according to the Lexington Herald-Leader, the majority leader 
said he ``thought it was no longer appropriate to belong to a club that 
discriminated, and my impression was that the club did.'' But we are 
bringing to the floor a vote for a judge who still belongs.
  Leader McConnell went on to reference a commonly accepted Senate 
standard that Federal judges should not belong to discriminatory 
organizations, saying: ``I thought if it was inappropriate for a 
federal judge to belong to an all-white club, it certainly was 
something a United States Senator shouldn't do.''
  So I guess the logic here is that Senators shouldn't belong to a 
Whites-only club, but Senators should vote for Federal judges who can 
belong to a Whites-only club.
  I agree with Senator McConnell that a Senator shouldn't belong, but 
no Federal judge should belong to a group with a history of 
discrimination, especially a recent history of discrimination.
  Bush regularly contributed to a conservative blog using a fake name. 
There he advocated extreme political views on issues, including 
healthcare, campaign finance, LGBT rights, climate change--all critical 
issues that come before this court, the Sixth Circuit serving Michigan, 
Ohio, Kentucky, and Tennessee. He even cited White supremacist sources. 
We are going to vote for this man? He even cited White supremacist 
sources that pushed the conspiracy theory that President Obama was not 
born in the United States.

  I know the President of the United States--the man who sits in the 
White House--also subscribed to those birther theories, and only late 
in his campaign did he say: Well, I do, in fact, believe that the 
President was born in the United States. He, at least--the President of 
the United States, the sitting President, then-Candidate Trump--at 
least finally retracted that. Mr. Bush seems to continue to say that 
President Obama wasn't born in the United States and cited those White 
supremacy theorists who pushed that conspiracy theory.
  He has expressed hostility toward women's rights to make their own 
personal, private healthcare decisions. In a 2005 public speech--again, 
not in 1965 or 1975 or 1985, but in a 2005 public speech, he cavalierly 
repeated a hateful homophobic slur. I would repeat it, but I don't 
think it is proper to use that language on the floor of the Senate. I 
also don't think it is proper to vote for a nominee to be a judge who 
feels cavalierly that he can use that term. He said Speaker of the 
House Nancy Pelosi should be gagged. He has attacked Senator Ted Cruz, 
our colleague in this body.
  Everyone is entitled to free speech, obviously, even if they choose 
to do it under a fake name. And Mr. Bush is entitled to his political 
opinions, no matter how offensive. I, of course, defend his right to 
say whatever he wants. I think others do too. But those opinions have 
no place in a Federal court whose job it is to interpret the law fairly 
and impartially.
  Can Mr. Bush be trusted to put aside his personal views when 
considering the law? Even according to his own words, he can't. At Mr. 
Bush's hearing, my friend from North Carolina, Senator Tillis, asked 
Mr. Bush if judicial impartiality is ``an aspiration or an absolute 
expectation.'' Bush responded that impartiality is an aspiration--so, 
in other words, not an expectation. He doesn't think he needs to be an 
impartial judge; he just needs to be able to say that he tried.
  To administer the law fairly and impartially is the No. 1 job of a 
judge. The ability to do so is the most basic qualification for the 
job. Judicial impartiality is a principle of democracy and the backbone 
of our government. It is the reason African Americans and women can 
vote, that segregation is part of the past, and that marriage 
inequality is part of the past.
  I saw dozens of Democrats and Republicans last night at the Library 
of Congress listen to the words of Taylor Branch, perhaps the most 
noted historian of the civil rights movement, in an interview speaking 
to us about Dr. King having one foot in the Scriptures and one foot in 
the Constitution as he advanced and advocated for civil rights. We know 
what that means for our country. Last night, I saw Republicans and 
Democrats coming together and celebrating that. Then today on the 
Senate floor, we are voting for somebody like Mr. Bush, who eschews all 
of those values we hold dear as a country.
  The courts are the reason that women can now attend the Virginia 
Military Institute. It is the difference between upholding and 
oppressing the rights of the people we serve.
  Think about this: The Obergefell decision--Obergefell v. Hodges in 
Ohio--was the decision that guaranteed the right to marriage equality. 
