[Congressional Record Volume 163, Number 193 (Tuesday, November 28, 2017)]
From the Congressional Record Online through GPO
The PRESIDING OFFICER. Under the previous order, there are 90 minutes
of debate remaining on the Katsas nomination, equally divided between
the leaders or their designees.
The Senator from Oklahoma.
Mr. LANKFORD. Mr. President, I want to address this body and talk
about an issue that we do not talk about enough--the deficit. It is an
issue that, for whatever reason, we have stopped talking about in
Washington, DC. We talk about tax policy, which we should. We talk
about disaster relief areas, which we should. We talk about healthcare
policy, which we should, and a lot of other things. We have stopped
talking about the debt and deficit, and I think that is a mistake for
You see, after 2011, the trend moved from a high point. Deficit
spending that year was $1.3 trillion--overspending in a single year.
After that point, the deficit went down a little bit each year until
2015. In 2016 our deficit number--that is a single year of
overspending--started going back up. It went up in 2016, and it went up
again in 2017. It is turning in the wrong direction. As you will recall
and as many people in this body will recall, deficits were a major
topic for us starting in 2010. Each year, Congress was trying to find
ways to be able to reduce the deficit. That does not seem to be the
What I bring is a set of solutions and a set of ideas. How do we get
out of this? Are there bipartisan solutions to actually deal with
deficit overspending? There are priority things that we need to spend
money on, and we should spend money on those things. Yet, as to the
things that are nonessential for us and on which we might all find some
way to agree that there is a better way to be able to spend our
dollars, we should.
So this week I have produced our third annual “Federal Fumbles”
book. We call it “100 ways the Federal Government has dropped the
ball.” None of these should be all that controversial, though we will
not agree with all of them. But there are simple ways to look at what
the Federal Government is doing, what it is not doing, where we are
spending, where we are overspending, and where additional oversight is
needed. There is no problem in this country that can't be solved, and,
certainly, our deficit is an issue that can be solved. We just have to
commit to each of us making the decision that this is actually
important and that we are going to try to resolve this to try to get us
back toward balance.
I have lumped all of these issues from this book back into a whole
series of different process things because each one of the 100 things
that we identify is not just a stand-alone; it is part of a bigger
problem. So I have put them together into budget process reforms and
grant process reforms, which allow for more transparency in how
decisions are made and as to what decisions have been made. I would
say, as well, that there are Senate rule changes that are going to be
needed to be able to resolve any of these issues. We put together these
four big blocks to be able to ask: What are we actually dealing with?
Let me just give you a couple of ideas.
If we are going to actually deal with some of the budget issues, we
are going to have to actually deal with the budget process. We are not
going to get a better product until we get a better process. Since
1974, the Budget Act has only worked four times, and every year the
American people have asked over and over: What just happened? How
come we are back in this budget fight? How come it is at the end of the
year? How come this is not resolved? Because we have a bad process--
that is why. Our process is not constitutional. It is the product of a
law that was put in the Budget Act. We need to be able to change that,
and I think there are some basic ways to be able to resolve that.
I would like to do budgeting and appropriations every 2 years. That
would give us more time to be able to do more oversight, and that would
give us more time for floor debate on it to be able to walk through
this. There are multiple other areas that need to be resolved, like
aligning our committees and other things that need to be done if we are
actually going to get budget work done. In the meantime, we need to be
able to push through what we can with the greatest efficiency, but,
long term, we are going to have to fix the broken process that we have.
We should fix the grant-making process. There has been a lot of
pressure to be able to move dollars toward grants because now we have
put more and more restrictions on contracting. Because there are very
few restrictions on grants, a lot of agencies are now spending more on
grants than they are on contracting, and they are pushing dollars out
the door with there being very little supervision.
We have to work on transparency. I am ashamed to say that for 6 years
I have pushed on a very simple bill called the Taxpayers Right-To-Know
Act. It passed unanimously in the House in 2 different years. It came
over to the Senate, and it got tied up. The Taxpayers Right-To-Know Act
is very simple. It asks every agency to list everything that it does.
