[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Pages S6901-S6908]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Puerto Rico and U.S. Virgin Islands Recovery Effort
Mrs. GILLIBRAND. Mr. President, I rise to speak about the disaster
supplemental that the Trump administration is expected to send to
Congress as early as tomorrow. While Congress has passed two
supplemental aid bills since this year's hurricanes, I want to make it
very clear that what we have already passed is not even close to what
we will need to help Puerto Rico and the U.S. Virgin Islands fully
recover and rebuild.
Hurricane Maria destroyed their power grids and has significantly
damaged their water infrastructure so as to make clean drinking water
dangerously scarce. Three of Puerto Rico's biggest industries--
manufacturing, finance, and tourism, which drive their already
struggling economy--remain severely damaged because the hurricane wiped
out so many factories, buildings, and hotels. Many Puerto Ricans who
had jobs the day before Maria struck no longer have anywhere to go to
work. In other words, in Puerto Rico and the U.S. Virgin Islands, this
is not just a natural disaster; it is also an economic disaster that
these local governments cannot dig out of on their own. Our fellow
citizens desperately need our help.
Listen to what one New Yorker told me about how dangerous things are
right now, especially for the sick and elderly.
My constituent was trying to help someone in Puerto Rico who was
autistic and bedridden and under the care of his 93-year-old father. He
needed surgery. He was taken to at least three separate medical
facilities, and he spent countless hours in an ambulance with his
elderly father. He was transported from one location to the next, but
the medical facilities were finding it extremely difficult to
communicate with each other. After all of that, his doctor could not
find any facility on the island that would accept him into its care. He
was finally able to get his treatment, but how many more people are
still waiting for help?
Another of my constituents is struggling to help her father, who is
in a rural area of Puerto Rico. She has only been able to speak to him
briefly and exchange limited text messages. Her father suffers from
heart issues and glaucoma, and he may need a prescription refill very
soon if not right now. There are countless more stories just like these
throughout my State and, no doubt, in many of my colleagues' States as
well.
The $36 billion that is for all of Texas, Florida, Puerto Rico, and
the U.S. Virgin Islands is just not enough. After Hurricanes Katrina
and Rita, it cost the Federal Government $120 billion to rebuild the
Gulf Coast. That is the amount of funding that we need to be thinking
about for Puerto Rico and the U.S. Virgin Islands right now.
It will take at least $5 billion just to rebuild Puerto Rico's power
grid, and that will not even cover improvements to make the system more
resilient and more efficient than it was before the storm. Right now,
two-thirds of Puerto Rico still does not have power. That means no
refrigeration so that people can have food to eat or can keep medicine
from spoiling. It means no electricity for oxygen tanks in nursing
homes and no lights at night to keep people safe. It will take
additional funding to restore roads so that whatever supplies do make
it to Puerto Rico can actually be delivered, and people can get to
their loved ones in need.
The Small Business Administration will need billions of dollars to
help people rebuild their businesses, which are vital to their basic
economic recovery. The Army Corps of Engineers will need funding and
the authority to rebuild the dams and the ports that were damaged so
that commerce can actually go on, and FEMA will likely need $8 billion
more just to respond to all of the households that have requested
assistance to repair and rebuild their homes through its Individual
Assistance Program.
[[Page S6902]]
In other words, the recovery effort must be massive. There is no way
around it, because we can never turn our backs on fellow citizens,
whether they are in New York or Texas or Florida or the U.S. Virgin
Islands or Puerto Rico. What we need right now is a Marshall Plan. That
is the only way that Puerto Rico and the U.S. Virgin Islands are ever
going to really fully recover. A new Marshall Plan would help Puerto
Rico greatly reduce its crushing debt owned by hedge funds, and a new
Marshall plan would also completely modernize infrastructure in Puerto
Rico and the U.S. Virgin Islands, by rebuilding their energy grid,
hospitals, roads and bridges, reservoirs, schools, dams, and the
thousands of buildings and homes that were destroyed by these
hurricanes.
I urge all of my colleagues to join me in this effort. We must never
stop fighting for Puerto Rico and the U.S. Virgin Islands to get the
funding they need to fully recover and fully rebuild.
I yield the floor.
The PRESIDING OFFICER. The President pro tempore, the Senator from
Utah.
Mr. HATCH. Mr. President, I ask unanimous consent that I be permitted
to finish my full speech.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, the Senate will consider this week four
nominations for the U.S. courts of appeals. Two are well regarded
professors at prestigious law schools, and two are highly respected
State supreme court justices. Each of them has received the highest
rating from the American Bar Association, ``well qualified,'' which my
Democratic colleagues have said is the gold standard for evaluating
nominees.
I applaud the majority leader for committing to do what it takes to
confirm these nominees, including, if necessary, working through the
weekend to get it done.
I want to address the state of the confirmation process by focusing
on one of these nominees, as well as attempts to change the process
itself.
Later today we will confirm Amy Coney Barrett to the Seventh Circuit.
She has taught at the Notre Dame Law School for 15 years in fields that
are especially relevant to the work of a Federal appellate judge. A
distinguished and diverse group of more than 70 law professors at
schools from Massachusetts to California and from Minnesota to Florida
wrote that her scholarship is ``rigorous, fair-minded, respectful and
constructive.''
I ask unanimous consent to have printed in the Record that letter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
May 19, 2017.
Re Nomination of Amy Coney Barrett to the United States Court
of Appeals for the Seventh Circuit.
Hon. Charles Grassley,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Dianne Feinstein,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Grassley and Ranking Member Feinstein: We are
writing to express our strong support for the nomination of
Professor Amy Coney Barrett to the U.S. Court of Appeals for
the Seventh Circuit. We are a diverse group of law professors
who represent a broad range of fields and perspectives. We
share the belief, however, that Professor Barrett is
exceptionally well qualified to serve on the U.S. Court of
Appeals, and we urge the Senate to confirm her as a judge of
that court.
