Congressional Record, Volume 163 Issue 193 (Tuesday, November 28, 2017)

[Congressional Record Volume 163, Number 193 (Tuesday, November 28, 2017)]
[Senate]
[Pages S7341-S7346]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

The Deficit

Mr. LANKFORD. Mr. President, I want to address this body and talk
about an issue that we do not talk about enough--the deficit. It is an
issue that, for whatever reason, we have stopped talking about in
Washington, DC. We talk about tax policy, which we should. We talk
about disaster relief areas, which we should. We talk about healthcare
policy, which we should, and a lot of other things. We have stopped
talking about the debt and deficit, and I think that is a mistake for
us.
You see, after 2011, the trend moved from a high point. Deficit
spending that year was $1.3 trillion--overspending in a single year.
After that point, the deficit went down a little bit each year until
2015. In 2016 our deficit number--that is a single year of
overspending--started going back up. It went up in 2016, and it went up
again in 2017. It is turning in the wrong direction. As you will recall
and as many people in this body will recall, deficits were a major
topic for us starting in 2010. Each year, Congress was trying to find
ways to be able to reduce the deficit. That does not seem to be the
issue anymore.
What I bring is a set of solutions and a set of ideas. How do we get
out of this? Are there bipartisan solutions to actually deal with
deficit overspending? There are priority things that we need to spend
money on, and we should spend money on those things. Yet, as to the
things that are nonessential for us and on which we might all find some
way to agree that there is a better way to be able to spend our
dollars, we should.
So this week I have produced our third annual ``Federal Fumbles''
book. We call it ``100 ways the Federal Government has dropped the
ball.'' None of these should be all that controversial, though we will
not agree with all of them. But there are simple ways to look at what
the Federal Government is doing, what it is not doing, where we are
spending, where we are overspending, and where additional oversight is
needed. There is no problem in this country that can't be solved, and,
certainly, our deficit is an issue that can be solved. We just have to
commit to each of us making the decision that this is actually
important and that we are going to try to resolve this to try to get us
back toward balance.
I have lumped all of these issues from this book back into a whole
series of different process things because each one of the 100 things
that we identify is not just a stand-alone; it is part of a bigger
problem. So I have put them together into budget process reforms and
grant process reforms, which allow for more transparency in how
decisions are made and as to what decisions have been made. I would
say, as well, that there are Senate rule changes that are going to be
needed to be able to resolve any of these issues. We put together these
four big blocks to be able to ask: What are we actually dealing with?
Let me just give you a couple of ideas.
If we are going to actually deal with some of the budget issues, we
are going to have to actually deal with the budget process. We are not
going to get a better product until we get a better process. Since
1974, the Budget Act has only worked four times, and every year the
American people have asked over and over: What just happened? How

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come we are back in this budget fight? How come it is at the end of the
year? How come this is not resolved? Because we have a bad process--
that is why. Our process is not constitutional. It is the product of a
law that was put in the Budget Act. We need to be able to change that,
and I think there are some basic ways to be able to resolve that.
I would like to do budgeting and appropriations every 2 years. That
would give us more time to be able to do more oversight, and that would
give us more time for floor debate on it to be able to walk through
this. There are multiple other areas that need to be resolved, like
aligning our committees and other things that need to be done if we are
actually going to get budget work done. In the meantime, we need to be
able to push through what we can with the greatest efficiency, but,
long term, we are going to have to fix the broken process that we have.
We should fix the grant-making process. There has been a lot of
pressure to be able to move dollars toward grants because now we have
put more and more restrictions on contracting. Because there are very
few restrictions on grants, a lot of agencies are now spending more on
grants than they are on contracting, and they are pushing dollars out
the door with there being very little supervision.
We have to work on transparency. I am ashamed to say that for 6 years
I have pushed on a very simple bill called the Taxpayers Right-To-Know
Act. It passed unanimously in the House in 2 different years. It came
over to the Senate, and it got tied up. The Taxpayers Right-To-Know Act
is very simple. It asks every agency to list everything that it does.
What a shocking thing it would be to actually know everything that
every agency does--to be able to see what it does, what it spends on
it, how many employees it allocates to it, and how many people it
serves.
Every business in America can give a list of everything that it does
except for the Federal Government. We cannot. We should. It would give
the opportunity for agency heads to find out, before they start a
program, and to know if someone else already does it in the Federal
Government. I have talked to multiple agency individuals now, under two
different Presidents, who have said that they have started a program,
gotten it developed, committed people to it, and then a couple of
months or years later determined that somebody else was already doing
it. Even our agency folks do not know what the other agencies are
doing. This should be a simple, straightforward solution to be able to
help our agencies and to be able to help all of us have greater
supervision over the budget.
The fourth thing is dealing with Senate rule changes. If we do not
solve the issue of our nominations, we will never be able to get actual
legislation on the floor and get back to debate again. We have stopped
debating on major bills. We have stopped debating on small bills.
Because it takes so much time, it is easier to just not do it at all.
That is not what the American people sent us here to do. When we say
that the Senate cannot debate a topic, no one can believe it. That rule
doesn't get better based on inactivity. It gets better when we actually
fix the basic problem that we have, and that is getting us back to
debate and solving the nomination process. Let's actually get this
resolved.

