[Congressional Record Volume 164, Number 65 (Monday, April 23, 2018)]
[Senate]
[Pages S2335-S2337]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Mike Pompeo

  Mr. CORNYN. Madam President, article II, section 2 of our Nation's 
founding document grants the Senate the prerogative to confirm the 
President's Cabinet nominees. One of those nominees--the current 
administration's most important nominee, at least today and this week--
is Mike Pompeo, the current Director of the Central Intelligence 
Agency.
  Director Pompeo has been asked to become the Nation's chief diplomat, 
the Secretary of State, and now filling this post is entirely up to the 
Senate. The relevant questions couldn't be graver or more obvious.
  Do we as a country, with so many longstanding relationships around 
the world, really feel the need for, the utter necessity of a Secretary 
of State or not? Do we believe in furthering international diplomacy by 
filling this post expeditiously or not? Do peace talks--for example, in 
North Korea--rank among our highest national priorities? Do we want to 
demonstrate as much by confirming Mr. Pompeo so that those talks can 
proceed, or is this Chamber too self-absorbed in partisan divides to 
see the much bigger, global picture?
  It is time to be serious about Director Pompeo and what this 
nomination represents. The stakes are high, and the time is short. So 
why is it, then, that some of our colleagues, all of a sudden, seem to 
have suffered from sort of a situational amnesia?
  Take this, for example. Our colleague from New Hampshire said last 
year that Mike Pompeo's nomination for CIA Director demonstrated his 
``strong condemnation of Russian aggression'' and ``gives [her] 
confidence'' that he can step into this role and effectively lead the 
CIA. Now she seems to have forgotten those previous positive 
statements. Frankly, it is hard to reconcile what she is saying now 
about her vote on the nominee for Secretary of State and her vote on 
the Director of the Central Intelligence Agency.
  Now our friend from New Hampshire says she has deep concerns and 
cannot support Director Pompeo's nomination to the State Department. 
How is it that you support a nomination to be Director of the Central 
Intelligence Agency--the leader of the intelligence community and an 
Agency so important to our national security interests--and then turn 
around and say you cannot support the nomination for Secretary of State 
of the same person whom you have just spoken so highly about?
  Well, like I said, it is hard for me to reconcile the differences. 
Perhaps that would make sense if there were some allegation that 
Director Pompeo had done a bad job leading the CIA, but no one thinks 
that. Indeed, we have learned--from leaks, unfortunately--that he 
traveled to meet with Kim Jong Un, the leader of North Korea, to lay 
the foundation for the talks that will now occur between Kim Jong Un 
and President Trump on denuclearizing the Korean Peninsula. I can't 
imagine a more urgent, a more dangerous, and a more necessary 
negotiation than the negotiation between President Trump and Kim Jong 
Un.
  Having been in Seoul last September and seeing how close North and 
South Korea are, it is not just the nuclear weapons that could be put 
on intercontinental ballistic missiles that we have to be concerned 
about but the conventional weapons that are laid right there along the 
demilitarized zone that could literally cause enormous loss of life and 
bloodshed just across the border in South Korea.
  So I applaud Director Pompeo going, at President Trump's request, on 
that clandestine mission to try to pave the way to denuclearize North 
Korea. If anything, my confidence in Director Pompeo's fitness to serve 
as Secretary of State is enhanced by his role as a diplomat, even 
during his current role as Director of the CIA.
  Well, people are practically unanimous in their praise for Mike 
Pompeo's conduct as Director of the Central Intelligence Agency. It is 
public knowledge that he has great rapport with the President. When you 
are representing the U.S. Government to foreign governments, the 
knowledge that the Secretary of State has a close working relationship 
with the President of the United States is the coin of the realm. That 
is why foreign leaders talk to the Secretary of State and take the 
Secretary of State seriously.
  Mike Pompeo has earned the President's trust through his hard work 
and mastery of the intelligence work done at the CIA, and that has been 
the reason why the President now seeks to elevate him to the office of 
Secretary of State.
  The objections of our colleague from New Hampshire, and by extension 
her party, are not about anything substantive. Nobody is pointing to 
something he did wrong or something they wish he would have done 
differently as a reason to vote no. They think Director Pompeo is too 
close to the President and asked whether and to what extent the 
Director will be able to exercise independent judgment. This is the 
chief diplomat of the United States, the chief representative of the 
President of the United States, and our colleagues are asking: How can 
he exercise independent judgment and separate himself from the person 
who appoints him and at whose pleasure he serves?
  It just doesn't make any sense.
  Our other colleague, the senior Senator from California, has come 
close to saying this very thing. She has said

