[Congressional Record Volume 165, Number 58 (Wednesday, April 3, 2019)]
[Senate]
[Pages S2216-S2220]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Cloture Motion
The cloture motion having been presented under rule XXII, the Chair
directs the clerk to read the motion.
The senior assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the nomination
of Jeffrey Kessler, of Virginia, to be an Assistant Secretary
of Commerce.
Mitch McConnell, Steve Daines, John Thune, John Cornyn,
James M. Inhofe, Pat Roberts, Mike Crapo, Chuck
Grassley, Richard Burr, John Barrasso, Jerry Moran, Roy
Blunt, Shelley Moore Capito, John Boozman, Johnny
Isakson, Thom Tillis, John Hoeven.
The PRESIDING OFFICER. The mandatory quorum call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Jeffrey Kessler, of Virginia, to be an Assistant
Secretary of Commerce shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. THUNE. The following Senator is necessarily absent: the Senator
from Mississippi (Mrs. Hyde-Smith).
Mr. DURBIN. I announce that the Senator from California (Ms. Harris)
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 95, nays 3, as follows:
[Rollcall Vote No. 58 Ex.]
YEAS--95
Alexander
Baldwin
Barrasso
Bennet
Blackburn
Blumenthal
Blunt
Booker
Boozman
Braun
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Cassidy
Collins
Coons
Cornyn
Cortez Masto
Cotton
Cramer
Crapo
Cruz
Daines
Duckworth
Durbin
Enzi
Ernst
Feinstein
Fischer
Gardner
Graham
Grassley
Hassan
Hawley
Heinrich
Hirono
Hoeven
Inhofe
Isakson
Johnson
Jones
Kaine
Kennedy
King
Klobuchar
Lankford
Leahy
Lee
Manchin
Markey
McConnell
McSally
Menendez
Merkley
Moran
Murkowski
Murphy
Murray
Paul
Perdue
Peters
Portman
Reed
Risch
Roberts
Romney
Rosen
Rounds
Rubio
Sasse
Schatz
Schumer
Scott (FL)
Scott (SC)
Shaheen
Shelby
Sinema
Smith
Stabenow
Sullivan
Tester
Thune
Tillis
Toomey
Udall
Van Hollen
Warner
Whitehouse
Wicker
Wyden
Young
NAYS--3
Gillibrand
Sanders
Warren
NOT VOTING--2
Harris
Hyde-Smith
The PRESIDING OFFICER. On this vote the yeas are 95, the nays are 3.
The motion is agreed to.
The Democratic leader.
Mr. SCHUMER. Mr. President, this is a very sad day for the Senate. At
a time when Leader McConnell brags about confirming more judges than
anyone has done in a very long time, he feels the need to invoke the
terribly destructive and disproportionate procedure of the nuclear
option in order to fast-track even more of President Trump's
ultraconservative nominees to the Federal bench.
Before I discuss that in greater detail, I want to note for the
record that Democrats were prepared to confirm the nomination of Mr.
Kessler by unanimous consent, so the cloture vote we had was
unnecessary.
If you have been listening to Senators debate this issue in recent
days, you have heard a lot of claims and
[[Page S2217]]
counterclaims about cloture votes, about rates of confirmation for
circuit and district courts in different Congresses, about judicial
vacancies and other arcane things that may not sound very illuminating.
So I want to start by making clear what this debate is really all
about. I want to issue a warning about what is at stake in this fight.
Underneath all of the statistics, what Leader McConnell, President
Trump, and Republicans in the Senate are trying to do is use the courts
to adopt the far-right agenda that Republicans know they cannot enact
through the legislative process.
Why can't they? Because it is an agenda the American people reject,
an agenda set by the far right, which Republicans in the Senate follow.
Senator McConnell and Republicans in Washington understand that they
will never persuade enough Americans to support backward goals like
ending women's reproductive freedom, taking away healthcare, rolling
back civil rights, making it more difficult to vote, or abolishing
safeguards for clean air and clean water.
