[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.