[Congressional Record Volume 165, Number 44 (Tuesday, March 12, 2019)]
[Senate]
[Pages S1773-S1775]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Nomination of Paul B. Matey

  Mr. BOOKER. Mr. President, I rise today to speak on the nomination of 
Paul Matey, who has been nominated by President Trump to a New Jersey 
seat on the U.S. Court of Appeals for the Third Circuit.
  The Constitution actually charges this body with a sacred obligation. 
This body is charged by our Founders and by our Constitution with 
providing advice and consent on the individuals the President nominates 
to serve on the Federal courts.
  Over the last century, the United States has developed a process for 
carrying out that duty of evaluation, evaluating those nominees, but 
just a couple weeks ago, the body broke a century-old precedent. Until 
then, the Senate had never ever confirmed a judicial nominee over the 
objections of both home State Senators. I looked into this through the 
Congressional Research Service, and they didn't find a single example 
where that has ever happened.
  During the last century before the Trump administration, you could 
count on one hand the number of times the Senate had confirmed a 
judicial nominee when even one home State Senator had objected. That 
happened four times during the 1980s and once during the 1930s. That is 
it. But with the nominees now coming to the Senate floor, to this body, 
it is breaking a longstanding, bipartisan tradition and has jettisoned 
that rule and that idea. This has already happened--ignoring the 
objections of one home State Senator--five times.
  Now that is happening in a doubling-down capacity. The Senate 
confirmed Eric Miller to the Ninth Circuit a couple weeks ago, and he 
was opposed by both of his home State Senators, my friends Patty Murray 
and Maria Cantwell. This was the first time in a century that this body 
has disregarded the objections of both duly-elected Senators, who know 
their States, who know their communities. It was a breakdown of this 
longstanding, bipartisan tradition, this idea that this body is 
different from the majoritarian body in the House; that in this body, 
we believe home State Senators should have a say on the nomination of 
judges. Not that they are in line ideologically--clearly, when you have 
a Republican President, you are going to see Republican-appointed 
judges. But this breakdown has now undermined this tradition that in 
the Senate, we find a way to come together and work together on this 
sacred duty of putting people into that third branch of government.
  What worries me now is this week, the Senate is on the brink of doing 
it again. Senate Republicans are moving to confirm an individual to the 
Third Circuit over the objections of both home state Senators--in this 
case, both home State Senators from New Jersey, Senator Menendez and 
me. So this moment is personal to me, but more importantly, I want to 
sound the alarm yet again and not just sit as a bystander to history 
and let this Senate tradition be eviscerated.
  When I first got to the Senate, I made it known that I really wanted 
to be a member of the Judiciary Committee. It took me years to get on 
that committee. I am so proud to be on a committee that has an 
incredible record of doing bipartisan work, whether it was the bill we 
passed out of committee to protect Robert Mueller or just last Congress 
when we worked together across the aisle to do comprehensive criminal 
justice reform.
  I know the history of that committee. I have been watching it since I 
was much younger and had a lot more hair. I knew that this committee--
as Senator Durbin so eloquently described last week in our markup 
committee--this is a committee whose

[[Page S1774]]