What a shocking thing it would be to actually know everything that
every agency does--to be able to see what it does, what it spends on
it, how many employees it allocates to it, and how many people it
Every business in America can give a list of everything that it does
except for the Federal Government. We cannot. We should. It would give
the opportunity for agency heads to find out, before they start a
program, and to know if someone else already does it in the Federal
Government. I have talked to multiple agency individuals now, under two
different Presidents, who have said that they have started a program,
gotten it developed, committed people to it, and then a couple of
months or years later determined that somebody else was already doing
it. Even our agency folks do not know what the other agencies are
doing. This should be a simple, straightforward solution to be able to
help our agencies and to be able to help all of us have greater
supervision over the budget.
The fourth thing is dealing with Senate rule changes. If we do not
solve the issue of our nominations, we will never be able to get actual
legislation on the floor and get back to debate again. We have stopped
debating on major bills. We have stopped debating on small bills.
Because it takes so much time, it is easier to just not do it at all.
That is not what the American people sent us here to do. When we say
that the Senate cannot debate a topic, no one can believe it. That rule
doesn't get better based on inactivity. It gets better when we actually
fix the basic problem that we have, and that is getting us back to
debate and solving the nomination process. Let's actually get this
In saying all of that, all of the things that are in this book this
year are things that I and my staff and my team--and Derek Osborn, who
has led in all of the compilation of this on my team--have put
together. We have put together this basic package to say: Here are 100
items. Quite frankly, I would hope that all 100 Senators could go
through budget areas and that everybody could find 100 items and could
identify them and say: Let's compare our lists and then ask: What are
we going to do to be able to deal with the debt and deficit? How are we
going to deal with some of the spending and inefficiencies of the
Federal Government? We would probably have 100 different lists, but I
would bet that, of the 100 different lists, we would find a lot of
common ground, and we would actually start to solve some things.
What type of things did we find on our list this year? Let me give
you some examples.
The National Science Foundation did a grant this past year to study
the effects and how things are going for refugees in Iceland. Now, I am
sure that the country of Iceland would like to know how it is going for
their refugees, and maybe even the U.N. would like to know, but I am a
little stunned that the National Science Foundation used American tax
dollars to study refugees in Iceland.
The National Endowment for the Arts did a grant this past year to
help pay for a local community theater in New Hampshire in its
performance of “Doggie Hamlet.” “Doggie Hamlet” is an outdoor
presentation in which a group of people yells and sings around a group
of sheep and sheep dogs. I have watched the performance, and I think it
is fine if the folks of New Hampshire want to do that performance. I am
just not sure why the people of Oklahoma are being forced through their
Federal tax dollars to pay for the production of “Doggie Hamlet.”
Last year, the Department of Defense moved some equipment into Kuwait
to be able to give it to the Iraqi army. So $1 billion worth of
equipment was moved into Kuwait to give it to the Iraqi army--Humvees,
small arms, mortars. All of that is fine, as we were helping to equip
the Iraqi army to allow them to be able to defend themselves. The
problem is that we lost track of them somewhere between Kuwait and
Iraq, and the DOD doesn't know what happened to $1 billion of equipment
after it was delivered to Kuwait.
The IRS has had multiple issues that we have tried to identify in
different segments of this. One is that several years ago we noticed
that the IRS was rehiring employees whom it had fired--the employees
who were not paying their income taxes but were working for the IRS or
the employees who were using their positions to spy on other Americans
and pull up their tax information just because of their own interests.
It is a fireable offense at the IRS--and it should be--to violate an
American's privacy. The problem is that the IRS has started rehiring
those same people right back. I don't know many companies that fire
somebody and then later decide they are going to change their minds and
rehire him, but, apparently, the IRS has become proficient at that. We
identified it several years ago. The IRS said it would stop it. We did
a check on that last year, and guess what. The IRS is still doing it--
rehiring the employees it has fired, some of them even with their files
that are stamped “do not hire.” The IRS hired them anyway. We have to
be able to stop that.