Professor Barrett has stellar credentials for this
position. She received her undergraduate degree magna cum
laude from Rhodes College and her law degree summa cum laude
from the University of Notre Dame, where she finished first
in her law school class. She served as a law clerk to Judge
Laurence H. Silberman of the U.S. Court of Appeals for the
D.C. Circuit and to Justice Antonin Scalia of the Supreme
Court. After her clerkships, she practiced law in both trial
and appellate litigation in Washington, D.C. at Miller,
Cassidy, Larroca, & Lewin, and at Baker Botts. She has served
as a law professor at the University of Notre Dame since
2002.
As a law professor, Professor Barrett has distinguished
herself as an expert in procedure, interpretation, federal
courts, and constitutional law. She has published several
important and influential law review articles on these topics
in leading journals. Although we have differing perspectives
on the methods and conclusions in her work, we all agree that
Professor Barrett's contributions to legal scholarship are
rigorous, fair-minded, respectful, and constructive. Her work
demonstrates a thorough understanding of the issues and
challenges that federal courts confront in their daily work.
In addition, we admire Professor Barrett's strong commitment
to public service, including her work as a member of the
Advisory Committee on the Federal Rules of Appellate
Procedure from 2010-2016.
In short, Professor Barrett's qualifications for a seat on
the U.S. Court of Appeals for the Seventh Circuit are first-
rate. She is a distinguished scholar in areas of law that
matter most for federal courts, and she enjoys wide respect
for her careful work, fair-minded disposition, and personal
integrity. We strongly urge her confirmation by the Senate.
Sincerely,
Jonathan H. Adler, Case Western Reserve University School
of Law, Johan Verheij Memorial Professor of Law; Richard
Albert, Boston College Law School, Professor of Law; William
Baude, University of Chicago Law School, Neubauer Family
Assistant Professor; Anthony J. Bellia Jr., Notre Dame Law
School, O'Toole Professor of Constitutional Law; Patricia L.
Bellia, Notre Dame Law School, William J. and Dorothy K.
O'Neill Professor of Law; Mitchell Berman, University of
Pennsylvania Law School, Leon Meltzer Professor of Law and
Professor of Philosophy; Samuel L. Bray, UCLA School of Law,
Professor of Law; Steven G. Calabresi, Northwestern
University Pritzker School of Law, Clayton J. and Henry R.
Barber Professor of Law; Nathan Chapman, University of
Georgia School of Law, Assistant Professor of Law; Guy-Uriel
Charles, Duke Law School, Charles S. Rhyne Professor of Law;
Donald Earl Childress III, Pepperdine School of Law,
Professor of Law; G. Marcus Cole, Stanford Law School,
William F. Baxter-Visa International Professor of Law; Barry
Cushman, Notre Dame Law School, John P. Murphy Foundation
Professor of Law; Nestor M. Davidson, Fordham Law School,
Professor of Law; Marc O. DeGirolami, St. John's University
School of Law, Professor of Law; Erin F. Delaney,
Northwestern University Pritzker School of Law, Associate
Professor of Law and Political Science; John F. Duffy,
University of Virginia School of Law, Samuel H. McCoy II
Professor of Law; Brian T. Fitzpatrick, Vanderbilt Law
School, Professor of Law; Nicole Stelle Garnett, Notre Dame
Law School, John P. Murphy Foundation Professor of Law;
Richard W. Garnett, Notre Dame Law School, Paul J. Schierl/
Fort Howard Corporation Professor of Law; Mary Ann Glendon,
Harvard Law School, Learned Hand Professor of Law; Michael
Heise, Cornell Law School, Professor of Law; F. Andrew
Hessick, University of North Carolina School of Law,
Professor of Law; Kristin Hickman, University of Minnesota
Law School, Distinguished McKnight University Professor,
Harlan Albert Rogers Professor in Law; Roderick M. Hills, NYU
Law School, William T. Comfort, III Professor of Law; Clare
Huntington, Fordham Law School, Professor of Law; John Inazu,
Washington University Law School, Sally D. Danforth
Distinguished Professor of Law & Religion; Neal Kumar Katyal,
Georgetown University Law Center, Paul Saunders Professor;
William K. Kelley, Notre Dame Law School, Associate Professor
of Law; Daniel B. Kelly, Notre Dame Law School, Professor of
Law; Cecelia M. Klingele, University of Wisconsin Law School,
Assistant Professor of Law; Randy J. Kozel, Notre Dame Law
School, Professor of Law; Kurt T. Lash, University of
Illinois College of Law, Guy Raymond Jones Chair in Law;
Renee Lettow Lerner, George Washington University Law School,
Professor of Law; Gregory E. Maggs, George Washington
University Law School, Professor of Law; Jenny S. Martinez,
Stanford Law School, Professor of Law & Warren Christopher
Professor in the Practice of International Law and Diplomacy;
Michael W. McConnell, Stanford Law School, Richard and
Frances Mallery Professor of Law; Alan J. Meese, William and
Mary Law School, Ball Professor of Law and Tazewell Taylor
Research Professor of Law; Thomas Merrill, Columbia Law
School, Charles Evan Hughes Professor of Law; Robert A.
Mikos, Vanderbilt University Law School, Professor of Law.
David H. Moore, BYU Law School, Wayne M. and Connie C.
Hancock Professor of Law; Michael P. Moreland, Villanova Law
School, University Professor of Law and Religion; Derek T.
Muller, Pepperdine University School of Law, Associate
Professor of Law; John Copeland Nagle, Notre Dame Law School,
John N. Matthews Professor of Law, Caleb E. Nelson,
University of Virginia School of Law; Emerson G. Spies
Distinguished Professor of Law; Grant S. Nelson, William H.
