Congressional Record, Volume 163 Issue 178 (Thursday, November 2, 2017)

[Congressional Record Volume 163, Number 178 (Thursday, November 2, 2017)]
[Senate]
[Pages S6983-S6988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Tax Reform

Mr. VAN HOLLEN. Mr. President, I see my friend and colleague from
Pennsylvania on the floor. We have worked together on a number of
things over the years, including now, working together to impose and
really enforce sanctions against North Korea, putting together a bill
modeled after the Iran sanctions bill so we are serious about working
to get China and others to come to the table. I thank my colleague for
his work on that.
Where we disagree strongly is on the bill that has emerged from the
House of Representatives, the so-called tax reform bill. The Senator
from Pennsylvania said people should be excited to see it. I can assure
you, if you are a millionaire or billionaire, you are going to be
really excited about the bill that is coming out of the House and
supported by President Trump.
I want to talk a little bit about tax reform because we need tax
reform in America. We need to simplify our Tax Code. It has been gummed
up over many years with special tax breaks that are there not because
they make good sense for the American people but because somebody was
able to hire a high-priced lobbyist to give them a break the rest of
the country does not enjoy. We need to simplify our Tax Code, and we
need to reform our Tax Code.
Unfortunately, what we are seeing come from Republicans today,
supported by the Trump administration, doesn't do that. In fact, what
it will do is provide full-time employment for tax accountants around
the country because it creates all sorts of special provisions for
powerful, special interests. It will dramatically cut taxes for big
multinational corporations and for millionaires and billionaires, and
everybody else is going to be left to pick up the bill in one way or
another.
Now we know why this has been cooked up behind closed doors for so
long. People knew it would have a lot of turbulence when it emerged.
Secondly, we know why there is such a desperate effort to ram this huge
tax proposal through the House and the Senate--because people don't
want the American people to figure out exactly what is in it because
when they do, they are going to see it is bad for everybody but the
folks who are at the very top or who are very powerful.
The good news is that people have scrambled to begin to look at this.
In fact, certain groups like Realtors--we all have Realtors in all our
neighborhoods. They are often very connected to our community. They
know exactly what is going on. So they have been monitoring this
Republican tax plan and raising concerns about it. In fact, they said
just a few days ago that because there was this effort ``to speed tax
legislation through the House by Thanksgiving and get it to Mr. Trump
by the end of the year, `we didn't feel like we could wait,''' said the
representatives from the National Association of Realtors.
So they began to do an analysis of the impact, and here is what they
had to say today when they caught a glimpse of what was actually in the
Republican Trump bill. They said that

[[Page S6984]]