[[Page S2336]]

about Director Pompeo that he is smart and he is hard-working and 
devoted to protecting our country. This is our colleague from 
California, Senator Feinstein, who voted to confirm him as Director of 
the Central Intelligence Agency. She knows a lot about it, having been 
chair of the Committee on Intelligence here in the Senate, but now she 
says she senses a certain disdain for diplomacy in Mike Pompeo that she 
believes disqualifies him to be our senior diplomat--the same person 
who over Easter flew over to see Kim Jong Un to lay the groundwork for 
this negotiation, which could well save hundreds of thousands and maybe 
millions of lives that would be lost in the event there were military 
conflict between North and South Korea and the United States and our 
other allies.
  Now, like our friend from New Hampshire, I admire the Senator from 
California and enjoy working with her, but frankly I don't understand 
her turnabout.
  Mike Pompeo is thoughtful, careful, and has a remarkable ability to 
see the world through multiple lenses at once. That is because of his 
time at West Point, his service in the U.S. Army, and his experience 
practicing as a lawyer. It is because he has worked as a leader in 
business and he has represented the men and women of Kansas in 
Congress. He knows the intelligence community inside and out, not only 
from his service as Director of the Central Intelligence Agency but 
also as a member of the House Permanent Select Committee on 
Intelligence. He is indisputably smart, and he sees all the angles. 
That is precisely what will serve him so well when the State Department 
and others work tirelessly to untangle and resolve some of the most 
intractable of issues--arms control, international security, human 
rights violations, and religious freedom, just to name a few.
  Well, what has happened since our friend from California said Mike 
Pompeo is smart, hard-working, and devoted to protecting our country? 
What has changed since then? Well, nothing has changed, except for 
perhaps the political calculation that it is perhaps in the Democratic 
Party's best political interest to oppose every one of President 
Trump's policies and nominees because that way they stay out of trouble 
with their political base. One reason Senators are elected for 6 years 
from a whole State is, presumably, that we can get beyond those sorts 
of parochial political concerns, particularly on matters of such 
national and international import.
  Our Democratic colleagues have made it no secret that they are not 
fond of the President and some of his instincts and decisions, but 
isn't that all the more reason for them to not sacrifice rational 
judgment in the case of this highly qualified and widely revered 
nominee? After all, defeating a Secretary of State nominee would be 
extraordinary, historically speaking, and it would send a terrible 
message to our friends and allies around the world. This is nothing to 
be trifled with. President George W. Bush's first nominee, Colin 
Powell, was confirmed by a unanimous voice vote. And his second, 
Condoleezza Rice, had 85 Senators vote in her favor. Hillary Clinton 
received only two no votes, and John Kerry only three. Every Secretary 
of State nominee since 1925 has been reported out of the Senate Foreign 
Relations Committee favorably. That may change today.
  This body and this institution should not forget its own history and 
traditions, and we should not give up on the tradition of 
bipartisanship, goodwill, and fairness to the opposition.
  I am proud to support Mike Pompeo as our next Secretary of State and 
hope that all of our colleagues across the aisle will have the 
political courage to join those of us voting yes.
  I note that there have been some press releases, some announcements, 
and a number of our colleagues have stepped forward and said they will 
vote yes for Mike Pompeo as Secretary of State. I applaud them in their 
political courage for standing against the tide.
  For those who refuse--especially for the ones who have flip-flopped 
