[Congressional Record Volume 163, Number 204 (Thursday, December 14, 2017)]
[Senate]
[Pages S8020-S8025]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Fifth Anniversary of the Sandy Hook Mass Shooting
Mr. President, I want to talk today on the occasion of the fifth
anniversary of the Sandy Hook massacre in my State of Connecticut. It
was one of the saddest days of my life and one of the worst days of my
public career when I went to the elementary school in Newtown, CT,
along with a number of my colleagues who will be speaking today as
well, Congresswoman Esty and Senator Murphy.
In the Judiciary Committee, just moments ago, Senator Feinstein
circulated a framed copy of the front page of the Daily News of
Wednesday, December 15, 2012--5 years ago, almost to the day. That
front page has photographs of the 20 beautiful children who were lost
in that unspeakable act of terror and horror. They are 20 wonderful
human beings who would be 11 years old today. Their great teachers were
killed as well.
Having valued and known their parents as friends and fellow advocates
in the effort to achieve commonsense legislation against gun violence,
I know how deeply that pain is still felt. The healing is far from
over. The grief never ends. The prayers and thoughts of mine go every
day to the loved ones who lost those children and educators.
Prayers and thoughts are not enough. It never has been after any of
these massacres, and it never will be after the mass killings or for
the one-by-one deaths in our communities--90 every day in this great
country. Gun violence kills 90 people every day, and 150,000 have
perished since Sandy Hook.
So as we commemorate this awful day, 5 years ago, let us rededicate
ourselves to act to honor those victims with action, to honor all those
with action. It is never too soon to honor the victims with action.
On that front page of the Daily News, there is a line that says ``New
York's Hometown Newspaper.'' New York wasn't the hometown to those
Sandy Hook victims, but America felt that Sandy Hook was every town in
America, and it is indeed quintessentially an American town, filled
with wonderful people who hugged and grieved together that day.
That night, in the St. Rose of Lima Church, and in the days
following, when there were calling hours and funerals, one after the
other, it seemed like they would never end. In some ways they have
never ended, because those families' losses are still real and urgent.
For us the task of honoring those 20 beautiful children and the 6
educators ought to be real and urgent, even more so today than it was
then.
That day we prayed in the St. Rose of Lima Church. I said to the
congregation that the whole world is watching. The whole world was
watching. The world is watching America to see whether we will act.
We are not the only country with mental health problems. Our rate of
mental illness is no greater than any other developed industrial
country, but our rate of gun violence is off the charts compared to
other countries. There is no excuse for it. There is no rational
explanation for it.
As we prayed and grieved then, in the wake of that senseless,
horrific tragedy, Congress turned its back. It turned its back on those
courageous and strong families who came here in
[[Page S8021]]
the weeks following, talking to our colleagues, across the aisle and on
this side, asking for commonsense measures, background checks. There
was a bipartisan measure then to extend background checks and achieve
other gun violence prevention measures, which unfortunately failed on
this floor to gain enough votes. We had 55, but we needed 60. From the
Gallery on that day, someone shouted: ``Shame.''
December 14, 2012, will be forever a stain on our Nation's history.
That day will forever be a black mark on the United States of America,
but so will the day that those commonsense measures were rejected in
this Chamber. That shame was richly deserved on that day.
Congress saw the photos of those innocent babies, those wonderful
children. It saw their grieving parents. It saw the lines of terrified
and traumatized children that day being led to safety out of their
elementary school. It saw the war zone that the school became when that
mass killing turned it into something that no teacher, no educator ever
could have foreseen. Those educators helped save lives.
Congress saw and heard the stories of how brave educators sought to
shield their children from the bullets coming from that assault weapon
on that day. Unfortunately, the vice-like grip of the gun lobby and,
principally, the NRA--let's be blunt about who is leading that lobby--
prevailed. In the 1,825 days since the Sandy Hook tragedy, despite the
150,000 people who have perished from gun violence since then, Congress
has chosen inaction. It has disregarded public safety and the clear
will of the American people. It has heeded instead the campaign
contributions of the gun lobby, and it has failed to act. It has been
complicit in the continuing scourge of gun violence by its inaction. It
has been complicit in those deaths. It has been an aider and abettor,
in fact, to the 90 killings each day as a result of gun violence. Shame
on Congress if it fails to act now.
