[Congressional Record Volume 163, Number 178 (Thursday, November 2, 2017)]
[Senate]
[Pages S6992-S6994]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. COONS. Mr. President, I come to the floor today to join several 
of my colleagues in raising concerns about nominations to the Federal 
judiciary and the Senate's role in carrying out its constitutional 
advice and consent responsibilities. From my vantage point as a member 
of the Judiciary Committee, I can see all too clearly that an alarming 
trend of more and more extreme judicial candidates appearing before us 
is growing, that more extreme judicial candidates are being nominated, 
and that the safeguards here in the Senate that are important to our 
vetting process are being threatened.
  Let me start by giving a simple overview of what has happened, first 
in terms of the speed at which we are considering critical lifetime 
appointments to some of the most central courts in our whole Federal 
judicial system.
  Just this week, my Republican colleagues have brought forward four 
circuit court nominees--four nominees in one week--beginning to end. 
That is more than the number of circuit court nominees than were 
confirmed in the entire first year of President Obama's Presidency.
  More important to me than the speed is the quality of our process of 
reviewing these important nominations. The

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American Bar Association has issued unanimous ``not qualified'' ratings 
for two current judicial nominees. That hasn't happened in over a 
decade--since 2006. The American Bar Association is not a partisan or a 
political group. Founded in 1878, the ABA is a national professional 
organization with over 400,000 attorney members. The ABA's 
uncontroversial objectives are to serve its members, improve the legal 
profession, enhance diversity, and advance and secure the rule of law 
in our Nation. Its contributions to the legal profession are 
significant. It is the ABA that accredits law schools and establishes 
model ethical codes.
  Additionally, since 1953, when President Eisenhower invited the ABA 
to provide specific, timely input on candidates for Federal judgeships, 
the ABA has evaluated nominees for professional competence, integrity, 
and judicial temperament. This is a rigorous process that involves 
collecting impartial, peer-review evaluations of candidates.
  It is startling that less than a year into this administration, two 
nominees have already received ``not qualified'' ratings from the ABA, 
and two more nominees are under consideration of what is called a 
second evaluator. This is concerning. You see, the ABA does not take 
giving a ``not qualified'' rating lightly. Any time an evaluator is 
considering recommending ``not qualified,'' a second evaluator is 
brought in to conduct an independent review. I believe all nominees to 
lifetime article III appointments on the Federal bench should have the 
competence, integrity, and temperament to do the important work that 
Federal judges are called on to perform.
  The nominees we are seeing not only raise concerns about professional 
qualifications and the speed with which they have been processed. Many 
of the President's recent candidates are notable for their polarizing, 
divisive, even offensive rhetoric, rather than the depth of their legal 
experience or the quality of their judicial temperament. I will give 
just a few selections from a broad range.
  We have recently considered candidates on the Judiciary Committee who 
had blogged at length in support for birtherism, the discredited and 
untrue conspiracy theory that suggested that our immediate past 
President wasn't born in the United States. Another suggested that 
``Mama Pelosi'' should be ``gagged.'' Another called Supreme Court 
Justice Kennedy a ``judicial prostitute,'' compared abortion to 
slavery, complained that Americans overreacted to Sandy Hook, repeated 
anti-gay slurs, and said transgender children are proof that ``Satan's 
plan is working.'' Many alarming, even extreme comments are in the 
records of folks brought forward for confirmation--a startling number 
of them.
  Frankly, this isn't about party allegiance--being a Republican or a 
Democrat, being a conservative or a liberal. This is about having the 
judgment and the temperament to be a Federal judge.
  The mechanisms we have for completely evaluating nominees are today 
being strained. The American Bar Association has been cut out of some 
of the White House's efforts, its prenomination vetting process. That 
means that when the ABA conducts an evaluation and seeks feedback from 
a candidate's peers, they discover the nomination has already been 
announced by the White House. The candidate has already been chosen. 
Understandably, lawyers are reluctant to provide candid feedback when 
they know a potential judge has already been nominated. Additionally, 
it is concerning that we have had hearings in the Judiciary Committee 
before the ABA rating process is completed. When that happens, it 
prevents the ABA, our professional organization of attorneys, from 
being called to testify to explain a ``not qualified'' rating at a 
hearing where a nominee is considered. In fact, just earlier today, we 
had two judicial nominees listed on our agenda who do not yet have an 
ABA rating.
  I am not suggesting that every Senator needs to vote in lockstep with 
the ABA rating, but I feel strongly that the ABA's evaluation must be 
available to Senators before they are asked to vote on a nominee for a 
lifetime position as a Federal judge.
