[Congressional Record (Bound Edition), Volume 163 (2017), Part 8]
[Senate]
[Pages 11113-11125]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the Bush 
nomination, which the clerk will report.
  The bill clerk read the nomination of John Kenneth Bush, of Kentucky, 
to be United States Circuit Judge for the Sixth Circuit.
  The PRESIDING OFFICER. Under the previous order, the time until 10:30 
a.m. will be equally divided between the two leaders or their 
designees.
  If no one yields time, the time will be charged equally.


                   Recognition of the Majority Leader

  The majority leader is recognized.


                               Healthcare

  Mr. McCONNELL. Mr. President, ObamaCare was imposed on our country 7 
long years ago. It has been hurting the people we represent ever since. 
Families were supposed to spend less on healthcare costs. They actually 
paid more. Families were supposed to have more healthcare choices. They 
ended up with fewer, sometimes none at all.
  Worse still, for many years, we had an administration that often 
waived away the concerns of middle-class families who were hurting. 
Today, we thankfully have an administration that has chosen instead to 
listen and agrees with us that Americans deserve a lot better.
  I appreciate the efforts of the administration at every step of the 
process to move beyond the failures of ObamaCare. The President, the 
Vice President, Secretary Price, Administrator Verma, so many others--
we thank them for all the work they have done so far. We look forward 
to continuing these collaborative efforts when we travel to the White 
House later today because we have a very important task before us.
  As I announced last evening, after consulting with both the White 
House and our Members, we have decided to hold a vote to open debate on 
ObamaCare repeal early next week. The ObamaCare repeal legislation will 
ensure a stable 2-year transition period, which will allow us to wipe 
the slate clean and start over with real patient-centered healthcare 
reform. This is the same legislation that a majority of the Senate 
voted to send to the President in 2015. Now we thankfully have a 
President in office who will sign it, so we should send it to him.
  Mr. President, today the Senate will vote to move forward on the 
nomination of John Bush, of Kentucky, to serve as a judge on the Sixth 
Circuit Court of Appeals.
  As I said when I introduced Mr. Bush to the Judiciary Committee, I am 
pleased to join the bipartisan chorus of voices supporting his 
nomination. More than 100 lawyers and law professors from around the 
country have written in support of his nomination. Nearly one-third of 
those supporters are Democrats. They laud Mr. Bush's ``excellence, 
professionalism, and leadership in the legal profession.'' They also 
note his ``capacity to approach issues with an open mind and to 
respectfully consider the viewpoints of others.''
  In addition, some of his supporters from across the ideological 
spectrum and from around the country who have known Mr. Bush for 
decades have written separately to underscore their support for his 
nomination. They are confident he understands the role of a judge, 
which is to fairly consider the arguments of both sides in a case and 
then to decide that case based on the law and nothing else. Indeed, it 
is precisely because of his firm belief in the rule of law that they 
strongly support his nomination, despite the fact that he and they may 
hold different political and policy views.
  As an illustration, I think we can all agree it is not common for 
current or former leaders of Planned Parenthood to praise judicial 
nominees of Republican Presidents, just as it is not common for me to 
quote leaders of that organization.
  More than one has praised the President's nomination of John Bush 
because of his fairness, thoughtfulness, and respect for the views of 
others, regardless of his personal opinions. For instance, Christie 
Moore is on the board of directors of Planned Parenthood of Indiana and 
Kentucky. She has practiced law with Mr. Bush for nearly two decades. 
She is ``confident'' that ``he will follow the rule of law regardless 
of his personal or political opinions. In my experience, John naturally 
approaches issues with an open mind and has always been respectful of 
differing viewpoints. In fact, I am a living example of John's ability 
to seek out and respect differing viewpoints and opinions. John and I 
come from opposite ends of the political spectrum--I am a life-long 
registered Democrat and proudly approach life and politics as a 
Democrat. Yet John and I have practiced closely together and enjoy a 
strong and respectful relationship.''
  She concludes: ``I can personally attest John is a consummate 
professional, and I believe he will be a tremendous asset to the 
federal court of appeals.''
  Her law firm colleague, Janet Jakubowicz, similarly explains why Mr. 
Bush will do an outstanding job on the Sixth Circuit. She states that 
he ``has shown himself to have both the legal ability and temperament 
to be an outstanding judge.''
  She writes it is precisely because she is a ``long time registered 
Democrat'' that she can say ``with extreme confidence'' that John Bush 
``approaches issues with an open mind and has always been respectful of 
differing viewpoints'' and that he will make decisions on the bench 
``in the same manner, and follow the rule of law regardless of his 
personal or political opinions.''

[[Page 11114]]

  Sheryl Snyder, also from my hometown, notes that he and Mr. Bush 
``come from different political parties and have different perspectives 
on many political issues.'' Mr. Snyder says that he is ``a Member of 
the American Civil Liberties Union, and not the Federalist Society.'' 
Nevertheless, he has ``every confidence that as a Court of Appeals 
Judge, John will scrupulously follow the law and apply precedent.'' He 
notes that Mr. Bush is ``well known . . . as an experienced, capable, 
ethical litigator'' and that ``his knowledge of the law is 
unquestioned.''
  Praise for Mr. Bush is not confined to those from the Commonwealth of 
Kentucky, however. Ted Boutrous, Jr. practices law in Los Angeles. 
Among other matters, Mr. Boutrous represented the plaintiffs in their 
challenge to California's Proposition 8. He has known John Bush for a 
quarter century. He writes that ``while we come from different 
political parties . . . I am certain John will make an absolutely 
superb Circuit Judge. He is an extraordinary lawyer and an 
exceptionally fair, decent, and honest person. I have every confidence 
that as a judge, John will scrupulously follow the law and Constitution 
and precedent.''
  Mr. Bush has received numerous professional awards. For instance, the 
Best Lawyers in America named him the ``Louisville Litigation-Antitrust 
Lawyer of the Year in 2017,'' this year. Last year, the same 
organization recognized him as the ``Louisville Appellate Practice 
Lawyer of the Year.'' He has been included on the Kentucky Super 
Lawyers list every year for the last decade.
  Beginning in 2012, the Sixth Circuit appointed him to serve on its 
advisory committee on rules, in recognition of his in-depth knowledge 
of the court's practice and procedure.
  In sum, as evidenced by the impressive testimonials of those who 
actually know him, John Bush is a man of integrity and considerable 
ability. He will do an outstanding job on the Sixth Circuit.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I rise in open opposition to the 
nomination of John Bush, nominated to serve a lifetime appointment on 
the Sixth Circuit Court of Appeals.
  The Federal courts of appeal have a significant impact on the lives 
of many Americans. Because the Supreme Court only reviews a limited 
number of cases each year, decisions by the circuit courts represent 
the final word on thousands of legal matters that involve a host of 
important issues.
  The Senate has to take very seriously its obligation to consider 
candidates for these important courts. We have to make sure they have 
the qualifications, the temperament, and the judgment to serve for the 
rest of their lives. Based on Mr. Bush's record and his testimony 
before the Judiciary Committee, I believe he falls short of this 
standard.
  Over the course of his legal career, Mr. Bush has made dozens of 
provocative comments, casting serious doubt on his temperament, his 
judgment, his impartiality, and his ability to serve as a fair and 
impartial judge.
  Consider the following things that this nominee has said or done:
  In 2008, Mr. Bush compared abortion to slavery, writing in an 
anonymous blog, I might add, that ``the two greatest tragedies in our 
country--slavery and abortion--relied on similar reasoning and activist 
justices at the U.S. Supreme Court, first in the Dred Scott decision 
and later in Roe.''
  Senator Feinstein and I decided to ask Mr. Bush to explain this 
statement at his hearing. He did not disavow the comparison he made in 
this anonymous blog. Here is what he said instead. He claimed that he 
had referred to Roe v. Wade as a tragedy ``in the sense that it divided 
our country.''
  I asked Mr. Bush to explain his logic, asking whether he would 
characterize Brown v. Board of Education as a case that divided our 
country. He answered: ``I wasn't alive at the time of Brown, but I 
don't think it did.''
  That is an incredible statement made by a man who seeks to serve on a 
Federal circuit court for the rest of his life. His logic and his 
historical analogy have fallen apart. There is no dispute that Brown v. 
Board of Education, which ended up in the official desegregation of 
public schools across America, was a landmark Supreme Court decision 
that deemed racial segregation unconstitutional and, as a result, led 
to controversy and division across the United States.
  I can't believe a man from Kentucky, a border State--a neighboring 
state of my State of Illinois--could not measure the impact of Brown v. 
Board of Education and whether it divided our country. That, to me, is 
incredible. The reason, of course, he didn't is because he didn't want 
to concede, quite obviously, that he was just opposed to a woman's 
right to choose, and this was a rationalization for this position.
  There were many other instances in which Mr. Bush expressed 
provocative and troubling views. He wrote that public financing of 
election campaigns is ``constitutionally dubious'' and ``runs afoul of 
constitutional guarantees by forcing taxpayers to subsidize candidates' 
political speech and contravention of those taxpayers' First Amendment 
rights.''
  This is a view which is hard to understand because it contradicts 
decades of Supreme Court precedent. Mr. Bush, seeking this opportunity 
to serve for the rest of his life on a Federal court, has now 
questioned a Supreme Court precedent which has been on the books for 
years.
  He gave a speech where, sadly, he made an anti-gay slur about the 
town of Louisville, KY. He wrote blog posts supporting the nomination 
of a voter suppression advocate Hans von Spakovsky to the Federal 
Election Commission. In response to a written question I sent to him, 
he refused to disavow President Trump's claim that 3 to 5 million 
people voted illegally in 2016. He said it was ``the subject of 
political debate.'' That assertion by the President has been rejected 
and discredited by every objective person who has been challenged but 
not by Mr. Bush, who seeks this lifetime appointment to the court.
  Mr. Bush wrote blog posts that repeatedly placed the terms global 
warming and climate change in quotes, insinuating they did not exist.
  He described then-House Speaker Pelosi as ``Mama Pelosi'' and wrote 
that someone should ``gag the House speaker.''
  He posted articles from right wing websites, speculating that former 
President Barack Obama was born in Kenya.
  He wrote in a blog post during the 2016 Republican National 
Convention, ``Time to roll with Trump.''
  The list of comments goes on and on. On a range of policies and legal 
issues, Mr. Bush has already made crystal clear where he stands.
  At his hearing, Mr. Bush asked the Judiciary Committee to trust that 
he could completely set aside everything I have read into the Record 
this morning; that he can walk away from his personal views if he is 
confirmed to serve on the circuit court. Unfortunately, he has given us 
little reason to trust that assurance. He has no judicial experience 
demonstrating that he could be impartial. He spent his entire career in 
private practice.
  At his hearing before the Judiciary Committee, Mr. Bush was asked by 
Senator Tillis, a Republican Senator: ``Do you think that impartiality 
is an aspiration or an absolute expectation?''
  Mr. Bush responded: ``It is an aspiration. I will do my best to be 
impartial.''
  In other words, Mr. Bush claims that he will try to be impartial but 
that the Senate shouldn't expect that he will be completely successful.
  Here is what Senator Tillis, my Republican colleague, then said in 
reply: ``I actually have a concern with someone who thinks impartiality 
is an aspiration. I think it is an expectation.''
  I agree with Senator Tillis.
  I believe Mr. Bush's failure to commit to impartiality disqualifies 
him from this lifetime position.
  Mr. Bush's views are far outside the judicial mainstream. He provided 
no evidence that he could set aside his views if confirmed.
  I understand that Mr. Bush does check many of the boxes we have seen

