[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Pages S6886-S6888]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE CALENDAR
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session and resume consideration of the Barrett
nomination, which the clerk will report.
The senior assistant legislative clerk read the nomination of Amy
Coney Barrett, of Indiana, to be United States Circuit Judge for the
Seventh Circuit.
The PRESIDING OFFICER. The assistant Democratic leader.
Mr. DURBIN. Mr. President, Senator McConnell has come to the floor to
complain about what he calls obstruction of President Trump's judicial
nominees. The majority leader must feel that many of us suffer from
amnesia.
It was just last year Senate Republicans, under the leadership of the
same Senator McConnell, set a new standard of obstruction. The most
prominent victim of Republican obstruction, Chief Judge Merrick
Garland, was President Obama's nominee for the Supreme Court. Never,
never in the history of the U.S. Senate has the Senate denied a Supreme
Court nominee a hearing and a vote. Senator McConnell led the
Republicans last year in doing that.
Then, Senator McConnell refused to even meet with Judge Garland,
refused to give him the courtesy of a meeting, even though the judge's
qualifications were unquestioned and even though he had been confirmed
to the DC Circuit with broad bipartisan support.
The way Senate Republicans treated Merrick Garland was disgraceful,
but Judge Garland was far from the only victim of Republican systematic
obstruction during the Obama Presidency. In 2016, there were 30
noncontroversial judicial nominees--17 women and 13 men--who were
denied a floor vote by Senate Republicans. All but two of these
nominees were reported out of the Judiciary Committee with a unanimous
vote of Democrats and Republicans. Some of these nominees--like Edward
Stanton of Tennessee and Julien Neals of New Jersey--sat on the Senate
calendar for more than a year, waiting for a vote which the Republican
majority leader and his Members refused to give them.
During the last 2 years of President Obama's administration, the
Republican-controlled Senate confirmed only 22 judges in 2 years. That
is the lowest number of confirmations in a Congress since 1952. By
comparison, in the last 2 years of George W. Bush's Presidency, the
Democratic-controlled Senate confirmed 68 judicial nominees--22 under
Republicans and Obama and 68 under Democrats for President Bush.
That is not all. Republicans also obstructed 18 Obama nominees by
denying them blue slips. That is the permission slip from a Senator
from the State of the judicial nominee. That included five nominees who
had been State supreme court justices who were not approved by
Republican Senators to move to the Federal bench: Lisabeth Tabor Hughes
from Kentucky, Myra Selby from Indiana, Don Beatty from South Carolina,
Louis Butler from Wisconsin, Patricia Timmons-Goodson from North
Carolina.
Senate Republicans turned obstruction of judicial nominees into an
art form under President Obama. Yet Senator McConnell, day after day,
has said: ``I think President Obama has been treated very fairly by any
objective standard.''
He comes to the floor now regularly to complain about ``obstruction''
of Trump nominees. Senator McConnell and the Senate Republicans set the
standard for obstruction. If Leader McConnell thinks President Obama
was treated fairly with these facts, it is hard to understand why he is
complaining about the treatment of President Trump's judicial nominees.
So far this year, the Senate has confirmed four of President Trump's
circuit court nominees and four of his district court nominees. At the
same point in his first year, President Obama had one circuit court
nominee and three district court nominees confirmed. Twice the number
have been confirmed under President Trump as were confirmed under
President Obama in each of their first years. President Trump's
nominees are moving twice as fast as President Obama's.
Senator McConnell controls the floor schedule. If he wants to
schedule more votes on judges, I suppose he has the power to do so. He
is exercising that power by doing something that has never happened in
the history of the Senate. Four circuit court judge nominees will be
considered this week in the Senate.
Since the Republicans in the Senate are dedicating this week to
judicial nominations, it gives us a good opportunity to look at the
nominees President Trump has put forward for lifetime appointments to
the second highest courts in the Federal system.
Time and again, we have seen President Trump nominate people who are
far outside of the judicial mainstream. For example, there is John
Bush, now a judge on the Sixth Circuit, who blogged about the false
claim that President Obama wasn't born in the United States, compared
abortion to slavery, and said in his hearing that he thinks
impartiality is an aspiration for a judge, not an expectation.
There is Damien Schiff, nominee for the Court of Federal Claims under
President Trump, who called Supreme Court Justice Anthony Kennedy ``a
judicial prostitute.''
There is Jeff Mateer, a Trump nominee for the district court in
Texas, who described transgender children as part of ``Satan's plan''
and who lamented that States were banning so-called ``conversion
therapy,'' the pseudoscience of attempting to ``convert'' LGBT
Americans into heterosexuals.
[[Page S6887]]
There is Thomas Farr, Trump nominee for the district court in North
Carolina, whom the Congressional Black Caucus describes as ``the
preeminent attorney for North Carolina Republicans seeking to curtail
the voting rights of people of color.''
