[Congressional Record Volume 164, Number 76 (Thursday, May 10, 2018)]
[Senate]
[Pages S2601-S2603]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                        Prescription Drug Prices

  Madam President, finally, on prescription drugs, tomorrow the 
President will give a speech on another important topic in American 
healthcare: the high cost of prescription drug prices. He is right to 
give that speech. Americans suffer from the highest prescription drug 
costs in the developed world. On average, Americans pay over $850 a 
year on prescription drugs, compared to an average of $400 across 19 
other industrialized nations. Remember, that is on average.
  If you are sick and need one specific new drug on the market for your 
condition, you could be paying in the tens of thousands of dollars per 
month for that drug. Sometimes that new drug isn't much different from 
one already on the market and hasn't been proven to be more effective. 
Sometimes pharmaceutical companies intentionally corner the market on 
the drug and raise prices by absurd percentages. We saw that with Mr. 
Shkreli, and there is no cop on the beat to stop the Shkrelis of the 
world. It is outrageous, venal, and hurts seniors, the infirm, and 
regular middle-class families every day.
  We ought to do something about it. That is why Democrats make 
lowering the cost of prescription drugs a central pillar of our Better 
Deal agenda. We propose that there should be greater transparency from 
companies when they are proposing to increase the prices of their 
drugs. We propose allowing the government to negotiate for lower drug 
prices and to establish an office that would go after the most 
egregious companies and actors who are raising prices on drugs for no 
reason--price-gouging enforcement. If we were in the majority, these 
policies would be our top priorities.
  Hopefully, President Trump will get on board. In fact, I agree with a 
lot of what President Trump has already said on the issue. He said that 
the drug companies are ``getting away with murder'' and in the State of 
the Union Address he said:

       One of my greatest priorities is to reduce the price of 
     prescription drugs. Prices will come down.

  President Trump's rhetoric focuses on a problem that we have to 
address, and we hope sincerely that tomorrow he will follow through on 
that rhetoric with a tough and detailed plan to achieve what we both 
wish to achieve. But so far, President Trump has taken little action to 
downgrade the price of prescription drugs. He installed a former top 
executive of a pharmaceutical company, Alex Azar, to be the Secretary 
of Health and Human Services. Now, 6 months before the election, 
without consulting Democrats or Republicans on the Hill, he will give a 
speech tomorrow on his plan to bring down the cost of prescription 
drugs.
  We welcome the newfound attention. We sincerely hope the President 
outlines a clear, strong plan in detail

[[Page S2602]]

about how to tackle this incredible problem. Another ``all hat and no 
cattle'' speech will not get the job done. More rhetoric, more half 
measures will not move the needle.
  We need to do something bold and effective to bring down the 
outrageous cost of prescription drugs, and we Democrats have a good, 
strong proposal. We hope he will embrace it.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Madam President, let me just say, as a personal 
matter, this is the first time I have seen you presiding in the Senate. 
It is a nice sight, and I welcome you.
  I am here today to talk about the eroding and perhaps even vanishing 
tradition that we refer to in the Senate as the blue slip. People don't 
necessarily know what a blue slip is, but there has been a tradition 
with respect to U.S. attorneys, local U.S. district judges, U.S. 
marshals, and the seats on the U.S. circuit courts of appeals that are 
by tradition associated with a particular State. With respect to all of 
those nominations, there has been a tradition that they require the 
approval of the home State Senators. The mechanism for that approval is 
called a blue slip, and there actually is a blue slip.
  The tradition in the Senate Judiciary Committee that was very 
rigorously enforced most recently by Chairman Leahy, when he was 
chairman, is that a nominee for one of those offices does not get a 
hearing and cannot proceed without the blue slip of the home State 
Senators. I commend the ranking member on the Judiciary Committee, 
Senator Dianne Feinstein, on the great work she has done on the 
minority report she led that describes the history of the blue slip and 
the extent to which what we are doing today is a break with that 
tradition.
  What provokes this is the nomination of Michael Brennan to proceed 
without a blue slip having been returned by his home State Senator, Ms. 
Baldwin. Obviously this signals a disrespect to the local Senators with 
respect to the office for which they heretofore had a blue slip. It 
also represents a very significant shift of power in Washington from 
this body, from this Chamber, to the Oval Office, which is a little bit 
unusual. Politics come and politics go, but it is rare for a political 
body like the Senate to willingly and willfully emasculate itself to 
some degree and transfer all of that power down to the executive branch 
and to the Oval Office. I think there is a quite significant price to 
be paid for this choice.
  Representing Rhode Island, we are on the First Circuit Court of 
Appeals. There is one seat--we are not a very big State; we have just 
one seat--on the U.S. Court of Appeals for the First Circuit, more 
properly, that is denominated as the Rhode Island seat. It is now 
occupied by a terrific judge, the Honorable Rogeriee Thompson, whom 
Senator Reed and I had a very significant role in getting appointed to 
that position. Should she step down, that vacancy would ordinarily be 
seen as the Rhode Island seat on the U.S. Court of Appeals for the 
First Circuit, and we would expect that we would be consulted and that 
our blue slips would be honored with respect to a nominee the 
President--whichever President--wished to push through.
  Without divulging too many confidences, I will say that there was 
some considerable back-and-forth with the Obama administration in order 
for Senator Reed and me to get the assurances we needed that judges we 
approved of would be appointed.
  What I can't figure out is how the tradition of circuit courts of 
appeals seats having an affiliation with a particular State survives 
this decision to stop honoring blue slips for circuit courts of 
appeals. Every single Senator in this Chamber represents a State that 
lays claim to a certain seat--or a certain number of seats for the big 
States--on our circuit courts of appeals, but the only thing that 
undergirds that is the blue slip. The notion that there is a Rhode 
Island seat on the First Circuit or a Texas seat on the Fifth Circuit 
or New York seats on the Second Circuit or California seats on the 
Ninth Circuit or an Alaska seat on the Ninth Circuit doesn't exist in 
the Constitution. It doesn't exist in law. It exists by virtue of 
traditions of the Senate, and the only tool that gives that tradition 
any teeth at all is the blue slip.