The IRS also did a study, through a program that it has, to be able
to research tax compliance--not of changing tax rules, just of how
people are complying with the tax rules and evaluating: Are they paying
the correct amount of tax? Quite frankly, our tax system is so
incredibly complicated that it is hard to be able to track what is the
right amount, but the IRS should be able to look at it and determine
whether someone is paying the right amount based on those figures. The
IRS has developed some programs to be able to recommend, but the
problem is that it has not implemented those programs. Over $400
billion of taxes has never been collected by the IRS because it has not
implemented the recommendations that it has in front of it already.
The IRS has also had an issue that we are trying to deal with, along
with several other entities by the way: Who is alive and who is not
alive? You see, the Social Security Administration keeps track of
something called the Death Master File. It sounds wonderful; doesn't
it? The Death Master File basically says who has passed away in America
and what Social Security number is not functional anymore. The IRS is
not fully implementing that list and, at times, it is still sending
checks to people who died years ago. Then, some fraudulent people take
a Social Security number from someone who has passed away and file a
return on that Social Security number in January or February, and the
IRS sends them a check simply because it has not listed that this
person has passed away and that the Social Security number is not
active. Yet the IRS is not the only one.
We also identified in the SNAP program--what some people call the
food stamp program--that there are thousands of retailers who are using
false Social Security numbers from people who have passed away. Last
year, $2.6 billion was sent out to SNAP retailers based on the Social
Security numbers of the people who had passed away or on the numbers
that are not operable. Those are things that are fixable. There is $2.6
billion of fraud that is in the system.
We have asked the question about immigration, and immigration has
been an important topic here. We talk about immigration as well and not
just of the financial portion of it but of the fumble portion of things
that are actually going wrong in immigration currently. A lot of
folks--and some folks even in this body--say: If we will just enforce
the law as it exists and build a fence, we will be fine. The problem is
that 66 percent of the people who are in the country illegally came
into the country legally, with a legal visa, but they overstayed the
visas. They never left.
After 9/11, the 9/11 Commission said that one of the major aspects in
dealing with immigration was to do an entry-exit visa system so that we
would know who they were when people came in, and we would also know
when they left. That was a recommendation from the 9/11 Commission, but
it has still not been done a decade and a half later.
If we are going to deal with immigration, one of the key things that
we have to have is not just a wall or a fence or some sort of barrier.
We also have to deal with when people come in and when they leave under
legal visa systems. I have heard comments about hiring more Border
Patrol folks and more ICE folks. That is OK, fine. I am good with that,
actually, but here is the problem. With the current system that is set
up, it takes over 450 days to hire one person as a Border Patrol person
because the process is so convoluted--450 days. What if you would like
to apply for a job and you wouldn't hear back about it for a year and a
What about if we are going to add more immigration attorneys? We have
a half-million-person backlog in our immigration courts right now. What
if we were to hire more judges for that process? Great idea. Guess how
long it takes to hire more judges in the immigration court? It takes
742 days right now to be able to hire a judge to add to the immigration
courts. Our problems are not just in immigration. There are structural
problems in the Federal Government right now in hiring, oversight, and
in managing the reports.
I mentioned the IRS's not implementing one of the reports they have.
There is also an issue with some other agencies that will put on the
back of Federal vehicles their phone number with this question: How is
my driving? What a great idea that is for a Federal vehicle. The
problem is that when we looked at it, we found out that the agencies
never actually read the reports that came in. If people called in and
said that this particular car number is driving crazy, no one is
actually looking at it. It is the fear that Americans have that no one
is really listening to them in the Federal Government.
Claire McCaskill and I just worked to be able to pass something in
this body to try to deal with solving this basic question: Can agencies
ask: How am I doing?
When most of us get a rental car or a hotel room online, we will get
an email after we check out of the room or stop using the rental car
asking: How is our service? How can we improve?
Do you know that Federal agencies can't do that or that it has become
so complicated that they can't produce a three-question e-survey to
send out to people saying: How are we doing in Social Security
disability? How are we doing in the Veterans' Administration? How are
we doing in our HUD assistance to you? The reason for that is the
Paperwork Reduction Act, of all things. An old law that was supposed to
help us is actually now in the way, now in the modern age, of our
trying to do basic surveys. We need to be able to resolve that. That is
something this body can lead on to be able to change.