Today I am not just heartbroken; I am furious. I am angry beyond
words about Congress's complicity, about the inaction we have seen,
about Congress's abject failure to take commonsense steps that will
protect the American people, about its failure to meet this public
health crisis with the kind of action that the American people deserve
and need. If 90 people every day were perishing from Ebola or some
contagious disease--even the flu--there would be an outcry, an outrage,
and we would be clamoring to do something.
Here, the solutions are self-evident. None of them is a panacea. None
is a single, magic solution to this problem. The trap raised by the gun
lobby that none will necessarily deal with the mass killing that just
happened is, indeed, a trap we should reject.
The ban on bump stocks might have prevented Las Vegas but not
Charleston. The closing of the 72-hour loophole that permits purchasers
to buy a gun if the background check has not been completed in 72 hours
might not have prevented Las Vegas, but it would have prevented
Charleston. Dylann Roof purchased the gun only because he was able to
circumvent the background check as a result of that 72-hour loophole.
The ban on certain kinds of high capacity magazines might not have
prevented San Bernardino or Orlando, but it would have helped to
prevent Sandy Hook.
We will never know whether any of these measures would prevent every
one of the killings that we cite, but each of them can save lives, and
if we save one life, we will have saved the world.
Shame on Congress for allowing this tragic anniversary to be followed
by so many more--Sutherland Springs, Las Vegas, Orlando, Charleston,
and each and every day in the news. Every day, none of our communities
is immune from this scourge. It is truly a public health crisis.
I am hopeful that there may well be a crack in the united partisan
front emerging. I am proud to be part of a very powerful bipartisan
alliance involving our colleagues, Senators Scott and Cornyn, across
the aisle, as well as Senator Murphy and other Senators on this side of
the aisle. I hope we can make modest and crucial improvements to the
National Instant Criminal Background Check system.
The NICS system should be fixed. The Fix NICS Act will provide
incentives and encourage States to do better reporting. Right now there
are immense gaps in reporting in the States and even in the Federal
Government, which is why, in fact, perhaps, Sutherland Springs
occurred, because of a failure to report by the Air Force a domestic
violence conviction by court-martial that would have barred the shooter
from lawfully obtaining a weapon, had it been reported accurately.
The Fix NICS bill would ensure that Federal and State authorities
comply with existing law and accurately report relevant criminal
history records to the background check system. This step is the least
we can do, not the most, but it is the bare minimum.
While there is broad support for this modest but significant measure,
the Republican leadership in the House is already attempting to
sabotage it by linking it and pairing it with the truly dangerous
Concealed Carry Reciprocity Act. That act would sabotage the laws of
States like Connecticut that seek to protect our citizens. It would, in
effect, provide that permits from other States be treated like driver's
licenses, no matter how lenient or even nonexistent the provisions may
be for obtaining permits in those other States. It would eviscerate
rights of States like Connecticut to protect our citizens with higher
standards.
These basic measures to prevent gun violence have no threat
whatsoever to gun ownership. They ensure that people who are a danger
to themselves or others and convicted criminals and others already
barred from buying weapons will not be permitted to carry a lethal
firearm.
I respect the Second Amendment. It is the law of the land. No firearm
should be taken away from law-abiding citizens. But the idea that there
is nothing Congress can do to make a difference and save American lives
is unacceptable and false. It is a political copout resoundingly
rejected by the vast majority of Americans.
Ninety-five percent of Americans want background checks applied to
all purchases. They overwhelmingly favor fixes to the present
background check system that make the oversight of purchases more
accurate, and they favor commonsense measures that will protect
innocent human beings like the 20 beautiful children and sixth grade
educators lost that day in Sandy Hook.
When I feel most discouraged and disgusted, I think of those
families. I think of the parents of Olivia Engel, and I think of the
parents of all of those beautiful children and wonder, as I am sure
they often do, what lives they would be leading today. What would
Olivia Engel be doing on this day filled with Sun and beauty? In
Connecticut, this morning, it snowed. At 6 or 11, snow would still be a
wonderful thing, never to be taken for granted by any child. This
holiday--all of the wonder and beauty of this holiday--is never taken
for granted by a 6-year-old or an 11-year old. The possibilities,
opportunities, dreams, and hopes were shattered on that day and lost
forever.