Members have worked together to confront many great challenges. But now 
we find ourselves in a perilous position where important guardrails 
that were put in place to properly vet judicial nominees are being 
thrown by the wayside.
  The latest development in the Senate is disregarding the blue-slip 
tradition, which over the last century has enabled home State Senators 
to have a meaningful role in the nomination process.
  In late January of this year, the Senate Judiciary Committee held a 
markup meeting for 44 judicial nominees. Folks around here were 
literally calling it the monster markup. At that meeting, I told 
Chairman Graham, just as I had told Chairman Grassley last year, that 
the White House had not meaningfully consulted with me or Senator 
Menendez ahead of that markup. In fact, I pointed out, the White House 
had not offered to even arrange a meeting between Mr. Matey and me or 
Senator Menendez. We didn't get an offer of a meeting before the 
nomination. We didn't get an offer of a meeting before the confirmation 
hearing. We didn't get an offer of a meeting before the markup.
  Chairman Graham said he would make sure that Mr. Matey and I would be 
able to meet before the full Senate voted on his nomination, and we 
did. I really appreciate that and Senator Graham being a man of his 
word. But when I met with Mr. Matey last week, our conversation was 
refreshingly honest because we both knew it was just a courtesy. We 
knew this process was completely backward. Two home State Senators had 
just been rendered completely irrelevant in the selection of a circuit 
court judge from their State.
  I ask any of my colleagues to imagine this: that a person to the 
circuit court from their community--and Mr. Matey is from my city--that 
you don't even have a chance to meet with them, have a discussion, ask 
them questions. If it weren't for my presence on the Judiciary 
Committee, where I got 5 minutes to question him, this person would 
have sailed through without any consultation with two home State 
Senators. I ask my colleagues how they would feel if this happened to 
them.
  This breaking of a century-old precedent has made it clear that we 
are going to keep on breaking it. This is something that is now going 
to become a part of this body. Are we all really comfortable with the 
implications of that?
  The Republicans on the Judiciary Committee just voted out two Second 
Circuit nominees over the objections of their home State Senators--
again, historically unprecedented--and three more nominees to the Ninth 
Circuit with the very same problem are about to come before this 
committee.
  Senate Republicans seem to be intent on dismantling the century-old 
process for the vetting of judicial nominees. This is being done 
methodically--taking it apart piece by piece, whatever it takes to push 
through these nominees.
  The pendulum does swing in this place. I was told by Senators whom I 
respect--I still remember coming here and sitting down with some of the 
statesmen in this area on both sides of the aisle. I still remember 
conversations with Senator Harkin, who is no longer here, and Senator 
McCain telling me to respect the traditions of this body, to understand 
that this body, as our predecessors said, should be the cooling of the 
partisan rage or passions of the time; that we should preserve those 
parts of this institution that create comity, that force us to come 
together. But the wound that is being created right now goes to the 
ability of any Senator in this body to truly represent their State.
  Look, the pendulum is going to swing. Eventually, there is going to 
be a Democratic President. This body will shift again. Every single 
Senator, should they stay in this body, is probably going to see the 
time when, because of what we are doing today, they will have no say 
whatsoever when it comes to their constitutional duty of advice and 
consent.
  My message to my colleagues is this: The feeling I had last week when 
I met with Mr. Matey is a feeling that everyone in this Chamber is 
going to have at some point if we do not stop this now. If we continue 
down this path, you will find yourself rendered irrelevant in the 
selection of judicial nominees from your State. You were duly elected 
by the people of your State, and there won't be a thing you can do to 
stand up for their interests in this process.
  This will be a sad chapter if we allow it to be written into our 
history. It doesn't have to be this way. We could go back in this 
process. We could say: You know what, this guy is qualified. Why don't 
we go back and have the process done the right way--have the White 
House sit down with their home State Senators and see if they can work 
out a deal, as it was done before, to make sure we have a role in the 
process the Founders designed.
  The guardrails we have established in this body have an important 
purpose: to enable the Judiciary Committee and Senators to properly vet 
judicial nominees, to ensure that those nominees are not just qualified 
to serve but that they are more in the mainstream, not ideologues, and 
to ensure that they have a good judicial temperament.
  We cannot walk away from the longstanding Senate practice of respect 
for the views of home State Senators about the judges who will serve in 
their State. I urge my colleagues to vote no on this nomination because 
of the trashing of the processes that have been a time-honored way of 
doing things in the Senate. But let me be clear. This is about more 
than just the dismantling of the Senate procedures. As a Senator, I do 
have a perspective on the nature of some of the nominees who are being 
put forward to serve on our courts, and I want to take a moment to 
speak to that.
  The Constitution charges this body with vetting the President's 
judicial nominees for good reason. It is our duty as Senators to 
provide a check and balance on those nominations to ensure that people 
who serve as Federal judges can be fair and impartial. It is our duty 
to help protect the independence of the judiciary. But over and over, 
we are seeing that President Trump is selecting nominees precisely 
because they will bring an ideological agenda to the bench.
  This will be seen as we soon consider the nomination of Neomi Rao to 
the DC Circuit Court. Ms. Rao is a prime example of how the 
administration is working to politicize our Federal courts to achieve 
far-right policy objectives that do not sit in the mainstream of 
America. The examples of this are not just rhetoric; the examples of 
this are clear.
  The DC Circuit Court often gets the last word on legal challenges to 
important regulatory protections. Who is the person the President has 
chosen to sit on this court? Ms. Rao has dedicated much of her career 
as a law professor and as a Trump administration regulatory czar to 
tearing away critical protections for American citizens.
  During her time in the Trump administration, Ms. Rao has overseen 
efforts to roll back an array of Federal protections, from fair housing 
to clean air and water, from women's rights to LGBTQ rights, from food 
safety to workers' rights, to so many areas that impact Americans of 
all backgrounds and all aspects of American life. She has also 
criticized landmark decisions by the Supreme Court. Other Trump 
nominees have not gone as far as she has. She literally criticized 
Brown v. Board of Education, Lawrence v. Texas, and Roe v. Wade.

  Worse still, Ms. Rao has been unwilling to make the firm commitment 
to recuse herself from legal challenges to regulations that her office 
reviewed while she was a Trump administration regulatory czar. This is 
fundamental to the independence of our judiciary.
  If you compare her position to others within the Trump 
administration, you will see that other judicial nominees, including 
President Trump's prior nominee to the DC Circuit, have pledged to 
recuse themselves from matters they worked on in the executive branch, 
but Ms. Rao is refusing to do the same.
  Given her long track record of opposing critical Federal protections, 
the serious concerns about independence and recusal, Ms. Rao is the 
wrong person to sit on the DC Circuit Court, and I urge my colleagues 
to vote no on the nomination as well.
  Most importantly, I urge my colleagues--all of my colleagues, 
Democrats and Republicans--who do not want to be rendered irrelevant in 
the selection of judges from their States to

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stop--stop--this evisceration of a longstanding blue-slip tradition in 
the Senate.
  I thank you for the time.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.