in the matter of a year--Mike Pompeo is a human being, a public 
servant, and somebody well trained and well prepared to be the Nation's 
top diplomat. I just simply don't understand how they can reconcile 
those two polar opposite positions, or perhaps they can explain it to 
the American people. I cannot.
  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. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. Madam President, the preamble of our Constitution lays 
out a vision that includes establishing justice and promoting the 
general welfare. Certainly we have the challenge in America of making 
sure the doors of opportunity are wide open and not slammed shut.
  For centuries, we have been working to try to make sure that vision 
comes into full realization, but today we are considering the 
nomination of Stuart Kyle Duncan to a lifetime appointment on the Fifth 
Circuit Court of Appeals. This individual is not supportive of our 
constitutional vision of open doors; he is intent on slamming them 
shut--slamming them shut on all LGBTQ communities; slamming them shut 
on women seeking reproductive rights and healthcare; slamming 
opportunity shut on those who simply wish to vote in America in 
fulfillment of the vision of our constitutional democratic Republic; 
slamming the doors shut on those who are here and have been here 
legally, who are seeking to become citizens.
  Mr. Duncan is probably best known for his work on Burwell v. Hobby 
Lobby, a landmark case opposing the ACA's requirement that employers 
provide insurance coverage opportunity for contraception and for 
undermining the healthcare of countless women across America.
  You might say: Didn't his side of this case win in the courts? Well, 
not for the reasons that this individual put forward. The Court 
rejected the arguments Kyle Duncan made. He refused to acknowledge the 
importance of birth control in women's lives, arguing that the 
government does not have a compelling interest in ensuring access to 
birth control without cost-sharing. The Court said that is wrong and 
that the government does have a compelling interest. Mr. Duncan argued 
that the Court was not required to consider the impact of this law--or 
the possibility of overturning it--on employees under the Religious 
Freedom Restoration Act. Every single member of the Court, whether in 
the majority or in the minority on the opinion, threw out that 
argument, reaffirming that burdens on third parties must be considered. 
Although the verdict came down on the side Mr. Duncan advocated for, 
the Court soundly rejected his arguments and his reasoning.
  After Hobby Lobby, he wrote an amicus brief in Zubik v. Burwell on 
behalf of Eternal World Television Network, a nonprofit seeking an 
exception from the ACA birth control benefit. He made some of those 
same arguments again, and again the Court rejected his reasoning and 
directed the government and all parties involved to arrive at an 
approach that ensures that affected women ``receive full and equal 
health coverage, including contraceptive coverage.''
  It is certainly a concern to have a nominee who wants to slam the 
door shut on the freedom of women to access the reproductive healthcare 
that they desire, but there is more door-slamming here than that. He is 
an ardent opponent to equality and opportunity for the LGBTQ community 
here in the United States of America. He is recognized as one of our 
Nation's leading opponents of opportunity for the LGBTQ community.
  He authored legal briefs opposing marriage equality in Obergefell v. 
Hodges, going so far as to question the legitimacy of the Supreme Court 
when the Court came down saying that ``love is love'' and that marriage 
equality is the law of the land under the Constitution of the United 
States of America. He called that decision ``an abject failure.''
  I ask you, what kind of fairness do you anticipate from a judge who 
is ardently opposed to the freedom of opportunity for LGBTQ Americans, 
who condemns a previous decision of the Supreme Court as ``an abject 
failure,'' and