Instead, they decided there was another route to achieving their
policy goals, one that requires neither public support nor legislation:
the courts. So Republicans, pressured by the hard right and by wealthy,
special interest donors, launched a sustained effort to pack the courts
with very conservative judges, preferably young ones, who would sit on
the bench for decades. These prospective judges were identified as
early as law school, having signaled their hard-right leanings through
their writings or membership in conservative groups like the Federalist
Society.
Nominees like these started to appear during the George W. Bush
administration. Take Miguel Estrada, a Bush nominee with no judicial
experience, who held membership in the Federalist Society but had no
writings and claimed he had never even thought about Roe v. Wade.
Or take William Pryor, another Bush nominee, who called Roe ``the
worst abomination in the history of constitutional law'' and who argued
that States should have the right to criminalize homosexuality.
Or take Charles Pickering, who advocated a reduced sentence for a man
convicted of burning a cross in the front yard of an interracial
couple.
Before the Republicans launched their campaign to remake the courts,
neither party would have dared put forward such radical nominees.
Starting with his campaign and into his Presidency, President Donald
Trump has been captive--totally captive--to the conservative campaign
to take over the courts. Before he was a Presidential candidate, Mr.
Trump had been a Democrat and a person with no fixed judicial
philosophy, so conservatives didn't trust him. He and his advisers came
up with a solution: Ask the Federalist Society to produce a list of
far-right Supreme Court nominees, and then have candidate Trump pledge
to only nominate people on that list. And not just the Supreme Court--
the Federalist Society is and continues to be a huge influence on
nominees to the circuit courts.
No other Presidential candidate had so willingly and openly
outsourced judicial nominations this way, but it mollified the hard
right, and the President has dutifully nominated people from the list
to the Supreme Court. He has made similarly ideological choices for the
circuit and district courts.
This is an alarming strategy because, over the last 2 years,
President Trump has nominated and Senate Republicans have advanced the
most unqualified and radical nominees in modern times.
Consider the nomination of Ryan Bounds, who misled the Oregon
Senators' bipartisan judicial selection committee about his
controversial writings in the past, writings in which he dismissed
efforts to increase diversity as mere ``race-think,'' criticized
Stanford University's suggested punishment for students who defaced an
LGBT pride statue, criticized a student group for protesting against a
hotel company that had fired workers trying to unionize, and
disregarded the value of university disciplinary actions against
students accused of sexual violence. Five of the seven members of
Oregon's in-State screening committee, including the committee's chair,
said they would not have recommended Bounds had they known of his
college writings when they first interviewed him. Fortunately, it
became clear that a few Republicans would not support Mr. Bounds on the
floor, and the nomination was withdrawn.
Consider the nomination of Thomas Farr, who has an extensive record
defending discriminatory voting laws and racial gerrymandering in North
Carolina. He is also credibly alleged to have played a role in the
voter suppression efforts of the Jesse Helms campaign, including
sending over 100,000 postcards to heavily African-American precincts
that ``falsely told voters they could be found ineligible to vote based
on several conditions involving place and length of residence.''
Amazingly, after something as despicable as that, President Trump and
Leader McConnell pushed hard for his nomination, but it could not
withstand scrutiny by the Senate and was ultimately withdrawn due to
the united Democratic opposition and a few conscientious Republican
Senators.
I would note that in the cases of both Mr. Farr and Mr. Bounds, the
Republican concerns emerged only at the end of postcloture debate time,
which Republicans now propose to limit. Had we had only 2 hours,
horrible nominees--way beyond the bounds of normal nomination and
discourse, even from conservatives--like Farr, like Bounds would be
sitting on the courts today.
I agree with what my colleague Senator Klobuchar has said:
Two hours for a lifetime appointment . . . is unacceptable.
She said:
Two hours for a lifetime appointment, with huge influence
on people's lives, is unacceptable. It's ridiculous. It's a
mockery of how this institution should work.
