[Congressional Record Volume 168, Number 52 (Wednesday, March 23, 2022)]
[Senate]
[Pages S1717-S1720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

                                 ______
                                 

   AMERICA CREATING OPPORTUNITIES FOR MANUFACTURING, PRE-EMINENCE IN 
   TECHNOLOGY, AND ECONOMIC STRENGTH ACT OF 2022--MOTION TO PROCEED--
                                Resumed

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to H.R. 4521, 
which the clerk will report.
  The senior assistant legislative clerk read as follows:

       Motion to proceed to H.R. 4521, a bill to provide for a 
     coordinated Federal research initiative to ensure continued 
     United States leadership in engineering biology.


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Republican leader is 
recognized.


                  Nomination of Ketanji Brown Jackson

  Mr. McCONNELL. Mr. President, on Monday, I explained that the 
thinness of Judge Jackson's appellate record makes this week's 
Judiciary Committee hearings all the more important. Well, we are 2 
days in. Judge Jackson is receiving a calm, respectful process, unlike 
the treatment that Senate Democrats typically inflict on Republican 
Presidents' nominees.
  But, unfortunately, thus far, many of Judge Jackson's responses have 
been evasive and unclear. She has declined to address critically 
important questions and ameliorate real concerns.
  First and foremost is the simple question of Court packing. The far-
left fringe groups that promoted Judge Jackson to this vacancy want 
Democrats to destroy the Court's legitimacy through partisan Court 
packing or unconstitutional term limits. She was literally the Court 
packers' pick for the seat, and she has repeatedly refused to reject 
their position.
  Both of the liberal legal giants, Justice Ginsburg and Justice 
Breyer, had no problem--no problem--defending the Court and denouncing 
Court packing. Both Ginsburg and Breyer denounced Court packing. As 
sitting Justices, they commented freely on the subject. The Justices 
knew that expressing a

[[Page S1718]]

clear view and defending their institution was not--I repeat, not--
judicially inappropriate in any way.
  But Judge Jackson has refused to follow in the footsteps of Ginsburg 
and Breyer. She refuses to rule out what the radical activists want. 
She told Senator Kennedy that she does have an opinion on Court 
packing, but it is ``not a strongly held opinion,'' and, in any event, 
she wouldn't tell Senators what it was.
  But the nominee made sure to quietly signal openness--openness--for 
the radicals' position. She told Senators she could see both sides of 
the Court-packing debate. Where Justices Ginsburg and Breyer slammed 
the door, Judge Jackson leaves it open. She even told the Committee:

       I would be thrilled to be one of however many Congress 
     thought appropriate to put on the Court.

  `` . . . thrilled to be one of however many Congress thought 
appropriate to put on the Court.'' ``[H]owever many''? I am not sure 
Judge Jackson's secret opinion on Court packing is as secret as she 
thinks it is.
  Judge Jackson also displayed a remarkable lack of candor during basic 
questions about judicial philosophy. When asked about judicial 
philosophy, the nominee tried to punt by simply restating the most 
basic elements of a judge's job description. She said she looks at the 
facts and treats litigants fairly. That is not explaining a judicial 
philosophy. That is just rewording the judicial oath. It is, basically, 
a nonanswer.
  These are pivotal questions. They require clear responses, and 
previous nominees had much less trouble providing them. A year and a 
half ago, now-Justice Barrett gave the Committee an intellectual master 
class in her textualist and original judicial philosophy. She described 
her interpretive approach in great detail. She helpfully compared and 
contrasted her philosophy with past and present Justices to provide 
Senators with points of comparison. But Judge Jackson either cannot or 
will not do any of that.
  Senator Sasse said that in his meeting with the nominee more than 2 
weeks ago, he asked the judge to compare and contrast her own thinking 
with Justices Breyer, Sotomayor, and Kagan to give Senators a point of 
reference. At that time, the judge apparently told the Senator that she 
needed to think about it but would get back to him. He followed up 
yesterday, and Judge Jackson said actually she had been too busy to 
give it any thought.
  She could not or would not even supply a clear summary of just the 
philosophy of Justice Breyer. Justice Breyer is Judge Jackson's former 
boss for whom she clerked. He has written entire books detailing his 
judicial approach, but Judge Jackson either could not or would not 
describe it.
  In one jaw-dropping moment, Judge Jackson tried to dodge questions 
about constitutional interpretation by claiming that she does not have 
enough experience--does not have enough experience.
  Here is what she said:

       I would say, just as an aside . . . that while I have been 
     on the bench for nine-plus years, the issue of constitutional 
     interpretation in that sense doesn't come up very often. It 
     comes up to the Supreme Court for sure, but it doesn't come 
     up very often in the lower courts.

  In other words, at least in that moment, a nominee for the U.S. 
Supreme Court tried to tell the Committee that her professional 
experience had not prepared her--not prepared her--for an in-depth 
discussion of constitutional interpretation.

  The White House and Senate Democrats keep saying Judge Jackson's 
district court experience is perfect preparation for the Supreme Court, 
but it sounds like the nominee herself may actually disagree with that.
  Let's be very clear. If Judge Jackson truly feels she lacks 
sufficient experience with constitutional interpretation, then the 
Senate certainly should not confirm her. But if she does not actually 
feel that way, then she owes the Senate much more candor about her 
approach.
  For decades, liberal activists have preferred judges who do not limit 
themselves to applying the text of our laws and our Constitution, but 
rather make new policy from the bench.
  Sure enough, Judge Jackson spent all day yesterday trying to explain 
what amounts to a passionate policy disagreement with existing 
sentencing guidelines for certain horrible crimes. In a number of 
instances, she has given out sentences far, far below the sentencing 
guidelines and far below the government prosecutors' request. In cases 
ranging from child exploitation to fentanyl trafficking, she has used 
every possible ounce of discretion to essentially remake sentencing 
policy from the bench.
  Under questions from Senator Cotton, Judge Jackson said it would be 
inappropriate for her to comment on the proper durations of criminal 
sentences as this was a policy matter for legislators and not judges. 
But at other times, she justified her own past leniency by explaining 
that judges have huge amounts of discretion and latitude on sentencing 
criminals. Either subjective questions about sentencing are fair game 
for the judicial branch or they are not. Certainly, the nominee cannot 
have it both ways.
  Today, Judge Jackson will have another chance--another chance to 
defend the institution of the Court, like Justices Ginsburg and Breyer 
had no trouble doing; another chance to give Senators a clear 
explanation of her judicial philosophy, like Justices Gorsuch and 
Barrett had no trouble doing; another chance to explain whether and how 
her clear policy views on the merits of sentencing criminals will 
continue to impact her judicial judgment.
  The Senate and the country will be watching.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                   Recognition of the Majority Leader

  The majority leader is recognized.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the vote 
occur immediately following my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                                 Russia

  Mr. SCHUMER. Mr. President, on PNTR, as President Biden begins the 
most important foreign trip of his Presidency, the best thing the 
Senate can do this week is pass PNTR legislation to land another 
devastating blow on Putin's economy.
  Over the past few weeks, Republicans have complained that President 
Biden hasn't acted quickly enough against Putin. Yet for the past few 
days, they have stymied swift action on PNTR, despite the fact that the 
House approved it 424 to 8, with Leader McCarthy supporting it.
  In particular, the senior Senator from Idaho has sought to amend the 
bill to include an oil ban. We are willing to work with Senator Crapo 
to address his concerns, but there are a few reasons we should move 
quickly with PNTR.
  First, President Biden has already implemented a ban on Russian oil 
and gas. So passing this legislation is not a priority the way PNTR is. 
Second, there remain serious questions about whether the proposal from 
Republicans would delay the ban on buying Russian oil for a period of 
time. This is a consequence no one wants. Senator Manchin brought this 
up when he saw the language, and it is something that we have to make 
certain that this proposal isn't weaker than what the President has put 
into effect. Third, showing unity, particularly at this time when the 
President is meeting with our European allies, is especially important.
  Finally, the House is not in session. Any changes we make to the PNTR 
legislation delays enactment by at least a week.
  There is no reason--absolutely no reason--to change what the House 
has already approved on PNTR and delay action by a week or more. Again, 
Democrats are willing to work with Senator Crapo on this issue if he 
can agree to let this process move forward.
  So let me say it again. PNTR has already been approved overwhelmingly 
by the House, and it is the most logical next step in the fight against 
Putin's barbaric war, and the Senate should thus act. Republicans who 
complain of

