[Congressional Record Volume 167, Number 214 (Monday, December 13, 2021)]
[Senate]
[Pages S9107-S9110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Judicial Nominations

  Mr. SULLIVAN. Madam President, this week, the Senate is going to take 
up three Ninth Circuit judges, three Federal judges for the U.S. Court 
of Appeals for the Ninth Circuit.
  And in the process, the Biden administration is going to smash an 
institutional and constitutional norm between the executive and 
legislative branches, particularly the executive branch, the White 
House, and the U.S. Senate that every U.S. Senator--all 100 of us--
should be concerned about.
  Let me explain. This is a really important issue.
  Article II, section 2, of the U.S. Constitution says the following:

       [The President] shall have Power, by and with the Advice 
     and Consent of the Senate, to make Treaties, provided two 
     thirds of the Senators present concur; and he shall nominate, 
     and by and with the Advice and Consent of the Senate, shall 
     appoint Ambassadors, other public Ministers and Consuls, 
     Judges of the supreme Court, and all other Officers of the 
     United States.

  Now, that includes Federal circuit court judges,
  Throughout this, article II, section 2, provision of the 
Constitution, it says: ``[W]ith the Advice and Consent of the Senate.'' 
We are ``of the Senate,'' right here. And this week, we will be voting 
on three U.S. court of appeals for the Ninth Circuit.
  Now, this provision in the Constitution, like so many which gives the 
U.S. Senate the exclusive right for the advice and consent power, was 
the result of compromise.
  If you look at the history in Federalist Nos. 75 and 76, Alexander 
Hamilton argued that this provision afforded a necessary means of 
checks and balances against the executive branch, against the 
President.
  The Constitution--according to the U.S. Senate history that I am 
quoting from--``also provides that the Senate shall have the power to 
accept or reject

[[Page S9108]]

presidential appointees to the executive and judicial branches.''
  This was born of compromise, as I mentioned:

       In debating the issue, the framers addressed concerns that 
     entrusting the appointment power exclusively to the president 
     would encourage monarchial tendencies. Additionally, as the 
     Senate was to represent each state equally, its role--

  The advice and consent role in the Constitution--

     --offered security to the small states, whose delegates 
     feared they would be overwhelmed by appointees sympathetic to 
     larger states.

  For these reasons, since I have been in the U.S. Senate, I have taken 
this advice and consent role very seriously for all nominees: during 
the Obama administration, when I was here for the last 2 years of that 
administration; all of the Trump administration; and now the Biden 
administration.
  And as you can imagine, whenever I have asked for a meeting of any 
nominee so I could meet with them under this constitutional provision 
for a Senate-confirmed position, every single administration I have 
dealt with--the three I just named--has said: Of course, Senator. That 
is your constitutional role. Of course you should meet with them.
  Why is that? Why has every White House said yes?
  Because, as I just mentioned, they know that that is literally our 
constitutional role, as I just mentioned.
  So every time I have asked for one of these meetings for a Senate-
confirmed nominee of any administration, it has always been granted, 
until today--until today.
  As I said, the Senate's business--a lot of the business this week is 
actually going to be focused on the advice and consent constitutional 
role that we have, especially as it relates to judges.
  But I have been told by this White House, specifically the White 
House Counsel, I guess--to be honest, it is often difficult to figure 
out who is in charge over there--that I can't meet with any of these 
Ninth Circuit judges that we are going to vote on this week before the 
vote.
  This is a shocking breach of constitutional norms between the White 
House and the Senate that every Senator here--every Senator, regardless 
of party--should be concerned about.
  Why?
  As I mentioned, the advice and consent role is really important for 
every Senate-confirmed position, mandated by the U.S. Constitution, but 
it is particularly important for judges--judges who will get life 
tenure. By the end of this week, it is likely that these three Ninth 
Circuit judges will be on the bench for the rest of their lives, and 
right now I can't get a 1-hour meeting with them.
  They have enormous power over American citizens. And I am going to 
talk about the Ninth Circuit and the power it has over my citizens.
  So my experience as a Senator is that I meet with as many judges as 
possible, and whenever I have requested a meeting of any administration 
to meet with a judge, it has always been granted. But I always, always, 
always meet with the Ninth Circuit judges.