[[Page 11115]]

for recent nominees from this administration. Most important and 
absolutely essential to his nomination is the fact that he is a 
longtime member of the Federalist Society.
  The Federalist Society describes itself as ``a group of conservatives 
and libertarians dedicated to reforming the current legal order.'' The 
Federalist Society is funded by big money, rightwing interests like the 
Koch brothers, the Chamber of Commerce, and the Ed Uihlein Family 
Foundation. This is the group President Trump personally thanked for 
selecting his list of Supreme Court nominee finalists. So far this 
year, every Trump judicial nominee who has had a hearing before our 
Senate Judiciary Committee has been a Federalist Society member. 
Coincidence? I don't think so.
  I urge my Republican colleagues not to let the Federalist Society 
serve as the selection committee--the secret handshake--to become a 
Federal judge for life in the United States of America. We want a 
Federal bench that welcomes independent and impartial thinkers. Mr. 
Bush's Federalist Society membership shouldn't be his ticket to the 
Federal bench.
  In conclusion, this vote, when it comes to his nomination, is really 
not a close call. It is clear that Mr. Bush has friends in high places, 
but he has demonstrated a temperament and a judgment which we should 
not put in a lifetime position on the Federal court of appeals. I urge 
my colleagues to oppose his nomination.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cotton). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Recognition of the Minority Leader

  The PRESIDING OFFICER. The minority leader is recognized.


                               Healthcare

  Mr. SCHUMER. Mr. President, according to the majority leader, there 
will not be a vote on the motion to proceed to the healthcare bill 
until next week. In the time between now and then, my Republican 
friends have a choice to make about how they want to move forward on 
what looks like will be a failed vote.
  Do they want to take the path of President Trump, who yesterday said 
that he wanted our healthcare system to fail, or do they want to work 
with Democrats on legislation to improve the law? It is that simple.
  We Democrats know the Affordable Care Act isn't perfect, and we 
propose specific legislation that could pass right now to stabilize 
marketplaces and lower premiums for Americans across the country. These 
proposals are specific, nonideological, and could pass quickly and make 
life better for millions of Americans. A decent number of Republican 
Governors and even Senators have said that these are the kinds of 
proposals we need.
  Here they are:
  First, we have proposed a bill by Senator Shaheen that would 
guarantee the premium reduction payments that insurers say is the No. 1 
thing we could do right now to stabilize the individual marketplace.
  Second, we have proposed a bill by Senators Carper and Kaine that 
would create a reinsurance program for the individual health insurance 
market, again, aimed at stabilizing the marketplaces.
  Third, we have proposed a bill by Senator McCaskill that would enable 
any American living in a bare county--that is, a bare county that lacks 
health insurers--to purchase the same insurance we get here in 
Congress.
  All three of these would stabilize the markets and help to prevent 
premiums from going up further and coverage from decreasing. They 
address the actual issues in our healthcare system. I have mentioned 
they are not ideological and exactly the kind of legislation we could 
work on together. If our intent is to make things better, this is 
something we can come together on--all three of these proposals. They 
address the actual issues that we have and should be something we can 
do together immediately.
  The Republican approach--decimating Medicaid to give a tax break to 
the wealthy--doesn't solve any of the problems Republicans claim to be 
so worried about: high premiums, high deductibles, bare counties. In 
fact, by most objective reports, it makes them worse. The CBO said that 
under each version of the Republican plan, premiums would go up on many 
Americans, deductibles and copays would go up, there would be even more 
bare counties than there are today, and tens of millions would lose 
insurance.
  Repealing the healthcare law without any replacement is even worse. 
It would cause our healthcare system to implode, creating chaos. 
Millions more would lose insurance, and for millions more than that 
coverage would be diminished, all of which is even worse than under the 
Republican bill.
  I hope my colleagues will join with us in working on these three 
nonideological, practical problem solvers that will reduce premiums and 
make healthcare better for many, many Americans. Again, many 
Republicans have spoken favorably of these ideas, and I hope we will go 
forward.
  The worry I have is that our Republican colleagues follow the 
policies of President Trump. President Trump's promise to let our 
healthcare system collapse is just mind-boggling. It is hard to believe 
he could say something like that.
  President Trump's promise to let our healthcare system collapse is 
so, so wrong on three counts: It is a failure morally, it is a failure 
politically, and it is a remarkable failure of Presidential leadership.
  First, the President's position is a moral failure. It is morally 
wrong to intentionally undermine the healthcare system in this country, 
using Americans as political pawns in a cynical game. It is morally 
wrong to play a political game with healthcare in this country. There 
is no religious teaching or moral precept that could advocate such a 
cynical ploy.
  The President didn't say that he wanted the system to change in a way 
to make it better. He said: I have lost, and I am going to make things 
worse for everyone to show you that I should have won. As I said, that 
is a moral failure that none of our religious leaders of any of the 
great religions would ever, ever accept, nor will the American people.
  Second, saying ``I am not going to own it'' will not work 
politically. The President is the President. He is in charge. Americans 
look to him for leadership. They know that Republicans control both 
branches of Congress and the White House. They know they are in charge.
  Earlier this year, the Kaiser Family Foundation found that two-thirds 
of Americans would blame President Trump and congressional Republicans 
for the future problems in our healthcare system. Just as they blamed 
President Obama when he was in charge, they are going to blame 
President Trump while he is in charge. He is tweeting away that someone 
else is to blame when he is in charge, which will not work politically, 
particularly when it comes to something as near and dear to Americans 
as healthcare--God's great gift to us, life itself.
  It just will not work to say that Democrats are to blame. Believe me, 
we are not going to stand idly by and shrug our shoulders when American 
people are suffering because the President is sabotaging our healthcare 
system for political purposes. We are going to point it out, and the 
spotlight will be on those whom the American people in November put in 
charge.
  Elections do have consequences, and one of the consequences, Mr. 
President, one of the consequences, Mr. Trump, is that you are in 
charge. You have to make things better, not simply point fingers and 
tweet.
  Finally, the President's position is an astonishing failure of 
Presidential leadership. His own party has failed to pass a bill--his 
own party, which controls both Houses of Congress, his own party, which 
has used special rules designed to exclude Democrats from the 
beginning. President Trump blames

[[Page 11116]]

Democrats and threatens to hold our Nation's healthcare system hostage 
out of pique--out of pique.
  The President was being petty; the President was being small; the 
President was not Presidential at all. The President would rather throw 
up his hands than roll up his sleeves and get to work. He would rather 
cast blame and point fingers than even try to work with Democrats to 
make the healthcare system better. That is not what Presidents do. It 
shows a tremendous lack of leadership. The American people want their 
President to lead. The American people, when there is a problem, want 
the President to fix it. The American people know that, when facing a 
defeatist President, you don't just sit in the corner and pout and get 
angry. You go on from there and try to make things better, as I hope my 
colleagues on the other side of the aisle will do. Some of them have 
indicated they will.
  Let's recall another President--President Truman. President Truman 
famously said: ``The buck stops here.'' He was admired for it. This 
President's words, shirking responsibility and casting blame, were 
exactly the opposite of President Truman's. ``The buck stops here'' 
made President Truman look tall. President Trump's blame game makes him 
look small and diminished, and people will begin to totally realize his 
lack of leadership, and respect for him and the office will diminish.
  The President should rise to the incredible responsibility of the 
office, not quit and take the ball home every time the game isn't going 
the way he likes. The President of the United States, for better or for 
worse, is responsible for the healthcare of the country, for the 
healthcare of Americans who voted for him and for Americans who voted 
against him. He took an oath to faithfully execute the laws of this 
country, not just the ones he likes.
  There is no ducking responsibility as President. The buck stops with 
you, President Trump.
  So if the procedural votes fail next week, I sincerely hope that my 
Republican friends here in Congress reject the premise of the President 
to let our healthcare system collapse and hurt millions. Instead, I 
hope they work with us in the areas I mentioned and many others to do 
what is right for the American people.
  Mr. President, a brief word on the circuit court nominee on whom we 
will be voting for cloture soon. The nominee, Judge Bush, in my view, 
is not fit for the austere office of circuit court judge. He has made 
some extremely troubling comments about the rights of women and the 
rights of the LGBTQ community. He has employed anti-gay slurs in his 
speeches and writings. He has disparaged a woman's right to choose, 
drawing an offensive and false moral equivalency between choice and 
slavery. How can my Republican friends vote to elevate to the Sixth 
Circuit a man who has said things like this?
  He clearly lacks the temperament required of a circuit court judge, 
and I urge all of my colleagues to vote no on cloture and no on the 
nomination.
  Thank you, Mr. President.
  I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of John Kenneth Bush, of Kentucky, to be United States 
     Circuit Judge for the Sixth Circuit.
         Dan Sullivan, John Barrasso, John Cornyn, Orrin G. Hatch, 
           Ron Johnson, Chuck Grassley, Tom Cotton, Richard Burr, 
           James Lankford, Lamar Alexander, John Kennedy, Cory 
           Gardner, James M. Inhofe, Michael B. Enzi, John Thune, 
           Todd Young, Mitch McConnell.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of John Kenneth Bush, of Kentucky, to be United States 
Circuit Judge for the Sixth Circuit, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the chamber 
desiring to vote?
  The yeas and nays resulted--yeas 51, nays 48, as follows:

                      [Rollcall Vote No. 163 Ex.]

