[Congressional Record Volume 164, Number 120 (Tuesday, July 17, 2018)]
[Senate]
[Pages S5010-S5026]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          BLUE-SLIP TRADITION

  Mr. MERKLEY. Mr. President, the nomination of Ryan Wesley Bounds is 
just the latest in more than a year of attacks that have been based on 
a strategy of converting the United States from a nation that is based 
and organized on and that fights for the principle of ``we the people'' 
into one that bows to the powerful and the privileged.
  His nomination has already strained and degraded the Senate's blue-
slip tradition as our colleagues rush to pack our courts with extremist 
judges to advance that vision--not of judges who call balls and strikes 
but of judicial activists who want to rewrite the Constitution to put 
down workers, to put down healthcare rights, to lay out and tear down 
consumer rights and women's rights--so many opportunities and 
empowerments diminished in the favor of the privileged and the 
powerful. That is what is going on with the packing of the Court.
  This deed of putting forward this nomination on the floor tonight 
changes a 100-year tradition of comity in the U.S. Senate and the 
recognition that the home State Senators have something important to 
say about the integrity of the individual who is being put forward. At 
stake in this confirmation is the Senate's advice-and-consent 
responsibility as applied through the blue-slip tradition--a tradition 
that incentivizes consultation and bipartisan cooperation. When you 
take away the blue-slip tradition, you diminish the incentive for 
consultation and cooperation. This tradition has existed since 1917. It 
was 101 years ago when Senator Thomas Hardwick objected to President 
Wilson's district court nominee, and he wrote his objection on a blue 
slip of paper--thus, the name.
  No judge until now--101 years later--has ever been confirmed by this 
body having not received a single blue slip from a home State Senator. 
Until this administration, just five had been confirmed without both 
blue slips having been returned. This tradition has been honored by 
both parties. It has been a bipartisan tradition. When the Democrats 
have been in power, the Republicans have wanted it to be honored. When 
Republicans have been in power, the Republicans have honored it. In 
fact, in 2009, at the start of President Obama's term when the 
Democrats controlled both the Executive Office and this Chamber, my 
Republican colleagues wrote a letter. They wrote that they expected the 
blue-slip tradition to be observed evenhandedly and regardless of party 
affiliation. It was not just that letter from which we have heard over 
time. We have heard from Chairman Grassley.
  Chairman Grassley wrote clearly about this:

       For nearly a century, the chairman of the Senate Judiciary 
     Committee has brought nominees up for committee consideration 
     only after both home State Senators have signed and returned 
     what is known as a ``blue slip.'' This tradition is designed 
     to encourage outstanding nominees and consensus. . . . I 
     appreciate the value of the blue-slip process and also intend 
     to honor it.

  He intended to honor it, he wrote, in 2015. Yet putting this 
nomination through the committee dishonored the tradition. Bringing it 
to the floor dishonors this tradition. It doesn't honor it because it 
violates it.
  During the time that President Obama was in office, the Republicans 
used the blue slips to block 18 nominees. The nominees never progressed 
without the return of two of those slips.
  We can turn back to the former chair of the Judiciary Committee, 
Orrin Hatch, who wrote in The Hill:

       Weakening or eliminating the blue slip process would sweep 
     aside the last remaining check on the president's judicial 
     appointment power. Anyone serious about the Senate's 
     constitutional ``advice and consent'' role knows how 
     disastrous such a move would be.

  The current chair and the former chair were pretty clear, and now 
they intend to tear it down--a moment of opportunity to sacrifice a 
century of comity and consultation.
  The clear factor is one principle when in the minority and tearing 
down that principle when in the majority. It is one principle for 
Obama's nominees and a different principle for Trump's nominees. Where 
has all of the honor and principle gone in this Chamber? There were no 
hearings for Obama's nominees without blue slips. There have been 
hearings for four of Trump's nominees without blue slips.
  Now, the majority leader helped to drive this change. He said: 
Republicans now will treat a blue slip ``as simply notification of how 
you're going to vote.'' That is what he said. It is simply 
notification. So it is up to the chair of the committee, the former 
chair of the Judiciary Committee, and all of

[[Page S5011]]

the members who signed that 2009 letter saying how important this was 
to this Chamber to stand up and actually exhibit some trace of 
consistency with the position put forward just a short time ago.
  So now he is coming to the floor for a vote. This is a nominee on 
whom there was no consultation. We had a committee out in Oregon, set 
up by my senior colleague, Senator Wyden. We told the White House: Wait 
to make your choice until after the committee submits its list. This is 
the Oregon bipartisan--bipartisan--judicial selection committee. But 
the President was in such a hurry to pack the court that he didn't wait 
for consultation.
  I happen to have heard a Member across the aisle saying: Well, the 
White House said they consulted. Well, let me tell you that they didn't 
consult. They didn't ask me. They didn't ask Senator Wyden.
  What does that mean for the White House? Is it the case that 
everything we have heard in the last year and a half is accurate out of 
the White House, because I have heard virtually every Member across the 
aisle say otherwise.
  So here you have the two of us having asked the White House to wait 
so they can get some consultation and get some advice from Oregon, but 
they didn't wait. That was certainly the wrong thing to do.
  At the end of 2017, the nominations go back, and the White House has 
to resubmit them. We said: Here is another chance for you to honor the 
concept of consultation. And what happened? The White House did it 
again. They didn't care about consultation.
  If we hear from our colleagues tonight, this week, and in the days to 
come that they are going to push this nomination forward, don't expect 
consultation from any future President when you happen to be in the 
minority because that is what you are striking down--a tradition that 
encouraged, expected, supported, and promoted consultation.
  Have no doubt that this isn't an ordinary nominee. When asked about 
anything else in his record that they should know might be 
inflammatory, this nominee didn't breathe a word about key writings in 
his past. When this nominee was asked about his views on diversity and 
how they might have differed from before, he didn't breathe a word 
about his former views--and maybe they are his present views.
  What did this nominee say on diversity? He said students who work 
``to promote diversity . . . contribute more to restricting 
consciousness, aggravating intolerance, and pigeonholing cultural 
identities than many a Nazi bookburning.'' That is his attack on 
diversity, but that isn't all he said. He said diversity training is a 
``pestilence'' that ``stalks us.''
  That isn't the only topic that he weighed in on in such a way that is 
way out of the mainstream and exhibiting massive intolerance for 
diversity here in the United States, where we come from every corner of 
the world. When it came to the process of a campus holding accountable 
young men involved in sexual harassment, young men involved in rape, he 
also said: ``There is nothing really inherently wrong with the 
university failing to punish an alleged rapist.''
  I see that my colleague is here to speak, and I appreciate his coming 
down. He is coming down to speak on the principle of the blue slips and 
how it enshrines cooperation, and so I am delighted he is here.
  I will have more to say later, but at this moment, I defer to my 
colleague, Senator Blumenthal.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, first of all, I want to say how 
honored and grateful I am to follow my friend and distinguished 
colleague, who has outlined some of the reasons that I would vote 
against this nominee. I especially respect his raising this issue of 
the blue-slip approval process, which is probably unknown to the vast 
majority of Americans.
  Let me begin by saying, as a member of the Judiciary Committee, as a 
litigator who has spent about 40 years in the courtroom before Federal 
and State judges of all kinds all over the country, why the blue slip 
from a U.S. Senator matters to justice.
  We debated this issue on the Judiciary Committee. It is a time-
honored tradition that Senators be consulted, that they return a blue 
slip; that is, approval of a nominee from their State. That is because 
Senators, such as Senator Merkley and Senator Wyden, are rooted in 
their States. They know the lawyers. Many of us are lawyers. They know 
the colleagues of people who may be nominated to the U.S. district 
court or the court of appeals in the jurisdictions that cover the areas 
that they serve. They know the lawyers who have appeared before these 
judges--their qualifications and sometimes their faults. Also, they 
know the opinions of these lawyers, their records in court, and how 
they have performed. They know their character, their integrity, and 
they know their records outside of the courtroom as well.
  You have just heard tonight from Senator Merkley some statements that 
are extraordinarily revealing. The American people deserve to know 
them, and my colleagues deserve and need to consider them.
  For generations, the blue-slip process has ensured that judges are 
well-suited for the States where they will preside. The majority's 
decision to ignore this process and, for the first time--very, very 
significantly--to ignore it with respect to both Senators from a State 
is a precedent that is profoundly damaging to this institution and to 
American justice.
  It isn't about us. It isn't about our prerogatives or our pride. It 
isn't about our hurt feelings or our sense of insult. The sun will rise 
tomorrow on all of us in this Chamber, and we will go on to do the 
business of this Nation, but for many people who will go into a 
courtroom where Ryan Bounds may preside, they will experience a lesser 
standard of justice than they deserve, a lesser standard of justice 
than most judges provide. They deserve better. They are ultimately the 
losers, not we. It is not about us. The American people are the losers 
if we destroy this principle and norm that Senators must approve 
nominees who are from their own State.
  Only rarely, very rarely, is a fraction of the nominees found 
unacceptable by the Senators from their States. In my experience, in my 
8 years here, I think there have been maybe a few, and with good 
reason. But this President shows that no principle is safe and no norm 
is inviolate in the rightwing fringe's campaign to remake the Federal 
judiciary and to remake it in the image of the far right in this 
country.
  They have an ideological agenda and no respect for quality in 
deciding who will serve on the judiciary. Those groups that are trying 
to remake the court of appeals and the Federal district courts--that 
is, to remake judges at the lower level--whether it is the Federalist 
Society or the Heritage Foundation, are also responsible for the 
President's decision to make himself a puppet of their recommendations, 
letting them pick judges who meet their anti-choice and anti-healthcare 
litmus tests.
  Those tests really are President Trump's test. He said: I am going to 
appoint judges who are pro-life. He berated the Chief Justice because 
he was responsible for upholding the Affordable Care Act and clearly 
showed that he would appoint judges who would strike it down.
  His decision to pick a Supreme Court Justice nominee who believes 
that the President should be above the law perhaps should surprise no 
one, but his outsourcing of that decision to those same rightwing 
groups that are trying to remake the lower courts is truly 
unprecedented. He has become a puppet of those groups in all of his 
judicial nominees and most particularly in his Supreme Court nominee.
  I know my colleagues will want to speak tonight about Ryan Bounds and 
other related issues, but let me just say about Judge Brett Kavanaugh 
of the Court of Appeals for the DC Circuit that he has shown that he 
meets the Trump litmus test because he has been vetted and screened by 
those rightwing groups. He has shown that he would automatically 
overturn Roe v. Wade and that he would, in fact, strike down 
significant protections--indeed, protections for millions of Americans 
under the Affordable Care Act--from preexisting conditions.
  He also believes that a President can refuse to comply with a law if 
he believes it is unconstitutional--if he

[[Page S5012]]

alone believes it is unconstitutional--even if the law was duly passed 
by Congress and upheld by the courts. He has written: ``Under the 
Constitution, the President may decline to enforce a statute that 
regulates private individuals when the President deems the statute 
unconstitutional, even if a court has held or would hold the statute 
constitutional.''

