[Congressional Record Volume 164, Number 75 (Wednesday, May 9, 2018)]
[Senate]
[Pages S2570-S2578]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
The Economy
Mr. BARRASSO. Mr. President, last Friday, we got new numbers from the
Labor Department in terms of jobs and how American workers are doing.
The unemployment rate is now down to 3.9 percent. It is the lowest it
has been in 17 years. One analyst from the network CNBC said: ``That's
a wow number.''
The American economy has created 3 million jobs since President Trump
took office. There are 3 million Americans who are now earning a
paycheck instead of waiting for a government check. We have gotten
304,000 new manufacturing jobs since President Trump took office. There
are 352,000 new construction jobs and 84,000 new jobs in the mining and
logging industries. Compare this to when Democrats in Congress and in
the last administration launched an all-out War on Coal. There are
84,000 new jobs in mining and logging.
Republicans ended the War on Coal. We struck down a major Democratic
regulation that would have crippled the mining industry. We showed
industries like manufacturing, construction, logging, and mining that
we want people doing these jobs. We want people back to work. Employers
have responded all around the country by hiring more people, and that
makes the economy grow.
So far Republicans in Congress have gotten rid of 16 major
regulations since President Trump took office--wiped them off the books
completely. We have shown that Republicans are serious about cutting
redtape and loosening Washington's stranglehold on our economy. Because
we got rid of these rules, Americans have saved as much as $36 billion
over time. That is the cost for families and businesses jumping through
the hoops and filling out the paperwork that government had previously
demanded.
The latest one of these regulations that were repealed was just last
month. Republicans in the Senate passed a resolution to help save
people money when they are shopping for a car. We got rid of a rule
that the Obama administration had written to restrict how car dealers
handled financing offers to buy a car. The rule was done in a way that
was actually contrary to the law. It also had the potential to limit
choices for consumers. We want consumers to have more choices.
Republicans in the Senate voted to get rid of this unnecessary,
burdensome regulation.
President Trump has been very active in getting rid of excessive
regulations as well. One of the first things he did as President was to
issue an order cutting redtape. He said that for every significant new
rule any agency wanted to write, it had to get rid of two rules. For
every one new rule, get rid of two. That is how this administration has
made a difference in Congress.
The results so far have been even better than anyone had expected.
The nonpartisan American Action Forum has been tracking the numbers.
This is what they said. They looked at all the rules that agencies have
been working on for the fiscal year we are in now--since last October.
Agencies have cut 35 major regulations of the kind the President was
talking about--cut 35. At the same time, they have written only five
new major regulations. Major regulations are defined by how much money
it costs people. President Trump said that he would cut two for every
one new regulation, but so far, in terms of major regulations, he has
cut seven for every new one.
Of course, one of the most important things Republicans have done in
helping the economy--in addition to the regulations--has been passing
the tax relief law. This law means that we now have a simpler tax
system. We now have a fairer system, and we have a system that is much
less expensive for American families. Almost immediately, hard-working
Americans started seeing more money in their paychecks. People got
bonuses at work. People got raises. People are seeing it.
Tax cuts have been good for American families, and they have been
good for the American economy as well. The Congressional Budget Office
says that the economy is going to grow by more than 3 percent this
year--by more than 3 percent. That is much faster than it was growing
for the previous years after the recession. The office actually went
back and increased their estimates for economic growth. Why? Because of
the tax relief law, the tax cuts.
Wages are up nearly 3 percent from a year ago. People are seeing it
all across the country. Again, that is much faster growth than we had
under the previous administration. When you figure in lower taxes,
people's real take-home pay is up even more.
Democratic policies led to stagnant wages for Americans. Republican
policies have allowed wages to grow much more quickly. Millions of
people have gotten new jobs that didn't exist before. Millions of other
people have been able to switch jobs, move up in their careers, and
make more money.
Overall, hiring this past month, April, went up by 20 percent
compared to April of last year. It is a huge increase. A lot of these
jobs are being created by small businesses.
Last week was Small Business Week across America. I visited a number
of business owners across the State of Wyoming. Small business owners
know that the government can either create opportunity or crush
opportunity, based on regulations, mandates, and taxes. That is the
kind of change that is possible under Republican pro-growth policies--
creating opportunities, not crushing opportunities, as we have seen
before. It is things like a national economy that is growing larger and
growing faster that the American people are seeing today. Their lives
are better today than they were in 2016. It is things like a small
business being free to expand because it doesn't have to waste so much
time and money on taxes and paperwork and government redtape--things
like making sure America takes less money out of people's paychecks,
letting people keep more of their hard-earned money.
When you have policies that make life easier for families and for
businesses, good things happen across America. People in my home State
of Wyoming get it. They are seeing it, they are experiencing it, and
they are living it every day. They understand that what Republicans are
doing in Congress helps them at home. That is why we are going to keep
doing what we are doing, and we are going to keep going on. We are
going to keep cutting regulations. We are going to keep building an
``America First'' economy
[[Page S2571]]
that is strong, that is healthy, that is growing, so it can create more
opportunities for everyone. That is what Republicans have promised to
do. It is what we should be doing. It is what we are going to do. It is
what we are going to continue to do. It is what we are delivering in
Congress and in the White House for the American people.
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. PORTMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PORTMAN. Mr. President, first, I want to talk about our growing
economy. I listened to my colleague's comments, the Senator from
Wyoming, about the importance of the tax legislation. I couldn't agree
with him more. I think it is stimulating not just economic growth but
higher wages and more jobs. I also want to talk about the need for us
to connect to those jobs the Americans who are not currently employed.
Then I want to talk about some very shocking, new information we have
about why people are outside of the workforce.
We just had a good jobs report from April. It showed a steadily
growing economy. It showed unemployment at 3.9 percent. That is the
official number, but that is the lowest the official number has been
since the year 2000.
In my home State of Ohio, there was a recent survey done by PNC
Bank--it has been doing this for 9 years--that asked small- and mid-
sized companies: What is your level of optimism about the future? They
said their business optimism has been at record levels for the past 9
years. So there is something going on that is very good in the economy.
If you talk to the small business community, the National Federation
of Independent Business survey shows the same thing, not just optimism
but also a sense that companies are getting ready to invest even more.
So there are some good things going on in our economy.
This week, the Ohio Chamber of Commerce issued its own report, and it
shows something interesting, which is that three out of four businesses
in Ohio are saying they want to add people--three out of four. More
than half of them said they want to add more than 25 people. I was just
home and had a lot of interaction with small business people over the
last week. I can't go to a business in Ohio where I don't hear people
talking about the need for a qualified workforce. They tell me, yes,
the tax bill is helping--no question about it. It is helping middle-
class families throughout my State. Ninety percent of Americans are
getting paychecks that read Uncle Sam is going to withhold less money--
on average, $2,000 for a median-income family in Ohio just from the tax
cuts this year alone.
Again, small businesses are investing more. Companies are doing
everything from investing in people, with bonuses and higher pay and
better 401(k) matches, to investing in equipment and technology and,
therefore, in the productivity of those workers, which will lead to
better economic performance. So those things are happening.