It is not just the courts. There are many examples in the executive
branch as well. Ann Marie Buerkle, nominated to chair the CPSC--just
today the Post reported that this nominee blocked action at the
Commission to recall hundreds of thousands of potentially defective
baby strollers, even in the face of reports that they caused
``potentially life-threatening injuries.'' She even kept Democratic
Commissioners in the dark about the investigation.
Of course, there is Chad Readler, who led the charge to end
preexisting condition protections. President Trump and Senate
Republicans, the self-declared ``party of healthcare,'' rewarded him by
overwhelmingly confirming him to a lifetime position as a circuit court
judge. Despite Mr. Readler's conspicuous role in trying to curtail
Americans' healthcare, no Republicans were willing to stand up to
President Trump and vote against his confirmation.
At this point, people listening to these proceedings might be asking
themselves: What happened when a Democratic President occupied the
White House?
The answer is that Republicans, led by Senator McConnell, remained
undeterred. In such times, they chose to employ the extraordinary
tactic of denying confirmation to a Democratic President's nominees in
order to hold vacancies open until a Republican could regain the
Presidency. It was an audacious and insidious gambit, a way to nullify
a Democratic President's power to fill judicial vacancies.
We saw this tactic during the Clinton administration, when
Republicans on the Judiciary Committee killed a number of President
Clinton's quite moderate judicial nominees, even without the basic
courtesy of a hearing.
We saw it again during the Obama administration, when Republicans
used the filibuster and other forms of delay to more than double the
number of circuit and district court vacancies. During Obama's last 2
years in office, the Republican Senate confirmed fewer circuit court
nominees than any Congress in 70 years.
Then, in March of 2016, Senator McConnell and Senate Republicans took
this maneuver to a new Machiavellian low. They refused to even consider
President Obama's nomination to the Supreme Court of the United States,
Circuit Judge Merrick Garland, one of the most respected jurists in the
Nation, a man known not only for his judicial excellence and perfect
judicial temperament but his moderation. In fact, Senator Orrin Hatch,
a conservative's conservative and the former chairman of Judiciary
Committee, had previously endorsed Judge Garland for the Supreme Court.
[[Page S2218]]
But the merits didn't concern Senator McConnell. His cynical strategy
required Republicans to block the Garland nomination for almost a year
until after President Obama's second term ended, and that is exactly
what they did. It was widely condemned as a naked power grab that
nullified the President's constitutional authority. It was a terrible,
deeply lamentable moment for our democracy and our Constitution. Yet,
as the New York Times reported, Senator McConnell said it was one of
his ``proudest achievements.''
After President Trump took office, Republicans sensed an opportunity
to grease the conveyer belt even more. Senator McConnell ordered the
Judiciary Committee chairman to do away with the longstanding practice
that Senators be consulted about district court nominees in their home
States. The blue-slip tradition ensured that judicial nominees
reflected the ideology and values of the State to which they were
nominated. It provided some healthy counterbalance against nominees who
were outside the mainstream from either party or were lacking in proper
qualifications. Thanks to Senate Republicans, led by Senator McConnell,
that protection is now history.
So when Republicans complain about Democratic handling of nominees,
there is no other word for it but hypocrisy. You don't have to take my
word for it. According to the Congressional Research Service, more
circuit judges have been confirmed in the first 2 years of the Trump
administration than in the first 2 years of any Presidency since at
least the Truman administration.
The majority leader himself has celebrated the pace of confirmations.
He bragged about it to the Heritage Foundation. He said this to them a
few months ago:
We confirmed every circuit judge. We've now done 29 circuit
judges. That is a record for this quick in any administration
in history.
Those are Leader McConnell's words, not mine.
Now we have to change the rules, even though you have confirmed more
circuit court judges than anyone in history. That is a shame. That is a
disgrace. That is not the Senate we want. For Leader McConnell to brag
about confirming more judges than ever before and then to complain
about Democratic obstruction and say that the process is broken so you
have to change the rules is the height of hypocrisy.
