[Congressional Record Volume 164, Number 66 (Tuesday, April 24, 2018)]
[Senate]
[Pages S2362-S2363]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Deputy Attorney General Rosenstein

  Madam President, on another matter, over the last few months, House 
Republicans have heaped enormous pressure on Deputy Attorney General 
Rod Rosenstein in a transparent attempt to bully him into providing 
documents that are pertinent to an ongoing investigation--something we 
have hardly ever seen before, something that really gets in the way of 
law enforcement doing its job. Representative Nunes, who has shown his 
partisanship repeatedly, and others have gone so far as to threaten Mr. 
Rosenstein with contempt of Congress and even impeachment if he doesn't 
hand over former FBI Comey's memos, FISA Court documents, and other 
information that is related to Mueller's investigation into foreign 
interference. Mr. Rosenstein gave them that information, which, of 
course, was leaked afterward to the press.
  It is not Justice Department protocol or any other prosecutor's 
protocol to share information that is pertinent to an ongoing 
investigation. It just welcomes interference. That is true even with 
the most objective of those who get the information, and I think 95 
percent of America believes Congressman Nunes is not objective. It is 
not hard to understand why we don't do this. Yet several House 
Republicans have smeared Mr. Rosenstein and have even threatened his 
job unless he breaks the longstanding prosecutorial guidelines which 
will force him to give them information they can twist into political 
ammunition. What Representative Nunes and others have been doing is 
disgraceful, just disgraceful, and not consistent with our being a 
democracy, where there is the rule of law. It is more consistent with 
the bullying attitude that we see in nondemocratic countries.
  Deputy Attorney General Rosenstein is doing his level best to honor 
the integrity of the Russia probe while being dragged through the mud 
by the President and his allies in Congress. He is a strong man. He has 
done an excellent job, and he is doing his best now. He is doing 
exactly what a Deputy Attorney General should be doing. Mr. Rosenstein 
deserves our respect--all parties' respect, the whole country's 
respect--for his efforts in being honest and transparent with Congress 
while maintaining the integrity of the Russia probe.
  Even so, as a columnist in the Washington Post put it this morning: 
``It's a miserable day at the Justice Department when the deputy 
attorney general is forced at gunpoint''--bullying, threatening--``to 
turn over important evidence in a pending criminal investigation.'' The 
``bullying'' and ``threatening'' are my parenthetical words.
  It continues to be a real disgrace for House Republicans to engage in 
such bare-knuckle tactics in a relentless effort to deter and kick up 
dust around the Mueller investigation. Our fellow Republicans, the bar 
across the country, and the country itself--the public--should resist 
this kind of bullying and pressure. It is so un-American, so against 
the rule of law, so against how democratic republics work.
  I yield the floor.
  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. WYDEN. 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. WYDEN. Madam President, I come to the floor this morning to 
oppose the nomination of Stuart Kyle Duncan to serve on the Court of 
Appeals for the Fifth Circuit.
  I accept that there are differences of opinion with respect to 
nominees, and I accept that I will not agree on every issue with every 
Trump nominee. I do expect that individuals who are up for lifetime 
judicial appointments have to demonstrate that, above all else, above 
everything else, they will be guardians of the constitutional rights of 
the American people. If you want to be a judge in America, my view is, 
you ought to have to show an independence of thought and a respect for 
the rule of law.
  I regret to say this morning, I believe this nominee has not met 
those important expectations. As I review Mr. Duncan's record, it seems 
to me he has made a career out of fighting to restrict the rights and 
legal protections of the vulnerable and those who are powerless. It 
ought to be an immediate red flag to see how often he has aligned 
himself with the wrong end of some of the most high-profile cases in 
the last few years.

  My view is that his record on civil rights alone ought to be 
disqualifying. Twice he has represented States--North Carolina and 
Texas--in their defense of voter suppression laws that were written and 
passed based on false claims of voter fraud. Both of those laws, in my 
view, were a sort of Frankenstein monster of past proposals that would 
have made it harder for African Americans and Latino citizens to vote. 
You don't have to take my word for it; both of those cases were thrown 
out by the courts. Fortunately, neither time was Mr. Duncan successful 
on appeal.
  In another case, he argued before the Supreme Court that a wrongful 
conviction verdict ought to be thrown out. An African-American man 
named John Thompson spent 14 years on death row after prosecutors in 
New Orleans concealed evidence that would have proven his innocence. 
After his exoneration, this individual won a $14 million wrongful 
conviction suit. Mr. Duncan, on the other hand, led the effort to have 
it overturned. An innocent man's life was ruined, and Mr. Duncan saw to 
it that he had no recompense.
  He has clearly been a staunch opponent of women's reproductive rights 
and healthcare. He was counsel of record representing Hobby Lobby in 
its case against the Department of Health and Human Services in 2014. 
In that case, Hobby Lobby sought to throw out the legal requirement 
that women have no-cost access to contraception through their health 
insurance coverage. Mr. Duncan argued that the government has no 
compelling interest in guaranteeing access to contraception. To hold 
that view, you have to basically throw in the trash can the science 
showing that contraception results in lower rates of cancer and 
healthier pregnancies when women choose to conceive. You also have to 
be willing to turn a blind eye to the matter of economic fairness--that 
women, particularly those who are vulnerable, those of modest means, 
should not be taxed for their gender.
  Mr. Duncan went on to author a special legal brief in Whole Woman's 
Health v. Hellerstedt, arguing that the Supreme Court should have 
ignored medical evidence and allowed the State of Texas to shutter 
women's health clinics on trumped-up grounds.
  I also think that as the Senate considers this nominee, we should 
look at his record on LGBTQ Americans. In 2015, when he was in private 
practice, this nominee served as special assistant attorney general for 
Louisiana. There, he authored an amicus brief on behalf of 15 States, 
urging the Supreme Court to reject the right to same-sex marriages 
nationwide. He wrote that recognizing such a right would endanger the 
``civil peace.'' It is a head-