In saying all of that, all of the things that are in this book this
year are things that I and my staff and my team--and Derek Osborn, who
has led in all of the compilation of this on my team--have put
together. We have put together this basic package to say: Here are 100
items. Quite frankly, I would hope that all 100 Senators could go
through budget areas and that everybody could find 100 items and could
identify them and say: Let's compare our lists and then ask: What are
we going to do to be able to deal with the debt and deficit? How are we
going to deal with some of the spending and inefficiencies of the
Federal Government? We would probably have 100 different lists, but I
would bet that, of the 100 different lists, we would find a lot of
common ground, and we would actually start to solve some things.
What type of things did we find on our list this year? Let me give
you some examples.
The National Science Foundation did a grant this past year to study
the effects and how things are going for refugees in Iceland. Now, I am
sure that the country of Iceland would like to know how it is going for
their refugees, and maybe even the U.N. would like to know, but I am a
little stunned that the National Science Foundation used American tax
dollars to study refugees in Iceland.
The National Endowment for the Arts did a grant this past year to
help pay for a local community theater in New Hampshire in its
performance of ``Doggie Hamlet.'' ``Doggie Hamlet'' is an outdoor
presentation in which a group of people yells and sings around a group
of sheep and sheep dogs. I have watched the performance, and I think it
is fine if the folks of New Hampshire want to do that performance. I am
just not sure why the people of Oklahoma are being forced through their
Federal tax dollars to pay for the production of ``Doggie Hamlet.''
Last year, the Department of Defense moved some equipment into Kuwait
to be able to give it to the Iraqi army. So $1 billion worth of
equipment was moved into Kuwait to give it to the Iraqi army--Humvees,
small arms, mortars. All of that is fine, as we were helping to equip
the Iraqi army to allow them to be able to defend themselves. The
problem is that we lost track of them somewhere between Kuwait and
Iraq, and the DOD doesn't know what happened to $1 billion of equipment
after it was delivered to Kuwait.
The IRS has had multiple issues that we have tried to identify in
different segments of this. One is that several years ago we noticed
that the IRS was rehiring employees whom it had fired--the employees
who were not paying their income taxes but were working for the IRS or
the employees who were using their positions to spy on other Americans
and pull up their tax information just because of their own interests.
It is a fireable offense at the IRS--and it should be--to violate an
American's privacy. The problem is that the IRS has started rehiring
those same people right back. I don't know many companies that fire
somebody and then later decide they are going to change their minds and
rehire him, but, apparently, the IRS has become proficient at that. We
identified it several years ago. The IRS said it would stop it. We did
a check on that last year, and guess what. The IRS is still doing it--
rehiring the employees it has fired, some of them even with their files
that are stamped ``do not hire.'' The IRS hired them anyway. We have to
be able to stop that.
The IRS also did a study, through a program that it has, to be able
to research tax compliance--not of changing tax rules, just of how
people are complying with the tax rules and evaluating: Are they paying
the correct amount of tax? Quite frankly, our tax system is so
incredibly complicated that it is hard to be able to track what is the
right amount, but the IRS should be able to look at it and determine
whether someone is paying the right amount based on those figures. The
IRS has developed some programs to be able to recommend, but the
problem is that it has not implemented those programs. Over $400
billion of taxes has never been collected by the IRS because it has not
implemented the recommendations that it has in front of it already.
The IRS has also had an issue that we are trying to deal with, along
with several other entities by the way: Who is alive and who is not
alive? You see, the Social Security Administration keeps track of
something called the Death Master File. It sounds wonderful; doesn't
it? The Death Master File basically says who has passed away in America
and what Social Security number is not functional anymore. The IRS is
not fully implementing that list and, at times, it is still sending
checks to people who died years ago. Then, some fraudulent people take
a Social Security number from someone who has passed away and file a
return on that Social Security number in January or February, and the
IRS sends them a check simply because it has not listed that this
person has passed away and that the Social Security number is not
active. Yet the IRS is not the only one.
We also identified in the SNAP program--what some people call the
food stamp program--that there are thousands of retailers who are using
these

