[Congressional Record Volume 163, Number 177 (Wednesday, November 1, 2017)]
[Senate]
[Pages S6950-S6953]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of David Stras

  Mr. President, while these nominees have had cloture votes--again, 
President Obama, I think, only had one on a judge in his first year--
there is one nominee, Minnesota Supreme Court Justice David Stras, in 
the Eighth District, which is the district again that Missouri is in, 
who has had his nomination held up. There is a rule sometimes that has 
been used in the Senate--almost always if a judge is being replaced 
that only affects your State--whereby a Senator can say: I am really 
opposed to that. In most of the history of the Senate, that kind of 
hold has been honored. It has not been honored on judges who represent 
another State, many States, or will be a judge in the circuit for many 
States just because they happen to come from your State.
  The American Bar Association has said that Justice Stras is ``well 
qualified.'' It is its very highest rating. He received his bachelor's 
degree, with the highest distinction, from the University of Kansas, 
which is another State in this circuit. He received his MBA from the 
University of Kansas and his law degree from the University of Kansas. 
He clerked on the U.S. Supreme Court before practicing law and teaching 
at the University of Minnesota. Not only was he appointed to fill a 
vacancy on the Supreme Court in Minnesota, but he was elected. In fact, 
he was elected and received more votes than the person who is holding 
his nomination received when he was elected to that job.
  I urge my colleagues to not only support his nomination but to do 
what we need to do to get these nominees to the floor and let everybody 
express their opinion and be given the time needed to do that, not to 
continue to abuse the rules, not to continue to hold these important 
vacancies hostage to getting anything else done because we have 30 
hours of debate in which nobody decides to come and debate.
  By the way, if we want to continue to allow Senators to hold 
nominations in circuits that their States happen to be a part of, in 
the Eighth Circuit, most of the work before that court comes from 
Missouri more than any other State. We would be glad to have an 
additional judge, and there is nothing that would prevent that.
  The right thing to do here is to let the nomination of a well-
qualified person come to the Senate floor and be debated, if there is 
debate to be had, and be voted on and to take one of those significant 
140-plus vacancies on the Federal judiciary and fill it with a person 
who is well qualified, just like this week. In four other circuits, we 
intend to put three women and one man on those courts who will 
hopefully be able to serve long and well and will take their important 
philosophies to the courts with them when they go.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mrs. CAPITO. Mr. President, thank you.
  As we heard my colleague from Missouri saying, we have a great 
opportunity this week to confirm four outstanding individuals to the 
Federal circuit courts. These nominees are well-qualified individuals 
who have demonstrated a strong understanding of the proper role that a 
judge plays in our constitutional system.

  I am especially pleased that we are considering three exceptionally 
talented women for the Federal bench. Federal circuit court nominations 
are extremely important. Circuit courts sit directly below the Supreme 
Court in our judicial system. Because the Supreme Court reviews 
relatively few or a smaller number of cases, many times the circuit 
courts have the last word in the majority of those cases, so it is 
essential that we have judges on the circuit court who will treat all 
litigants fairly.
  When I think about what I want in a judge, I think fairness is the 
first thing that comes to mind. We want someone who treats litigants 
fairly, who shows respect for our Constitution, our statutes, and the 
controlling precedents.

[[Page S6951]]