I was at the calling hours for one of the children killed at Sandy
Hook, and it was a gut-wrenching moment--every one of them. I spoke to
the mother of one of those children, and I said: When you are ready, we
should do something about gun violence.
She said, without hesitation, through reddened eyes and cracking
voice: I am ready now. I am ready now.
America should be ready. America is ready. This body should follow
America's lead--honor with action. If nothing else is remembered of
that day 5 years ago, let us honor with action those strong and
courageous families who have suffered this unspeakable horror, this
unimaginable grief, and who have come here in years past to ask us to
honor with action the victims, survivors, and loved ones of Sandy Hook
and of all gun violence horrors in this country.
Thank you.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I thank the senior Senator from Connecticut
for his words. The Senator from Connecticut is a former prosecutor who
knows law enforcement backward and forward. I can only imagine the
grief felt in his State. As a neighboring New England State, I recall
the vigils, the
[[Page S8022]]
people coming to pray, and the sadness from what happened in our
neighboring State of Connecticut. But as so many have said, we can
express grief--and we should--but we have to do what the Senator from
Connecticut and others have suggested, which is actually take some
steps that might stop these things. So I applaud him for what he said.
Let me speak on another issue. This week, we voted on three circuit
court nominees, just one step below the Supreme Court. All three of
these nominees are extreme. One is objectively unqualified. The fact
that we are so quickly casting floor votes on these troubling
nominations, all of whom were reported out of the Judiciary Committee
just last week, is a symptom of the Republicans' willingness to abandon
decades of Senate tradition so that this body can serve as a
rubberstamp for President Trump's nominees. The Senate will not be the
conscience of the Nation or the check and balance it was always
designed to be, but instead, a rubberstamp for the President.
Let me just cover a couple of things. Don Willett is a sitting
justice on the Texas Supreme Court. That should mean something. Sitting
judges have an obligation to exercise good judgment; to not say
anything that would lead individuals to question their impartiality. A
question I ask nominees all the time is: Can someone who comes into
your court--whether they are Republican or Democrat, plaintiff,
defendant, rich, poor, whatever--look at you and say: Well, at least
this judge is going to show impartiality. Maybe I will win or maybe I
will lose, but it will not be because the judge wasn't impartial. When
you look at this sitting justice, Don Willett, he fails the standard of
impartiality.
A few weeks ago, I questioned him about his tweet telling a young
transgender woman, who was interested in playing softball to ``Go away,
A-Rod.'' Justice Willett claimed that this tweet was in jest. But, let
me say it again--a sitting justice telling a transgender teen to ``go
away'' sends an unmistakable message to marginalized, vulnerable
communities: Not all are welcome in my courtroom. Well, that is not a
laughing matter.
This was not the first time that Justice Willett has worn his bias on
his sleeve. As an aide to George W. Bush while he was Governor of
Texas, he objected to then-Governor Bush declaring a ``Business Women's
Week.'' He opposed the proclamation's mention of ``glass ceilings, pay
equity . . . [and] sexual discrimination/harassment.'' He dismissed
these very real barriers to women in the workforce as ``hype.'' For
these and other reasons, I seriously question his judgment or that he
would be seen by people coming into his courtroom as impartial.
Then we have James Ho, who is another troubling nominee. His views on
social issues are, not surprisingly, extreme. He has even offered
effusive praise for Jeff Mateer, another Trump nominee who has publicly
proclaimed that transgender children are part of ``Satan's plan.'' Even
as a judge, he has complained about the Supreme Court. Remember, these
judges are supposed to follow the precedent of the Supreme Court. He
has complained about the Supreme Court's Obergefell decision. He said
that it is going to lead to ``people marrying their pets.'' I don't
think any legal scholar anywhere from the right to the left would agree
with that interpretation. Mr. Ho praised Mateer for ``protecting and
enforcing the . . . civil liberties of every Texan.'' Well, it is not
every Texan--just those he agrees with.
Of course, this race to confirm Mr. Ho that is zipping through here
means that we will not have fully vetted him for this lifetime
appointment. When he served in the Justice Department's Office of Legal
Counsel, he authored a memorandum that was cited in one of the shameful
``torture memos.'' These torture memos have turned out to be a blot on
the conscience of the United States. Mr. Ho has refused to answer
questions about his involvement, despite the fact that the torture
memos are now very much in the public domain. Unfortunately, these
kinds of non-answers are considered sufficient as of late, since
Republicans are more interested in rubberstamping President Trump's
judicial nominees than asking serious questions of them as a coequal
branch of government. I cannot believe that any Republican leadership
would allow a nominee of a Democrat who would have been involved in the
drafting of a key and controversial memorandum to be confirmed unless
they are willing to answer questions about it.
