Congressional Record, Volume 163 Issue 122 (Wednesday, July 19, 2017)

[Congressional Record Volume 163, Number 122 (Wednesday, July 19, 2017)]
[Senate]
[Pages S4067-S4073]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Healthcare

Mr. MERKLEY. Mr. President, the most important three words in our
Constitution are the first three--``We the People''--the mission
statement for our Nation, laid out in supersized font so that no one
would forget what this document, our Constitution, is all about. Our
Founders did not start out by writing ``We the privileged.'' They did
not call for a document or a form of government for ``We the
powerful.'' Indeed, they wanted to make clear that the structure of the
government they were founding would be very different from those in
Europe that functioned for the privileged and the powerful.
As President Lincoln summarized, we are a Nation of the people, by
the people, and for the people. That is the vision. That is the vision
that I have been coming to the floor and talking about for the last
year and a half--about the importance of a government that responds to
the issues that affect the citizens across this country, that listens
to the people of this Nation.
It was President Jefferson who said that the mother principle of the
United States is that we have a government within which each citizen
has an equal voice. Admittedly, we had some deep flaws that had to be
corrected in order to reach that objective, but that vision of each
citizen's having an equal voice was the only way that the government
would reflect the will of the people and make decisions that would
reflect the will of the people. Of course, it is hard to hold onto that
vision because the powerful and the privileged do not like that vision.
They want a government that is of, by, and for the powerful and the
privileged, not of, by, and for the people.
The history of the United States is one battle after another of
decisions that make a foundation for families to thrive in the United
States of America and decisions that raid the National Treasury for the
benefit of the rich. We see that battle time and time and time again,
and we have seen it very recently in this battle over healthcare.
Today, I come to the floor to say that the people of the United States
have had an incredible victory--a resounding victory--over those who
were championing government by and for the privileged and the powerful.
It is really all about this bill, this TrumpCare bill, which
originated in the House of Representatives. It proceeded to throw
millions off of insurance--more than 20 million people off of
insurance--in order to give tax breaks to the richest Americans. What
did the House's bill do? The House's bill said that we will give to the
400 richest Americans $33 billion--not $33,000, not $33 million--and
rip healthcare away from millions of Americans in order to pay for
those kinds of tax breaks for the richest. In fact, just those tax
breaks for the richest 400 Americans would have paid for 700,000
Americans to have had Medicaid, which is basic healthcare insurance.
That would have been enough to have covered the States of Arkansas,
West Virginia, Nevada, and Alaska all put together.
Then we saw the House's bill come over here to the Senate, and the
Senate set up a group of the secret 13. Is there anything more opposite
of ``we the people'' than the secret 13 Senators meeting in the halls
of this building and particularly choosing a room that the press would
not be allowed into? They did not want to be seen entering the room or
leaving the room. That is how secretive it was. That is how embarrassed
they were about the possibility of having the American people see what
they were crafting. Then they came forward with the Senate's version of
the bill.
Now, of the House's version, the President of the United States of
America called it mean, and he called it heartless, but the Senate's
version did not end up being much different than the House's version--
the Senate's version that would proceed to throw more than 20 million
people off of healthcare, as well, the Senate's version that, through,
maybe, the Congressional Budget Office's analysis, would throw off 1
million fewer over 10 years--22 million instead of 23 million--but 1
million more over the first year, that being 13 million rather than 12
million. It proceeded to constrain basic Medicare--Medicare as it
existed before ObamaCare--in such a fashion that, over time, it would
put a stranglehold onto Medicaid. Therefore, it was even meaner, if you
will. It was even more heartless than the Senate's bill.
Then the secret 13 and its leadership said: We do not want to have
the American people see this, so we are not going to give the time in
order to have committee hearings on it. We are going to keep it out of
the healthcare committee. We are going to keep it out of the Finance
Committee because the experts will come, and the American people will
see just how terrible, how mean, how heartless this bill is.
We had a zero, zero, zero process--zero days of committee
examination, compared to 8 years earlier with the longest committee
hearing and markup that lasted 5 weeks in the Health, Education, Labor,
and Pensions Committee. We had the second longest committee hearing and
markup in Finance 8 years earlier, which was the second longest in
history. Again, the Senate's leadership recently said: No exposure in
the Finance Committee--zero days in the Finance Committee--zero days in
the HELP Committee, and zero months for the Senators to go back and
talk to their citizens and talk to their healthcare stakeholders about
what this bill would mean.
You know that something is wrong when you have a process that has
diverged so dramatically from ``we the people.'' Instead, we had the
secret 13 and the zero days of committee examination and the zero days
in the Finance Committee and the zero months to be able to consult with
healthcare experts and stakeholders and, most importantly, zero months
to be able to hold a dialogue with the citizens back home.
Yet we did hear from the citizens back home. As great as the effort
was to hold them at bay--to give them the stiff arm and prevent them
from weighing in--they weighed in nonetheless. My office received well
over 8,000 phone calls. Of those, they ran 84 to 1, saying stop this
diabolical TrumpCare bill. I also received a whole lot of constituent
mail, with more than 25,000 people weighing in from Oregon, back home.
It ran 36 to 1.
With 84 to 1 and 36 to 1, when do you see such opposition?
Maybe we saw such opposition because the people of the United States
wanted to weigh in, knowing that only the powerful special interests
were meeting with the secret 13 to design this diabolical bill to rip
healthcare from millions of Americans. Maybe that is why so many
American citizens weighed in. Thank goodness they did weigh in. They
filled our email boxes, and they overflowed our phone systems. They
filled the streets often and went to our home States' offices to say
that this matters, and it certainly did matter.
Has there ever been a bill in the history of the United States that
did more damage to more people than the TrumpCare bill that was
proposed here in the U.S. Senate?
One of the things that the citizens of the United States did was to
weigh in with their stories with all of us--with all 100 Members of
this Chamber. They wanted to let us know how unexpectedly they had been
affected by their having a child who had a sudden and dramatic illness
or a car accident that had occurred or, suddenly, a family member who
had been afflicted with cancer or emphysema or leukemia or multiple
sclerosis. The list went on and on and on--real people, real lives,
real challenges, real ``we the people'' input.
I heard from Caroline in Portland, the mother of two young children
who wrote to me, sharing her story of raising a child with special
needs and the help that the Oregon Health Plan had been to her family--
the Oregon Health Plan, Oregon's version of Medicaid--and how terrified
she was about not being able to afford healthcare for her child under
TrumpCare.
I heard from Leslie, who contacted me about his 3\1/2\-year-old
daughter Gloria, who suffers from a rare genetic condition that has led
her to live with near constant seizures and cystic fibrosis. She needs
intensive, around-the-clock care, and she is able to get that care
because of a special Medicaid waiver that helps her parents afford it.
With TrumpCare, she would have lost that waiver.
I heard from Jay in Eugene, who reached out to share his story about
his battle with leukemia and stage IV