We need somebody knowledgeable in the law. That sort of goes without 
saying but certainly is a top attribute of a judge. Every party before 
our Federal courts has the right to expect evenhanded, fair judges and 
fair justice from those judges who are handling their case.
  Each of the four nominees being confirmed this week have a strong 
record and impeccable qualifications. They respect the rule of law. All 
were given a high rating by the nonpartisan American Bar Association.
  Yesterday I was very pleased to support Amy Barrett's confirmation to 
the Court of Appeals for the Seventh Circuit. Despite obstruction by my 
colleagues on the other side, I am pleased that yesterday we confirmed 
Ms. Barrett, but I still have deep concerns about some of the debate 
and some of the questions that were raised about her religious beliefs 
throughout the confirmation process.
  The Constitution clearly states that there can be no religious test 
for any Federal office. The Senate has a responsibility to consider 
qualifications and fitness for office of individuals nominated by the 
President, but that does not include an evaluation of a nominee's 
religious beliefs. Our Constitution fundamentally protects religious 
liberty for all Americans. That principle is deeply rooted in our 
Nation's history and allows individuals of all faiths the freedom to 
exercise their religious beliefs.
  Ms. Barrett's credentials clearly demonstrate her ability to serve on 
the Federal bench, which she will be doing, and I hope future nominees 
are questioned by this body on their record, their qualifications, and 
their jurisprudence, not on their faith.
  Today we confirmed the nomination of Michigan Supreme Court Justice 
Joan Larsen for the Sixth Circuit, a supremely qualified individual. A 
former clerk for Supreme Court Justice Antonin Scalia, she served as a 
Deputy Assistant Attorney General and as a law professor at the 
University of Michigan before joining her State's highest court, the 
supreme court.
  We are now considering the nomination of Colorado Supreme Court 
Justice Allison Eid for the Tenth Circuit. Justice Eid served as 
Colorado's solicitor general and is a law professor at the University 
of Colorado. She clerked for Supreme Court Justice Clarence Thomas and 
was appointed by Chief Justice John Roberts to serve as a member of the 
advisory committee on Federal appellate rules.
  Finally, we will consider the nomination of Stephanos Bibas to the 
Third Circuit. Mr. Bibas is a law professor at the University of 
Pennsylvania and clerked for Justice Anthony Kennedy after earning 
degrees from Columbia, Oxford, and Yale.
  This is a supremely qualified slate of nominees, as their impressive 
credentials make clear. My colleagues who are familiar with these 
nominees have given praise to these nominees in earnest and honest 
discussion, which very much lends itself to my support. Without 
question, their fitness for the Federal bench is evident.
  The fact that Democrats have been holding up these qualified 
individuals is totally misguided. We heard from Senator Blunt in his 
remarks about the numbers. There are currently 21 circuit court 
vacancies and 120 district court vacancies in the Federal judiciary. 
While the Senate has an important role in examining nominees to fill 
these vacancies, Democrats have required virtually every potential 
judge to go through a time-consuming floor process that is simply not 
sustainable, even when there are no objections raised against the 
individuals. In fact, Democrats have used political tactics to delay 
virtually every one of President Trump's judicial nominees, 
controversial or not.
  Every Senator has the right to vote against a judicial nominee if 
they believe that person to be unfit or unqualified--we all have that 
right--but engaging in a de facto filibuster against virtually every 
judicial nominee is an abuse of the rules, I believe, especially when 
the nominee has overwhelming bipartisan support.
  The American people expect the Senate to confirm well-qualified 
nominees. They also expect us to advance a legislative agenda that will 
improve our economy and our security. By filibustering against 
qualified nominees, Democrats are keeping the Senate from tackling our 
important legislative work.
  Starting with Justice Neil Gorsuch to the nominees being considered 
this week, President Trump has nominated mainstream judges who will 
serve our country for years in the judiciary. I commend the President, 
the chairman, Senator Grassley, and the members of the Judiciary 
Committee for their work in advancing these talented individuals. We 
should confirm these judges and act promptly to fill other judicial 
vacancies.
  I thank the Presiding Officer.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cotton). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, tomorrow morning the Senate will vote on 
the nomination of Colorado Supreme Court Justice Allison Eid. She is 
going to be voted on to serve on the Tenth Circuit Court of Appeals. 
She is an eminently qualified and exceptional nominee who has received 
widespread, bipartisan praise and support.
  Justice Eid has spent over a decade on the Colorado Supreme Court. 
Before her appointment, she served as the Colorado State solicitor 
general. In that role, she represented the State before both Federal 
and State courts. She also served as a tenured faculty member at the 
University of Colorado School of Law, where she taught courses in 
constitutional law, legislation, and torts. Justice Eid practiced 
commercial and appellate litigation at Arnold and Porter. At the 
beginning of her legal career, Justice Eid served as a clerk for Judge 
Jerry Smith on the Fifth Circuit and as a law clerk for Supreme Court 
Justice Clarence Thomas.
  Justice Eid was raised by a single mother, whom Eid credits for her 
significant personal and professional achievements. She earned a 
scholarship to Stanford and graduated with distinction and is a member 
of Phi Beta Kappa. Justice Eid received her law degree from the 
University of Chicago, where she graduated with high honors and Order 
of the Coif. She has had an impressive legal career, and she has an 
impressive life story.
  In her long and celebrated tenure on the Colorado Supreme Court, 
Justice Eid has heard roughly 900 cases and written approximately 100 
opinions. In 2008, 75 percent of Colorado voters retained Justice Eid 
to the Colorado Supreme Court.
  Her nomination has also received wide, bipartisan support. As an 
example, Justice Eid's former clerks, who noted that they ``come from a 
diverse set of geographic, economic, cultural and political 
backgrounds,'' wrote a letter to the Judiciary Committee supporting her 
nomination. Judges work closely with their law clerks every day. Law 
clerks understand a judge's deliberative process and approach to the 
law better than anyone. How did these clerks describe Justice Eid? They 
said: ``She never fails to provide her full attention and dedication to 
each individual case, mastering the relevant facts and carefully 
analyzing the law, whether the text of a statute or the word of a 
contract.'' Her law clerks also wrote that she goes ``where the law 
takes her'' and that in their decade of collective experience in over 
900 cases, Justice Eid ``treats each case individually without any 
preconceived notion of desired outcome.''
  The National Native American Bar Association also endorsed Justice 
Eid. In their letter to the committee, they noted that she ``has 
demonstrated deep understanding of Federal Indian law and policy 
matters, as well as significant respect for the tribes as governments. 
Such qualities and experiences are rare among nominees to the federal 
bench.'' They went on to note that ``while we do not expect that 
Justice Eid will agree with tribal interests on every issue, we also 
believe that she is immensely well qualified and we are confident that 
Justice Eid is a mainstream, commonsense Westerner who will rule fairly 
on Indian Country matters.'' That is from the National Native American 
Bar Association. I think ``mainstream, commonsense Westerner'' is the 
perfect way to describe Justice Eid.
  Despite this bipartisan support and her professional achievements, 
all the Democratic members of the Judiciary Committee voted against her 
nomination in committee, and I suspect most of the minority will vote 
against her