Then we have Steven Grasz, whom the American Bar Association
unanimously rated him as unqualified for the Federal bench. In the past
40 years, I recall seeing a unanimously unqualified rating only a few
times, and those people never made it through. After an exhaustive
review including more than 200 interviews about Mr. Grasz, the ABA
concluded he could not separate his personal beliefs from his duties as
a judge--a fundamental obligation of a judge. This is almost
unprecedented to have a rating like this.
To have at least a qualified rating from the ABA is a basic
qualification for a nominee to the Federal bench. Certainly,
Republicans would insist on it if it was a Democrat's nominee. The
Republicans made it very clear that if a Democrat nominated somebody
who got a ``not qualified'' rating--I don't recall it happening, but if
they did--they made it very clear that person would never be
considered. Well, here is somebody who is declared ``not qualified,''
and yet they whipped him through. You would think ``qualified'' would
at least be the bottom line for a nomination. You would think whoever
is President, they are at least nominating somebody who could hit the
threshold of being considered qualified.
Republicans are now casting aside the ABA as a biased institution;
some have accused the ABA of opposing Mr. Grasz simply because of his
opposition to abortion. Well, that is absurd. The ABA has rated 46 of
President Trump's 50 nominees as ``qualified.'' Let's not delude
ourselves, does anyone think that any of the 46 Trump nominees that the
ABA rated as qualified support abortion rights? They would never get
out of the White House if they did. So that argument--like so many
others used to support these extreme nominees--does not pass the laugh
test.
As the longest serving member of the United States Senate and a
former chairman of the Judiciary Committee, I have spoken up about the
steady erosion of the Committee's norms and traditions. The Committee
has processed un-vetted, extreme nominees at an unprecedented rate.
President Trump will have four times as many circuit court nominees
confirmed in his first year than did President Obama. The reason
President Trump has four times as many circuit court nominees confirmed
in his first year than did President Obama is because Republicans
removed any and all guardrails on our confirmation process--the
guardrails they insisted on when there was a Democratic President. No
matter how careful the Democratic President was in picking that person,
they had to have these guardrails. I thought, actually, the guardrails
made sense.
The second you have a President who nominates extreme judges, they
decided we don't need those guardrails anymore because President Trump
would never make a mistake. Nominees have had hearings scheduled before
we even had the ABA ratings. Multiple circuit court nominees are
regularly stacked on single panels. That is something Republicans
insisted should not be done when there was a Democratic President. Now,
unfortunately, the chairman--who is a friend of mine and a man I
respect--has reversed his own blue-slip policy. He has begun to advance
nominees without favorable blue strips from both home State Senators.
That is the first time this has been done in the last two Presidents.
I fear we are doing lasting damage to our nomination process. I fear
we are making the advice and consent process a completely laughable
exercise. The three nominees who are set forth this week are evidence
of that.
I am going to vote no on each of them because they are not qualified.
I have voted for many Republican nominees. I might disagree with them
philosophically, but they were qualified, just as I voted for many
Democratic nominees. Some I disagreed with, but they were qualified.
These nominees aren't qualified. They are extreme. I want the standard
I always asked for; that whoever you are, when you come into a
courtroom, you can look at the
[[Page S8023]]
judge and say: OK, whether I am a plaintiff or defendant, rich or poor,
facing the State as the respondent, no matter my political background,
I am going to be treated fairly. I will win or lose my case on the
merits, not on the judge's bias.
We are closing our door to that. We are closing our door to it when
the President of the United States turns the selection process over to
an extreme political, partisan group and then asks Republicans to
rubberstamp it. I respect my Republican colleagues, but I can't imagine
many of them ever standing for a Democratic President doing anything
like this. I wouldn't.
I wish they would bring the Senate back to where we should be, where
we can be, and where the country is better off when we are.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sullivan). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. WARREN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. WARREN. Mr. President, 2 days ago, the GOP-controlled Senate
confirmed Leonard Steven Grasz to a Federal appeals court. This is a
man who is so aggressively ideological that he earned a rating of ``not
qualified'' from the American Bar Association.