On the regulatory front, I also think that much of what we have done
in Congress is beginning to help. This includes 16 different times when
Congress has said we shouldn't have this new regulation that was put on
by the Obama administration at the end of his term. Rather, we ought to
free up the economy more--over $60 billion, by the way, of relief to
our economy. That is helping.
I think it is also very helpful, as Senator Barrasso said, that with
regard to the administration, there is a new attitude, which is, yes,
we need rules and regulations, and let's make sure they make sense, and
let's make sure we partner with businesses and try to help them comply
with those rules and regulations rather than have an attitude of
saying: Let's try to find out how we can punish businesses for not
complying. I think that difference alone may be even larger than what
we have done in Congress, in terms of passing this legislation to
eliminate regulations, because that attitude change has helped,
particularly, small businesses in my State feel like, OK, they have an
opportunity now to be able to take a risk--to take a chance--to invest
in work. They are not thinking the Federal Government is out there to
get them.
I see that, and I am really happy to see it because it is not, again,
just about growing the economy. Over the past few months, if you have
looked at the numbers, for the first time in really a decade and a
half, we have seen wages starting to go up in my home State and around
the country. That is what we should all want.
Let me talk about something that concerns me greatly about the
direction in which we are going--again, positive. The economy is
picking up. Things are going well. Workers whom I talk to are happy
with the tax bill because it is helping them both directly with their
families and through the benefits they are getting at work. Yet what I
am hearing is, the workforce is really the challenge. When you look at
that, you come up with a shocking situation, in which the reason there
aren't people showing up for work is, we have a record number of men
and probably close to a record number of men and women--you would
probably have to go back to the 1970s to find these kinds of numbers--
who are out of the workforce altogether.
Now, what does that mean?
This means they are not working, and they are not looking for work so
they are not showing up in the unemployment numbers. The number of 3.9
percent--again, the best since 2000--is all good news, but that is not
the real number. I say that with respect because the Bureau of Labor
Statistics does the best it can, but it can't include the people who
aren't trying to find work. Those people are outside of the workforce.
What the economists call this is a low labor force participation rate--
in other words, the low percentage of Americans who are even showing
up. That concerns me a lot because, one, obviously, it is hurting the
economy. You have this huge pool of workers out there. There are 8.5
million men between the ages of 25 and 55--able-bodied men--who are in
this category. They are unemployed, yes, but they are not even looking
for work so they are not showing up in these numbers. When you add
women and men together, it is millions of Americans. So we need them in
the economy now because it is important for these small businesses I am
talking to in Ohio who are looking for people.
Even more concerning to me is what is happening to these people and
to these families, because they are not getting the dignity and self-
respect that comes from work. They are not able to achieve whatever
their goal is in life, their piece of the American dream. They are
missing out. They are on the sidelines.
The 3.9 percent unemployment rate, by the way, is not a real number.
Why do I say that? Because if you go back to the normal labor force
participation rate--we are talking about people actually working in our
workforce in more normal levels--the unemployment number would be far
higher. How high would it be? Go back to the year before the great
recession when we had a more traditional workforce participation rate.
With that labor force participation rate attached to today's economy,
the unemployment number would not be 3.9 percent. It would be 8.6
percent.
If we were to talk about an 8.6 percent unemployment rate, we would
all be very concerned; wouldn't we? We should be very concerned because
that is the real number. We need a more concerted effort to get all of
those Americans back to work for all the right reasons.
So who are they? It is a complicated question. No. 1, there are
people who don't have the skills that meet the needs out there. So
today, in Ohio, if you go on OhioMeansJobs, our website, you will see
140,000 jobs being offered, and yet there are 250,000 people out of
work. You will see that a number of these jobs require a certain level
of skill.
People are looking for welders. People are looking for technology
expertise, including coding. They are looking for people in the
biosciences or the healthcare professions, where you have to have a
certain level of skill. What workers are finding in Ohio is that if
[[Page S2572]]
they don't have those skills, it is hard to get those jobs. So there is
a skills gap--there is no question about it--and we should be
addressing that.
In Congress we have a great opportunity to do that through some
relatively commonsense legislation. One measure is called the JOBS
Act--a great name. The JOBS Act says quite simply that if you are able
to get a Pell grant for college, shouldn't you also be able to get a
Pell grant for a short-term training program? This is because what
employers will tell you is that they don't need a 2-year training
program or somebody with a 4-year college degree. What they need is
someone willing to go through a training program to get the ability to
learn how to weld or the ability to learn how to code or even to go
through a commercial driver's license program. All these programs can
be accomplished in less than 15 weeks, and you can get people to work.
But guess what. You can't get a Pell grant for a course that is less
than 15 weeks.
So our goal with the JOBS Act is very simple. Let's level the playing
field. Let's give an opportunity to those young people who may not
choose to go to college, at least now, but who understand that those
jobs are out there. We are talking about good-paying jobs, making
$40,000, $50,000, $60,000 a year. They are waiting out there right now.
These jobs are open. Let's give them the ability--because they are low-
income families, and they can't afford these training programs--to take
advantage of Pell grants as they would if they chose to go to a 4-year
college or university or a 2-year college for a number of years.
Senator Kaine and I have introduced this legislation with a
bipartisan group. We think it is something we ought to do right away.
Who are these people? People with a skills gap. That is one specific
idea--just one of many that would get people the skills they need.
No. 2, there is something I would call the dependency trap. These are
people who are on a government dependency program and they are not
working. When they look at going to work they see two things. One, they
see a reduction in their benefits. That is pretty obvious. But second,
they see an increase in their taxes. Now the tax bill actually helps
here, because it actually reduces taxes for those at the bottom of the
economic ladder.
Specifically, I will state--because I asked the Joint Committee on
Taxation about this, and they gave me an official response--that 3
million Americans who currently have income tax liability based on last
year's Tax Code--in other words, the code that was changed at the end
of last year--no longer have any income tax liability. That is good
because it will help with this transition from welfare to work, because
although people may be losing those benefits, some people will not see
that cliff where they have a relatively high tax to pay. That is good,
but we could do more to assure that people who are willing to make that
step out of welfare and into work are not penalized by this tax cliff.
I think the dependency trap is also part of the issue for this
unprecedented level of people who are outside of the workforce
altogether, and we need to address it.
I think there should be more work requirement programs for able-
bodied Americans who are on these dependency programs. I think that
would help partly to give them the work experience to get the dignity
and self-respect that comes with work as they step into welfare-to-work
transition. So that certainly is another issue. So it is the skills
training and the dependency trap.
Another issue that I think is very clearly out there is that we have
a lot of people in America who are getting out of prison or jail. Some
of them have a record that makes it hard for them to get a job. Let's
be honest. We have record numbers of people behind bars. It started in
the 1980s, when we wanted to lock people up for lots of good reasons
because of the violence or serious crimes they were committing. But 95
percent of the people in prison are someday going to get out of prison.
When they do get out, we need to provide a better transition for them
to get to work. Why? Because right now more than half of those people
are back in the system within a couple of years. That makes no sense
for anybody, particularly for those who are subject to the crimes that
might be committed and to the taxpayers who are paying $35,000,
$40,000, or $45,000 a year, when you include incarceration, the
prosecution, and the additional costs that are associated with that.
