[Congressional Record Volume 165, Number 114 (Tuesday, July 9, 2019)]
[Senate]
[Pages S4740-S4742]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              NOMINATIONS

  Mr. CASEY. Madam President, I rise this evening to talk about 
judicial nominations and, in my view, the state of play, where we are. 
I want to highlight some of the very real impacts these nominations 
have on Americans across the board.
  We have had a number of opportunities this year to come together and 
have agreement on some judicial nominations, but, frankly, this year--
the last several years--this issue has been the subject of conflict and 
sometimes rancor and division on the Senate floor and in the committee, 
the committee of jurisdiction, the Judiciary Committee.
  I have raised concerns about the willingness of Senate Republicans to 
dismantle longstanding Senate rules but also Senate norms, all in a 
rush to pack the bench with nominees who are often both ideological and 
also, in some cases--not in all but in some cases--both too ideological 
and often unqualified.
  Early this afternoon, the Senate voted to confirm Daniel Aaron Bress 
to a Ninth Circuit seat in California. I will talk about his nomination 
just by way of example, not by way of argument before a confirmation 
vote because that has passed.
  I think his nomination and confirmation are another example of the 
decline of the Senate's once-proud traditions relating to judicial 
nominations.
  He was opposed by both of his home State Senators. Both Senator 
Feinstein and Senator Harris did not return a blue slip for Daniel 
Aaron Bress.
  The blue slip, as many people know, is literally a single piece of 
paper where Senators sign their name and then check off whether they 
support or oppose, as a way to have consensus between Senators from 
their home State, and it has always been accorded respect and deference 
in this Chamber, but that has all changed now.
  In this case, you had a California nomination--I will get to that 
part of it in a moment--where, as I said, both Senators did not return 
blue slips. In this case, in particular, I think it is particularly 
offensive because Senator Feinstein is the ranking member of the 
committee.
  For those who don't pay attention to all this terminology, ``ranking 
member'' is the top person in one party who is not the chairman or 
chairwoman, as the case may be.
  So as the top Democrat, the ranking member of the Senate Judiciary 
Committee, her opposition to Judge Bress should be an important factor 
in his nomination and confirmation.
  Prior to this administration, the Judiciary Committee had never held 
a hearing for a nominee from the ranking member's home State without 
his or her support. Again, that has all changed just recently.
  Prior rules and norms have not stopped Republicans in the Senate from 
pushing extreme and sometimes corporate nominees through this process, 
especially at the circuit court level.
  In a recent press release, Senator Feinstein and Senator Harris 
explained that they opposed Judge Bress in part because he had so few 
connections to California. He lived in California for only 1 year since 
graduating from high school, he has not voted in California in an 
election for over a decade, and the California bar lists him as a 
Washington, DC, attorney.
  I mention that because that should be relevant. When a home State 
Senator--in this case, two home State Senators, one of whom is the top 
Democrat on the Judiciary Committee--I think in that case there should 
be deference paid to that kind of concern that is raised. After all, 
they both represent their State.
  As I mentioned earlier, the blue slip process is predicated on the 
idea that home State Senators are more familiar than anyone else with 
their State's legal community. I think that goes without saying. They 
serve an important role in nominating individuals to serve and 
represent the State.
  Judge Bress is an example of why the blue slip process is so 
important. He is not part of the California legal community. Despite 
objections of the Senators, he will now sit on the Ninth Circuit Court 
of Appeals and decide cases for a State with over 39 million residents 
at last count.
  Without blue slips, what would prevent a California judge from being 
nominated to a court in another State? What would happen if you had 
someone from a different State, who had very little ties to a State, be 
nominated and confirmed, for example, to serve in a State like 
Pennsylvania? It doesn't make a lot of sense to most people. It is a 
norm that should not be violated.
  His nomination illustrates how the blue slip process has been 
eviscerated, especially for the circuit courts, which is something that 
I had some firsthand experience with. I did not return a blue slip on 
one nominee who was confirmed, and in the second case, there was a 
hearing scheduled over my objections by way of not returning a blue 
slip.
  That experience that I had as a Senator whose blue slip and the 
deference that should be paid as part of that blue slip process--that 
circumstance in my case is at variance with my experience for district 
court judges.
  Senator Toomey and I--my colleague from Pennsylvania--have worked 
together to jointly recommend experienced, consensus nominees for the 
Federal district courts in Pennsylvania. We have three districts--the 
Eastern District, the Middle District, and the Western District.
  Unfortunately, this bipartisan district court process has become the 
exception, not the rule. It used to pertain here in the Senate, where 
every State had some kind of process by which nominees were presented 
for confirmation by their home State Senators, and the White House--the 
administration--in every case would pay deference to that.
  That is exceedingly rare today. I am thankful we have maintained it 
so far in Pennsylvania with regard to the work Senator Toomey and I do 
together and our staffs do together to reach consensus. It doesn't 
always work, by the way, but usually no one hears about the ones who 
don't work out because we keep that to ourselves and move on to the 
next person and see if we can't reach consensus. I appreciate that. I 
think we are either at 19 or 20 judges confirmed since 2011, working 
together, and I hope we can maintain that so that at least--at least--
the blue slip process can be respected for district court nominees.
  I think people who elect us in our home States expect that. They 
expect us to work together and to try to reach consensus where we can. 
Sometimes it is not possible, but they do expect us to do that. If 
there is an expectation of consensus and bipartisan cooperation