[[Page S4068]]

colon cancer. He was told he could only expect to live another 3
months, unless he received treatment. That was 2 years ago, and he is
alive because he was able to access treatment. He has been able to
fight the battle with cancer and fight the battle with leukemia, and he
was able to do so because of the insurance he had through ObamaCare--
through the Affordable Care Act.
Kerry from Corvallis wrote to me, terrified about all of the members
of her family who would be uninsurable if they passed TrumpCare: her
husband, because he had a blood clotting disease; her son, who suffers
from epilepsy; and her 78-year-old mother, who has Alzheimer's.
That fear of being unable to access healthcare because of a
preexisting condition ran through story after story after story, but
that is the system we had in the United States of America before we had
the Affordable Care Act.
Then, there was a woman from Ashland who asked me not to share her
name but wanted her story shared. I will call her Katie. Katie is a
single mother who is currently battling cancer--invasive breast cancer
and malignant melanoma. This is what she wrote to me:

In simple terms, I will die without treatment and the
ongoing care that I have received so far through Oregon
Health Plan. As a single parent, I could work 24/7 until my
last breath and still my income would not afford me basic
healthcare if it were not for the Affordable Care Act.

Katie continued:

With a pre-existing condition I would not be insurable,
left to suffer and even to succumb from my illness. Once,
this was only a nightmare, but now it is a horrifying
reality, too surreal to comprehend. I cannot explain the deep
heartache and frustration of the thought of orphaning my son,
all due to dying from an illness that could have been treated
if I had been insured.