they are reviewing the details, but at first glance it appears to
``confirm many of our biggest concerns'' about the plan. ``Eliminating
or nullifying the tax incentives for homeownership puts home values and
middle class homeowners at risk.''
We will be hearing more from them, but they commissioned a study that
was done by PricewaterhouseCoopers, which concluded that if you have
adjusted gross income between $50,000 and $200,000 and you are a
homeowner, on average, you are going to see your taxes go up. They also
concluded that home values around the country would fall by 10
percent--not sure when they would begin to recover, but they would fall
by 10 percent. Home values would go down, and taxes for middle-class
homeowners would go up.
Homebuilders, who are a really important part of our economy, are
already against this strongly. They have made it clear that this would
hurt new homebuilding around the country, which, as we know, is an
important driver in our economy.
Even NFIB, the National Federation of Independent Business, took a
look at the bill and said: ``[It] leaves too many small businesses
behind.''
I will tell you exactly who this helps. This helps big, multinational
corporations. When you drop the tax rate to 20 percent, they get a $2
trillion tax windfall. I would be happy to talk to my colleagues about
corporate tax reform that doesn't blow up the deficit, but this
proposal is a $2 trillion giveaway to big, multinational corporations
under the theory that somehow, when you give a big tax break to a
multinational corporation, it is actually going to increase the wages
of their workers. Well, we know that just isn't so. We know it from
independent analysts.
The nonpartisan, professional Congressional Research Service has
looked at the claims of the proponents of this bill and said: No, this
isn't going to be a big boost to workers; it is going to be a big boost
to the owners of the corporations.
If you don't like nonpartisan analysis--and you know we have a new
whole machinery of fake news around here and around this country--why
don't we listen to the CEOs themselves? Here is what Reuters reported
in a headline: ``CEOs suggest Trump tax cut may lift investors more
than jobs.'' That is what the CEOs say. Do you know what? We know from
our own experience and our own observations that is absolutely true.
Let's look at the real world. We have seen record increases in
corporate profits over the last many years--record increases. Did that
extra money, did those bigger profits go to higher wages for American
workers? They did not. They have been flat. They have been stagnant. We
have had a growing gap between rising corporate profits and the wages
of people who work for those corporations. So now we are going to give
those same multinational corporations another $2 trillion windfall and
think it is going to somehow trickle down to the workers? It just is
not the case. That is not how they are using their profits.
The owners of those corporations will pocket the overwhelming lion's
share for themselves. We know that because that is what they have been
doing already, and giving them another $2 trillion isn't going to
change that pattern.
To add insult to injury, not only is this going to be a tax windfall
for big corporations that have record profits right now, but because of
the way this is designed with respect to the international Tax Code, it
is going to create incentives for American corporations to move from
Baltimore, MD, overseas or from any other place in the United States
overseas. I am not just talking about moving their profits to tax
shelters, which you see happen today. You know they park their profits
in the Cayman Islands, and they park their intellectual property in
low-tax havens. Because of the way they have designed this--a 10
percent average international rate--they are actually encouraging
American businesses and corporations to move their operations and their
jobs overseas.
Let's look at another part of the plan. We keep hearing from our
colleagues that this is going to help folks in the middle class. Let's
look at the estate tax. If you are an American couple today and your
estate is less than $11 million, you don't pay one penny in Federal
estate tax--not one. Somehow it became an imperative of the
Republicans, who put together this plan, to give a tax break to people
with estates of over $11 million. So, first, they lift that cap from
$11 million to somewhere like $20, $22 million, and then they get rid
of it altogether. That doesn't help a single American household with an
estate that is less than $11 million. We are talking about 2 out of
every 1,000 American households that will benefit. That apparently was
a big priority of the Trump administration and the Republicans, who put
together this plan.
So who is going to pay for it? Who is going to pay for the $2
trillion tax cut for big multinational corporations? Who is going to
pay for the windfall tax break for big, big estates? Everybody else.
That is why the Realtors are against it. That is why the homebuilders
are against it. That is why others are already against it, along with
lots of other groups. Middle-class taxpayers are going to have to pick
up the tab.
Do you know what they do in this bill, this Republican bill? They
eliminate the ability of Americans to deduct their State and local
taxes. Except for property taxes, all of those State and local taxes
are now going to be paid on twice. You are going to pay your State and
local government, and then out of that same dollar, you are going to
pay your Federal tax. That is double taxation.
Here is the irony. If you are a corporation in one of those States,
you get to deduct your State and local taxes in whatever State it may
be. If you are a corporation, you get to take that deduction. If you
are workers, if you are homeowners, no, you don't get to take that
deduction. You are going to pay more.
Here is the really ironic thing. After they provide these big tax
breaks to multinational corporations and millionaires and billionaires
and raise taxes on millions of middle-class families, they are still
leaving this country with a $1.5 trillion debt. It is written right
into the budget.
I served as the senior Democrat on the House Budget Committee for a
long time. Speaker Ryan used to be the chairman of that committee. He
talked at length about the dangers of rising national debt. Do you know
what? This is a serious issue. I used to think my Republican colleagues
were serious about it, but now we discover they were only using that as
a lever to justify their cause for cutting Medicare, cutting Medicaid,
cutting Social Security, cutting education: Oh, the debt is really
high; we have to cut all these things. But tax cuts for big
corporations and millionaires and billionaires, let's add that to the
national credit card. That is $1.5 trillion to be paid for by everybody
else--our kids and grandkids.
Do you know what will happen? We will pass this tax cut for the
special interests and powerful Americans, and then all of a sudden, I
assure you, our Republican friends will rediscover their concern about
the national debt. They will rediscover it once they get through with
this windfall tax cut, and then they will want to come around and cut
Medicare and Medicaid and education.
Do you know how we know that? They have already told us. In the
budget that passed this Senate and the House, they called for cutting
Medicare by almost $500 billion--$473 billion to be exact--cutting
Medicaid by a trillion dollars, cutting education investments very
deeply, cutting our investments in national infrastructure. So we know
that once they blow up the debt by another $1.5 trillion, they are
going to come right back and say to seniors on Medicare or Americans
who rely on Medicaid or our kids whose education we want to invest in:
Sorry, now we have that national debt we just created. Let's come back
and cut everything else.
I really hope that everyone will take a step back. We should not rush
through something that will do great damage to the country and great
damage to the middle class just because of someone's political
imperative to get something--anything--done. The reality is that while
we do need tax reform, we don't want to mess things up even worse than
they are today.
I would welcome the opportunity to work on a bipartisan basis for
genuine