The ABA reached that conclusion, in part, after speaking with many of
Mr. Grasz's peers who expressed concerns ``that Mr. Grasz' strongly
held social views and/or his deeply rooted political allegiances would
make it impossible for him to have an unbiased and open mind on
critical issues.''
Those individuals have ample reason to be concerned. Among his many
appalling views, Mr. Grasz believes discrimination against LGBTQ
individuals is A-OK. He supports the harmful and discredited practice
of conversion therapy and he opposes reproductive rights and the
Republicans just confirmed him to a lifetime appointment as a Federal
judge who will make life-changing decisions for millions of Americans.
The other judicial nominee the GOP-controlled Senate confirmed this
week, Donny Willett, doesn't fall very far from that tree either. Mr.
Willett, a current justice on the Texas Supreme Court, isn't shy about
his radical rightwing views. He has bragged about being the most
conservative justice on the Texas Supreme Court, and he has a record to
show for it.
Mr. Willett believes judges should be able to easily overturn State
and local laws that protect workers, including minimum wage laws and
laws that allow workers to unionize. This view is so out of the
mainstream that other conservative judges, including Chief Justice John
Roberts and Judge Robert Bork, have rejected him.
Mr. Willett's radical views don't stop there. He has ruled to limit
the rights of same-sex couples. He has mocked transgender individuals.
He has demonstrated hostility to issues that affect working women,
including pay equity, discrimination, and sexual harassment. Mr.
Willett has ruled against efforts to help remedy discrimination in
Texas schools. On issue after issue, Mr. Willett's record shows a
stunning disregard of the issues that impact millions of Americans.
The truth is, Mr. Grasz and Mr. Willett are not unique. They are just
a few of the many nominees whose records show they cannot fairly and
impartially dispense equal justice under the law.
Right now, the GOP-controlled Senate is executing a breathtaking plan
to fill our courts with rightwing, radical nominees like Mr. Grasz and
Mr. Willett. It is a plan that has been long in the making. For years,
Republicans have worked hand in hand with billionaire-funded, rightwing
groups to ensure that our courts advance the interests of the wealthy
and the powerful over everyone else.
First, after President Obama was elected, Republicans abused the
filibuster to stop reasonable mainstream judges from filling vacancies
on Federal courts. They didn't stop those nominees because of their
qualifications. They didn't stop them because of their records. The
Republicans stopped those nominees because they didn't want judges who
cared more about justice than about protecting the powerful.
Then, once the filibuster was gone and Republicans had gained the
majority in the Senate, they slowed the judicial nominations process to
a crawl. Vacancies stacked up, and the courts became overloaded with
cases.
Finally, last year, Republicans took their assault on our judicial
system to new heights, refusing to consider any nominee put forward by
the President to fill a Supreme Court vacancy. They threw the
Constitution and Senate precedent right out the window to advance their
radical agenda. It was shocking, and it was shameful.
Now that there is a Republican President who is committed to tilting
our courts further in favor of the rich and the powerful, Republicans
are looking to fill our courts with judges who share that commitment,
no matter how unqualified they may be.
This week, the Senate will vote on one more of those judicial
nominees, James Ho, a man who, like Mr. Grasz and Mr. Willett, will
work to hand our courts over to powerful, pro-corporate interests. When
it comes to money and politics, Mr. Ho's view is the more the better.
He has argued that there should be no limits on campaign contributions,
none--democracy for sale. According to Mr. Ho, the reason government is
so corrupt isn't because there is too much secret money slithering
through our political system but because government makes it too hard
for those big donors to succeed in the private sector.
Tell that to the working families, the students, the teachers, and
the small businesses that will be paying higher taxes to give those fat
cat donors giant tax cuts.
Mr. Ho has also defended discrimination against LGBTQ individuals.
While he was solicitor general of Texas, Mr. Ho defended Texas's ban on
same-sex marriage. More recently, he has heaped praise on a Federal
district court nominee who, among other disgusting statements, said
that transgender children are part of ``Satan's plan.''
