[Congressional Record Volume 165, Number 58 (Wednesday, April 3, 2019)]
[Senate]
[Pages S2220-S2223]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Appeal Ruling of the Chair

  Mr. McCONNELL. Mr. President, I appeal the ruling of the Chair and 
ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Shall the decision of the Chair stand as the 
judgment of the Senate?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  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 result was announced--yeas 48, nays 51, as follows:

                       [Rollcall Vote No. 59 Ex.]

                                YEAS--48

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Hassan
     Heinrich
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Lee
     Manchin
     Markey
     Menendez
     Merkley
     Murphy
     Murray
     Peters
     Reed
     Rosen
     Sanders
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--51

     Alexander
     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cassidy
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Gardner
     Graham
     Grassley
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     McConnell
     McSally
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Romney
     Rounds
     Rubio
     Sasse
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                             NOT VOTING--1

       
     Harris
       
  The PRESIDING OFFICER. The Senate overrules the decision of the 
Chair.
  The Senator from Missouri.
  Mr. BLUNT. Mr. President, in the last vote today we established a new 
precedent. The rules of the Senate are a combination of the rules of 
the Senate, the standing orders of the Senate, and the precedents of 
the Senate. Senator Lankford and I had hoped to do this with a 
permanent standing order that basically would have put the Senate 
exactly where the bipartisan vote was in 2013, which included my vote, 
to have the same kind of rules that we are encouraging now. This 
process is designed to speed up not only nominees for Republican 
Presidents but also nominees for Presidents who are Democrats.
  In the last 2 years, we have seen an extraordinary use of every tool 
available to the minority. The Senate is designed to be a place where 
the minority is heard. In fact, at one time, any Senator could stop 
everything forever, and when Senators started doing that to excess, 
that rule was changed. The protections of the minority often have to be 
looked at again when the minority abuses those protections. That is 
what has happened in this case.
  Now we have 2 hours of debate on the nominee we are debating right 
now. If we hadn't just taken the vote we took that overruled the Chair, 
we would have 30 hours of debate. I guarantee that there will not be 2 
hours of debate about this nominee. There may not be 2 minutes of 
debate about this nominee if we see what we have seen happened in the 
last 2 years.
  The rules of the Senate currently say that if any Senator wants to 
hold up consideration of a nominee, then, the Senator can insist that 
we go through the process of invoking cloture. In the first 2 years of 
the Obama administration, that process was used 12 times, and that was 
more than had been the case in the past. In fact, the previous 3 
Presidents had cloture invoked on their nominees a total of 12 times. 
That is 24 times in 4 Presidencies. In the first 2 years of President 
Trump's time in office, the majority leader had to come to the floor 
128 times and say we are going to have to invoke cloture to have a 
chance to vote on this nominee.
  It is the first week of April. Eleven times this year already the 
Senate has had to invoke cloture on a nominee for a government job--for 
a judgeship or some other government job. While that debate time was 
seldom used, occasionally, at the end of the week, we would say: Well, 
OK, we will just go ahead and do the last one. Each time, we had to 
assume that 30 hours would be used up for those people to be processed 
and to have a chance to do the jobs that they were going to do.
  The history of the Senate is exactly as the majority leader described 
here earlier. In the first 200-plus years of the Senate, while the 
Senate often used a delaying tactic to delay legislation and require 
the Senate to think about it more, the Senate virtually never used the 
rules of the Senate to slow down the process of putting people in the 
Cabinet.
  In fact, several Presidents--and Presidents in this century--had 
their full Cabinet put in place within the first day or two of their 
administration. That didn't happen with this President, and it is 
obviously what brought us to where we are today.
  Usually, in the first couple of years of a new administration, the 
President not only gets his Cabinet approved right away, but the 
President is also able to put people around those Cabinet officers who 
want to move the government in the same direction that the voters just 
said they wanted the country to go.
  The term of an administration is only 4 years. At the end of 2 years, 
if you are sending back 124 nominees who just simply didn't get voted 
on--they got investigated, they got the background checks done, they 
went through the committee, and the committee voted to send them to the 
floor--that was always supposed to be part of the work of the 
committee, and that happened for 124 people who never had a chance to 
get voted on in the first 2 years of this administration, many of whom 
had been waiting in line for a year.
  Now, if you are appointed and have a short-term job in the Federal 
Government and are willing to serve, the one thing that does for sure 
is to put your life in some chaos--coming up with the material that the 
Congress insists on, going through the background check, and getting 
your financial records out. For most people, it also means putting the 
way they make a living on hold.
  I had somebody whom I nominated as one of three people for the 
President to choose from to be the district judge in the Eastern 
District of Missouri. I made that nomination roughly 24 months ago. 
Twenty-two months ago, the President told the person he chose that he 
was going to nominate that person. Last November, after a year and a 
half of that person telling all his law clients, ``You know, I am about 
to become a Federal judge; you may need to find another lawyer,'' and 
after he closed his legal process, he hasn't been voted on yet. That 
man was one of the people sent back from the White House. He had to be 
sent back up this year and had to go through the Judiciary Committee 
again. He had to get back in a line, where every single person took 30 
hours of debate, after the 1 day that had to be debatable between the 
time the leader brings you up and you come to the floor.
  This sounds pretty complicated. That is because it is, and it is made 
more complicated by the fact that people have used it as a delaying 
tactic.
  Now, as for the 128 people whom I mentioned--the 128 people whom the 
majority leader had to file cloture on--compared to 12, let's be sure 
we are comparing this the way this used to be,