Rehnquist Professor of Law, Pepperdine University, Professor
of Law Emeritus, University of California, Los Angeles; Nell
Jessup Newton, Notre Dame Law School, Joseph A. Matson Dean
and Professor of Law; Michael Stokes Paulsen, University of
St. Thomas, Minnesota, School of Law, Distinguished
University Chair and Professor; James E. Pfander,
Northwestern University Pritzker School of Law, Owen L. Coon
Professor of Law; Jeffrey A. Pojanowski, Notre Dame Law
School, Professor of Law; Saikrishna Bangalore Prakash,
University of Virginia School of Law, James Monroe
Distinguished Professor
[[Page S6903]]
of Law; Robert J. Pushaw, Pepperdine University School of
Law, James Wilson Endowed Professor of Law; Michael D.
Ramsey, University of San Diego School of Law, Hugh and Hazel
Darling Foundation Professor of Law; Richard M. Re, UCLA
School of Law, Assistant Professor of Law; Cassandra Burke
Robertson, Case Western Reserve Law School, Professor of Law
and Laura B. Chisolm Distinguished Research Scholar; Nicholas
Quinn Rosenkranz, Georgetown University Law Center, Professor
of Law; Stephen E. Sachs, Duke Law School, Professor of Law;
Sean B. Seymore, Vanderbilt Law School, Professor of Law;
David Arthur Skeel, University of Pennsylvania Professor of
Law, S. Samuel Arsht Professor of Corporate Law; Steven D.
Smith, University of San Diego School of Law, Warren
Distinguished Professor of Law; Lawrence Solan, Brooklyn Law
School, Don Forchelli Professor of Law; Kevin M. Stack,
Vanderbilt Law School, Professor of Law; John F. Stinneford,
University of Florida Levin College of Law, University Term
Professor; Kate Stith, Yale Law School, Lafayette S. Foster
Professor of Law; Catherine T. Struve, University of
Pennsylvania Law School, Professor of Law; Lisa Grow Sun, BYU
Law School, Associate Professor of Law; Jay Tidmarsh, Notre
Dame Law School, Judge James J. Clynes, Jr., Professor of
Law; Amanda Tyler, University of California, Berkeley School
of Law, Professor of Law; Adrian Vermeule, Harvard Law
School, Ralph S. Tyler, Jr. Professor of Constitutional Law;
Christopher J. Walker, Ohio State University Moritz College
of Law, Associate Professor of Law; Kevin C. Walsh,
University of Richmond School of Law, Professor of Law; Jay
D. Wexler, Boston University, Professor of Law; Ernest A.
Young, Duke Law School, Alston & Bird Professor of Law.
Mr. HATCH. Mr. President, the criticisms of Professor Barrett are
laughable and ridiculous. One leftwing group, for example, objects
because she has no judicial experience. I don't recall this group being
concerned about the nearly 60 appeals court judges appointed by recent
Democratic Presidents who had no prior judicial experience. In fact,
President Clinton appointed a judge with a profile strikingly similar
to Professor Barrett's--a woman who clerked on both the U.S. court of
appeals and the U.S. Supreme Court and who, after a few years in
private practice, taught at a well-known Midwestern law school for 15
years and then received the ABA's highest rating to serve on this very
same court. Leftwing groups supported the Democratic President's
nominee but opposed the Republican President's nominee.
It appears that Professor Barrett has one big strike against her, and
that is her religious faith--an important part of her life, by the way.
That is all it takes for her critics to say that she has no place on
the Federal bench, that women or men with such personal religious faith
cannot be impartial judges who respect the rule of law. That is bunk.
It is ridiculous, it is despicable, it is stupid, and it is beneath the
dignity of this body. I strongly reject that view. I find it appalling.
These critics apparently believe that judges decide cases based on
their personal beliefs. They may believe that, but Professor Barrett
certainly does not. In her hearings she pledged to unflinchingly follow
all Supreme Court precedents. She said: ``It is never appropriate for a
judge to apply their personal convictions whether derived from faith or
personal conviction.'' This has been her view for nearly two decades.
In a 1998 law journal article she coauthored, she explored the real-
world situation of how a judge should approach the death penalty when
her religious beliefs counsel against capital punishment. Professor
Barrett wrote that ``judges cannot, nor should they, try to align our
legal system with the church's moral teaching whenever the two
diverge.''
In her hearing, I asked Professor Barrett about this article and
about what should happen when a judge faces a conflict between her
personal views and the law. I wanted the record to be crystal clear so
that her views would not be distorted or misrepresented. Here is what
she said, as shown on this chart:
I believe that the law wins . . . if a judge ever felt that
for any reason she could not apply the law, her obligation is
to recuse. I totally reject and I have rejected throughout my
entire career the proposition that a judge should decide
cases based on a desire to reach a certain outcome.
Her critics appear, to put it most charitably, to have read a
different article by a different Professor Barrett. My Democratic
colleagues observed that religious dogma and the law are different--so
far, so good, as far as I am concerned. But then there is this: ``The
dogma lives loudly within you, and that is of concern.'' Can you
imagine, in this day and age, one of our colleagues asking a question
like that?
Professor Barrett, as I described, has consistently argued for nearly
20 years that judges may not decide cases based on their personal
religious beliefs. So what is the problem? It appears that the problem
for some critics is not Professor Barrett's religious faith in general
but the particular religious faith she has. Now this sounds
disturbingly like a religious test for public office. In fact, it is a
religious test by some of our colleagues, who ought to be ashamed of
themselves.
I thought America's Founders put that to rest when they wrote article
VI of the U.S. Constitution, prohibiting a religious test for public
office. I thought we had grown past periods in our history when
suspicion was leveled against someone running for public office simply
because of the church to which he or she belonged. I thought the free
exercise of religion protected by the First Amendment included being
free from that kind of suspicion and prejudice.