[[Page S6985]]

tax reform and simplification of the Tax Code, but I will not support
any effort that hikes our national debt by $1.5 trillion in order to
give big tax breaks to multinational corporations and millionaires and
billionaires. We can do a whole lot better. We should do better.
Thank you.
Mrs. FEINSTEIN. Mr. President, last Thursday, Leader McConnell filed
cloture on four circuit court nominees, including two nominees who had
been voted out of the Judiciary Committee that very morning.
Voting on four controversial circuit court nominees in 1 week is
highly unusual, as is voting on nominees just days after they have
moved out of committee.
Senators who aren't on the Judiciary Committee deserve time to
consider nominees, review their backgrounds, and make an informed
decision for their vote.
But that is not what is happening in the Senate this week. Instead,
Republican Senate leadership is pushing President Trump's judges
through as quickly as possible.
Jamming through as many controversial judges as possible in as short
a time as possible--to lifetime appointments, no less--is
irresponsible. I cannot remember a time when we had cloture votes on
four circuit nominees in 1 week.
It is important to understand the context in which we find ourselves.
After failing to repeal the Affordable Care Act and with the
Republican tax reform plan facing opposition within his own party,
President Trump has turned more and more to Executive orders to
influence policy.
As we have seen, move after move has run into opposition in Federal
courts. So it is really no surprise that Republicans are trying to
stack those courts with ideological judges whom they hope and expect
will uphold the President's harmful policies.
Consider how many Trump actions have or will see time in the
courtroom, and you begin to understand why Republicans are rushing to
fill these vacancies--after allowing countless vacancies to remain
unfilled at the end of the last administration.
In each of the following cases, the President and Senate Republicans
seem to hope that the outcome will be different with a transformed
judiciary.
The President's Muslim travel ban has been struck down by multiple
courts who ruled that the ban is based on religion and suspending the
refugee program is discriminatory, with no basis in fact. The President
went so far as to personally insult some of the judges who heard
arguments on the travel ban.
The President's decision to end the DACA program is also likely to
find its way into the courtroom. Beginning on March 5, 2018, it is
estimated that around 1,000 DACA recipients per day will lose their
protection from deportation. By ending the program and thrusting
690,000 young people into legal limbo, the President ensured that
lawsuits would be filed, and he certainly is hopeful that conservative
judges are on the stand to hear the cases.
We have also seen the Trump administration make moves to restrict
women's access to healthcare. One woman had to go to Federal court
twice to challenge the government's efforts to restrict her access to
reproductive care. The full D.C. Circuit chided the attempt to
``bulldoze over constitutional lines'' and deny this 17-year-old young
woman court-approved reproductive care. Republicans tried to block
three of President Obama's nominees to this same court and now are
rushing to fill its one vacancy as quickly as is possible. That is not
a coincidence.
President Trump's voter fraud commission will also certainly end up
in legal battles. At least eight lawsuits have been filed against the
President's Presidential Commission on Election Integrity, created to
investigate false claims that 3 million people voted illegally last
year. It is possible the commission has already violated Federal laws
with regard to how it handled sensitive information. This is already
the subject of ongoing litigation.
These are just a handful of Trump actions that will see time in
court. They highlight not only what is at state, but also why the
President is so anxious to hurry judges that he has selected on the
bench.
I would add that Republicans are now rushing to fill judicial
vacancies for this President after spending years blocking President
Obama from filling many of these same vacancies. It actually is the
most egregious effort I have ever seen.
This record of obstruction dates back to 2001 during the Clinton
administration. Senate Republicans used secret holds on nominees to
prevent judicial nominees from receiving committee hearings or floor
votes. This resulted in Republicans ``pocket filibustering'' nearly 70
of President Clinton's circuit and district court nominees, preventing
their confirmation. As discussed by Senator Leahy when he served as
chair and ranking member of the committee, Republicans would block
nominees through pocket filibustering, which meant they would deny
nominees hearings or up-or-down votes in committee. This is a chart
that lists those nominees.
Mr. President, I ask unanimous consent to have the chart printed in
the Record following my remarks.
In the first 5 years of the Obama administration, Republicans forced
Obama's district court nominees to wait nearly three times as long and
circuit court nominees nearly twice as long as Bush nominees for
confirmation votes. During the final 2 years of his Presidency, Senate
Republicans engaged in a historic blockade of judicial nominees.
It wasn't just the unprecedented decision to block Chief Judge
Merrick Garland for the Supreme Court.
During the final 2 years of President Obama's administration, only 22
judicial nominees were confirmed--and just nine in the final year.
That is the lowest number of judges confirmed in a 2-year Congress
since President Truman was in office. Contrast this with the last 2
years of the Bush administration when Democrats were in the Senate
majority and still confirmed 68 of his nominees.
In the last 2 years under President Obama, there were 53 article III
judicial nominees pending in the Senate at the end of 2016. That is 53
nominees who Republicans either refused to hold hearings on or refused
to confirm once they were on the floor.
In fact, of those 53 nominees, 25 had been voted out of committee and
were waiting for confirmation on the Senate floor. All they needed was
for the Republican leadership to bring them up for a floor vote.
Twenty-three of those 25 nominees had been unanimously voice-voted
out of committee with overwhelming bipartisan support. Still,
Republicans refused to confirm them.
Since my colleagues have spent some time noting that three of the
circuit court nominees we are considering this week are women, I would
like to note that half of the nominees Republicans blocked from
becoming circuit and district court judges last year were women.
Here is the point: Republican leadership wanted those seats,
including the Supreme Court, left open in the hopes that a Republican
would be elected President and pick new judges. They ignored the needs
of country and the judiciary for their own political wants.
Two of the nominees we are considering this week--Amy Coney Barrett
and Stephanos Bibas--are filling seats that President Obama had
nominated African-American women to. Neither were confirmed because
Republican home-State senators didn't return blue slips. That is a
fact.
Judge John Bush, who now sits on the Court of Appeals for the Sixth
Circuit, was likewise confirmed only because Leader McConnell refused
to return a blue slip on a well-qualified woman, Kentucky Supreme Court
Justice Lisabeth Tabor Hughes, whom President Obama had nominated last
year.
Republicans exploited the blue slip process during the Obama
Presidency, but today we hear constant rumors that Republicans want to
do away with the process--another tool allowing them to ram through
more judges.
It is worth noting that, even though Democrats had sincere,
legitimate concerns about the writings of John Bush--which included him
equating slavery and abortion--his nomination was rushed through by
Leader McConnell.
John Bush was confirmed just 73 days after he was nominated. In fact,
President Trump's first four circuit court