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false Social Security numbers from people who have passed away. Last
year, $2.6 billion was sent out to SNAP retailers based on the Social
Security numbers of the people who had passed away or on the numbers
that are not operable. Those are things that are fixable. There is $2.6
billion of fraud that is in the system.
We have asked the question about immigration, and immigration has
been an important topic here. We talk about immigration as well and not
just of the financial portion of it but of the fumble portion of things
that are actually going wrong in immigration currently. A lot of
folks--and some folks even in this body--say: If we will just enforce
the law as it exists and build a fence, we will be fine. The problem is
that 66 percent of the people who are in the country illegally came
into the country legally, with a legal visa, but they overstayed the
visas. They never left.
After 9/11, the 9/11 Commission said that one of the major aspects in
dealing with immigration was to do an entry-exit visa system so that we
would know who they were when people came in, and we would also know
when they left. That was a recommendation from the 9/11 Commission, but
it has still not been done a decade and a half later.
If we are going to deal with immigration, one of the key things that
we have to have is not just a wall or a fence or some sort of barrier.
We also have to deal with when people come in and when they leave under
legal visa systems. I have heard comments about hiring more Border
Patrol folks and more ICE folks. That is OK, fine. I am good with that,
actually, but here is the problem. With the current system that is set
up, it takes over 450 days to hire one person as a Border Patrol person
because the process is so convoluted--450 days. What if you would like
to apply for a job and you wouldn't hear back about it for a year and a
half--450 days?

What about if we are going to add more immigration attorneys? We have
a half-million-person backlog in our immigration courts right now. What
if we were to hire more judges for that process? Great idea. Guess how
long it takes to hire more judges in the immigration court? It takes
742 days right now to be able to hire a judge to add to the immigration
courts. Our problems are not just in immigration. There are structural
problems in the Federal Government right now in hiring, oversight, and
in managing the reports.
I mentioned the IRS's not implementing one of the reports they have.
There is also an issue with some other agencies that will put on the
back of Federal vehicles their phone number with this question: How is
my driving? What a great idea that is for a Federal vehicle. The
problem is that when we looked at it, we found out that the agencies
never actually read the reports that came in. If people called in and
said that this particular car number is driving crazy, no one is
actually looking at it. It is the fear that Americans have that no one
is really listening to them in the Federal Government.
Claire McCaskill and I just worked to be able to pass something in
this body to try to deal with solving this basic question: Can agencies
ask: How am I doing?
When most of us get a rental car or a hotel room online, we will get
an email after we check out of the room or stop using the rental car
asking: How is our service? How can we improve?
Do you know that Federal agencies can't do that or that it has become
so complicated that they can't produce a three-question e-survey to
send out to people saying: How are we doing in Social Security
disability? How are we doing in the Veterans' Administration? How are
we doing in our HUD assistance to you? The reason for that is the
Paperwork Reduction Act, of all things. An old law that was supposed to
help us is actually now in the way, now in the modern age, of our
trying to do basic surveys. We need to be able to resolve that. That is
something this body can lead on to be able to change.
There are a lot of things we want to be able to identify and to say
that we can do better. This is our list. Quite frankly, this is our to-
do list for the next year, just as the previous two volumes have been.
We have seen some things that we have been able to accomplish over the
last couple of years from previous ``Federal Fumbles'' books, but we
can't get started on them until we actually identify them and say: That
is a problem. How are we going to fix it? Our simple question for the
rest of this body is this: Here is our list; what is yours? What are
the things we are working on? What are the issues that we are actually
going to get done and solve for the American people? What are the crazy
stories and things we are wasting money on? If we only identified it
and said: Let's stop that, we could and would. Let's do it together.
There is no reason that reducing the deficit should have to be an
issue that has become a partisan issue. Deficits and the growing debt
affect every single American. So let's work on it together, and let's
stop finding ways to not work on it and find areas of common ground
where we can work on it.
Let's fix inefficiencies in Federal Government hiring. Let's fix
inefficiencies in our system. We have a tremendous number of great
Federal employees who are all around the country and who work extremely
hard for the American people every day and do great work, but they are
trapped in a system that slows them down, that prevents them from being
as efficient as they would like to be. Let's help them out by fixing
the broken things that are in these agencies and systems. Let's set
them free to be able to serve people the way they want to be able to
serve people.
There are things we can do. Let's get busy doing it. If you are
interested in knowing more about ``Federal Fumbles'' go to our website
at lankford.senate.gov. We will send a copy over. We will send you a
link to our website because it is cheaper and we will not have to print
it off, and you can look at it online.
The issue of the day is this: Let's find out what your list is; we
have started ours.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, the judges Donald Trump appoints to
lifetime positions on our Federal courts will be a lasting legacy, and
he is determined to do whatever it takes to place as many nominees with
an ideologically driven agenda on the bench as possible.
Today the Senate is debating whether to give Gregory Katsas a
lifetime appointment to serve on the U.S. Court of Appeals for the DC
Circuit. Throughout his career, including as Deputy White House Counsel
under Donald Trump and as a senior official in the Justice Department
under George W. Bush, Mr. Katsas has demonstrated a profound
conservative bias that is inappropriate for service on the country's
second most important court.
As Deputy White House Counsel, Mr. Katsas has been deeply involved in
crafting the legal justification for many of the Trump administration's
most controversial policies. He also played a key role in deciding
which court cases the administration would support or oppose and
recommending candidates for various executive and judicial
appointments.
The legal issues he has managed, the advice he has given, and the
appointments he has recommended raise serious concerns about whether he
should receive a lifetime appointment to the Federal bench.
In the early days of the administration, Mr. Katsas participated in
crafting the legal justification for the President's Muslim ban, a
policy at odds with the Constitution and our values as a nation. Mr.
Katsas has also been involved in orchestrating the administration's
opposition to LGBTQ rights in the courts. In particular, he openly
admits his role in the Justice Department's decision to argue in a case
before the Second Circuit that title VII in the Civil Rights Act of
1964 does not prohibit discrimination on the basis of sexual
orientation. This position is inconsistent with the Equal Employment
Opportunity Commission's 2015 guidance and with a recent en banc
decision from the Seventh Circuit Court of Appeals.
During his confirmation hearing, Mr. Katsas testified that he was
involved in the administration's decision to file an amicus brief in
the Supreme Court case of Masterpiece Cakeshop v. Civil Rights
Commission. He thus supports the position that a private business