Earlier today, the assistant Democratic leader tried to distract
attention from the clearly inappropriate examination of Professor
Barrett's religious beliefs. He suggested that by asking Professor
Barrett whether a judge's personal beliefs should take precedence over
the law is no different than expressing concern that ``the dogma lives
loudly within you.''
Let me be clear. Inquiring whether a nominee will have her judicial
priorities straight regarding the law and her personal views is one
thing. Inquiring about her religious beliefs themselves is something
very different, and I believe it should be off limits.
I enthusiastically support Professor Barrett's nomination precisely
because she knows the difference between her personal beliefs and the
law and she is completely committed to maintaining that distinction
when she becomes a judge.
Let me now take a step back from this nominee and focus on the
confirmation process itself.
The Constitution gives the power to nominate and appoint judges to
the President and it gives the power of advice and consent to the
Senate as a check on the President. The latest dispute about the
Senate's part in this process concerns a practice used in the Judiciary
Committee to highlight the views of Senators regarding judicial
nominees who would serve in their States. Judiciary Committee chairmen
have come to use a blue piece of paper to inquire about a home State
Senator's views on a particular nominee. We call it the blue slip.
Today Democrats and their grassroots and media allies are demanding
that the blue-slip process be used as a single-Senator veto, even
though the vote is for a court of appeals judge who will represent a
wide variety of States if not the whole country. They demand that a
single home-State Senator be able, at any time and for any reason, to
stop a nomination dead in its tracks without any Judiciary Committee
consideration at all. That is ridiculous.
I can understand why they want to weaponize the blue slip like this.
After all, they once used the filibuster to prevent confirmation of
Republican judges but then abolished nomination filibusters so that no
one else could use them. Today, Democrats are trying to turn the blue-
slip process into a de facto filibuster. They want a single Senator to
be able to do in the Judiciary Committee what it once took 41 Senators
to do on the Senate floor.
Shortly after Democrats abolished nomination filibusters, Judiciary
Committee Chairman Patrick Leahy warned: ``As long as the blue-slip
process is not being abused by home-state Senators, then I will see no
reason to change that tradition.'' He was right. The key is to know
when that line has been crossed, and Senator Leahy made that point.
I have served on the Judiciary Committee for more than 40 years. That
experience leads me to suggest two things that can help us prevent
abuse of this part of the confirmation process. The first thing to keep
in mind is the history of the blue-slip process.
Now, 19 Senators have chaired the Judiciary Committee, including me,
since this practice began in 1917--10
[[Page S6904]]
Democrats and 9 Republicans. Only 2 of those 19 chairmen have treated
the blue slip as a single-Senator veto. According to the Congressional
Research Service, until the 1950s, no Judiciary Committee chairman
treated a negative blue slip as a single-Senator veto. Home-State
Senators could express their objections in confirmation hearings, and
the Judiciary Committee might report a nomination to the Senate with a
negative recommendation, but in each case the process moved forward.
Senator James Eastland, who was chairman when I first joined the
Judiciary Committee--a Democrat--was the first chairman to treat a
negative blue slip more like a veto. Since then, according to CRS, the
blue-slip policy has been modified to ``prevent a home-state Senator
from having such absolute power over the fate of a nominee from their
state.''
Under Chairman Ted Kennedy, for example, a negative blue slip did not
stop consideration of a nominee. Chairman Joe Biden actually put his
policy in writing in a letter to President George H.W. Bush in early
1989. A negative blue slip, wrote Chairman Biden, would not be a veto
if the administration had consulted with home-State Senators. When I
became chairman of the Judiciary Committee in 1995 and again in 1997, I
wrote the White House Counsel that I would continue the Biden policy.
The second thing to remember is the purpose of the blue-slip process.
As I wrote in both 1995 and 1997, it is ``a courtesy the Committee has
established to ensure that the prerogative of home state Senators to
advise the committee of their views is protected.'' Nearly two decades
later, in the 2014 op-ed I wrote for The Hill, I said the same thing--
that highlighting the views of home-State Senators encourages genuine
consultation with the Senate when the President chooses judicial
nominees.
The history and purpose of the blue-slip process will help identify
when it is being used properly and when it is being abused, and,
believe me, confirmation abuses have occurred. Before 2001, for
instance, only 1 percent of judicial nominees with no opposition were
confirmed by a time-consuming rollcall vote. Under President George W.
Bush that figure jumped to 56 percent.
Before 2001, there had been four filibusters of judicial nominees and
no majority-supported judicial nominee had ever been defeated by a
filibuster. Under President George W. Bush, Democrats conducted 20
filibusters and ultimately kept multiple appeals court nominees from
being confirmed.
In July, we held another unnecessary cloture vote on a district court
nominee.
After voting 97 to 0 to end the debate that no one apparently wanted
in the first place, Democrats forced us to delay the confirmation vote
by 2 more days. This was the first time in history that a unanimous
cloture vote was not followed immediately by a confirmation vote.
What is going on here? What is wrong with our colleagues on the other
side? Why are they doing this? They could have taken a few hours but
instead took 2 weeks from the filing of the cloture motion to the final
unanimous confirmation vote that took place here.
Now, this is not the only time Democrats forced cloture votes to slow
consideration of nominees they end up supporting. What was the point of
all that? It is simple. Democrats want to make confirming President
Trump's judicial nominees as cumbersome and time-consuming as possible.
At this point in President Obama's first year, when Republicans were
in the minority, the Senate took cloture votes on less than 1 percent
of the executive and judicial branches--1 percent of all the nominees
that we confirmed. This year, with Democrats in the minority playing
confirmation spoiler, the Senate has been forced to take cloture votes
on more than 27 percent of the nominees we confirmed. In fact,
including those we take this week, Democrats have forced us to take 51
cloture votes on President Trump's nominees so far this year. That is
seven times as many as during the combined first years of all nine
Presidents since the cloture rule has applied to nominations.