[[Page S6986]]

nominees waited just 84 days, on average, from nomination until
confirmation. By contrast President Obama's first four circuit court
nominees waited an average of 213 days. That is nearly three times
longer.
The hypocrisy we are seeing on display is stunning. With that in
mind, I want to say a few words about the nominees themselves.
Our Nation's appellate courts are the final deciders of the vast
majority of cases, so a nominees experience matters a great deal to me.
However, the first nominee we voted on, Professor Amy Barrett, who has
now been confirmed to the Seventh Circuit, had very limited experience.
She did not have any experience as a judge, and she only worked on
one trial before becoming a professor.
Practically speaking, this meant the only record on which we could
judge her was her academic writings. In those writings, I was
especially troubled by her position that Supreme Court precedents can
simply be set aside when a Justice disagrees with them.
The National Women's Law Center wrote that these writings ``raise
serious concerns'' about how Professor Barrett, if confirmed, ``would
interpret, apply, and follow precedent, including Supreme Court
precedent.'' In fact, they point out that Professor Barrett's ``prior
writings consistently suggest that she believes precedents like Roe and
Casey should be considered weaker and are susceptible to challenge. . .
.''
That is why I was unable to support Professor Barrett's nomination.
The second nominee we voted on was Justice Joan Larsen for the Sixth
Circuit. Justice Larsen, who currently serves on the Michigan Supreme
Court, has deeply troubling views on Presidential powers.
In fact, she advocated for the Bush administration's view that the
President had the authority to disregard a law that Congress had just
passed, which prohibited the U.S. Government from using torture.
It is no surprise that President Trump, who has shown contempt for
the other coequal branches of government, nominated Justice Larsen. Her
views are undoubtedly part of why the President included Justice Larsen
on his short list of Supreme Court nominees last year.
President Trump repeatedly made clear that he was only considering
nominees for the Supreme Court who passed his litmus tests, including
to overturn Roe v. Wade. Recall President Trump's interview with ``60
Minutes'' immediately after he won the election. He said, ``I'm pro-
life. And the judges are going to be pro-life.''
He added that his judges were going to be ``very pro-Second
Amendment.''
We heard from 30 groups who were concerned about Justice Larsen's
nomination, and several highlighted the danger of this litmus test.
As Lambda Legal wrote, ``A decision by this Committee to advance her
nomination will be rightfully understood as not only a threat to Roe
but also to the LGBT cases that were built upon Roe's foundation.''
I opposed Justice Larsen's nomination.
The third nominee we are considering is Justice Allison Eid for the
Tenth Circuit. She was also included on President Trump's short list of
Supreme Court nominees last year.
Since 2006, Justice Eid has served on the Colorado Supreme Court. A
review of her opinions shows why the Denver Post wrote in September
before her hearing: ``On the state's high court, Eid has earned a
reputation as one of its most conservative members.'' Here are just a
couple of examples.
In 2014, the Colorado Supreme Court held that a worker who fell down
a flight of stairs at her workplace and suffered multiple aneurysms as
a result deserved to be compensated under the State's workplace
compensation law. Justice Eid dissented, arguing that the employee did
not deserve any compensation for her injuries, in City of Brighton v.
Rodriguez.
In 2012, Justice Eid was the lone dissenting vote when the Colorado
Supreme Court upheld a new redistricting map that was drawn to protect
residents' constitutional right under the ``one person, one vote''
standard. The old map had unequal populations and was redone with the
extensive work of a trial court.
On appeal, Justice Eid was the only dissenting judge, and she argued
to throw out the trial court's work because she believed it had not
given ``adequate weight'' to one entirely optional factor.
Justice Eid's record has also led a number of organizations to oppose
her nomination, including the AFL-CIO, the Leadership Conference on
Civil and Human Rights--LCCR--and Planned Parenthood.
I opposed Justice Eid's nomination.
The final nominee we will vote on is Professor Stephanos Bibas for
the Third Circuit. Like Professor Barrett, much of his legal career has
been spent in academia, so our job in reviewing his record is to
carefully consider his writings.
Professor Bibas's writings have focused on criminal law, and he has
pushed forward controversial ideas about punishment. His most troubling
proposals were set out in a paper he wrote in 2009.
In it, he argued that, for a wide variety of crimes, ``the default
punishment should be non-disfiguring corporal punishment, such as
electric shocks.''
Bibas also suggested ``putting offenders in the stocks or pillory,
where they would sit or stand for hours bent in uncomfortable
positions. Bystanders and victims could jeer and pelt them with rotten
eggs and tomatoes (but not rocks).''
For more severe crimes, he advocated ``multiple calibrated
electroshocks or taser shots,'' with medical personnel on hand to
ensure ``that the offender's health could bear it.''
These views are shocking and outside of the mainstream. A few years
before Professor Bibas wrote his article, this body had already debated
and passed the Detainee Treatment Act in 2005, which prohibited
``cruel'' and ``degrading'' punishment of prisoners.
I appreciate that Professor Bibas testified to the Judiciary
Committee that he now understands that his views on use of corporal
punishment for prisoners are, in his words, ``wrong and deeply
offensive.''
He came to this conclusion only after he repeatedly made public
presentations on his paper, including one to a Federalist Society
Chapter entitled, ``Corporal Punishment, Not Imprisonment: The Shocking
Case for Hurting Criminals.''
I cannot support Professor Bibas's nomination and will vote no.
In closing, as my colleagues consider how they will vote on these and
other nominees, I would urge them to consider the broader context in
which we are considering this President's judicial nominees.
We have a President who has demonstrated contempt for the rule of law
and for the independence of the federal judiciary. I am deeply
concerned that this President expects the courts to just rubberstamp
his policy preferences.
For every judicial nomination, we have to consider carefully the
nominee's record and reflect on whether they can truly be fair,
independent, and impartial--whether they will respect the rule of law.
For these reasons and the records of the four nominees I have just
discussed, I cannot support them.
There being no objection, the material was ordered to be printed in
the Record, as follows:

CLINTON ADMINISTRATION: SENATE REPUBLICANS BLOCKED FROM CONFIRMATION VOTES OVER 60 JUDICIAL NOMINEES
[Source: Congressional Research Service]
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Hearing Date(s) Markup Date (if
Name Circuit/Court First Nom Date (if any) Final Action Date any)
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Circuit Court

[[Page S6987]]