Here is another troubling aspect of Mr. Ho's record: his view on
whether torture is illegal. While Mr. Ho worked in the Justice
Department, he authored a memo relating to the treatment of prisoners
of war. That memo is cited in one of the torture memos that became the
basis for the Bush administration's illegal and immoral practice of
torturing terrorism suspects. That memo was not provided to the
Judiciary Committee, and Mr. Ho has refused to fully answer questions
regarding his involvement in what ultimately became the Bush
administration's policy on torture--information that every Senator
should demand to see before we vote on his nomination.
Grasz, Willett, and Ho--just about all of Trump's judicial nominees--
have a lot in common. They will put powerful interests before the
rights of workers, before the rights of women, before the rights of
LGBTQ individuals, people of color, religious minorities, and pretty
much everyone else. Their radical, rightwing views mean that in their
courts, it will be easier for giant corporations and wealthy
individuals to get relief and harder for everyone else to find justice.
That is the perverted, upside-down justice system that every Member of
this Congress should be working to fix.
Now more than ever, we need judges who will stand up for equal
justice for all, not just for the rich and the powerful. The records of
the nominees before us this week show that they cannot meet that
standard. That is why I voted no on the nominations of Mr. Grasz and
Mr. Willett, and that is why I will be voting no on Mr. Ho. I urge my
colleagues to do the same.
Mr. President, I yield.
Mrs. FEINSTEIN. Mr. President, I come to the floor today to discuss
the three judicial nominations we are considering this week: Steven
Grasz, for the Eighth Circuit Court of Appeals, and James Ho and Don
Willett, both for the Fifth Circuit Court of Appeals.
Before I talk about those nominees, I would like to offer some
background on the importance of circuit courts and remind my colleagues
why we have so many judicial vacancies.
The Supreme Court hears between 100 and 150 cases each year out of
the more than 7,000 it is asked to review. But in 2015 alone, more than
55,000 cases were filed in Federal appeals courts.
[[Page S8024]]
These cases range from crime and terrorism to bankruptcy and civil
matters, and the judges who hear these cases will affect millions of
Americans.
So it is extremely important who is confirmed to these lifetime
positions. Federal judges have a tremendous impact on individuals,
businesses, and the law. In a way, circuit courts serve as the de facto
Supreme Court to the vast majority of individuals who bring cases. They
are the last word.
These nominations are very important. That is why it is so concerning
that Republicans for years refused to allow judgeships to be filled.
The simple fact is the rush to fill judicial vacancies is the direct
result of Senate Republicans' historic obstruction of judicial nominees
during President Obama's administration.
During President Obama's last 2 years in office, just 22 judicial
nominees were confirmed. That is the fewest in a Congress since Harry
Truman was President. In contrast, during the last 2 years of the
George W. Bush administration, Senate Democrats confirmed 68 judicial
nominees.
At the end of last year, three circuit court nominees and 20 district
court nominees had been approved by the Judiciary Committee and were
waiting for votes on the Senate floor. Republicans refused to schedule
votes for those nominees, many of whom Republicans themselves voted
for, so they could hold those seats open. Four more circuit court
nominees and 52 district court nominees were pending in committee and
never even received a hearing.
Now, 1 year later, the Senate is voting this week to confirm the
10th, 11th, and 12th circuit court nominees this year. Republicans went
from delaying all nominees to cramming them through at a breakneck
pace.
The 11 circuit court nominees who have already been confirmed are
more than any President in the first year of office since Richard
Nixon.
Two nominees we are considering this week, James Ho and Don Willett,
lay out the Republican playbook.
These seats on the Fifth Circuit have been vacant since 2012 and
2013, even though the Obama White House tried to work with my
colleagues from Texas to fill these seats with consensus nominees.
But once President Trump entered the White House, they wasted no time
in rushing to put conservative judges in those seats.
Don Willett was nominated on October 3, James Ho on October 16.
Just a month later, on November 15, the Judiciary Committee held a
hearing for both circuit court nominees on the same day, and cloture
was filed immediately on both nominations after the committee advanced
them.
The speed at which these judges are being rammed through the process
is stunning.
In fact, on four occasions in the last 6 months our committee has
held hearings for two circuit court nominees at the same time. This
happened only three times in all 8 years of the Obama administration.
This is a problem because it gives Senators less time to review each
nominee's record and less time to ask each nominee questions. Candidly,
it makes it very difficult for us to exercise our constitutional duty
to ``advise and consent.''