So should we do more there? Yes. There is legislation supporting
that. I think it is called the Fair Chance Act. It says that when
somebody applies for a job with the Federal Government, for example,
they have to be allowed to go through the process even though they may
have a felony record. Why? Because you want to give them a fair shake,
not just take the resume and put it in the circular file and toss it
because you see a felony record. We have to give some of those folks a
chance.
I was at a great program in Ohio last week. It is called the Flying
HIGH welding school and the GROW Urban Farm. Their job is to teach ex-
offenders a skill. They teach people how to work. A lot of them have
not had a job before. Specifically, they teach them a welding skill
that is badly needed in Northeast Ohio right now.
Their placement record is unbelievable, and their recidivism rate is
so low. They are not only placing people into jobs, but they are
working with businesses in what is called a junior apprenticeship
program, where the workplace is actually working with the welding shop
to give people work experience.
They are keeping people from going back into the prison system. They
have a great record doing it. They got a loan and grant money from the
Federal Government, including the Department of Labor. It is a program
that is working very well to give people the ability to get a job and
to get out of the trap. In this case, a lot of them have felony
records, and they are able to take care of their families and be
productive citizens. There are very encouraging stories there.
There is the skills training, which we talked about, and the
dependency trap, which we talked about. For the people who are coming
out of prison at very high numbers now and who have this background, we
need to be sure that those people are getting engaged and getting into
work.
Let me tell you what I think is the No. 1 reason we have these
historic levels of people who are on the sidelines outside of work. It
will not surprise some of you because you are involved with this, like
my colleagues here in the Chamber, including the chairman of the
Governmental Affairs Committee, who has now arrived and has been very
involved in this. It is the opioid crisis.
The numbers are shocking of those people who are out of work
altogether. They are on the sidelines, not even trying to get into
work. They are people who would lead our unemployment numbers to be
really more like over 8.5 percent rather than 3.9 percent. They are
millions of Americans, over 8.5 million men between the ages of 25 and
55--able-bodied men. Of those people, based on two recent studies,
about half of them are taking pain medication on a daily basis. When
asked in one of the studies, it was found that two-thirds of them said
it was prescription medication.
What does that mean? That means that we have a huge problem in our
country of opioid addiction, and that is keeping people out of the
workforce altogether, tearing apart those families and causing crime in
our communities.
The No. 1 cause of crime in my State of Ohio is the opioid epidemic.
People are involved in things they would never dream of except for the
fact that they have this addiction. It is shoplifting, thievery, and
fraud. It is an issue that affects every part of our community. The
point I wish to make more strongly is that it is affecting our labor
market in a huge way.
One study by the Brookings Institution says that 47 percent of men
are taking pain medication on a daily basis. That is not being over-
reported--I will guarantee that--because of the stigma attached and the
legal consequences for some of these individuals. So I think that 47
percent has to be viewed as a relatively low number. But isn't that
shocking if it were 47 percent?
Another study by the Bureau of Labor Statistics, in the Department of
Labor, stated that 44 percent had taken pain medication the previous
day.
Now these numbers should be a wake-up call for us here in this
Chamber, and
[[Page S2573]]
it should be a wake-up call to everybody, including the business
community. As I go around my State, I am seeing firsthand what the Ohio
Chamber of Commerce reported this week: Three out of four businesses
want to add workers. Half of them want to add up to 25 workers, and
they can't find workers. You have millions of people at historic levels
who are outside the workforce altogether, leading to an unemployment
number that should be 8.5 percent, instead of 3.9 percent.
How do you get them back in? I think those three things we talked
about today are important, but, unfortunately, given the opioid
epidemic in my State of Ohio and spreading around the country, I think
this is probably the single largest problem that we face.
What are the solutions?
We have made major strides in the past year in this Chamber. We
passed the Comprehensive Addiction and Recovery Act. We passed the
Cures legislation. We are now working on additional legislation called
Comprehensive Addiction and Recovery Act 2.0.
We are doing things we have never done before in terms of funding,
recovery, treatment, prevention, and education, and we need to do more.
We have begun the process of turning the tide, I believe, by some of
this legislation.
We need to do more on the law enforcement side. We have legislation
called the STOP Act, which simply says that with regard to the most
difficult problem we now face in Ohio and around the country, which is
synthetic opioids--think fentanyl or carfentanil--let's at least stop
the Post Office for being a conduit for its coming into the country,
because that is what is happening.
All the studies show--including the study we just did in our
committee, spending a year studying this--that fentanyl is coming
through the Postal Service--mostly from China, by the way--and
poisoning our communities.
In Ohio, two-thirds of our deaths in Franklin County last year were
from fentanyl. Sixty percent of the deaths in the State of Ohio as a
whole the year before were from fentanyl. That is the biggest problem
we have right now.
Just as we were making progress on prescription drugs, then, heroin
comes along. Just as we were making progress on heroin, then, synthetic
heroin comes along. It is cheap and incredibly powerful. Three flakes
can kill you. It is being spread on other drugs, such as cocaine,
crystal meth, and marijuana, which last week law enforcement in Ohio
just confirmed. Can we do more? This is a big issue, but, yes, we are
starting to take some steps.
Where we perhaps have an opportunity that we are not taking advantage
of is to get the private sector and the business community to get
involved in this effort, because Washington can and should do more, but
the problem is not going to be solved in Washington. It is going to be
solved at the local level, in our communities, in our families, and,
ultimately, in our hearts. We can get the business community more
engaged, as an example, by pointing out statistics: If you are looking
for more workers, you are going to have to deal with this issue.
Many workers are not able to pass the drug test. So that is something
the business community does understand. In fact, I just left a group of
employers from Ohio about an hour and a half ago in my office, and I
asked them the same question I asked of employers in our State: How
many people can pass the drug test who show up? The answer was that
about 30 percent can pass. Another said: 50 percent are not passing.
These are different kinds of businesses. The second is a more heavily
manufacturing business. So there are people with lower incomes or lower
wages and, therefore, lower income individuals. But the point is that
it is a huge problem passing the drug test.
What I say to them, which is what I will say today, is that it is
bigger than that. There are millions of Americans not even showing up
to take the drug test. They are sidelined, and we have to deal with
this opioid epidemic.
So what should the business community do?
I have three ideas. One idea is to roll up your sleeves and get
involved in your community on projects that do work. There is one in
Columbus, OH, called the Maryhaven Addiction Stabilization Center. The
business community got engaged. They took $1 million from the CARA Act.
They leveraged that for foundation money. They have a place where they
have a great success rate getting people from overdosing and the
application of this miracle drug Narcan, which can reverse the effects
of the overdose, and then go into treatment. Unfortunately, in most
parts of the country, of the people who are revived by Narcan, the vast
majority go back into the same environment. Here they have been able to
figure out a way to have those who are overdosing get to a central
location where, right there, where the detox center is, there is a door
you walk through with 50 beds to get people into treatment. They claim
an 80-to-90-percent success rate in getting people into treatment. Do
they stay in treatment? Not all of them.