It came out of the Southern District of Ohio and was initially appealed 
to the Sixth Circuit in Cincinnati. Imagine if a man who boldly 
repeated homophobic slurs had heard the Obergefell appeal. Think about 
that. He thinks it is very acceptable in public to make speeches and 
use homophobic slurs, and he is now sitting on the court bench making 
decisions about this.
  Imagine if today an LGBT Ohioan or a Michigander or someone from 
Senator McConnell's home State or Senator Alexander's home State of 
Tennessee--if they faced this man, could they be confident that their 
case would be decided fairly and impartially and that justice would be 
served? Could we be confident that it would when we have a man who will 
stand up at an event in a big city, the largest city in Kentucky, and 
engage in homophobic slurs?
  I have heard from both African Americans and Jewish Americans who are 
absolutely outraged at this nomination, partly because he is unfit to 
serve and partly because now, as Senator Whitehouse, my friend from 
Rhode Island, who has one of the best judicial minds in this body, has 
said, if we confirm Bush, it is going to lower the bar in the future to 
where it is OK to engage in racist talk or homophobic or misogynist 
talk; it is OK because Judge Bush did, and he is sitting on the Sixth 
Circuit, so why not bring some more forward? Is that the standard, that 
your votes today--the 51 Members of this body who voted for cloture--is 
that the standard you want to set for the future?
  Organizations with a history of fighting for justice and equality 
have written to me opposing this nomination, including the Human Rights 
Campaign, the NAACP Legal Defense and Educational Fund, the National 
Council of Jewish Women, the Leadership Conference, and on and on and 
on.
  We have a responsibility to hold judges to the highest standard. The 
job demands it. The people we serve--the people whose lives can be 
forever changed by the decisions these judges make--deserve it. We 
cannot allow the bar to be lowered for what is considered acceptable 
behavior by members of the Federal bench because as this bar is 
lowered, the faith of citizens in the courts and in this body falls 
along with it. That is the tone we are setting. That is the precedent 
we are setting.
  I am not a lawyer. A lot of my colleagues who voted for John Bush to 
be confirmed are lawyers. They understand what precedent means. They 
understand what political precedent means in this body. I don't think 
they want that bar lowered because they know that if we do, as I said, 
the faith of citizens in the courts and in this body falls along with 
it.

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  I hope my colleagues join me in opposing Mr. Bush and show the 
American people that the Senate still has high expectations and that we 
still stand for decency and impartiality in our Federal judiciary.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sullivan). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, we are grinding the wheels here in 
Washington, DC, in the Senate very slowly, too slowly, when it comes to 
confirming the President's nominees, first to the Cabinet and now to 
the sub-Cabinet positions.
  When the American people elected President Trump on November 8, they 
knew they were electing not just one person but also his full executive 
branch team, most certainly when it comes to filling vital national 
security positions like those in the Department of Defense. But because 
of unprecedented delay and obstruction from our Democratic colleagues, 
at the current pace, it would take more than 11 years to fully staff 
the executive branch--and to what end? Do our Democratic colleagues 
object to the qualifications of these nominees? Well, the answer is, by 
and large, no. Most of these nominees have sailed through the relevant 
committees, and some were even nominated by President Obama, but that 
doesn't do anything to expedite the confirmation process. So I can only 
be left to conclude that our Democratic friends are just trying to make 
it more difficult for President Trump to do his job and, in the 
process, make it harder for us in the Senate to do ours.
  On Monday, we voted to end the filibuster of Patrick Shanahan, the 
nominee for Deputy Defense Secretary at the Department of Defense. 
Thankfully, we voted to confirm him, but he was confirmed by a vote of 
92 to 7, so there wasn't any good-faith disagreement about his 
qualifications. There wasn't any real doubt about whether he would be 
confirmed, but our friends across the aisle insisted on burning as much 
time as possible, using every procedural objection they could in order 
to delay it. This is the same person who passed out of the Armed 
Services Committee by unanimous voice vote, essentially by unanimous 
consent.