[[Page S2337]]

who said that this decision would ``imperil civic peace''? He said:

       No one can possibly predict with any degree of confidence 
     what are all the possible ramifications for our society that 
     are going to take place. No one could have predicted all of 
     the social pathologies from no-fault divorce. This is a far 
     more radical change than no-fault divorce.

  He said that ``harms'' to our democracy from marriage equality 
``would be severe, unavoidable, and irreversible.''
  Certainly, he wanted to slam the door on marriage opportunity for 
LGBTQ Americans, but he made an outrageous argument that the concern of 
others should enable his court, as he envisioned it, to deprive 
Americans of the opportunity to marry the individual they love--no 
concern for the Constitution, just that some folks might find it 
uncomfortable. He made an extensive, hyperbolic, hysterical argument 
that it would completely debase society for people to be with the 
person they love.
  His attacks against the LGBTQ community go on and on, from 
introducing expert declarations in one case that characterized 
transgender Americans as ``delusional.'' If you have been characterized 
as delusional based on who you are and whom you love, what fairness can 
you expect from the judgment of this individual? He fought to deny 
parental rights to the woman who adopted the children of her same-sex 
partner--the same children she had helped raise for 8 years.
  Clearly, this individual is interested in rightwing, opportunity-
denying legislating from the bench, not protecting the vision of 
opportunity embedded in our Constitution.
  All that doesn't even touch on his other efforts, such as his effort 
to make it difficult for communities of color or communities of modest 
economic means to be able to vote in the United States of America. If 
you believe in the Constitution of the United States, you should be a 
fierce advocate for voter empowerment and participation, not voter 
suppression, but this individual is a fierce advocate for voter 
suppression. Isn't it right to have people confirmed to the bench for a 
lifetime appointment who actually admire the vision of our Constitution 
for opportunity and for citizen engagement, not one who wants to tear 
down opportunities and slam doors on opportunities and stop people from 
voting.
  That is not all. There is more. There are his attacks on deferred 
action for parents of Americans in which he spreads false and 
frightening stereotypes about immigrants, echoing his previous 
hysterical comments, saying that ``[m]any violent criminals would 
likely be eligible to receive deferred action under DAPA's inadequate 
standards.'' It is kind of the last refuge of a scoundrel, an 
individual who proceeds to attack our immigrants, saying: Oh, they 
might all end up being criminals--completely contrary to the facts, 
where immigrants are far more law-abiding than the vast average among 
Americans born here in the United States.
  Isn't it the case that we are a nation of immigrants? Unless you are 
100 percent Native American Indian, then you are here because you 
immigrated or your parents immigrated or your ancestors at some level 
immigrated generations ago. So basically descending to attack 
immigrants as all criminals is simply another example of this 
individuals's unsuitability to serve on the bench.
  We are a ``we the people'' nation, founded on equality, justice, and 
opportunity for all. Our Nation is about opening doors for each 
individual to participate to the full degree of their talent, not to 
have the prejudices of some allow them to slam doors on others. That is 
why this individual, Stuart Kyle Duncan, should never be on the floor 
of the Senate to be confirmed as a judge in the United States of 
America. Let him carry on his advocacy outside the hallowed halls of 
the courtroom but not inside, sitting on the bench. That is why 
everyone here tonight should vote against confirming this nomination.
  Thank you, Madam President.
  The PRESIDING OFFICER (Mr. Moran). The Senator from Louisiana.
  Mr. CASSIDY. Mr. President, I rise to speak to the nomination of and 
the vote we are about to have on Kyle Duncan. Kyle Duncan is from 
Louisiana. He has been nominated to be on the Fifth Circuit Court of 
Appeals. Let me speak a little bit about his qualifications and why I 
think we should support his nomination and vote yes.
  First, I have a little bit of pride in this; he is a graduate of LSU, 
my alma mater, and graduated from LSU's law school, the Paul M. Hebert 
Law School. He graduated in the Order of the Coif and subsequently got 
a master of law degree from Columbia University. He has the training, 
experience, and institutional knowledge to be a successful judge.
  I have discussed his academics; let's speak about his experience. His 
breadth of experience makes him a great choice. He was certified as 
``well qualified'' by the American Bar Association. He has extensive 
courtroom experience on the Tenth and Fifth Circuit Courts of Appeals, 
the D.C. Circuit Court of Appeals, the Texas and Louisiana Supreme 
Courts, and he has twice argued in the U.S. Supreme Court. He has 
experience working in the public and private sectors and in academia. 
He pulls from diverse legal backgrounds, including criminal law, 
American Disabilities Act regulations, section 1983 claims, healthcare 
law, adoptions, and contract law. He understands the Fifth Circuit.
  After law school, Mr. Duncan clerked on the Fifth Circuit Court of 
Appeals under the Honorable John M. Duhe, Jr. He was the assistant 
solicitor general at the Texas attorney general's office and a 
professor at the University of Mississippi Law School. He is the 
appellate chief of the Louisiana Department of Justice. All of these 
are States included in the Fifth Circuit Court of Appeals. Again, this 
is the experience and background we should look for when selecting a 
judicial nominee.
  I will also add that he is of high character. Even those who are 
going to vote no have been impressed once they have met him. They 
consider him a genuinely nice man whose body of work is reflective of 
someone who is decent. His body of work also demonstrates his high 
respect for legal precedent. He understands that a judge is not an 
advocate for a particular case but, instead, an adjudicator upholding 
the law, applying the law to the facts. He is a man of high integrity, 
high character--something sorely needed in this world but especially to 
be demonstrable in the Federal judiciary.
  Clearly, Mr. Duncan is a qualified nominee, having that which it 
takes to be a successful judge. I recommend Mr. Duncan without 
reservation, and I urge my colleagues to join in supporting his 
nomination.