  Judge Kavanaugh has also written that the President should be immune 
from even investigation for criminal or civil wrongdoing. Under his 
view, a President could not be investigated or indicted, could not be 
held accountable under the law, and would not have to respond to a 
civil suit or a subpoena or a request to be investigated by law 
enforcement. That is the rule he believes should be adopted.
  It is clear from Judge Kavanaugh's position on Executive power that 
he is a staunch supporter of, in effect, an imperial Presidency. He 
believes a President is above the law and immune from checks and 
balances. This view is antithetical to our democratic principles and 
tradition. It is in keeping with Donald Trump's view of the Presidency. 
It is out of sync with what our democracy needs now, especially with 
this President.
  President Trump has repeatedly expressed his admiration of dictators 
like Kim Jong Un or Vladimir Putin. His apologists will tell us to 
ignore Judge Kavanaugh's view of Executive power--pretend like they 
don't exist--but we have a responsibility to consider them, to take 
into account these extreme views on Executive power. They must be a 
central issue in this confirmation battle.
  He would, in effect, welcome legislation enabling the President to 
fire a special counsel for any reason or no reason at all, and if we 
have learned anything over the last 24 hours, it is that the special 
counsel's investigation must be protected. It must be protected against 
the concerted and coordinated, concentrated effort of the Trump 
surrogates and cronies to discredit or derail it. It must be protected 
against efforts to impeach Rod Rosenstein. It must be protected against 
the President's own threats, continuing to call it a witch hunt, when 
we see more and more in indictments and convictions that it is real and 
significant. Donald Trump cannot be permitted to derail it.
  We will talk again about Judge Kavanaugh.
  As to Ryan Bounds, the decision is for now, and because he has been 
rightly denied approval through the blue-slip process, because the 
abandonment of that process does such grave potential damage to 
American justice, and because Ryan Bounds is unfit by virtue of many of 
his views and past statements to serve on the Federal bench, I will 
oppose and vote against him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I wish to join my distinguished 
colleague from Connecticut in commenting on the qualifications and 
prospects of these two nominees whom we are facing now on the Senate 
floor. I thank him for his comments.
  I would like to take my time to bring to the attention of this body 
some of the concerns that--what I think are in the nature of concerns 
that if we do this now, we will learn to rue the day we made these 
mistakes.
  Let me begin, as I did in my comments about Judge Kavanaugh, with 
just a quick overview of how our Founding Fathers felt about the 
judicial branch of government and about the jury and what it was there 
for. The Founders were experienced politicians. They were adept at 
history. They read widely. They prided themselves on the expertise they 
had developed in how you design a government, and they were very 
conscious about doing something that was unprecedented and that they 
wanted very desperately to have work right. So they put their hearts 
and souls into trying to get it right, this American experiment of 
ours.
  From sad experience in the Colonies, they knew big special interests 
could come in and could completely dominate a legislative body; that 
the legislative body would be at the beck and call of big, private 
special interests. They had also seen Governors in the Colonies become 
corrupted by influence. So they were very concerned that it was not 
enough that you separated the legislative and executive branches and 
created some degree of rivalry between the two because that left the 
prospect still that the big special interests that commanded the 
legislature could also command the executive branch. Then, where would 
the ordinary citizen go? Where would you go for relief when some big 
and powerful interest controlled those two branches of government? You 
would go to the courts. That is why they made the judiciary 
independent. That is why they insisted and fought so hard to make sure 
the institution of the jury made it over from England, made it to the 
Colonies. It was part of our battle with England that the King had 
tried to interfere with our juries. We took the power of the jury and 
the independence of the court seriously, not just as a matter of 
providing justice to an individual person but as part of the 
architecture of our Constitution, as part of the architecture of 
freedom that our Constitution represents.
  There is something that is interesting about the jury and the courts, 
but the jury, in particular, that makes it a little bit different than 
a lot of the rest of what went on in that Constitution because, 
clearly, the Founding Fathers were concerned that the power of 
government would be co-opted by powerful interests and then evil work 
would be done with that power against ordinary people. So a lot of our 
constitutional structure is designed to protect all of us regular 
Americans against the power of government, but in the courts, and 
specifically in the jury, there is a different power that was at issue.
  Blackstone was the predominant legal figure in the Colonies at the 
time. The reference that lawyers of the Revolutionary era used was 
``Blackstone's Commentaries.'' Blackstone described how, within the 
larger context of the judicial branch, the jury was a defense for 
regular people not against the government, interestingly--possibly 
against the government--but also, and perhaps more importantly, against 
the more wealthy and powerful citizens. It was set up so the courts 
would provide equality between an ordinary American citizen who was 
being run over by a big, powerful, wealthy American citizen, and they 
would be treated fairly. It would be the chance where you could stand 
up against wealth, where you could stand up against power, and even if 
they controlled the legislature, even if they controlled the Governor, 
you still had your shot before that jury of your peers and in those 
courts.
  So that is the context for looking at these judges who are being put 
forward by a special interest apparatus of perhaps unprecedented power 
in our country's history--certainly unprecedented power in our 
country's history since Teddy Roosevelt broke the back of the big 
trusts and the Big Business interests that had dominated in his era.
  Here, we have these two characters coming through, and one is Mr. 
Bounds. Mr. Bounds has a considerable problem with himself, which is 
that he is filling a seat on the Ninth Circuit that is designated to 
the State of Oregon. It has, until this moment, always been the 
tradition of the Senate that the home State Senators associated with 
that seat have the ability to say no. It is part of our checks and 
balances. The people from that State who are likely to know him the 
best--the Senators who are here--have the chance to say no. Both of the 
Oregon Senators have said no. Has that mattered one whit to the Trump 
administration? No, they have broken this tradition.
  Regrettably, our Republican colleagues are complicit in letting this 
happen. They are complicit in letting this happen. It is a sad day for 
the Senate because the blue-slip process--the process by which home 
State Senators are allowed to say no--is also the only process that 
defends that this is an Oregon seat in the first instance. There is no 
other check on the President's power to appoint. So there are a lot of 
reasons why Bounds is disqualified, but the most compelling one to me 
is because the two home State Senators have both said no to this 
person.
  Things do turn about. I have been in the majority here, and I have 
been in the minority. I have been here with Republican Presidents, and 
I have been here with Democratic Presidents. Things do turn about. When 
the day

[[Page S5013]]

comes that we have a Democratic President making these appointees and 
when we have Democratic control so we can confirm these appointees, 
Republican Senators are going to regret that they threw their own blue-
slip rights away today on this nomination, and throwing their blue 
slips away doesn't just mean they lose their vote as to the Oregon 
Senator for this seat, it means they lose their vote that defends that 
this needs to be an Oregon judge in this seat.
  There is nothing, after the blue slip is gone, that would allow our 
colleagues from Texas to prevent a Democratic President from appointing 
a New York City judge to Texas seats on the circuit court of appeals.
  So if that starts to happen, don't come crying back to us now about 
this. Today is your chance to stop that--to stop all of that--and to 
put the Senate back to respect for our colleagues' judgment, a mutual 
and bipartisan respect for our colleagues' judgment that has been the 
standard of the Senate for a century now. It is going today, and it is 
going today under what pressure? Why would we want to turn to other 
colleagues and say: For the first time ever, your views don't count 
about the judge from your home State, Senator. The only reason for that 
is the power of the political pressure behind these appointees, and 
that is the big special interests that are putting these nominees 
forward, that have precleared them through this mysterious, dark 
process that the Federalist Society runs, that have pushed forward 
these political campaigns to support them through this mysterious, dark 
process that is funded through the Judicial Crisis Network, and they 
are going to be telling them what to do through a mysterious, dark 
process of funded so-called friends of the court--amici--who are going 
to be there in the court all day long telling them what to do. That is 
the process that is breaking the blue slip, and it oughtn't to. It is 
not right on its own, and it certainly isn't right to break the blue 
slip.
  The last thing I will say is about this character Oldham, who is 
coming in. Among the leading Republican special interests are the great 
polluters. They got Scott Pruitt in. What more proof do you need that 
the polluters are in control than to put Scott Pruitt in charge of the 
EPA? The man was a joke, and yet in he went, confirmed by the Senate.
  Now comes Oldham, who has said that the entire administrative state 
is enraging to him--enraging to him. It is the illegitimacy of it, he 
says. ``It is the entire existence of this edifice of administrative 
law that's constitutionally suspect.''
  No, it is not. We have an entire body of law, the delegation 
doctrine, that controls what is appropriate for Congress to delegate to 
an administrative agency. It has been that way for decades. This is 
fanciful stuff, but it is a wonderful red flag waved for the big 
polluters, saying: Whenever you disagree with a regulatory agency that 
tries to keep you cleaning up your act, I am going to be with you. That 
is what the Oldham nomination is all about. It is all about telling the 
big polluters that we have a friend for you on the courts now.
  If there is one thing that ought not to happen in this country, it is 
that somebody walks up the steps of the courthouse, and before the 
argument is even made, they know they are going to lose the case, not 
from the arguments in the brief but from the identity of the party on 
the front page of the brief.
  That is why Oldham is going on the court, so that the big polluters 
can know they will win their cases in front of him without him even 
having to read the brief. All he will need to do is look at the cover, 
see that the big polluters are on the cover, and know he is there to 
attack the administrative state making them keep the water clean, 
making them keep the air clean, or making them keep their carbon 
emissions under control.
  That is what this is about. This is not right. It is not right that 
the blue slip is being torn apart today on the Senate floor. It is not 
right that somebody who doesn't think that the EPA ought to even exist 
is being put forward as a judge.
  But the connections come back to that same initial point, which is 
that the big special interests who like to control legislatures and who 
like to control executive branches would also love to control the 
courts, because that is the place where they can still be held to 
account.
  So it is with real regret that I face this day in the Senate.
  I yield my remaining time.
  Mr. MERKLEY. Mr. President, will my colleague yield for a question?
  Mr. WHITEHOUSE. Of course.
  Mr. MERKLEY. I very much appreciate his laying out this basic 
framework under which this conversation is taking place. But just for 
clarity, the Senator made the point that there is no law that requires 
a member of a circuit court to be in a particular State and that it is 
only under this tradition and agreement among the Members of this body 
that a judge reside in a particular State as part of a circuit court.
  Mr. WHITEHOUSE. That is absolutely correct. There is not a law that 
assigns within the Ninth Circuit which judges will be treated as Oregon 
judges and which judges will be treated as California judges. Within 
Rhode Island, we are part of the First Circuit Court of Appeals. There 
is one seat on that court that, by tradition, is designated to Rhode 
Island.
  Mr. MERKLEY. So if we lose this blue-slip tradition for circuit 
courts, it would be the case that when the seat comes open that is now 
held in Rhode Island, an administration could nominate and conceivably 
a majority could confirm someone who lives, say, in Arizona.
  Mr. WHITEHOUSE. It would mean that the Senators from that State would 
have no defense against that change. It would mean that the next 
Democratic President could appoint Rhode Islanders to Texas. It would 
mean that the next Republican President could appoint Texans to Rhode 
Island, and neither the Senator from Texas nor the Senators from Rhode 
Island would have any defense left against that without the honoring of 
the blue slip.
  Mr. MERKLEY. So, in essence, if our colleagues across the aisle vote 
for this confirmation, they are basically saying that they are voting 
to give up the understanding among this body that has ensured that they 
would have a voice in making sure that a member of their circuit court 
was residing in their State and someone they felt had the qualities of 
integrity and understanding necessary to administer justice.
  Mr. WHITEHOUSE. They would either be giving up the one defense they 
have to make sure that the seats on the court that are allocated to 
their State are in fact filled with judges from their State, or they 
would be suggesting that there should be two different sets of rules 
that apply--that there be one blue-slip rule for a Democratic President 
and that there would be a different blue-slip rule for a Republican 
President.
  I don't think that is credible. I think that once the blue slip is 
torn down, reestablishing it is virtually impossible. I think the day 
will come when Senators come to regret that they are trying to get a 
home-State person appointed from Idaho or Colorado or New Mexico or 
Texas, and they have given up their ability to see to it that happens, 
and that a lawyer from San Francisco or from New York City or from 
Florida or from anyplace else can be dropped into their circuit court 
seat, and they have nothing left to do about it, because the one tool 
they have to stop that and to enforce that prerogative is the blue 
slip, and it dies today.
  Mr. MERKLEY. Mr. President, I appreciate so much my colleague from 
Rhode Island laying out what is at stake here.
  Why has this 101-year tradition maintained itself over a period of 
time in which so many things have changed in our culture? The country 
has been transformed, but for over a century, there has been this 
mutual understanding that, when it comes to the circuit court, it is 
appropriate to have members serving on that circuit who have roots in 
and approval and understanding related to different States within that 
circuit. That is what has held it together.
  If I tear it down for one of my colleagues, I tear it down for 
myself. If I tear it down for their circuit, I tear it down for my 
circuit. That is what has held it together--that we each want the 
circuits to be able to reflect individuals who have an understanding of

[[Page S5014]]

the issues that might come up in that circuit.
  There is embodied in the law a residency requirement for some 
positions on a circuit court. But that residency requirement isn't the 
same as a blue-slip requirement. You can establish residency very 
easily in another State. Previous decisions of the court have made sure 
it is possible to easily establish residency in another State. 
Therefore, it is the blue slip that has maintained this balance.
  We were taking a look at some of the writings of the individual who 
is up for this particular position that so bothered and concerned me 
and concerned the senior Senator from Oregon, my colleague Senator 
Wyden. I shared a little bit about his stated written views on 
diversity, that students working to ``promote diversity . . . 
contribute more to restricting consciousness, aggravating intolerance 
and pigeonholing cultural identities than many a Nazi bookburning.'' 
That was a direct quote. He referred to diversity training as a 
``pestilence'' that ``stalks us.''
  I have an article he wrote entitled ``Labor Unions and the Politics 
of Aztlan.'' This is about students who are part of a minority group on 
campus, and whether they should be able to take up an issue, and, at 
his campus, they did. They took up an issue about the ability of 
workers to organize into labor unions.
  He said: ``I would hardly suggest that no student group should be 
able to take up a political matter, if it is of direct relevance to its 
reported mission.'' He said: I wouldn't say that any group shouldn't be 
able to, but the sundry ethnic centers or the clubs that derive many a 
material benefit from those ethnic centers should not be able to take 
up an issue related to their mission. I am paraphrasing here, but I 
will come back to it and make sure I give the exact words.
  Here, we have it. He said, essentially, that for the Chicano or 
Latino Stanford students who protested against a hotel chain for firing 
workers who tried to form a union, if they stood up for those workers, 
he felt it was the wrong thing for them to be able to do so. He said: 
``I would contend, however, that no student group that is affiliated 
with an ethnic center or any other department of this university has 
any business holding political issues central to its mission.''
  Can you imagine? He says he wouldn't weigh in that any group couldn't 
pursue issues on campus, but when it comes to the ethnic groups, it is 
just plain wrong, in his opinion, for them to be able to take a 
position on an issue. That is a pretty significant situation, for 
somebody who is going to be a judge on a body to be able to say that, 
in his opinion, if it is an ordinary student group, they have every 
right to get involved, but if it is a Latino or Chicano group or an 
ethnic group, they shouldn't be allowed to get involved in an issue. 
How can people come before that judge and expect anything that 
resembles a fair hearing, here in the United States of America, where 
we have a vision of opportunity for every single American, where we 
have a 1964 Civil Rights Act that was passed long before this nominee 
attended college and that threw out the notion that discrimination was 
acceptable?
  I am delighted that my colleague from Massachusetts has arrived to 
weigh in on this issue of the appropriateness of a nominee coming to 
the floor of the Senate who, in the judgment of the two home-State 
Senators, isn't appropriate either because of views they have carried 
that bring into question their ability to fairly administer the law 
and, therefore, bring into question the entire integrity of the court 
at that moment, or because the individual also demonstrated a completed 
lack of integrity by failing to provide this information about their 
writings when they were asked to do so.
  I yield to my colleague from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Mr. President, I thank Senator Merkley for bringing us 
here this evening to give us this chance to talk about a Supreme Court 
nominee and to have us all here to talk about a whole range of issues, 
because this Supreme Court nominee will affect the lives of every 
single human being. So I thank Senator Merkley for doing this.
  Since day one, the Trump administration has been plagued with chaos, 
corruption, and broken promises. Candidate Trump promised to drain the 
swamp in Washington, but this administration is teeming with shady, 
corrupt political appointees using their government service to line 
their own pockets and to do the bidding of their benefactors.
  Candidate Trump promised to take care of everyone--to make sure that 
every American was, in his words, ``beautifully covered.'' Instead, he 
is trying to rip up the Affordable Care Act, permit insurance companies 
to discriminate against tens of millions of people with preexisting 
conditions, and knock millions more off healthcare coverage.