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should be able to refuse to sell a wedding cake to a gay couple.
By elevating a corporation's religious views over the rights of their
customers, Mr. Katsas and the Trump administration argued that
businesses should be able to say that their work is an expression of
their religious beliefs. This would allow them to discriminate against
certain customers and turn our system of antidiscrimination protections
in public accommodations on its head. These actions and positions
should disqualify Mr. Katsas from serving on the DC Circuit.
But there is more.
We can also trace his record of pushing a partisan, ideological
agenda during his time in the Bush Justice Department. In Hamdan v.
Rumsfeld, Mr. Katsas argued that the military commissions the Bush
administration established after 9/11 were legal and consistent with
the Uniform Code of Military Justice and the Geneva Conventions. In
Boumediene v. Bush, Mr. Katsas also argued that people deemed enemy
combatants and detained at Guantanamo could not challenge their
detention on habeas corpus grounds. The Supreme Court repudiated these
arguments in their landmark decisions in both cases.
Mr. Katsas was also the public face of the Bush administration's
opposition to the Native Hawaiian Government Reorganization Act, also
known as the Akaka bill. As the Principal Deputy Associate Attorney
General in the Bush administration, Mr. Katsas testified in Congress
that the Akaka bill was unconstitutional. He went so far as to say that
it would ``create a race-based government offensive to our Nation's
commitment to equal justice and the elimination of racial distinctions
in law.''
What was really offensive was that his testimony was legally wrong
and insulting to a Native people, the Native Hawaiians. In rebuttal, a
bipartisan trio of highly respected former DOJ officials said in
written testimony that Mr. Katsas failed to provide a credible and
coherent legal argument against the Akaka bill. They argued that his
testimony presented ``a caricatured view of the text of [the bill] and
the governing law, and should not be considered an authoritative guide
for resolving legal disputes in this area.''
I agree. The Akaka bill did not confer status to a group of people
based on race and ancestry. It did so by virtue of residency and
sovereignty. With no grounding in fact or law, Mr. Katsas advocated
treating Native Hawaiians differently from other indigenous people.
Mr. Katsas' position on Native Hawaiian rights is of particular
concern at a time when the DC Circuit could hear legal challenges to
the 2016 Interior Department rule through which the Native Hawaiian
community could reestablish a government-to-government relationship
with the Federal Government.
Mr. Katsas has a disturbing record of pushing a partisan conservative
agenda not based on sound law that has no place in the DC Circuit. We
cannot simply ignore his record and decouple his past actions from the
person responsible for them. Mr. Katsas has clear policy preferences
that are red flags as to how he will decide cases should he be
confirmed to this lifetime position.
I urge my colleagues to oppose this nomination.
I yield the floor.
Mr. GRASSLEY. Mr. President, today the Senate is voting to confirm
Gregory Katsas to serve as U.S. circuit judge for the District of
Columbia Circuit. Mr. Katsas's 28-year legal career has prepared him
well to serve as a Federal judge. His nomination has garnered
widespread support in the legal community.
Mr. Katsas graduated with his A.B. from Princeton University in 1986
and from Harvard Law School in 1989. After graduating from Harvard Law
School, Mr. Katsas clerked for Judge Edward Becker on the Third Circuit
Court of Appeals and for Justice Clarence Thomas on the DC Circuit and
on the U.S. Supreme Court. Following his clerkships, Mr. Katsas joined
the DC office of Jones Day, where he worked in the issues and appeals
