S2216 CONGRESSIONAL RECORD — SENATE April 3, 2019 nominations because it is taking too I look forward to this dialogue, and I The question is, Is it the sense of the long, and so they made a proposal. It look forward to the day we can get this Senate that debate on the nomination was 2 hours, equally divided—so it issue resolved so we can get back to of Jeffrey Kessler, of Virginia, to be an would actually be 1 hour—for district the work of legislation because we Assistant Secretary of Commerce shall court judges, 8 hours for other nomi- can’t even get to legislation right now be brought to a close? nees, which again equally divided because we are blocked on nomina- The yeas and nays are mandatory would actually be 4 hours total for tions. So let’s get the nomination issue under the rule. other lower nominees, 30 hours for cir- resolved, as we have for two centuries, The clerk will call the roll. cuit court, Supreme Court, Cabinet of- and then let’s get on to legislation and The senior assistant legislative clerk ficers. finish the task. called the roll. Republicans joined with Democrats I yield the floor. Mr. THUNE. The following Senator is in 2013 and with 78 votes at the begin- I suggest the absence of a quorum. necessarily absent: the Senator from The PRESIDING OFFICER (Mr. ning of President Obama’s second Mississippi (Mrs. HYDE-SMITH). term—and may I remind this body, Re- PERDUE). The clerk will call the roll. Mr. DURBIN. I announce that the The senior assistant legislative clerk publicans were not excited about Presi- Senator from California (Ms. HARRIS) is proceeded to call the roll. dent Obama’s second term—Repub- necessarily absent. licans joined with Democrats on this Mr. COTTON. Mr. President, I ask unanimous consent that the order for The PRESIDING OFFICER. Are there one principle: Every President should any other Senators in the Chamber de- be able to hire their own staff and their the quorum call be rescinded. The PRESIDING OFFICER. Is there siring to vote? staff not be blocked. When the Amer- The yeas and nays resulted—yeas 95, ican people vote for a President, this objection? Without objection, it is so ordered. nays 3, as follows: body should respect the vote of the Mr. COTTON. Mr. President, we raise [Rollcall Vote No. 58 Ex.] American people and allow that Presi- this point today, not just because of dent to hire their staff. Now, when YEAS—95 what has happened to Donald Trump’s President Trump was elected, Demo- Alexander Fischer Peters nominees over the last 2 years, but we Baldwin Gardner Portman crats have 128 times blocked President reached this point because 16 years ago Barrasso Graham Reed Trump from getting his nominees—128 Bennet Grassley the Senator from New York started Risch times. Blackburn Hassan Roberts this Senate down a path that was un- I have, for now 2 years, met with my Blumenthal Hawley Romney precedented in 200 years. For 200 years, Blunt Heinrich Democratic colleagues, and I have Rosen any President’s nominees got an up-or- Booker Hirono Rounds asked, let’s put back into place exactly down vote. That was the custom, the Boozman Hoeven Rubio what Republicans voted with Demo- Braun Inhofe Sasse unwritten rule, if you will. Brown Isakson crats to do. I am asking Democrats to Schatz Burr Johnson Starting in 2003, specifically geared Schumer now vote with Republicans to do that. Cantwell Jones toward a brilliant young lawyer named Scott (FL) They have said no for 2 years. Capito Kaine Miguel Estrada, the Senator from New Scott (SC) So I simplified the proposal and said: Cardin Kennedy York warped those unwritten rules and Shaheen Let’s just make it straightforward and Carper King customs. That has brought us to where Casey Klobuchar Shelby simple, taken from the same principles Sinema we are today. So today Senator SCHU- Cassidy Lankford Harry Reid put forward under Presi- Collins Leahy Smith MER will reap what he sowed. I will call Stabenow dent Obama. Let’s make that perma- Coons Lee it Miguel Estrada’s revenge. Cornyn Manchin Sullivan nent, no matter who the President is I yield the floor. Cortez Masto Markey Tester now or in the future. Let’s make it Cotton McConnell Thune I suggest the absence of a quorum. Tillis consistent and straightforward. The PRESIDING OFFICER. The Cramer McSally I was told no by every single Demo- Crapo Menendez Toomey clerk will call the roll. Cruz Merkley Udall crat, with this one exception. I will The senior assistant legislative clerk Daines Moran Van Hollen vote for that proposal as long as it proceeded to call the roll. Duckworth Murkowski Warner starts in January of 2021. I am glad you Mr. MCCONNELL. Mr. President, I Durbin Murphy Whitehouse Republicans joined with Democrats, Enzi Murray Wicker ask unanimous consent that the order Ernst Paul Wyden they would say, to help President for the quorum call be rescinded. Feinstein Perdue Young Obama get nominees, but we will not The PRESIDING OFFICER. Without NAYS—3 help