  Candidate Trump promised to raise taxes on the rich. Remember that 
one? Yes. Instead, he handed out an eye-popping $1.5 trillion tax 
giveaway to giant corporations and the superrich.
  For hard-working American families, the Trump Presidency has turned 
into a nightmare. Trump hasn't broken his promises to everyone--no, not 
by any stretch. For millionaires, billionaires, and giant corporations, 
Trump has kept his promises all the way. Nowhere has that been more 
obvious than with our courts.
  ``Equal Justice Under Law''--those are the words inscribed over the 
top of the Supreme Court. That is what the American judicial system is 
supposed to be all about--a fair, neutral forum governed by the rule of 
law; a place where everyone can be heard; a place where individual 
rights are respected; a place where nobody is above the law. Those are 
high aspirations, but these ideas never sat well with the wealthy and 
well-connected. They are used to getting special deals, and a judicial 
system that protects everyone, no matter their wealth or status in this 
country, is a challenge to their unchecked power.
  For years, they have engaged in a concerted campaign to turn our 
courts into one more rigged game, a place that carefully protects the 
rich and powerful and kicks dirt in everyone else's face. Billionaires 
and giant corporations have been working on this plan for decades.
  Today, the rich and powerful do their best to drown our elections in 
money and tilt our government in their favor. Every day, they use their 
money to buy favors in DC. Every day, they deploy armies of lawyers and 
lobbyists to bend the laws passed by Congress to their will. Every day, 
they push this government to do just a little more for the rich and 
powerful and a little less for everyone else.
  They are doing the same in our courts too. Since Donald Trump was 
elected, we have seen judge after judge come through the Senate, some 
barely qualified, some with deeply offensive records. But nearly all 
these judges have one key quality: a demonstrated willingness to put a 
thumb on the scales for those at the top at everyone else's expense.
  This week, we will vote on two more Trump-nominated appeals court 
judges. If they are confirmed, they will continue to tilt the courts 
away from equal justice under law.
  Nowhere is this effort more obvious or more damaging than with the 
President's Supreme Court selections. During the Presidential campaign, 
Donald Trump asked one group to draw up a list of acceptable candidates 
to serve on the Supreme Court--one group, one very influential group, 
one extremist group--the Federalist Society, a radical, rightwing group 
deeply committed to overturning Roe v. Wade. Trump promised publicly 
that if he was elected President, he would select Supreme Court 
nominees exclusively from the Federalist Society's list.
  The idea of a Republican President outsourcing the selection of 
judges has never been so nakedly public. For decades, the Federalist 
Society has been one of the leading rightwing, billionaire-funded 
groups working to capture our courts. Their agenda? To impose their 
extremist agenda on the entire country, undermining critical rights 
like women's rights, workers' rights, voting rights, and environmental 
protections.
  The courts are at the heart of the Federalist Society's plan, so the 
group has been laser-focused on filling the Federal bench with people 
who are precommitted to serving the interests

[[Page S5015]]

of the rich and powerful instead of dispensing equal justice under law.
  By allowing them to handpick the Justices who sit on the Supreme 
Court, Trump gave the Federalist Society an unprecedented opportunity 
to impose their extremist agenda on the entire country. What is at the 
top of their list? Overturn Roe v. Wade. A top conservative explained 
that Leonard Leo, the Federalist Society's longtime executive vice 
president, was the man to get the job done. ``No one has been more 
dedicated to the enterprise of building a Supreme Court that will 
overturn Roe than the Federalist Society's Leonard Leo.'' Criminalize 
abortion, punish women--that is the Federalist Society's plan.
  Donald Trump has been happy to dance to their tune. During the 2016 
campaign, he said: Yes, women should be punished if they try to get an 
abortion. And if he could appoint two or three Justices, Roe would be 
automatically overturned.
  Since taking office, President Trump has made it abundantly clear 
that he plans to fulfill his promise to select candidates exclusively 
from the Federalist Society's list. Just days after his inauguration, 
Trump nominated Neil Gorsuch--one of the candidates on the Federalist 
Society's list--to fill the vacancy on the Supreme Court. Judge Gorsuch 
had a long record of twisting the law in ways that favored the 
interests of large corporations over women, over workers, over 
consumers, and over just about everyone who wasn't wealthy and well-
connected. Republicans were so dedicated to getting Gorsuch on the 
Court that they actually changed the Senate rules to get him through 
the Senate nomination.
  From his powerful perch on the Supreme Court, Judge Gorsuch has 
continued to make it harder for Americans to find justice. In just 1 
year on the Court, he has voted to gut the ability of public sector 
unions to negotiate for higher wages, better benefits, and improved 
working conditions for teachers, nurses, firefighters, police officers, 
and other public servants; he has voted to undermine workers' ability 
to hold their employers accountable for breaking the law; and he has 
voted to uphold President Trump's immoral Muslim ban.
  The same powerful people who handpicked Justice Gorsuch know they 
will have another ally in Brett Kavanaugh. Frankly, it is not hard to 
see why. Like Justice Gorsuch, Judge Kavanaugh's record shows that he 
will continue to tilt the scales of justice in favor of the rich and 
powerful and against everyone else. Don't take my word for it; take a 
look at his record.

  Judge Kavanaugh voted to limit the ability of women to make their own 
healthcare decisions. He opposed a ruling protecting women's access to 
birth control under the Affordable Care Act. He voted to make it harder 
for agencies to protect public health, safety, and economic security. 
He ruled that the Consumer Financial Protection Bureau--the agency that 
has returned $12 billion directly to people who were cheated by 
corporate lawbreakers--is unconstitutional. He suggested that Federal 
judges might substitute their own personal policy judgments for those 
of expert Federal agencies that have been directed by Congress to 
enforce the law.
  Judge Kavanaugh had a lot of competition to get selected to fill the 
vacancy on the Supreme Court. After all, the Federalist Society had 
pulled together a whole list of people prescreened to overturn Roe v. 
Wade and help out the powerful corporate interests that are really 
calling the tune in Washington. Why pick Judge Kavanaugh? Why him 
instead of someone else on the list?
  There is something special that makes Judge Kavanaugh a lot more 
attractive to President Trump. Judge Kavanaugh believes that, while in 
office, a sitting President should be above the law. He has argued that 
sitting Presidents should not face personal civil suits or criminal 
investigations or prosecutions while in office.
  After the spectacle broadcast live on television around the world of 
President Trump attacking American intelligence agencies and American 
law enforcement officers while sucking up to Vladimir Putin, we should 
all question Judge Kavanaugh's willingness to protect the President no 
matter what. After Trump's deeply embarrassing performance, Republicans 
who actually want to stand up for the United States of America and 
stand up to Trump instead of hiding behind carefully worded tweets 
could refuse to rubberstamp Trump's Supreme Court nominee. Republicans 
who believe that no one is above the law could vote no on Judge 
Kavanaugh.
  There is a lot more that makes this nominee particularly attractive 
to President Trump. Judge Kavanaugh has demonstrated incredible 
hostility toward efforts to rein in public corruption and to break the 
stranglehold of money on our political system.
  Substituting your personal views for the will of Congress is not the 
job of a judge, and it is certainly not conservative. Stripping rights 
away from women, voters, workers, and immigrants, while expanding the 
rights of corporations and rich people isn't fair, neutral, or equal.
  Judge Kavanaugh didn't make this stuff up on his own, no. Judge 
Kavanaugh is part of a movement to twist the Constitution in ways that 
are deeply hostile to the rights of everyone but those at the top. He 
has been a part of that movement for the majority of his professional 
life, both before and after he became a judge, and now he has a record 
of 12 years of judicial decisions that demonstrate his loyalty to that 
radical ideology.
  All of this makes Brett Kavanaugh a dream candidate for the 
rightwing, extremist Federalist Society; a dream candidate for 
rightwing, extremist Republicans; a dream candidate for the rightwing 
groups and billionaires who want to buy off our political system; a 
dream candidate for a sitting President whose campaign is under an 
active, ongoing FBI investigation that eventually could land in the 
U.S. Supreme Court; a dream candidate for all of them and a nightmare 
for everyone else.
  President Trump has made his choice. Here is the thing: President 
Trump is not a King. The Constitution demands that the Senate have a 
say in who gets to serve on the Supreme Court, and that means every 
single Senator has a vote. Think about what is at stake. One Justice, 
one vote could determine whether women can make their own healthcare 
decisions. One Justice, one vote could determine whether workers can 
join unions to negotiate for better pay, better working conditions, and 
better benefits. One Justice, one vote could determine whether millions 
of people with preexisting conditions can still get health insurance. 
One Justice, one vote could make decisions on voting rights, civil 
rights, immigration, criminal justice, consumer protection, and 
environmental protection. One Justice, one vote could decide whether 
everyone or just those at the top can find justice in America.
  The Justices who sit on the highest Court in the country should not 
be prescreened by extremist groups whose agenda is to tilt the scales 
of justice against Americans who are most vulnerable. They should not 
work to hand our courts over to corporate giants and wealthy 
individuals. The Justices who sit on our highest Court should be 
unequivocally committed to one principle: equal justice under law.
  Judge Kavanaugh's record shows that he is not the right candidate to 
spend a lifetime making decisions that will touch the lives of every 
American. Every American who believes that our courts should not be 
another puppet of the rich and powerful should speak out, and every 
Senator who believes in equal justice under law should say no to Judge 
Kavanaugh.
  Mr. President, I yield the floor to my colleague from Oregon.
  The PRESIDING OFFICER (Mr. Rounds). The Senator from Oregon.
  Mr. WYDEN. Mr. President, I thank my colleague from Massachusetts for 
eloquent remarks. I particularly want to thank my colleague from Oregon 
for putting together this time to speak on issues so important to our 
State, as Senator Warren has noted, and issues important to our 
country. In the context of talking about Ryan Bounds, I am going to 
talk about how, unfortunately, the handling of the Bounds nomination 
moves the Senate even further away from what I think the Senate has 
always been about, which I would describe as principled bipartisanship.

[[Page S5016]]