[[Page S2221]]

even in recent years to now--128 compared to 12. When those 128 people 
finally got votes, the support was substantial. When they finally got 
votes, one-third of them got 70 votes or more. Thirteen percent got 90 
votes or more. So you have 90 people voting for people that someone 
insisted we needed 30 hours of debate for, and there wasn't a debate at 
all.
  Twenty district judges had cloture filed on them. Twelve of those 
district judges had nobody vote against them after 30 hours on the 
floor, where, in all likelihood, nobody had anything to say during 
those 30 hours.
  The average amount of time that we spent talking about nominees 
during the 30 hours that has been insisted on is less than 1 hour. The 
person who generated the most discussion, at least this year, was the 
new Attorney General. That is a pretty important job. There should have 
been quite a bit of discussion. In fact, it was our intention--the 
intention of the standing order that Senator Lankford and I filed--and 
it will continue to be the intention, that that person will still have 
30 hours of debate if anybody thought that was necessary.
  Supreme Court justices, Cabinet members, and circuit judges would all 
have 30 hours of debate. But even with the Attorney General, less than 
4 hours was used to talk about what everybody listening would believe 
is one of the most important jobs possible.
  For the 10 other nominees who have had cloture filed on them prior to 
this week, almost no debate time was used. In fact, again, even in the 
case of Attorney General William Barr, four-thirtieths of the time was 
used. That means that twenty-six-thirtieths of the time wasn't used, 
but we couldn't use it for anything else. We couldn't use it for 
another nominee. We couldn't use it for a piece of legislation. We 
couldn't use it to talk about how the government spends its money 
basically to debate an appropriations bill that would be on the floor. 
It just couldn't happen.
  Last week, we confirmed Bridget Bade to be a judge of the Ninth 
Circuit Court of Appeals. We used less than 1 minute of the 30 hours 
that the minority insisted on--less than 1 minute of the 30 hours--but 
nothing else could be done during those 30 hours.
  Every Member of the Senate knows that the abuse of this process is 
done to delay and to keep us from confirming not only other people who 
need to be confirmed but to keep us from getting to the work we need to 
get to. It prevents us from taking up other legislation. It prevents us 
from doing our job.
  It has to be discouraging when you talk to people in the future about 
this: Would you be willing to serve as the Assistant Secretary of 
Commerce for something? Would you be willing to serve as the Assistant 
Deputy Secretary of Treasury for IRS? And, by the way, you really can't 
start anything new, and you may never get voted on. When you do get 
voted on, you may not actually be able to serve in that job for more 
than a few months if you serve the rest of the term of this Presidency.
  People will begin to say no, and we all know that.
  Today we have 140 people who are waiting to be voted on for jobs they 
have been nominated for. They are now out of committee. They have done 
all the paperwork. They have cleared all of the days. They have done 
everything they needed to do.
  When President Reagan was President, the average number of days 
between the time you were voted out of committee and the time you were 
voted on on the floor was 5 days. By the time you had gotten out of 
committee, you had already been weeks, if not months, into this 
process. Five days later, you would get to know whether or not you were 
going to get the job.
  With President Trump, the average number of days between the time you 
got out of committee and the time you got voted on was 55. That is 55 
days when you are waiting to do the job that you have been willing to 
do, have answered every question you have been asked, have gone through 
all of the background checks you needed, and you are still waiting.
  This system cannot work that way. We would never get everybody 
confirmed that a President is required to nominate, which means we also 
would never have time to get the other things done that the Senate 
