[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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