But that is the first big gap I see in the system. People fall out of
the system. Narcan is applied by the first responders. They do the best
they can, but it is not their job to get them into treatment. People go
back to their community and overdose again and again. Talk to your EMS
personnel and police officers. I assume they will tell you the same
thing they tell me.
The business community was involved in that thinking. Let's look at
this as a business process. How can we help to change this obvious
problem we have in the current way that people who overdose are treated
and taken care of? Every business ought to roll up its sleeves and get
involved in a creative, innovative project like that.
Second, over the years, back in the 1980s and into the 1990s, there
was significant private sector participation in a prevention and
education program. Now, locally in my State of Ohio, some businesses
are starting to think about how they can do this more effectively, I
believe, nationwide. Columbus is coming up with some very good ideas.
We need significant investment from the private sector in a national
messaging program, a prevention and education program. Back then, it
was TV ads. You may remember the ``Just Say No'' program and other
programs on prevention under President Reagan. Some of those ads were
very effective. Some of you may remember the ad ``This is your brain.
This is your brain on drugs,'' with fried eggs being cooked in a pan,
which is your brain on drugs. It is not going to be TV ads today. There
will be some TV. I hope it will be broadcast media in various ways. But
there will be a lot of online communication because that is where most
people are getting their information, particularly younger people. It
should be a concerted effort that is based on good research, good
science.
What is the prevention message that works out there? Part of the
prevention message that works with some young people I talked to is the
fact that all these street drugs are subject to the possibility of
fentanyl being included in them. Some people are taking drugs they
would never think were dangerous and yet becoming addicted through
fentanyl. So there is now a danger out there, with any street drug, of
ruining your life.
But there is a broader prevention message that we need private sector
help. This place, again, has authorized more money for this. There is
$10 million in CARA 2.0 for a prevention and education program. That is
good, but it is going to take more than that. The business community
and the private sector have a strong interest in this for so many
reasons. One, as we have talked about today, is to have the workforce
they say they desperately need.
There are other opportunities for the business community to get
involved. Walgreens recently took a step that I thought was very
important to limit the number of days on prescription drugs. Every
single business that has a healthcare program has an opportunity to be
involved in this and say: Let's limit prescriptions. Probably 8 out of
10 people who overdose from heroin or fentanyl today started with
prescription drugs in terms of the opioid that got them started with
their opioid addiction. There still is overprescribing with regard to
prescription drugs. Have we made some progress? Yes.
Our new legislation, by the way, CARA 2.0, has a 3-day limit on
prescription drugs for acute pain--not chronic pain but acute pain from
an accident, an injury, or a procedure that
[[Page S2574]]
you might have. We have that in there because the Centers for Disease
Control has new guidance out that shows that after the third day, the
chances of addiction rise significantly. For the vast majority of pain
associated with acute procedures, 3 days is plenty. In fact, for many
acute episodes, no opioids at all are needed as long as you use other
pain medication.
That is something every business that provides healthcare can do.
Every business that has a pharmacy can say: Let's limit those
prescriptions ourselves. They don't need a government program to do
that. There doesn't need to be a government edict or mandate to do
that. They can just do it.
I know this issue of the workforce is frustrating to a lot of
employers out there. I know that the benefits of a great tax bill are
creating more economic opportunities. A better regulatory environment
is providing real relief and is growing the economy in such positive
ways. Wages are starting to go up. We see economic growth numbers that
are very encouraging, showing that, in fact, this legislation is
creating more economic growth and therefore more revenue, higher
wages--the things we all hoped would happen. The investment is
happening. We are not going to be able to take advantage of all of that
if we don't have the workforce out there.
When we have millions of Americans--8.5 million men between 25 and
55, able-bodied, as an example--who are on the sidelines, not even
showing up to look for work, we are not going to be able to fulfill our
potential in this country for our economy and for them and for their
families to achieve their God-given purpose in life, to have the
dignity and self-respect that come from work.
We listed four very specific issues today, how we need to address
this issue of people who are sidelined, who are not in the workforce,
but the one that I think probably has the most impact is the final one,
and that is dealing with this opioid crisis. Unless and until we do
that, we will continue to see people fall between the cracks, and we
will see ourselves as a country not meet our potential.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. JOHNSON. Mr. President, I rise today to encourage all my Senate
colleagues to vote to confirm Michael Brennan as a judge on the U.S.
Court of Appeals for the Seventh Circuit. Michael Brennan has an
exemplary resume, including degrees from the University of Notre Dame
and Northwestern University School of Law, two Federal clerkships, work
as a prosecutor, and almost a decade on the State trial court bench
before returning to private practice. His accomplishments in practice
are noteworthy, but I would like to focus my remarks today on Mike's
commitment to public service and his reputation as a jurist.
Becoming a Seventh Circuit judge will not be a huge adjustment for
Mike because he has already spent 9 years as a judge. Anyone who spends
time with Mike will be struck not only by his intellect but by his
humility and strong commitment to justice and the rule of law. This
explains why the attorney general of Wisconsin and the State's public
defender--fierce adversaries in the courtroom--were able to come
together to write a letter enthusiastically supporting his nomination.
I have a sense those two don't often agree, but when it comes to who
they want deciding their cases, they both point to Mike.
By the way, that is just one of many letters that influential members
of the legal community in Wisconsin have written in support of Mike's
nomination. Included in the outpouring of support are letters from 2
former Federal defenders, 5 former U.S. attorneys, more than 40 judges,
and 15 former presidents of the State Bar of Wisconsin, Democrats and
Republicans--all joining together to support Michael Brennan's
confirmation.
One letter, signed by over two dozen Wisconsin judges from across the
political spectrum, sheds light on the kind of judge Mike has been and
will continue to be. It states:
To the litigants who appeared before him, Judge Brennan was
a wonderfully kind and patient judge with a humble demeanor.
Another letter attests that those same qualities have now made Judge
Brennan one of the most sought-after mediators and arbitrators in
Wisconsin. I am sure the litigants in the Seventh Circuit will have the
same experience and reaction to his hearing their cases.
In this climate that has hyperpoliticized the judiciary, I want to
bring my colleagues' attention to one very important paragraph in the
letter supporting Mike that was signed by Wisconsin judges. It reads:
Finally and significantly, Mike is not an ideologue, and he
has never worn his politics on his sleeve. You could ask any
number of lawyers who appeared before him, or his colleagues
who worked alongside of him, and they will confirm that Judge
Mike Brennan never let his personal, religious, or political
views influence his legal decision in any case. He is
brilliant, experienced, hard working, and fair-minded. Rest
assured, they don't come any better than Mike Brennan.
I agree with that assessment. We all know that type of bipartisan
praise isn't given; it is earned. In Mike's case, his longstanding
dedication to law and public service, coupled with his ability and
temperament, has won him the support of many Democrats and Republicans
in Wisconsin, and it has earned him the rating of unanimously ``well
qualified'' by the American Bar Association. Let me cite a few
statistics to prove the ABA rating is well deserved.