  Another tool that is under attack that is a century-old tradition of 
the Judiciary Committee is the so-called blue slip. This is a practice 
that allows the two home-State Senators to give a positive or negative 
recommendation on a nominee before they receive a hearing and are 
considered for lifetime tenure. It allows each Senator to approve the 
judicial nominations for vacancies in their home States or in the 
circuit courts where a seat is traditionally associated with that home 
State. By requiring that blue slips be returned before a nominee is 
considered, each Senator is afforded the courtesy to evaluate whether a 
judicial nominee will meet the needs of his or her constituents and the 
priorities and values of their home State. It is an important tool for 
ensuring that the White House of either party consults with Senators 
about the judicial candidates the President is considering for 
nomination. In the end, this tool promotes consensus candidates by 
ensuring all Senators' views are taken into account, without respect to 
partisan registration.
  As a Senator from Delaware--a State with two current judicial 
vacancies in one of the busiest district courts in America, which only 
has four active judgeships--I have been focused on working 
collaboratively with the White House in a productive manner that 
ensures that my State gets qualified consensus nominees from the White 
House. I am pleased to report that Senator Carper and I have had a very 
positive experience so far working with the White House on these 
potential nominations, and it is my hope that we will soon see nominees 
I can support without reservation. But the blue slip process ensures 
that this consultative, constructive experience is the rule, not the 
exception. It is unfortunate that this blue slip practice--this 
century-old tradition of the Judiciary Committee--is under sustained 
attack. I believe we should maintain it for all Senators, in the best 
interests of this institution and our Federal judiciary.
  Article III judges, as I have said, serve with lifetime tenure. They 
decide issues of civil rights, of personal freedom, commercial disputes 
of enormous value, and even life and death. These judges can and 
should, on occasion, also serve as checks on Presidential power 
overreach. Just in the past few months, article III judges have 
enjoined executive orders, including the so-called travel ban, the 
transgender military ban, and the decision to strip funding from 
sanctuary cities.
  We should be advancing nominees who can earn broad support from 
Members of both parties, nominees with the experience to handle some of 
the most complex and demanding judicial issues of our time, nominees 
who have demonstrated the temperament to administer justice fairly. 
These nominations matter. The nominees who will fill the 140 current 
judicial vacancies on district and circuit courts across our country 
will play a critical role in either protecting or undermining the 
constitutional rights that are the bedrock of our Republic. Our courts 
must continue to be the place where everyone is treated fairly and the 
legal rights of our citizens can be vindicated.
  I wish to close by calling on my colleagues to reconsider how we are 
conducting the judicial nominee process. This race to confirm as many 
nominees as possible is not how we respect the rule of law--one of the 
most treasured American values.
  I have come to the floor multiple times since the beginning of this 
Congress to convey and speak about the importance of bipartisanship, 
and I will continue to do that today.
  As we have seen in important public policy matters, from the 
healthcare debate to the current debate on tax reform, Republicans and 
Democrats need to work together to get things done. Purely partisan 
processes will not succeed in this or future Congresses. We have to 
work together to protect our democracy and our rule of law.
  I would also like to note that today Sam Clovis withdrew as a nominee 
for Chief Scientist at the USDA.
  I am not here to comment on any connection to any ongoing 
investigations or other social issues but, rather, would like to 
comment on a simple concern I have had since his nomination; namely, 
that Mr. Clovis is unqualified to serve as Chief Scientist, lacking any 
professional training in the hard sciences. This is not just my opinion 
but a matter of statutory requirement. It is a requirement in statute 
to have a background in science.

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Science is critically important to agriculture, and this is another 
Federal agency that depends on good science.
  Given the serious challenges facing America's farmers and our food 
system--from pollinator declines, to deteriorating soil health, to a 
changing climate--USDA's science mission is extremely important. As 
someone whose home State university has a vibrant department of 
agriculture, as someone who knows the very broad range of Federal 
funding for USDA that supports agriculture-related scientific 
research--the USDA is critical in helping provide our farmers with the 
information they need to improve plant and animal resilience, to be 
more effective stewards of the land, and to adopt new technologies and 
practices on their farms. This could all be at risk if the agency's 
head of science has no relevant scientific training and even rejects 
current scientific thinking.
  I believe that science, not mere opinion or partisan attitude, should 
underpin our decisions when it comes to our Nation's agricultural 
policy.
  It is my hope that the administration will now go back and recommend 
a nominee who is scientifically trained and who cares deeply about the 
role of science in our Nation's agriculture.
  Mr. President, 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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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