[[Page S1719]]

delay are the ones who are delaying. The Senate has been most effective 
when working quickly and in unison to support the President and our 
European allies against Vladimir Putin. Passing PNTR with overwhelming 
bipartisan support is another chance to do just that.


                                Insulin

  Mr. President, on insulin, yesterday I held a handful of 
conversations with colleagues from both sides of the aisle on one of 
the most confounding problems facing millions of Americans--the 
skyrocketing cost of insulin. Making insulin more affordable is a top 
priority to Democrats, so right now, there are bipartisan talks 
underway by Senators Shaheen and Collins to cap insulin at $35 a month 
and make changes to drive the cost down in a comprehensive way.
  I intend to put a proposal on the floor as soon as we can after 
Easter. There should be nothing remotely partisan about making sure 
Americans don't go broke to manage their diabetes. So Democrats are 
eager to work wherever we can on legislation that will cap insulin at 
$35 a month and give millions a long-overdue break at the pharmacy.
  It is reported that at least one in four insulin users has to ration 
their use of insulin because they can't afford it. The exponential 
spike in the cost of insulin is truly one of the most frustrating 
trends of the past two decades. This is a drug with no patent on which 
millions of Americans rely to manage their diabetes. Today, a 40-day 
supply of insulin can exceed $600 a month--a prohibitive and downright 
immoral price that makes no sense at all.
  Over the past few weeks, a number of my colleagues, including Senator 
Warnock, Senator Shaheen, Senator Murray, and Senator Collins, have 
worked assiduously on proposals for bringing down the price of insulin, 
bringing it back down, as part of our larger effort to lower costs for 
American families. The latest bipartisan effort will combine elements 
from Senator Warnock's and other proposals, and it has my enthusiastic 
backing because lowering the cost of insulin is so important.
  I commend my colleagues on both sides of the aisle for working on 
this issue in good faith. Bipartisanship has been the kindling for a 
number of recent Senate accomplishments, and insulin should be another 
issue where we deliver.
  In addition, incidentally, while we are talking about cost-cutting, 
we are having hearings this week on a number of issues relating to high 
cost. Senator Casey, in the Aging Committee, is leading a hearing on 
home care and the high cost there today. Senator Carper is leading a 
hearing on clean energy and national security and the high cost of 
energy. In Agriculture, Senator Stabenow had a hearing yesterday on the 
cost of rural childcare, rural elder care, and healthcare.


                               H.R. 4521

  Mr. President, on the competition bill, today the Senate will take 
another step to advance major, bipartisan legislation to increase 
American jobs and lower costs for American families. For over a year, 
both parties have worked on competitiveness legislation built around 
two goals: Create more American jobs and lower costs for American 
families. In the case of Senator Young and myself, the effort has 
stretched back many years. The House and Senate passed legislation to 
achieve these goals separately, so the best way now to send a final 
product to the President's desk is by entering a conference committee 
with the House. We are now working towards that end and jumping through 
a number of procedural hoops to get that done.
  The majority of us want to see this legislation reach the President's 
desk. We want to see costs go down for families, see more manufacturing 
jobs here at home, see greater relief for supply chains, and we want to 
revive America's unparalleled innovation machine that fueled our 
economy for so much of the 20th century.
  The past month reminds us that our country is vulnerable when we 
import too many goods from a single country--particularly, in this 
case, semiconductors. The war in Ukraine is a perfect test case. Some 
of the most important resources for making chips, like neon gas, come 
precisely from Ukraine.
  We need to make more of these products here in America instead of 
overseas so we can lower costs, shore up our supply chains, and 
preserve our national security. For that reason alone, the Senate is 
moving ahead on this important competitive legislation.