In Wisconsin, a party can ask for a different judge, and they can
make this request for any reason. Of the 9,000 cases Mike heard as a
judge, fewer than one-tenth of 1 percent--let me repeat that--fewer
than one-tenth of 1 percent of the litigants decided to go with another
judge. That is an extremely telling statistic about his even-keeled
temperament, his neutrality, and his legal skills.
Judge Brennan's low reversal rate also demonstrates his commitment to
following the law and his dedication to performing his job with
excellence. In 2005, out of 240 trial judges, Brennan was the most
affirmed judge in the entire State of Wisconsin. He was No. 1 out of
240. Of the 9,000 cases Mike heard as a judge, he was reversed in only
a handful of cases--fewer than 20--and in some of those, the Wisconsin
Supreme Court ended up reversing the court of appeals and reinstating
Brennan's original decision.
As final proof of the strong bipartisan support Michael Brennan
enjoys within Wisconsin's legal community, let me provide more
extensive quotes from a letter of support my office received from
former Milwaukee County district attorney E. Michael McCann. Mr. McCann
is a lifelong Democrat who served as the elected district attorney of
Milwaukee County for 37 years. He is recognized as one of the most
distinguished and accomplished district attorneys in the entire
country. This is what Mr. McCann had to say about Mike Brennan on first
working with Mike Brennan:
Key personnel in our office and I, in short order, became
impressed with Mr. Brennan's high energy, his mastery of the
law, his integrity, and his good judgment. As an assistant
district attorney, he was assigned to some very challenging
cases. Mr. Brennan continued to exhibit those qualities of
scholarship, integrity, and judgment which had initially
earned him our respect.
On Brennan's work as counsel for Wisconsin's truth-in-sentencing
committee, Mr. McCann said:
Mr. Brennan provided splendid research and appropriate
materials to the committee and with his gracious manner moved
the committee through its very substantial workload so
felicitously that the contentious disputes I and others had
expected simply did not occur.
On Brennan as a judge, McCann--whose office had lawyers before Judge
Brennan every day--said:
He was an excellent judge in all regards. He was properly
respectful of lawyers, witnesses, victims and of the rights
of defendants. His courtroom was a model of judicial decorum.
In jury trials and trials to the court and in the hearing of
motions, he was thoughtful, patient, knowledgeable, and
scholarly. He had mastery of the law and was cognizant of the
problems in the justice system. He was fair, unbiased, devoid
of prejudices and committed to justice. The comparatively
very few motions for change of judge filed in his court
quietly speaks eloquently of the perceptions of lawyers and
litigants that they were receiving justice from him.
Mr. McCann finished his letter by saying:
I urge you to confirm this nomination. Michael Brennan is
an honorable man of immense integrity, ideally qualified by
fine intellect, even disposition, extensive judicial
[[Page S2575]]
experience, a strong work ethic, sound judgment, good
character and a firm commitment to justice. He will be an
excellent appellate judge.
This strong endorsement is not from a Republican; it is from a
lifelong Democrat who is one of the two longest serving district
attorneys in any major city in America.
Based on this record, based on those endorsements, I am hopeful that
when my Senate colleagues fully study his background and see the same
virtues that garnered such ringing endorsements, their review will
produce a strong bipartisan vote to confirm Michael Brennan to serve as
judge on the U.S. Court of Appeals for the Seventh Circuit.
Mr. President, that concludes my prepared remarks about what a
quality judge and jurist Judge Brennan would be, but I just have to say
that I am very disappointed at the partisan nature of the cloture vote.
It was unfortunate that it was completely party line for somebody who,
as I have described, has bipartisan support within the Wisconsin legal
community.
The Judiciary Committee majority issued an excellent memorandum dated
November 2, 2017. I would like to discuss and address the primary
objection that led to that unfortunate party-line vote on cloture. I am
really hoping our colleagues on the other side of the aisle will take
this to heart and take the background--the bipartisan support from the
Wisconsin legal community--when they cast their final vote on
confirmation.
Mr. President, I ask unanimous consent to have printed in the Record
the Judiciary Committee's November 2, 2017, memorandum.
There being no objection, the material was ordered to be printed in
the Record, as follows:
To: Members of the News Media
From: Senate Judiciary Committee Majority
Date: November 2, 2017
Re: History and Context of the Blue Slip Courtesy
Highlights
The blue slip process is a courtesy extended by Committee
chairmen, not a binding Senate rule.
Since the blue slip courtesy was created in 1917, only two
chairmen (Sens. James Eastland and Patrick Leahy) had strict
policies requiring two positive blue slips from home-state
senators before the Judiciary Committee would consider a
nomination.
In 25 of the 36 years before Senator Grassley became
Chairman, chairmen have allowed hearings on nominees despite
negative or unreturned blue slips.
The same senators who changed the Senate rules to ignore
the views of 41 senators after evaluating a nominee now want
to enable a single senator to block a nomination before the
Committee can even review the nominee's background and
qualifications.
History of Blue Slip Courtesy
The blue slip represents an aspect of senatorial courtesy
premised on an understanding that home-state senators are in
a good position to provide insights into a nominee from their
home state. Throughout its 100-year history, Senate Judiciary
Committee chairmen have applied the courtesy differently.
However, a vast majority of chairmen have not required two
positive blue slips as a prerequisite for further
consideration by the Committee.
Only two Chairmen--Senators James Eastland and Patrick
Leahy--strictly required positive blue slips from both home-
state senators before proceeding on a nomination. Senators
Edward Kennedy, Strom Thurmond, Joseph Biden, and Orrin Hatch
adopted policies that were more consistent with pre-Eastland
policies, in which the lack of two positive blue slips did
not necessarily prevent action on a nomination. (Senator
Arlen Specter did not announce a blue slip policy during his
two-year tenure as Chairman.) But Senators Biden and Hatch
also emphasized the need for the White House to have engaged
in consultation with home-state senators before they would
allow a nomination to proceed without two positive blue
slips.
1917-1956--All 11 Chairmen--Committee could consider nominees with a
negative or unreturned blue slip
The blue slip was instituted during the 65th Congress by
the Chairman of the Senate Judiciary Committee to obtain the
opinions of senators on the nominees to federal courts
located in their home states. The policy of all 11 chairmen
for the next nearly forty years was that the return of a
negative blue slip did not preclude the Committee's further
consideration of a nominee. For example, in 1917, Senator
Thomas Hardwick of Georgia returned a negative blue slip on a
nominee for the Southern District of Georgia. The Committee
nevertheless reported the nominee negatively to the Senate,
where the nominee was rejected. In 1936, Senator Theodore
Bilbo of Mississippi objected to a Fifth Circuit nominee, but
the Committee nevertheless reported the nominee to the
Senate, where he was confirmed.
1956-1978--Chairman James O. Eastland--Allowed a negative or unreturned
blue slip to block a nominee
Chairman James O. Eastland changed the Committee's blue
slip policy so that a negative blue slip or the failure to
return a blue slip by one home-state senator was considered
an absolute veto of a nomination.