                                YEAS--51

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McConnell
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--48

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--1

       
     McCain
       
  The PRESIDING OFFICER. On this vote, the yeas are 51, the nays are 
48.
  The motion is agreed to.
  The majority leader.


                           Order of Procedure

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
recess from 1:45 p.m. until 4 p.m.; further, that all time during 
morning business, recess, adjournment, and leader remarks count 
postcloture on the nomination.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Ohio.
  Mr. BROWN. Mr. President, today's vote to move forward the 
President's nominee to join the Sixth Circuit Court of Appeals is a new 
low. It is a new low that sets a dangerous standard for judges who have 
power to make critical decisions that impact the everyday lives of the 
people we serve.
  John Bush has a clear record--think about it. He is going to be a 
judge if this place moves forward tomorrow. John Bush has a clear 
record of promoting bigotry and discrimination that have no place in 
our courts. We can't let this nomination slide through this body.
  Mr. Bush advocated to the U.S. Supreme Court that women should be 
barred from attending our military institutions--in this case, Virginia 
Military Institute. Think about that. There are people in this body who 
just voted on the motion to proceed--a very small majority that passed 
this--they are voting for a judge who says to the Supreme Court that 
women should be barred from attending military institutions like VMI. 
He went so far as to call the legal standard allowing women to attend 
``destructive.'' And we are going to put him on the court? That wasn't 
1950. That wasn't 1960. That wasn't in the 1970s. That wasn't even in 
the 1980s. It was in the 1990s when he said that. Luckily, our Nation's 
Supreme Court disagreed with Bush's retrograde and sexist opinion by a 
vote of 7 to 1.
  But, alas, Bush wasn't deterred. To this day, he is still a member of 
an organization that doesn't allow women to join. He has been a member 
of groups that have a history of barring Jews and African Americans. 
Maybe we see some signs of that at the White House, but we shouldn't be 
affirming that on the Senate floor. One of these groups actually 
changed its street address after

[[Page 11117]]

the city of Louisville renamed the street where the front entrance sits 
for the boxing legend Muhammad Ali. Think about that.
  Senator McConnell himself resigned from that same organization 
because, according to the Lexington Herald-Leader, the majority leader 
said he ``thought it was no longer appropriate to belong to a club that 
discriminated, and my impression was that the club did.'' But we are 
bringing to the floor a vote for a judge who still belongs.
  Leader McConnell went on to reference a commonly accepted Senate 
standard that Federal judges should not belong to discriminatory 
organizations, saying: ``I thought if it was inappropriate for a 
federal judge to belong to an all-white club, it certainly was 
something a United States Senator shouldn't do.''
  So I guess the logic here is that Senators shouldn't belong to a 
Whites-only club, but Senators should vote for Federal judges who can 
belong to a Whites-only club.
  I agree with Senator McConnell that a Senator shouldn't belong, but 
no Federal judge should belong to a group with a history of 
discrimination, especially a recent history of discrimination.
  Bush regularly contributed to a conservative blog using a fake name. 
There he advocated extreme political views on issues, including 
healthcare, campaign finance, LGBT rights, climate change--all critical 
issues that come before this court, the Sixth Circuit serving Michigan, 
Ohio, Kentucky, and Tennessee. He even cited White supremacist sources. 
We are going to vote for this man? He even cited White supremacist 
sources that pushed the conspiracy theory that President Obama was not 
born in the United States.
  I know the President of the United States--the man who sits in the 
White House--also subscribed to those birther theories, and only late 
in his campaign did he say: Well, I do, in fact, believe that the 
President was born in the United States. He, at least--the President of 
the United States, the sitting President, then-Candidate Trump--at 
least finally retracted that. Mr. Bush seems to continue to say that 
President Obama wasn't born in the United States and cited those White 
supremacy theorists who pushed that conspiracy theory.
  He has expressed hostility toward women's rights to make their own 
personal, private healthcare decisions. In a 2005 public speech--again, 
not in 1965 or 1975 or 1985, but in a 2005 public speech, he cavalierly 
repeated a hateful homophobic slur. I would repeat it, but I don't 
think it is proper to use that language on the floor of the Senate. I 
also don't think it is proper to vote for a nominee to be a judge who 
feels cavalierly that he can use that term. He said Speaker of the 
House Nancy Pelosi should be gagged. He has attacked Senator Ted Cruz, 
our colleague in this body.
  Everyone is entitled to free speech, obviously, even if they choose 
to do it under a fake name. And Mr. Bush is entitled to his political 
opinions, no matter how offensive. I, of course, defend his right to 
say whatever he wants. I think others do too. But those opinions have 
no place in a Federal court whose job it is to interpret the law fairly 
and impartially.
  Can Mr. Bush be trusted to put aside his personal views when 
considering the law? Even according to his own words, he can't. At Mr. 
Bush's hearing, my friend from North Carolina, Senator Tillis, asked 
Mr. Bush if judicial impartiality is ``an aspiration or an absolute 
expectation.'' Bush responded that impartiality is an aspiration--so, 
in other words, not an expectation. He doesn't think he needs to be an 
impartial judge; he just needs to be able to say that he tried.
  To administer the law fairly and impartially is the No. 1 job of a 
judge. The ability to do so is the most basic qualification for the 
job. Judicial impartiality is a principle of democracy and the backbone 
of our government. It is the reason African Americans and women can 
vote, that segregation is part of the past, and that marriage 
inequality is part of the past.
  I saw dozens of Democrats and Republicans last night at the Library 
of Congress listen to the words of Taylor Branch, perhaps the most 
noted historian of the civil rights movement, in an interview speaking 
to us about Dr. King having one foot in the Scriptures and one foot in 
the Constitution as he advanced and advocated for civil rights. We know 
what that means for our country. Last night, I saw Republicans and 
Democrats coming together and celebrating that. Then today on the 
Senate floor, we are voting for somebody like Mr. Bush, who eschews all 
of those values we hold dear as a country.
  The courts are the reason that women can now attend the Virginia 
Military Institute. It is the difference between upholding and 
oppressing the rights of the people we serve.
  Think about this: The Obergefell decision--Obergefell v. Hodges in 
Ohio--was the decision that guaranteed the right to marriage equality. 
It came out of the Southern District of Ohio and was initially appealed 
to the Sixth Circuit in Cincinnati. Imagine if a man who boldly 
repeated homophobic slurs had heard the Obergefell appeal. Think about 
that. He thinks it is very acceptable in public to make speeches and 
use homophobic slurs, and he is now sitting on the court bench making 
decisions about this.
  Imagine if today an LGBT Ohioan or a Michigander or someone from 
Senator McConnell's home State or Senator Alexander's home State of 
Tennessee--if they faced this man, could they be confident that their 
case would be decided fairly and impartially and that justice would be 
served? Could we be confident that it would when we have a man who will 
stand up at an event in a big city, the largest city in Kentucky, and 
engage in homophobic slurs?
  I have heard from both African Americans and Jewish Americans who are 
absolutely outraged at this nomination, partly because he is unfit to 
serve and partly because now, as Senator Whitehouse, my friend from 
Rhode Island, who has one of the best judicial minds in this body, has 
said, if we confirm Bush, it is going to lower the bar in the future to 
where it is OK to engage in racist talk or homophobic or misogynist 
talk; it is OK because Judge Bush did, and he is sitting on the Sixth 
Circuit, so why not bring some more forward? Is that the standard, that 
your votes today--the 51 Members of this body who voted for cloture--is 
that the standard you want to set for the future?
  Organizations with a history of fighting for justice and equality 
have written to me opposing this nomination, including the Human Rights 
Campaign, the NAACP Legal Defense and Educational Fund, the National 
Council of Jewish Women, the Leadership Conference, and on and on and 
on.
  We have a responsibility to hold judges to the highest standard. The 
job demands it. The people we serve--the people whose lives can be 
forever changed by the decisions these judges make--deserve it. We 
cannot allow the bar to be lowered for what is considered acceptable 
behavior by members of the Federal bench because as this bar is 
lowered, the faith of citizens in the courts and in this body falls 
along with it. That is the tone we are setting. That is the precedent 
we are setting.
  I am not a lawyer. A lot of my colleagues who voted for John Bush to 
be confirmed are lawyers. They understand what precedent means. They 
understand what political precedent means in this body. I don't think 
they want that bar lowered because they know that if we do, as I said, 
the faith of citizens in the courts and in this body falls along with 
it.
  I hope my colleagues join me in opposing Mr. Bush and show the 
American people that the Senate still has high expectations and that we 
still stand for decency and impartiality in our Federal judiciary.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sullivan). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page 11118]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, we are grinding the wheels here in 
Washington, DC, in the Senate very slowly, too slowly, when it comes to 
confirming the President's nominees, first to the Cabinet and now to 
the sub-Cabinet positions.
  When the American people elected President Trump on November 8, they 
knew they were electing not just one person but also his full executive 
branch team, most certainly when it comes to filling vital national 
security positions like those in the Department of Defense. But because 
of unprecedented delay and obstruction from our Democratic colleagues, 
at the current pace, it would take more than 11 years to fully staff 
the executive branch--and to what end? Do our Democratic colleagues 
object to the qualifications of these nominees? Well, the answer is, by 
and large, no. Most of these nominees have sailed through the relevant 
committees, and some were even nominated by President Obama, but that 
doesn't do anything to expedite the confirmation process. So I can only 
be left to conclude that our Democratic friends are just trying to make 
it more difficult for President Trump to do his job and, in the 
process, make it harder for us in the Senate to do ours.
  On Monday, we voted to end the filibuster of Patrick Shanahan, the 
nominee for Deputy Defense Secretary at the Department of Defense. 
Thankfully, we voted to confirm him, but he was confirmed by a vote of 
92 to 7, so there wasn't any good-faith disagreement about his 
qualifications. There wasn't any real doubt about whether he would be 
confirmed, but our friends across the aisle insisted on burning as much 
time as possible, using every procedural objection they could in order 
to delay it. This is the same person who passed out of the Armed 
Services Committee by unanimous voice vote, essentially by unanimous 
consent.
  Well, if there is one thing that is indispensable in the Federal 
Government, it is our national security. The Department of Defense has 
been facing a critical shortfall in leadership, which is dangerous to 
the Nation, especially while we are engaged in such a vast array of 
conflicts around the world. We have seen only 6 of President Trump's 22 
nominations confirmed, and by drastically delaying this process, our 
Democratic colleagues are promoting not only the waste of taxpayer 
dollars, but they are putting lives at risk. I recently talked to the 
commander of a cyber unit who said that it took months for recently 
appropriated money to make its way out to his unit. In the meantime, he 
had to make personnel cuts and forgo investing in resources that would 
strengthen our cyber defenses, all because we couldn't get 
administrative positions filled at the Pentagon. The type of drastic 
action this particular commander was forced to take is not unique. It 
is reprehensible that anyone would play politics and delay for delay's 
sake, especially when considering the nomination of a person who 
directly impacts the training and readiness of our troops.
  Of the 197 nominations to agencies made by the President so far, the 
Senate has confirmed only 48. Additionally, the Senate has confirmed 
only 2 of the 22 judicial nominations. This is one reason the majority 
leader said that we are going to spend a couple more weeks during the 
August recess to be here, working to get our work done. I have already 
heard from some of our Democratic colleagues saying: Why would the 
majority leader make that decision? I said: All you need to do is look 
in the mirror and ask that question of the Democratic leader, who is 
leading this unprecedented effort in obstructing and slow-walking these 
nominations. I suspect that they are going to come forward and say: 
Well, let's play nice now. Let's make a deal.
  The Department of Justice, for example, has only 3 out of 19 
nominations confirmed. This is the Department of Justice. The 
Department of Health and Human Services--by the way, we have been 
talking a lot about healthcare. Wouldn't you think we need a full 
complement of nominees confirmed there? But only 3 out of 11 have been 
confirmed there.
  In November, when the people elected President Trump, they wanted 
him, certainly by implication, to appoint a Cabinet of qualified 
individuals to help guide our country and carry out the tasks and 
policies of the administration. I am left with the unfortunate 
conclusion that, really, what this is designed to do is to not accept 
the verdict of the voters on November 8 but to continue to obstruct 
this President and the executive branch by any means available in order 
to try to make his job harder. The problem with that is it hurts the 
American people. It wastes taxpayer money. It makes our country and the 
world more dangerous, especially when his national security nominees 
are not considered and not confirmed. So it really does represent, to 
my experience, an unprecedented unwillingness to accept the outcome of 
the election, and it shows contempt, I believe, for the will of the 
American people when it came to the election on November 8.
  It is easy to call this what it really is. It is an unwillingness to 
accept the outcome of the election, further poisoning the already toxic 
atmosphere here in Washington, DC, and it doesn't need to be that way. 
In my experience, even after tough elections, people on both sides of 
the aisle would generally accept the outcome. I don't know what the 
alternative might be but to accept the outcome and then try to work 
together in the best interest of the American people, try to find those 
areas where we do agree--we don't agree on everything, but there are 
areas where we do agree--and to move forward and make progress. That 
doesn't seem to be happening today, and it is too bad. It is 
unfortunate.
  To put this in perspective, there were only eight cloture votes of 
President Obama's nominees by his first August recess in 2008. For 
everybody's concern, the term ``cloture votes'' basically means 
invoking all of the procedures to delay things and make it harder to 
confirm nominees. Only eight times was that used when President Obama 
was President. By the time we reach the August recess this year, we 
will have had over three times as many cloture votes; that is, 
unnecessary obstacles placed in the way of timely confirmation of 
President Trump's nominees, making us jump through more hoops. It is 
delay for delay's sake. I believe this strategy--and it is a strategy--
is simply unconscionable and that the time-consuming parliamentary 
procedures and slow-walking and needless gridlock advance no interest 
of the American people.
  I can only hope people will change in the way they approach this. 
Maybe if they hear from their constituents, maybe if the stories are 
written about it or people hear about it on the news, they will call 
their elected representatives and say: The election is over. Accept the 
outcome and try to work together in the best interest of the American 
people. I think that is what our constituents expect of us.
  So this week we will press forward with two important nominations, 
John Bush to be U.S. circuit judge for the Sixth Circuit and David 
Bernhardt to be Deputy Secretary of the Interior. These are two 
additional, highly qualified individuals who are seriously needed in 
their respective roles, but it shouldn't take a whole week to confirm 
three nominees. That is what it takes now, given the obstruction and 
foot-dragging on the other side.
  I would urge our colleagues to end their political gamesmanship for 
the benefit of our country and for the American people so we can move 
forward doing the people's business.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burr). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MERKLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               Healthcare

