Governors are sent by Him to punish the evildoers and praise the virtuous (1 Peter 2:14).

Congressional Record2017/7/19Senate | House | Extensions

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[Congressional Record Volume 163, Number 122 (Wednesday, July 19, 2017)]
[Pages S4061-S4073]
From the Congressional Record Online through GPO

                           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 [[Page S4062]] 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.”

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.” [[Page S4063]]

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 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 [[Page S4064]] 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 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 [[Page S4065]] 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 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. [[Page S4066]]

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.

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. [[Page S4067]] Healthcare

Mr. MERKLEY. Mr. President, the most important three words in our Constitution are the first three--“We 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. 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 [[Page S4068]] 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 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 [[Page S4069]] 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 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 [[Page S4070]] 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 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 [[Page S4071]] 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, “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 [[Page S4072]] 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 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 [[Page S4073]] 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. ____________________

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