Stories like Katie's and Caroline's and Gloria's keep coming in, day
after day, email after email, phone call after phone call--indeed, from
individuals at my townhalls. The weekend before last, I held a lot of
townhalls and a couple of special healthcare forums and a bunch of Main
Street walks in Oregon. Five of those townhalls were in counties that
are very red, very Republican, and I lost those counties in my
reelection by rates of probably 20 to 40 to 50 percent. But at those
townhalls, people came out and said: Please stop TrumpCare.
One out of three individuals in rural Oregon, in Republican Oregon,
are on the Oregon Health Plan. They remember that, not so long ago, all
they had for a healthcare plan was to say a prayer each night and hope
they didn't get sick the next day. They would say a prayer each night
and hope they would not be in an accident the next day. That is all the
healthcare they had.
Now they are able to get preventive care--preventive care for free.
Now they are able to take their children in and get them inoculated.
Now they know that, if a loved one in their family becomes ill or
injured, that loved one will get the care they need, and they won't go
bankrupt in the process.
That is peace of mind. Isn't that the kind of foundation we want, to
enable every family to thrive in America? Shouldn't we consider
healthcare to be a basic right, a basic service, that is provided with
a healthcare system in a ``we the people'' nation, not a ``we the
privileged'' nation, where healthcare is only available to those who
are rich enough to buy it? That is wealth care. That is not healthcare.
It is a healthcare system for ``we the powerful'' or for the powerful
who write the laws that benefit themselves but leave everyone else out
in the cold. No, a ``we the people'' nation has a healthcare system
suited to we the people, where we provide streets and we provide public
transportation and highways as part of the common infrastructure, where
we provide free public schools so that every child has a chance to
thrive, and where we provide public healthcare so that every citizen
can have the peace of mind that, if their loved one gets sick, they
will get the care they need.
But we saw the opposite this year. We saw the House bill that would
have thrown 12 million people off of healthcare within a year and 23
million within 10 years. As for the President, weeks after he
celebrated with his champagne glasses and his leaders from the House
and weeks after he celebrated passage, someone told him what was in the
bill, and the President said: Wow, that bill is mean and heartless.
Then we came to the Senate, and the secret 13 met, and what did they
craft? A bill that was even meaner and more heartless. Instead of
throwing 12 million people off of healthcare in a single year, it threw
13 million people off in a single year, and over 10 years, essentially
the same number as the House. It wrote a Medicaid provision that over
every subsequent year would have made Medicaid less and less accessible
to people who need it.
Well, that ran into a dead end. So the Senate said: Let's recraft
something that is better. And what did they do? They threw in the Cruz
amendment. What did the Cruz amendment do? It is fake insurance. It is
a fake insurance amendment.
Do you remember those days when you would get advertisements for
healthcare that said: Pay us $25 a month, pay us $50 a month, and we
will give you a healthcare policy. Millions of Americans bought those
policies, and they thought they had something valuable, until they
became sick and went to the doctor. Then they were told: This doesn't
cover your doctor's visit, and it doesn't cover your x-ray. It doesn't
cover your MRI--that is for sure. It doesn't cover the drugs you need
to treat this illness. It doesn't cover a specialist. It doesn't cover
hospital care. Oh, and you are pregnant? How wonderful that you are
going to have a child, but your healthcare policy--that fake insurance
policy that you bought--doesn't cover maternity care.
Fake insurance for the people of the United States of America is the
Cruz amendment that was added as a so-called improvement to the mean
and meaner bill already crafted by the secret 13--fake insurance. To
make it worse, the fake insurance system means that the healthcare
policies that cover essential benefits enter into a death spiral. They
become so expensive that people can't afford them. So they don't buy
them. As a result, only those who are already ill buy the policies, and
that makes the policies even more expensive, and so even fewer buy
them.
There it is--the Cruz amendment--fake insurance for the young and
healthy, and the destruction of insurance with essential benefits for
everyone else, pricing it out of reach. In other words, it is like a
bomb going off in the healthcare system to destroy healthcare both for
the young and healthy and for the older and the sick and those with
preexisting conditions.
So some experts weighed in on this and said how terrible that idea
is. This is how destructive this is to the healthcare of Americans.
Suddenly, there weren't the votes for the Cruz fake insurance
amendment, either.
So now what do we have before us? We have the repeal-and-run plan
coming to the floor of the Senate, repealing the exchanges; that is,
the healthcare marketplace, where people can use subsidies to be able
to buy insurance, enabling individuals who are struggling and working
families--working families assembling a number of part-time jobs, often
minimum-wage jobs with no benefits--to buy insurance on this
marketplace.
By the way, this was the Republican plan for healthcare: Let's bring
together a marketplace where people can compare policies and can get
subsidies to be able to afford those policies. This was the Republican
plan. It came from a far-right Republican think tank. It was championed
by a Republican Governor. It was test-run at a State level by a
Republican nominee who became the nominee of the Republican Party for
President of the United States of America. Call it RomneyCare. Call it
the exchange. It was the Republican plan.
But my colleagues now say they don't like their own plan, and they
don't like the expansion of Medicaid. They don't like the free
preventive conditions. They want to get rid of the possibility of your
children staying on your policy until age 26. They want to get rid of
the healthcare bill of rights that says that gender is no longer a
preexisting condition and you can't discriminate against women because
they happen to be women. They want to get rid of the protection you
have against policies that have an annual cap, which means, if you get
seriously hurt or seriously ill, you don't get covered. They want to
get rid of the protection you have that says there can't

[[Page S4069]]

