[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  The latest one of these regulations that were repealed was just last 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

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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

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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.