[Congressional Record Volume 164, Number 75 (Wednesday, May 9, 2018)]
[Senate]
[Pages S2568-S2570]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             Net Neutrality

  Mr. DURBIN. Madam President, I come to the floor today to discuss an 
issue that impacts consumers, small businesses, our general economy, 
and most families. It is the issue of net neutrality. The concept 
behind this is pretty simple. It ensures that all content on the 
internet is treated equally so that the internet can remain an openly 
accessible platform for users and an equal playing field for everyone.
  Unfortunately, some leaders at the Federal Communications Commission 
disagreed. Despite being given the responsibility to make sure they 
operate in the public interest when it comes to our Nation's 
communications networks, in December, the FCC walked away from this 
important responsibility and decided to put the needs of companies 
ahead of customers.
  It appears with this administration that everything is for sale. That 
means public lands, our privacy, and, in this case, the pathway 
American families use every single day to get on the internet. Led by 
Chairman Pai, the FCC voted for a radical plan in December to dismantle 
net neutrality rules and threaten the existence of a free and open 
internet as we know it today. This new plan will allow large internet 
providers the power to freely block, throttle, or manipulate consumers' 
access to the internet in ways that profit the provider.
  Think about your access to apps and the internet today, and compare 
it to your access to cable channels. If you want more channels, you put 
in more money. Today the internet is open to us, and we have access to 
it. The Trump administration, through the Federal Communications 
Commission, wants to change that. If you want fast internet service, 
you pay more money. If you want access to certain apps, you pay more 
money. That changes the nature of the internet as we have known it. It 
is a dramatic change in the way we communicate and gather information. 
It is just another bill.
  Many people are now facing the prospect of cable TV shows and other 
things they have to pay more money for on a pretty substantial monthly 
bill. Now comes the FCC to say: We have another monthly bill for you if 
you want the same access to the internet today that you had before. Not 
only does this mean less choice and higher cost for consumers whose 
access to content could be determined by what is in the best financial 
interest of

[[Page S2569]]

