[Congressional Record Volume 165, Number 40 (Wednesday, March 6, 2019)]
[Senate]
[Pages S1696-S1697]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Judicial Nominations
Mrs. FEINSTEIN. Mr. President, I rise today in opposition to three
circuit court nominees who will receive votes on the floor this week:
Allison Jones Rushing, nominated to the Fourth Circuit Court of
Appeals; Chad Readler, nominated to the Sixth Circuit Court of Appeals;
and Eric Murphy, also nominated to the Sixth Circuit.
I want to begin by addressing how these nominations were handled and
the ongoing disregard for Senate norms and traditions by Republican
leadership. Most notable is the change in how blue slips are treated.
Blue slips work. The blue slip ensures that the interests of home State
Senators are respected when it comes to judicial nominees from their
States.
Honoring blue slips helps guarantee that the White House nominates
well-qualified, mainstream individuals to key seats on the circuit and
district courts, and it prevents the selection of nominees who do not
reside in the circuit in which they are slated to serve.
In the past century, before President Trump took office, only five
judges had ever been confirmed with only one blue slip; two were by a
Democratic chair over the objection of a Democratic Senator, not over
the objection of a Republican, then in the minority. The other three
instances occurred when a Republican chairman overruled a Democratic
Senator.
In fact, Democratic chairs have never moved a judicial nominee to
confirmation over the objection of a Republican Senator. Let me say
that again: Democratic chairs have never confirmed a judicial nominee
without a blue slip from a Republican Senator.
However, since President Trump took office, 10 circuit court nominees
have received hearings, and four have been confirmed over the objection
of Democratic home State Senators. In just over 2 years, Republicans
are on their way to doubling the number of judges confirmed over the
objection of home State Senators than have been confirmed in the last
100 years.
This week we are considering both Mr. Readler and Mr. Murphy who lack
blue slips from Ohio's Senior Senator, my friend and colleague Senator
Brown.
Senator Brown's opposition was not unreasonable; in fact, Senator
Brown worked with the White House for weeks in an effort to find
consensus picks for the Sixth Circuit.
But the White House refused to cooperate, and he was left with no
choice but to withhold his blue slip. In doing so, Senator Brown said:
``I cannot support nominees who have actively worked to strip Ohioans
of their rights. Special interests already have armies of lobbyists and
lawyers on their side, they don't need judges in their pockets.''
Further, when the majority did move forward on the nominations of Mr.
Readler and Mr. Murphy, the two appeared on the same panel at the same
hearing. With 5-minute rounds of questioning, these stacked circuit
court hearings make it all but impossible for Senators on the committee
to thoroughly vet judicial nominees, and that, in turn, makes it
impossible for this body to fulfill its obligation of providing advice
and consent.
Ms. Rushing's nomination is also the product of a departure from
Senate norms. Then-Chairman Grassley held Ms. Rushing's hearing on
October 17, 2018, during an extended Senate recess. Only two Senators
questioned Ms. Rushing, and no Democrats were present to question the
nominee.
These process violations matter. They matter because they impact the
quality of the nominees we are considering and the ability of the
nominee to reflect the State and community to which they are being
nominated.
We have already seen several nominees who have had no judicial
experience, and others with no trial experience whatsoever. We have
seen nominees who have been rated unqualified for lack of experience
and also for lack of judgement, ethical problems, and issues with
impartiality and temperament.
This isn't a partisan issue. This is an issue that should concern
Senators from both sides of the aisle. At a time when Americans
increasingly distrust the institutions of our government, we should not
be degrading the Federal judiciary with unqualified and ideological
nominees.
Turning to the nominees themselves, I first want to discuss Allison
Rushing. Ms. Rushing is only 36 years old. In fact, she has practiced
law for only 9 years. She has never tried a case in the Fourth Circuit,
the court to which she has been nominated, and she was not even
admitted to practice in the Fourth Circuit until 2017; yet she is being
nominated to serve on a Federal circuit court.
Even in her limited experience, Ms. Rushing has demonstrated strong
ideological views. For instance, in 2013, Ms. Rushing spoke about the
Supreme Court's decision to strike down a key provision of the Defense
of Marriage Act. She claimed that Justice Kennedy had written ``the
opinion in a unique way that calls it bigotry to believe that
homosexuality does not comport with Judeo-Christian morality.''
Ms. Rushing also demonstrated her hostility to the rights of
employees in a brief she submitted in a 2018 Supreme Court case. Ms.
Rushing argued that employment agreements requiring employees to waive
their rights to go to court as a condition of employment should be
allowed, even though most people don't have a choice to turn down a
job.
Ms. Rushing's view prevents employees who have entered arbitration
agreements from bringing lawsuits against their employers, even if the
employers have violated their rights or fired them against the law.
As the dissent pointed out, Ms. Rushing's position risked leading to
``the under-enforcement of federal and state statutes designed to
advance the well-being of vulnerable workers.''
I next would like to address the nomination of Chad Readler. Mr.
Readler previously headed the Justice Department's Civil Division. In
that position, he defended some of the most troubling policies this
administration has implemented. He defended the President's decision to
end the DACA program, the policy to separate immigrant children from
their parents, and the President's Muslim travel ban.
Most concerning, however, is that Mr. Readler led the
administration's efforts to overturn the Affordable Care Act. Mr.
Readler argued that the healthcare law's protections for preexisting
conditions should be struck down. Even Senator Lamar Alexander called
the arguments made in Mr.
Readler's brief ``as far-fetched as any I've ever heard.''
Finally, the Senate is voting on Eric Murphy to the Sixth Circuit. As
the chief appellate lawyer for the State of Ohio, Mr. Murphy led the
State's defense of its law banning same-sex marriage, which was struck
down by the Supreme Court in Obergefell v. Hodges. Jim Obergefell wrote
an op-ed recently saying: ``Barely four years ago, Mr. Murphy made a
forceful argument that my marriage was unconstitutional. As the
attorney tasked with defending Ohio's discriminatory ban on same-sex
marriage, he used dog-whistles . . . [I]f Murphy had been successful,
[my husband] and I, and tens of thousands of couples like us, would
have been denied the right to marry and forced to live as second-class
citizens.''
Mr. Murphy also led Ohio's defense of restrictive voting laws,
including the Ohio law allowing the State to purge eligible voters if
they missed voting in just one Federal election, and he has amassed a
troubling record on women's reproductive rights, arguing for instance
in support of a 20-week abortion ban, which he claimed would create
``at most, an incidental burden'' on a woman's right to make her own
reproductive health care decisions.
The three nominees before the Senate exemplify the Trump
administration's efforts to stack our courts with nominees who are far
outside the judicial mainstream. I believe they will
[[Page S1697]]
not protect the rights of all Americans and should not be confirmed. I
will vote no on each of these nominees, and I hope my colleagues will
do the same.
The PRESIDING OFFICER. The Senator from Ohio.