  So what happens if we, on a categorical basis, decide that circuit 
court of appeals nominees are no longer subject to the home State blue 
slip?
  (Mr. SULLIVAN assumed the Chair.)
  At that point, there is no method for assuring that there is any home 
State affiliation for that seat whatsoever. A future President could 
choose to put a New York judge, a Tennessee judge, or an Alaska judge 
into the so-called Rhode Island seat on the First Circuit. Contrarily, 
if a so-called Alaska seat on the Ninth Circuit opened up, a future 
President could put a Rhode Islander into that seat because the only 
mechanism preventing that from happening is the fact that we honor each 
other's blue slip. That is the only mechanism that protects this long 
tradition that the seats on the U.S. circuit courts of appeals are 
associated with particular home States.
  So in this mad rush to get circuit judges confirmed--a rush that has 
completely overwhelmed this body and that has just completely stampeded 
the tradition of the blue slip--one of the prices that we will pay is 
that there is no longer any mechanism to enforce that any seat on any 
circuit court of appeals in this country has any association with any 
State.
  I have been joined by my distinguished colleague from Massachusetts 
on the floor. Massachusetts is a bigger State than Rhode Island. 
Massachusetts has several seats that the Massachusetts delegation would 
claim as the Massachusetts seats on the First Circuit if and when an 
opening should occur in those seats. But with no blue slip, how does 
that stay a Massachusetts seat? How do we have any voice in this 
whatsoever if there is no blue slip?
  We could easily end up in a situation in which all of the circuit 
courts of appeals have essentially been nationalized. I think there are 
a great number of lawyers who would more than happily pull up stakes 
and travel to another location. The distinguished Presiding Officer 
from Alaska and I have had conversations about the enormous reach of 
the Ninth Circuit. That already takes quite a lot of traveling. For a 
lawyer to have the distinction of being able to be a U.S. court of 
appeals judge--let's say that I have to pull up stakes and move from 
Texas to Rhode Island--there are plenty of lawyers who would do that.
  I urge my colleagues--as we undo this blue slip--to think about where 
this road ends, because a few years from now, if there is a President 
of a different party and there are circuit court nominees who come up, 
our Republican colleagues who have supported the abandonment of the 
blue slip will have no objection and no complaint--no legitimate 
objection and no legitimate complaint--if seats that are nominally the 
Alaska seat, the Massachusetts seat, the Rhode Island seat on the 
circuit get simply given to somebody else. There is no mechanism to 
prevent that if we don't honor the blue slip. That entire tradition 
falls right behind the collapse of the blue slip for the circuit courts 
of appeals.
  Of course, it is a massive transfer of power from this body to the 
Oval Office, which is obviously fine with our Republican friends now, 
given the identity of the person who is in the Oval Office, but that is 
not forever. Changes like this are forever. So we need to think this 
through.
  I will close by saying this. Why is it that we would behave in such a 
peculiar way with respect to the institution that we love and serve, as 
to basically disable ourselves with respect to local control over 
circuit court of appeals nominees and transfer that entire power down 
to the Oval Office? Why would we do that? That is peculiar behavior.
  When you look to the heavens and you see peculiar behavior from 
heavenly bodies, you look for an explanation. One of the reasons we 
know that dark stars and black holes exist is because they create 
peculiar behavior