needs to do.
  I think the step we took today was an important one. We will talk 
about another category of people to be confirmed later today--district 
judges. I believe we will be able to make that change as well. Again, 
the Cabinet, the Supreme Court, and the circuit judges would all still 
have 30 hours available to them.
  Our friends on the other side may continue to insist on that, but if 
they do, I guarantee that if you run a clock on this, in all likelihood 
nobody will ever use the 30 hours to talk about the nominee. If we 
didn't do it to talk about William Barr, we are not hardly going to do 
it to talk about anybody else.
  Debate is an important thing. Having the right people in the right 
job is an important thing. It is also important to have them in the 
right job at the right time. Today, I believe the Senate is taking 
important steps to return back to the traditional role of the Senate in 
confirming nominees and giving Presidents an opportunity to do the job 
they were elected to do.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mrs. Blackburn). The Senator from West 
Virginia is recognized.
  Mr. MANCHIN. Madam President, I thank my colleague. He has more 
institutional knowledge, has been here longer, and understands this 
process. I haven't been here as long, but I am trying to put a little 
common sense to it, and I am having a hard time.
  I am not naive enough to stand up thinking that if I could have given 
my speech before we took that vote, it might have made any difference. 
I wish it would have. I wish I could have. But it didn't happen that 
way.
  Words cannot express how disappointed I am--I truly am--to stand here 
as the only Member of the Senate who voted against the nuclear option 
in 2013 when it was a Democratic proposal and in 2017, the Republican 
proposal, and now what we did today. I have consistently voted against 
this because it is not who we are, and it is not about what we are 
about either.
  For those who don't know, the nuclear option is strictly a gimmick 
that allows the majority party to truly steal the power of debate and 
the power of the filibuster from individual Senators. Why does it 
matter? Because so much of our influence as Senators comes from our 
power to filibuster. It is also the most powerful tool we have to force 
compromise and to stand up for the people we represent.
  In spite of the importance of this power, everyone else in the body 
who has had the chance has voted to use the nuclear option to lower the 
votes required to end debate from 60 votes to a simple majority of 50 
plus 1 on different types of nominees. That is a tragedy for our 
constituents. For this country, it is even more of a tragedy. For the 
institution of the Senate, it is a disaster.
  This debate is not new, and I would not be honoring the legacy of the 
late Senator Robert C. Byrd, whose seat I sit in, if I did not take the 
opportunity to at least recite a little history here on the floor of 
the Senate.
  The Founding Fathers always intended the Senate to be deliberate, and 
we are known as the most deliberate body in the world.
  George Washington himself was said to have told Thomas Jefferson that 
the Senate should serve as a ``cooling saucer'' for legislation from 
the House. As you know, the House works on a simple majority; 218 
Democrats or 218 Republicans can do anything they wish. The Senate is 
supposed to temper that down.
  This body was created to protect the rights of individual States--
small States in particular. In the Federalist Papers, John Jay notes 
that ``in this spirit it may be remarked, that the equal vote allowed 
to each State, is at once a constitutional recognition of the portion 
of sovereignty remaining in the individual States, and an instrument 
for preserving that residuary sovereignty.''
  The filibuster is essential to preserving that residual sovereignty, 
and diminishing that power should matter to anyone who comes from a 
small or rural State like my State of West Virginia. This power was 
also meant to empower individual Members, like me, who often find 
themselves in the minority of their own party.
  That doesn't mean we can't make changes for efficiency. But today's 
rule

[[Page S2222]]