  Mr. MERKLEY. Mr. President, the most important three words in our 
Constitution are the first three--``We

[[Page 11119]]

the People''--the mission statement for our Nation, laid out in 
supersized font so that no one would forget what this document, our 
Constitution, is all about. Our Founders did not start out by writing 
``We the privileged.'' They did not call for a document or a form of 
government for ``We the powerful.'' Indeed, they wanted to make clear 
that the structure of the government they were founding would be very 
different from those in Europe that functioned for the privileged and 
the powerful.
  As President Lincoln summarized, we are a Nation of the people, by 
the people, and for the people. That is the vision. That is the vision 
that I have been coming to the floor and talking about for the last 
year and a half--about the importance of a government that responds to 
the issues that affect the citizens across this country, that listens 
to the people of this Nation.
  It was President Jefferson who said that the mother principle of the 
United States is that we have a government within which each citizen 
has an equal voice. Admittedly, we had some deep flaws that had to be 
corrected in order to reach that objective, but that vision of each 
citizen's having an equal voice was the only way that the government 
would reflect the will of the people and make decisions that would 
reflect the will of the people. Of course, it is hard to hold onto that 
vision because the powerful and the privileged do not like that vision. 
They want a government that is of, by, and for the powerful and the 
privileged, not of, by, and for the people.
  The history of the United States is one battle after another of 
decisions that make a foundation for families to thrive in the United 
States of America and decisions that raid the National Treasury for the 
benefit of the rich. We see that battle time and time and time again, 
and we have seen it very recently in this battle over healthcare. 
Today, I come to the floor to say that the people of the United States 
have had an incredible victory--a resounding victory--over those who 
were championing government by and for the privileged and the powerful.
  It is really all about this bill, this TrumpCare bill, which 
originated in the House of Representatives. It proceeded to throw 
millions off of insurance--more than 20 million people off of 
insurance--in order to give tax breaks to the richest Americans. What 
did the House's bill do? The House's bill said that we will give to the 
400 richest Americans $33 billion--not $33,000, not $33 million--and 
rip healthcare away from millions of Americans in order to pay for 
those kinds of tax breaks for the richest. In fact, just those tax 
breaks for the richest 400 Americans would have paid for 700,000 
Americans to have had Medicaid, which is basic healthcare insurance. 
That would have been enough to have covered the States of Arkansas, 
West Virginia, Nevada, and Alaska all put together.
  Then we saw the House's bill come over here to the Senate, and the 
Senate set up a group of the secret 13. Is there anything more opposite 
of ``we the people'' than the secret 13 Senators meeting in the halls 
of this building and particularly choosing a room that the press would 
not be allowed into? They did not want to be seen entering the room or 
leaving the room. That is how secretive it was. That is how embarrassed 
they were about the possibility of having the American people see what 
they were crafting. Then they came forward with the Senate's version of 
the bill.
  Now, of the House's version, the President of the United States of 
America called it mean, and he called it heartless, but the Senate's 
version did not end up being much different than the House's version--
the Senate's version that would proceed to throw more than 20 million 
people off of healthcare, as well, the Senate's version that, through, 
maybe, the Congressional Budget Office's analysis, would throw off 1 
million fewer over 10 years--22 million instead of 23 million--but 1 
million more over the first year, that being 13 million rather than 12 
million. It proceeded to constrain basic Medicare--Medicare as it 
existed before ObamaCare--in such a fashion that, over time, it would 
put a stranglehold onto Medicaid. Therefore, it was even meaner, if you 
will. It was even more heartless than the Senate's bill.
  Then the secret 13 and its leadership said: We do not want to have 
the American people see this, so we are not going to give the time in 
order to have committee hearings on it. We are going to keep it out of 
the healthcare committee. We are going to keep it out of the Finance 
Committee because the experts will come, and the American people will 
see just how terrible, how mean, how heartless this bill is.
  We had a zero, zero, zero process--zero days of committee 
examination, compared to 8 years earlier with the longest committee 
hearing and markup that lasted 5 weeks in the Health, Education, Labor, 
and Pensions Committee. We had the second longest committee hearing and 
markup in Finance 8 years earlier, which was the second longest in 
history. Again, the Senate's leadership recently said: No exposure in 
the Finance Committee--zero days in the Finance Committee--zero days in 
the HELP Committee, and zero months for the Senators to go back and 
talk to their citizens and talk to their healthcare stakeholders about 
what this bill would mean.
  You know that something is wrong when you have a process that has 
diverged so dramatically from ``we the people.'' Instead, we had the 
secret 13 and the zero days of committee examination and the zero days 
in the Finance Committee and the zero months to be able to consult with 
healthcare experts and stakeholders and, most importantly, zero months 
to be able to hold a dialogue with the citizens back home.
  Yet we did hear from the citizens back home. As great as the effort 
was to hold them at bay--to give them the stiff arm and prevent them 
from weighing in--they weighed in nonetheless. My office received well 
over 8,000 phone calls. Of those, they ran 84 to 1, saying stop this 
diabolical TrumpCare bill. I also received a whole lot of constituent 
mail, with more than 25,000 people weighing in from Oregon, back home. 
It ran 36 to 1.
  With 84 to 1 and 36 to 1, when do you see such opposition?
  Maybe we saw such opposition because the people of the United States 
wanted to weigh in, knowing that only the powerful special interests 
were meeting with the secret 13 to design this diabolical bill to rip 
healthcare from millions of Americans. Maybe that is why so many 
American citizens weighed in. Thank goodness they did weigh in. They 
filled our email boxes, and they overflowed our phone systems. They 
filled the streets often and went to our home States' offices to say 
that this matters, and it certainly did matter.
  Has there ever been a bill in the history of the United States that 
did more damage to more people than the TrumpCare bill that was 
proposed here in the U.S. Senate?
  One of the things that the citizens of the United States did was to 
weigh in with their stories with all of us--with all 100 Members of 
this Chamber. They wanted to let us know how unexpectedly they had been 
affected by their having a child who had a sudden and dramatic illness 
or a car accident that had occurred or, suddenly, a family member who 
had been afflicted with cancer or emphysema or leukemia or multiple 
sclerosis. The list went on and on and on--real people, real lives, 
real challenges, real ``we the people'' input.
  I heard from Caroline in Portland, the mother of two young children 
who wrote to me, sharing her story of raising a child with special 
needs and the help that the Oregon Health Plan had been to her family--
the Oregon Health Plan, Oregon's version of Medicaid--and how terrified 
she was about not being able to afford healthcare for her child under 
TrumpCare.
  I heard from Leslie, who contacted me about his 3\1/2\-year-old 
daughter Gloria, who suffers from a rare genetic condition that has led 
her to live with near constant seizures and cystic fibrosis. She needs 
intensive, around-the-clock care, and she is able to get that care 
because of a special Medicaid waiver that helps her parents afford it.