Leader McConnell and Senate Republicans also complain about the pace
of confirmation for President Trump's executive branch and independent
Agency choices. They conveniently omit Republicans' sorry record of
obstruction of nominees to Democratic seats at important agencies like
the NLRB, the FDIC, and the SEC, which have suffered as Republicans
caused dedicated public servants like former NLRB Chair Mark Pearce to
languish for months or even years.
It is actually a little surprising that Leader McConnell and his
Republican colleagues would draw attention to the subject of executive
nominees now, given the appalling history of incompetence, corruption,
and venality among President Trump's so-called ``best people,'' not to
mention the fact that there are hundreds of vacancies the President
can't even be bothered to fill.
Staffing the government is serious business and so is the system of
justice assigned to the courts by our Constitution. They both deserve
better than the Senate Republicans' cynical, partisan efforts to turn
the Senate into a conveyer belt for ideological conservatives.
The notion that President Trump's judicial nominees have been treated
unfairly is simply false. There is no truth to it, as all of these
statistics that I have talked about have shown. What Republicans really
want to see is the elimination of yet another norm of the Senate so
they can automate and expedite the nomination process without a modicum
of debate. They are all for ``consent'' with no ``advice.'' With all
undue haste, they want to pack the courts with partisan warriors, not
impartial jurists. It is outrageous.
Democrats have a different view of who should sit on the Federal
bench. We have a different view of the role of this Chamber. Our
judicial system works best when we hold nominees to three simple
standards: excellence, moderation, and diversity. These are not
ideological litmus tests. They are the pillars of a healthy system of
justice. They are the benchmarks by which we can rest assured that the
men and women who are appointed to the Federal bench will respect the
rule of law and execute their duties impartially.
It cuts both ways. When Republicans are prepared to act in good faith
and advance nominees of high caliber, we are ready to give them the
consideration they deserve. For generations, the Senate has done the
work of the American people through consensus, through compromise, and
through cooperation. It has been a place where seemingly impossible
disagreements have found sensible solutions. Indeed, the legacy of the
Senate is the story of debate--ample debate--followed by compromise. It
is in large part thanks to the rules that govern how this Chamber
works. It is crucial that those rules not be twisted or abused for
partisan advantage.
The majority, by taking yet another step to erode that legacy, risks
turning this body into a colosseum of zero-sum infighting--a place
where the brute power of the majority rules, with little or no regard
for the concerns of the minority party, and where longstanding rules
have little or no meaning.
I am so sorry my Republican colleagues have gone along with Senator
McConnell's debasement of the Senate. To do this for such blatantly
political ends is simply unworthy of this institution.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. McCONNELL. One of the advantages of having been around the
``advice and consent'' process for as long as I have is that I know a
little history. I was actually here as a young staffer on the Judiciary
Committee when Richard Nixon appointed two Supreme Court Justices who
were defeated. During most of those years, our Democratic friends were
in the majority here in the Senate. They could have done whatever they
wanted to on the executive calendar to slow down, obstruct, and prevent
Republican Presidents from having nominations confirmed.
I can remember during the Clinton years the urging of both Senator
Daschle and Senator Lott--when my party was in the majority--to invoke
cloture on circuit court nominees whom I opposed in order to keep the
Senate from developing a process of filibustering the executive
calendar, which had never been done before.
The clearest example of why it was never done before is the Clarence
Thomas nomination--the most controversial nomination for the Supreme
Court in history, with the possible exception of Brett Kavanaugh. He
came out of committee with a dead-even vote. They could have killed him
in committee. He went to the floor and was confirmed 52 to 48. We all
know it only takes one Senator, just one, to make us get 60 votes on
something.
Joe Biden and Ted Kennedy were hard over against Clarence Thomas, but
nobody--not one of the 100 Senators--said you have to get 60 votes.
Clarence Thomas was confirmed 52 to 48 and has been on the Supreme
Court for 30 years. He would never have been there if a single
Senator--just one--had said you had to get 60 votes. My friends, I call
that a pretty firm tradition that you don't filibuster the executive
calendar. Was it possible? Yes, it was possible. It just wasn't done.