These were the nominations under Obama and this is President Trump.
What is going on here? That is seven times as many as during the
combined first years of all nine Presidents since the cloture rule
applied to nominations.
In 2013, Democrats abolished the ability of 41 Senators to prevent
confirmation. Today, they are demanding the ability of just one Senator
to prevent confirmation. If that is not an abuse of the confirmation
ground rules, I don't know what is.
It would be a mistake to do to the blue-slip process what has been
done to other elements of the Senate's advice and consent role. This
can be prevented by following the less partisan guidance of history and
purpose to chart our way forward.
The blue-slip process exists to highlight the views of home State
Senators and of course to encourage the executive branch in this
country--whoever is the President--to be open to the feelings of the
home State Senators and to consult with them when choosing judicial
nominees. If it is serving those purposes, the blue-slip process should
not become yet another tactic for hijacking the President's power to
appoint judges.
What we have going on here today with President Trump's nominees is
hypocritical, and it is wrong. It is debilitating to the courts, and it
is unconstitutional. It bothers me that my colleagues on the other side
are doing this when they, themselves, were treated much more fairly by
our side--not just much more fairly but absolutely more fairly. This is
really pathetic. I hope we can somehow or other bring ourselves to
treat each other on both sides better.
With regard to judges, whoever is President ought to be given great
consideration for the choices. That is what we do when we elect a
President. I know it is tough on the other side that President Trump is
the President, but he is the President, and he is picking really
excellent people for these judicial nominations. I hope we start
changing this process and get it back to being a reasonable, effective,
honest, and good process.
With that, I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. Mr. President, I ask unanimous consent that
notwithstanding rule XXII, that at 3:30 p.m. today, there be 30 minutes
of postcloture time remaining on the Barrett nomination, equally
divided between the leaders or their designees; that following the use
or yielding back of that time, the Senate vote on the confirmation of
the Barrett nomination; and that if confirmed, the motion to reconsider
be considered made and laid upon the table and the President be
immediately notified of the Senate's action.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Arizona.
Mr. FLAKE. Mr. President, I rise to discuss a matter of religious
liberty. In particular, I urge this body to respect our constitutional
values and avoid any hint of applying religious tests to those who heed
the call of government service.
Freedom of religion is as foundational a principle as we have in this
country. Yet some in this Chamber want to take a cabined view of it. If
you are a judicial nominee, it is fine to attend the occasional worship
service, but don't let on that you take it too seriously. That seems to
be unacceptable.
From the inception of our Republic, religious believers have chosen
to serve the country in countless ways. Whether through the Armed
Forces, holding elected office, or sitting on the courts, Americans of
faith always answered the call. We should welcome this service, and we
should not sit idly by while others question the propriety of their
service by suggesting a de facto religious test.
The Framers of the Constitution were fearful of this very thinking.
They understood the importance of religious participation and foresaw
the benefits religious believers of all backgrounds would contribute to
the common good. They also knew, from centuries of war and suffering in
Europe, the high cost of religious intolerance.
That is why they made it clear in article VI of the Constitution that
no public officers could be subject to a religious test. This edict was
entirely unambiguous in its language and its intent. This country is to
be served by
[[Page S6905]]
people of all faiths, committed to the Constitution and the common
good. It is up to us to question the qualifications and jurisprudence
of nominees, not their religious views.
Unfortunately, that is not what is happening to Professor Barrett. I
was at the confirmation hearing, where she faced inappropriate
questions and objections based on her religious views. I witnessed a
citizen heeding the call to serve her country, only to face inquiries
into her religious beliefs that bordered on ridicule. My friends on the
other side of the aisle defended their questions and their conduct, and
I don't doubt their sincerity, but there is little comfort in the
defense that it doesn't matter that Professor Barrett is a Catholic,
but somehow it matters what sort of Catholic she is. These are
unconstitutional distinctions without differences.
In addition, otherwise respectable news outlets have provided
sensational reports of Professor Barrett's personal charismatic
religious practices. As a Member of the Senate, I find this troubling,
as a person of faith, I find this objectionable, and above all, as an
American, I find this abhorrent.
It is religious liberty--enshrined in constitutional provisions like
article VI and the First Amendment--that has allowed my faith and so
many others to flourish in the United States. It is also religious
liberty that is threatened when we seek to evaluate the fitness of
nominees for high office based on religious orthodoxy.
I have endeavored to be consistent on this issue during my time in
public service. When the Presidential nominee of my party--the party of
Lincoln--called for a Muslim ban, it was wrong, and I said so. That is
not what we stand for. When a judge expressed his personal belief that
a practicing Muslim shouldn't be a Member of Congress because of his
religious faith, it was wrong; that this same judge is now my party's
nominee for the Senate from Alabama should concern us all. Religious
tests have no place in Congress.
Standing up for people of faith--whether Muslim or Catholic--who are
facing unfair prejudice should be an act of basic conscience. It should
be expected of all of us, regardless of party. It is no better for
Democrats to evaluate the judicial nominee based on how many books are
in the Bible on which she swears her oath, than it is for Republicans
to judge a Congressman who swears his oath on the Koran.
To suggest that somehow a Roman Catholic judge would discard the
Constitution in favor of Church doctrine--which she has emphatically
and repeatedly said she would not--is as wrong as suggesting that a
Muslim judge would be somehow forced to follow sharia law over the
Constitution.
Religious liberty must not depend on the religion in question. So I
ask, in light of these circumstances, who will stand today against all
cases of religious bigotry? Are there true liberals who will stand up
for the liberal values of religious tolerance? Some have, like
Professors Larry Tribe, Noah Feldman, and Chris Eisgruber. They have
said: Enough. Who here will join them?