be lifetime caps that destroy healthcare, so that if you are seriously
sick, then, you not only hit your annual limit, but you hit your
lifetime limit and no more care for you. Now you have a preexisting
condition, and you can't get a policy anywhere else.
As for that whole set of consumer protections--the healthcare bill of
rights--my Republican colleagues want to bring this bill to the floor
to destroy that entire set of rights. Then, they say: After we have
destroyed all of this--destroyed the expansion of Medicaid, destroyed
the funding for our healthcare clinics--somewhere down the road we
might figure out a new way to provide healthcare--even though they have
had year after year after year after year after year after year after
year. Let's count them all up, from the years when we crafted the ACA--
with an incredible amount of Republican input, by the way. There were
more than 100 Republican amendments that were adopted. All of those
years later, and now what we have is the majority party's Republican
plan to simply repeal all of these pieces that have given a healthcare
bill of rights to Americans, that have given struggling Americans
access to healthcare, and saying: We are just going to wipe it all away
and have people return to where we were before, where the only
healthcare insurance they had was to say a prayer each night.
That is not acceptable in a ``we the people'' republic. I know that
as citizens across the country weigh in, they are going to say, as they
again fill our inboxes and ring up our phones and visit our offices,
that this is not acceptable. It is not acceptable to make it impossible
for an entrepreneur to leave a big company and found their company
because they now have access to healthcare. That is a beautiful thing.
We have launched small businesses by the thousands and thousands and
thousands because people were able to get healthcare without being at a
large company--small businesses that used to have to just struggle to
get any sort of coverage.
There have been a lot of battles between we the people and we the
powerful over the history of the United States of America--this 241-
year history. We have had those who wanted to suppress the ability of
workers to organize and ask for a fair share of the wealth they were
creating. They wanted to bust the union, but the union worked not only
to have better benefits for the workers at the mine or at the mill but
to have better work circumstances for all Americans--to have a 5-day
workweek, to have an 8-hour workday, to have overtime paid at time and
a half, to have safer working conditions, to end the exploitation of
children in child labor sweatshops, and to have employer-based health
coverage. Again and again, workers organizing in the workplace have
fought not only for benefits in that workplace but for benefits for all
working Americans.
That is a ``we the people'' battle against the powerful and
privileged who want to squeeze the working people until they have
nothing--nothing left.
We have had other ``we the people'' versus the powerful battles. We
had one back in the 1920s, where the powerful said: Let's deregulate
everything about the banking system. Let's turn it into a wild casino,
and everybody will make a lot of money.
There was massive speculation. The stock market ran up like this, and
then it crashed. When it crashed, it destroyed the finances of millions
of American working families. It left millions of regular families
homeless and destitute. My grandmother lived in a boxcar because of
this reckless pursuit of more wealth and deregulation by the powerful
and the privileged. Thousands of banks across the country closed. More
than 1 million families lost their farms in the first 4 years as loans
were called in. More than half of all Americans were impoverished.
Ninety percent of children in mining communities were malnourished. All
because ``we the privileged and powerful'' want to crush ``we the
people.''
But ``we the people'' surged back. They elected a government that
established protection for depositors of accounts in our banks,
protection through the Federal Deposit Insurance Corporation. They
elected a government that said: Let's regulate and create honesty and
integrity in the stock market--the Securities and Exchange Commission--
so it is a safe place to invest. We can invest with confidence. They
created the Tennessee Valley Authority to provide electricity and
modernize the impoverished Tennessee Valley region. They forged Social
Security so that for the first time Americans could count on having
some income when they retire.
We had another ``we the people'' versus ``we the powerful'' battle:
the civil rights movement. There were those who wanted to suppress
opportunity on the basis of race and on the basis of ethnicity. But
``we the people'' came together and said: Here in America, it is going
to be a land of opportunity for every single individual. No matter your
race, no matter your ethnicity, you get a chance to thrive here in the
United States of America. The doors cannot be slammed in your face.
That incredible 1964 Civil Rights Act, forged right here in this
Chamber where I am speaking at this very moment, was an incredible ``we
the people'' moment.
But it is not a battle we have completely won because still even
today in many States across our country doors are legally being slammed
in the face of our LGBTQ community. So shouldn't we come back together,
pass the Equality Act, and give every single American full opportunity
in our country?
Right now, as we come to the conclusion of the healthcare battle
between the privileged and the powerful and the people, we have a
chance to step out of the extraordinarily partisan role that the
majority in this Chamber has played, treasuring power over healthcare
in order to--well, in order to what? What purpose? To what purpose?
What mission is being fulfilled? Yes, more desks are on that side of
the aisle than this side of the aisle, but shouldn't we be here to
solve problems? Shouldn't we work together to make our healthcare
system better?
Buried deep within that mean and meaner bill are a couple provisions
that would make our healthcare system better. There is reinsurance,
which enables a company to go into a new healthcare marketplace and be
insured against having a disproportionate share of sick people. That
makes a marketplace function. Remember, this was the Republican
marketplace plan, and they have a provision deep in their bill that
would make that marketplace work better.
The marketplace requires healthcare companies to know how much they
are going to get paid. Right now, that is in limbo because President
Trump has held up the cost-sharing payments and won't commit to them,
so nobody knows how to price their policies. He is driving healthcare
companies out of one county after another after another. They are
saying: We don't know how to price our policies because we aren't told
how much we will be compensated. Well, there is a provision deep within
that Republican bill that says: We are going to nail down the cost
sharing.
There is another provision in that bill that says we should spend
more to take on the opioid epidemic. Let's pull that out.
Let's work together. Let's take the cost-sharing block down and the
reinsurance proposal and the funding to take on opiates and other drug
addiction across the country, combine them, and we will have something
we can do to make our current healthcare system better--and make it
better as we work en route to having a healthcare system where simply
by virtue of being born an American, you have basic, affordable,
quality healthcare. We are a ways from that, from a Medicare for all or
a Medicaid for all, but shouldn't we aspire to have that kind of peace
of mind rather than the complexity of the system we have now?
At this moment, we have the opportunity to set aside our partisanship
and make healthcare work better for our ``we the people'' Nation, and
we should seize that moment.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, today the Senate is considering the
nomination of John K. Bush to the Sixth Circuit--someone who should
have no place on the Federal bench.
Mr. Bush is one of the most outspoken and blindly ideological
judicial nominees I have seen in my time in the Senate. A longtime
Republican Party