change and the two that came before it in 2013 and 2017 were not meant 
to make this place more efficient; they were meant to take power from 
each and every Senator. That means you and I have given up our power 
and our ability to represent our States.
  Before 1917, there was no way to end a debate in the Senate 
whatsoever, from our beginning, so one Member could grind this place to 
a halt for however long they felt necessary. Then, at the urging of 
President Woodrow Wilson, the Senate adopted rule XXII that year, 1917, 
and first used it 2 years later to end a filibuster against the Treaty 
of Versailles.
  For the next 80-plus years, some tweaks were made to the rule and its 
reach was expanded, but there was no real threat to the existence of 
the rule. In 2005, that all changed when then-Majority Leader Bill 
Frist made the first serious effort to change the rules of the Senate 
and reduce the power of every Member of this body by deploying the 
nuclear option. None other than John McCain and Robert C. Byrd, our 
dear departed friends, teamed up to form the Gang of 14 that cut a deal 
on a package of nominations that took the nuclear option off the 
table--but only for a little while.
  In 2013, when Harry Reid and Democrats--my side of the aisle--voted 
to end the filibuster for Presidential nominees, I was one of only 
three Democrats to fight and vote against it. The other two, Mark Pryor 
and Carl Levin, are no longer serving in the Senate today, but we 
represented all wings of the Democratic Party--from the liberal end, to 
the conservative end, to the moderate centrist end. We stood together 
despite our differences because we knew that it would forever lessen 
the institution of the Senate and that it would come back to bite us 
when we weren't in the majority. That was the point we made at that 
time. That was the argument we made and pleaded with our colleagues.
  For the past 5 years, we have seen the consequences of those actions. 
Today, our Republican friends are using the same excuse our Democrats 
used--historic obstruction. Democrats are using the same argument today 
that our Republican friends have used--unprecedented overreach. This is 
the hypocrisy that makes us understand why people think Washington 
sucks. It is on both sides. No one is innocent on this.
  In 2013, the current majority leader, Mitch McConnell, was furious 
about what the Democrats were threatening to do. He called it breaking 
the rules to change the rules. And I agreed with him. He was right. I 
voted with him.
  In 2013, I heard and listened to Leader McConnell when he said:

       The American people decided not to give the Democrats the 
     House, or to restore the filibuster proof majority they had 
     in the Senate back in 2009, and our Democratic colleagues 
     don't like that one bit. They just don't like it. The 
     American people are getting in the way of what they'd like to 
     do. So they are trying to change the rules of the game to get 
     their way anyway.

  This is precisely what the American people decided about Republicans 
in the 2018 election, and the Republicans have now gone down the same 
path Leader McConnell warned us against. You would think that at least 
we would understand the definition of ``insanity''--doing the same 
thing over and over, thinking we are going to get a different outcome. 
It doesn't work that way.
  Leader McConnell went on to say: ``So look, I realize this sort of 
wishful thinking might appeal to the uninitiated newcomers in the 
Democratic conference who served exactly zero days in the minority, but 
the rest of you guys should know better.'' And he is absolutely 
correct. Everyone should know better. Those of you who have been in the 
minority before should know better because what goes around comes 
around.
  His final warning, which I am disappointed my Republican friends 
didn't listen to, was this:

       If you think this is in the best interest of the United 
     States Senate and the American people, to make advice and 
     consent mean effectively nothing, obviously you can break the 
     rules to change the rules to achieve that.

  That is what we have done.

       But some of us have been around here long enough to know 
     that the shoe is sometimes on the other foot.