section of their litigation group.
From to 2001 to 2006, Mr. Katsas served as a Deputy Assistant
Attorney General for the Civil Division at the Department of Justice,
where he argued, briefed, and supervised a number of significant
appeals handled by the Federal Government. He then served as the
Principal Deputy Associate Attorney General from 2006 to 2008 and the
Acting Associate Attorney General from 2007 to 2008. In 2007, President
Bush nominated Mr. Katsas to serve as the Assistant Attorney General
for the Civil Division at the Department of Justice. The Senate
confirmed him by voice vote in 2008, and he served in that role until
the end of the Bush administration.
Mr. Katsas rejoined Jones Day as a partner in 2009, where he handled
many important litigation matters. In January of this year, Mr. Katsas
again left the private sector to serve the President as deputy counsel
in the White House Counsel's office.
One only has to look at his professional record to understand how
eminently qualified Mr. Katsas is to serve as a Federal appellate
judge. Over the course of 28 years, Mr. Katsas has briefed hundreds of
cases and argued more than 75 appeals, including three cases in the
Supreme Court and 13 cases in the DC Circuit, the court to which he is
nominated.
I am pleased to support Mr. Katsas's nomination, and I urge my
colleagues to vote for his confirmation.
Mr. DURBIN. Mr. President, I rise in opposition to the nomination of
Greg Katsas to the DC Circuit Court of Appeals, but I want to begin
with some general observations.
This year, the Republican-controlled Senate has repeatedly fallen
short when it comes to serving as a meaningful check and balance in our
constitutional system. Senate Republicans have abandoned longstanding
norms of due diligence and careful scrutiny, all in the name of
advancing the agenda of President Trump.
We saw this when Senate Republicans voted in near lockstep to confirm
President Trump's Cabinet nominees. Republicans simply looked the other
way when nominees failed to pay all of their taxes, did not disclose
millions in assets, had conflicts of interest, or could not even answer
basic questions at their hearings. Senate Republicans have repeatedly
tried to rush through partisan bills in the dark of night. Remember
when they revealed the text of the TrumpCare bill just a few hours
before the Senate voted on it? Now Senate Republicans are trying to
pass massive tax cuts for the largest corporations and wealthiest
Americans, by ramming through an enormous bill with little debate and
public scrutiny of how the bill would explode the deficit and raise
taxes on many in the working class.
This pattern, of the Senate abandoning its responsibility to do basic
due diligence when it comes to the agenda of President Trump, has also
infected our process of considering judicial nominees. When it comes to
President Trump's judicial nominees, we are seeing the Senate's
constitutional responsibility of ``advice and consent'' turn into
``rush through and rubberstamp.''
All year, Senate Republicans have been removing guardrails that help
ensure that judicial nominees have the qualifications, temperament, and
integrity that we need for lifetime appointments to the Federal bench.
Don't just take it from me. Take it from the conservative Wall Street
Journal. I ask unanimous consent to have printed in the Record a
November 20 article from the Wall Street Journal entitled ``Checks on
Trump's Court Picks Fall Away'' at the conclusion of my remarks.
This article talks about the series of procedural changes Senate
Republicans have made this year to expedite Trump's judicial
nominations--most recently, the November 16 announcement by Senator
Grassley, the chairman of the Judiciary Committee, that he would hold
hearings on nominees who do not receive positive blue slips from both
home-State Senators, something that never happened under the Obama
administration. The article begins by saying:

Consider the other changes Republicans have already made in just the
first year of the Trump administration.

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First, President Trump subcontracted the selection of Supreme Court
nominees out to rightwing special interest groups like the Federalist
Society. President Trump publicly thanked the Federalist Society for
assembling a list of candidates from which Justice Neil Gorsuch was
selected. The White House even asked Leonard Leo of the Federalist
Society to call Justice Gorsuch to let him know he was a candidate for
the job. Never before had a President credited a special interest group
with serving as a de facto selection committee for the Federal
judiciary. For anyone who wonders what the Federalist Society is all
about, I urge you to watch the video of this group laughing and
applauding at their convention a few weeks ago when Attorney General
Sessions joked about meeting with Russians. It was shameful.
Senate Republicans also changed the rules of the Senate in order to
get Neil Gorsuch confirmed. He couldn't get 60 votes on the Senate
floor, so the Republicans changed the rules to make 50 votes the
threshold for appointments to the Supreme Court.
When it comes to lower-court nominees, the Trump administration and
Senate Republicans are doing half-hearted vetting at best. We are
constantly learning information that nominees initially failed to
disclose. For example, Alabama District Court nominee Brett Talley
failed to disclose that his wife was an attorney in the White House
Counsel's Office and that Talley had apparently posted online comments
defending the early KKK and calling for shooting death row inmates.
Court of Federal Claims nominee Damien Schiff failed to disclose that
he had called Supreme Court Justice Anthony Kennedy a ``judicial
prostitute'' in a blog post. North Carolina District Court nominee
Thomas Farr reportedly failed to fully disclose his role in an African-
American voter suppression effort during the 1990 campaign for Senator
Jesse Helms. Yet all of these nominees were reported out of the
Judiciary Committee on party line votes.
There are other changes that Republicans have made to the nominations
process this year. Republicans have decided not to wait for the
American Bar Association to do their nonpartisan peer review of a
nominee's qualifications before holding a hearing. When the ABA
unanimously finds nominees not to be qualified, Republicans still
support the nominees anyway. Republicans have also begun regularly
holding hearings on two circuit court nominees at a time. Why?
Apparently, they are afraid to let each of their nominees stand on
their own two feet and face questioning from Senators individually. The
circuit courts have the final word on tens of thousands of cases every
year. Every single lifetime appointment to these courts deserves to be
scrutinized on its own individual merits.
Furthermore, Judiciary Committee Republicans are looking to relax the
standards for nominees with a history of past drug use. Republicans
repeatedly blocked judicial candidates proposed by President Obama who
had smoked marijuana in the past, but Republicans now want a more
lenient standard for Trump nominees. I am open to a different standard,
but it must not be a double standard for Democratic versus Republican
nominees.
That takes us to the changes to the blue slip. Republicans now want
to disregard this 100-year-old tradition--meaning they will ignore the
vetting that home-State Senators do for nominees from their State.
Remember, blue slips were respected throughout the Obama
administration. Republicans sent a letter in 2009 asking President
Obama to respect blue slips, and he did. Republicans then proceeded to
block 18 Obama nominees by withholding blue slips. Now, Republicans
have announced that they are doing a 180-degree turn for Trump nominees
and that they will disregard blue slips whenever they feel like it.