This very body is made up of individuals from around 15 different
faiths. Each of us has sworn an oath to uphold the Constitution. Each
of us here feels we can competently carry out our duties, as do those
in the judicial branch who swear a similar oath to uphold the
Constitution.
Let us stand together today without equivocation and say no to
religious intolerance in all its forms by examining the jurisprudential
views and professional qualifications of judicial nominees, not their
relationship with the Almighty.
I yield back.
The PRESIDING OFFICER (Mr. Hoeven). The assistant majority leader.
Mr. CORNYN. Mr. President, last night we held a cloture vote on the
nomination of Amy Coney Barrett, who has been nominated to the U.S.
Court of Appeals for the Seventh Circuit.
Thanks to a unanimous consent request by the majority leader just
moments ago, we will be voting on that nomination at around 4 p.m. That
appeals court covers cases from Indiana, Illinois, and Wisconsin.
By all accounts, Professor Barrett is a devoted wife and the mother
of seven children. She is also an exemplary scholar whose research
focuses on Federal courts, constitutional law, and statutory
interpretation. By all accounts, she is a consummate professional, a
beloved teacher, a gifted writer, and a generous person. There is no
doubt in my mind she would make an excellent addition to one of our
Nation's highest courts.
We know, based on what we have observed in the Senate since President
Trump was sworn in on January 20--and some of the comments made by the
distinguished former chairman of the Senate Judiciary Committee from
Utah, Senator Hatch--we know that our Democratic colleagues are
deliberately slow-walking judicial and other nominations, but it makes
absolutely no sense to slow-walk the nomination of Professor Barrett.
They should remember some of their own previous statements. For
example, the senior Senator from Vermont said in 2013: ``We need more
women in our Federal courts,'' emphasizing that ``women are grossly
underrepresented'' there. Well, Professor Barrett would help solve what
the Senator from Vermont claimed he saw as a problem.
The junior Senator from Washington that same year said that having
more females on the court is ``incredibly important.'' I agree. That is
all the more reason for this body to expedite Professor Barrett's
confirmation instead of dragging our heels because, as I said
yesterday, thanks to the former Democratic majority leader, Harry Reid,
the Democratic's delay tactics will not change the outcome.
In the Judiciary Committee, some Democrats attempted to argue against
Professor Barrett's nomination because of the Law Review article she
coauthored almost 20 years ago. I don't have time to discuss the
article in depth, but suffice it to say that Professor Barrett has been
attacked for, in effect, professing her Catholic faith.
Her article, however, makes clear that any line of criticism that she
would somehow subjugate the rule of law and the Constitution to her
religious views is baseless. That same Law Review article said:
``Judges cannot--nor should they try to--align our legal system with
the Church's moral teaching whenever the two diverge.'' In other words,
Professor Barrett is a strong proponent of upholding the rule of law
over privately held desires for what it should say, whether they are
based on one's religious convictions or some other reason.
Former Chief Justice William Rehnquist once said that no judicial
nominee is a tabula rasa--a blank slate. That is also true of Ms.
Barrett. She is a person of faith who doesn't hide it, and she
certainly need not apologize for it either, nor is it a
disqualification for her serving as a judge on the circuit court of
appeals.
The article she coauthored 20 years ago stated that judges should not
shy away from honoring and upholding core tenets of their religious
faith and recusing or disqualifying themselves when--in very rare
cases--judicial decision making may constitute cooperation with evil.
In other words, if there were a conflict between her religious beliefs
and the law in a way that she could not reconcile, clearly she would
make that choice, in an individual and rare case, by recusing herself
from deciding that case rather than imposing her religious views or
other deeply held personal views in place of the Constitution and the
law. That is commendable. It is not controversial--or it shouldn't be.
To attempt to faithfully honor both the law and one's deeply held moral
convictions is what we all do every day. It is not an either/or
situation.
Some liberal interest groups have engaged in smear tactics against
Professor Barrett. They are trying to discredit her by making spurious
claims about organizations that she has given presentations to and by
distorting the text of the very article I just mentioned. We all
remember, for example, questions during the Judiciary Committee hearing
about ``orthodox Catholics.'' One of my colleagues admitted to having
an ``uncomfortable feeling'' about the nominee and stated with mild
disdain that ``the dogma lives loudly within'' Professor Barrett--
whatever that means. This sort of backhanded way of painting the
professor as somehow radical or out of the mainstream, insinuating that
because her moral views may be unfashionable in some of the circles in
which some of the Senators operate--the idea that they are somehow
disqualifying should
[[Page S6906]]
be completely out of bounds in the United States of America because our
Constitution prohibits religious tests for public service.
In the strongest of terms, I reject this line of questioning or the
insinuation that follows from it. If we tolerate this sort of
commentary and these religious tests, I fear that even worse, more
openly hostile religious discrimination will result down the road. We
should not start down this path.
I join my colleague, the senior Senator from Utah, who questioned
quite legitimately whether certain of our colleagues were beginning to
impose an inappropriate, unconstitutional, and highly disconcerting
religious litmus test for public office. Of course, there should never
be such a test, not in the United States of America under this
Constitution.
In Professor Barrett's case, she passes with flying colors the only
tests that are appropriate. Let's talk for a moment about her
impeccable credentials, which show not only that she is highly
intelligent but also that she is widely respected by a diverse array of
students, scholars, and practitioners.
She received her undergraduate degree magna cum laude from Rhodes
College and her law degree summa cum laude from the University of Notre
Dame, where she finished first in her law school class. She has been
twice selected as the Distinguished Professor of the Year at Notre
Dame, where she has taught since the year 2002.
It is clear that her students love her. They seek out her classes and
are inspired by her formidable presence and her piercing analysis. All
of her fellow faculty members have endorsed her. Every full-time member
of the Notre Dame law faculty has supported her nomination. As on any
law school faculty, that presumably includes scholars who self-identify
as liberal.