We are already seeing the ramifications. Just yesterday, the White
House announced that two of its nominees would not be moving forward.
One nominee, Brett Talley, had already been voted out of the Judiciary
Committee, but we learned of troubling undisclosed information while he
was pending on the floor. This may not have happened if we had
sufficient time and cooperation to fully review these nominees.
In the month of November, the Judiciary Committee had hearings for
five circuit court nominees. I have served on this committee since
1993, and we have never held hearings for five circuit court nominees
in a single month before. That is during a month when we spent a week
at home for Thanksgiving.
Republicans refused to advance seven circuit court nominees last
year, but now we are speeding through the process to fill those seats
with conservative judges. Fairness aside, we should all be concerned
that we are giving lifetime appointments to potentially unqualified
nominees.
Now, I would like to talk about the three nominees we're considering
this week. This week, Steven Grasz was confirmed to the Eighth Circuit.
The American Bar Association has rated 1,755 judicial nominees since
1989, and only two of those have been unanimously rated ``not
qualified'' based on concerns over their impartiality.
One was a nominee for the Fifth Circuit in 2006 who was never
confirmed. The other is Steven Grasz.
Let me repeat that. This week, for the first time since at least
1989, the Senate voted to confirm a nominee who was unanimously rated
as ``not qualified'' by the American Bar Association.
The ABA doesn't rate nominees based on what the evaluators think.
Rather, they review a nominee's written record, talk to the nominee,
and interview many people who have direct personal and professional
knowledge about the nominee.
Here are just two direct quotes from the ABA's review:
``Mr. Grasz's professional peers expressed concerns about his views
of stare decisis, and questioned his commitment to it.''
``[A] number of Mr. Grasz's professional colleagues expressed the
view that, in terms of judicial temperament . . . Mr. Grasz is not
`free from bias.' Specifically, they expressed the view that he would
be unable to separate his role as an advocate from that of a judge.''
These are stunning indictments of a man who was confirmed to a
lifetime seat on a circuit court.
Some of my Republican colleagues argue that the ABA is biased. The
numbers just don't bear that out.
Over the last 30 years, during both Republican and Democratic
Administrations, the ABA has rated nearly 1,800 nominees and rated only
two ``not qualified'' based on their temperament.
I voted against Mr. Grasz's nomination and am very concerned that he
was confirmed on Tuesday. He did not have the support of a single
Democratic Senator.
Next I would like to talk about James Ho, nominated to the Fifth
Circuit.
During his time at the Office of Legal Counsel, Mr. Ho wrote a legal
analysis of the scope of the term ``cruel, inhuman, and degrading
treatment,'' which is prohibited under Common Article 3 of the Geneva
Conventions.
Unfortunately, this memo remains classified, and we haven't seen it.
The reason we know this memo exists is because Jay Bybee cited it in
one of the so-called torture memos, which were used to justify torture
and have since been widely discredited.
The Bybee memo also appears to have relied on Mr. Ho's analysis to
argue that because the term ``cruel, inhuman, and degrading treatment''
``appears to . . . have a rather limitless reach,'' conduct that
qualifies as torture should be defined more narrowly than what is
prohibited under international law.
It is this kind of flawed legal reasoning that allowed the U.S.
Government to torture people, and I have argued that no vote should
have taken place on Mr. Ho's nomination until we had access to that
memo.
The Justice Department has provided us access to similar memos
written by nominees for judgeships, so there is no reason to deny us
access to the memo James Ho authored.
I can't possibly vote in favor of a nominee to a lifetime appointment
who may have helped provide the legal basis for torture, and it is a
shame we are voting on this nominee this week.
Finally, I would like to speak about Don Willett's nomination to the
Fifth Circuit.
At his hearing, my first question was about his 1998 comments on a
draft proclamation for then-Governor George W. Bush to honor the Texas
Federation of Business and Professional Women in 1998.
Let me quote from them: ``I resist the proclamation's talk of `glass
ceilings,' pay equity (an allegation that some studies debunk), the
need to place kids in the care of rented strangers, sexual
discrimination/ harassment, and the need generally for better ``working
conditions'' for women (read: more government).''
I asked Justice Willett if these were still his beliefs, and he
refused to answer. I asked again, and again, he refused to answer.
Senator Durbin asked
[[Page S8025]]
the same question, and Justice Willett refused to disavow these
beliefs.