3................................. Leonard, J. Rich..... 4 12/22/1995 ................. 10/4/1996 .................
4................................. White, Helene N...... 6 1/7/1997 ................. 3/19/2001 .................
5................................. Ware, James S........ 9 6/27/1997 10/29/1997 11/7/1997 .................
6................................. Rangel, Jorge C...... 5 7/24/1997 ................. 10/21/1998 .................
7................................. Raymar, Robert S..... 3 6/5/1998 ................. 10/21/1998 .................
8................................. Goode, Barry P....... 9 6/24/1998 ................. 3/19/2001 .................
9................................. Durham, Barbara...... 9 1/26/1999 ................. 8/5/1999 .................
10................................ Johnson, H. Alston, 5 4/22/1999 ................. 3/19/2001 .................
III.
11................................ Duffy, James E., Jr.. 9 6/17/1999 ................. 3/19/2001 .................
12................................ Kagan, Elena......... DCC 6/17/1999 ................. 12/15/2000 .................
13................................ Wynn, James A., Jr... 4 8/5/1999 ................. 3/19/2001 .................
14................................ Lewis, Kathleen 6 9/16/1999 ................. 3/19/2001 .................
McCree.
15................................ Moreno, Enrique...... 5 9/16/1999 ................. 3/19/2001 .................
16................................ Lyons, James M....... 10 9/22/1999 ................. 6/6/2000 .................
17................................ Snyder, Allen R...... DCC 9/22/1999 5/10/2000 12/15/2000 .................
18................................ Markus, Kent R....... 6 2/9/2000 ................. 12/15/2000 .................
19................................ Cindrich, Robert J... 3 2/9/2000 ................. 12/15/2000 .................
20................................ Campbell, Bonnie J... 8 3/2/2000 5/25/2000 3/19/2001 .................
21................................ Orlofsky, Stephen M.. 3 5/25/2000 ................. 12/15/2000 .................
22................................ Gregory, Roger L..... 4 6/30/2000 ................. 3/19/2001 .................
23................................ Arguello, Christine 10 7/27/2000 ................. 12/15/2000 .................
M..
24................................ Davis, Andre M....... 4 10/6/2000 ................. 12/15/2000 .................
25................................ Gibson, S. Elizabeth. 4 10/26/2000 ................. 12/15/2000 .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