When did all of this start? Well, the junior Senator from New York
got elected in 1998. George W. Bush gets elected in 2000. The alarms go
off. They are going to appoint a bunch of crazy rightwingers to the
circuit courts.
So my good friend the Democratic leader, at a seminar or a meeting,
invited a couple of people named Laurence Tribe and Cass Sunstein--two
rather famous liberal law professors--and they had a discussion about
what to do about these awful rightwing judges who are going to be sent
up.
The conclusion was to open the toolbox, take out whatever tool would
work, and save America from these kinds of people. And so they did. The
poster child for that was Miguel Estrada, who they said openly they
were afraid was going to give President Bush the opportunity to make
the first
[[Page S2219]]
Hispanic appointment to the Supreme Court. We had all-night
filibusters. We actually stayed up all night trying to make a point.
It didn't make a difference. Ultimately, we thought maybe we should
employ the so-called nuclear option. We ended up not doing it after
there was a gang of 14 that developed and worked out an agreement, and
some of the nominees were confirmed and some weren't. Yet what had been
clearly established was that now the norm in the Senate was that you
filibuster anybody that you want to on the executive calendar. That had
then been established as a matter of practice, and that continued
through the Bush years. There was actually an effort to keep Justice
Alito from being on the Supreme Court by requiring a filibuster for the
purpose of defeating Justice Alito, but it was not successful. A number
of circuit judges were stopped.
When we fast-forward to the Obama years, our side used the filibuster
twice to defeat two circuit judges over a period of 5\1/2\ years.
Majority Leader Harry Reid decided, in his zeal, to pack the DC
Circuit--that this had gone on long enough. So, in November 2013, I
believe it was, the nuclear option was employed. The threshold was
lowered to 51 for everybody on the Executive Calendar except for the
Supreme Court. The DC Circuit court judges were confirmed. At the time,
I said I didn't like the way it was done. I thought maybe those on the
other side would rue the day they did it.
Amazingly enough, about a year and a half later, I was the majority
leader. Funny how these things change, isn't it?
A number of my Members came up and said: Why don't we change it back.
I said: Look, I don't think we like the way they did it, but this is
the way the Executive Calendar was handled for 200 years until Senator
Schumer and his allies Laurence Tribe and a cast unseen said: Well, why
don't we use any tool in the toolbox to stop judicial appointments?
I discouraged our going back to 60 because I had actually seen that
both sides had respected their using a simple majority on the Executive
Calendar down to 2003, so we didn't.
Now, look, with regard to these continued complaints about Merrick
Garland, that is not what this proposal is about. This proposal is
about sub-Cabinet appointments and district judges. For those of you
who were not here in 2013, it is almost identical to what almost every
one of you voted for in 2013--a standing order that lasted 2 years and
a good number of us giving President Obama the opportunity to advance
these sub-Cabinet appointments and district judges more quickly.
Let's talk about district judges for a minute. Chairman Grassley and
Chairman Graham honored the blue slip for district judges. There are 47
of you guys. There is not a single district judge who comes out here on
the calendar who doesn't have two blue slips returned from whomever the
Senators are from the home State. What that means is that you guys are
not irrelevant on district judge appointments. You are not irrelevant.
For example, I tried to get my good friend the Democratic leader to
approve a list of 30 district judges last fall, and 14 of them were
from blue States. Oh, no. He was not going to do any district judges on
a voice vote even if he were for them.
So, look, all this proposal does that we are talking about today is
reduce the postcloture time for sub-Cabinet appointments--just like we
helped you all do in 2013--and for district judges, none of whom will
even be on the calendar until both blue slips are returned positively.
It is not exactly a radical change.
Back to Merrick Garland for a minute. Look, I made the decision--and
my colleagues on the Republican side joined me in making that
decision--because I knew for sure, for absolute certainty, that if the
roles were reversed and there were a Republican President and a
Democratic Senate, you wouldn't have filled the vacancy. How did I know
that? You have to go back to the 1880s to find the last time a vacancy
on the Supreme Court occurred in the middle of a Presidential election
year and was confirmed by a Senate of a different party from the
President's--1880.