[[Page S4070]]

activist and donor in Kentucky, Mr. Bush is also a political blogger
whose incendiary comments are beneath the dignity of the office he
aspires to hold. On this blog, Mr. Bush hid behind a secret online
identity to denigrate people with crude language and to question the
very foundation of our country's legal system. Mr. Bush has been a
champion of the racist birther conspiracy about President Obama.
When asked about these posts during his hearing, Mr. Bush appeared to
regret that his posts presented problems during his confirmation
process and did not demonstrate any remorse for the views he expressed
in his blog.
In another post, Mr. Bush equated abortion and slavery, calling them
``two of the greatest tragedies in American history.''
In Dred Scott, which is widely considered to be the worst decision in
Supreme Court history, the Court held that African Americans were
property, not people, and that they were not entitled to citizenship
under our Constitution. The American people rejected this holding in
the Civil War and in the constitutional amendments passed in its
aftermath.
In contrast, the core holding of Roe, as reaffirmed in Casey, is the
law of the land and based on the Constitution's protections for
individuals to make intimate and personal decisions.
Comparing a constitutionally protected right to slavery--a crime
against humanity and one of the deepest stains on the moral conscience
of this country--is unconscionable. I question how a judge holding this
kind of view would rule on any number of cases coming before him that
force him to confront his strongly held ideological beliefs.
Mr. Bush made repeated attempts to downplay these outrageous
statements and tried to convince us that he would simply follow
precedent. Saying ``I will follow precedent'' should not shield this
extreme nominee from legitimate scrutiny of his ideology.
Should he be confirmed, Mr. Bush will likely be presented with cases
that provide opportunities to push the precedent envelope. This is
particularly evident when examining Mr. Bush's own writings. For
example, in a 2008 blog post, he supported statements made by the
majority leader, whose campaigns he supported, that judicial
appointments could preserve ``the anti-abortion agenda.'' If confirmed,
we have every reason to believe that Mr. Bush will take every
opportunity to pursue a radical, anti-woman, anti-choice agenda.
Statements like these raise serious questions about whether litigants
appearing before potential circuit court judge Bush could trust in the
fairness that is the hallmark of our judicial system.
Mr. Bush's inability to understand why his past writings are such a
big problem only deepens my concern about his nomination. As a private
citizen, Mr. Bush has every right to express his opinions in any way
and on any platform he chooses. But he does not have the right to be
confirmed to the Federal bench, and he doesn't have the right to demand
that we set aside the clear pattern of extremism evident in his
writings when considering his lifetime appointment.
There is no question that elections have consequences for who is
appointed to be judges and Justices. That is part of our system. With a
Republican President and a Republican majority in the Senate, many
deeply conservative nominees will be confirmed to the judiciary. But
the Senate cannot and must not become a rubberstamp for nominees who do
not demonstrate the ability to be fair and impartial in the cases that
come before them.
We are reminded every day why fair and impartial judges are so
important for our country and for our democracy. Just last week, Judge
Derrick Watson from Hawaii tossed out the narrow limits the Trump
administration placed on who counts as close family when enforcing the
President's discriminatory Muslim ban. Judge Watson's decision shows
the importance of ensuring we have Federal judges who understand the
rule of law and also have an appreciation for the impact of the court's
decisions on ordinary Americans.
Nothing I have heard or read provides any reassurance that the
American people can trust that Mr. Bush will put his views aside to
render fair and impartial decisions.
I urge my colleagues to oppose his nomination.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, at a time when millions of people
nationwide are speaking out and making absolutely clear ``no to more
attacks on women's health and women's rights and no to the kind of hate
and division President Trump sowed on the campaign trail,'' it is
unconscionable that my Republican colleagues are moving now to confirm
a circuit court nominee who is so clearly anti-women, anti-choice, and
so clearly unqualified and unfit to serve on the bench.
Our Republican colleagues may think that no one is paying close
attention to this nomination, that perhaps they will just slip this one
through. They are wrong. Today I am here, along with many of my
colleagues, to take a stand, to make sure that families know just who
President Trump is trying to fill our Nation's court system with and
call on Republicans to reject this nomination of John Bush to the Sixth
Circuit Court of Appeals.
I consider my decisions about whether to support judicial nominees to
be among the most important and consequential choices I make as a
Senator. Like Supreme Court Justices, circuit court judges have
lifetime appointments. They set legal precedent. They decide on the
majority of Federal cases. They can change and shape the lives of
generations to come. So it is a responsibility I do not take lightly.
There are so many troubling aspects of this nominee's record--
previous statements, writings, legal views--they should alarm every
American, from his views on LGBTQ rights, race, and campaign finance
reform, to his vision of the environment and election laws.
I would like to start with one aspect of his record that is
especially important to me as a woman, a mother, a grandmother, and a
U.S. Senator, and that is what this nomination would mean for women.
For nearly a decade, Bush has made countless inflammatory, offensive,
and troubling comments on a number of issues important to women. It is
not possible to go through them all, and, frankly, most should not be
repeated on the Senate floor, but I do want to make clear what kind of
nominee this is.
Bush has likened a woman's constitutionally protected right to choose
to that of slavery, calling it one of the greatest tragedies in the
history of our country. This harmful view is a pattern with Bush. In
fact, he consistently uses anti-choice rhetoric, whether he is writing
about the right to privacy or other case law.
On top of that, Bush has attacked essential health programs for women
and children. For example, he has called the Maternal, Infant, and
Early Childhood Home Visiting Program--which helps provide at-risk
pregnant women the resources they need to raise healthy children--
wasteful.
He has authored an amicus brief advocating for the Virginia Military
Institute to continue excluding women from admission, where he stated
that there are ``different developmental needs of women and men.''
Most recently, on his Judiciary Committee questionnaire, he failed to
disclose memberships with various organizations that do not admit
women, as well as people of color.
I could go on and on, and any of these alone would be enough for me
to oppose this nomination. There are a lot more. Along with his views
about women, we have learned of a disturbing pattern of hostility
toward the LGBTQ community.
In several articles, Bush has praised court decisions that attack
LGBTQ rights. He has used anti-LGBTQ slurs in his personal speeches. He
has publicly applauded statements made by candidates for office and
government officials that oppose marriage equality.
When given an opportunity to explain any of these comments or
previous writings during his committee testimony, he was evasive and
dodged questions, and he certainly did not apologize or clarify any of
those comments.
I don't think I need to go any further, but I hope it is becoming
increasingly clear that this is not a normal nominee. This is someone
who lacks the qualifications and character and