District Court

--------------------------------------------------------------------------------------------------------------------------------------------------------
26................................ Klein, Theodore...... S.FL 10/29/1993 11/16/1993 11/14/1994 .................
27................................ Paz, R. Samuel....... C.CA 3/24/1994 8/25/1994 11/14/1994 .................
28................................ McConnell, Judith D.. S.CA 8/5/1994 ................. 11/14/1994 .................
29................................ Tait, John R......... ID 8/25/1994 ................. 11/14/1994 .................
30................................ Snodgrass, John D.... N.AL 9/22/1994 ................. 9/5/1995 .................
31................................ Toole, Patrick J., M.PA 9/23/1994 ................. 11/14/1994 .................
Jr..
32................................ Whitfield, Wenona Y.. S.IL 3/23/1995 7/31/1996 10/4/1996 .................
33................................ Shurin, Leland M..... W.MO 4/4/1995 ................. 9/5/1995 .................
34................................ Bingler, John H., Jr. W.PA 7/21/1995 ................. 2/12/1998 .................
35................................ Greer, Bruce W....... S.FL 8/1/1995 ................. 5/13/1996 .................
36................................ Sundram, Clarence J.. N.NY 9/29/1995 6/25/1997 10/21/1998 .................
37................................ Myerscough, Sue E.... C.IL 10/11/1995 ................. 10/4/1996 .................
38................................ Wattley, Cheryl B.... N.TX 12/12/1995 ................. 10/4/1996 .................
39................................ Schattman, Michael D. N.TX 12/19/1995 ................. 7/31/1998 .................
40................................ Rodriguez, Anabelle.. PR 1/26/1996 10/1/1998 10/21/1998 .................
41................................ Lasry, Lynne R....... S.CA 2/12/1997 ................. 2/12/1998 .................
42................................ Massiah-Jackson, E.PA 7/31/1997 10/29/1997; 3/16/1998 11/6/1997
Frederica A.. 3/11/1998
43................................ Colman, Jeffrey D.... N.IL 7/31/1997 ................. 10/21/1998 .................
44................................ Klein, James W....... DDC 1/27/1998 ................. 12/15/2000 .................
45................................ Freedberg, Robert A.. E.PA 4/23/1998 ................. 10/21/1998 .................
46................................ Norton, Lynette...... W.PA 4/29/1998 ................. 12/15/2000 .................
47................................ Davis, Legrome D..... E.PA 7/30/1998 ................. 12/15/2000 .................
48................................ Leonard, J. Rich..... E.NC 3/24/1999 ................. 12/15/2000 .................
49................................ McCarthy, Frank H.... N.OK 4/30/1999 10/26/1999 12/15/2000 .................
50................................ Simon, Kenneth 0..... N.AL 6/6/2000 ................. 12/15/2000 .................
51................................ Lim, John S. W....... HI 6/8/2000 ................. 12/15/2000 .................
52................................ Litman, Harry Peter.. W.PA 7/27/2000 ................. 12/15/2000 .................
53................................ Cercone, David S..... W.PA 7/27/2000 ................. 12/15/2000 .................
54................................ Couch, Valerie K..... W.OK 9/7/2000 ................. 12/15/2000 .................
55................................ Johnston, Marian E.CA 9/7/2000 ................. 12/15/2000 .................
McClure.
56................................ Achelpohl, Steven E.. NE 9/12/2000 ................. 12/15/2000 .................
