[Congressional Record Volume 166, Number 112 (Wednesday, June 17, 2020)]
[Senate]
[Pages S3038-S3039]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Cloture having been invoked, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The bill clerk read the nomination of Justin Reed Walker, of 
Kentucky, to be United States Circuit Judge for the District of 
Columbia Circuit.
  The PRESIDING OFFICER (Mr. Romney). The Senator from Vermont.
  Mr. LEAHY. Mr. President, this morning, the Senate narrowly invoked 
cloture on the nomination of Justin Walker to the DC Circuit. Within 
the week, the Senate is expected to confirm, by the thinnest margins, 
both Judge Walker and a separate nominee, Cory Wilson, to the Fifth 
Circuit. That fills the final two available seats on the circuit 
courts. In one case, there isn't a vacancy yet, but he is preemptively 
filling it. This will complete Leader McConnell's rush to pack our 
appellate courts with President Trump's nominees.
  I want to speak about this because I have had more experience on 
nominations, only because of tenure, than anybody else in this body. I 
note that both Judge Walker and Judge Wilson are partisan ideologues 
who have given no indication that they will leave their politics 
outside the courtroom. This has become par for the course under this 
President--choosing nominees not for their judicial qualifications and 
in spite of their political leanings but because of those partisan 
leanings. Extreme partisanship has become a qualifier, not a 
disqualifier. It is a prerequisite.
  My Republican friends may consider these confirmations a great 
achievement; however, I fear that the damage left in the wake of their 
effort--to the courts, to the Senate, to the country--is going to 
remain with us for years to come after most of us have probably left 
this body.
  Let us consider the backdrop in which we consider these nominees. We 
are in the throes of a global pandemic that has taken almost 120,000 
American lives. It has plunged our economy into a deep recession. It 
has deprived nearly 45 million Americans of their jobs, something I 
have never seen in my years here in the Senate. Yet are we here today 
considering legislation that further assists Americans struggling 
during this pandemic? Indeed, we have done nothing to respond to COVID-
19 for months even though the House passed $3 trillion in further 
assistance last month.
  The Senate today is not working together to find bipartisan 
meaningful ways to address the plagues of racial and social inequality, 
despite the fact that we see millions of Americans of all backgrounds, 
ages, creed, and color who flood our streets and squares with protests 
in the wake of the murder of George Floyd.

[[Page S3039]]

  What are we doing to respond as a body? We are busy processing and 
confirming an endless stream of partisan ideologues, such as Justin 
Walker and Cory Wilson, to our Federal courts. I think it has to be 
noted, again, that Judge Walker, who is a protege of Senator McConnell, 
has been nominated to a seat that isn't even vacant until September.
  It would be one thing if we were coming together in the Senate across 
party lines to confirm mainstream nominees, something we have done so 
many times in years past, but nothing about Judge Walker and Judge 
Wilson is mainstream. Judge Walker is not shy about his overt 
partisanship. He is openly hostile to the Affordable Care Act, even 
though the Affordable Care Act has provided a critical lifeline to 
millions of Americans during this pandemic. He has dangerously 
suggested that the FBI Director--whom we provided with a 10-year term 
to avoid politicization--``must think of himself as an agent of the 
President.'' One can see why President Trump is interested in a nominee 
like him. People should worry about somebody who would want the FBI 
Director--who is supposed to treat everybody the same and just uphold 
the law--to be, instead, an instrument of whoever is present. Even if 
we ignore his hyperpartisan writings and countless cable news 
appearances before he became a district court judge--and that was just 
a few months ago, last fall--he has already shown he does not leave 
politics at the door when he puts on his robes. Even his judicial 
investiture ceremony could have been a lead-in for a Trump campaign 
rally, where he lamented that his legal principles have not yet 
prevailed and feared losing ``our courts and this country'' to his 
critics. These may be the words of Judge Walker, but they are not the 
words of any other judge I have ever known, Republican, Democrat, 
Independent. This judge wears his partisanship as a badge of honor, 
knowing that it will only appeal to a President who knows nothing of 
the role of the Federal judiciary and, sadly, knowing it will not deter 
this Senate from confirming him.
  Judge Cory Wilson is no better. Again, I spoke about the Affordable 
Care Act, which has provided help to millions of Americans during the 
coronavirus epidemic. What does he call it? He calls the Affordable 
Care Act ``perverse'' and ``illegitimate.'' Golly, how would he vote on 
that? I wonder if those Americans--Republicans and Democrats alike--who 
are receiving lifesaving care through the ACA would call the law 
perverse.
  He has attacked President Obama in ugly, personal terms, berating him 
as a ``fit-throwing teenager'' and ``shrill, dishonest, and 
intellectually bankrupt.'' That is a good attitude to hold when you are 
coming to the Senate as a Federal judge where you are supposed to be 
impartial. Such baseless accusations were laughable when he made them. 
They are beyond parody today.