[[Page 11120]]

With TrumpCare, she would have lost that waiver.
  I heard from Jay in Eugene, who reached out to share his story about 
his battle with leukemia and stage IV colon cancer. He was told he 
could only expect to live another 3 months, unless he received 
treatment. That was 2 years ago, and he is alive because he was able to 
access treatment. He has been able to fight the battle with cancer and 
fight the battle with leukemia, and he was able to do so because of the 
insurance he had through ObamaCare--through the Affordable Care Act.
  Kerry from Corvallis wrote to me, terrified about all of the members 
of her family who would be uninsurable if they passed TrumpCare: her 
husband, because he had a blood clotting disease; her son, who suffers 
from epilepsy; and her 78-year-old mother, who has Alzheimer's.
  That fear of being unable to access healthcare because of a 
preexisting condition ran through story after story after story, but 
that is the system we had in the United States of America before we had 
the Affordable Care Act.
  Then, there was a woman from Ashland who asked me not to share her 
name but wanted her story shared. I will call her Katie. Katie is a 
single mother who is currently battling cancer--invasive breast cancer 
and malignant melanoma. This is what she wrote to me:

       In simple terms, I will die without treatment and the 
     ongoing care that I have received so far through Oregon 
     Health Plan. As a single parent, I could work 24/7 until my 
     last breath and still my income would not afford me basic 
     healthcare if it were not for the Affordable Care Act.

  Katie continued:

       With a pre-existing condition I would not be insurable, 
     left to suffer and even to succumb from my illness. Once, 
     this was only a nightmare, but now it is a horrifying 
     reality, too surreal to comprehend. I cannot explain the deep 
     heartache and frustration of the thought of orphaning my son, 
     all due to dying from an illness that could have been treated 
     if I had been insured.

  Stories like Katie's and Caroline's and Gloria's keep coming in, day 
after day, email after email, phone call after phone call--indeed, from 
individuals at my townhalls. The weekend before last, I held a lot of 
townhalls and a couple of special healthcare forums and a bunch of Main 
Street walks in Oregon. Five of those townhalls were in counties that 
are very red, very Republican, and I lost those counties in my 
reelection by rates of probably 20 to 40 to 50 percent. But at those 
townhalls, people came out and said: Please stop TrumpCare.
  One out of three individuals in rural Oregon, in Republican Oregon, 
are on the Oregon Health Plan. They remember that, not so long ago, all 
they had for a healthcare plan was to say a prayer each night and hope 
they didn't get sick the next day. They would say a prayer each night 
and hope they would not be in an accident the next day. That is all the 
healthcare they had.
  Now they are able to get preventive care--preventive care for free. 
Now they are able to take their children in and get them inoculated. 
Now they know that, if a loved one in their family becomes ill or 
injured, that loved one will get the care they need, and they won't go 
bankrupt in the process.
  That is peace of mind. Isn't that the kind of foundation we want, to 
enable every family to thrive in America? Shouldn't we consider 
healthcare to be a basic right, a basic service, that is provided with 
a healthcare system in a ``we the people'' nation, not a ``we the 
privileged'' nation, where healthcare is only available to those who 
are rich enough to buy it? That is wealth care. That is not healthcare. 
It is a healthcare system for ``we the powerful'' or for the powerful 
who write the laws that benefit themselves but leave everyone else out 
in the cold. No, a ``we the people'' nation has a healthcare system 
suited to we the people, where we provide streets and we provide public 
transportation and highways as part of the common infrastructure, where 
we provide free public schools so that every child has a chance to 
thrive, and where we provide public healthcare so that every citizen 
can have the peace of mind that, if their loved one gets sick, they 
will get the care they need.
  But we saw the opposite this year. We saw the House bill that would 
have thrown 12 million people off of healthcare within a year and 23 
million within 10 years. As for the President, weeks after he 
celebrated with his champagne glasses and his leaders from the House 
and weeks after he celebrated passage, someone told him what was in the 
bill, and the President said: Wow, that bill is mean and heartless.
  Then we came to the Senate, and the secret 13 met, and what did they 
craft? A bill that was even meaner and more heartless. Instead of 
throwing 12 million people off of healthcare in a single year, it threw 
13 million people off in a single year, and over 10 years, essentially 
the same number as the House. It wrote a Medicaid provision that over 
every subsequent year would have made Medicaid less and less accessible 
to people who need it.
  Well, that ran into a dead end. So the Senate said: Let's recraft 
something that is better. And what did they do? They threw in the Cruz 
amendment. What did the Cruz amendment do? It is fake insurance. It is 
a fake insurance amendment.
  Do you remember those days when you would get advertisements for 
healthcare that said: Pay us $25 a month, pay us $50 a month, and we 
will give you a healthcare policy. Millions of Americans bought those 
policies, and they thought they had something valuable, until they 
became sick and went to the doctor. Then they were told: This doesn't 
cover your doctor's visit, and it doesn't cover your x-ray. It doesn't 
cover your MRI--that is for sure. It doesn't cover the drugs you need 
to treat this illness. It doesn't cover a specialist. It doesn't cover 
hospital care. Oh, and you are pregnant? How wonderful that you are 
going to have a child, but your healthcare policy--that fake insurance 
policy that you bought--doesn't cover maternity care.
  Fake insurance for the people of the United States of America is the 
Cruz amendment that was added as a so-called improvement to the mean 
and meaner bill already crafted by the secret 13--fake insurance. To 
make it worse, the fake insurance system means that the healthcare 
policies that cover essential benefits enter into a death spiral. They 
become so expensive that people can't afford them. So they don't buy 
them. As a result, only those who are already ill buy the policies, and 
that makes the policies even more expensive, and so even fewer buy 
them.
  There it is--the Cruz amendment--fake insurance for the young and 
healthy, and the destruction of insurance with essential benefits for 
everyone else, pricing it out of reach. In other words, it is like a 
bomb going off in the healthcare system to destroy healthcare both for 
the young and healthy and for the older and the sick and those with 
preexisting conditions.
  So some experts weighed in on this and said how terrible that idea 
is. This is how destructive this is to the healthcare of Americans. 
Suddenly, there weren't the votes for the Cruz fake insurance 
amendment, either.
  So now what do we have before us? We have the repeal-and-run plan 
coming to the floor of the Senate, repealing the exchanges; that is, 
the healthcare marketplace, where people can use subsidies to be able 
to buy insurance, enabling individuals who are struggling and working 
families--working families assembling a number of part-time jobs, often 
minimum-wage jobs with no benefits--to buy insurance on this 
marketplace.
  By the way, this was the Republican plan for healthcare: Let's bring 
together a marketplace where people can compare policies and can get 
subsidies to be able to afford those policies. This was the Republican 
plan. It came from a far-right Republican think tank. It was championed 
by a Republican Governor. It was test-run at a State level by a 
Republican nominee who became the nominee of the Republican Party for 
President of the United States of America. Call it RomneyCare. Call it 
the exchange. It was the Republican plan.
  But my colleagues now say they don't like their own plan, and they 
don't like the expansion of Medicaid. They don't like the free 
preventive

