[Congressional Record Volume 169, Number 20 (Tuesday, January 31, 2023)]
[Senate]
[Pages S153-S154]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. McCONNELL. Mr. President, the Constitution charges the Senate 
with giving advice and, if we choose, providing our consent to the 
President's judicial appointments.
  The President nominates somebody whom he thinks ought to serve on the 
Federal bench, and then the nominee comes here to the Senate for a job 
interview. Sometimes these job interviews make news because they go 
spectacularly well.
  When the Judiciary Committee subjected now-Justice Amy Coney Barrett 
to a battery of questions a little over 2 years ago, she literally 
dazzled the country with her force of intellect. At one point, hours 
into a hearing, after being asked multipart questions about the finer 
points of constitutional law, now-Justice Barrett was asked to hold up 
the notepad she had been provided to keep everything straight, and it 
was completely blank. She hadn't even touched it.
  Justice Barrett is an intellectual outlier by any standard, but she 
is an appropriate stand-in for the judicial nominees whom Republican 
Senators confirmed from 2017 through 2020. As one left-leaning analysis 
admitted in 2020, ``based solely on objective legal credentials''--
``solely on objective legal credentials''--the last administration's 
average pick for the Federal bench had ``a far more impressive resume 
than any past president's nominees.'' They had more circuit court 
clerkships, more Supreme Court clerkships--objectively, more experience 
in the Federal judiciary.
  Under President Biden, though, with his nominees, well, you might say 
things have gone somewhat differently.
  Last week, our colleague on the Judiciary Committee from Louisiana, 
Senator Kennedy, was quizzing a panel of President Biden's nominees, 
and he decided to try some very simple questions that should have been 
beyond basic for anybody nominated to serve as a U.S. district judge. 
He asked one nominee, currently a superior court judge in Spokane 
County, WA, to simply explain what article V of the Constitution says. 
That would be the article that explains how the Constitution gets 
amended. Here was the nominee's response:

       Article V is not coming to mind at the moment.

  Senator Kennedy came back with another, even more basic question. He 
asked:

       How about article II?

  As high schoolers across America learn each year, article II sets up 
the Presidency and the executive branch. It establishes the President's 
powers, including the power to nominate the person for the vacancy in 
question. But this sitting judge drew another blank.

[[Page S154]]

Article II wasn't coming to mind either--goodness gracious.
  Then she flunked yet another question about legal philosophy, and, 
then again, she flunked still another question about the most 
controversial Supreme Court case this term.
  Apparently, when this particular nominee had been asked to list the 
top 10 most impactful cases she had litigated in court, she could only 
come up with 6. At no stage of her professional career has the judge 
focused on Federal law. At no point had she ever even appeared in 
Federal court.
  So get this. In one of these six most significant cases she took, she 
lost to a defendant who forewent legal counsel and took the risky step 
of representing herself. This wasn't some rooky mistake either. The 
nominee was over a decade out of law school when she lost to an 
unrepresented party in one of her biggest cases.
  Is this the caliber of legal expert with which President Biden is 
filling the Federal bench--for lifetime appointments? Is the bar for 
merit and excellence really set this low?
  For years, now, Washington Democrats' rhetoric about judicial 
nominations has often treated actual qualifications as an afterthought. 
Democrats were not particularly impressed or moved by top-shelf 
professional excellence or the academic brilliance that the last 
Republican administration's nominees possessed, literally, in spades. 
And, apparently, they don't count those qualities as particularly high 
priorities now that they are the ones doing the nominating.
  The American people deserve an impartial judiciary that is full of 
the finest legal minds our country has to offer. The American people 
deserve the best and the brightest.
  Alas, but sadly, the Biden administration's questionable 
constitutional judgment is not limited to some of their judicial 
nominations. In one important constitutional case after another, the 
Biden administration and his lawyers have come down on the wrong side 
of the American people's rights and liberties and have gotten slapped 
down in court as a result.
  This last year, for example, in the Bruen case, the Biden 
administration threw its weight behind unconstitutional New York State 
restrictions on the Second Amendment that plainly violated citizens' 
rights to keep and bear arms. President Biden sent one of his top 
lawyers to help with the oral arguments, but the Democrats got the 
Constitution backward and lost the case.
  In West Virginia v. EPA, President Biden went all in trying to defend 
massive unconstitutional overreach by his own Environmental Protection 
Agency. His Solicitor General argued the case herself, but the 
administration lost badly. The plain meaning of our laws and our 
Constitution actually won out.
  In Carson v. Makin, President Biden fought to maintain 
unconstitutional anti-religious discrimination in school voucher 
programs. Again, he lost, and the American people and their 
Constitution won.
  Washington Democrats had their blatantly unconstitutional vaccine 
mandate for the private sector tossed out by the Supreme Court. They 
had their obviously illegal top-down mask mandate for transportation 
tossed out by a district judge. Oh, and, by the way, when the judge was 
nominated, Democrats howled that she was unqualified. But with a 
Supreme Court clerkship under her belt, she had incomparably more 
experience in Federal court than the nominee who failed Senator 
Kennedy's bar exam.
  Over and over, on issue after issue, this Democratic administration 
sides against the American people, against the Constitution, and 
against the rule of law.
  The American people deserve an administration that respects their 
rights and liberties, that understands our Constitution, and that 
chooses both policies and nominees accordingly.
  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. THUNE. 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.

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