57................................ Anderson, Richard W.. MT 9/13/2000 ................. 12/15/2000 .................
58................................ Lieberman, Stephen B. E.PA 9/14/2000 ................. 12/15/2000 .................
59................................ Hall, Melvin C....... W.OK 10/3/2000 ................. 12/15/2000 .................
60................................ Coan, Patricia A..... CO 5/27/1999 ................. 12/15/2000 .................
61................................ Gee, Dolly M......... C.CA 5/27/1999 ................. 12/15/2000 .................
62................................ Woocher, Fredric D... C.CA 5/27/1999 11/10/1999 12/15/2000 .................
63................................ Tusan, Gail S........ N.GA 8/3/1999 ................. 3/27/2000 .................
64................................ Bell, Steven D....... N.OH 8/5/1999 ................. 12/15/2000 .................
65................................ Fields, Rhonda C..... DDC 11/17/1999 ................. 12/15/2000 .................
66................................ Fineman, S. David.... E.PA 3/9/2000 ................. 12/15/2000 .................
67................................ Riegle, Linda B...... NV 4/25/2000 ................. 12/15/2000 .................
68................................ Morado, Ricardo...... S.TX 5/11/2000 ................. 12/15/2000 .................
69................................ Sebelius, K. Gary.... KS 6/6/2000 ................. 12/15/2000 .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, we are about to vote on our fourth
circuit court nominee this week, and I am glad to speak in support of
the nomination of Professor Bibas to serve on the Third Circuit Court
of Appeals. That court sits in Philadelphia. Professor Bibas is a
highly qualified nominee. His background as a well-regarded legal
scholar and Supreme Court advocate will serve him well as a judge on
that circuit.
Additionally, Professor Bibas received a rare, unanimously ``well
qualified'' rating from the American Bar Association. My Democratic
colleagues on the Judiciary Committee have expressed to me that the
ABA's ratings are very important to their evaluation of nominees. Yet
all of the Democratic members of the committee voted against Professor
Bibas in the committee, despite his having received the highest rating
possible. This is consistent with their votes against Professor Amy
Barrett, Justice Joan Larsen and Justice Allison Eid, all of whom
received ``well qualified'' ratings. It appears that my Democratic
colleagues don't actually treat the ABA's ratings as particularly
important when it comes right down to practice.
Professor Bibas is the son of a Greek immigrant who came to this
country after surviving the Nazi occupation of Greece. He boasts
impressive academic credentials. He graduated from Columbia University
at the age of 19. He then received degrees from the University of
Oxford and Yale Law School. After law school, Professor Bibas clerked
for Judge Patrick Higginbotham of the U.S. Court of Appeals for the
Fifth Circuit and then for Justice Anthony Kennedy of the U.S. Supreme
Court.
Following these prestigious clerkships, Professor Bibas became an
assistant U.S. attorney in the Southern District of New York. His
experience as a prosecutor gave him a firsthand view of the problems
and injustices in the American criminal justice system. He decided to
pursue a career as an academic, focusing then on improving the criminal
justice system for all involved.

Professor Bibas's first stint as a professor was in my home State of
Iowa at the University of Iowa College of Law. He taught criminal law
and procedure there for 5 years. We were certainly lucky to have a
professor of his caliber. Professor Bibas then took a position on the
faculty of the University of Pennsylvania Law School, where he has been
teaching since.