It is not precisely clear why Chairman Eastland adopted
this policy. But some scholars maintain that its purpose was
to empower federal courts in the South to resist
implementation of Brown v. Board of Education. Villanova Law
Professor Tuan Samahon explains, ``[w]hen segregationist
`Dixiecrat' Senator John Eastland chaired the Judiciary
Committee, he endowed the blue slip with veto power to, among
other things, keep Mississippi's federal judicial bench free
of sympathizers with Brown v. Board of Education.'' Because
the Supreme Court ``largely delegated the task of
implementing Brown to local federal trial judges . . . it
mattered a great deal who sat on federal district courts in
the segregated South.''
1979-1981--Chairman Edward M. Kennedy--Committee could consider
nominees with a negative or unreturned blue slip
The blue slip policy was again revised under Chairman
Edward M. Kennedy. During a Committee hearing in 1979, he
stated:
If the blue slip is not returned within a reasonable time,
rather than letting the nomination die I will place before
the committee a motion to determine whether it wishes to
proceed to a hearing on the nomination notwithstanding the
absence of the blue slip.
Chairman Kennedy did not articulate an express policy with
respect to negative blue slips, but there is at least one
example of the Committee moving on a nominee despite the
return of a negative blue slip. Senator Harry F. Byrd, Jr.
returned a negative blue slip for a Virginia judicial
nominee, but Senator Kennedy nevertheless held a hearing.
1981-1987--Chairman Strom Thurmond--Committee could consider nominees
with a negative or unreturned blue slip
Chairman Strom Thurmond announced that he would continue
Senator Kennedy's blue slip policy and clarified that he
would assume a blue slip that remained unreturned after seven
days meant there was no objection. Chairman Thurmond
proceeded on several nominees when senators returned negative
blue slips.
In 1981, the Committee held a hearing and moved John Shabaz
to the Senate despite a negative blue slip from Senator
William Proxmire of Wisconsin. Shabaz was confirmed to a
district court seat.
In 1982, the Committee held a hearing and moved John L.
Coffey to the Senate despite a negative blue slip from
Senator Proxmire. Coffey was confirmed to the Seventh
Circuit.
In 1983, the Committee held a hearing and reported the
nomination of John P. Vukasin, Jr. despite California Senator
Alan Cranston returning a negative blue slip. The Senate
ultimately confirmed Vukasin to a district court seat.
In 1985, the Committee held a hearing on the nomination of
Albert I. Moon, Jr. despite both Hawaii senators returning
negative blue slips.
1987-1995--Chairman Joseph R. Biden, Jr.--Committee could consider
nominees with a negative or unreturned blue slip
Chairman Biden articulated his blue slip policy in a letter
to President George H.W. Bush shortly after his inauguration:
The return of a negative blue slip will be a significant
factor to be weighed by the committee in its evaluation of a
judicial nominee, but it will not preclude consideration of
that nominee unless the Administration has not consulted with
both home state Senators prior to submitting the nomination
to the Senate.
Chairman Biden proceeded on the nomination of Bernard
Siegan to the Ninth Circuit despite Senator Cranston's return
of a negative blue slip. The Committee rejected Siegan's
nomination by an 8-6 vote. Likewise, Chairman Biden proceeded
on the nomination of Vaughn R. Walker despite Senator
Cranston's return of a negative blue slip. Although Chairman
Biden said that Cranston's opposition would ``affect Walker
negatively,'' the Committee held a hearing and reported
Walker to the Senate, where he was confirmed.
1995-June 5, 2001--Chairman Orrin Hatch--Committee could consider
nominees with a negative or unreturned blue slip
At the start of his chairmanship in 1995, Senator Hatch
sent a letter to White House Counsel Abner Mikva stating that
he would follow the policy articulated by Chairman Biden in
1989 that did not preclude review of nominees with negative
blue slips unless the Administration did not consult with
home-state senators. In 1997, Chairman Hatch sent another
letter to the White House that reaffirmed this policy and
articulated in more detail what meaningful consultation
should look like.
June 5, 2001-2003--Chairman Patrick Leahy--Allowed a negative or
unreturned blue slip to block a nominee
Senator Patrick Leahy became Chairman in June of 2001 after
Democrats took control of the chamber. He sent a letter to
White House Counsel Alberto Gonzalez essentially endorsing
Chairman Hatch's 1997 blue slip policy statement. But
Chairman Leahy made statements to the press indicating he
would
[[Page S2576]]
move forward only when he received two positive blue slips
from home-state senators. During the 107th Congress, seven
nominees (five circuit court and two district court nominees)
did not receive hearings because of blue slip issues. In
fact, Chairman Leahy went even further and stopped Committee
action with respect to two Sixth Circuit nominees for seats
in Ohio because the Democratic senators from Michigan
objected.
2003-2005--Chairman Orrin Hatch--Committee could consider nominees with
a negative or unreturned blue slip
The Republicans again took control of the Senate after the
2002 elections, and Senator Hatch again became Chairman of
the Judiciary Committee. Chairman Hatch reiterated that ``a
single negative blue slip from a nominee's home state won't
be enough to block a confirmation hearing.'' He said he would
give ``great weight to negative blue slips'' but would not
allow senators to hold up ``circuit nominees.''
Chairman Hatch held hearings and votes on five of the six
circuit court nominees who had blue slip issues. For example,
Chairman Hatch held a confirmation hearing for Sixth Circuit
nominee Henry W. Saad despite negative blue slips from
Michigan Senators Levin and Stabenow. The Committee voted to
send Saad to the Senate floor, where the Democrats
successfully filibustered him as well as each of the other
nominees. At the same time, Chairman Hatch did not move on
any district court nominees with blue slip issues.
2005-2007--Chairman Arlen Specter--Unclear whether a specific blue slip
policy was established
Senator Hatch stepped down as Chairman of the Judiciary
Committee at the beginning of the 109th Congress due to term
limits. Senator Arlen Specter became Chairman. It is not
clear what Chairman Specter's policy was with respect to blue
slips or if he even had a stated policy. At least one
reputable secondary source indicates that, under Chairman
Specter, a ``[n]egative blue slip killed a nomination for
district court judges, but not necessarily for circuit court
judges.''
2007-2015--Chairman Patrick Leahy--Allowed a negative or unreturned
blue slip to block a nominee
Senator Leahy again became Chairman of the Senate Judiciary
Committee in 2007. He announced that he was reinstituting his
policy that he would proceed on a nominee only when both
home-state senators returned positive blue slips. During the
110th Congress, Chairman Leahy did not proceed on sixteen of
President Bush's nominees (six circuit court and ten district
court nominees) who did not have the support of both home-
state senators.
Chairman Leahy continued this policy throughout his
chairmanship. In 2011, he explained that his blue slip policy
was meant to encourage consultation between the White House
and home-state senators. But he also warned that he expected
senators not to abuse the policy to delay filling vacancies.
When the Republicans were in the minority from 2009-2014,
Republican senators returned blue slips for 25 circuit court
nominees, withheld a blue slip for one nominee (for lack of
consultation), and rescinded positive blue slips for one
nominee after his hearing (this seat was ultimately filled by
another nominee of President Obama). (By contrast, Democratic
senators have withheld blue slips for three circuit court
nominees in the first ten months of the Trump
Administration.) The Republicans' restrained use of the blue
slip to block nominees meant that there was no need for
Chairman Leahy to deviate from his strict blue slip policy.