[[Page S2603]]

in the heavenly bodies around them. What might be the dark star that is 
causing the peculiar behavior of the Senate in willfully disabling its 
own power and authority with respect to nominations for circuit courts 
of appeals? What could explain the otherwise inexplicable dismantling 
of our own tradition and our own authority in this area?
  I submit that there is a $17.9 million donation that was brought to 
bear on the nomination of Judge Garland--the obstruction of that 
nomination--and the subsequent nomination of Judge Gorsuch from one 
donor. One anonymous donor put nearly $18 million into an effort to 
manipulate that process. That is not what has gone wrong with the 
Courts of Appeals, but it is a signal of powerful political interests 
out there seeking control over judicial nominees. For what other reason 
would an individual donor anonymously spend nearly $18 million? That is 
just one donor. There is plenty of anonymous money flowing into 
operations that seek to get specific types of people into robes.
  My concern is that it is the power of special interests that is the 
dark star that is causing the Senate to undergo this deformation of its 
traditions--this relinquishment of our individual power as Senators and 
our group power as a branch of government.
  It is special interest power that is driving this. There are special 
interests, such as the gun lobby, that would like to be able to go into 
a court and know that they have a judge who is predisposed in their 
favor. There are special interests, such as anti-choice groups, that 
would like to go into court and know that they have a judge who is 
predisposed in their favor. The actual very dark money forces that are 
meddling in our politics are desperate to show up in court when the 
question of dark money is litigated and have a judge who they know is 
predisposed in their favor.
  There are business interests that seek to disable, diminish, and 
hobble courts and juries, and provide people home cooking arbitration 
alternatives to their constitutional right to go to court and to face a 
jury of their peers. They are very interested in seeing to it that when 
they appear in court on those issues, they have a judge who they 
believe is predisposed in their interests.
  I cannot think of another reason why the Senate, as an institution, 
after all this time, would unilaterally disable itself, would 
unilaterally emasculate itself with respect to the role of the 
selection of our circuit court of appeals nominees.
  I think this is a day that we will come to regret because that first 
step to get Judge Brennan confirmed may seem very attractive and 
appealing to a great many of my colleagues, but once you have crossed 
that Rubicon with that first step, there is no path that I can see that 
protects the right of individual Senators to assert an interest in a 
specific seat or a number of seats on the circuit courts of appeals.
  I think we have more or less taken an irrevocable step toward 
nationalizing the appointments of all circuit court of appeals 
nominees, and we will look back on this day and say: What fools we 
were.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Mr. President, I want to start by thanking my colleague 
from Rhode Island for both his powerful analysis of the influence of 
money on the selection of our judicial nominees and also for his point 
about the blue slip and the implications of what this means for an 
independent judiciary.
  He has been a strong voice on this for a long time, and I think his 
speech on it was extraordinary and something that I hope everyone 
listens to and pays attention to.
  We are facing an unprecedented attack on our courts. This week, once 
again, Senator McConnell has scheduled confirmation votes on a slate of 
extremist judicial court nominees--nominees who have demonstrated that 
they are not committed to the principles of equal justice under law. In 
this administration, Senate Republicans have been working at breakneck 
speed to jam our courts with pro-corporate, narrowminded elitists who 
will tilt the scales of justice in favor of the rich and powerful and 
against everyone else. They are willing to bend and break and change 
every rule in the book to do it.
  Their latest strategy is to ignore the blue slip. For over a century, 
home-State Senators have played a critical role in the judicial 
confirmation process by using something called a blue slip to determine 
whether a judicial nomination should move forward. The Senate Judiciary 
Committee has historically refused to move forward on a nomination 
without a blue slip from both home-State Senators. In fact, during the 
Obama administration, Senate Republicans insisted on maintaining that 
rule, refusing to move forward on any judicial nominee who did not 
secure blue slips from both home State Senators. They even stretched 
the rule beyond all reasonable bounds to stop fairminded, mainstream 
nominees from being confirmed. But now that Donald Trump is in the 
White House, Republicans have changed their tune. In order to force 
extremist nominees onto our courts, they are willing to toss the blue 
slip right out the window.
  Michael Brennan, President Trump's nominee to serve on the Seventh 
Circuit Court of Appeals, is just the latest example. Even though Mr. 
Brennan did not receive a blue slip from both home-State Senators, 
Senate Republicans moved forward on his nomination. Perhaps the 
ultimate irony is that when President Obama nominated another candidate 
to fill this very same seat, Mr. Brennan penned a strong defense of 
Senator Johnson's decision to withhold his blue slip. Now that the shoe 
is on the other foot, those principles have magically disappeared.
  Let's be clear here. There are plenty of reasons for any Senator to 
be concerned about Mr. Brennan's fitness to serve on the Federal bench. 
I will just mention a few.
  Mr. Brennan has mocked millions of hard-working women who have faced 
sexism and obstacles to advancement.
  He has dismissed the idea of a glass ceiling.
  Mr. Brennan has defended a Wisconsin law that added unnecessary 
barriers to women who were seeking access to abortion, even in the case 
of rape or incest.
  Mr. Brennan supports criminal sentencing policies that slap low-level 
offenders with long jail sentences and exacerbate the problem of mass 
incarceration in America.
  And it gets worse. Mr. Brennan believes that it is A-OK for judges to 
refuse to follow binding court precedent when the judge just thinks it 
is incorrect. Now, that is extreme.
  But Senate Republicans have shown that they just don't care. They are 
willing to do whatever it takes to hand over our courts to moneyed 
interests.