In a separate letter, 70 law professors from across the country,
representing a broad range of political perspectives and areas of
expertise, called the professor's qualifications ``first-rate.'' They
strongly urged her confirmation by the Senate and explained that Ms.
Barrett ``enjoys wide respect for her careful work, her fair-minded
disposition, and her personal integrity.'' That is exactly the type of
person we need on the Federal bench.
Finally, Professor Barrett's legal experience is not just as an
academic; she clerked for two highly respected judges--Judge Laurence
Silberman of the DC Circuit and the late Justice Antonin Scalia of the
U.S. Supreme Court. She followed those clerkships by practicing
appellate law at the prestigious Houston-based law firm of Baker Botts.
These and other qualifications show that Professor Barrett would serve
the cause of justice skillfully and impartially.
I will close by saying to my colleagues, let's send Amy Barrett to
the Seventh Circuit, where she belongs.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. YOUNG. 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. YOUNG. Mr. President, I rise today to speak in support of a
fellow Hoosier, Amy Coney Barrett, who has been nominated by President
Trump to serve on the U.S. Circuit Court of Appeals for the Seventh
Circuit.
Professor Barrett's credentials are well known. She is a mother of
seven children, a distinguished legal scholar at the University of
Notre Dame Law School, where she herself graduated with high honors and
served as editor of the Notre Dame Law Review. She clerked for Justice
Antonin Scalia on the Supreme Court of the United States and Judge
Silberman on the Circuit Court for the District of Columbia, and she is
an expert on the Federal courts.
Unfortunately, some of my colleagues on the left have made an issue
of Professor Barrett's Catholic faith. Echoing what Leader McConnell
has said, we do not have religious tests for office in the United
States of America, period.
I applaud all of those who have spoken up as the Senate weighs
Professor Barrett's confirmation. That includes Notre Dame president,
Rev. John Jenkins. He expressed deep concern at the questioning of
Professor Barrett's faith. Following Professor Barrett's hearing in the
Senate Judiciary Committee, Reverend Jenkins wrote: ``It is chilling to
hear from the United States Senator that this might now disqualify
someone from service as a federal judge.''
The president of Princeton University has also asked the Senate to
avoid a religious test in judicial appointments. In a letter to the
Senate Judiciary Committee, President Eisgruber wrote that Professor
Barrett and all nominees ``should be evaluated on the basis of their
professional ability and jurisprudential philosophy, not their
religion.'' He wrote: ``Every Senator and every American should cherish
and safeguard vigorously the freedom guaranteed by the inspiring
principle set forth in Article VI of the United States Constitution.''
Despite the rhetoric surrounding Professor Barrett's nomination, I
have yet to hear any significant doubts about her legal qualifications.
Professor Barrett has made clear that her personal views will have no
bearing on her rulings as a judge. She brings the skill set and the
temperament needed for the job. She will rule according to the law and
according to controlling precedents, and she will be faithful to the
Constitution. There is no question that Professor Barrett will make an
outstanding appellate judge.
Also, 450 former students signed a letter to the Judiciary Committee
in support of Professor Barrett's nomination. They wrote: ``Our support
is driven not by politics but by a belief that Professor Barrett is
supremely qualified.''
All 49 of her fellow faculty members at Notre Dame Law School did the
same. They said:
We have a wide range of political views, as well as
commitments to different approaches to judicial methodology
and judicial craft. We are united, however, in our judgment
about Amy.
Their endorsement comes as no surprise since Professor Barrett has
served on committees dedicated to bettering the lives of students,
faculty, and employees of the University of Notre Dame.
In particular, she has dedicated her time to the professional
development of women. She serves on the University of Notre Dame's
Committee on Women Faculty and Students. As the faculty adviser for
Notre Dame Law School's Women's Legal Forum, she has twice been
recognized by her students with the Distinguished Teaching Award, which
is selected by the graduating class to honor a faculty member. She was
selected twice to receive that award.
One former student, Conor Dugan, shared his story about her
willingness to help him navigate the next steps of his career right
after law school. He said that despite not having Professor Barrett for
a big class, she wrote him back right away and took time out of her
busy schedule to help someone who was no longer at the school.
Conor says Professor Barrett has always been very responsive and a
generous mentor over the years. Most importantly, he said, she tries to
help people keep their perspective about the most important things in
life.
Judge Silberman, for whom Professor Barrett clerked on the Circuit
Court for the District of Columbia, had the following to say about why
she will make an outstanding Federal judge:
She is an honorable and straight as an arrow woman. She
looks at the law without preconceived notions, and she's
brilliant. She is the only law clerk I ever had from Notre
Dame, and she is as smart as any law clerk I have ever had.
She is compassionate, and she has a lively sense of rumor.
Judges, former law students, fellow law professors, and even the
American Bar Association, who rates Professor Barrett as ``well
qualified,'' all seem to agree that she is well suited for the job.
Now, being nominated to serve in a lifetime appointment for a U.S.
circuit court of appeals is a privilege few in the legal profession
will ever attain. This is a historic opportunity, as Professor Barrett
would be the first Hoosier woman to have a seat on the Seventh Circuit
Court.
I offer my strong support for Professor Barrett's nomination, and I
look forward to the Senate's confirming her today.
[[Page S6907]]
Thank you, Mr. President.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, there are now 30
minutes of postcloture time remaining, equally divided between the two
leaders or their designees, prior to a vote on the confirmation of the
Barrett nomination.
The Senator from Missouri.
Mr. BLUNT. Mr. President, I am here today to join my colleague from
Indiana in support of the nomination of Amy Coney Barrett to be on the
U.S. Court of Appeals for the Seventh Circuit. As we all know, that is
the highest court you can serve on, except for the Supreme Court. The
circuit court is the court that often makes the final determination of
what the law says if the Supreme Court chooses not to act or isn't
asked to act. These are important jobs to be filled and carry great
responsibility.