[[Page 11121]]

conditions. They want to get rid of the possibility of your children 
staying on your policy until age 26. They want to get rid of the 
healthcare bill of rights that says that gender is no longer a 
preexisting condition and you can't discriminate against women because 
they happen to be women. They want to get rid of the protection you 
have against policies that have an annual cap, which means, if you get 
seriously hurt or seriously ill, you don't get covered. They want to 
get rid of the protection you have that says there can't be lifetime 
caps that destroy healthcare, so that if you are seriously sick, then, 
you not only hit your annual limit, but you hit your lifetime limit and 
no more care for you. Now you have a preexisting condition, and you 
can't get a policy anywhere else.
  As for that whole set of consumer protections--the healthcare bill of 
rights--my Republican colleagues want to bring this bill to the floor 
to destroy that entire set of rights. Then, they say: After we have 
destroyed all of this--destroyed the expansion of Medicaid, destroyed 
the funding for our healthcare clinics--somewhere down the road we 
might figure out a new way to provide healthcare--even though they have 
had year after year after year after year after year after year after 
year. Let's count them all up, from the years when we crafted the ACA--
with an incredible amount of Republican input, by the way. There were 
more than 100 Republican amendments that were adopted. All of those 
years later, and now what we have is the majority party's Republican 
plan to simply repeal all of these pieces that have given a healthcare 
bill of rights to Americans, that have given struggling Americans 
access to healthcare, and saying: We are just going to wipe it all away 
and have people return to where we were before, where the only 
healthcare insurance they had was to say a prayer each night.
  That is not acceptable in a ``we the people'' republic. I know that 
as citizens across the country weigh in, they are going to say, as they 
again fill our inboxes and ring up our phones and visit our offices, 
that this is not acceptable. It is not acceptable to make it impossible 
for an entrepreneur to leave a big company and found their company 
because they now have access to healthcare. That is a beautiful thing. 
We have launched small businesses by the thousands and thousands and 
thousands because people were able to get healthcare without being at a 
large company--small businesses that used to have to just struggle to 
get any sort of coverage.
  There have been a lot of battles between we the people and we the 
powerful over the history of the United States of America--this 241-
year history. We have had those who wanted to suppress the ability of 
workers to organize and ask for a fair share of the wealth they were 
creating. They wanted to bust the union, but the union worked not only 
to have better benefits for the workers at the mine or at the mill but 
to have better work circumstances for all Americans--to have a 5-day 
workweek, to have an 8-hour workday, to have overtime paid at time and 
a half, to have safer working conditions, to end the exploitation of 
children in child labor sweatshops, and to have employer-based health 
coverage. Again and again, workers organizing in the workplace have 
fought not only for benefits in that workplace but for benefits for all 
working Americans.
  That is a ``we the people'' battle against the powerful and 
privileged who want to squeeze the working people until they have 
nothing--nothing left.
  We have had other ``we the people'' versus the powerful battles. We 
had one back in the 1920s, where the powerful said: Let's deregulate 
everything about the banking system. Let's turn it into a wild casino, 
and everybody will make a lot of money.
  There was massive speculation. The stock market ran up like this, and 
then it crashed. When it crashed, it destroyed the finances of millions 
of American working families. It left millions of regular families 
homeless and destitute. My grandmother lived in a boxcar because of 
this reckless pursuit of more wealth and deregulation by the powerful 
and the privileged. Thousands of banks across the country closed. More 
than 1 million families lost their farms in the first 4 years as loans 
were called in. More than half of all Americans were impoverished. 
Ninety percent of children in mining communities were malnourished. All 
because ``we the privileged and powerful'' want to crush ``we the 
people.''
  But ``we the people'' surged back. They elected a government that 
established protection for depositors of accounts in our banks, 
protection through the Federal Deposit Insurance Corporation. They 
elected a government that said: Let's regulate and create honesty and 
integrity in the stock market--the Securities and Exchange Commission--
so it is a safe place to invest. We can invest with confidence. They 
created the Tennessee Valley Authority to provide electricity and 
modernize the impoverished Tennessee Valley region. They forged Social 
Security so that for the first time Americans could count on having 
some income when they retire.
  We had another ``we the people'' versus ``we the powerful'' battle: 
the civil rights movement. There were those who wanted to suppress 
opportunity on the basis of race and on the basis of ethnicity. But 
``we the people'' came together and said: Here in America, it is going 
to be a land of opportunity for every single individual. No matter your 
race, no matter your ethnicity, you get a chance to thrive here in the 
United States of America. The doors cannot be slammed in your face.
  That incredible 1964 Civil Rights Act, forged right here in this 
Chamber where I am speaking at this very moment, was an incredible ``we 
the people'' moment.
  But it is not a battle we have completely won because still even 
today in many States across our country doors are legally being slammed 
in the face of our LGBTQ community. So shouldn't we come back together, 
pass the Equality Act, and give every single American full opportunity 
in our country?
  Right now, as we come to the conclusion of the healthcare battle 
between the privileged and the powerful and the people, we have a 
chance to step out of the extraordinarily partisan role that the 
majority in this Chamber has played, treasuring power over healthcare 
in order to--well, in order to what? What purpose? To what purpose? 
What mission is being fulfilled? Yes, more desks are on that side of 
the aisle than this side of the aisle, but shouldn't we be here to 
solve problems? Shouldn't we work together to make our healthcare 
system better?
  Buried deep within that mean and meaner bill are a couple provisions 
that would make our healthcare system better. There is reinsurance, 
which enables a company to go into a new healthcare marketplace and be 
insured against having a disproportionate share of sick people. That 
makes a marketplace function. Remember, this was the Republican 
marketplace plan, and they have a provision deep in their bill that 
would make that marketplace work better.
  The marketplace requires healthcare companies to know how much they 
are going to get paid. Right now, that is in limbo because President 
Trump has held up the cost-sharing payments and won't commit to them, 
so nobody knows how to price their policies. He is driving healthcare 
companies out of one county after another after another. They are 
saying: We don't know how to price our policies because we aren't told 
how much we will be compensated. Well, there is a provision deep within 
that Republican bill that says: We are going to nail down the cost 
sharing.
  There is another provision in that bill that says we should spend 
more to take on the opioid epidemic. Let's pull that out.
  Let's work together. Let's take the cost-sharing block down and the 
reinsurance proposal and the funding to take on opiates and other drug 
addiction across the country, combine them, and we will have something 
we can do to make our current healthcare system better--and make it 
better as we work en route to having a healthcare system

[[Page 11122]]