                  Nomination of Ketanji Brown Jackson

  Mr. President, finally, on SCOTUS, the Supreme Court, yesterday Judge 
Ketanji Brown Jackson offered a 13-hour master class of why she 
deserves to be the 116th Justice of the U.S. Supreme Court. She was 
simply impressive. It was clear to anyone watching that Judge Jackson's 
brilliant legal mind was running in high gear. She remained measured 
and poised and thoughtful as she worked through yesterday's grueling 
series of questions.
  Over the course of the day, Judge Jackson affirmed that she will 
approach her role on the Supreme Court with prudence, a respect for 
precedent, and by serving in the same mainstream fashion as the great 
Justice whose seat she would fill.
  At times, the judge also displayed one of her greatest strengths: her 
grace and poise even during moments when a handful of Republicans asked 
intentionally misleading questions--questions which even their fellow 
Republicans found uncomfortable. Republicans tried to land a blow, but 
Judge Jackson kept her cool. By the end of the day, it was obvious why 
the judge's nomination has won the support of everyone from law 
enforcement to conservative judges, to scores of peers throughout her 
career. I expect she will reach final confirmation by the end of this 
work period.
  Now, even as the judge continues her testimony today, the Senate will 
also be busy confirming scores of other judges to important positions 
across the Federal bench. I am proud to say that last night, the Senate 
confirmed its 50th judge under President Biden, and by the end of 
tonight, we could reach as many as 58 total judges. But doing that is 
going to take a lot of focus and patience, just as we required last 
week. I will once again ask my colleagues that in order to move through 
tonight's votes quickly, we should stay in our seats or as close to the 
Senate floor as possible.
  I yield the floor.


                             Vote on Motion

  The ACTING PRESIDNET pro tempore. Under the previous order, the 
question is agreeing to the motion to proceed.
  Mr. MENENDEZ. I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. The yeas and nays have been 
requested.
  Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. 
Casey), the Senator from West Virginia (Mr. Manchin), and the Senator 
from New Hampshire (Mrs. Shaheen) are necessarily absent.
  The result was announced--yeas 66, nays 31, as follows:

                      [Rollcall Vote No. 100 Leg.]

                                YEAS--66

     Baldwin
     Bennet
     Blumenthal
     Blunt
     Booker
     Brown
     Cantwell
     Capito
     Cardin
     Carper
     Cassidy
     Collins
     Coons
     Cornyn
     Cortez Masto
     Crapo
     Daines
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Graham
     Grassley
     Hassan
     Heinrich
     Hickenlooper
     Hirono
     Kaine
     Kelly
     King
     Klobuchar
     Leahy
     Lujan
     Markey
     McConnell
     Menendez
     Merkley
     Moran
     Murkowski
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Portman
     Reed
     Risch
     Romney
     Rosen
     Rounds
     Sasse
     Schatz
     Schumer
     Sinema
     Smith
     Stabenow
     Tester
     Tillis
     Van Hollen
     Warner
     Warnock
     Warren
     Whitehouse
     Wicker
     Wyden
     Young

                                NAYS--31

     Barrasso
     Blackburn
     Boozman
     Braun
     Burr
     Cotton
     Cramer
     Cruz
     Ernst
     Fischer
     Hagerty
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Lummis
     Marshall
     Paul
     Rubio
     Sanders
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Toomey
     Tuberville

                             NOT VOTING--3

     Casey
     Manchin
     Shaheen

[[Page S1720]]


  The PRESIDING OFFICER (Ms. Cortez Masto). On the motion to proceed to 
Calendar No. 282, H.R. 4521, the America COMPETES Act, the yeas are 66, 
the nays are 31.
  The motion is agreed to.

                          ____________________