[[Page S6952]]

confirmation when it comes up. That surprised me. Justice Eid received 
a majority ``well qualified'' rating from the American Bar Association, 
an outside group who evaluates judicial nominees. My colleagues on the 
other side claim that this group's ratings weigh very heavily in their 
decision to support or oppose a judicial nominee. In fact, my 
Democratic colleagues claim that these ratings should carry a great 
deal of weight with Senators, and they argue that the Judiciary 
Committee shouldn't hold hearings on nominees who have not yet received 
ABA ratings.
  This week, we are voting on four circuit court nominees--including 
three women--who received ``well qualified'' ratings from the ABA. The 
American Bar Association rated two of these individuals unanimously 
``well qualified.'' Yet the vast majority of my Democratic colleagues 
voted against the two nominees on whom we have already voted, and I am 
willing to bet that the other two nominees will see similar opposition 
from my Democratic colleagues.
  Why do my Democratic friends profess such admiration for the American 
Bar Association's evaluation process and then vote against nominees who 
received the American Bar Association's ``well qualified'' rating? I 
would like to see them put their money where their mouth is or maybe, 
better yet, their vote where their mouth is. If my colleagues believe 
so strongly in the ABA evaluations, they should start voting for 
nominees who receive ``well qualified'' ratings, but I suspect they 
will not.
  When the Judiciary Committee voted on Justice Eid's nomination, my 
Democratic colleagues really stretched to find reasons to oppose that 
nomination. One of the chief reasons given for opposition to her 
nomination centered on a quote in a Denver Post article that said 
Justice Eid has ``earned a reputation of one of [the Colorado Supreme 
Court's] most conservative members.'' I find that statement to be 
misleading. Of the seven justices on the Colorado Supreme Court, 
Justice Eid is one of only two justices appointed by a Republican 
Governor. To argue that she is somehow extreme just because she was not 
appointed by a Democratic Governor is very unfair.
  Furthermore, the Denver Post published a subsequent article that 
disagreed with this characterization. By contrast, the more recent 
article stated that ``appointment by a Republican or Democrat does not 
always dictate the ideology of the justice. . . . Even categorizing 
justices as either conservative or liberal is generally an error.'' I 
would agree with the Denver Post on this point.
  Justice Eid should not be evaluated by her ideological reputation 
but, rather, by how she approaches issues before her judiciary. That is 
how I have evaluated Justice Eid and other judicial nominees, and that 
is why I strongly support her confirmation today.
  I am very proud to support the nomination of Justice Allison Eid. She 
is the third in a series of distinguished female circuit court nominees 
we have had the opportunity to vote on this week. Her impressive 
experience and numerous accomplishments speak to her qualifications for 
this role. I commend the President for nominating these outstanding and 
accomplished women to our circuit courts. Justice Eid is an exceptional 
nominee, and her record overwhelmingly supports her nomination. As a 
result, I will support her confirmation tomorrow, and I urge all of my 
colleagues to do the same.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, this week we have been talking about some 
sterling nominees for our Nation's circuit courts of appeals. These are 
our intermediate appellate courts in the country, one step above the 
trial courts where cases are tried and one step below the Supreme Court 
of the United States.
  What most people don't realize is that the Supreme Court only decides 
roughly 80 cases a year. In other words, there is no guarantee that if 
your case is tried in the trial court, it will go beyond the circuit 
court of appeals. So in many instances, our circuit courts are the 
``supreme court,'' or the court of last resort. These sterling nominees 
that the President has nominated include Professor Amy Barrett, who 
yesterday was confirmed to the Seventh Circuit Court of Appeals by a 
bipartisan vote of 55 to 43. For some reason, our friends across the 
aisle have decided it is to their advantage to inexplicably drag out 
the clock against a really accomplished scholar--and to boot, a mother 
of seven--but, of course, to no avail.
  What is worse is our colleagues across the aisle have seemed to have 
forgotten some of their own priorities when it comes to judges. For 