[[Page S4741]]

that adheres to or is expected of Senators, then there ought to be 
institutional support for that here in the Senate and by the 
administration. As I mentioned, that is not the case today, at least as 
it relates to the appeals court, the circuit courts around the country.
  This has relevance, of course, not just to process and norms and 
traditions; that is in and of itself important. It is of even greater 
significance when you consider the issues these courts will deal with.
  Just today, for example, there was oral argument before the Fifth 
Circuit Court of Appeals in the Texas v. United States case--a 
monumental case that has the potential to cause millions of Americans 
to lose coverage. We know that because we know that since the 
Affordable Care Act was passed, more than 20 million people have gained 
coverage, the larger share of that being people who gained coverage 
through the expansion of Medicaid.
  If that case were to be successful--a case brought by Republican 
attorneys general from around the country and then later opposed by 
Democratic attorneys general--if that case is successful, as it was at 
the district court level, 20 million people stand to lose their 
coverage, and a much larger number--depending on which number is on the 
record currently, but at least 150 million-plus Americans have 
protections today because of the Affordable Care Act, like the 
protection if you have a preexisting condition protection.
  Under the old system, the old rules, the old law, you could be denied 
treatment or coverage because you have a preexisting condition. That 
was happening routinely. That is no longer the law today. The law today 
is that if you have a preexisting condition, you can still get 
coverage. As I said, that would be at risk for something north of 150 
million Americans. Some of the data tells us the numbers are equally 
substantial when it comes to different parts of the law and those who 
are adversely or potentially adversely affected.
  If you had to step back and summarize where we have been in the last 
more than--just about 2\1/2\ years now since the Trump administration 
came into office, working with House Republicans and Senate 
Republicans, you have had a campaign--really a constant campaign of 
what I would argue is about three things, and maybe not only three but 
at least three: ripping away coverage; decimating the Medicaid Program 
or at least attempting to over and over again; and thirdly, sabotage--
sabotage mostly by the administration itself but also supported by 
Republicans here in the Congress. That sabotage has been, 
unfortunately, successful.