[[Page S4071]]

temperament to be appointed to a lifetime position on the Federal
bench.
It is time for President Trump to stop trying to divide our country
and use Federal court nominations to push his extreme agenda and undo
progress for women and the LGBTQ community.
I will remind my Republican colleagues, we have joined together this
year to reject extreme nominees like this before--Andrew Puzder and
Mark Green. Those, by the way, were temporary Cabinet positions. This
is a lifetime appointment. I hope we do the right thing and reject this
nomination.
Before I conclude, it is my understanding that Senate Republicans may
attempt to misrepresent Bush's harmful record on women. In case there
is any confusion, I would like to read a statement from Planned
Parenthood of Indiana and Kentucky on the Bush nomination:

Planned Parenthood of Indiana and Kentucky calls on Sen.
Mitch McConnell and Sen. Rand Paul to reject the nomination
of John Bush to the Sixth Circuit Court of Appeals.
Bush has demonstrated that he is unqualified for this
federal court in upholding fundamental constitutional rights
in his writings comparing abortion and slavery, while
applauding statements that demonstrate a record of hostility
to women and LGBTQ individuals.
Sen. McConnell's statements citing PPINK board members
support on the Bush nomination do not reflect the
organizational position of the Planned Parenthood affiliate
in Kentucky and Indiana and we urge the Senate to reject a
nominee that lacks the independence and temperament necessary
for a federal judgeship.

Mr. President, I urge our Republican colleagues to make the right
choice: to reject this nominee and put in place a person in a court
position that is a lifetime appointment, one who all Americans feel
will represent them on the bench.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BLUMENTHAL. 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. BLUMENTHAL. Mr. President, I am here to oppose the nomination of
John Bush to the U.S. Court of Appeals for the Sixth Circuit.
I have been a member of the Judiciary Committee since I was sworn in
as a U.S. Senator 6 years ago. I have participated in dozens of
confirmation hearings. Over time, I have become accustomed to hearing
nominees attempt to dodge our questions. I have rarely come across a
nominee who was as reluctant to respond to my questions as John Bush,
and I have rarely felt so unsure and concerned about how a nominee
would assume the responsibility of a Federal judgeship if confirmed.
I should emphasize to my colleagues, as well as to the people of
Connecticut, there is no nomination I take more seriously than a
Federal judgeship, having been before numerous Federal judges, district
court judges, courts of appeals judges, and the U.S. Supreme Court on
four cases. Having seen as a law clerk, as well as a practicing lawyer,
the enormous impact and profound importance of this position, I take no
job more seriously and regard no more steadfastly any responsibility
that we have.
Mr. Bush has previously stated that originalism was the ``only
principled way'' to interpret the Constitution. When our ranking
member, Senator Feinstein of California, then, very reasonably, asked
Mr. Bush if judges should always use originalism to interpret the
Constitution, his response was this: ``My personal views on
constitutional interpretation will be irrelevant if I am fortunate
enough to be confirmed to the 6th circuit.''
With all due respect to Mr. Bush, I could not disagree more strongly.
Asking judicial nominees about how they would approach the task of
interpreting the law is extraordinarily relevant to this job. First,
judges are not robots. They have views regarding how to interpret
statutes and the Constitution. Applying those views is not inconsistent
with judicial impartiality, but, especially for a judge on the U.S.
court of appeals, those views matter greatly. The American people have
a right to know what those views are for an appellate judge, who often
cannot simply follow the letter or the exact words of the Constitution
or the Supreme Court's interpretation of it. There are all kinds of
gaps that may be left and questions that may be unanswered. Circuit
court judges are routinely asked to address constitutional questions
that the Supreme Court has never addressed or has answered
incompletely, and, sometimes, yes, incorrectly. It changes its
constitutional view because of a circuit court judge who has the
temerity to say that the Supreme Court either hasn't spoken to the
issue or, perhaps, has spoken decades ago, at a time when that
interpretation of the constitutional law had relevance and correctness,
but not now.
To do our job reviewing judicial nominees of the President, we need
to know how Mr. Bush plans to do his job. His refusal to answer causes
me extraordinary concern, particularly because, in light of his
previous comments, I have a pretty good idea how he intends to continue
to apply what he believes to be the original philosophy. It is one
thing to say forthrightly and honestly: ``That's my philosophy
originally.'' It is another to completely dodge the question.
I am pleased to be on the floor today with one of my really great
colleagues, Senator Franken, who will speak after me, and to have
followed two other extraordinarily distinguished Members of this body,
Senators Murray and Hirono, to focus on these concerns regarding Mr.
Bush's approach to the question of women's healthcare and
constitutionally guaranteed reproductive rights under the Fourth
Amendment.
Let me note at the outset that our Republican colleagues have
referred to a letter of support for Mr. Bush from someone who is on the
board of the Kentucky Planned Parenthood affiliate. That letter in no
way represents the position of the organization as a whole. In fact,
the president of Planned Parenthood of Indiana and Kentucky has stated
that Mr. Bush ``lacks the independence and temperament necessary for a
Federal judgeship.'' That's the position of the President of Planned
Parenthood for Indiana and Kentucky: He ``lacks the independence and
temperament necessary for a federal judgeship.'' The issue of a woman's
right to make decisions about when she becomes pregnant and whether she
has an abortion is a constitutionally guaranteed, protected right of
every woman, regardless of where she lives and what her background is
and any other circumstances. She has that right. I need to know that
any person I vote to confirm to the Federal bench will approach cases
involving reproductive rights with the utmost care and respect for
decades of hard-won precedent.
In coming years, judges will have to determine what constitutes an
undue burden--and that is a term of law, ``undue burden''--as States
continue to pass new laws that try to restrict women's reproductive
rights. They will have to probe the boundaries of the Court's Hobby
Lobby decision on how religious and reproductive freedoms might
conflict. These issues are far from easy, and the Supreme Court has
spoken to them in many respects incompletely or unclearly.
So when a nominee will not tell me how he plans to approach
constitutional interpretation--even though his record strongly reflects
a hostility to reproductive rights--how can I evaluate? How am I to do
my job when I don't know how he is going to do his job? How am I
supposed to take seriously his pledge to faithfully apply Roe v. Wade
and related precedent?
All I have left in evaluating the Bush nomination is what he said
outside the confirmation process before he was nominated for this
position. As many of us know, Mr. Bush was a blogger, authoring
hundreds of posts over several years under a pseudonym. I have read his
blog. In the words of one of my colleagues, I am not impressed. He once
wrote:

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.

Never mind that this statement is absurd on its face. Never mind that
the NAACP called it ``offensive and dishonest.'' What concerns me at
this moment is how this is the best statement of his views on the
constitutionality of

[[Page S4072]]

women's reproductive rights that we have heard. In light of that
statement, how can we expect anything else from this nominee other than
the narrowing of reproductive rights?
Then along with the question of how John Bush might act as a judge
comes the question of how the public perceives him. When you search the
internet for information about his nomination, here is what you find on
his blog: a post suggesting that someone ``gag the House Speaker,''
referring to former House Speaker Nancy Pelosi, not current House
Speaker Ryan; two posts suggesting that a reader of the blog from Kenya
must somehow be connected to President Obama; a post applauding former
Presidential candidate Mike Huckabee's statements that he believes
``life begins at conception'' and ``strongly disagrees'' with ``the
idea of same-sex marriage''; and a whole collection, a menage of
partisan and inflammatory language--to use some euphemism for what can
be found here.
Reporters who covered this nomination have used words like
``provocative,'' ``controversial,'' and ``not normal.'' This nomination
is, indeed, not normal. It is different and profound, not in a good
way. The Courier-Journal, Bush's hometown newspaper, chose this
headline for their coverage: ``Trump's judicial nominee from Louisville
ducks questions about his controversial blog posts.'' The article went
on to quote lawyers describing his answers to Judiciary Committee
members as ``laughable,'' ``absurd,'' and ``dishonest''--all quotes.
The Judiciary Committee heard from 27 LGBT advocacy organizations and
14 reproductive rights groups, and they told us, in no uncertain terms,
``no'' to this nominee. I agree with them.
Finally, Mr. Bush wants us to believe that his political views can be
separated from his law practice or his prospective service on the
court. When asked why he cited unreliable news sources like World Net
Daily in his writings, he repeatedly shrugged off the question and
declined answering, saying political analysis is different from legal
analysis. There is truth to that point. Prior political activity is no
disqualification, in and of itself, for serving as a judge, but the
importance of public confidence in the judiciary is profound. The
confidence of people in the fairness and impartiality of our judges is
profoundly important and necessary. The courts have no army. They have
no police force of their own. Their rulings are credible and
enforceable because of confidence in the fairness and objectivity of
our judges.
Someone who is so clearly unqualified, by virtue of his record, I
cannot support. I encourage my colleagues to join me in voting against
Mr. Bush's nomination.
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. FRANKEN. Mr. President, I rise also in opposition to the
nomination of John Kenneth Bush. Mr. Bush, who has been nominated to
serve as a judge on the Sixth Circuit Court of Appeals, has the dubious
distinction of having anonymously written scores of blog posts that
aren't just offensive--which, believe me, they are--but that call into
question the nominee's ability to be a fair and impartial arbiter of
the law, which is the job of a judge, especially a circuit court judge.
In my view, the nominee's lengthy record of inflammatory and
intemperate writings stands as evidence that Mr. Bush falls far short
of the high standards that the Senate should demand of nominees to the
Federal bench.
Over the course of nearly 10 years, Mr. Bush wrote under the
pseudonym ``G. Morris.'' He wrote under a pseudonym on a political blog
operated by his wife, where he published hundreds of incendiary posts.
Let me be absolutely clear. Being politically active or expressing
political opinions is not a disqualifying characteristic in a judicial
nominee--at least, not in my view. But as I said during Mr. Bush's
hearing, it is important for the Senate, in attempting to determine
whether a nominee is qualified to serve as a Federal judge, to assess
that nominee's judgment as a judge--to assess his or her judgement--and
that is what I would like the President and all our Members to
consider.
In the hundreds upon hundreds of posts that Mr. Bush anonymously
published on his wife's blog, Mr. Bush did not demonstrate what any
Member of this body would characterize as good judgment. It was far
from it. During his hearing, I questioned the nominee about a series of
posts in which he seemed to fixate on President Obama's Kenyan
heritage. In one post, Mr. Bush discussed an article that suggested a
reporter was detained by the Kenyan Government because he was
investigating ``Barack Obama's connections in the country'' and that