It is unclear what Chairman Leahy would have done had the
Republicans abused the blue slip process for President
Obama's Judicial nominees under Leahy's chairmanship.
Blue Slips and the End of the Filibuster
Since 1949, the Senate rules required a supermajority of
the Senate to end debate for lower court nominations. This
longstanding rule was the primary tool for senators in the
minority party opposite the president to block nominees.
Under this rule, senators who intended to oppose a nominee
could return a positive blue slip in Committee and then
filibuster the nominee on the Senate floor. For example,
during the Bush Administration, Senator Feinstein returned a
blue slip for Carolyn Kuhl, who was later reported out of the
Committee. Feinstein and other Democrats then filibustered
Kuhl's nomination on the Senate floor, preventing
confirmation. In instances in which the Committee reported
nominees with negative or unreturned blue slips, those
nominees could still be filibustered by the full Senate. For
example, in 2003-2004, the Democratic caucus, which was in
the minority at the time, filibustered several of George W.
Bush's nominees for federal court seats in Michigan for whom
Senators Levin and Stabenow had returned negative blue slips.
This practice helps explain why few nominees with blue slip
issues have been confirmed by the full Senate.
However, in 2013, Senate Democrats, then in the majority,
unilaterally abolished the rule, ending the ability of a
minority of senators to block confirmation of a lower court
nominee. The Democrats argued that a minority of senators
should not be empowered to block nominees who earned majority
support after the committee has reviewed a nominee's
background and qualifications. One of the leading proponents
of abolishing the filibuster, Senator Jeff Merkley of Oregon,
defended the move by saying.
``Advice and consent'' was never envisioned as a check that
involved a minority of the Senate being able to block a
presidential [nomination].
A blue slip policy allowing a single senator to block a
nominee from even receiving Committee consideration is a more
extreme example of a counter-majoritarian practice.
By eliminating the filibuster rule, the Democrats removed a
tool for the minority to block nominees with negative or
unreturned blue slips after the committee has evaluated
nominees' qualifications. They are now, because of their own
actions, in the position of having to rely on an ahistorical
interpretation of the blue slip courtesy at the Committee
level to attempt to defeat nominees they oppose on
ideological or political grounds before the full Committee
reviews a nominee.
Mitchel A. Sollenberger, The History of the Blue Slip in
the Senate Committee on the Judiciary, 1917-Present,
Congressional Research Service 8 (Oct. 22, 2003).
Mr. JOHNSON. Mr. President, rather than read this excellent
memorandum, which I would encourage my colleagues to do, let me give a
brief history, a little summary of what that memorandum states on the
history of the blue slip.
The blue-slip courtesy was created in 1917, so it has basically been
around for 101 years. Only 2 of 18 Judiciary Committee chairmen have
allowed the blue slip to become an absolute veto blocking consideration
and confirmation of judges. Those two chairmen were James Eastland
between 1956 and 1978--so that was for a 22-year period--and then
Senator Patrick Leahy for about 10 years. So of the 101 years that the
blue-slip courtesy has been around, for only 32 of those years has the
blue slip been used as an absolute veto by any Senator.
Looking further at the history--and I think it is relevant to a
confirmation for Wisconsin's seat on the Seventh Circuit--in 1981,
Wisconsin Senator William Proxmire returned a negative blue slip on
Judge John Shabaz, a nominee to be a district judge. The Senate took
that negative blue slip into consideration, but the committee still
held a hearing, and the Senate voted to confirm the judge as a district
judge. The next year, 1982, Senator Proxmire again returned a negative
blue slip on a circuit judge nominee, Judge John Coffey. Once again,
the committee took that blue slip into consideration but still held a
hearing, and the Senate confirmed Judge Coffey later that year.
It is apparent that a blue slip--historically and by precedent for
two-thirds of the 101 years in which the blue slip has been around--has
not been used as an absolute veto by one single Senator but basically
as advice, a particular Senator's view on a judge. I would suggest that
is exactly the way the blue slip should be handled in the future,
particularly in light of Senator Harry Reid, the majority leader in
2013, who employed the nuclear option and changed the Senate forever.
He changed the rules of the Senate as they relate to confirming
nominations with a mere majority. That, in effect, eviscerated the blue
slip's possibility of being used as a veto because then there was no
way a minority could block or actually support and confirm that blue
slip. Harry Reid's precedent of changing the rules of the Senate with
just 51 votes--changing the rules so that only a majority vote would
confirm a judge--has pretty well rendered the blue slip moot from the
standpoint of being able to block a judge.
The blue slip, from my standpoint, should be used primarily as the
advice and consent of one Senator expressing opinion on a judge from
their State. That is just a general description of the history of the
blue slip.
I would like to address specifically the comments made around this
particular circuit court vacancy and my role in it because I think
there has been a lot of distortion. Let me correct the record. It is
true that this circuit court vacancy is the longest in history. It has
dragged on for a variety of reasons, but let me give you the history.
On January 17, 2010, Judge Terence Evans retired from the Seventh
Circuit. President Obama was in office, and Wisconsin had two
Democratic Senators, Senator Kohl and Senator Feingold. Five days
later, on January 22, those two Senators, Kohl and Feingold,
recommended four candidates to President Obama.
On July 14, 2010, President Obama nominated Victoria Nourse for that
[[Page S2577]]
Seventh Circuit slot. Ms. Nourse was not really a member of the
Wisconsin legal community. She was an adjunct professor temporarily in
Wisconsin. There was some tie there, but basically she had no other
ties to Wisconsin. She was actually a former staffer and would become a
future staffer of Vice President Biden.
On November 2, 2010, Wisconsin held an election for the Senate. To
Senator Feingold's surprise, he was retired; I replaced him. There was
no action taken from the date of July 14, when President Obama had
nominated Victoria Nourse. In a Senate with a majority of Democrats and
a Democratic President, there was no action taken prior to Congress
expiring--the 111th Congress. So that nomination expired.
On January 3, 2011, the 112th Congress was sworn in. Within a few
days, I received two blue slips on judicial nominations--one for a
district judge and Victoria Nourse's nomination for the Seventh Circuit
judgeship. I had just been elected. More than a million Wisconsinites
voted for me. I had no role whatsoever in the nomination of this judge.
So I decided not to return the blue slip.
This was during a time period when Chairman Leahy was using the blue
slip as an absolute veto. It was still the precedent in the Senate that
it would require 60 votes to confirm any judge. Any minority member of
the Senate who objected to a judicial nomination would be backed up by
his party, and the nomination could be thwarted.
I continued to work with Senator Kohl, trying to become involved in
the nomination of someone who I felt would be more appropriate for that
seat--someone who actually had a connection to the Wisconsin community.
Unfortunately, Senator Kohl did not have a great deal of interest in
working with me, so the entire 112th Congress passed, and the seat
remained vacant.