  Well, if there is one thing that is indispensable in the Federal 
Government, it is our national security. The Department of Defense has 
been facing a critical shortfall in leadership, which is dangerous to 
the Nation, especially while we are engaged in such a vast array of 
conflicts around the world. We have seen only 6 of President Trump's 22 
nominations confirmed, and by drastically delaying this process, our 
Democratic colleagues are promoting not only the waste of taxpayer 
dollars, but they are putting lives at risk. I recently talked to the 
commander of a cyber unit who said that it took months for recently 
appropriated money to make its way out to his unit. In the meantime, he 
had to make personnel cuts and forgo investing in resources that would 
strengthen our cyber defenses, all because we couldn't get 
administrative positions filled at the Pentagon. The type of drastic 
action this particular commander was forced to take is not unique. It 
is reprehensible that anyone would play politics and delay for delay's 
sake, especially when considering the nomination of a person who 
directly impacts the training and readiness of our troops.
  Of the 197 nominations to agencies made by the President so far, the 
Senate has confirmed only 48. Additionally, the Senate has confirmed 
only 2 of the 22 judicial nominations. This is one reason the majority 
leader said that we are going to spend a couple more weeks during the 
August recess to be here, working to get our work done. I have already 
heard from some of our Democratic colleagues saying: Why would the 
majority leader make that decision? I said: All you need to do is look 
in the mirror and ask that question of the Democratic leader, who is 
leading this unprecedented effort in obstructing and slow-walking these 
nominations. I suspect that they are going to come forward and say: 
Well, let's play nice now. Let's make a deal.
  The Department of Justice, for example, has only 3 out of 19 
nominations confirmed. This is the Department of Justice. The 
Department of Health and Human Services--by the way, we have been 
talking a lot about healthcare. Wouldn't you think we need a full 
complement of nominees confirmed there? But only 3 out of 11 have been 
confirmed there.
  In November, when the people elected President Trump, they wanted 
him, certainly by implication, to appoint a Cabinet of qualified 
individuals to help guide our country and carry out the tasks and 
policies of the administration. I am left with the unfortunate 
conclusion that, really, what this is designed to do is to not accept 
the verdict of the voters on November 8 but to continue to obstruct 
this President and the executive branch by any means available in order 
to try to make his job harder. The problem with that is it hurts the 
American people. It wastes taxpayer money. It makes our country and the 
world more dangerous, especially when his national security nominees 
are not considered and not confirmed. So it really does represent, to 
my experience, an unprecedented unwillingness to accept the outcome of 
the election, and it shows contempt, I believe, for the will of the 
American people when it came to the election on November 8.

  It is easy to call this what it really is. It is an unwillingness to 
accept the outcome of the election, further poisoning the already toxic 
atmosphere here in Washington, DC, and it doesn't need to be that way. 
In my experience, even after tough elections, people on both sides of 
the aisle would generally accept the outcome. I don't know what the 
alternative might be but to accept the outcome and then try to work 
together in the best interest of the American people, try to find those 
areas where we do agree--we don't agree on everything, but there are 
areas where we do agree--and to move forward and make progress. That 
doesn't seem to be happening today, and it is too bad. It is 
unfortunate.
  To put this in perspective, there were only eight cloture votes of 
President Obama's nominees by his first August recess in 2008. For 
everybody's concern, the term ``cloture votes'' basically means 
invoking all of the procedures to delay things and make it harder to 
confirm nominees. Only eight times was that used when President Obama 
was President. By the time we reach the August recess this year, we 
will have had over three times as many cloture votes; that is, 
unnecessary obstacles placed in the way of timely confirmation of 
President Trump's nominees, making us jump through more hoops. It is 
delay for delay's sake. I believe this strategy--and it is a strategy--
is simply unconscionable and that the time-consuming parliamentary 
procedures and slow-walking and needless gridlock advance no interest 
of the American people.
  I can only hope people will change in the way they approach this. 
Maybe if they hear from their constituents, maybe if the stories are 
written about it or people hear about it on the news, they will call 
their elected representatives and say: The election is over. Accept the 
outcome and try to work together in the best interest of the American 
people. I think that is what our constituents expect of us.
  So this week we will press forward with two important nominations, 
John Bush to be U.S. circuit judge for the Sixth Circuit and David 
Bernhardt to be Deputy Secretary of the Interior. These are two 
additional, highly qualified individuals who are seriously needed in 
their respective roles, but it shouldn't take a whole week to confirm 
three nominees. That is what it takes now, given the obstruction and 
foot-dragging on the other side.
  I would urge our colleagues to end their political gamesmanship for 
the benefit of our country and for the American people so we can move 
forward doing the people's business.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burr). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MERKLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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