[Congressional Record Volume 163, Number 204 (Thursday, December 14, 2017)]
[Senate]
[Pages S8042-S8043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         NOMINATIONS OF STEVEN GRASZ, JAMES HO, AND DON WILLETT

  Mr. DURBIN. Mr. President, this week, Senate Republicans sought to 
confirm the 10th, 11th, and 12th circuit court nominees of the year. 
The Republican-controlled Senate has been moving at warp speed to try 
to confirm President Trump's circuit court nominees as quickly as 
possible. Twelve circuit court nominees is the same number of nominees 
confirmed in the first years of Presidents Obama, Bush, and Clinton 
combined.
  In quickly rushing through President Trump's picks for these critical 
lifetime appointments, my Republican colleagues have been abandoning 
longstanding norms of due diligence and careful scrutiny. They want to 
rubberstamp these nominees despite a lack of complete information about 
the nominees' records and despite clear warning signs about the 
nominees' ideologies, temperaments and judgment.
  Consider the nominees that came before us this week.
  Eighth Circuit nominee Steven Grasz received a rare unanimous ``not 
qualified'' rating from the American Bar Association. Only 4 out of 
1,755 nominees reviewed by the ABA since 1989 have received this 
rating. For those who are not aware, the ABA has worked since the 
Eisenhower administration to conduct a confidential peer review process 
for vetting judicial candidates. For their review of Mr. Grasz, the ABA 
conducted 207 interviews with his peers. These interviews revealed some 
very troubling things. People familiar with Mr. Grasz raised serious 
concerns about his objectivity, his gratuitously rude conduct, and his 
deeply held partisan loyalty. Those are major red flags for a lifetime 
appointment to the Federal bench.
  After the ABA's review committee voted Mr. Grasz unanimously ``not 
qualified'' for the bench, rather than reconsidering their support for 
the nominee, a number of my Republican colleagues decided to 
aggressively attack the ABA. One Senator described the ABA as ``blatant 
partisans with a sad track record of hackery.''
  These criticisms are over the top. The ABA peer review and vetting 
process provides the Senate with valuable information to consider when 
we decide how to vote on nominees. President Obama took ABA ratings 
seriously enough that he did not nominate anyone who received a ``not 
qualified'' rating.
  Of course, Senators do not have to vote on nominees solely based upon 
ABA ratings. For example, I voted in committee for Kansas District 
Court nominee Holly Teeter despite the ``not qualified'' rating that 
she was given by the ABA. I have voted against nominees who received 
``well qualified'' ratings, such as Neil Gorsuch, because I had serious 
questions about their judgment and their objectivity.
  It would be foolish for Senators to ignore the ABA's peer review 
process altogether. In Mr. Grasz's case, his ABA rating is just one of 
many troubling signs. Just look at some of the controversial things Mr. 
Grasz has said and written. He wrote in a law review article that 
courts can ignore jurisprudence that they consider to be 
``questionable.'' He wrote that the legacy of Roe v. Wade was ``moral 
bankruptcy.'' He described the possibility of Nebraska recognizing 
same-sex marriages as a ``grave danger.'' He falsely claimed that the 
term ``sexual orientation'' could include bigamy and pedophilia. He 
tried to amend the Omaha city charter because he was upset about a 2012 
city ordinance protecting LGBT employees from workplace discrimination.
  In Mr. Grasz's case, I share the ABA's unanimous view that he lacks 
the proper temperament and judgment to sit on the circuit court, and I 
am deeply concerned about his extreme views. That is why I opposed his 
nomination.
  I also could not support the nomination of James Ho for the Fifth 
Circuit, for several reasons. First, I am very troubled by Mr. Ho's 
responses when I asked him whether waterboarding is torture and illegal 
under U.S. law. He said, ``It has always been my understanding that 
Congress enacted legislation for the purpose of expressing its serious 
opposition to waterboarding as illegal under U.S. law.'' That is not an 
answer about what the law says; that is an evasion. Mr. Ho 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 under the 2006 McCain Torture Amendment.
  This is a critical issue for me. I am deeply troubled that we are, 
once again, seeing nominees come before the Senate, like Mr. Ho and 
Greg Katsas, who are tap dancing around this issue. We need to take a 
clear stand when it comes to waterboarding.

[[Page S8043]]

  This is not some abstract hypothetical for Mr. Ho. He wrote a 2002 
Office of Legal Counsel memo for John Yoo that was cited in the 
infamous Bybee torture memo. It is critical that the Senate get access 
to Mr. Ho's memo. The Bybee torture memo was a dark chapter in our 
Nation's history, and Mr. Ho's work was cited in it more than once. I 
cannot in good conscience vote for Mr. Ho's nomination without seeing 
what he wrote.
  In 2014, when former OLC attorney David Barron was nominated by 
President Obama to the First Circuit, Chairman Grassley insisted on 
seeing his OLC memos. Chairman Grassley wrote of Mr. Barron: ``The 
Senate simply cannot evaluate whether this nominee is fit for lifetime 
appointment to one of the nation's most important courts without 
complete access to his writings.'' The chairman's standard should apply 
to Mr. Ho's nomination as well.
  I also have serious concerns with personal views that Mr. Ho has 
publicly expressed--in particular, his writings in opposition to 
campaign finance laws and the op-ed Mr. Ho wrote in praise of Jeff 
Mateer, who has described transgender children as part of ``Satan's 
plan.'' I could not support Mr. Ho's nomination.
  I also was compelled to oppose the nomination of Don Willett to the 
Fifth Circuit. Justice Willett provided us with one of the more 
troubling nomination hearings we have had in recent years. The key 
moment was when Senator Feinstein asked him if he stood by beliefs he 
expressed in a 1998 memo. In this memo, Willett explained his 
opposition to the issuance of a gubernatorial proclamation declaring 
``Business Women's Week'' in Texas.
  Willett's memo said:

       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 strongly resist anything that shows we believe the hype.

  When Senator Feinstein asked Justice Willett if he still held these 
beliefs, he was silent for 10 and a half painful seconds before he 
asked Senator Feinstein to repeat the question. She did, and I repeated 
the question too; yet Justice Willett never gave the committee a 
straight answer. He should have, if he wanted to earn my vote.
  Justice Willett is a prolific tweeter, and he has sent tweets that 
appear to mock same-sex marriage and transgender students. This raises 
questions about his judicial temperament. Justice Willett also has 
expressed troubling views about what he calls ``judicial passivism.'' 
He said it is ``corrosive'' when judges ``are not active in preserving 
the limits our Framers actually enshrined.'' Justice Willett seems to 
think that courts should be activist in limiting laws that he sees as 
burdening economic freedoms, such as regulations that protect the 
health and safety of working people.
  In short, Justice Willett has not convinced me that he is in the 
mainstream when it comes to temperament and judgment, and I could not 
support his nomination.
  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, but sadly, this Republican Senate 
is turning advice and consent into a rubberstamp assembly line when it 
comes to Trump nominees.
  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 not qualified or if we don't 
have all the information we need to evaluate them or if the nominees 
won't give us straight answers at their hearings. 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 not be 
rushing to hand lifetime appointments to problematic nominees. Instead, 
we should take our due diligence and vetting obligations seriously and 
only put people on the bench whose qualifications, integrity, 
independence, and judgment are indisputable.
  Because that was not the case with this week's nominees, I could not 
support them.

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