[Congressional Record Volume 167, Number 65 (Thursday, April 15, 2021)]
[Senate]
[Pages S1966-S1967]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Motion to Discharge

  Mr. DURBIN. Mr. President, my friend and colleague from Utah is not 
the first to come to the floor on the Republican side and raise 
questions about committee procedure that led to Vanita Gupta being 
considered today before the U.S. Senate.
  They say it is unheard of, unthinkable, unimaginable, unfathomable 
that the Senate committee rules were not carefully followed and that 
their attempt at a filibuster was in some way diverted.
  I would ask unanimous consent to have printed into the Record a memo 
entitled ``Senate Judiciary Committee Rule Violations by [Senate 
Judiciary Committee] Chairs Graham, Grassley, and Hatch.'
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

Senate Judiciary Committee Rule Violations by Chairs Graham, Grassley, 
                               and Hatch


                    Chairman Graham Rule Violations

       Graham (116th Cong.)

[[Page S1967]]

       a. Violation: Rule III
       i. Date: July 25, 2019
       ii. Summary: Chairman Graham's Secure and Protect Act was 
     on the agenda. Then-Ranking Member Feinstein was the only 
     Democrat in attendance. Graham stated that he would deem the 
     bill held over at the following week's markup. This 
     constituted ``conducting business'' under the Committee's 
     rules, despite the lack of a quorum.
       iii. Source: https://www.judiciary.senate.gov/meetings/07/
25/2019/executive-business-meeting
       2. Graham (116th Cong.)
       a. Violation: Rule I; Rule IV; Rule V
       i. Date: August 1, 2019
       ii. Summary: At an August 1, 2019, markup, Chairman Graham 
     forced a vote on his Secure and Protect Act despite a request 
     to hold over the bill. Graham ignored Democratic requests to 
     hold the bill over; called a vote--setting a time certain for 
     final passage of the bill--without first allowing any 
     Democratic members to speak; and did not allow any amendments 
     to be offered.
       iii. Source: https://www.judiciary.senate.gov/meetings/08/
01/2019/executive-business-meeting
       3. Graham (116th Cong.)
       a. Violation: Rule III; Rule IV
       i. Date: October 15, 2020
       ii. Summary: Chairman Graham held a markup during which 
     Committee Republicans held over Amy Coney Barrett's 
     nomination to the Supreme Court. Chairman Graham also called 
     a vote to vote on Barrett's nomination at a time certain the 
     following week. However, Barrett's hearing had not yet 
     concluded by this point--the witness panels were held in the 
     afternoon on October 15, 2020, after the markup vote. 
     Committee Democrats objected to holding this markup before 
     the hearing concluded, and Senator Durbin--the only Democrat 
     in attendance--moved to adjourn the markup. Graham overrode 
     Durbin's motion on a roll call vote in violation of the 
     Committee's quorum rule.
       iii. Source: https://www.judiciary.senate.gov/meetings/
nomination-of-the-honorable-amy-coney-barrett-to-be-an-
associate-justice-of-the-supreme-court-of-the-united-states-
day-4
       Durbin Comments: https://twitter.com/SenatorDurbin/status/
1316751184468865025?ref_src=t wsrc%5Etfw%7Ctwcamp 
     %5Etweetembed%7Ctwterm%5E131675118446 8865025% 7Ctwgr%5E% 
     7Ctwcon%5Es 1_&ref_url=https%3A %2F%2Fw 
     ww.commondreams.org%2Fnews%2F2020%2F 10%2F 15%2Funpreceden 
     ted-lindsey-graham-openly-violates-committee-rules-schedule-
     vote-barrett
       4. Graham (116th Cong.)
       a. Violation: Rule III
       i. Date: October 22, 2020
       ii. Summary: Chairman Graham broke the Committee's business 
     quorum rule, which states that nine Members of the Committee, 
     including at least two Members of the minority, must be 
     present to transact business. No Committee Democrats attended 
     this markup, at which Amy Coney Barrett's nomination was 
     voted out of Committee. Chairman Graham ignored this rule, 
     and Committee Republicans voted 12-0 to advance Barrett along 
     with the other nominees on the agenda that day.
       iii. Source: https://www.judiciary.senate.gov/meetings/1 0/
     22/2020/executive-business-meeting


                   Chairman Grassley Rule Violations

       1. Grassley (115th Cong.)
       a. Violation: Rule IV
       i. Date: September 13, 2018
       ii. Summary: Then-Chairman Grassley violated Rule IV by 
     passing a motion to cut off debate on Brett Kavanaugh's 
     nomination without an affirmative vote from one member of the 
     minority. At this markup, the Judiciary Committee held over 
     Brett Kavanaugh's nomination. Numerous other items were on 
     the agenda that day, most notably a motion from thenChairman 
     Grassley to set a precise time at which the committee would 
     vote on Kavanaugh's nomination the following week. Senators 
     Leahy and Durbin argued that Grassley's motion violated Rule 
     IV by cutting off debate without the consent of any member of 
     the minority. Senator Durbin read Rule IV aloud and then 
     summarized: ``The point is, you need 11 votes and one member 
     of the minority to stop debate on any matter, let alone a 
     nomination to the Supreme Court.'' Grassley responded, ``The 
     answer to your question is no we don't, and we've checked 
     with the Senate Parliamentarian.'' Grassley asserted that 
     Chairman Hatch had done the same thing in 2003, setting a 
     precedent that he was following.
       Other items on the agenda that day included: six motions to 
     subpoena various documents related to Kavanaugh' s record; 21 
     lower court judicial nominees; a nominee to be a U.S. 
     Attorney; a nominee to be a U.S. Marshal; a nominee to be 
     Director of National Drug Control Policy; and five 
     legislative bills.
       iii. Source: Video of the markup, from approximately minute 
     marker 00:44:48 to 00:48:15: https://
www.judiciary.senate.gov/meetings/09/13/2018/executive-
business-meeting


                     Chairman Hatch Rule Violations

       1. Hatch (108th Cong.)
       a. Violation: Rule IV
       i. Date: February 27, 2003
       ii. Summary: At a markup, Chairman Hatch ignored Rule IV by 
     cutting short Committee debate on the nominations of John 
     Roberts (D.C. Cir.) and Deborah Cook (6th Cir.). Pursuant to 
     Rule IV, then-Ranking Member Leahy asked for a vote before 
     Hatch ended debate, but Hatch refused, directing the clerk to 
     call the roll and noting that ``[t]he Chairman's prerogative 
     is to determine that we can go ahead to a vote'' and that 
     Rule IV ``does not apply to executive nominations.''
       iii. February 27, 2003 Executive Business Meeting Record, 
     on file with the Senate Judiciary Committee Library

  The PRESIDING OFFICER. The Senator from Minnesota is recognized.