[[Page S6988]]

Professor Bibas has been prolific in his academic writings,
publishing numerous articles on all aspects of criminal law. His
academic work culminated in the publication of his book entitled ``The
Machinery of Criminal Justice.'' That book was published in 2012. In
this book and in many of his articles, Professor Bibas criticized the
current model of bureaucratic ``assembly line'' justice and America's
high incarceration rate. Much of his work is devoted to finding
solutions to these problems. His academic work has certainly had an
impact on the law. In fact, Professor Bibas is one of the most cited
law professors in judicial opinions. One study shows that he is the
15th most cited legal scholar by total judicial opinions, and he is the
fifth most cited in the area of criminal law--not bad for a relatively
young professor.
Professor Bibas has also had a positive impact on colleagues and
students. The Judiciary Committee received a letter from 121 law
professors throughout our country representing a diverse range of
viewpoints. These professors support Professor Bibas's nomination,
pointing to his--and this quote comes from the letter--``influential
contributions to criminal law and procedure scholarship,'' as well as
his ``fair-mindedness, conscientiousness, and personal integrity.''
Professor Bibas also received a letter in support of his nomination
from many colleagues at the University of Pennsylvania. They stated
that he has been ``an outstanding scholar, teacher, and colleague'' at
Penn.
Professor Bibas also has extensive litigation experience. He is
currently the director of the University of Pennsylvania Law School's
Supreme Court Clinic. In this role, he and his students have
represented numerous litigants who could not otherwise afford top-
flight counsel. He has argued numerous cases before the Supreme Court,
and he obtained a significant victory in the landmark case of Padilla
v. Kentucky, which established a defendant's Sixth Amendment right to
accurate information about deportation before pleading guilty.
One of our Supreme Court Justices, Ruth Bader Ginsburg, in a personal
letter to Professor Bibas that the Judiciary Committee received, called
him one of the ``very best lawyers presenting cases to the Court.'' It
is kind of nice, if you are considered kind of a strict
constructionist, that you get a letter like that from one of the more
activist members of the Supreme Court.
Some of my Democratic colleagues criticize Professor Bibas during his
confirmation hearing for two really isolated events in the long and
illustrious career he has had.
First, Democrats criticized Professor Bibas for prosecuting a minor
theft of only $7 when he was an assistant U.S. attorney. This case took
place nearly 20 years ago. But it was Professor Bibas's supervisor who
made the decision to charge the defendant and, of course, required an
underling by the name of Bibas to pursue the case even after it started
to fall apart.
In his hearing, Professor Bibas readily acknowledged that the
defendant should not have been prosecuted, and the professor stated
this to our committee:

I learned from that mistake, and as a scholar, I have
dedicated my career to trying to diagnose and prevent the
causes of such errors in the future--inadequate Brady
disclosure, new prosecutor syndrome, tunnel vision, jumping
to conclusions, partisan mindsets. And I have testified
before this committee on those very issues. And so I made a
mistake. I apologized. I learned from it, and I have tried to
improve the justice system going forward.''

Some of my colleagues have also criticized Professor Bibas for a
single article that he wrote but never published. This article endorsed
limited forms of corporal punishment as an alternative to lengthy
prison sentences. But Professor Bibas reconsidered this idea soon after
completing the article. He concluded that it was a bad idea and did not
publish it. He completely disavowed the position in his book published
shortly thereafter.
When asked about corporal punishment at his hearing, Professor Bibas
stated:

It is wrong. It is not American. It is not something I
advocate. I categorically reject it.

Additionally, Professor Bibas's position on corporal punishment was
well-intended. He was motivated to address overly harsh and
unproductively long prison sentences. As he said at his hearing, he
wanted to offer an answer to the question, ``Is there some way, any
way, we can avoid the hugely destructive effect [of imprisonment] both
on prisoners' own lives and on the families, the friends, the
communities?''
In the time since Professor Bibas wrote the article, he has offered
more creative solutions to the disruptions caused by lengthy prison
sentences. As an example, instead of suffering through forced
indolence, prisoners could work and develop work-related skills in
anticipation of their release from prison.
Professor Bibas's scholarship, as I have stated and quoted from, is a
testimony to his devotion to the rule of law and the notion of equal
justice before the law. It is very clear that he cares very deeply
about how the criminal justice system impacts defendants, victims,
families, and entire communities. As you can tell, I am very confident
that Professor Bibas will make an excellent judge on the Third Circuit
Court of Appeals.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.