  As I indicated, Ryan Bounds, an important judicial nominee, is being 
considered as a candidate from my home State of Oregon, and we will 
vote on him before the end of the week.
  As I have indicated, I believe the debate about Ryan Bounds is not a 
typical debate on a typical nomination for reasons I am going to 
outline tonight.
  In my view, it is vital that the Senate look at this nomination in a 
broader context, particularly as it relates to what I call the decline 
of principled bipartisanship in the Senate. I want to be clear about 
what I mean when I mention the words ``principled bipartisanship'' and 
the reason I describe it that way--bipartisanship born of principle.
  Bipartisanship is not about taking each other's bad ideas. I see my 
friend from South Dakota in the chair of the Presiding Officer of the 
Senate. I wouldn't come up to him in the name of bipartisanship and ask 
him to take a flawed idea, and I am quite sure he wouldn't ask that of 
me because I know the Presiding Officer well enough to know he has had 
an interest over the years in bipartisanship built around principle.
  So bipartisanship is not about taking each other's lousy ideas; it is 
about taking each other's good ideas.
  The fact is, the Senate has certainly been very polarized, very 
divided this session, and yet we have been able to do it when we kept 
that lodestar of principled bipartisanship in mind.
  If you had said in January of 2017 that the U.S. Senate would enact a 
10-year Children's Health Insurance Program, an improved, expanded 
Children's Health Insurance Program, I think people would have said: 
You are hallucinating. It can't happen. Because my colleague, who sits 
right over there, Chairman Hatch, and I talked about this was a chance 
to help children and save money, we are able to do something nobody 
thought was possible because both of us shared an interest in the well-
being of children and cost-effective approaches in healthcare.
  I know my colleague knows about this. Senator Crapo, who sits a few 
seats from Chairman Hatch, and I lined up more than 270 forestry groups 
because the whole system of fighting fire was broken, and we said we 
have to do something very different. We have to end the incentive, 
basically, for raiding the fire prevention fund to put the fire out, 
and then the problem got worse. It didn't make any sense in South 
Dakota; it didn't make any sense in Oregon; it didn't make any sense 
anywhere, but because Chairman Crapo and I found common ground around 
principles that this wasn't a cost-effective approach to discriminate 
against fire prevention, and we saw how important it was to take a 
balanced approach on natural resources so we could have forest health 
and get fiber in the mills and protect our land, air, and water, it was 
an agreement based on principled bipartisanship.
  So two big issues, not immigration or trade that are in the 
headlines, but an awful lot of people in America and in our part of the 
world are going to benefit from the principled bipartisanship that led 
to an unexpected breakthrough in terms of meeting the healthcare needs 
of our children and a transformative approach--not my words, the words 
of the Forest Service--in terms of fighting fire.
  The fact is, the handling of these judicial nominations, and Ryan 
Bounds in particular, is a break, a dramatic, sharp break from this 
tradition of principled bipartisanship.
  I would like to say, by the way, that in Oregon, we have followed the 
idea of principled bipartisanship as it related to judicial nominations 
as well. I have had the pleasure of working with two Republicans very 
closely on these judicial nominations: the late Mark Hatfield, a 
revered figure in Oregon, the chairman of the Senate Appropriations 
Committee, and my former colleague Gordon Smith, two Republicans. 
Nobody ever thought Gordon Smith and I would work together.
  We had a race in 1996. I won by a little bit. He won the next one. 
Nobody ever thought we would work together, but we worked together on 
those judicial nominations, literally, hand in glove, a Democrat and a 
Republican.
  Senator Merkley, who defeated Senator Smith, brought exactly the same 
approach to this, and he said: Well, how did it work in the past? I 
said: Well, we had a judicial selection process that was bipartisan, 
and we would have all our offices represented.
  I remember, when I was the junior Senator and Mark Hatfield was the 
senior Senator and Bill Clinton had been elected, I said: Senator, I 
can't imagine that you and I aren't going to find common ground through 
our selection process and the effort to come together around judges 
that make sense for our State and our country--and we did.
  Year after year, that has been the case for almost 20 years. I have 
been the senior Democrat in our congressional delegation. It has been 
an extraordinary privilege that the people of Oregon have afforded me. 
Year after year after year, we would come together not because we 
always agreed on someone's philosophy or their view on a particular 
issue but because we felt, in the name of fairness and principled 
bipartisanship, we ought to strive to find common ground and make it 
possible to generally send three nominations to the White House that a 
President would pick from.
  The nomination of Ryan Bounds is a total rejection of the idea of 
principled bipartisanship. I am going to talk a little bit more about 
how the selection process works, but I want to begin by making clear 
that I am troubled by the incendiary, intolerant writings by Mr. Bounds 
that came to light only after he was nominated.
  I am, in fact, more troubled by the fact that he concealed those 
writings from the independent and bipartisan Oregon committee that 
reviews potential candidates for nomination. In my view, moving forward 
with this nomination, in the face of those revelations, is going to 
have regrettable and irreversible consequences. It not only tramples on 
Oregon's bipartisan judicial selection process, as I am going to 
outline--and my colleague from Oregon already has touched on this--it 
tramples on a century-old tradition of what is just collegiality, good 
relations among Senators, courtesy, allowing home State Senators to 
review judicial nominations.
  My view is, this approach cheapens the constitutional responsibility 
of the Senate to provide or withhold advice and consent on nominees. It 
has the potential to forever lower the basic standards of honesty and 
decency to which the Senate holds the nominee. It will be a signal that 
a nominee can conceal information the public has a right to know--
histories of prejudice and scorn that the potential nominees could find 
embarrassing and disqualifying should that information come to light.
  It signals that the Republican majority believes the end justifies 
the means in the course of seating judges, a prospect that certainly 
speaks to the larger debate the Senate is going to have on the Supreme 
Court in the months ahead.
  I am going to begin by walking through a number of the issues, 
beginning with excerpts from the writings Mr. Bounds failed to disclose 
to our bipartisan judicial selection committee.
  I want to make it clear again that I find much of what was written to 
be disgusting and baffling, and I am again especially concerned that it 
was concealed from the committee.
  First is a passage in which Mr. Bounds targeted ethnic minorities and 
expressed a dripping disdain for multicultural values.
  Mr. Bounds wrote:

       During my years in our Multicultural Garden of Eden, I have 
     often marveled at the odd strategies that some of the more 
     strident racial factions of the student body employ in their 
     attempt to ``heighten consciousness,'' ``build tolerance,'' 
     ``promote diversity,'' and otherwise convince us to partake 
     of that fruit which promises to open our eyes to a PC version 
     of the knowledge of good and evil.

  Mr. Bounds said:

       I am mystified because these tactics seem always to 
     contribute more to restricting consciousness, aggravating 
     intolerance, and pigeonholing cultural identities than many a 
     Nazi [talking about book burning.]

  Now, my colleagues who are following this, I am the child of Jewish 
refugees who fled Nazi terror in Germany. Not all of our family got 
out. We lost family at Theresienstadt. One of our very dear family 
members was gassed at Auschwitz.
  To compare, as Mr. Bounds did, the work of organizations that promote 
multiculturalism and tolerance here in the United States to Nazi 
bookburning rallies is beyond extreme. Our diversity

[[Page S5017]]

is a core strength of America. The Constitution protects the right of 
minority Americans to celebrate their diversity. Mr. Bounds clearly 
doesn't see it that way.
  In an even more sarcastic passage, he wrote:

       The opponent is the white male and his coterie of 
     meanspirited lackeys: ``oreos,'' ``twinkies,'' ``coconuts'' 
     and the like. He enjoys making money and buying material 
     things just to make sure that people with darker skin don't 
     have access to them. He enjoys killing children and revels in 
     the deaths of minorities. If you are white male and pro-
     choice, for instance, it is often ascribed to your desire for 
     poor black and Hispanic women to abort their children as 
     frequently as possible.

  These are his words--words that invent an absurd sense of victimhood 
based on a fictional reading of how ethnic minorities view others.
  I would just ask my colleagues, how can somebody who wrote and 
published statements like those--statements that were printed in 
Stanford's newspaper for anybody to read--be capable of hearing a case 
involving matters of race in an impartial fashion?
  After intoxicated athletes vandalized a gay pride monument at 
Stanford, Mr. Bounds wrote:

       We hear of sensations of personal violation and outrage and 
     of suspicion that male athletes and fraternity members are 
     bigots whose socialization patterns induce this sort of 
     terrorism. Perhaps all of this is true, but the castigation 
     of athletes and frat boys for flagrantly anti-homosexual 
     prejudices is predicated on a motivation for this vandalism 
     that has not been articulated.

  He continued:

       The vandals might face hate-crime charges, fraternity 
     members--regardless of their individually demonstrated 
     prejudices (or, for that matter, sexual orientation)--face 
     mandatory sensitivity training . . . and sensitivity 
     insinuates itself a little further into the fissures of our 
     community.

  So in that passage, Mr. Bounds somehow managed to make victims out of 
homophobic vandals and attack the concept of sensitivity. It is a sort 
of division in American society. It is as if he believed being 
sensitive to minorities who are the targets of hate and prejudice on a 
daily basis was an unreasonable prospect.
  Next I will turn to Mr. Bounds' views on sexual assault on campus. He 
wrote:

       There is nothing really inherently wrong with the 
     University failing to punish an alleged rapist--regardless 
     his guilt--in the absence of adequate certainty; there is 
     nothing that the University can do to objectively ensure that 
     the rapist does not strike again.

  He continued:

       Expelling students is probably not going to contribute a 
     great deal toward a rape victim's recovery; there is no moral 
     imperative to risk egregious error in doing so.

  Now, I would be the first to say that a disciplinary proceeding in a 
university is not a courtroom. They don't operate under the same legal 
standards. However, universities that receive Federal dollars do have a 
legal obligation to protect the young women on their campuses. Once 
again, this is something that the nominee, Ryan Bounds, seems not to 
comprehend.
  So when you take these writings together--the merit of diversity, the 
advancement of ethnic minorities, the protection of survivors from 
sexual assault--these are issues at the heart of some of the most 
significant cases that come before Federal judges. Mr. Bounds' writings 
reflect that he held shocking views on these matters as a young adult--
views that he hid by concealing the writings I have touched on.
  There are plenty of inflammatory examples beyond those I quoted here 
today that touch on additional topics.
  I hope Senators and those following this would find my judgment not 
something you can debate. This is indisputably appalling stuff. I 
believe, having talked to some colleagues, they might want to dismiss 
the writings because they came when Mr. Bounds was a young man, and one 
would certainly hope that people mature as they age. I would agree with 
that if Mr. Bounds had done two things: first, if he had disclosed the 
writings to our independent and bipartisan Oregon committee--in other 
words, been candid with the bipartisan and independent committee like 
the Oregonians who came before him for close to two decades. I don't 
think that is asking too much--to be candid, to be straightforward, as 
those other Oregonians who went on to distinguished service on the 
Federal bench did for almost two decades. In addition to disclosing 
these writings to the independent and bipartisan committee, if he had 
recanted and apologized for these horrendous remarks. In my view, he 
failed to take either action.
  When you think about this, nobody would ask Mr. Bounds to recant 
every utterance, every writing, every belief he held as a young adult. 
I think we would all widely think that is unreasonable. I understand 
that when there is a Republican in the White House and a Republican in 
charge of the Judiciary Committee, I am not going to see eye-to-eye 
with every judicial nominee who comes up for a vote. That is why I have 
gone to some lengths tonight to mention that I have been the senior 
Democrat for essentially two decades. Whether it be Mark Hatfield or 
Gordon Smith, two very thoughtful Republicans, and now our colleague 
Jeff Merkley, we have always, always tried to be deferential, tried to 
find common ground in recognizing what party was in the White House and 
what party controlled the Senate.
  I am not asking Mr. Bounds to transform himself into Thurgood 
Marshall. It is completely reasonable to expect an admission that 
comparing the promotion of diversity to Nazi rallies was wrong.

  I can only imagine what my late parents, both of whom fled the Nazis 
at a very young age--and all they wanted to do was to serve in our 
military, wear the uniform of the United States. My dad wrote 
propaganda pamphlets that we dropped on the Nazis. I can only imagine 
what my parents would say to Mr. Bounds' idea of comparing diversity to 
Nazi rallies.
  Dismissing the value of diversity is wrong, and insisting that it is 
not worth protecting the victims of sexual assault because it is 
impossible to guarantee safety from rape is wrong. Instead, Mr. Bounds 
hid these writings rather than recant, take back their content.
  The comments he has made since they came to light, in my view, 
suggest that Mr. Bounds sees this as a matter of clumsy word choice and 
youthful indiscretion. He only acknowledged it after it became a threat 
to his nomination. I don't think it was a true apology. It is as if he 
believed he could wave the writings off as a messy, isolated little 
episode from the past.
  In my view--and something I am going to talk about going forward--
nominees for the Federal bench must be held to a higher standard. If 
you are up for a lifetime appointment on a powerful Federal court, you 
have to be truthful and forthcoming in your nomination process. Ryan 
Bounds has not, and that ought to be a reasonable judgment from what I 
have outlined thus far.
  Now I want to touch on the second important issue, and that is the 
way this nomination has literally trampled on our bipartisan selection 
process for judicial nominees.
  As I have said, I am proud that for the better part of two decades, 
prospective judicial nominees have been identified and vetted by our 
bipartisan committee made up of Oregonians from across the State and 
from all over the legal community.
  As I indicated, it was especially important to me to partner with my 
Republican colleagues to ensure that all sides had a voice in this 
issue--in fact, even before I came to the Senate because I was the 
senior Democrat in our delegation then as a Member of the House. I 
always wanted to hear Senator Hatfield's views and what he thought was 
in Oregon's interest.
  When there is a vacancy on the bench, our selection committee 
performs a thorough statewide search for candidates. It conducts very 
rigorous interviews. It provides a list of recommended potential 
nominees to Oregon Senators.
  Senator Merkley and I review these recommendations closely, and we 
respect that not everyone on the list is going to be somebody we would 
have chosen ourselves. They are not all people we would agree with 100 
percent. After our review, the two of us submit a short list to the 
President for his consideration. For us, this is the beginning of how 
we put advice and consent into practice.
  When the Trump administration came to office, Senator Merkley and I 
wrote to the White House Counsel to guarantee that he was aware of our 
longstanding bipartisan selection process.

[[Page S5018]]

  As part of the independent committee work, candidates are asked to 
disclose anything from their past that could have a negative impact on 
their potential nomination. It ought to be obvious to any lawyer--even 
to anybody with a casual interest in American law and history--that the 
incendiary writings, particularly about minorities, would qualify as 
potentially threatening to a nomination. This was the exact point at 
which Mr. Bounds withheld any and all information about his writings.
  It is not as if Mr. Bounds simply declined to look back far enough 
into his past when he was interviewed. In fact, Mr. Bounds cited 
certain activities from his precollege days going back to high school 
in an effort to paint a picture of diversity and tolerance. So the 
reality is, he misled the committee by omitting the writings that I 
have described tonight.
  When his writings came to light in February, five of the selection 
committee's seven members, including the chair, said they would have 
changed their decision to include Mr. Bounds among their recommended 
candidates. I think that is a very important statement.
  It is not widely known that it will always say in the newspaper that 
the distinguished President of the Senate recommended so-and-so and the 
President chose his recommendation. We all know that is generally not 
the case. We forward a list of individuals--usually three--that our 
bipartisan committee feels would be qualified to serve on the bench.

  In the case of Mr. Bounds, when his writings--the ones he neglected 
to tell the committee about--came to light, five of the selection 
committee's seven members, including the chairman, said that they would 
have changed their decision to include Mr. Bounds among the recommended 
candidates.
  Our local bar association wrote that Mr. Bounds' writings ``express 
insensitive, intolerant, and disdaining views toward racial and ethnic 
minorities, campus sexual assault victims, and the LGBTQ community.''
  The association's statement went on to say that it ``strongly 
disavows the views expressed in those articles''--the ones I have read 
tonight--``as racist, misogynistic, homophobic, and disparaging of 
survivors of sexual assault and abuse.'' I will repeat that last part: 
``racist, misogynistic, homophobic, and disparaging of survivors of 
sexual assault and abuse.''
  Those are not my words. Those are the words of Mr. Bounds' local bar 
association based in Portland. The association, in addition, requested 
that Mr. Bounds resign from the chairmanship of its equity, diversity, 
and inclusion committee, which he complied with.
  Other member groups of the Oregon legal community added their voices 
and urged the leaders of the Judiciary Committee to turn to other 
potential nominees. The leaders of the Oregon Women Lawyers and the 
Oregon Asian Pacific American Bar Association wrote the following:

       These were not comments from the Twittersphere or errant 
     social media posts. These were well thought-out, carefully 
     constructed, published articles in which [Bounds] repeatedly 
     diminished, mocked, and advocated wholeheartedly against the 
     principles of inclusion for which our organizations have 
     fought.