Oh, but that was not enough. In 1992, our friend Joe Biden, the
chairman of the Judiciary Committee, with a Republican in the White
House, a Democratic Senate, and no vacancy on the Supreme Court,
helpfully opined that if a vacancy occurred, he wouldn't fill it.
Oh, but guess what. Eighteen months before the end of the Bush 43
term, the majority leader of the Senate, Harry Reid, and a fellow named
Chuck Schumer said that if a vacancy occurred, they wouldn't fill it.
That was 18 months before the end of the Bush term.
On the business of filibustering the Executive Calendar, there is one
thing I left out, and I want to catch up here. Back in 2003, when my
good friend the Democratic leader started all of this that we have been
wrestling with since then, he said: I am the leader of the filibuster
movement, and I am proud of it. The Buffalo News, May 27, 2003. I am
the leader of the filibuster movement, and I am proud of it. The
Buffalo News. Charles E. Schumer recommended using an extreme tactic--a
filibuster--to block some of the Bush administration's nominees for
Federal judgeships. Talk about being proud of something. He started
this whole thing that we have been wrestling with since 2003. He cooked
it up and convinced his colleagues to do it, and once it started, it
continued until 2013 when it was turned off.
So, look, where are we? The Executive Calendar is very close to being
returned to the way it was treated by both parties down to 2000--not
the legislative calendar but the Executive Calendar. There is nothing
radical about this. He is acting like it is a sad day for the Senate.
If you want to pick a sad day for the Senate, go back to 2003 when we
started filibustering the Executive Calendar. He started it. That was a
sad day. This is a glad day. We are trying to end the dysfunction on
the Executive Calendar.
Let's talk about dysfunction. There were 128 cloture votes in the
last Congress, many of them on nominees for whom there were no
objections at all--128. Goodness gracious. In the first 2 years of each
of the last six Presidents, cumulatively, the majority leader of
whichever party had to do that 24 times in order to try to advance a
nomination.
So don't hand me any of this ``sad day in the Senate'' stuff. What
has been going on here is completely and totally unacceptable. Do you
know why I know that? It is because many of your Members, Mr. Leader,
have told me privately that they would be happy to do this provided it
would take effect in January 2021. Oh, what might happen in January
2021? I can't imagine. Well, it might be a Democratic President and a
Democratic Senate. I can understand--but, oh, not now.
Look, we know you don't like Donald Trump, but there was an election.
He is at least entitled to set up the administration and make it
function. With regard to the judiciary and circuit judges, every
President of both parties feels it is his prerogative.
Senator Alexander has pointed out the history of the blue slip. There
has been a little confusion about that. He has noted that blue slips
were not used as an absolute veto over judicial nominees until--listen
to this--the 1950s, when former Judiciary Committee Chairman James
Eastland of Mississippi afforded them the status because he did not
want Federal judges who had been appointed by President Eisenhower to
interfere with segregationist policies in the Jim Crow South. When he
became the Judiciary Committee chairman, our former colleague Ted
Kennedy restored blue slips to their historical purpose of ensuring
consultation as opposed to serving as a one-Member veto of a qualified
judicial nominee.
All we have done is restore blue slips for circuit court nominees to
the consultative function they have played for most of their history.
I have been under Presidents of both parties. They do not defer to us
on circuit court judges. We don't get to pick them. We almost do get to
pick them when they are district court judges and when we are of the
same party as the White House. We have a lot of clout because the
chairmen honor the blue slips for district court judges. They are
entirely contained within our States, and none of them get out here on
the floor unless the Senators approve
[[Page S2220]]
them. There are 47 of these guys over here who are not toothless when
it comes to district judges.
So this is not a bad day for the Senate; this is a day we end this
completely outrageous level of interference and obstruction with this
administration. I don't think anybody ought to be seized with guilt
over any institutional damage being done to the Senate.