Why are Republicans abandoning so many longstanding traditions and
guardrails when it comes to judicial nominations? It is because many of
President Trump's nominees simply wouldn't pass muster under the
traditional ground rules. Many Trump nominees have minimal experience,
a history of ideologically biased statements, serious questions about
their temperament and judgment, or a lack of independence from
President Trump. Senate Republicans want to rubberstamp these nominees
anyway--and confirm them as quickly as possible in their effort to pack
the courts.
Just look at some of the judicial nominees who have already been
confirmed this year--like John Bush, confirmed to sit on the Sixth
Circuit, who blogged about the false claim that President Obama wasn't
born in the United States and said at his hearing that he thinks
impartiality is an aspiration for a judge, not an expectation; or
Stephanos Bibas, now a judge on the Third Circuit, who wrote a lengthy
paper calling for corporal punishment, including putting offenders in
the stocks or pillory and applying multiple calibrated electroshocks.
Now, consider DC Circuit nominee Greg Katsas, who is before us today.
Mr. Katsas works in the White House for President Trump. He is a Deputy
White House Counsel. He testified that he has been personally involved
in many of the Trump administration's most controversial policies,
ranging from the Muslim travel ban to the creation of the Pence-Kobach
election commission, to ending the DACA program, to the Trump
administration's rollback of protections for LGBTQ-Americans.
Mr. Katsas also said that, while working for President Trump, he has
given legal advice regarding the Emoluments Clause, advised on the
administration's efforts to cut off Federal public safety funds to
cities because of disagreements over immigration enforcement, and even
provided legal advice on the Special Counsel's Russia investigation.
This is a laundry list of Trump administration controversies that Mr.
Katsas has been personally involved with. It is likely that many of
these issues will end up in litigation before the DC Circuit. I don't
think appointing President Trump's staff lawyer to the DC Circuit will
strengthen the American people's confidence in the fairness of our
justice system. Instead, we need nominees with a strong track record of
independence and good judgment.
Let me talk for a minute about Mr. Katsas's judgment.
At his hearing, I asked Mr. Katsas some simple questions about the
torture technique known as waterboarding. I was deeply troubled by his
answers. I asked him if waterboarding is torture. He said, ``I hesitate
to answer the question in the abstract, not knowing the circumstances,
the nature of the program.'' I asked him if waterboarding is cruel,
inhuman, and degrading treatment. I noted that Senator John McCain, the
author of the 2006 law that made it clear that cruel, inhuman, and
degrading treatment is illegal, has said ``waterboarding, under any
circumstances, represents a clear violation of U.S. law''--so did all
four Judge Advocates General--the top lawyers in the military--during
the Bush administration. But Mr. Katsas responded evasively, saying
``anything that is cruel, inhuman, and degrading treatment would be
clearly unlawful.'' I then asked Mr. Katsas is waterboarding illegal
under U.S. law. He said ``to the extent it constitutes either torture
or cruel, inhuman, or degrading treatment, yes it is.''
What a pack of weasel words. Mr. Katsas's tortured logic about
waterboarding is unacceptable. Mr. Katsas should have said, with no
equivocation and no uncertainty, that waterboarding is illegal, that it
is cruel, inhuman, and degrading and that it is torture. That is the
law, and a Federal judge should know it.
I am concerned that Mr. Katsas's refusal to give those answers
reflects a troubling ideological viewpoint when it comes to questions
of torture and interrogation techniques. My concerns were amplified by
a speech Mr. Katsas gave in April 2009 when his speech notes said
``high bar--a lot of coercive interrogation does not equal torture.''
This is a clear-cut issue for me. I have voted against nominees in
the past who gave the wrong answers to questions about waterboarding,
and I will do it again. In my view, Mr. Katsas has not demonstrated the
independence and judgment that we need for the critical position of DC
Circuit judge. I cannot support his nomination.

[[Page S7346]]

Here is the bottom line. Before I was a Senator, I was a lawyer in
downstate Illinois, and I looked up to Federal judges. I thought that,
to get that job, you had to be a cut above. Otherwise, you wouldn't
make it through the Senate's rigorous advice and consent process.
Sadly, this Republican Senate is turning advice and consent into ``rush
through and rubberstamp.'' Republicans want to pack the courts with
judges who will support President Trump's agenda, and so they are
hurrying to confirm as many of his picks as possible--even if they are
unqualified, ideological, hiding things from the Senate, or too close
to President Trump. Our Federal judiciary is being diminished as a
result.
I wish my Republican colleagues would stand up for an independent
judiciary and a meaningful advice and consent process. We should fill
this vacancy on the DC Circuit with someone who is independent of
President Trump, not one of his staff attorneys. We should choose
nominees who are unafraid to say what the law is on torture, instead of
what they might wish the law to be.
I urge my colleagues to vote no on the Katsas nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Wall Street Journal, Nov. 20, 2017]

Checks on Trump's Court Picks Fall Away

(Joe Palazzolo and Ashby Jones)

Move to curtail `blue slips' gives the president, and successors, wide
leeway in picks for federal bench