  That is really an important point. Mr. Bounds wasn't sitting down at 
his laptop, his iPad, pounding out a couple hundred characters. He was 
thinking carefully; these were published articles that he clearly had 
spent a lot of time trying to get the words to reflect what was on his 
mind. And people have recognized it--no 280 characters for those 
articles.
  The Oregon Hispanic Bar Association and the LGBT Bar Association of 
Oregon wrote the following:

       We believe Mr. Bounds' failure to disclose these writings--
     and his conduct related to their disclosure--demonstrates Mr. 
     Bounds does not show the appropriate judgment and discernment 
     to faithfully uphold and apply the laws of the United States 
     of America.

  These are the voices of Oregon's legal community. The nominations 
process is supposed to be responsive to those voices. Apparently, none 
of what I have gotten into tonight has been of any interest whatsoever 
to the chairman of Senate Judiciary Committee, the majority leader, or 
the White House, because they simply moved forward with the Bounds 
nomination anyway. Really, there were no substantive discussions with 
them at all. It appears now that the White House simply had no interest 
in respecting the bipartisan, 20-year history of tackling these 
nominations in a way that reflects principled bipartisanship. Mr. 
Bounds was their choice from the beginning, and no revelation, no red 
flag--no matter how big--was going to change him.
  Our independent group of experts--people with bipartisan roots that 
go back decades--had no interest in delay. But if blowing up a decades-
old bipartisan tradition is bad, then blowing up a tradition that dates 
back more than a century is even worse.
  For 101 years, going back to Chairman Charles A. Culberson of Texas, 
the Judiciary Committee has sought input from Senators on judicial 
nominees from their home States. It is done by returning what are known 
as blue slips. It is the definition of senatorial collegiality--
courtesy, if you will, in an effort to make sure that all felt they 
were going to be heard.
  The committee sends blue slips to home State Senators when a 
nomination comes up. At that point, the home State Senators have a few 
options. Once they review the nomination, they can return the blue slip 
with a positive or negative recommendation, and the committee moves 
forward. Or the home State Senators can withhold the blue slip.
  Senator Merkley and I withheld our blue slips. We have not consented 
to a hearing, a markup, or a debate on the floor. We have done that 
because Mr. Bounds purposefully misled the independent Oregon committee 
that reviewed his candidacy by concealing the disturbing writings from 
his young adulthood. In my view, that is exactly the way the blue-slip 
process is supposed to work.
  History shows that this tradition has benefited both sides. It is a 
check on the power of the President and a moderating, democratic force 
on the Judiciary. It helps to ensure that administrations are not 
seating flawed nominees or extremist judges whose views are simply far 
from the mainstream of the lives that they have considerable power to 
change, if confirmed.
  In fact, let me quote a letter from the entire Senate Republican 
conference sent to the last President at the very beginning of his term 
in 2009. What that means is every member of the Senate Republican 
caucus sent to President Obama, at the beginning of his term in 2009, a 
letter with one of the very first lines saying:

       Unfortunately, the judicial appointments process has become 
     needlessly acrimonious. We would very much like to improve 
     this process, and we know you would as well.

  So at a time when that side of the Chamber--everybody over there--was 
out of power and they had no choice but to appeal to the other party's 
good will, they went ahead and struck a bipartisan chord. Their letter 
described the ``shared constitutional responsibility'' in the 
nominations process. They wrote that dating back to the Nation's 
founding, the Senate has had ``a unique constitutional responsibility 
to provide or withhold its Advice and Consent on nominations.''
  They continued:

       The principle of senatorial consultation (or senatorial 
     courtesy) is rooted in this special responsibility, and its 
     application dates back to the Administration of George 
     Washington. Democrats and Republicans have acknowledged the 
     importance of maintaining this principle, which allows 
     individual Senators to provide valuable insights into their 
     constituents' qualifications for federal service.

  Here is the heart of the letter that came from that side of this 
body:

       We hope your administration will consult with us as it 
     considers possible nominations to the federal courts from our 
     states. Regretfully, if we are not consulted on, and approve 
     of, a nominee from our states, the Republican Conference will 
     be unable to support moving forward on that nominee.

  So there you have the heart of the fury that we represent tonight. 
When a new Democratic administration came into office, my Republican 
colleagues sprang into action to defend the blue-slip process. That 
letter was sent on March 2, 2009, to President Obama, and our colleague 
Senator Leahy was then the chairman of the Judiciary Committee. The 
letter clearly indicates that Leader McConnell and his Republican 
colleagues believed that nominations should not go forward without blue 
slips having been returned.
  That was when there was a Democrat in the Oval Office. A Democrat 
held the

[[Page S5019]]

gavel in the Judiciary Committee. They had the power to tell the 
Republicans in the minority to get lost; take a hike. Democrats did no 
such thing.
  We upheld the blue-slip tradition on this side of the Chamber, where 
my good friend Senator Merkley and I sit. We went along with the 
unanimous request from that side of the Chamber in honoring blue slips.
  There were no hearings of judicial nominations when a Democrat held 
the gavel in the Judiciary Committee, when neither home State Senator 
had consented. In fact, the Judiciary chairman, Senator Leahy, has 
emphasized that he went above and beyond what several committee leaders 
before him had done to respect the rights of the Republican minority.
  Someone watching in the Gallery or on TV, someone who is hoping to 
see the Congress pick up again on what I have described as principled 
bipartisanship, probably hoping to hear Republicans are operating with 
the same bipartisan comity now that they are in power--those people are 
in for some serious disappointment. If the Senate approves the Bounds 
nomination, it will be the first time in more than a century that a 
judge has been confirmed without a blue slip from either home State 
Senator.
  The fact that Mr. Bounds wrote the appalling things I have described 
ought to have at least slowed this nomination down. For him to have 
hidden the writings is disqualifying. I don't think the matter can be 
ignored or wished away.
  The fact that these writings are embarrassing and reflect poorly on 
him in retrospect does not in any way give him a license to conceal 
them. In my view, my colleagues in the majority ought to look at this 
issue the same way.
  The Republican majority, working hand in hand with the Trump 
administration, is now on the verge of breaking a century of bipartisan 
tradition to seat a nominee with very serious red flags. In fact, 
Chairman Grassley has now held hearings on four circuit court nominees 
who didn't have blue slips from one or both of their home State 
Senators.
  Recently, Leader McConnell changed his tune on what the blue slip was 
about. He was quoted as saying that the blue slip ``ought to simply be 
a notification of how you're going to vote, not the opportunity to 
blackball.''
  I have two reactions to that. Senator Merkley and I have been called 
a variety of things over the years, but I don't believe anybody has 
ever said that we are interested in blackballing people. We are 
interested in doing our jobs. We are interested in carrying out our 
constitutional responsibilities, our constitutional responsibilities to 
our constituents.
  Second, blue slips have never been simply an indication of how 
Senators will vote. Leader McConnell knows it. The letter he and his 
colleagues sent in 2009 is proof. To invent this new interpretation of 
how the process should work demonstrates, as I have indicated, that the 
Republican majority has changed the rules of the game.
  My colleagues on the other side ought to be aware of this new 
responsibility because of how the administration, the majority leader, 
and the Judiciary Committee have handled the Bounds nomination. This, 
colleagues, is going to be the end of the blue-slip process. This is 
lights-out for a process that ensured fairness for each Senator. I 
would wager that when the next Democratic administration comes in and 
the Democrats hold the gavel in the Senate, a Republican letter that 
demands a say in judicial nominations will find it hard not to be 
treated like a takeout menu that is shoved unsolicited under the 
doorway--straight to the dustbin.

  I have outlined the letter my Republican colleagues sent to President 
Obama in 2009. It talked about a shared constitutional responsibility, 
but the administration seems to define ``advise and consent'' as 
Senators rubberstamping whatever nominations are sent their way. This 
is a historic moment and, I think, a sad one. As I indicated, it is 
part of a larger context--part of a pattern of the majority violating 
norms, misleading the public, and bending rules to their absolute 
limits in order to reshape the judiciary and seat judges who are far 
from the mainstream.
  Justice Scalia passed away unexpectedly with 237 days left in 
President Obama's second term. During the process of deciding on a 
nominee to fill the open seat, President Obama did something he didn't 
have to do--something that upset many progressive Democrats. He 
specifically chose a moderate nominee as a show of good faith. After 
all, in 2010, when another seat opened up, my friend who chairs the 
Finance Committee called Justice Garland a fine man, a consensus 
nominee.
  What a difference a few years makes. Judge Garland didn't even get a 
hearing in 2016. The Republican majority in the Senate ran out the 
clock on his nomination. Now that Republicans control the White House 
and the Senate, they changed the rules in the Senate so they could 
confirm Supreme Court Justices without needing a single Democratic 
vote--a clear double standard.
  The Trump administration has outsourced the selection of judicial 
nominees to a right-wing group called the Federalist Society, which is 
funded by powerful corporate interests and individuals with deep 
pockets. They are answerable to no one but their well-monied backers, 
certainly not the public at large.
  Ryan Bounds is a Federalist Society hand-picked nominee. So was Neil 
Gorsuch, who now sits in the Supreme Court seat that Leader McConnell 
and Chairman Grassley held open for months and months. So is Brett 
Kavanaugh, whose nomination the Senate will debate at great length in 
the months to come.
  These are nominees who adhere to a backward-looking, corporatist, 
rightwing judicial philosophy that is packaged in the branding of so-
called ``originalism.''
  The guiding principle of originalism is ostensibly that our rights as 
a people are contained within our founding document, but in practice, 
originalism provides cover for rightwing jurists to empower 
corporations over downtrodden workers and the wealthy over the 
vulnerable. It is a political agenda masquerading as a judicial 
philosophy.
  For example, you would find it impossible to locate in the 
Constitution where it says that unscrupulous healthcare providers can 
lie to pregnant women about the services they do and do not provide, 
but a right-leaning Supreme Court just said they are allowed to deceive 
women in that way.
  Originalist judges regularly trample on the Fourth Amendment, giving 
the government the power to peer deep into the lives of citizens.
  And in an example that is particularly relevant to my home State, 
which has had a ``death with dignity'' law on the books for decades, 
originalist jurists, including Justice Gorsuch and Judge Kavanaugh, 
deny that Americans suffering with terrible illness have a right to 
make their own decisions about their own lives and bodies without 
interference from the State.
  Twice, Oregonians have passed ballot measures approving death with 
dignity. Oregon's Death with Dignity Act has been in place for two 
decades, and it was upheld by the Supreme Court in Gonzalez v. Oregon.
  And as I have said on this floor in previous debates, there is 
nothing in the Constitution that gives the State the power to deny 
suffering Oregonians the right to make basic choices about the end of 
their lives.
  Justice Gorsuch and Judge Kavanaugh disagree. They would put the 
State between patients and their doctors, and their view that our 
rights are only those enumerated in the Constitution conveniently 
ignores key precedent and the text of the Ninth Amendment, which says:

       The enumeration in the Constitution, of certain rights, 
     shall not be construed to deny or disparage others retained 
     by the people.