[[Page S2363]]

scratcher to me how he could reach that conclusion. Whatever damage has 
been done to the civil peace in the last 3 years certainly has had 
nothing to do with same-sex marriage.
  When I came to the Senate, I believe I was the first Member of this 
body who came out for marriage equality. Back then, I said: This is 
pretty simple, folks--if you don't like gay marriage, don't get one. 
Regrettably, this nominee not only doesn't share that view, but he 
wrote that recognizing the right to marriage equality would, in his 
view, endanger the civil peace.
  He represented Gloucester County, VA, in an effort to deny a 
transgender student's right to use the bathroom aligned with the gender 
identity. He also represented rightwing lawmakers in North Carolina, 
defending broadly discriminatory legislation that became known as the 
bathroom bill.
  The list of concerning episodes and disqualifying work in Mr. 
Duncan's career does take a fair amount of time to actually walk 
through. What I will just tell you is that when I look at Mr. Duncan's 
background, what I see is a long record of hostility toward the rights 
of women and minority Americans. He has consistently defended powerful 
special interests over the rights of those who don't have political 
action committees, aren't powerful, and don't have high-priced 
lobbyists.
  As Senators consider how to vote on this nomination, I find it hard 
to believe that this track record of bias that I have outlined this 
afternoon will suddenly vanish, will just disappear on confirmation. In 
my judgment, this is an individual who should not serve on the bench. I 
urge my colleagues to vote no.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Young). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. 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. CANTWELL. Mr. President, I come to the floor to speak in 
opposition to the nomination of Kyle Duncan for the U.S. Circuit Court 
for the Fifth Circuit.
  I find his nomination troubling, but I find many of President Trump's 
nominees for judges troubling because they want to restrict established 
rights or roll back privacy issues, whether it is Roe v. Wade or LGBT 
rights.
  In many cases, Mr. Duncan has tried to take away these very important 
reproductive rights for women. From 2012 to 2014, he was the lead 
counsel on the Hobby Lobby v. Sebelius Supreme Court case. That flawed 
decision allows closely held corporations to deny FDA-approved 
contraceptive coverage to women employees if the company owners object 
to the contraception based on religious beliefs.
  More than half of the working-age women in Washington State get their 
healthcare coverage through their employer. They pay for their coverage 
through hard-earned wages and compensation. Their employer should not 
be able to just cherry-pick what benefits they get because the owners 
have a self-professed religious objection.
  Mr. Duncan also tried to go after State laws protecting birth control 
access. Thanks in part to Washington State pharmacist Jennifer 
Erickson, Washington State has a law on the books requiring all 
pharmacies to stock and deliver all lawfully prescribed drugs, 
including contraception, but Mr. Duncan worked to take that hard-fought 
access away.
  In 2016, he filed a brief urging the Supreme Court to take up a 
challenge to the Washington State pharmacy law in order to strike it 
down.
  He also worked to deny access to constitutional rights to terminate 
pregnancies. In the Whole Women's Health case, Mr. Duncan filed a brief 
defending an unconstitutional Texas law that restricted access to safe 
and legal abortions at qualified health providers.
  Ultimately, in the Whole Women's Health case, the Supreme Court 
rightly struck down this very deceptive Texas law, finding it had 
nothing to do with medical necessity and placed an undue burden on 
women.
  In the landmark case of Obergefell v. Hodges, Mr. Duncan authored an 
amicus brief which argued against same-sex marriage, and he has 
represented North Carolina in their defense of the ``bathroom bill,'' 
which discriminated against transgender individuals. We need to expand 
the rights of the LGBT community, not nominate a judge who believes we 
should roll back these laws that are so important to the individuals in 
my State.
  Mr. Duncan also defended North Carolina's restrictive voting laws 
which limited early voting, prevented same-day registration, and placed 
limitations on where people could vote. The appeals court found that 
these restrictions violated the Voting Rights Act because they were 
disproportionately affecting African Americans. We do not need to see a 
judge on our bench who is trying to limit people's participation in our 
democracy as we are trying to protect their access to voting.
  It is no secret the Trump administration has been chipping away at 
women's healthcare and constitutional rights by using every tool at 
their disposal. I am especially troubled that the President is intent 
on nominating judges, such as this one, who do not respect the settled 
law of Roe v. Wade.
  The administration is making every attempt to roll back these 
important privacy laws. Kyle Duncan, the nominee we are considering, 
has spent decades doing the same. That is the reason I oppose his 
confirmation, and I urge my colleagues to do the same. I hope they will 
follow in making sure we protect these important rights.
  Thank you.
  I yield the floor.
  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. LANKFORD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.