The Republican head of the Senate Judiciary Committee has
curtailed one of the last legislative limits on a president's
power to shape the federal courts, giving Donald Trump more
freedom than any U.S. president in modern times to install
his judges of choice, legal experts said.
Last week, Sen. Chuck Grassley (R., Iowa) reined in a
tradition that empowered senators to block federal appeals-
court nominees from their home state. His decision came about
four years after Democrats, citing Republican filibusters of
President Barack Obama's circuit-court nominees, eliminated a
Senate rule that required the majority party to mount 60
votes to advance a nominee to a confirmation vote.
Together, the threat of a filibuster--or delaying tactic--
and use of ``blue slips''--so named because senators indicate
support or opposition to nominees on blue slips of paper--
guarded against lifetime appointments for nominees deemed far
outside the mainstream, court experts said. Getting rid of
these checks could foment distrust in judges' work if Mr.
Trump and later presidents prioritize ideology over
experience or legal talent, some of the experts said.
``When judges lose legitimacy in the public eye, they lose
the ability to enforce unpopular decisions,'' said Arthur
Hellman, an expert on the federal judiciary and law professor
at the University of Pittsburgh. ``And that's when you see an
unraveling in the rule of law.''
Others said the changes were part of a natural progression
away from Senate traditions that allowed the minority party
to stall nominations for partisan reasons.
``If you're not a fan of the Senate-wide filibuster, you're
probably not a fan of a filibuster by one senator,'' said
Ilya Shapiro, a senior fellow in constitutional studies at
the Cato Institute, referring to the practice of senators
blocking nominees from their states.
So far, the Republican-controlled Senate Judiciary
Committee has approved two nominees pronounced unfit to serve
by the American Bar Association, including Brett Talley, a
Justice Department lawyer who has never argued a motion in
federal court and whose wife is the chief of staff for the
top White House lawyer.
``If Senate Republicans will confirm him, then there is no
realistic sense of checks and balances,'' said Christopher
Kang, who worked on judicial nominations in the Obama White
House.
The White House declined to address criticisms of Mr.
Talley.
The ABA's Standing Committee on the Federal Judiciary has
deemed two other Trump nominees ``not qualified''--ratings
Republicans on the Senate Judiciary Committee dismissed as
the product of what they called a liberal advocacy group.
The ABA has rejected that criticism, saying it has rated
potential judges for more than 60 years, drawing on dozens
and sometimes hundreds of interviews with a nominee's
colleagues and other peers.
Hogan Gidley, a White House spokesman, said Mr. Trump has
delivered on his promise to nominate ``highly qualified
judges.''
``We appreciate the hard work of Chairman Grassley and
[Senate Majority Leader Mitch] McConnell, and we urge the
Senate to confirm all of the remaining nominees because it's
what the American people deserve,'' he said in an emailed
statement.
Mr. Grassley said on Thursday that he would hold a hearing
on two nominees--David Stras, a nominee to the midwestern
Eighth U.S. Circuit Court of Appeals, and Kyle Duncan, a
nominee to the Fifth Circuit in New Orleans--over the
objections of home-state senators Al Franken of Minnesota, a
Democrat, and John Kennedy of Louisiana, a Republican.
The blue-slip practice began in the 1910s and, for a large
portion of its history, ``gave Senators the ability to
determine the fate of their home-state judicial
nominations,'' the Congressional Research Service, a research
arm Congress, said in a 2003 report.
Mr. Grassley said that after his recent move, a negative
blue slip would be a ``significant factor'' for the committee
to consider but wouldn't prevent a hearing, a break with the
practice of Senate Judiciary Committee chairmen since at
least 2005.
He blamed the Democrats for abusing the blue slip after
eschewing the filibuster.
``The Democrats seriously regret that they abolished the
filibuster, as I warned them they would. But they can't
expect to use the blue-slip courtesy in its place. That's not
what the blue slip is meant for,'' he said on the Senate
floor last week.
Mr. Grassley also has parted with common practice by
stacking two circuit court nominees in a single confirmation
hearing, reducing time for preparation and questions, and
holding hearings before the ABA finished its judicial
evaluations.
``Taken together, it's clear that Republicans want to
remake our courts by jamming through President Trump's
nominees as quickly as possible,'' said Sen. Dianne Feinstein
(D., Calif.), the ranking member of the Senate Judiciary
Committee, in an emailed statement.
The median time from nomination to Senate confirmation for
circuit-court nominees was less than a month in the
administrations of presidents Lyndon Johnson and Richard
Nixon, said Russell Wheeler, a visiting fellow at the
Brookings Institution who studies federal courts. That number
rose through the 1980s and 1990s and ballooned to 229 days
during President Barack Obama's two terms, he said.

Ms. HIRONO. I 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.