  . . . shall not be construed to deny or disparage others retained by 
the people.
  So there is a clear implication written into our founding documents 
that there are rights held by the people that are not overtly laid out 
in the text of the Constitution.
  Furthermore, the originalist viewpoint ignores what Justice Douglas 
referred to in Griswold v. Connecticut as the ``zone of privacy created 
by several fundamental constitutional guarantees.''
  It was that zone of privacy that formed the basis of his opinion that

[[Page S5020]]

guaranteed the right of married couples to use contraceptives. That 
right was later extended to unmarried individuals.
  A similar legal theory guaranteed the right of all American women to 
make their own choices about their reproductive health.
  And it is that case, Roe v. Wade, that is now in the crosshairs of 
the right wing as the Kavanaugh nomination moves forward.
  Colleagues, Roe is settled law--it has been that way for 45 years--
but it is the right-wing agenda, wrapped in the cloak of originalism, 
that seeks to overturn it.
  Overturning Roe would turn the clock back to the dark days when 
women's healthcare choices were made by the State--nevermind the flimsy 
legal argument for it. That prospect is overwhelmingly opposed by the 
American people. The imagery of back alley abortions and risky 
procedures performed in secret is well understood, in part because 
those horrors are not all that far back in our history as a Nation.
  And the fact is, the women who have the most to lose if Roe is 
overturned are the vulnerable and the poor. It is the women who will 
lose access to the doctors of their choosing in small town clinics. It 
is the women who cannot afford to a fly to another State where the 
reproductive healthcare services they need are legal, safe, and 
available. It is another step that cleaves our laws and our healthcare 
system in two, going back to another era when healthcare in America 
worked only for the healthy and the wealthy.
  These questions are all part of the broader context I felt the need 
to address here today as the Senate debates the Bounds nomination.
  As somebody who has done my best to operate in a bipartisan manner 
throughout my career, it saddens me to see the majority party change 
the rules of the road in this way pushing through nominees that are far 
outside the mainstream, destroying bipartisan traditions that have 
stood for decades, even more than a century, reshaping the judiciary at 
the behest of extremist, right-wing outside groups that put the 
interests of the wealthy and powerful over the vulnerable.
  These actions by the majority collectively pull bricks from the 
democratic foundations of our government. They will bring to the 
judiciary same vitriolic discourse that Americans find so disgusting in 
the Congress. They undermine the public trust.
  In the long run, it will be an open question whether the current 
structure of the courts will survive.
  As for today, I want my colleagues to understand what is at stake as 
the Senate prepares to vote on the Bounds nomination. This nominee 
concealed disturbing, intolerant writings from his past, misleading the 
bipartisan committee that reviewed his candidacy.
  The White House and Republican leaders here in the Senate have 
apparently decided that does not matter, and now, a century-old 
bipartisan tradition that protects our power as Senators and acts as a 
moderating force on the courts is on the ropes. In my view, this will 
forever change how judicial nominations are handled. It will further 
divide the Congress, and it will further divide the courts along 
partisan lines.
  And this will only be a preview of the tense debate on the judiciary 
that is sure to come in the months ahead.
  I will close with one last point.
  There are values on the line now that are important to the people of 
my State and to Americans, particularly the right of all American women 
to make their own choices about their reproductive health and their 
healthcare. The Roe case is settled law, and it has been that way for 
45 years, but now there is really a prospect of its being turned back. 
The poor and the vulnerable have the most to lose. These are all issues 
that are part of the broader context I wanted to address here tonight. 
I am not sure if Senator Merkley was here at the particular moment.
  I see my colleagues who have been very patient because my time has 
expired.
  We had a bipartisan selection committee for judges in our State, with 
the late Mark Hatfield and Gordon Smith, who was Senator Merkley's 
predecessor--Democrats, Republicans--all of whom said we don't want to 
bring the same vitriolic discourse to judicial selection that 
constitutes so much of the public debate today.
  What we sought to do in the Oregon congressional delegation--Senator 
Merkley, Senator Hatfield, Gordon Smith--was to buttress the public 
trust. What we are seeing now in Oregon and with the judges who are 
being given, in my view, such short shrift--such unfair treatment--
raises the question of whether the current structure of America's 
courts can survive. That is what is at stake in these votes.
  I think what we are discussing tonight is going to only be a preview 
of the tense debate on the judiciary that is sure to come. I think we 
are capable of better. Oregon has shown it for two full decades as it 
relates to judicial selection.
  I urge the Senate to return to that kind of collegial process, 
exemplified by the blue slip, exemplified by the Oregon bipartisan 
selection committee. Until that happens, I will have to urge a ``no'' 
vote on the Bounds nomination.
  I thank my colleagues for their patience.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I rise not even, I guess, 24 hours since 
the news broke across the airwaves about what the President was saying 
and what he was not saying in Helsinki with Vladimir Putin being just a 
few feet away from him. That was a terrible moment for our country.
  Yet, in the aftermath of that, folks came together from across the 
country and from across all kinds of usual lines of division. Democrats 
and Republicans came together to express both outrage at the insult but 
also, I think, to express a sense of solidarity about the path 
forward--that this moment of crisis in our national security has to be 
met with bipartisan consensus. Thank goodness that has prevailed so 
far. We have a long way to go, but that was a good moment for the 
country after a very bad moment.
  I am not here tonight to talk about that, but I want to point to it 
as an example of the sides coming together on a big issue. I think 
there have been other moments this year. At one point, when we passed 
appropriations legislation, there was a strong investment in national 
security and national defense but also investments in priorities like 
education and healthcare and the opioid crisis and childcare and the 
National Institutes of Health--on and on. Great investments for our 
country will help us grow and make us stronger. The farm bill recently 
passed the Senate. That was overwhelmingly bipartisan. So there have 
been good moments.
  I am afraid, on the Judiciary, we have had, unfortunately, the 
opposite. Since I have been in the Senate--and as Senator Wyden 
referred to earlier--I have had the privilege of working with 
colleagues on nominations for the U.S. district court in Pennsylvania--
for the Eastern District, the Middle District, and the Western 
District. It has been a collaborative process. Since 2011, in working 
with Senator Toomey, even though we are on opposite sides of the aisle, 
we have confirmed--I think it is--14 judges because we have 
collaborated. There has been give-and-take, and there has been review 
and scrutiny and then, ultimately, consensus in allowing a candidate to 
go forward.
  No Federal judge in those years would have gone forward without the 
signing of the blue slip that has been referred to tonight by both 
Senators. It happened in the past when there were two Republican 
Senators, but now, with a split delegation, that tradition continues in 
our State. It is a good tradition. It is the right way to do it.
  That tradition prevailed until recently, when it came to appellate 
court judges--in my case, in the U.S. Court of Appeals for the Third 
Circuit, which includes Pennsylvania, New Jersey, Delaware, and the 
Virgin Islands. Even at the very end of the Obama administration, my 
colleague from Pennsylvania objected and would not return a blue slip. 
That nomination for the Third Circuit, at that time, did not go 
forward. I respected the blue slip that my colleague decided not to 
sign. The Obama administration respected it, and that nomination didn't 
go forward. I didn't like it, but that is what the agreement was.

  Now we are into this new world where, just recently, as our two 
colleagues from Oregon are talking about

[[Page S5021]]

what has happened in the Ninth Circuit, which is in the northwestern 
corner of our country, and in the Third Circuit, which is where I live 
and where I work, we had a nomination go forward without a blue slip 
that had been signed by me. My point of view was disregarded by both 
the White House and the Senate Judiciary Committee in contravention of 
years of tradition--and not tradition for the sake of tradition but of 
practice because it allows you to arrive at a consensus pick that both 
parties have to agree on.
  That is not good for the Senate. It is not good for the judiciary. It 
is, ultimately, not good for the American people because, if one party 
has total control, as the Republican Party has now with both Houses of 
Congress and the administration, you are going to get judges with only 
one point of view. That leads me to my last point for the night, which 
will take a few minutes, but I want to make sure this gets on the 
record.
  Another piece of bad news, in terms of the judiciary, unlike the 
other good news about consensus in other areas of our work, is what has 
happened under this administration with regard to the selection process 
for the Supreme Court. This has never happened before when, during a 
campaign, organizations--in this case, only two--come together and 
present a list of names. That list of names is, in essence, a bargain 
between a candidate and those groups. Then that is carried forward to 
the administration. Now we have a list of just 25 names--25. The last 
time we checked, there were about 700 Federal judges in the United 
States of America. The President could pick any one of those Federal 
judges. Many of them--I don't know how many--had been chosen by 
Republican Presidents. Many of them are very conservative or 
conservative, and some are moderates.
  Apparently, the only way you get on that list is to be hard right. 
You have to pass whatever tests are applied by the Heritage Foundation 
and the Federalist Society. This list has been designed to do the 
bidding of corporate special interests that are determined to handle 
healthcare in a fashion that none of us would want it handled--by 
giving the power back to insurance companies to make decisions on 
healthcare. It is a corporate agenda that crushes unions or seeks to 
crush unions. It represents working men and women and promotes policies 
that, in my judgment, will leave the middle class further behind. So 
any judge on this list, which I would argue is a corrupt bargain 
between the advocate and those groups and now the President and those 
groups, is fruit of a corrupt process.
  Just by way of example, the Heritage Foundation is an extreme 
rightwing organization. That organization just released a new proposal 
to end protections for people with preexisting conditions, to gut 
Medicaid for seniors, people with disabilities, and children. They 
recently hosted a press conference for Republican attorneys general who 
are trying to eliminate those protections through the courts. Just in 
one State, Pennsylvania, more than 5.3 million people have preexisting 
conditions. That is almost half the population of Pennsylvania. Those 
5.3 million people include over 643,000 children who have preexisting 
conditions.
  The Heritage Foundation wants to take us back to those dark days in 
which you could be denied treatment or coverage because of your having 
a preexisting condition. I don't know many Pennsylvanians who want to 
go back to those days, to turn back the clock in that fashion.
  The Heritage Foundation also called labor unions cartels. Labor 
unions, of course, helped to build the greatest middle class ever known 
to man. In my State, from the formation of the first permanent 
Pennsylvania local labor union in Philadelphia in 1792 to the Lattimer 
massacre in Northeastern Pennsylvania, which is one county away from 
me, to the Homestead strike in Western Pennsylvania--in all of those 
struggles, Pennsylvania's workers have led the way to ensuring that 
working people have basic rights, good wages, and of course benefits 
like healthcare. Yet you have organizations in the United States of 
America that want to rip away protections that people recently gained 
when it comes to healthcare.

  The last thing--the very last thing--working men and women in 
Pennsylvania need is another corporate judge on an increasingly 
corporate court.
  Here is some evidence for that assertion. A review by the 
Constitutional Accountability Center shows the consequences of the 
Court's corporate tilt, finding that the U.S. Chamber of Commerce has 
had a success rate of 70 percent in cases before the Roberts Court 
since 2006, a significant increase over previous Courts that were 
thought to be conservative, I guess.
  In the most recent term, the Court sided with corporate interests in 
9 out of 10 cases in which the U.S. Chamber of Commerce advocated for a 
position.
  I was elected by the people of Pennsylvania to represent all 
Pennsylvanians and to advance policies, especially when it comes to 
making decisions about judges and Justices in a fashion that would give 
meaning and integrity to what is inscribed on the Supreme Court: 
``Equal Justice Under Law.''
  I was not sent here to genuflect to the hard right or to any 
organization. In this case, I certainly was not sent here to genuflect 
to the hard right with regard to groups funded by corporate America.
  President Lincoln said it best about what he hoped our Nation would 
be. He called on our Nation to work to ensure ``that government of the 
people, by the people, for the people, shall not perish from the 
earth.''
  It seems that some in Washington today--and I have to say, the 
administration with them, with this nomination to the Supreme Court, 
most recently announced--are determined to pack the Court with a 
government of, by, and for extreme right, corporate special interests. 
So I oppose the President's nomination because it is a corrupt bargain, 
as I said before, with the far right, big corporations, and what can 
only be called Washington special interests.
  On a night like tonight, when we are talking about major matters of 
justice--how our courts will function, whether they will be balanced, 
whether there will be mainstream judges and Justices--I hope we will go 
back to that model that still prevails in some States--I would say in 
most States--when it comes to district court judges: collaboration 
between and among Democrats and Republicans. It is now being jettisoned 
at the appellate court level, certainly in the Third Circuit and now 
apparently in the Ninth Circuit and several others. Of course, on the 
Supreme Court, there is no consultation. There is consultation with two 
groups; that is it--and maybe some others who get to be in the room. 
But if you are a conservative judge in America today, appointed by a 
Republican, you need not apply to become a Supreme Court Justice. You 
have to be hard right enough to be on that list of 25. You could be one 
of those hundreds of conservative judges, but you are not going to get 
on the list of 25 because you haven't demonstrated that you are hard 
right enough.
  I think it pains all of us that we are at this point. There were 
days, not too long ago, when Presidents consulted with both parties 
before--before--a Supreme Court nomination. We know that. That is on 
the record, as clear as day. But now we have this list, and only the 
list for the Supreme Court. Now we have blue slips that are being 
thrown out the window or not honored when it comes to the appellate 
courts. I hope that this kind of cancer doesn't go all the way to the 
Federal district courts.
  I think all of us wish we were in a different place, and I hope we 
can return to those traditions that lead to consensus and, I think, 
lead to bipartisan collaboration and, ultimately, better fulfillment of 
that goal and that value of equal justice under law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I rise today to join many of my 
colleagues who have come to the floor to speak about our country's 
third branch of government; that is, our courts.
  Senators have a solemn obligation to advise and consent on the 
President's nominees to our Federal courts. As a member of the 
Judiciary Committee, I take that obligation very seriously.
  As Senator Merkley--who is heading up this evening's speeches and has 
brought a number of people together--knows, it is not just an 
obligation of