There is Greg Katsas, nominee for the DC Circuit, who refused to say
at his hearing whether the torture technique known as waterboarding is
illegal.
There is Brett Talley, a nominee by President Trump to be Federal
trial judge in Alabama, who has never tried a single case and he wrote
in a blog: ``I pledge my support to the National Rifle Association,
financially, politically, and intellectually.''
There is Alabama district court and Trump nominee Liles Burke, who
hung a portrait of Confederate President Jefferson Davis in his office
and defended it at his hearing, saying it had ``historical
significance.''
There is Oklahoma district court nominee Charles Goodwin, who
received a very rare rating of ``not qualified'' to be a Federal judge
from the American Bar Association.
The list of Trump nominees goes on.
Routinely, we see judicial nominees under President Trump who have a
history of taking ideologically driven positions that are out of the
mainstream. Nearly all of these nominees are members of the rightwing
Federalist Society, which President Trump uses as his gatekeeper for
the Federal bench.
Do you remember Neil Gorsuch, the Supreme Court Justice? Do you know
how he was notified that he had been chosen to be a candidate for the
Supreme Court? You would expect a call from the White House, right--
maybe even a call from the President? No. The White House decided to
delegate to the Federalist Society to notify him. They called Mr. Leo,
their director, and said: Why don't you call Mr. Gorsuch and give him
the good news? Well, it is no surprise to those of us who know that the
Federalist Society, this conservative group, is now the gatekeeper of
all the Federal judges under President Trump.
Many of these nominees have given no reassurance that they will be
independent as judges. And the question obviously is, What impact will
the President--who has unfortunately denigrated and pressured Federal
judges in the past--have on them?
Let's consider the nominees before the Senate this week.
Professor Amy Coney Barrett, who has been nominated to sit on the
Seventh Circuit Court of Appeals, is a distinguished professor at Notre
Dame Law School. She has strong academic credentials. She clerked for
Justice Scalia on the Supreme Court. But she has no judicial
experience. And she told the Judiciary Committee that she could only
recall three litigation matters that she worked on in her entire
career--three. She has never served as a counsel of record in an
appellate case or ever argued an appeal.
Given her lack of judicial record and her minimal record as a
practicing lawyer, the Judiciary Committee looked at Professor
Barrett's academic writings to try to understand who she is and what
she believes. Basically, that is all we had to go on.
Much of Professor Barrett's writings deal with when she believes it
is acceptable for judges to deviate from precedent. For example, in a
2003 law journal article, she called for ``federal courts to restore
flexibility to stare decisis doctrine.'' In a 2013 article, she said
that it is ``more legitimate for [a justice] to enforce her best
understanding of the Constitution rather than a precedent she thinks
clearly in conflict with it.'' These are extraordinary--some would say
even extreme--views of the obligation of a Federal judge to follow
established precedent from someone who is seeking a lifetime
appointment to the second highest court in the land.
I would like to address Barrett's Law Review article. She co-wrote an
article in 1998 with John Garvey in the Marquette Law Review entitled
``Catholic Judges in Capital Cases.'' This article was about what she
perceived then as the recusal obligations of ``orthodox Catholic''
judges. The article said some provocative things. Here are some
examples:
``A judge will often entertain an ideological bias that makes him
lean one way or another. In fact, we might safely say that every judge
has such an inclination.''
``Litigants and the general public are entitled to impartial justice,
and that may be something that a judge who is heedful of ecclesiastical
pronouncements cannot dispense.''
She wrote, when discussing the ``behavior of orthodox Catholics in
capital cases,'' that ``the judge's cooperation with evil passes
acceptable limits when he conducts a sentencing hearing.''
This is an article written by the nominee. This is an issue raised by
the nominee. It was such a profound statement about the relationship
between conviction, conscience, and religious belief, that it was the
subject of many questions from many Senators on the Judiciary
Committee.
For the last 2 days, Senator McConnell has come to the floor and
talked about the left asking questions about Amy Coney Barrett's
religious beliefs. Obviously Senator McConnell has not read the
transcript from the Senate Judiciary Committee.
Some have suggested it was inappropriate for the Judiciary Committee
to even question the nominee about the impact of religious belief on
the discharge of her duties. Some of my colleagues have questioned the
propriety of such questions in light of the Constitution's clear,
unequivocal prohibition on religious tests. But I would remind the
Senate that it was the nominee herself, in this 47-page Law Review
article, who raised this issue on whether the teachings of the Catholic
Church should have any impact on the discharge of judicial duties of a
Catholic judge.
So was it any surprise that at least five different Senators--three
Republicans and two Democrats--asked her about the article that she
coauthored? It is no surprise that the gravity of this publication and
the issue it raised led committee members on both sides of the aisle to
ask questions about the nominee's religious beliefs, the contents of
her writings, and how it would impact the discharge of her duties if
she was approved by the Senate.