  While the majority leader and minority leader have flipped their 
positions and their perspective today, the lesson is clear: Breaking 
the Senate for political expedience will, over time, hurt all of us 
and, most importantly, our constituents and the American people.
  I firmly believe the filibuster is a vital protection of minority 
views and exactly why the Framers of our Constitution made the Senate 
the cooling saucer. Lately, both parties have lit the saucer on fire 
and thrown it out the window. The Senate was set up by our Founding 
Fathers to force us to work together. Think about that. They knew that 
whatever we receive from the House would be hot as a firecracker. 
Someone had to put out the flame. Someone had to know to say: That is 
not who we are as a country, and it is not basically who we want to be 
as a country.
  We are not the House of Representatives, and by golly, we are going 
there at a rapid pace--a rapid pace. It seems that when people come 
from the House, they bring that House mentality--scorched and burned 
earth. That is not what we were set up to be. This is a very different 
body. It is the most unique body in the world.
  As the late great Robert C. Byrd himself said in the months before 
his death, ``While I welcome needed reform, we must always be mindful 
of our responsibilities to preserve this institution's special 
purpose.'' And we are better than this, he said.
  I always tell people back home that I can't vote for something unless 
I can go home and explain it. I don't care if it is an idea that my 
friends on the Republican side have. It makes sense to me. My 
constituents understand it. I go home and vote and tell them why I 
voted with my Republican friends. If I vote with my Democratic friends 
and it makes sense, I tell them the same. If I vote against something 
of my Republican friends or Democrats, I explain to them. It has 
nothing to do with politics; it is policy. Does it make sense? Will it 
help the constituents of the State of West Virginia? Will it make my 
country stronger and better? That is really what I care about. That is 
the purpose of my being here.
  For the life of me, I can't figure out how anyone who voted for this 
can explain it when they go back home, because we have given our power 
away. Every time you do this, you continue to erode the powers you have 
as a Senate by the Constitution of the United States of America and by 
the Founding Fathers who created this body. Now, how we can do it in 
such a willing way makes no sense. How do you look people in the eye 
and say: I gave up my individual power to represent you. How do I do 
that? I am not going to do it. I am not going to do it, and I haven't 
done it, nor will I ever do it.
  You can say it was because of obstruction. Well, if there is an 
obstruction, there is a way around obstructions. You drive around 
obstructions. You have obstructions in your life every day. You learn 
to work around obstructions. It is basically by communicating. It is 
basically by sitting down and looking at the other side, the other 
point of view.
  I have always said that I am not always right. I need help. But I am 
not always wrong either. I have, hopefully, some input, and I try to 
make that as a balance as I approach these things. And Republicans 
are--what they have done today is basically the same. We don't have 
obstructions we can't overcome if we respect each other. You can't 
blame everybody for everything. You can't blame somebody else for 
something you are unwilling to do. You can't blame somebody else if you 
don't have the patience to sit down and talk through your problems and 
try to understand better. You can't blame somebody else if you are not 
willing to give and take. That is what the whole process is about if 
you are going to be successful in life--anyone who has been successful. 
It is not ``my way or the highway''; it is ``our way going down the 
highway together.''
  This move is a betrayal of the people we represent, and everyone in 
this body is complicit. It is a shame that we are going to go back and 
try to explain our positions with the votes that were made today. It is 
just a shame. It should never have come to this. For hundreds of years, 
we have managed to overcome obstructions and preserve our Founders' 
vision for the Senate, but for the last 6 years, Members on both sides 
of this aisle have decided that is no longer possible.

[[Page S2223]]

  This abdication of our power and responsibility is nothing more than 
weakness in the face of partisanship. This is truly tribal. What tribe 
do you belong to? Do you belong to the Democratic tribe, or do you 
belong to the Republican tribe? I am sorry, I belong to the American 
tribe, and I am going to stay right in the tribe I belong to, and I am 
going to be loyal to the American tribe.
  This abdication of our power and responsibility is truly, truly a 
weakness in the face of partisanship, and my colleagues need to stand 
up to the leaders. We have given too much power to the leadership here.
  I remember the day when people used to talk about, oh, the committee 
chairman had so much power. They could run a bill and make sure it got 
on the floor and got voted on. Those days are gone. There is always a 
reason why something doesn't go to the floor, even if it goes through 
the committee process. Something comes out of the committee 
unanimously, and it still doesn't come to the floor. Try to explain 
that one.
  To protect the powers of the Senators as representatives for their 
States and to protect the institution of the Senate, that is not that 
hard, and I know because I have done it. I have voted against my 
colleagues on my side of the aisle. I was up front, and I was honest. I 
said: I am sorry; I can't go home and explain that. It doesn't make 
sense at all, and I am not voting for it.
  If they want to get my vote, they are going to have to sit down and 
say: What would it take to get your vote?
  And I would explain to them: You have to adjust this or adjust this 
and make sense.
  It is fair to the minority, and if we were in the majority, or vice 
versa, the majority should be fair to us. If you can work through that, 
you can make it. You can make it on this side. If not, it is going to 
be a miserable 6 years for every Senator who just got elected, if we 
don't come back to reality.
  I know I keep calling it an individual right, but it really isn't. It 
is a trust passed down from the Senators who preceded us. They had the 
will and they had the determination to make this place work, and we 
have given up on that. This belongs to our constituents, the power we 
have here, and we have no power to protect them now.
  The solution to obstruction isn't ruining the Senate. It is outreach. 
It is compromise. It is finding solutions that make a bunch of people 
on the far left and the far right very uncomfortable and mad 
sometimes. Until we are willing to do that, the hard work of this 
institution is going to get worse. So it is not that we are fractured, 
we are almost broken, and it was never intended. I have never seen 
anything broken that we couldn't fix. I hope we come to our senses. I 
hope we act as Americans. I hope we understand basically the whole 
thought process from our Founding Fathers, who had the great insight of 
having two bodies in a bicameral, not a unicameral, branch that was 
supposed to work to help each other and protect us from ourselves. 
Right now, we have become the worst enemy of ourselves. I hope we 
change.

  Thank you.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. STABENOW. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Michigan.