This week, Amy Coney Barrett, two other women, and one man will come
before this Senate to be confirmed to various circuit courts around the
country. As others have come to the floor to point out, she is
extremely qualified. She should be confirmed by the Senate this week.
In letters to the Senate Judiciary Committee, 73 law professors
agreed that ``Professor Barrett's qualifications for a seat on the U.S.
Court of Appeals for the Seventh Circuit are first rate.''
Her former law school students wrote that they would like to see her
on the court.
She is a distinguished scholar in areas of law that matter most to
the Federal courts. She respects the Constitution. She understands that
the job of a judge is to see what the Constitution and the law say,
rather than what she thinks they should say. She is known for her
careful work, for her fairminded disposition, and for her personal
integrity.
Similar things have been noted by people who served with her as
Supreme Court law clerks. Law clerks, her former students, and lots of
other groups that have had reason to know her and evaluate her work
over the years have been universal in one thing; that is, that she
would be a great addition to a circuit court in the United States and
particularly to this court.
It is discouraging that during her confirmation hearings, several of
my colleagues felt it appropriate to question Professor Barrett's
faith. She is not the only one of President Trump's nominees who have
been subject to this line of questioning. In fact, in June, one Senator
held out the idea that a person who was going to be in the Office of
Management and Budget might not be well suited or able to serve in that
job not because he didn't have the background, not because he didn't
have the preparation, not because he didn't know what the job was all
about but because of his answers to questions about his personal view
of faith.
Even when the United States, in its earlier times, may have quietly
discriminated against people of faith, it was never publicly stated.
Sometimes it took a long time for the first Jew to serve on the Court
and a little time for the first Catholic to serve on the Supreme Court,
but there was never a stated question like there has been in this
Senate about those topics. It is shocking, in many ways, that it would
be something we would be talking about in the United States of America
today.
The idea that a qualification for public office would require a
religious test, in fact, was specifically prohibited not just in the
Bill of Rights, in the protections for religion there, but in the
Constitution itself. The people who wrote the Constitution did so at a
time when a religious test was often the test for service and of fealty
to a specific religion or the tradition of fealty to the monarch, who
was the head of the church in that country. Many countries had a church
where the monarch was clearly understood to be the principal
representative of the church in that country. Even in a time when that
was still the case and fresh in their minds and when there may have
been religious tests in some of the colonies--even then--in the
Constitution, article VI says: ``No religious Test shall ever be
required as a Qualification to any Office or public Trust under the
United States.''
So is it even appropriate to ask a religious question? Most questions
in America you are free to ask, but are you free to ask that under the
determination of the Constitution, as if it matters? In response to
this line of questioning, some members of the Senate Judiciary
Committee made it clear that it is never appropriate for those
questions to be asked, while others asked them. But Professor Barrett,
in her own writings, has said that if a person's religious faith or
their faith principles ever become an obstacle to determining what the
law says, then they should step back and not be a part of that case.
They should not, according to her, impose their personal convictions on
the law but read what the law says. If they can't do that, they should
make way for a judge who can. I think, maybe, that is one of the
differences in a judicial nominee who believes that their job is to
determine what the law says as opposed to determining what the law
should say.
So we have somebody here who is well prepared, well written, and who
has clearly made the case that her job as a judge--or any judge's job--
would not be to determine what the law should say based on their view
of faith or their view in the world but to look at the law and say:
What does the law say?
The Constitution guides the Congress. The Congress passes the law. As
long as that law meets constitutional principles based on what the
Constitution says--not what it should say, but what it says--then, the
judge looks at what the law says--not what it should say, in his or her
opinion, but what the law does say. So there is no real room for a
faith determination there. The only job of the judge is to decide what
the law says. The second job, if there is a second job, would be to
ensure that it also conforms to what the Constitution says the Congress
and the President are allowed to do.
One thing the Congress and the Constitution are not allowed to do is
to establish a religious test for public office. Whether Americans have
any faith or no faith at all, they should be concerned if we begin to
talk about this differently. Even though it was already in the
Constitution, the Founders listed freedom of religion as the first
freedom in the First Amendment. No other country has ever set out as
one of its foundational principles freedom of religion.
President Jefferson--not known to be the most religious of all of our
Presidents and maybe to be the most questioning of religion generally--
said in a letter in the last year of his Presidency that of all of the
rights that we have, the one we should hold most dear is what we called
the right of conscience--the right to believe what your conscience
leads you to believe is the right thing to believe. Jefferson said that
is the right we should hold most dear. Whether you are Muslim or Jewish
or Catholic or Buddhist or any other faith or no faith at all, there is
no religious test. For any individual and for all individuals of any
faith or all faiths or no faith, religious freedom includes the right
of an individual to live, to work, to associate, and, if they choose,
to worship in accordance with their beliefs.
The belief that a person's religion would in some way disqualify that
person from public service has to be strongly and fully rejected.
There is no other legitimate question raised about this nominee
today. So certainly I am pleased to see many of my colleagues come to
the floor to talk about this topic. Professor Barrett did receive some
bipartisan support on the cloture vote yesterday. One way to
demonstrate that there is clearly no objection to a person of faith,
who says that faith should never get in the way of the job they do as a
judge, is simply to vote for the judge.
I intend to do that today. I urge my colleagues to do that as well. A
lifetime appointment to the circuit court of the United States of
America is no small obligation. It is no small trust in an individual's
capacity to do the job that you ask them to do. All of the nominees--
the four circuit nominees whom we will have before us this week--are
prepared for these jobs. I wish them happy service and a long and
healthy life as they set out on the task that they have agreed to
accept, if and when they are confirmed, and this week the Senate will
confirm them to these jobs.
[[Page S6908]]
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. HOEVEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Strange). Without objection, it is so
ordered.