  As I mentioned, until now, I had interviewed every single Ninth 
Circuit judge that this body has voted on for the last 7 years--every 
single one--during my entire time in the Senate.
  Why is it so important to me?
  Why is it so important to everybody?
  Well, specifically, as it relates to the Ninth Circuit, if you can 
look at this map, as many Americans know, our Federal court systems are 
divided into what are called circuits. The Ninth Circuit, which is this 
dark brown, is the biggest Federal court of appeals in the country. It 
is huge. Look at all the States that are under the jurisdiction of the 
Ninth Circuit: California, Idaho, Arizona, Washington, Oregon, Montana, 
Alaska, Hawaii. It is enormous. Almost one in five Americans are under 
the jurisdiction of the Ninth Circuit. It has enormous power, 
especially over my constituents in the great State of Alaska.
  But here is the thing. If you look at the number of judges that each 
Circuit Court gets, another reason why the Ninth Circuit is so 
important and so powerful is that it gets an enormous number of judges. 
The Ninth Circuit is listed here on the far left. Out of 29 active 
judges, one judge comes from the great State of Alaska. One judge comes 
from the great State of Alaska. So, as you can imagine, discussing 
legal issues with any judge from the Ninth Circuit is very important to 
me and, more importantly, to the people I represent.
  Here is something else about the Ninth Circuit. On so many issues 
that matter to my constituents, the court gets the legal issues wrong. 
The court gets the legal issues wrong.
  Now, I have seen this firsthand. Almost 25 years ago, I had the honor 
of being a Ninth Circuit law clerk for the only Ninth Circuit judge we 
have in Alaska, Judge Andrew Kleinfeld, a phenomenal judge. I watched 
panel after panel in the Ninth Circuit get cases related to the great 
State of Alaska wrong.
  Now, look. In some ways it is not their fault. Yes, they had 
different views and a legal outlook. But if you are a judge and you 
grew up in LA and all you know is LA and California laws, and now you 
are a Ninth Circuit judge and you are supposed to rule on all these 
Alaska-specific Federal laws, you really don't know what you are doing. 
You don't really know what you are doing, and I saw that as a young 
lawyer.
  But don't take my word for it.
  In the last 4 years, the U.S. Supreme Court has taken up three 
specific Alaska cases, two of which were from the Ninth Circuit and one 
of which was from the DC Circuit. These big, important circuits all got 
them wrong. They are cases that would have changed the history and 
future of my State.
  So when I meet with nominees for the U.S. Court of Appeals for the 
Ninth Circuit, it is usually always very cordial. I walk them through a 
lot of issues, legal issues of which they know very little about--
again, not their fault--and to explain why these are so important to 
the people I represent.
  Again, if you are an LA lawyer or a lawyer from Phoenix, you don't 
know about Native Alaskan law. You don't know about the Alaskan 
National Interest Lands Conservation Act, called ANILCA--a Federal law, 
1,000 pages--that the U.S. Supreme Court, in the last 3 years, twice 
smacked down the Ninth Circuit, 9 to 0--9 to 0--because the Ninth 
Circuit continually gets these Alaska-focused statutes wrong.
  So I walk them through these issues. That is all I do. It is not a 
big deal. It is actually trying to help the judges. I think every Ninth 
Circuit judge I have met with appreciates it.
  Let me give you a couple of examples of what I would do if I could 
meet with these judges.
  Like I said, ANILCA, or the Alaska National Interest Lands 
Conservation Act, is a hugely important Federal law that was passed in 
1980. We didn't want it, by the way. It federalized almost 100 million 
acres of land in Alaska. Imagine that. Most States aren't even as big 
as 100 million acres.
  The U.S. Supreme Court ruled 9 to 0 in favor of a moose hunter who 
wanted access to Federal land. His name is John Sturgeon. He is a very 
famous Alaskan right now.
  It went back to the Ninth Circuit. They misinterpreted it. It went 
back up to the U.S. Supreme Court--9-zip--they smacked it down again.
  Justice Kagan, who wrote the second opinion, said: ``If [John] 
Sturgeon lived in any other State, his [law]suit would not have [had] a 
prayer of success. . . . Except that Sturgeon lives in Alaska. And as 
we [the U.S. Supreme Court] have said before, `Alaska is often the 
exception, not the rule,' '' when it comes to these kind of Federal 
laws in Federal parks.
  Do you think it would be good to have a Ninth Circuit judge getting 
ready to get on the court to understand the Sturgeon case? It would be. 
So that is what I do. I have the judges read Sturgeon. I have them read 
other cases. It is all advice and consent. It is our constitutional 
role. Until today, I have done it with every Ninth Circuit judge.
  Like I said, I was over at the White House on Friday, really kind of 
banging the table on the Biden administration's war on Alaska. Some of 
you may have seen a speech I gave last week. There are 20 Executive 
orders and Executive actions singularly focused on my great State--20--
crushing working families.
  And I said: You know, one thing I would like to do is continue my 
record of meeting with every Ninth Circuit

