[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

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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.