Who asked the first question about the religious beliefs of Amy Coney
Barrett? It was the Republican chairman of the Committee, Charles
Grassley. He noted that Professor Barrett had been outspoken about her
Catholic faith and asked her when it was proper for a judge to put
religious views above applying the law. Chairman Grassley also asked,
in his second question, how she would decide when she needs to recuse
herself on grounds of conscience.
Senator McConnell comes to the floor and suggests that any reference
to that article somehow raises questions of religious bias. Let me say
for the record that I do not believe Chairman Grassley is guilty of
religious bias, nor have I ever seen any evidence of it. It was hard to
imagine how he could avoid the obvious. She had written a lengthy
article--coauthored an article on a subject, and he felt duty-bound, as
chairman of the Judiciary Committee, to ask her questions about her
beliefs on the subject. I don't believe that Chairman Grassley would
ever apply a religious test to any nominee, but he and many of us felt
it important to ask Professor Barrett to state her position clearly on
the convergence of her faith, her conscience, and her duties as a
Federal judge.
Similarly, Republican Senator Orrin Hatch felt it necessary to ask
Professor Barrett to make clear a judge's duty when the laws or
Constitution conflicts with the judge's personal religious beliefs.
Again, I do not believe Senator Orrin Hatch, Republican of Utah, would
apply a religious test to any nominee, but the nominee's writings and
the questions those writings raised led him to ask the nominee that
question.
Later in the hearing, Senator Ted Cruz, Republican of Texas, raised
the same issue. I will quote what he said to Professor Barrett:
I've read some of what you've written on Catholic judges
and in capital cases, and in particular, as I understand it,
you argued that Catholic judges are morally precluded from
enforcing the death penalty. I was going to ask you to just
please explain your views on that because that obviously is
of relevance to the job for which you have been nominated.
That was from Republican Senator Ted Cruz. I do not suggest that he
was guilty of any religious bias in asking the question about an
article written by the nominee.
[[Page S6888]]
I take our Constitution seriously when it says there should be no
religious test for public office, but many Senators on the Judiciary
Committee--three Republicans and two Democrats, including myself--felt
the writings of the nominee warranted an inquiry about her views on the
impact of her religion on a judge's role. That is far from a religious
test in violation of the Constitution.
At her hearing, I asked Professor Barrett several questions about her
1998 Law Review article. I asked her whether she still agreed with her
article. She said in general that she did. I said that even though I am
a Catholic, even though I have gone through 19 years of Catholic
education, I have never run into the term ``orthodox Catholic,'' which
she used in that article. I asked her if she could define it. What was
she saying? Whom did she describe? She said it was an imperfect term
but explained the context for her use of it. I asked her whether she
considered herself in that category, using her term which she put
forward as carrying certain obligations on judicial recusal. She
acknowledged again that the term is a proxy and that it wasn't a term
in current use.
Some have argued that I was imposing a religious test--somehow, the
three Republican Senators asking the same question have not been
challenged--or that I was insinuating that Catholics can't serve on the
bench. That is absurd. I myself am Catholic. I deeply respect and value
the freedom of religion in our country and the Constitution. And I will
let my record speak for itself about the number of Catholic nominees
whom I have appointed to the bench or tried to appoint to the bench
with the concurrence of the Senate during the course of my career. I
voted for many judicial nominees who are of the Catholic religion,
including Judge Ralph Erickson, who is outspoken about his Catholic
faith and whom I voted to confirm several weeks ago. I am also sure I
voted against nominees who were Catholic as well because I didn't think
they had the experience, judgment, or temperament to serve in the
Federal judiciary.
At nomination hearings, I ask questions to try to understand how the
nominee would approach the job of a judge. I asked Professor Barrett
questions about issues she raised in her academic writings that could
directly impact the discharge of her judicial duties.
I would note that Professor Barrett put forward her views as part of
the academic legal debate. Contrast that with Paul Abrams, President
Obama's nominee for the Central District of California, who was
aggressively questioned by committee Republicans last year about
statements he made while speaking at his synagogue. Republicans
ultimately blocked Paul Abrams' nomination. No one on this side of the
aisle--not this Senator or any Senator--questioned whether they were
applying a religious test in rejecting his nomination.
When judicial nominees have put forward their views on issues like
the intersection of law and faith as part of the academic legal debate,
I think it is fair for members of the Judiciary Committee to ask them
about it. That is no religious test by my measure.
I voted against Professor Barrett's nomination in committee because I
don't believe she has sufficient experience to be a circuit court judge
and because of her writings about precedent. No one doubts that she is
smart, but she has barely spent any time in the courtroom. The only
basis we have to judge her on is on her academic writings.
Let's be honest. If a Democratic President had put forward a nominee
with as little practical legal experience as Professor Barrett and with
a similar history of advocating for not following precedent, I think we
know exactly how the Senators on the other side of the aisle would have
voted. As it stands, I cannot support Professor Barrett's nomination.