[[Page S5022]]

members of the Judiciary Committee; it is also an obligation of 
Senators, when they look at the judges who are coming out of their 
particular States, to make sure that this is a person--whoever the 
nominee is--who represents our country as an independent voice and 
someone who respects precedent as a member of the Federal bench, 
whether it is on the Supreme Court level or whether it is on the 
circuit or Federal district court levels.
  In the U.S. Senate, we are here to do the people's business and not 
the President's business. This is an important job, particularly when 
it comes to nominees to our Nation's highest Court. The next member of 
the Supreme Court will make decisions that will affect the lives of 
people across the country for generations.
  In the last decades, the Supreme Court has decided whom you can 
marry, where you can go to school, and--for people like my grandpa, who 
was a miner and who worked 1,500 feet underground his whole life--how 
safe your workplace is. Those are decisions that affect people and 
their lives.
  The next Justice of the Supreme Court will make decisions that will 
affect the lives of people across the country, determining whether 
health insurers can deny coverage to people who are sick or have a 
preexisting condition or whether women's rights are protected. These 
are all cases that will be coming to the highest Court of the land. It 
is for this reason that it is critical that here in the Senate, we do 
our jobs and thoroughly examine Judge Kavanaugh's record.
  This is part of our jobs in evaluating Supreme Court nominees, 
regardless of which party controls the White House. In fact, when 
Justice Elena Kagan's nomination was considered, because she had worked 
for an administration, approximately 171,000 pages of documents were 
made available.
  Given Judge Kavanaugh's years of service on the DC Circuit, as well 
as his previous work in the Bush administration, we will need to do due 
diligence in reviewing the record. That is part of our job.
  For a lifetime appointment to our Nation's highest Court, the 
American people deserve no less. This is especially important because, 
for me, many of Judge Kavanaugh's past rulings are very troubling.
  One area that I am concerned about is, of course, related to Judge 
Kavanaugh's record on consumer issues. I have done a lot of work in 
this area, and, of course, I am concerned about the Executive power 
issue. I would say that is a paramount concern, as well as some of his 
other decisions regarding healthcare and women's healthcare, but I want 
to discuss the consumer issues because I don't think they get a lot of 
attention, and they should. They matter to people in their everyday 
lives.
  In his current job, Judge Kavanaugh ruled that the Consumer Financial 
Protection Bureau, which protects consumers when it comes to everything 
from credit cards, loans, and mortgages, was unconstitutional. He also 
went out of his way to dissent against net neutrality.
  Judge Kavanaugh also wrote a dissent that would have limited a 
woman's access to contraception, and he ruled against allowing a woman 
the right to control her own reproductive health in a decision that was 
later reversed by the full DC Circuit.
  We also know that Judge Kavanaugh has criticized the case called 
Chevron, which ensures that health and safety rules stay on the books. 
It is about how you consider agency decisions and the experts in the 
agencies. As I noted in Justice Gorsuch's hearing, overturning Chevron 
would have titanic, real-world implications, jeopardizing rules that 
protect health and public safety, requirements against lead-based 
paint, and clean water protections for our Great Lakes.
  Finally, as I noted at the beginning--I will sort of end with my 
discussion of his rulings as I began--there are concerning implications 
to Judge Kavanaugh's writings, which support an expansive view of 
Executive power. It is an important moment, this moment in our 
country's history. We just saw the President of the United States stand 
next to Vladimir Putin and not publicly raise any of the issues that I 
thought should be raised, and we have Members of both parties gravely 
criticizing those decisions.
  What I can say to the people of our State is, no matter what happens 
in the White House, our Founding Fathers set up a system of checks and 
balances. There is a check because of the courts, which can make 
decisions when they interpret our Constitution. There is also a check 
because of the House of Representatives and the U.S. Senate.
  What does Judge Kavanaugh say about this? When they are in school, 
kids are told--and I know I was told this--that no one is above the 
law. But decisions he has made and his writings would not lead you to 
that same conclusion, that simple lesson that we were taught.
  When you look at the article he wrote for the University of Minnesota 
Law Review, as well as one in the Georgetown Law Journal, he has an 
incredibly expansive view of Executive power. He has said that we 
shouldn't even have a special counsel process, when in fact Members of 
the Senate, including those on the Judiciary Committee, Democrats and 
Republicans, have gone the other way and said: Yes, we want the check 
of a special counsel investigation when it is necessary--as it has been 
found to be in this case by the Trump Justice Department--but we want 
to make sure that the special counsel is protected. That is what the 
Judiciary Committee said.
  We passed a bill out of the committee that strengthened that law and 
made it harder for someone to fire the special counsel. Yet in his 
writings, Judge Kavanaugh said that the President should be able to 
fire the special counsel. He also said that the President should be 
able to deem whether or not a law is constitutional. These are 
certainly questions I will be asking about in the Judiciary Committee, 
and I think we have a right to do that.
  Yes, we can ask about a case that is before the Court, but before I 
came to the Senate, I had seen numerous nominees, including Supreme 
Court nominees, answer questions about cases such as Brown v. Board of 
Education and Griswold v. Connecticut. Justice Alito answered a 
question about that case.
  A number of the nominees on the Supreme Court today have answered 
questions about settled precedent, and I believe we should be able to 
ask Judge Kavanaugh those questions and receive answers, especially for 
cases that are 45 years old.
  People can have certain views on issues. Everyone does; judges do. 
But they have an obligation to follow the Constitution, to follow the 
law, and to respect precedent, and that is going to be our job so that 
the American people can understand where this nominee is coming from.
  First, we will review all of those documents I talked about that are 
sure to come our way, and then, secondly, we will ask the questions the 
American people expect us to ask and get the answers they deserve to 
have.
  I would also like to briefly address one of the two circuit court 
nominees before the Senate this week, because even as we review the 
President's Supreme Court nominee, we cannot lose sight of the 
importance of our lower Federal courts. The overwhelming majority of 
cases are decided by these lower courts. That is why it is imperative 
to have judges who are fair and committed to equal justice under the 
law for all Americans.
  One Senate tradition that has been key to the appointment of good 
judges has been the blue slip. The blue slip is a check and balance 
that has promoted cooperation and better decision making about judges 
across party lines. It is for that reason that I am deeply concerned 
that the Ninth Circuit nominee now on the Senate floor will be 
receiving a vote, despite not having a blue slip from either home State 
Senator.
  Prior to his nomination, no judge has ever been voted out of the 
Judiciary Committee--since I have been there--without a blue slip from 
either home State Senator. Since the tradition has been in existence, 
we have said that there should be a blue slip. There is no blue slip in 
this case. If Mr. Bounds is confirmed, he will be the first judge in 
history to be appointed to the Federal bench without a blue slip from 
either Senator from his home State.

  This is all the more concerning, as noted by Senator Merkley and 
Senator Wyden, because they have tried to

[[Page S5023]]

work with the White House in a bipartisan manner to find a qualified 
nominee to fill this vacancy. They convened a bipartisan committee of 
Oregon lawyers to review applications and make recommendations. This 
committee included attorneys chosen by those two Senators, as well as 
by Republican Congressman  Greg Walden.
  This is how judicial vacancies in Oregon have been filled for the 
past two decades, including the time when former Republican Senator 
Gordon Smith was in office.
  So it is extremely unfortunate that my colleagues have disregarded 
this process. I respect them very much. I think they should have had a 
say. I think they should have been consulted, and I think we should 
follow the blue-slip process.
  Thank you very much, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. SCHUMER. Mr. President, I rise alongside my colleagues tonight to 
speak on two incredibly controversial circuit judge nominees that the 
Senate considers this week.
  The first, Ryan Bounds, of the Ninth Circuit, has not received the 
approval of either home State Senator. The majority is unfortunately 
moving forward with his nomination anyway, breaking a tradition that 
goes back 100 years--a bipartisan tradition, a moderating tradition, a 
tradition we need.
  This is merely the latest example of the majority's sustained effort 
to toss aside the rules and the customs that have guided the judicial 
nomination process for 100 years. In May, Michael Brennan became the 
first circuit court nominee to be confirmed over the blue-slip 
objection of a home-State Senator.
  If Judge Brennan's confirmation wasn't proof enough, the majority, by 
moving to vote on Bounds over the objections of both Oregon Senators, 
is signaling loud and clear that future Presidents need not work with 
Senators to ensure the selection of consensus nominees to fill these 
lifetime appointments.
  For the past 20 years, including during the Bush administration, the 
Oregon Senators have convened a bipartisan judicial panel to interview 
candidates. Although Bounds was one of the candidates approved by the 
committee, it was later discovered that Bounds misled the committee 
about a number of highly controversial articles he wrote while in 
college. The majority unfortunately is moving forward on his nomination 
anyway.
  Five of the seven members of the committee--a bipartisan committee--
including the chair, said they would not have recommended Bounds if 
they knew of his writings at the time they interviewed him. The 
majority is unfortunately moving forward with his nomination anyway.
  In light of these inflammatory writings--and they were truly 
inflammatory and nasty, unbecoming of someone being a town circuit 
judge, let alone a court of appeals judge--and the bipartisan 
committee's assertion that they should be disqualifying, Senator 
Merkley and Senator Wyden, correctly and wisely, refused to support his 
nomination, but the majority is moving forward on his nomination 
anyway.
  I might say about Bounds that he is not a judge. He doesn't have much 
of a history. He practiced in a private law firm. It seems he is a 
member of the Federalist Society--hard right. That is his only real 
qualification. Is he a thoughtful jurist? Obviously not. Is he a 
moderate jurist, neither far right nor far left? Obviously not. This is 
what we are doing on the bench these days. The hard right, the 
Federalist Society, which is probably in the 10 percent furthest to the 
right in America, chooses the judges, and nobody objects on the 
Republican side.
  Now, another nominee, Mr. Andrew Oldham, for the Fifth Circuit, is 
even more disturbing for a lifetime appointment on the Federal bench. 
Mr. Oldham's career leaves no doubt that, if confirmed, he would be the 
living embodiment of a judicial ideologue. This is a hard-right 
warrior. He helped to defend a Texas law that would make it virtually 
impossible for women in rural areas to exercise their constitutionally 
guaranteed freedom to make decisions about their reproductive health. 
It was a law designed to tell rural women that they couldn't have 
freedom of choice. It was an absurd law, struck down by the Supreme 
Court in 2016. This is the kind of man we are putting on the bench.
  As the Texas solicitor general, he defended the State's extremely 
restrictive photo ID laws, which a Federal court of appeals ruled 
created an unconstitutional burden on the right to vote, had an 
impermissible discriminatory effect against Hispanics and African 
Americans, and was imposed with an unconstitutional discriminatory 
purpose. The purpose that this nominee had in this law was to prevent 
people of color and poor people from voting. There was very little 
evidence of any fraud. This is the kind of person we are adding to the 
bench?
  Mr. Oldham helped to lead the charge on litigation challenging the 
constitutionality of our healthcare law--a law that most Americans 
support. He lost at the Supreme Court, once again. Now the Republicans 
want to give him a promotion, putting him in a position to rule on 
future cases concerning the law.
  Here is what Mr. Oldham said about the EPA: It is ``illegitimate.'' 
He repeatedly helped Texas to join Oklahoma--and then-Oklahoma Attorney 
General Scott Pruitt--to sue the EPA. Let me repeat that. Oldham 
considers the EPA illegitimate. The rightwing media has gone crazy 
about ``Abolish ICE.'' Meanwhile, the Senate Republican majority is 
about to vote to give a lifetime appointment to a man who wants to 
abolish the EPA.
  ``Abolish the EPA'' is a position I think none--none--of my 
Republican friends would dare support in public, would dare vote for--
get rid completely of the Clean Water Act, the Clean Air Act? But they 
are happy to vote for a judge who believes in it and might help do it 
for them.
  Mr. Oldham is so far out of the political mainstream that he doesn't 
represent the average Republican, let alone the average American. I 
hope his nomination will be objected to.
  The truth is that Bounds and Oldham are part of a decades-long 
campaign by the hard right to install conservative ideologues on the 
Federal bench. They started it. Bork did not start this. It started 
when George W. Bush became President and his deal with the hard right 
was this: I will put these new nominees on the bench who are 
ideologues. They don't want to interpret law; they want to make law. 
That is what the Republicans have been doing.
  When Clinton was President and when Obama was President, most of the 
judges they chose were moderate to liberal. They were not extreme. But 
the hard right has such a grip on the Republican Party these days--the 
Federalist Society, the Heritage Foundation, way out of the mainstream.
  Most Americans don't believe in repealing Roe v. Wade. It is the 
mission of the Federalist Society. Most Americans don't believe the 
government should get out of healthcare altogether--Medicare, Medicaid, 
ACA. It is the goal of the Heritage Foundation. But they put these 
judges forward. President Trump has gone along with their lists and 
their nominees. Unfortunately, we don't hear a peep out of our 
Republican colleagues as the hard right hijacks the judicial bench in 
America.
  The goal of this campaign is to achieve by judicial fiat what 
Republicans have been unable to accomplish through legislation. This 
hard-right agenda--extremely pro-corporate, extremely anti-consumer, 
anti-environment, anti-gun safety--must be pursued through the courts 
because the hard right--the Koch brothers and all of these hard-right 
groups--realize that they never get things through even a body like the 
Senate, where they have a majority of the Republicans, or the House. 
They want the one nonelected branch to turn the clock back decades, if 
not centuries. It will hurt America. It will fractionalize America. The 
middle class will be worse off. But the hard-right knows that these 
types of nominations don't get much focus.
  An apotheosis of this is the nomination of Brett Kavanaugh to the 
Supreme Court as well. Kavanaugh was groomed as a partisan lawyer in 
the Clinton and Bush eras. He was added to a list of 25 judges vetted 
and approved by these two groups--the Heritage Foundation, dedicated to 
getting rid of Medicaid, getting rid of Medicare, getting the 
government out of healthcare altogether and letting people struggle,

[[Page S5024]]

letting those parents who have kids with illnesses never get insurance; 
and the Federalist Society, dedicated by its leader, by its own 
admission, to repealing Roe v. Wade. An analysis of the judicial 
philosophy of Kavanaugh by Professor Lee Epstein found that Judge 
Kavanaugh would be the second most conservative Justice on the bench, 
even to the right of Justice Gorsuch and second only to Justice Thomas, 
one of the most extremely conservative judges who has ever been on the 
bench.
  That political and judicial history is key to understanding how 
Kavanaugh would rule as a member of the Supreme Court. On issues like 
healthcare and reproductive rights, on which the President has been 
crystal-clear about picking judges who are anti-Roe and hostile to 
healthcare, Judge Kavanaugh will have an enormous and unfortunate 
impact, if confirmed. After what the President has said, after knowing 
what the Federalist Society and the Heritage Foundation stand for, does 
anyone think Judge Kavanaugh would have been nominated by those parties 
if they weren't sure he would repeal or dramatically limit the ACA or 
Roe v. Wade?
  Judge Kavanaugh, like Mr. Oldham and like Mr. Bounds, is outside of 
the political mainstream--dramatically outside--even outside of the 
Republican mainstream. It is part and parcel of the hard-right campaign 
that Republicans bow down and go along with to install conservative 
ideologues on the bench.
  So I would say to my fellow Americans: No matter what your political 
persuasion--Democrat, Republican, Independent--everyone should want a 
more representative process for choosing judges and Supreme Court 
Justices in the Senate. Instead, humming in the background of the 
Senate's more newsworthy business, the Republican majority has 
confirmed a conveyor belt of nakedly partisan, ideological judges to 
the bench. Senators from both parties, in an America that wants 
moderation, should lock arms and put a stop to it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I so appreciate my colleagues from 
Minnesota and New York coming to the floor to share their insights on 
this challenge that we are in, where a 101-year-old convention is about 
to be smashed to smithereens by the majority in a determination to pack 
the courts and corrupt the constitutional application of law and in a 
determination to have judges who are not at all interested in the way 
the people envision our Nation. They are not at all interested in the 
rights of workers. Rather, they twist each provision to enable the 
powerful in our country to repress the workers of our country, to 
enable the interests of our country that simply want to roll on, on a 
commercial plane, to take away the ability of consumers to get a fair 
shake. They want to take away the ability of individuals to have fair 
access to healthcare. They want to take away one right after another 
after another on behalf of the wealthy and the well-connected. This 
corruption--this legislating from the bench that is occurring from the 
far right--absolutely flies in the face of the fundamental nature of 
our Constitution.
  But here it is. Not only is it their quest to put the powerful in the 
catbird seat to rule over everyone else in this country, to undermine 
the fundamental strategy of the distribution and equal voice principle 
that Jefferson so forcefully articulated, but they are even willing to 
run roughshod over their own rights in the future, because each and 
every person who votes for a judge who has no blue slip--not one, not a 
single blue slip--is saying that in the future they are giving up the 
ability to be consulted when it is an individual who has been assigned 
to their State for the circuit court. That is how intense they are at 
this moment of dancing to the tune played by the Koch brothers and the 
Federalist Society. It is really one of the saddest things we have seen 
in a series of abuses of the process here in the U.S. Senate.