Let me remind you that through the entire year of 2010, the Seventh
Circuit seat from Wisconsin was vacant when we had two Democratic
Senators and President Obama. They could have nominated and confirmed
someone any time during 2010. I was given no input into this
nomination. The only thing I could really do was withhold the blue slip
and work with Wisconsin's Democratic Senator to come up with a nominee
who would be a good consensus choice.
Senator Kohl decided not to run for reelection. Senator Tammy Baldwin
was elected in November 2012 and began her term in 2013. Because I felt
it was so important that the judicial nominations be made and that we
have a process to work on a bipartisan basis, I recommended a
commission--a compact with Senator Baldwin, which she agreed to. I
would have three commissioners, and she would have three commissioners
of people tied to the Wisconsin legal community--people dedicated to
filling those judicial vacancies. The beauty of it was that it forced a
consensus pick. We would forward to the President only someone who
would receive support from five out of the six commissioners. It worked
well.
The commission was set up. We nominated and confirmed district court
judges for the Eastern District, Pam Pepper, and the Western District,
James Peterson.
It would be a little more difficult to fill the seat on the Seventh
Circuit. Our commission started working on that. One part of our
compact required that four recommendations for judges be sent to the
President. Because the applicant pool was limited, only two received
the requisite five out of six votes. During the discussion of what we
should do--because we hadn't fulfilled the terms of the compact that
required four judges--I agreed to submit just the two. For whatever
reason, Senator Baldwin decided to forward to President Obama all eight
applicants. She breached the compact. She violated the confidentiality
of the process because part of the problem was that some of those
applicants received zero to one or two votes.
In the end, President Obama nominated Don Schott. He is a fine man. I
have no problem with who Mr. Schott is, but let's be honest, he is
probably not my first pick for a judge on the Seventh Circuit. However,
because the commission had nominated him and agreed on it, I returned
the blue slip.
Unfortunately, because of the politicization of the commission by
Senator Baldwin, the Senate Judiciary did not act on that nomination,
nor did the Senate, and that nomination expired, which brings us to the
114th Congress and Judge Brennan's nomination.
Again, I have spent probably about 10 minutes reading in detail the
strong bipartisan support for Michael Brennan. There is no reason
whatsoever that he should not receive a strong bipartisan vote for
confirmation. I have described what happened specifically. I described
the general precedent of the use of blue slips--not to be used as a
veto but simply to indicate a Senator's opinion of a particular judge
nominated from their State. It should not be used for a veto.
I urge all my Senate colleagues to provide a strong bipartisan vote
of support for a fine man, a fine jurist, and someone who will make a
wonderful judge on the Seventh Circuit Court of Appeals.
With that, I yield the floor.
The PRESIDING OFFICER (Mr. Toomey). The Senator from Missouri.
Mr. BLUNT. Mr. President, I have just seen the rarest of occurrences
in the so-called debate on these nominees on the floor. We actually had
an explanation of the nominee we would be voting on.
The fact that the Senate's time is taken in a way that it never has
been before to process the President's nominations is outrageous. There
is a view that we need more time to think about the nominee. There is
plenty of time to do that. It is called the committee process. It is
called a vetting process that also may very well take too long now, but
there is plenty of time for these circuit court nominees we are voting
on this week to be vetted. There is plenty of time to ask them
questions. There is plenty of time to look into their backgrounds.
The only reason, in my view, that we take the time we are taking to
do six votes on six judges in a week--that is six 15-minute votes. If
we were efficient enough to do that, it would take an hour and half to
vote on these six judges, and the final vote on none of them would be
different than taking 5 days.
So why do we take 5 days? We take 5 days because that means we can't
get to anything else. That means the President's ability to populate
the government, as people elected him to do, is diminished. It also
eliminates the time we have to do the other work the Senate is designed
to do.
The Senate is in, as the majority leader likes to describe it, the
personnel business, but that is not supposed to be the only business of
the Senate. I think we have now had over 90 of these cloture motions on
nominees that the President has made. What does that mean? In the first
2 years of each of the previous six administrations, there were a total
of 24 cloture motions--24 times in six Presidencies in 2 years did we
do what we are doing right now. That is an average of 4 times--we are
certainly going to be up to 104 times well before the end of 2 years--
the floor was abused in this way, an average of 4 times there was
reason to have a debate.
I haven't looked back at those debates. I guess I should. Wouldn't it
be shocking if those debates were actual debates? Wouldn't it be
stunning if all four of those times in each of those six Presidencies,
when the cloture motion was required and using the maximum time
available was insisted on--or at least a substantial portion of the
maximum time available was insisted on--wouldn't it be something if we
looked back and found that there really was a reason to debate those
nominees?
There might have been someone who was rejected, as John Tower was to
be Secretary of Defense. If you were going to reject one of your
colleagues in the Senate, that was probably a pretty debatable moment,
and maybe it very well justified 20 or 30 hours, the maximum that could
be insisted on. Now that is initially insisted on for everyone. Some of
them take that time. Many of them take a portion of that time.
What is really lost is the other work that could happen in the course
of the week. That is why in 2013 and 2014, when Democrats were in
control of the Senate, a bipartisan group of Senators got together and
said: Let's eliminate a lot of these confirmations that aren't worthy
of Senate time. Let's take people who, when there were only one or two
of them in the whole government
[[Page S2578]]
in 1882, might have been worthy of a Senate debate and Senate vote--
let's take them off the list now that there are 210 of them to be
confirmed. Let's take them off the list. Of course, neither of those
numbers are numbers from the debate, but that is what we did.
Then let's put a whole other group on the list so that if no one
demands a vote, they can be confirmed if the committee recommends they
should be confirmed without a vote. We tried to eliminate the process
so that we could focus in on that rare occasion when there really
should be a debate on the Senate floor about these nominees.
At the end of this week, I will look to see how many minutes were
actually taken talking about these six nominees. It doesn't mean that
the six nominees shouldn't be talked about. It doesn't mean, when you
are going to put someone on a court of appeals for life, that the
Congress shouldn't look carefully at them, but that has already
happened. In some cases, it happened months ago, and in other cases,
weeks ago. That has already happened. This is just a matter of whether
we are going to vote or not. No votes will be persuaded by running the
clock. No votes will be changed by running the clock. Of course, the
power to put people on a Federal bench for life is an important power
given in the Constitution to the President for the Supreme Court and
such other courts as Congress may determine the country needs. It is
not something to be taken lightly, but it is also not something to be
abused.
It is not a process where the protection you might use 4 times in 2
years is suddenly used 90 times in 15 months. Something is wrong when
that has happened to the process.
At the end of the day, the Senate is a place where the minority
deserves to be heard. The Senate is a place where the rights of the
minority--it makes it a unique legislative body, just like electing
only one-third of the Senate every 2 years makes it a unique
legislative body. It takes a long time to change the entire Senate. It
has always been one of the purposes of the Senate is to be sure the
minority had a chance to be heard, and the minority is always able to
hold on to that right until the minority decides they are going to
abuse that right.
When a right becomes an entitled, ``Oh, it says we can have up to 30
hours of debate so we are going to insist on it every single time,''
that is when that right is in jeopardy. That is when you run the risk
of losing that right.