[Congressional Record Volume 167, Number 65 (Thursday, April 15, 2021)]
[Senate]
[Pages S1958-S1959]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Motion to Discharge

  Mr. GRASSLEY. Mr. President, right now, I just want to speak about 
the motion to discharge as opposed to whether people should vote for or 
against Gupta.
  I am opposed to this effort to discharge Gupta from the Judiciary 
Committee. In fact, it is not properly in order. In theory, we are 
moving this nomination because it failed in Committee by an even, tie 
vote. But that vote should never have been called, and it was improper 
when it was.
  Under the committee rules, members have a right to unlimited debate. 
This can only be stopped either by a bipartisan vote to end debate 
under the rules or by a vote of the majority of the committee to set a 
time certain to vote under precedent. Because Republicans at Ms. 
Gupta's markup wanted

[[Page S1959]]

to talk, there couldn't have been a bipartisan vote to end debate. In 
fact, some, like my colleagues from North Carolina, didn't have a 
chance to speak and were still waiting their turn. And because the 
Democrats don't have a majority in the committee, they couldn't have 
set a time certain.
  Under the rules and precedents of the committee, then, they had to 
let Republicans talk, and if it took more than one markup, so be it. 
The Democrats did this talkathon when I was chairman. During our second 
markup of 2017, in order to delay Senator Sessions' nomination to be 
Attorney General, Democrats filibustered in the Judiciary Committee. 
When it happened, I didn't interrupt anyone or break any rules. I 
simply continued the markup the next day, checking to see who would 
want to be recognized and for how long.
  The fact is that the Democrats frequently used these filibuster 
tactics against us over the past 4 years. We simply dealt with them 
from a position of confidence in the rules and precedents of our 
committee. Sometimes being chairman and moving nominees takes hard 
work, but we did the job we needed to do.
  That is not what happened in the discussion of Gupta. Instead, my 
colleague from Arkansas was interrupted and the roll was called while 
he was still speaking.
  This was not the power of the majority being used. It was the power 
of the chairman. What is the point of having rules if you can just 
ignore them--just ignore them when you find yourself dealing with an 
unfamiliar situation.
  So I don't think the even vote--the tie vote--in committee even 
properly happened. As far as I am concerned, Senator Cotton had the 
floor. That rollcall vote was illegitimate under committee rules, and 
so the one that we are going to have in the Senate this afternoon is 
just as illegitimate.
  And why did the Chairman scrap the committee rules for this nominee? 
This isn't a Supreme Court nomination. The nominee is a sub-Cabinet 
official at the Justice Department. So I have to wonder why. I think it 
is because the Democrats know how really powerful she will be in the 
Justice Department
  As Judge Garland told us during his hearing, he didn't pick Ms. 
Gupta. He only got to know her after they were both picked. That is 
quite a position for a subordinate to be in.
  The late Congressman Dingell famously said this--and I will clean it 
up a bit: ``You let me write the precedent, and I'll [beat] . . . you 
every time.''
  The Judiciary Committee has done him one better: Now there is no 
procedure.
  If the rules are not respected, the Senate is an institution that 
loses every time.
  I urge my colleagues to vote no and protect the traditions of the 
body.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I don't know that there is another 
Republican Senator that I have worked with as much and as effectively 
and with as much pleasure as Senator Chuck Grassley of Iowa--and I mean 
it. We have done some good things together.
  We sometimes started off in opposing positions and tried to find some 
common ground. The First Step Act was a good illustration of that, but 
it is not the only demonstration, and I trust that there will be more. 
I am sorry we disagree today.
  Two points I will make. Rule 4, as described by Senator Grassley, is 
virtually, as I mentioned earlier, a doomsday filibuster. There is just 
no way out of it, particularly with an evenly divided committee. I am 
not the first to discover that as chairman.
  I will make as part of the Record, and I am going to share with my 
colleague from Iowa, the four or five instances when previous 
Republican chairs of the committee did exactly what I did with this 
nomination and said: We are moving forward; we are not going to pay 
attention to rule 4.
  Senator Graham, Senator Grassley, and others have done just exactly 
that in the past. So I think we adopted that as a rule because it was 
already in the rules, and we were evenly tied in committee. But it sure 
ties the hands of a chairman or anyone who is trying to accomplish 
anything if there is one person who just stands and objects and objects 
and objects. It is a very difficult situation.
  The second thing I will mention is--I am going to make this a part of 
the Record, and I don't have it at hand as I stand here--the quote from 
Merrick Garland in his nomination hearing when someone raised the 
question about Vanita Gupta and Kristen Clarke, another nominee working 
her way through the committee. Merrick Garland may not have known 
either one of them personally beforehand. He could have, but I am not 
sure. But he made it abundantly clear that this is the team he wanted 
to manage the Department of Justice--no ifs, ands, or buts about it. He 
totally committed and believed that each of them brought a perspective 
in the law and by their own legal experience valuable to him and the 
Department of Justice and to the Nation. So I don't think there is any 
question that he is committed to Vanita Gupta, as he should be.
  I will yield back at this point.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I am sorry that I missed the incredibly 
thoughtful comments of the Democratic whip, who I think spoke on the 
topic--one of the topics--that I am going to speak about.
  I think I have 10 minutes. Is that right?
  OK. Thank you.
  The PRESIDING OFFICER. Clarification: The Senator may use whatever 
time he needs to.
  Mr. WARNER. I thank the Presiding Officer and thank the--I want to 
thank the brilliant ruling of the Parliamentarian on that subject.
  Mr. DURBIN. Excuse me. If I can have a clarification. As I understand 
it, we are in measured time, 2 hours to a side. Any speakers on our 
side will be taken from that 2-hour total.
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. Thank you very much