[[Page S9109]]

judge. I am available Sunday, Sunday night, all day Monday. Give me a 
call. I haven't heard anything back.
  Something else I do with these judges when they come before me is I 
talk about Indian law. Now a lot of lawyers think, ``Hey, I really know 
Indian law well.'' And my advice and counsel in the advice-and-consent 
process, when it comes to Indian law in Alaska, is ``If you think 
you are an expert, throw out everything you know about lower 48 Indian 
law when it comes to Alaskan Indian law.

  The Native Alaskan law, in Alaska--the Federal law--is 100 percent 
different than it is in the lower 48. This is just advice I give judges 
who are going on the Ninth Circuit. They don't know this. An LA lawyer 
doesn't know this.
  This week, we are celebrating the 50th anniversary of Congress's 
passage of the Alaska Native Claims Settlement Act, what we call in 
Alaska ANCSA, the largest settlement of indigenous land claims, 
certainly, in America, and probably in the world. It is a really 
successful act, not perfect, very innovative. But it has been litigated 
like crazy.
  We had a case from the Ninth Circuit several years ago that 
essentially said: ANCSA created reservation land throughout the entire 
State of Alaska.
  That would have changed the history of Alaska forever. Of course, the 
Ninth Circuit got it wrong. That case went up to the Supreme Court. 
Nine-zip, the Supreme Court smacked down the Ninth Circuit. They said: 
ANCSA doesn't do that. That is not what Congress intended.
  Do you think it would be good for these judges this week, if I could 
sit down with them, to understand that? It would be really good, really 
important. It would help them for their job.
  Just this year, the DC Circuit on another ANCSA-related case, the 
Chehalis case, got ANCSA wrong again. And guess what. It went up to the 
U.S. Supreme Court again. They just ruled on it 4 months ago. It was a 
huge victory for my State, again.
  We wrote an amicus brief--Senator Murkowski, Congressman Young, and 
I. But it was enormously important. This wrong case of the DC Circuit 
would have changed the history of Alaska forever. The Supreme Court, 6 
to 3, said: No, you are misinterpreting Alaska.
  Do you think these judges on the Ninth Circuit who we are debating to 
confirm this week would learn a little bit about that if I could meet 
with them? They would.
  Finally, the other thing I always do with circuit judges is I talk 
about the Second Amendment. The Second Amendment is really, really 
important to the people I represent. We use firearms for food, for 
self-defense in the wild. Well over 60 percent of all the homes in my 
State have firearms for these reasons.
  If you are an LA lawyer, you don't know this stuff. But, all of a 
sudden, you are going to be ruling on cases that deal with Alaska or 
Idaho or Montana. And here is the thing: They might not know these 
issues, these judges. I have looked at their background. I wanted to 
interview them. Remarkably, I can't get an interview with them.
  And here is the thing: As soon as they get confirmed, they are going 
to get these cases before them, in my State and other States, to rule 
on these kinds of issues.
  Do you think a meeting would help them?
  ``Boy, I should really think about that. I remember Senator Sullivan 
talked about ANILCA and the Sturgeon case. I am really glad I read the 
Sturgeon case.''
  This is why these advice-and-consent constitutional meetings are so 
important.
  And, as I mentioned, I have been doing this my entire time in the 
Senate. I have never not had a meeting with a Ninth Circuit judge. It 
doesn't matter where they are from--Montana, Arizona, Washington State. 
They are going to rule on issues that relate to my State and my 
constituents.
  And these judges don't mind it. They actually, I think, enjoy it. 
They learn. But this White House says: You can't meet with them.
  This is absurd.
  Here is the question: What are they hiding?
  What are they worried about?
  Are they hiding something? Are the judges hiding something?