authorities had locked up the reporter in order to prevent him from
publishing what he discovered. The article Mr. Bush quoted from and
linked to was published on World Net Daily, a website known for
peddling conspiracy theories, bogus claims, and White nationalism. In
fact, World Net Daily is widely known for trafficking in birtherism--
the widely debunked and racist belief that President Obama was not born
in this country. Nonetheless, Mr. Bush presented the World Net Daily
article as fact. This is a guy who has been nominated to be a circuit
court judge calling a World Net Daily article fact.
So during his confirmation hearing, I asked Mr. Bush--and I asked him
over and over again--how he decided which sources to rely upon in his
writings and how he determined a particular source was credible. In my
view, whether a nominee is capable of discerning real news from fake
news or blogs that traffic in conspiracy theories from legitimate
journalism directly speaks to the nominee's judgment. Again, the job is
judge. Really now, World Net Daily?
Whether and how a nominee evaluates the credibility of a claim or a
source of information provides a window into how he might approach the
factual record in a case, for example. That is what judges do. But Mr.
Bush couldn't answer my question. Instead, he said: ``As a blogger, I
was finding things that were in the news that were of note, I
thought.'' In response to a written question I posed, Mr. Bush said
that rather than perform original research to support his claims, he
instead ``relied upon readily available sources on the internet.'' That
would be the prestigious internet. Really? Really? From a nominee for
the circuit court?
This begs the question: How did Mr. Bush find these articles? Does
the nominee consume a steady diet of disinformation and conspiracy
theories? I asked him that question in writing. Mr. Bush responded that
he did not remember how he came upon those sources and that, in fact,
aside from the articles he quoted, he did not recall reading any
articles from those sources, despite the fact that he linked to and
quoted liberally from conspiracy-minded websites many, many times in
his writings.
Despite Mr. Bush's claims that he can't remember how it was that
World Net Daily found its way onto his computer screen and despite his
claim that he can't recall how he discovered and then later cited the
writings of a birther conspiracy theorist, I suspect that in Mr. Bush's
case, the simplest explanation is probably the right one. I suspect the
reason Mr. Bush quoted from sources like World Net Daily so frequently
is that Mr. Bush frequented those sources, that he frequently read the
material they published, and I suspect he enjoyed it. That is just a
suspicion based on my judgment.
The fact that a man who anonymously wrote inflammatory and offensive
blog posts and who consumed information from sources that routinely
publish lies and racially insensitive material could be confirmed to a
lifetime appointment on one of the U.S. courts of appeals should shock
the conscience of each and every Member of the Senate, no matter what
your politics are.
I have served on the Judiciary Committee for 8 years, and during that
time I have had the opportunity to evaluate countless judicial
nominees. I understand that each Senator has his or her own way of
determining whether a nominee should be confirmed. Some Senators prefer
nominees who embrace a judicial philosophy of originalism or strict
constructionism, others reject that view. For some Senators, a
nominee's view of the Second Amendment or Roe v. Wade serves as a
litmus test.
Setting aside the usual yardsticks by which we measure judicial
nominees, Mr. Bush should strike each and every

[[Page S4073]]

Member of this body as manifestly unqualified, by any measure. Through
his writings alone--and I urge all of my colleagues simply to look at
his writings on his blog or on his wife's blog that he wrote with a
pseudonym. They are awful. They are disgraceful.
Please, I beg my colleagues, read these and say to yourself: Are
these writings the writings of a man--no matter what his leanings are
in terms of how constitutional law should be decided, what his
philosophy is, whether conservative, progressive, or liberal--how we
can confirm someone to the circuit court, to a Federal judgeship for
life, who writes anonymously these awful, incendiary things, relying on
sources that are known for spreading hatred and linking to them. I
don't think we have been here before. I don't think we have been here
before.
I would beg my colleagues, before you cast this vote--I believe you
could not justify to your constituents, that you could not justify to
your family--please read these blog posts by this nominee and check
your conscience--not at the door, check it. This is one of those
incredibly unusual circumstances where somebody comes before us who, I
believe, is uniquely unqualified for the job.
Thank you.

____________________