  This nomination ends a tradition that has served our country well for 
over a century. It is a tradition that--just a brief span of time ago, 
my colleagues across the aisle were pleading with the Democratic 
majority to respect their rights. But not now. Not now. This is one of 
those cases where, in the transition from minority to majority, views 
have been flipped 180 degrees--a tradition since 1917, when Senator 
Thomas Hardwick objected to President Wilson's district court nominee, 
writing his objection on a blue slip of paper. That is where the phrase 
comes from. Not since then has any judge for the circuit court or 
district court ever been confirmed without a blue slip.
  In 2009, my Republican colleagues wrote a letter. All signed on to 
it. They wrote: We expect the blue-slip tradition to be observed 
evenhandedly and regardless of party affiliation.
  I ask you, which Member across the aisle has the consistency to stand 
up and honor the very principle they asked to be honored when then in 
the minority? Who? We are waiting. We are waiting for just one to come 
to the floor and be consistent in honoring the principle they begged 
the Democrats to honor when we were in charge.
  To be sure, when the tide turns and they again say suddenly that they 
love this tradition, and won't the Democrats once again honor the 
tradition they begged us to honor in 2009, 2010, 2011, 2012, 2013, and 
2014? They begged us to honor it. They are going to be back asking 
again. But you cannot expect that after smashing this tradition, you 
can ask to have it back. So when it comes your turn, if you don't have 
any integrity today to honor the principle you begged for yesterday, 
don't let us hear you begging for it in the future.
  What did people have to say in the past? The former chair of the 
Judiciary Committee at the time, in 2014, said: ``Weakening or 
eliminating the blue slip process would sweep aside the last remaining 
check on the President's judicial appointment power.'' That is what the 
Republican chair said when President Obama was in office. He said: 
``Anyone serious about the Senate's constitutional `advice and consent' 
role knows how disastrous such a move would be.'' Why isn't one of my 
colleagues today coming down to say how disastrous it would be?
  Our majority leader said just recently that Republicans will now 
treat a blue slip as simply notification of how you are going to vote. 
Is that the way each and every one of you wants it to be from this 
floor, that while you have had the privilege in the past of weighing in 
on an individual assigned to your State, no more will you be treated 
differently from any other Senator because you are just being given a 
chance to indicate how you are going to vote? That is what the majority 
leader says we are going to reduce your Senate prerogative to, which 
means it is gone, it is no different from any other Member here.
  There was a whole logic behind this blue-slip process, a logic that 
each circuit should have input from Senators whose States were 
represented on those circuit courts and that when the individual came 
from those respective States, it made sense to get the insight of the 
Senators from that State, not have decisions about your particular 
circuit court made by somebody from across the Nation. But that is 
where we are headed to now.
  This nomination was tainted from the start because the President 
didn't consult with our senior Senator from Oregon, Mr. Wyden, or with 
the junior Senator; didn't call us up; didn't sit down; didn't invite 
us to a meeting; didn't hold a conversation; didn't have a dialogue; 
didn't consult. So don't expect any consultation in the future if you 
vote for this nominee.
  Then at the end of the year, when the nomination was returned, we 
told the White House: You have another chance to wait until you get 
some consultation done, until you talk to us. No. They just forwarded 
it back again--no consultation. So there it is.
  When this individual, Ryan Bounds, was interviewed by our committee 
in Oregon, he was asked to provide anything that was potentially 
controversial from his past, and he didn't. He was asked about his 
views on diversity and what information he had put out in the past, and 
he didn't supply any. So not only are there the controversial 
viewpoints of the past, there is a lack of integrity in the present. It 
isn't as if Senator Wyden and I took it lightly. But how can you expect 
people to get a fair hearing or believe they have any chance of getting 
a fair hearing with these types of opinions being expressed?

[[Page S5025]]

  What did he say on diversity? He said that students working to 
``promote diversity . . . contribute more to restricting consciousness, 
aggravating intolerance . . . than many a Nazi bookburning.'' So if you 
advocate for diversity, you are compared to being an individual who 
burns books--not just any individual; a Nazi burning books.

  That wasn't his only comment on diversity. He wrote quite 
extensively. Another phrase he used is that diversity training is a 
``pestilence'' that ``stalks us,'' as if it is some kind of grim reaper 
to encourage people to reach out and embrace people who come from a 
different point of view or a different color or come from a different 
State. That is what he thought, that any training you might have in how 
to understand your own internal prejudices is a pestilence that stalks 
us.
  He didn't like the fact that the university was trying to address the 
issue of men abusing women. He said that there is ``nothing really 
inherently wrong with the University failing to punish an alleged 
rapist.'' That is what you want to vote for?
  He said more. He really disliked minority groups on campus taking a 
position on anything. In his essay ``Labor Unions and the Politics of 
Aztlan,'' he said: ``I would hardly suggest that no student group 
should be able to take up a political matter, if it is of direct 
relevance to its purported mission.'' So he is not objecting to most 
groups weighing in on something related to their vision, but, he said, 
``I would contend, however, that no student group that is affiliated 
with an ethnic center or any other department of this university has 
any business holding political issues central to its mission.''
  So if you are a member of a student group that isn't an ethnic group, 
it is wide open--demonstrate, argue, involve yourself, engage. But if 
you happen to be a member of an ethnic club or group on campus, then no 
way. You have no business taking a position.
  How can anyone expect to get a fair hearing with someone with this 
extensive hostility toward ethnic diversity or ethnic groups? That is a 
pretty serious question to ask yourself in your responsibility of 
advice and consent, in your responsibility to ensure that there is not 
just integrity on the court but a perception of integrity, not just 
fairness on a court but a perception of fairness. How does anyone get a 
perception of fairness with these writings?
  Mr. Bounds had the opportunity to inform the committee of these 
writings, but he chose not to. He kept them hidden away. The head of 
the Oregon selection advisory committee wrote the following: ``Mr. 
Bounds failed to disclose these writings when specifically asked by the 
committee about his views on equity and diversity.''
  He did get asked about them later when they were discovered. There 
was a hearing in the Judiciary, and he had a chance to respond in 
questions for the record. He wrote in response that he regretted the 
rhetoric in the articles, but he didn't repudiate the viewpoint. He 
regretted, apparently, the particular words he used to express it, but 
he didn't say that he repudiated the viewpoint on his commentaries 
attacking diversity, attacking diverse clubs, saying that every other 
club has a right to participate and engage itself in issues relevant to 
its mission except the ethnic clubs. He didn't repudiate that. How do 
you expect to get a fair hearing before this judge?
  At his hearing before the Judiciary Committee, in questions for the 
record, Senator Blumenthal asked if he regretted not turning over the 
writings to the Oregon screening committee. He replied that it seemed 
reasonable to him that there wouldn't be a lot of interest in writings 
that have no bearing on someone's professional practice. These writings 
have everything to do with his professional practice, his consideration 
as a judge--a circuit court judge, not a district judge. He is not 
being nominated for the bottom rung; he is being nominated to the rung 
next to the Supreme Court. You don't think it has a bearing that you 
have written these things? You don't think it has a bearing that you 
hid them from the committee? That in itself tells you a great deal.
  It is why this nomination is opposed by so many groups: the AFL-CIO, 
the Leadership Conference on Civil and Human Rights, the National 
Women's Law Center, the Oregon Women Lawyers Association, the Asian 
Pacific American Bar Association of Oregon, the Oregon Hispanic Bar 
Association, the LGBT Bar Association of Oregon.
  Why wouldn't they oppose when you have an individual who failed the 
integrity test by hiding the writings, doesn't repudiate the writings, 
and has it in for diversity and minority groups?
  Records are being broken. Two nominees up this week would mean 23 
appeals judges confirmed. A lot are being confirmed. There are a lot in 
waiting. Why not bring someone to the floor who doesn't have these deep 
flaws? Why not vote down this individual and put up the next one?
  We have already broken the record for confirmations in the 
President's first year, last year. Obama's 14 circuit court nominees 
waited an average of 251 days; Trump is half that at 125 days--less 
than half. We are marching through this.
  Why not bring someone else to floor? Why not set this one aside? 
Because it fails the test of being fairminded and fails the test of 
integrity. Putting this judge forward does something else. It is not 
just a judge who fails the test on integrity and fairness; it is also 
the destruction of your rights, each and every Senator here, to have a 
say on circuit court nominees in your circuit. Is that really the place 
you want to go?
  We have seen judges come before us who have had hearings held without 
ABA evaluations. We have had two considered who were unanimously rated 
``not qualified.'' We certainly, therefore, have a lot that has changed 
dramatically. Last year was the first time that a seat had been stolen 
from one administration and set a year into the future. That is a 
precedent everyone here should regret--to have failed advice-and-
consent responsibilities, which is a failure that no other set of 
Senators ever failed before. Fifteen times before, there have been open 
seats during an election year. Fifteen times before, the Senate debated 
the nominee. Fifteen times before, they voted on the nominee. But not 
last year.
  The leadership of this body failed the test of leadership by failing 
to consider a nominee from the President for the Supreme Court. Is that 
the precedent you want to live with for the future?
  Of course, now we have a new nominee for the Supreme Court. Not only 
does this nominee come from a list secretly compiled by the Federalist 
Society to make sure that they met the test the President had put 
forward--opposing Roe v. Wade, opposing the Affordable Care Act that 
has provided healthcare to another 30 million people across this land, 
400,000 in my own State, but also the President chose off that list the 
one person best suited to write him a get-out-of-jail free card because 
of the massive, expansive view of Presidential power--a view of 
Presidential power you can find nowhere in the Constitution; a view 
that is completely at odds with the checks and balances our Forefathers 
so carefully crafted into that document; a view that says that a 
President should never be indicted and, even more extraordinary, never 
be investigated. That is a President above the law. That is a President 
beyond the law. That is something that is not a President. That is a 
King. That is a tyrant. That is a dictator who answers to no one 
because he or she is above the law. That is not a President in a 
constitutional democratic republic where there are checks and balances.
  Indeed, this nominee has said that if a President deems a law to be 
unconstitutional because it is his or her opinion, the President 
doesn't need to follow the law. Can anyone remind this nominee for the 
Supreme Court that our system was designed to let the Supreme Court 
weigh in on what is and isn't constitutional, not to have a President 
dictate that? It is a scary proposition, an unworthy proposition to 
have that individual considered on the floor of this Senate.
  In Federalist Paper 76, James Madison said that it is the duty of the 
Senate to prevent the appointment of unfit characters. Each and every 
Member of this Senate on both sides of the aisle has that 
responsibility.
  These are questions you have to ask yourself: Is the person fit when 
they say the things that Ryan Bounds said? Is a person fit to serve on 
the bench

[[Page S5026]]

when they say that no student group affiliated with an ethnic center 
has any business holding political issues central to its mission right 
after he writes that other groups should have that power?
  Is the individual fit who says that promoting diversity contributes 
more to restricting consciousness and aggravating intolerance than a 
Nazi book burning?
  Is the person fit who says that training in diversity--training that 
each and every one of us has to take and our staff members have to take 
in this body--is a pestilence that stalks us, as if embracing the 
notion of understanding one's own biasses is an evil thing?
  Is the person fit who said there is nothing wrong with the university 
failing to punish an alleged rapist?
  Is the person fit who hid these writings from the selection 
committee?
  Is the person fit when the selection committee said that based on 
these writings, they would vote overwhelmingly not to recommend this 
individual?
  Is the person fit when they fail the test of integrity and are asked 
to produce their views on diversity and hide them?
  I contend that standard that James Madison laid out for the 
responsibility of advice and consent--that standard of voting down 
individuals who are unfit--has rarely had a clear opportunity to be 
executed and should be executed 100 to 0 in turning down this 
nomination and in preserving the blue-slip tradition.

                          ____________________