  Again, this is a precedent that Democrats and Republicans should all 
be against, because we know what goes around comes around in this body. 
And this just doesn't make sense.
  All three of these Ninth Circuit judges will have life tenure and 
enormous, enormous power over everybody in the Ninth Circuit. That is 
20 percent of all Americans, and, certainly, enormous power over the 
people in Alaska, whom I am privileged to serve and represent.
  These judges are likely to know very little about these issues that I 
just talked about. Well, I believe I have a constitutional role to help 
them understand these issues better, and that is the way it has always 
been. Nobody has complained.
  Absurdly, the White House has said: Well, Senator Sullivan, you can 
meet with a Ninth Circuit judge if they are from Alaska.
  What? We have one judge, and she is not going to be retiring any time 
soon. That is it.
  Now, here is the thing. I just talked to the previous 
administration's White House counsel this morning, when I called the 
Biden administration's counsel this morning. I am still waiting for 
that phone call, by the way, because I said: Look, if the White House 
Counsel is saying no to a U.S. Senator to do his constitutional duty, I 
would like to hear it directly from her.
  So she hasn't called me back yet. But I talked to the previous 
administration's White House Counsel, and I asked: By the way, did you 
guys do this? I am just double-checking. I mean, I got to meet with all 
the Ninth Circuit judges President Trump put forward. But did you 
blackball Democrats? Did you do that?
  And they said: Absolutely not.
  I made a few phone calls to other people in the White House Counsel's 
office. They said: To the contrary, when any Senator wanted to meet 
with any circuit judge, we always made it happen.
  So this is a new precedent. And, again, it doesn't matter if you are 
a Republican or a Democrat. This is just a bad precedent.
  And the notion that ``Well, Senator, you get to meet with a Ninth 
Circuit judge from Alaska,'' when, by the way, California, I think, has 
close to 20 Ninth Circuit judges--but the notion that you can only meet 
with the one who is from your State is actually moronic. The people who 
need to be educated are the ones who aren't from your State, because 
they are all going to rule on issues from your State.
  So I am still waiting for the White House Counsel to call me back--or 
whoever is in charge in the White House.
  But I am going to conclude with this. I am going to go around them. I 
am going to go around them. Here is what I am going to do, and I hope 
someone is watching from the White House. But, more importantly, I hope 
someone is watching from the judge's chambers.
  So, Judge Koh, we are getting ready to vote on your nomination 
tonight.
  Judge Sung of Oregon, we are getting ready to vote on your nomination 
tomorrow.
  Judge Sanchez of California, the rumor is, the majority leader is 
going to file cloture on your nomination.
  Those are three Ninth Circuit judges.
  Judge Holly Thomas of California, you might get voted on this week 
too.
  Four.
  Here is my ask: Give me a call. Give me a call. Give my office a 
call. I will meet with you tonight. Let's do a phone call. Do you want 
to learn about ANILCA? Do you want to learn about the Sturgeon case? It 
will make you a better Ninth Circuit judge. Here is the number: (202) 
224-1026. Give my office a call. I am ready to meet anytime.
  Here is the thing for the judges: It is 1 hour of your time. You are 
going to have lifetime tenure. It is 1 hour to talk to a U.S. Senator 
who is doing his constitutional duty for the people he represents. It 
shouldn't be that hard. As a matter of fact, this is probably your 
first test of judicial independence. A U.S. Senator of the Senate--of 
the Senate; read the Constitution--wants to undertake his advice and 
consent, his constitutional role, with you, OK?
  You guys have read the Constitution, those four judges I just 
mentioned, but an unelected bureaucrat in the White