example, the senior Senator from Minnesota has said in the past: ``It 
is time to get women on the bench.'' Well, we just did that yesterday, 
and we are going to do it again. ``They should get an up-or-down vote . 
. . that is what women deserve.'' I would say that is what the 
President's nominees--whether they be women or men--deserve, but, 
unfortunately, that hasn't always been the case.
  There is still time, however, for our Democratic colleagues to honor 
their previous statements and to put more women on the circuit courts 
without needlessly stringing them along with unnecessary delays.
  Joan Larsen was the first. She was confirmed earlier today. She 
fulfills the desire of the senior Senator from Vermont to ``confirm 
women practicing at the pinnacle of the legal profession.''
  That is certainly where Joan Larsen works. She has been a justice on 
the Michigan Supreme Court and was nominated to the Sixth Circuit, 
which handles Federal appeals from Michigan, Kentucky, Ohio, and 
Tennessee. Justice Larsen graduated first in her class from 
Northwestern University's law school. She then clerked for the 
prestigious DC Circuit Court of Appeals, right here in Washington, DC. 
She then went on to serve as a law clerk to Justice Antonin Scalia of 
the U.S. Supreme Court.
  Since then, she has worked in public service at the Office of Legal 
Counsel at the Department of Justice during the George W. Bush 
administration and has taught at the University of Michigan Law School.
  Both of our Democratic colleagues from Michigan have returned their 
blue slips, which is the piece of paper which says they are OK with the 
nomination going forward, signaling their approval. Given her 
credentials, my question would be, How could they not?
  Ms. Larsen will make an excellent judge. She already has been, but 
she will make an excellent addition to the circuit court of appeals, 
and I am glad we have now confirmed her.
  Another nominee is on the way. Justice Allison Eid of the Colorado 
Supreme Court has been nominated to the Tenth Circuit post formerly 
held by Justice Neil Gorsuch, who was recently confirmed to the U.S. 
Supreme Court. The Tenth Circuit sits in Denver and includes Colorado, 
New Mexico, Kansas, Oklahoma, Utah, and Wyoming.
  As in the case of Professor Barrett and Justice Larsen, Allison Eid 
is exceptional in every respect. She attended Stanford University and 
the University of Chicago Law School, where she was elected to the 
Order of the Coif and graduated with high honors. She clerked for the 
Fifth Circuit Court of Appeals in New Orleans and then went on to clerk 
for Justice Clarence Thomas on the U.S. Supreme Court.
  As with Justice Larsen, Justice Eid has received the blue slips from 
both of her home State Senators, which means they are willing to let 
this confirmation go forward. So I look forward to her quick 
confirmation.
  Finally, the fourth judge who will be confirmed this week is 
professor Stephanos Bibas, who teaches at the University of 
Pennsylvania Law School. He has been nominated for the Third Circuit 
Court of Appeals, which covers Delaware, New Jersey, and Pennsylvania. 
Stephanos Bibas was educated at Columbia, Oxford, and Yale Law School. 
He, likewise, clerked for the Fifth Circuit Court of Appeals and then 
went on to clerk for Justice Anthony Kennedy on the U.S. Supreme Court. 
He has worked both in private practice and as a prosecutor. Now he

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has distinguished himself as an academic, teaching and publishing in 
the realm of criminal law and procedure.
  In their ringing endorsement of his nomination, a diverse group of 
more than 100 law professors noted Professor Bibas's ``fair-mindedness, 
conscientiousness, and personal integrity.'' Those are the sort of 
qualities we should all want in a circuit court judge.
  We are going to confirm Stephanos Bibas and the other nominees I 
mentioned, no matter how long it takes, this week. The majority leader 
has put our friends across the aisle on notice, and there is nothing 
they can do to stop those confirmation votes before we call it a week.
  Once again, the administration has demonstrated its skill at picking 
bright nominees for the right reasons. This week's nominees will read 
the law faithfully. They will honestly interpret its text, and they 
will apply it to cases with a sense of humility no matter what their 
preferred outcome might be.
  I appreciate President Trump, Leader McConnell, and the chairman of 
the Senate Judiciary Committee, Senator Chuck Grassley, for the hard 
work in bringing these nominees to the floor. Now let's get them on the 
Federal bench.