As the National Women's Law Center wrote, ``Mr. Willett's skepticism
of the existence of sex discrimination should disqualify him from the
bench. Litigants coming before Mr. Willett . . . would have reason to
question whether their claims of discrimination, including sexual
harassment and pay discrimination, would be fairly and impartially
heard or, instead, treated as `hype' to `debunk.' ''
I could not support Justice Willett's nomination.
Ms. WARREN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The 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.
(The remarks of Mr. Cornyn pertaining to the submission of S. Res.
361 are printed in today's Record under ``Submitted Resolutions.'')
Mr. CORNYN. Mr. President, on a separate and happier note, today is a
great day for our Nation's Federal judiciary. Yesterday afternoon, we
confirmed Justice Don Willett, who currently serves on the Texas
Supreme Court, who has been nominated by President Trump to the United
States Court of Appeals for the Fifth Circuit. Soon we will be voting
on Jim Ho, the former solicitor general of the State of Texas, who has
also been nominated to the Fifth Circuit Court of Appeals.
These are two outstanding nominees, and they reflect the best of
Texas. They are each fathers, lawyers, scholars, public servants, and
active participants in their communities. I wish to take just a few
minutes to discuss each of their unique stories, as well as their
sterling records of professional accomplishment.
Don Willett was raised in Talty, a small town outside of Dallas, TX.
He was adopted at a young age and raised by a single mom for most of
his life. She must have been one heck of a lady because her son went on
to achieve great things from those humble beginnings.
He attended Baylor for undergraduate and Duke Law School. He clerked
on the same court to which he has been nominated and now confirmed, the
Fifth Circuit Court of Appeals. He worked in private practice and
served Governor, and then President, George W. Bush.
That is not all, though. He went on to work at the Department of
Justice's Office of Legal Policy and later served as deputy attorney
general of Texas before his appointment to the Texas Supreme Court. He
was elected to his first full term in 2006 and reelected in 2012.
While serving on my State's highest court, Justice Willett was
recognized for his excellence by the Texas Review of Law and Politics,
which named him as its ``Distinguished Jurist of the Year'' in 2014.
Justice Willett's confirmation now is good news, and, perhaps, the
best news for him personally is that he will no longer have to run for
election, as he has had to do as a member of the Texas Supreme Court,
because, of course, his appointment now is for life tenure.
Jim Ho's story is no less remarkable. Jim was born in Taiwan, and his
parents immigrated to New York when he was a toddler. Jim learned
English by watching Sesame Street.
When he was young, his parents moved to California, where Jim later
attended Stanford before moving on to law school at the University of
Chicago. As an adult, in his professional life, Jim clerked for Judge
Jerry Smith on the Fifth Circuit, the court to which he has now been
nominated and will be confirmed, and he later clerked for Justice
Clarence Thomas on the U.S. Supreme Court.
Jim has worked in a variety of legal capacities in the private
sector. He has also served at the Civil Rights Division and the Office
of Legal Counsel at the Department of Justice.
It is when he was at the Civil Rights Division that I first met Jim
and I offered him a job on my Judiciary Committee staff, where he
served as my chief counsel. Later, serving as solicitor general, he had
the highest win rate before the U.S. Supreme Court of any person who
has served in that role. When I was attorney general of Texas, we
created this position of solicitor general because we had line lawyers
who would, literally, handle cases for State agencies and who would
handle those cases all the way to the Supreme Court, but really they
didn't have the experience or training as an appellate advocate that we
needed to speak with a single voice for the entire State before the
Federal courts. Jim held that role and performed with distinction. As I
said, he was enormously successful in his appellate advocacy.
Jim also bears the distinction as the first Asian-American solicitor
general of Texas, and he has taught as an adjunct professor at the
University of Texas and is published in numerous scholarly journals.
Simply put, Jim Ho and Don Willett are two stars in the Texas legal
firmament. They were extensively vetted by the bipartisan Texas Federal
Judicial Evaluation Committee, appointed by Senator Cruz and myself, as
well as the Office of White House Counsel and the Department of
Justice. I am glad we are now elevating them to the Federal bench.
I wish to commend the President on these excellent nominations, and I
thank my colleagues for their votes to support these two exceptionally
qualified men.
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. REED. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Fischer). Without objection, it is so
ordered.