  As of January, for example, the Gallup organization released data 
that said the number of Americans--I am reading from the first line of 
a news story from the publication Vox. The headline is ``Under Trump, 
the number of uninsured Americans has gone up by 7 million.'' The sub-
headline is ``Even in a strong economy, Americans are losing their 
health coverage.'' This is an article written by Sarah Kliff--someone 
who spends a lot of time writing about and analyzing healthcare as an 
issue. It is dated January 23, 2019. I will read just the first two 
sentences: ``The number of Americans without health insurance has 
increased by 7 million since President Donald Trump took office, new 
Gallup data released Wednesday shows.'' Again, this is a January 2019 
story. It goes on from there to say: ``The country's uninsured rate has 
steadily ticked upward since 2016, rising from a low of 10.9 percent in 
late 2016 to 13.7 percent--a four-year high.''
  So at the end of 2016, at the beginning of the Trump administration, 
the uninsured rate was 10.9. At the end or the latter part of 2018, 
going into 2019, it stood at 13.7. So Gallup tells us that 7 million 
more people do not have healthcare who had it when the President 
started his administration.
  A number of organizations have catalogued recent analyses of the 
potential threats that could impact communities if this Texas v. United 
States case were successful. I will mention again for the record that 
the litigants--the ones who were bringing the case, these Republican 
attorneys general--prevailed at the district court level. Now it is on 
appeal at the circuit court, and, in my judgment, it is probably more 
likely than not that they will prevail at that level too. Then, of 
course, the only option would be the Supreme Court, and I don't have a 
lot of confidence that this Supreme Court would rule against that case, 
which would result in chaos. That is a terrible understatement for what 
would happen when 20 million people potentially lose their coverage and 
tens and tens of millions more lose the protections they enjoy now, 
especially those against the denial of treatment or coverage because 
that individual has a preexisting condition.
  Here are the numbers, just to remind folks. Everyone has heard the 
number nationally. One hundred thirty-three million Americans, roughly, 
have a preexisting condition. In my home State of Pennsylvania, that 
number is a little more than 5.3 million people. Those numbers are 
terribly high, but I think the one really making an impression on me 
and I hope on others--especially those in Pennsylvania--is the number 
of children in the Commonwealth of Pennsylvania who have a preexisting 
condition. Six hundred forty-two thousand seven hundred Pennsylvania 
children have a preexisting condition--642,700. No action by the U.S. 
Congress, by the administration, or by a court should ever result in 
any child being denied coverage or treatment because of a preexisting 
condition--any child but let alone numbers that are so high and so 
offensive to even consider that number of children or any portion of 
that number could be denied coverage.
  The only number I will emphasize tonight is 642,700 Pennsylvania 
children with a preexisting condition. I won't go through all the 
numbers because I know we are here late tonight, but another number 
that jumps out at me--and this number comes from a document published 
by Protect Our Care telling us in a publication today that when you 
consider the doughnut hole coverage, meaning that the Affordable Care 
Act began to fill the coverage gap when older Americans were paying for 
prescription drugs and often paying exorbitant prices for prescription 
drugs--the Affordable Care Act began to chip away at that number, so 
much and in such a substantial fashion that the average senior, since 
the Affordable Care Act was passed--and this is the period of time 
between 2010 and 2016--that seniors gained $2,272 on average, almost 
$2,300 per senior to help them with their prescription drug costs by 
helping to fill that so-called doughnut hole, which is a very benign 
way to talk about a terrible coverage gap that burdens a lot of older 
Americans. In Pennsylvania, that number is lower, but it was still more 
than $1,100 per person.
  All of that will be at risk if this case is successful. Just like the 
protections for preexisting conditions are at risk, the support that 
has been available up until the recent past for prescription drug 
coverage for seniors--that support potentially could go away 
completely. So seniors will again potentially be footing the bill if 
this lawsuit is successful.
  Two more, just for the record. Access to treatment would be in 
jeopardy for some 800,000 people with opioid use disorder issues. We 
know there are a huge number of Americans who have a substance use 
disorder issue, often an addiction. A subcategory of that--probably the 
biggest subcategory--are those with an opioid addiction. That has hurt 
families of all kinds--rich and poor, north and south, no matter where 
you live--east, west, rural, urban, suburban. It knows no bounds.
  A lot of that support has come from the support for quality treatment 
that folks need to lift themselves out of the grip of an addiction. A 
lot of that support comes from Medicaid expansion. Whether it is the 
repeal bills that were promoted on the Senate floor over and over again 
or whether it is the lawsuit that could have as devastating of an 
impact on healthcare as any repeal bill would, no matter where you 
turn, in terms of Republican healthcare bills and this lawsuit, you can 
see the adverse impact on Medicaid expansion.
  Virtually every one of them not only wants to cut Medicaid expansion, 
in most of the Republican bills, they want to eliminate it over time--
completely eliminate Medicaid expansion. Somehow it was wrong. I have 
to ask why.