  Judge Wilson has a long record of undermining minority voting rights 
and dismissing the scourge of voter suppression, which we saw again 
last week during primary elections. He dismisses that as ``phony,'' 
even though everybody watching the news, from the right to left, can 
see it happening.
  What message do these nominees of President Trump send to the country 
in this moment? Well, it says that the Republicans in the Senate are 
fast-tracking nominees who are eager to overturn the Affordable Care 
Act in the midst of a public health pandemic. They are fast-tracking 
nominees who are dismissive of racial injustices in the midst of a 
national reckoning on racial injustices.
  The Senate has a constitutional duty to provide advice and consent to 
a President's nominee. When I came to the Senate, that meant something. 
It meant something under both Republican leadership and Democratic 
leadership. It meant something with both Republican and Democratic 
Presidents. But under this President, that constitutional duty has 
meant no more than serving as a mindless conveyer belt to rubberstamp 
nominees, however unqualified, however extreme, and however 
inappropriate at the moment.
  You couldn't have two more inappropriate nominees at a time when we 
need healthcare because of the coronavirus or so inappropriate at a 
time when we are trying to do away with racial tensions and address the 
racial tensions of our country. It says that we don't believe in our 
standing as a coequal branch of government and that the Senate is 
willing to have that position as a coequal branch of government 
diminished.
  Worse is the damage we inflict upon our courts. The Senate has now 
reshaped our Federal courts, especially our appellate courts, to 
resemble an extreme partisan arm of the Republican Party. For 
generations, Americans have valued our judiciary for its independence, 
a place where all Americans--of any political party or background, 
race, or belief--believed they could obtain fair and impartial justice. 
That is changing every day under President Trump.
  When I tried cases before Federal courts at the district level or the 
appellate level--and the same with State courts at the trial level and 
the appellate level--I never worried that I would come before that 
court and my political beliefs would in any way affect the outcome. 
What I thought would affect the outcome would be the facts and the law. 
I have appeared before courts of appeals and Federal courts of appeals. 
Most of the time I had no idea what the political position or political 
party of the judge was. Yet today, anybody who comes in trying a case 
or appealing a case has to say: No matter what my facts are or no 
matter what the law is, I have to face a partisan ideology with a judge 
who is supposed to be nonpartisan. We have seen fair and impartial 
justice, as I said, changing every day under President Trump.
  I have to hope that the Senate can rediscover its better angels. I 
can hope that we can again reassert ourselves as the crucible in which 
the great issues of the day are debated heatedly but resolved amicably, 
across party lines. I hope that one day the Senate will again serve as 
the conscience of the Nation, as it has during so many moments of 
upheaval and uncertainty in our history.
  Today, more than any other time since I have been here, when we 
should be the conscience of the Nation, we are keeping that conscience 
locked up behind closed doors.
  I hope, one day soon, the Senate will again demand--as it has under 
Republican and Democratic leadership in the past--that our President's 
judicial nominees are deserving of lifetime appointments to our Federal 
courts, possessing the qualifications and temperament that, until now, 
were rarely in question and now, time and again, are in question.
  I ask my colleagues to go back to being the U.S. Senate. We owe it to 
ourselves. We owe it to the Constitution. Most of all, we owe it to the 
American people. Let the Senate once again be the conscience of the 
Nation, as it should be.