their provider, but small businesses will no longer be able to compete 
on a level playing field.
  For many small businesses and entrepreneurs in my State of Illinois 
and across the country, the internet has given them the ability to 
reach consumers across the globe and compete against large companies. 
The innovation and healthy competition that a free and open internet 
allows are essential to continue pushing our economy forward. If the 
FCC has its way, they are going to create internet fast lanes and slow 
lanes, where winners and losers are no longer determined by how good a 
business's product is but by whether a small business can afford to pay 
in. That is wrong. It is not good for the economy, and it is not good 
for our democracy.
  I have heard from hundreds of thousands of Illinoisans who are 
concerned, and there is concern all across the country, across party 
lines. We filed a discharge petition today to take up this issue of net 
neutrality on the floor of the Senate.
  We have considered a lot of rules and regulations from the Obama 
administration. Now we are going to consider one from the Trump 
administration. We are going to see if there is bipartisan support for 
net neutrality.
  Senator Collins, Republican of Maine, has joined us. Will there be 
more? Are there a number of Republican Senators who want to stand up 
for net neutrality and for open access for America to the internet or 
do they want to sell off this opportunity to the highest bidders?
  Keeping the internet a place where content is shared freely and 
accessed equally by everyone is important to our small businesses, 
educators, and consumers. We are pleading with America in the hours 
before we take up this measure to log on and tell the Trump 
administration to lay off. When it comes to net neutrality, it is too 
important a value across America to sell at the FCC.
  Madam President, before the Senate left for last week's recess, the 
Republican leader, Senator McConnell, filed cloture on six circuit 
court nominees.
  I supported three of these nominees in the Judiciary Committee--Amy 
St. Eve, Michael Scudder, and Joel Carson--and I opposed three of 
them--Michael Brennan, Kurt Engelhardt, and John Nalbandian. I 
carefully consider each nominee's qualifications and record when I cast 
my votes.
  I want to speak today, though, about the process that Senate 
Republicans are using to move judicial nominations under President 
Trump. I fear the Republican majority is diminishing the advice and 
consent role of the Senate in an effort to rush through President 
Trump's nominees. That troubles me. Just look at what Republicans are 
doing to the blue slip when it comes to circuit court nominations.
  For the last century, the blue-slip process has worked well. It has 
encouraged negotiation and meaningful consultation between the White 
House and Senate when it comes to making lifetime appointments to the 
federal bench. The blue slip serves as a check and a balance, helping 
to steer the judicial selection process toward the center stripe, and 
it ensures Senators are meaningfully consulted on judicial nominations 
in their State.
  Many Senators have established expert screening commissions to help 
evaluate and vet nominees in their States. When blue slips and 
screening commissions are respected, it leads to consensus and high-
quality nominees.
  Look at the way the White House worked with Senator Duckworth and me 
on filling the two current 7th Circuit vacancies from Illinois. We had 
good-faith consultation and a substantive back-and-forth, and the White 
House respected our Illinois tradition of having an expert screening 
committee review and vet candidates.
  This process resulted in a pair of excellent Illinois 7th Circuit 
nominees--Amy St. Eve and Michael Scudder, whom all sides could agree 
upon. That is the way it should work.
  We know that blue slips and screening commissions can help build 
consensus and lead to good outcomes. Yet this week the Senate is taking 
major steps to abandon these processes.
  Senator McConnell is calling a vote on the floor this week on 7th 
Circuit Wisconsin nominee Michael Brennan. Mr. Brennan is a 
controversial nominee with a history of troubling statements. In 
particular, I am concerned by his 2001 National Review op-ed in which 
he argued that judges need only follow ``correct precedent''--which 
suggests judges can disregard precedent they don't agree with. I am 
also concerned by his 2004 Marquette Law Review article on personal 
responsibility, in which he was disdainful of criminal defendants who 
said they had a difficult upbringing.
  The Brennan nomination is controversial on substance, but even more 
controversial is the way this nomination has been pushed forward. Both 
Senator Baldwin and Wisconsin's bipartisan screening commission were 
effectively cut out of the process of selecting this nominee.
  Mr. Brennan failed to meet the threshold vote of the screening 
commission that Wisconsin's senators had set up, but President Trump 
nominated him anyway. Senator Baldwin has raised serious concerns about 
Mr. Brennan and has not submitted a blue slip for his nomination, yet 
Republicans are pressing ahead. This is taking us down a troubling 
path.
  I know that Senators in both parties like to quibble over precedents 
and point fingers at each other when it comes to judicial nominations, 
but I think all Senators understand that we have a fundamental 
responsibility to our constituents when it comes to federal judges in 
our home States. We must exercise a vigorous advice and consent role 
for these judges who will sit in our States' courthouses.
  It should concern all of us if any Senator is cut out of the judicial 
selection process in that Senator's State. None of us want that to 
happen to us.
  If the Senate votes to confirm Mr. Brennan, we will be sending a 
clear signal that home State senators don't matter anymore in the 
judicial selection process. That is the wrong path to go down, but 
Senate Republicans appear to be doubling down on this path.
  Today, in the Judiciary Committee, Chairman Grassley called a hearing 
on a 9th Circuit nominee from Oregon, Ryan Bounds. This nominee has not 
received a blue slip from either home State senator, nor does he have 
the approval of Oregon's judicial selection committee.
  I hope my Republican colleagues stop and think about how they would 
feel if this happened to them in their home States. I hope our example 
in Illinois shows that there is a better way--a path of good faith 
negotiations that can lead to compromise while respecting the Senate's 
important traditions and home-State practices.
  There are other troubling nomination trends besides the bypassing of 
blue slips and home State screening commissions. Republicans also have 
been moving very quickly to confirm President Trump's picks for Federal 
judges. For example, last year the Senate confirmed 12 circuit court 
judges, a record for a President's first year in office. President 
Trump's first 15 circuit court nominees have been confirmed in an 
average of 131 days, including just 20 days pending on the Senate 
floor. This is a very fast pace. By comparison, President Obama's first 
15 circuit court nominees took an average of 254 days to be confirmed, 
including 167 days pending on the floor.
  This fast pace carries risks. Senators who do not serve on the 
Judiciary Committee need time to review the records of judicial 
nominees before voting on whether to confirm them to lifetime positions 
on the Federal bench.
  This scrutiny is even more important in the Trump era, when nominees 
are often not carefully vetted before they are nominated. Just look at 
nominees like Brett Talley, who was rushed through the Judiciary 
Committee and reported on a party line vote before many Senators 
realized his utter lack of qualifications to be a Federal judge.
  I understand the need to fill vacancies in the Federal Judiciary, but 
we must not do so at the expense of careful vetting.
  I also want to briefly respond to the argument that somehow Democrats 
are being obstructionist when it comes to judicial nominees. It is 
wildly hypocritical for Republicans to make this argument.
  Remember, my Republican colleagues retired the trophy for judicial 
obstruction during the Obama Administration: Republicans forced cloture 
filings on 36 of President Obama's judicial nominees in his first 5 
years-the

[[Page S2570]]

same number of judicial cloture filings as in the previous 40 years 
combined; Republicans used the tactic of withholding blue slips to 
block 18 of President Obama's nominees; Republicans refused to support 
any Obama nominee for three D.C. Circuit vacancies, no matter how 
qualified; Republicans allowed only 22 Obama nominees to be confirmed 
in his last two years--the fewest judicial confirmations in a Congress 
since President Truman; and Republicans blocked Supreme Court nominee 
Merrick Garland from even having a hearing.
  Senate Republicans often opposed President Obama's nominees simply 
because it was President Obama who nominated them. In contrast, Senate 
Democrats simply want to ensure that nominees are adequately vetted, 
well-qualified, non-ideological, and in the judicial mainstream.
  We have the ability to make the nominations process work in a 
consensus way. We have done it in Illinois. I hope we can do it across 
the country.
  Let's start by keeping the blue slip. Sometimes it can be 
frustrating-we saw that when Republicans used blue slips to block 18 of 
President Obama's nominees. But it is a tool that compels us to find 
consensus. Let's keep that tool.
  I urge my Republican colleagues to vote no on the nomination of 
Michael Brennan, both because of his troubling record and because of 
what his confirmation would mean for the future of the blue slip. I 
urge my colleagues to vote for nominees like Amy St. Eve and Michael 
Scudder whose qualifications are outstanding, who were selected through 
a good process, and who have both home State Senators' support.
  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. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cotton). Without objection, it is so 
ordered.