[[Page S4742]]

Why was it wrong that millions of people got their healthcare through 
an expansion of Medicaid? Why would anyone ever doubt that someone next 
to you who doesn't have coverage, first and foremost, and might have an 
opioid addiction problem is getting coverage, and because they have 
insurance coverage, they can get treatment for that terrible scourge 
our country is going to be dealing with for decades--why is that the 
wrong thing to do? How would taking that coverage away from someone 
with an opioid problem advance the interests of the American people? 
The answer is, it wouldn't. The answer is, it would set back the 
efforts to deal with a whole host of folks out there who are getting 
treatment today solely, completely, because of Medicaid expansion.
  The last thing I will mention is our rural areas. I represent a State 
that has 67 counties, and 48 of them are rural. A lot of the rural 
hospitals in those communities are already teetering on the edge of 
collapse and have been for years--not just the last several years but 
for many years.
  One of the fastest ways to ensure that more rural hospitals would 
close and collapse is to cut Medicaid or to take away Medicaid 
expansion. That has an adverse impact, the likes of which we can't even 
begin to calculate because folks in rural Pennsylvania will lose 
coverage if you decimate Medicaid or you take away Medicaid expansion, 
but that doesn't end there.
  A lot of folks in those communities are getting treatment for an 
addiction issue or something related. They will be adversely impacted; 
their families will; their communities will, but it doesn't stop there 
in a rural area.
  In a lot of these rural areas in my home State--and it is true all 
across the country--the biggest employer, or at least the second or 
third biggest employer, is often a hospital. In my State, there are 
probably 25 counties where the top employer in those 48 rural 
counties--about half of them, roughly--the No. 1 and No. 2 employer is 
a hospital. So cutting Medicaid or eliminating Medicaid expansion or 
sabotaging the health insurance markets or taking away the coverage of 
the Affordable Care Act has healthcare consequences, has opioid 
addiction treatment consequences, and of course has a job consequence 
as well. If you cut Medicaid in a lot of rural areas, you are going to 
lose a lot of jobs. It is as simple as that, as devastating as it is.
  So we have a long way to go to make progress on healthcare. I hope--I 
hope--my Republican friends will come together with us and work on 
lowering the cost of healthcare and lowering the cost of prescription 
drugs, but they don't seem to be that interested in that. Some are, 
intermittently, once in a while, but they don't seem to be interested 
because there is an obsession in the Senate, on the Republican side, 
with decimating the Medicaid Program, ending Medicaid expansion, and 
completely wiping out all the gains of the Affordable Care Act.
  That would be bad enough, but it is doubly worse or it is doubly 
insulting, I should say, when there is no plan for replacement. So what 
if a court of law, what if a Federal court in the Fifth Circuit, in the 
next couple of months, says the moving party here, the party that wants 
to declare the Affordable Care Act unconstitutional--declares the 
moving party is the prevailing party, that they win? Let's say it 
doesn't go to the Supreme Court, but even if it does, let's say it 
loses there. What happens then to those 20 million people who got 
coverage? What happens to the 150 million-plus who have coverage today, 
protections today, who did not have it before the Affordable Care Act? 
They were paying their premiums for years, if not decades. They had 
coverage for years, if not decades. Their children were maybe covered 
in their employer-sponsored plan, but in many cases--maybe not in every 
case--they didn't have much protection from preexisting conditions. 
They didn't have protections against lifetime limits or caps on the 
treatment you can get in a year or over a lifetime.
  We had the bizarre and insulting and degrading experience, where 
women were discriminated against by the insurance companies because 
they were women. Being a woman was actually, in a sense, a preexisting 
condition. That made no sense. Are we going to go back to those days 
because a group of attorneys general wanted to change the law, and they 
couldn't prevail on the Senate floor, or they couldn't prevail over 
time in the House, or by way of what the administration would do, so 
they went into court, and they are going to wipe out coverage for tens 
and tens of millions of Americans? Is that a good thing for America? I 
don't think so. I think that sends everything in the wrong direction.
  Unfortunately, that is not just theory. Some of it is already 
happening. As I said before, Gallup tells us that 7 million fewer 
people have healthcare today, or at least as of January, than did two 
Januarys before that. So we have a long way to go to make progress on 
healthcare, but we are not going to make much progress around here if 
we have a continual fight. I hope some will agree to set aside the 
fight about repeal and lawsuits taking away coverage. Let's work 
together to lower costs, and let's work together to lower the costs of 
prescription drugs, in particular, because I have to answer to a lot of 
families.
  One of them is Matt Stefanelli, a young man we just spoke to today 
talking about his children. Matt's son has type 1 diabetes. We are from 
the same home county. He is worried not only about his own healthcare, 
but he is worried about his son's healthcare. We have an answer, and 
the answer is to respond to families like Matt's.
  I yield the floor.

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