where simply by virtue of being born an American, you have basic, 
affordable, quality healthcare. We are a ways from that, from a 
Medicare for all or a Medicaid for all, but shouldn't we aspire to have 
that kind of peace of mind rather than the complexity of the system we 
have now?
  At this moment, we have the opportunity to set aside our partisanship 
and make healthcare work better for our ``we the people'' Nation, and 
we should seize that moment.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, today the Senate is considering the 
nomination of John K. Bush to the Sixth Circuit--someone who should 
have no place on the Federal bench.
  Mr. Bush is one of the most outspoken and blindly ideological 
judicial nominees I have seen in my time in the Senate. A longtime 
Republican Party activist and donor in Kentucky, Mr. Bush is also a 
political blogger whose incendiary comments are beneath the dignity of 
the office he aspires to hold. On this blog, Mr. Bush hid behind a 
secret online identity to denigrate people with crude language and to 
question the very foundation of our country's legal system. Mr. Bush 
has been a champion of the racist birther conspiracy about President 
Obama.
  When asked about these posts during his hearing, Mr. Bush appeared to 
regret that his posts presented problems during his confirmation 
process and did not demonstrate any remorse for the views he expressed 
in his blog.
  In another post, Mr. Bush equated abortion and slavery, calling them 
``two of the greatest tragedies in American history.''
  In Dred Scott, which is widely considered to be the worst decision in 
Supreme Court history, the Court held that African Americans were 
property, not people, and that they were not entitled to citizenship 
under our Constitution. The American people rejected this holding in 
the Civil War and in the constitutional amendments passed in its 
aftermath.
  In contrast, the core holding of Roe, as reaffirmed in Casey, is the 
law of the land and based on the Constitution's protections for 
individuals to make intimate and personal decisions.
  Comparing a constitutionally protected right to slavery--a crime 
against humanity and one of the deepest stains on the moral conscience 
of this country--is unconscionable. I question how a judge holding this 
kind of view would rule on any number of cases coming before him that 
force him to confront his strongly held ideological beliefs.
  Mr. Bush made repeated attempts to downplay these outrageous 
statements and tried to convince us that he would simply follow 
precedent. Saying ``I will follow precedent'' should not shield this 
extreme nominee from legitimate scrutiny of his ideology.
  Should he be confirmed, Mr. Bush will likely be presented with cases 
that provide opportunities to push the precedent envelope. This is 
particularly evident when examining Mr. Bush's own writings. For 
example, in a 2008 blog post, he supported statements made by the 
majority leader, whose campaigns he supported, that judicial 
appointments could preserve ``the anti-abortion agenda.'' If confirmed, 
we have every reason to believe that Mr. Bush will take every 
opportunity to pursue a radical, anti-woman, anti-choice agenda.
  Statements like these raise serious questions about whether litigants 
appearing before potential circuit court judge Bush could trust in the 
fairness that is the hallmark of our judicial system.
  Mr. Bush's inability to understand why his past writings are such a 
big problem only deepens my concern about his nomination. As a private 
citizen, Mr. Bush has every right to express his opinions in any way 
and on any platform he chooses. But he does not have the right to be 
confirmed to the Federal bench, and he doesn't have the right to demand 
that we set aside the clear pattern of extremism evident in his 
writings when considering his lifetime appointment.
  There is no question that elections have consequences for who is 
appointed to be judges and Justices. That is part of our system. With a 
Republican President and a Republican majority in the Senate, many 
deeply conservative nominees will be confirmed to the judiciary. But 
the Senate cannot and must not become a rubberstamp for nominees who do 
not demonstrate the ability to be fair and impartial in the cases that 
come before them.
  We are reminded every day why fair and impartial judges are so 
important for our country and for our democracy. Just last week, Judge 
Derrick Watson from Hawaii tossed out the narrow limits the Trump 
administration placed on who counts as close family when enforcing the 
President's discriminatory Muslim ban. Judge Watson's decision shows 
the importance of ensuring we have Federal judges who understand the 
rule of law and also have an appreciation for the impact of the court's 
decisions on ordinary Americans.
  Nothing I have heard or read provides any reassurance that the 
American people can trust that Mr. Bush will put his views aside to 
render fair and impartial decisions.
  I urge my colleagues to oppose his nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, at a time when millions of people 
nationwide are speaking out and making absolutely clear ``no to more 
attacks on women's health and women's rights and no to the kind of hate 
and division President Trump sowed on the campaign trail,'' it is 
unconscionable that my Republican colleagues are moving now to confirm 
a circuit court nominee who is so clearly anti-women, anti-choice, and 
so clearly unqualified and unfit to serve on the bench.
  Our Republican colleagues may think that no one is paying close 
attention to this nomination, that perhaps they will just slip this one 
through. They are wrong. Today I am here, along with many of my 
colleagues, to take a stand, to make sure that families know just who 
President Trump is trying to fill our Nation's court system with and 
call on Republicans to reject this nomination of John Bush to the Sixth 
Circuit Court of Appeals.
  I consider my decisions about whether to support judicial nominees to 
be among the most important and consequential choices I make as a 
Senator. Like Supreme Court Justices, circuit court judges have 
lifetime appointments. They set legal precedent. They decide on the 
majority of Federal cases. They can change and shape the lives of 
generations to come. So it is a responsibility I do not take lightly.
  There are so many troubling aspects of this nominee's record--
previous statements, writings, legal views--they should alarm every 
American, from his views on LGBTQ rights, race, and campaign finance 
reform, to his vision of the environment and election laws.
  I would like to start with one aspect of his record that is 
especially important to me as a woman, a mother, a grandmother, and a 
U.S. Senator, and that is what this nomination would mean for women. 
For nearly a decade, Bush has made countless inflammatory, offensive, 
and troubling comments on a number of issues important to women. It is 
not possible to go through them all, and, frankly, most should not be 
repeated on the Senate floor, but I do want to make clear what kind of 
nominee this is.
  Bush has likened a woman's constitutionally protected right to choose 
to that of slavery, calling it one of the greatest tragedies in the 
history of our country. This harmful view is a pattern with Bush. In 
fact, he consistently uses anti-choice rhetoric, whether he is writing 
about the right to privacy or other case law.
  On top of that, Bush has attacked essential health programs for women 
and children. For example, he has called the Maternal, Infant, and 
Early Childhood Home Visiting Program--which helps provide at-risk 
pregnant women the resources they need to raise healthy children--
wasteful.
  He has authored an amicus brief advocating for the Virginia Military 
Institute to continue excluding women from admission, where he stated 
that

[[Page 11123]]

there are ``different developmental needs of women and men.''
  Most recently, on his Judiciary Committee questionnaire, he failed to 
disclose memberships with various organizations that do not admit 
women, as well as people of color.
  I could go on and on, and any of these alone would be enough for me 
to oppose this nomination. There are a lot more. Along with his views 
about women, we have learned of a disturbing pattern of hostility 
toward the LGBTQ community.
  In several articles, Bush has praised court decisions that attack 
LGBTQ rights. He has used anti-LGBTQ slurs in his personal speeches. He 
has publicly applauded statements made by candidates for office and 
government officials that oppose marriage equality.
  When given an opportunity to explain any of these comments or 
previous writings during his committee testimony, he was evasive and 
dodged questions, and he certainly did not apologize or clarify any of 
those comments.
  I don't think I need to go any further, but I hope it is becoming 
increasingly clear that this is not a normal nominee. This is someone 
who lacks the qualifications and character and temperament to be 
appointed to a lifetime position on the Federal bench.
  It is time for President Trump to stop trying to divide our country 
and use Federal court nominations to push his extreme agenda and undo 
progress for women and the LGBTQ community.
  I will remind my Republican colleagues, we have joined together this 
year to reject extreme nominees like this before--Andrew Puzder and 
Mark Green. Those, by the way, were temporary Cabinet positions. This 
is a lifetime appointment. I hope we do the right thing and reject this 
nomination.
  Before I conclude, it is my understanding that Senate Republicans may 
attempt to misrepresent Bush's harmful record on women. In case there 
is any confusion, I would like to read a statement from Planned 
Parenthood of Indiana and Kentucky on the Bush nomination:

       Planned Parenthood of Indiana and Kentucky calls on Sen. 
     Mitch McConnell and Sen. Rand Paul to reject the nomination 
     of John Bush to the Sixth Circuit Court of Appeals.
       Bush has demonstrated that he is unqualified for this 
     federal court in upholding fundamental constitutional rights 
     in his writings comparing abortion and slavery, while 
     applauding statements that demonstrate a record of hostility 
     to women and LGBTQ individuals.
       Sen. McConnell's statements citing PPINK board members 
     support on the Bush nomination do not reflect the 
     organizational position of the Planned Parenthood affiliate 
     in Kentucky and Indiana and we urge the Senate to reject a 
     nominee that lacks the independence and temperament necessary 
     for a federal judgeship.

  Mr. President, I urge our Republican colleagues to make the right 
choice: to reject this nominee and put in place a person in a court 
position that is a lifetime appointment, one who all Americans feel 
will represent them on the bench.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUMENTHAL. Mr. President, I am here to oppose the nomination of 
John Bush to the U.S. Court of Appeals for the Sixth Circuit.
  I have been a member of the Judiciary Committee since I was sworn in 
as a U.S. Senator 6 years ago. I have participated in dozens of 
confirmation hearings. Over time, I have become accustomed to hearing 
nominees attempt to dodge our questions. I have rarely come across a 
nominee who was as reluctant to respond to my questions as John Bush, 
and I have rarely felt so unsure and concerned about how a nominee 
would assume the responsibility of a Federal judgeship if confirmed.
  I should emphasize to my colleagues, as well as to the people of 
Connecticut, there is no nomination I take more seriously than a 
Federal judgeship, having been before numerous Federal judges, district 
court judges, courts of appeals judges, and the U.S. Supreme Court on 
four cases. Having seen as a law clerk, as well as a practicing lawyer, 
the enormous impact and profound importance of this position, I take no 
job more seriously and regard no more steadfastly any responsibility 
that we have.
  Mr. Bush has previously stated that originalism was the ``only 
principled way'' to interpret the Constitution. When our ranking 
member, Senator Feinstein of California, then, very reasonably, asked 
Mr. Bush if judges should always use originalism to interpret the 
Constitution, his response was this: ``My personal views on 
constitutional interpretation will be irrelevant if I am fortunate 
enough to be confirmed to the 6th circuit.''
  With all due respect to Mr. Bush, I could not disagree more strongly. 
Asking judicial nominees about how they would approach the task of 
interpreting the law is extraordinarily relevant to this job. First, 
judges are not robots. They have views regarding how to interpret 
statutes and the Constitution. Applying those views is not inconsistent 
with judicial impartiality, but, especially for a judge on the U.S. 
court of appeals, those views matter greatly. The American people have 
a right to know what those views are for an appellate judge, who often 
cannot simply follow the letter or the exact words of the Constitution 
or the Supreme Court's interpretation of it. There are all kinds of 
gaps that may be left and questions that may be unanswered. Circuit 
court judges are routinely asked to address constitutional questions 
that the Supreme Court has never addressed or has answered 
incompletely, and, sometimes, yes, incorrectly. It changes its 
constitutional view because of a circuit court judge who has the 
temerity to say that the Supreme Court either hasn't spoken to the 
issue or, perhaps, has spoken decades ago, at a time when that 
interpretation of the constitutional law had relevance and correctness, 
but not now.
  To do our job reviewing judicial nominees of the President, we need 
to know how Mr. Bush plans to do his job. His refusal to answer causes 
me extraordinary concern, particularly because, in light of his 
previous comments, I have a pretty good idea how he intends to continue 
to apply what he believes to be the original philosophy. It is one 
thing to say forthrightly and honestly: ``That's my philosophy 
originally.'' It is another to completely dodge the question.
  I am pleased to be on the floor today with one of my really great 
colleagues, Senator Franken, who will speak after me, and to have 
followed two other extraordinarily distinguished Members of this body, 
Senators Murray and Hirono, to focus on these concerns regarding Mr. 
Bush's approach to the question of women's healthcare and 
constitutionally guaranteed reproductive rights under the Fourth 
Amendment.
  Let me note at the outset that our Republican colleagues have 
referred to a letter of support for Mr. Bush from someone who is on the 
board of the Kentucky Planned Parenthood affiliate. That letter in no 
way represents the position of the organization as a whole. In fact, 
the president of Planned Parenthood of Indiana and Kentucky has stated 
that Mr. Bush ``lacks the independence and temperament necessary for a 
Federal judgeship.'' That's the position of the President of Planned 
Parenthood for Indiana and Kentucky: He ``lacks the independence and 
temperament necessary for a federal judgeship.'' The issue of a woman's 
right to make decisions about when she becomes pregnant and whether she 
has an abortion is a constitutionally guaranteed, protected right of 
every woman, regardless of where she lives and what her background is 
and any other circumstances. She has that right. I need to know that 
any person I vote to confirm to the Federal bench will approach cases 
involving reproductive rights with the utmost care and respect for 
decades of hard-won precedent.
  In coming years, judges will have to determine what constitutes an 
undue burden--and that is a term of law,

[[Page 11124]]

``undue burden''--as States continue to pass new laws that try to 
restrict women's reproductive rights. They will have to probe the 
boundaries of the Court's Hobby Lobby decision on how religious and 
reproductive freedoms might conflict. These issues are far from easy, 
and the Supreme Court has spoken to them in many respects incompletely 
or unclearly.
  So when a nominee will not tell me how he plans to approach 
constitutional interpretation--even though his record strongly reflects 
a hostility to reproductive rights--how can I evaluate? How am I to do 
my job when I don't know how he is going to do his job? How am I 
supposed to take seriously his pledge to faithfully apply Roe v. Wade 
and related precedent?
  All I have left in evaluating the Bush nomination is what he said 
outside the confirmation process before he was nominated for this 
position. As many of us know, Mr. Bush was a blogger, authoring 
hundreds of posts over several years under a pseudonym. I have read his 
blog. In the words of one of my colleagues, I am not impressed. He once 
wrote:

       The two greatest tragedies in our country--slavery and 
     abortion--relied on similar reasoning and activist justices 
     at the U.S. Supreme Court, first in the Dred Scott decision, 
     and later in Roe.