President Trump and will block objection, it is so ordered. him all the way through. Now, if you Mr. MCCONNELL. I ask unanimous Gillibrand Sanders Warren want to open this up for 2021, we will be consent that the mandatory quorum NOT VOTING—2 glad to be able to help. call be waived. Harris Hyde-Smith I want to reiterate that Republicans The PRESIDING OFFICER. Is there believe whoever the President is, when objection? The PRESIDING OFFICER. On this the American people select a Presi- Without objection, it is so ordered. vote the yeas are 95, the nays are 3. dent, they should be able to hire their CLOTURE MOTION The motion is agreed to. staff. I wish my Democratic colleagues The cloture motion having been pre- The Democratic leader. believed the same thing. Because of sented under rule XXII, the Chair di- Mr. SCHUMER. Mr. President, this is that, we are making a change today. I rects the clerk to read the motion. a very sad day for the Senate. At a have worked for months, meeting with The senior assistant legislative clerk time when Leader MCCONNELL brags Democratic colleagues, trying to find read as follows: about confirming more judges than some way we could come to an agree- CLOTURE MOTION anyone has done in a very long time, ment as was done in 2013, where Repub- We, the undersigned Senators, in accord- he feels the need to invoke the terribly licans and Democrats came together to ance with the provisions of rule XXII of the destructive and disproportionate proce- resolve this. I have been rebuffed for 2 Standing Rules of the Senate, do hereby dure of the nuclear option in order to years. Not a single Democrat has been move to bring to a close debate on the nomi- fast-track even more of President willing to join us in this, not a single nation of Jeffrey Kessler, of Virginia, to be Trump’s ultraconservative nominees to an Assistant Secretary of Commerce. one. That is unfortunate. the Federal bench. Mitch McConnell, Steve Daines, John Before I discuss that in greater de- At the end of the day, we will try to Thune, John Cornyn, James M. Inhofe, restore this body back to how it used Pat Roberts, Mike Crapo, Chuck Grass- tail, I want to note for the record that to function for two centuries, when ley, Richard Burr, John Barrasso, Democrats were prepared to confirm every President was allowed to get a Jerry Moran, Roy Blunt, Shelley the nomination of Mr. Kessler by unan- hearing for their nominees and get a Moore Capito, John Boozman, Johnny imous consent, so the cloture vote we vote in the Senate. For two centuries, Isakson, Thom Tillis, John Hoeven. had was unnecessary. we functioned that way. I think it is The PRESIDING OFFICER. The If you have been listening to Sen- not unreasonable to function that way mandatory quorum call has been ators debate this issue in recent days, again in this body. waived. you have heard a lot of claims and

VerDate Sep 11 2014 04:33 Apr 04, 2019 Jkt 089060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G03AP6.011 S03APPT1 April 3, 2019 CONGRESSIONAL RECORD — SENATE S2217 counterclaims about cloture votes, far-right Supreme Court nominees, and Two hours for a lifetime appointment . . . about rates of confirmation for circuit then have candidate Trump pledge to is unacceptable. and district courts in different Con- only nominate people on that list. And She said: gresses, about judicial vacancies and not just the Supreme Court—the Fed- Two hours for a lifetime appointment, with other arcane things that may not eralist Society is and continues to be a huge influence on people’s lives, is unaccept- sound very illuminating. So I want to huge influence on nominees to the cir- able. It’s ridiculous. It’s a mockery of how start by making clear what this debate cuit courts. this institution should work. is really all about. I want to issue a No other Presidential candidate had It is not just the courts. There are warning about what is at stake in this so willingly and openly outsourced ju- many examples in the executive branch fight. Underneath all of the statistics, dicial nominations this way, but it as well. Ann Marie Buerkle, nominated what Leader MCCONNELL, President mollified the hard right, and the Presi- to chair the CPSC—just today the Post Trump, and Republicans in the Senate dent has dutifully nominated people reported that this nominee blocked ac- are trying to do is use the courts to from the list to the Supreme Court. He tion at the Commission to recall hun- adopt the far-right agenda that Repub- has made similarly ideological choices dreds of thousands of potentially defec- licans know they cannot enact through for the circuit and district courts. tive baby strollers, even in the face of the legislative process. This is an alarming strategy because, reports that they caused ‘‘potentially Why can’t they? Because it is an over the last 2 years, President Trump life-threatening injuries.’’ She even agenda the American people reject, an has nominated and Senate Republicans kept Democratic Commissioners in the agenda set by the far right, which Re- have advanced the most unqualified dark about the investigation. Of course, there is Chad Readler, who publicans in the Senate follow. and radical nominees in modern times. led the charge to end preexisting condi- Senator MCCONNELL and Republicans Consider the nomination of Ryan in Washington understand that they Bounds, who misled the Oregon Sen- tion protections. President Trump and Senate Republicans, the self-declared will never persuade enough Americans ators’ bipartisan judicial selection ‘‘party of healthcare,’’ rewarded him to support backward goals like ending committee about his controversial by overwhelmingly confirming him to women’s reproductive freedom, taking writings in the past, writings in which a lifetime position as a circuit court away healthcare, rolling back civil he dismissed efforts to increase diver- judge. Despite Mr. Readler’s con- rights, making it more difficult to sity as mere ‘‘race-think,’’ criticized spicuous role in trying to curtail vote, or abolishing safeguards for clean Stanford University’s suggested pun- Americans’ healthcare, no Republicans air and clean water. ishment for students who defaced an were willing to stand up to President Instead, they decided there was an- LGBT pride statue, criticized a student Trump and vote against his confirma- other route to achieving their policy group for protesting against a hotel company that had fired workers trying tion. goals, one that requires neither public At this point, people listening to to unionize, and disregarded the value support nor legislation: the courts. So these proceedings might be asking of university disciplinary actions Republicans, pressured by the hard themselves: What happened when a against students accused of sexual vio- right and by wealthy, special interest Democratic President occupied the donors, launched a sustained effort to lence. Five of the seven members of Or- White House? pack the courts with very conservative egon’s in-State screening committee, The answer is that Republicans, led judges, preferably young ones, who including the committee’s chair, said by Senator MCCONNELL, remained would sit on the bench for decades. they would not have recommended undeterred. In such times, they chose These prospective judges were identi- Bounds had they known of his college to employ the extraordinary tactic of fied as early as law school, having sig- writings when they first interviewed denying confirmation to a Democratic naled their hard-right leanings through him. Fortunately, it became clear that President’s nominees in order to hold their writings or membership in con- a few Republicans would not support vacancies open until a Republican servative groups like the Federalist Mr. Bounds on the floor, and the nomi- could regain the Presidency. It was an Society. nation was withdrawn. audacious and insidious gambit, a way Nominees like these started to ap- Consider the nomination of Thomas to nullify a Democratic President’s pear during the George W. Bush admin- Farr, who has an extensive record de- power to fill judicial vacancies. istration. Take Miguel Estrada, a Bush fending discriminatory voting laws and We saw this tactic during the Clinton nominee with no judicial experience, racial gerrymandering in North Caro- administration, when Republicans on who held membership in the Federalist lina. He is also credibly alleged to have the Judiciary Committee killed a num- Society but had no writings and played a role in the voter suppression ber of President Clinton’s quite mod- claimed he had never even thought efforts of the Jesse Helms campaign, erate judicial nominees, even without about Roe v. Wade. including sending over 100,000 postcards the basic courtesy of a hearing. Or take William Pryor, another Bush to heavily African-American precincts We saw it again during the Obama nominee, who called Roe ‘‘the worst that ‘‘falsely told voters they could be administration, when Republicans used abomination in the history of constitu- found ineligible to vote based on sev- the filibuster and other forms of delay tional law’’ and who argued that States eral conditions involving place and to more than double the number of cir- should have the right to criminalize length of residence.’’ Amazingly, after cuit and district court vacancies. Dur- homosexuality. something as despicable as that, Presi- ing Obama’s last 2 years in office, the Or take Charles Pickering, who advo- dent Trump and Leader MCCONNELL Republican Senate confirmed fewer cir- cated a reduced sentence for a man pushed hard for his nomination, but it cuit court nominees than any Congress convicted of burning a cross in the could not withstand scrutiny by the in 70 years. front yard of an interracial couple. Senate and was ultimately withdrawn Then, in March of 2016, Senator Before the Republicans launched due to the united Democratic opposi- MCCONNELL and Senate Republicans their campaign to remake the courts, tion and a few conscientious Repub- took this maneuver to a new Machia- neither party would have dared put for- lican Senators. vellian low. They refused to even con- ward such radical nominees. I would note that in the cases of both sider President Obama’s nomination to Starting with his campaign and into Mr. Farr and Mr. Bounds, the Repub- the Supreme Court of the United his Presidency, President Donald lican concerns emerged only at the end States, Circuit Judge Merrick Garland, Trump has been captive—totally cap- of postcloture debate time, which Re- one of the most respected jurists in the tive—to the conservative campaign to publicans now propose to limit. Had we Nation, a man known not only for his take over the courts. Before he was a had only 2 hours, horrible nominees— judicial excellence and perfect judicial Presidential candidate, Mr. Trump had way beyond the bounds of normal nom- temperament but his moderation. In been a Democrat and a person with no ination and discourse, even from con- fact, Senator Orrin Hatch, a conserv- fixed judicial philosophy, so conserv- servatives—like Farr, like Bounds ative’s conservative and the former atives didn’t trust him. He and his ad- would be sitting on the courts today. chairman of Judiciary Committee, had visers came up with a solution: Ask the I agree with what my colleague Sen- previously endorsed Judge Garland for Federalist Society to produce a list of ator KLOBUCHAR has said: the Supreme Court.

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But the merits didn’t concern Sen- dedicated public servants like former MCCONNELL’s debasement of the Sen- ator MCCONNELL. His cynical strategy NLRB Chair Mark Pearce to languish ate. To do this for such blatantly polit- required Republicans to block the Gar- for months or even years. ical ends is simply unworthy of this in- land nomination for almost a year It is actually a little surprising that stitution. until after President Obama’s second Leader MCCONNELL and his Republican I yield the floor. term ended, and that is exactly what colleagues would draw attention to the The PRESIDING OFFICER. The ma- they did. It was widely condemned as a subject of executive nominees now, jority leader. naked power grab that nullified the given the appalling history of incom- Mr. MCCONNELL. One of the advan- President’s constitutional authority. It petence, corruption, and venality tages of having been around the ‘‘ad- was a terrible, deeply lamentable mo- among President Trump’s so-called vice and consent’’ process for as long as ment for our democracy and our Con- ‘‘best people,’’ not to mention the fact I have is that I know a little history. I stitution. Yet, as the New York Times that there are hundreds of vacancies was actually here as a young staffer on reported, Senator MCCONNELL said it the President can’t even be bothered to the Judiciary Committee when Richard was one of his ‘‘proudest achieve- fill. Nixon appointed two Supreme Court ments.’’ Staffing the government is serious Justices who were defeated. During After President Trump took office, business and so is the system of justice most of those years, our Democratic Republicans sensed an opportunity to assigned to the courts by our Constitu- friends were in the majority here in the grease the conveyer belt even more. tion. They both deserve better than the Senate. They could have done whatever Senator MCCONNELL ordered the Judi- Senate Republicans’ cynical, partisan they wanted to on the executive cal- ciary Committee chairman to do away efforts to turn the Senate into a con- endar to slow down, obstruct, and pre- with the longstanding practice that veyer belt for ideological conserv- vent Republican Presidents from hav- Senators be consulted about district atives. ing nominations confirmed. court nominees in their home States. The notion that President Trump’s I can remember during the Clinton judicial nominees have been treated The blue-slip tradition ensured that ju- years the urging of both Senator unfairly is simply false. There is no dicial nominees reflected the ideology Daschle and Senator Lott—when my truth to it, as all of these statistics and values of the State to which they party was in the majority—to invoke that I have talked about have shown. were nominated. It provided some cloture on circuit court nominees What Republicans really want to see is healthy counterbalance against nomi- whom I opposed in order to keep the the elimination of yet another norm of nees who were outside the mainstream Senate from developing a process of the Senate so they can automate and from either party or were lacking in filibustering the executive calendar, expedite the nomination process with- proper qualifications. Thanks to Sen- which had never been done before. out a modicum of debate. They are all The clearest example of why it was ate Republicans, led by Senator for ‘‘consent’’ with no ‘‘advice.’’ With MCCONNELL, that protection is now his- never done before is the Clarence all undue haste, they want to pack the Thomas nomination—the most con- tory. courts with partisan warriors, not im- So when Republicans complain about troversial nomination for the Supreme partial jurists. It is outrageous. Court in history, with the possible ex- Democratic handling of nominees, Democrats have a different view of ception of Brett Kavanaugh. He came there is no other word for it but hypoc- who should sit on the Federal bench. out of committee with a dead-even risy. You don’t have to take my word We have a different view of the role of vote. They could have killed him in for it. According to the Congressional this Chamber. Our judicial system committee. He went to the floor and Research Service, more circuit judges works best when we hold nominees to was confirmed 52 to 48. We all know it have been confirmed in the first 2 years three simple standards: excellence, only takes one Senator, just one, to of the Trump administration than in moderation, and diversity. These are make us get 60 votes on something. the first 2 years of any Presidency not ideological litmus tests. They are Joe Biden and Ted Kennedy were since at least the Truman administra- the pillars of a healthy system of jus- hard over against Clarence Thomas, tion. tice. They are the benchmarks by but nobody—not one of the 100 Sen- The majority leader himself has cele- which we can rest assured that the men ators—said you have to get 60 votes. brated the pace of confirmations. He and women who are appointed to the bragged about it to the Heritage Foun- Federal bench will respect the rule of Clarence Thomas was confirmed 52 to dation. He said this to them a few law and execute their duties impar- 48 and has been on the Supreme Court months ago: tially. for 30 years. He would never have been We confirmed every circuit judge. We’ve It cuts both ways. When Republicans there if a single Senator—just one—had now done 29 circuit judges. That is a record are prepared to act in good faith and said you had to get 60 votes. My for this quick in any administration in his- advance nominees of high caliber, we friends, I call that a pretty firm tradi- tory. are ready to give them the consider- tion that you don’t filibuster the exec- Those are Leader MCCONNELL’s ation they deserve. For generations, utive calendar. Was it possible? Yes, it words, not mine. the Senate has done the work of the was possible. It just wasn’t done. Now we have to change the rules, American people through consensus, When did all of this start? Well, the even though you have confirmed more through compromise, and through co- junior Senator from New York got circuit court judges than anyone in operation. It has been a place where elected in 1998. George W. Bush gets history. That is a shame. That is a dis- seemingly impossible disagreements elected in 2000. The alarms go off. They grace. That is not the Senate we want. have found sensible solutions. Indeed, are going to appoint a bunch of crazy For Leader MCCONNELL to brag about the legacy of the Senate is the story of rightwingers to the circuit courts. confirming more judges than ever be- debate—ample debate—followed by So my good friend the Democratic fore and then to complain about Demo- compromise. It is in large part thanks leader, at a seminar or a meeting, in- cratic obstruction and say that the to the rules that govern how this vited a couple of people named Lau- process is broken so you have to Chamber works. It is crucial that those rence Tribe and Cass Sunstein—two change the rules is the height of hypoc- rules not be twisted or abused for par- rather famous liberal law professors— risy. tisan advantage. and they had a discussion about what Leader MCCONNELL and Senate Re- The majority, by taking yet another to do about these awful rightwing publicans also complain about the pace step to erode that legacy, risks turning judges who are going to be sent up. of confirmation for President Trump’s this body into a colosseum of zero-sum The conclusion was to open the tool- executive branch and independent infighting—a place where the brute box, take out whatever tool would Agency choices. They conveniently power of the majority rules, with little work, and save America from these omit Republicans’ sorry record of ob- or no regard for the concerns of the mi- kinds of people. And so they did. The struction of nominees to Democratic nority party, and where longstanding poster child for that was Miguel seats at important agencies like the rules have little or no meaning. Estrada, who they said openly they NLRB, the FDIC, and the SEC, which I am so sorry my Republican col- were afraid was going to give President have suffered as Republicans caused leagues have gone along with Senator Bush the opportunity to make the first

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