[[Page S9110]]

House--I guess the White House Counsel, but who the heck knows; it is 
hard to tell who is in charge over there--is blocking this.
  So, again, give my office a call at (202) 224-1026. I am ready to 
meet and talk to you anytime before the vote. Don't worry--I don't 
think President Biden is going to yank your nomination if you call me. 
Heck, he probably doesn't even know this is going on. But you know this 
is the right thing to do, Judges. You have read the Constitution. Heck, 
if our meeting goes well, I might even vote for you.
  But here is the thing: You will learn more about the issues that you 
are going to have to deal with very soon in your tenure that you 
probably don't know anything about--no offense to you. I have read your 
backgrounds. You don't know anything about Native Alaskan law. You 
don't know anything about ANILCA. You probably have very different 
views than I and my constituents do on the Second Amendment. But you 
need to hear these issues because you are going to be life-tenured on 
the Ninth Circuit, and you don't have time to talk to me, a U.S. 
Senator, who is a Senator representing a State from the Ninth Circuit? 
You know it is wrong.
  By the way, my colleagues in the Senate know it is wrong. So I hope 
my Democratic and Republican colleagues realize that this is not a good 
precedent. This is not a good precedent. It has never happened as long 
as I have been here.
  You know, from big things to small things, this administration has 
really focused in many ways on smashing political and institutional 
norms that have enjoyed strong bipartisan support. It is not good for 
this body, and it is not good for the government.
  The Wall Street Journal, today, had an article about Biden's Federal 
regulators staging a coup against the Director of the FDIC on bank 
mergers. One of these regulators doesn't even have the power over bank 
mergers, and now he is trying to be in charge.
  I serve on the U.S. Naval Academy's Board of Visitors. It is a huge 
honor. The President comes in, President Biden, and fires everybody on 
the service academies who was appointed by President Trump. Nobody has 
ever done that before--no President. Everybody on the Board of Visitors 
of the Naval Academy is furious--the Democrats, the Republicans. The 
No. 1 thing they are saying is, this President is the first one to 
politicize the service academies. Then, oh, by the way, he hasn't 
appointed anyone yet to replace the people he fired, so we didn't have 
a quorum for our meeting last week.
  He is just smashing institutional norms. Yet this institutional norm 
of advice and consent, when it comes to circuit court judges with life 
tenure, is something that we have all agreed upon. The previous 
administration certainly allowed for it. Yet, right now, I can't meet 
with Ninth Circuit judges who are going to have enormous power for 
their entire lives over my constituents.
  So, to my colleagues, we shouldn't allow this. You guys know it is 
wrong.
  To the judges--like I said, Judge Sanchez, Judge Koh, Judge Sung, 
Judge Thomas--give my office a call. Do the right thing. Your first 
test of judicial independence is before you of the Senate. The U.S. 
Senate--of the Senate, of which I am a part--wants to do our 
constitutional role. Give us a call so we can do it. Ignore the very 
bad advice you are getting from the White House Counsel or whoever is 
in charge over there.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.