  Never mind that this statement is absurd on its face. Never mind that 
the NAACP called it ``offensive and dishonest.'' What concerns me at 
this moment is how this is the best statement of his views on the 
constitutionality of women's reproductive rights that we have heard. In 
light of that statement, how can we expect anything else from this 
nominee other than the narrowing of reproductive rights?
  Then along with the question of how John Bush might act as a judge 
comes the question of how the public perceives him. When you search the 
internet for information about his nomination, here is what you find on 
his blog: a post suggesting that someone ``gag the House Speaker,'' 
referring to former House Speaker Nancy Pelosi, not current House 
Speaker Ryan; two posts suggesting that a reader of the blog from Kenya 
must somehow be connected to President Obama; a post applauding former 
Presidential candidate Mike Huckabee's statements that he believes 
``life begins at conception'' and ``strongly disagrees'' with ``the 
idea of same-sex marriage''; and a whole collection, a menage of 
partisan and inflammatory language--to use some euphemism for what can 
be found here.
  Reporters who covered this nomination have used words like 
``provocative,'' ``controversial,'' and ``not normal.'' This nomination 
is, indeed, not normal. It is different and profound, not in a good 
way. The Courier-Journal, Bush's hometown newspaper, chose this 
headline for their coverage: ``Trump's judicial nominee from Louisville 
ducks questions about his controversial blog posts.'' The article went 
on to quote lawyers describing his answers to Judiciary Committee 
members as ``laughable,'' ``absurd,'' and ``dishonest''--all quotes.
  The Judiciary Committee heard from 27 LGBT advocacy organizations and 
14 reproductive rights groups, and they told us, in no uncertain terms, 
``no'' to this nominee. I agree with them.
  Finally, Mr. Bush wants us to believe that his political views can be 
separated from his law practice or his prospective service on the 
court. When asked why he cited unreliable news sources like World Net 
Daily in his writings, he repeatedly shrugged off the question and 
declined answering, saying political analysis is different from legal 
analysis. There is truth to that point. Prior political activity is no 
disqualification, in and of itself, for serving as a judge, but the 
importance of public confidence in the judiciary is profound. The 
confidence of people in the fairness and impartiality of our judges is 
profoundly important and necessary. The courts have no army. They have 
no police force of their own. Their rulings are credible and 
enforceable because of confidence in the fairness and objectivity of 
our judges.
  Someone who is so clearly unqualified, by virtue of his record, I 
cannot support. I encourage my colleagues to join me in voting against 
Mr. Bush's nomination.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. FRANKEN. Mr. President, I rise also in opposition to the 
nomination of John Kenneth Bush. Mr. Bush, who has been nominated to 
serve as a judge on the Sixth Circuit Court of Appeals, has the dubious 
distinction of having anonymously written scores of blog posts that 
aren't just offensive--which, believe me, they are--but that call into 
question the nominee's ability to be a fair and impartial arbiter of 
the law, which is the job of a judge, especially a circuit court judge. 
In my view, the nominee's lengthy record of inflammatory and 
intemperate writings stands as evidence that Mr. Bush falls far short 
of the high standards that the Senate should demand of nominees to the 
Federal bench.
  Over the course of nearly 10 years, Mr. Bush wrote under the 
pseudonym ``G. Morris.'' He wrote under a pseudonym on a political blog 
operated by his wife, where he published hundreds of incendiary posts.
  Let me be absolutely clear. Being politically active or expressing 
political opinions is not a disqualifying characteristic in a judicial 
nominee--at least, not in my view. But as I said during Mr. Bush's 
hearing, it is important for the Senate, in attempting to determine 
whether a nominee is qualified to serve as a Federal judge, to assess 
that nominee's judgment as a judge--to assess his or her judgement--and 
that is what I would like the President and all our Members to 
consider.
  In the hundreds upon hundreds of posts that Mr. Bush anonymously 
published on his wife's blog, Mr. Bush did not demonstrate what any 
Member of this body would characterize as good judgment. It was far 
from it. During his hearing, I questioned the nominee about a series of 
posts in which he seemed to fixate on President Obama's Kenyan 
heritage. In one post, Mr. Bush discussed an article that suggested a 
reporter was detained by the Kenyan Government because he was 
investigating ``Barack Obama's connections in the country'' and that 
authorities had locked up the reporter in order to prevent him from 
publishing what he discovered. The article Mr. Bush quoted from and 
linked to was published on World Net Daily, a website known for 
peddling conspiracy theories, bogus claims, and White nationalism. In 
fact, World Net Daily is widely known for trafficking in birtherism--
the widely debunked and racist belief that President Obama was not born 
in this country. Nonetheless, Mr. Bush presented the World Net Daily 
article as fact. This is a guy who has been nominated to be a circuit 
court judge calling a World Net Daily article fact.
  So during his confirmation hearing, I asked Mr. Bush--and I asked him 
over and over again--how he decided which sources to rely upon in his 
writings and how he determined a particular source was credible. In my 
view, whether a nominee is capable of discerning real news from fake 
news or blogs that traffic in conspiracy theories from legitimate 
journalism directly speaks to the nominee's judgment. Again, the job is 
judge. Really now, World Net Daily?
  Whether and how a nominee evaluates the credibility of a claim or a 
source of information provides a window into how he might approach the 
factual record in a case, for example. That is what judges do. But Mr. 
Bush couldn't answer my question. Instead, he said: ``As a blogger, I 
was finding things that were in the news that were of note, I 
thought.'' In response to a written question I posed, Mr. Bush said 
that rather than perform original research to support his claims, he 
instead ``relied upon readily available sources on the internet.'' That 
would be the prestigious internet. Really? Really? From a nominee for 
the circuit court?
  This begs the question: How did Mr. Bush find these articles? Does 
the nominee consume a steady diet of disinformation and conspiracy 
theories? I asked him that question in writing. Mr. Bush responded that 
he did not remember how he came upon those

[[Page 11125]]

sources and that, in fact, aside from the articles he quoted, he did 
not recall reading any articles from those sources, despite the fact 
that he linked to and quoted liberally from conspiracy-minded websites 
many, many times in his writings.
  Despite Mr. Bush's claims that he can't remember how it was that 
World Net Daily found its way onto his computer screen and despite his 
claim that he can't recall how he discovered and then later cited the 
writings of a birther conspiracy theorist, I suspect that in Mr. Bush's 
case, the simplest explanation is probably the right one. I suspect the 
reason Mr. Bush quoted from sources like World Net Daily so frequently 
is that Mr. Bush frequented those sources, that he frequently read the 
material they published, and I suspect he enjoyed it. That is just a 
suspicion based on my judgment.
  The fact that a man who anonymously wrote inflammatory and offensive 
blog posts and who consumed information from sources that routinely 
publish lies and racially insensitive material could be confirmed to a 
lifetime appointment on one of the U.S. courts of appeals should shock 
the conscience of each and every Member of the Senate, no matter what 
your politics are.
  I have served on the Judiciary Committee for 8 years, and during that 
time I have had the opportunity to evaluate countless judicial 
nominees. I understand that each Senator has his or her own way of 
determining whether a nominee should be confirmed. Some Senators prefer 
nominees who embrace a judicial philosophy of originalism or strict 
constructionism, others reject that view. For some Senators, a 
nominee's view of the Second Amendment or Roe v. Wade serves as a 
litmus test.
  Setting aside the usual yardsticks by which we measure judicial 
nominees, Mr. Bush should strike each and every Member of this body as 
manifestly unqualified, by any measure. Through his writings alone--and 
I urge all of my colleagues simply to look at his writings on his blog 
or on his wife's blog that he wrote with a pseudonym. They are awful. 
They are disgraceful.
  Please, I beg my colleagues, read these and say to yourself: Are 
these writings the writings of a man--no matter what his leanings are 
in terms of how constitutional law should be decided, what his 
philosophy is, whether conservative, progressive, or liberal--how we 
can confirm someone to the circuit court, to a Federal judgeship for 
life, who writes anonymously these awful, incendiary things, relying on 
sources that are known for spreading hatred and linking to them. I 
don't think we have been here before. I don't think we have been here 
before.
  I would beg my colleagues, before you cast this vote--I believe you 
could not justify to your constituents, that you could not justify to 
your family--please read these blog posts by this nominee and check 
your conscience--not at the door, check it. This is one of those 
incredibly unusual circumstances where somebody comes before us who, I 
believe, is uniquely unqualified for the job.
  Thank you.

                          ____________________