There are a lot of things we want to be able to identify and to say
that we can do better. This is our list. Quite frankly, this is our to-
do list for the next year, just as the previous two volumes have been.
We have seen some things that we have been able to accomplish over the
last couple of years from previous “Federal Fumbles” books, but we
can't get started on them until we actually identify them and say: That
is a problem. How are we going to fix it? Our simple question for the
rest of this body is this: Here is our list; what is yours? What are
the things we are working on? What are the issues that we are actually
going to get done and solve for the American people? What are the crazy
stories and things we are wasting money on? If we only identified it
and said: Let's stop that, we could and would. Let's do it together.
There is no reason that reducing the deficit should have to be an
issue that has become a partisan issue. Deficits and the growing debt
affect every single American. So let's work on it together, and let's
stop finding ways to not work on it and find areas of common ground
where we can work on it.
Let's fix inefficiencies in Federal Government hiring. Let's fix
inefficiencies in our system. We have a tremendous number of great
Federal employees who are all around the country and who work extremely
hard for the American people every day and do great work, but they are
trapped in a system that slows them down, that prevents them from being
as efficient as they would like to be. Let's help them out by fixing
the broken things that are in these agencies and systems. Let's set
them free to be able to serve people the way they want to be able to
There are things we can do. Let's get busy doing it. If you are
interested in knowing more about “Federal Fumbles” go to our website
at lankford.senate.gov. We will send a copy over. We will send you a
link to our website because it is cheaper and we will not have to print
it off, and you can look at it online.
The issue of the day is this: Let's find out what your list is; we
have started ours.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Ms. HIRONO. Mr. President, the judges Donald Trump appoints to
lifetime positions on our Federal courts will be a lasting legacy, and
he is determined to do whatever it takes to place as many nominees with
an ideologically driven agenda on the bench as possible.
Today the Senate is debating whether to give Gregory Katsas a
lifetime appointment to serve on the U.S. Court of Appeals for the DC
Circuit. Throughout his career, including as Deputy White House Counsel
under Donald Trump and as a senior official in the Justice Department
under George W. Bush, Mr. Katsas has demonstrated a profound
conservative bias that is inappropriate for service on the country's
second most important court.
As Deputy White House Counsel, Mr. Katsas has been deeply involved in
crafting the legal justification for many of the Trump administration's
most controversial policies. He also played a key role in deciding
which court cases the administration would support or oppose and
recommending candidates for various executive and judicial
The legal issues he has managed, the advice he has given, and the
appointments he has recommended raise serious concerns about whether he
should receive a lifetime appointment to the Federal bench.
In the early days of the administration, Mr. Katsas participated in
crafting the legal justification for the President's Muslim ban, a
policy at odds with the Constitution and our values as a nation. Mr.
Katsas has also been involved in orchestrating the administration's
opposition to LGBTQ rights in the courts. In particular, he openly
admits his role in the Justice Department's decision to argue in a case
before the Second Circuit that title VII in the Civil Rights Act of
1964 does not prohibit discrimination on the basis of sexual
orientation. This position is inconsistent with the Equal Employment
Opportunity Commission's 2015 guidance and with a recent en banc
decision from the Seventh Circuit Court of Appeals.
During his confirmation hearing, Mr. Katsas testified that he was
involved in the administration's decision to file an amicus brief in
the Supreme Court case of Masterpiece Cakeshop v. Civil Rights
Commission. He thus supports the position that a private business
should be able to refuse to sell a wedding cake to a gay couple.
By elevating a corporation's religious views over the rights of their
customers, Mr. Katsas and the Trump administration argued that
businesses should be able to say that their work is an expression of
their religious beliefs. This would allow them to discriminate against
certain customers and turn our system of antidiscrimination protections
in public accommodations on its head. These actions and positions
should disqualify Mr. Katsas from serving on the DC Circuit.
But there is more.
We can also trace his record of pushing a partisan, ideological
agenda during his time in the Bush Justice Department. In Hamdan v.
Rumsfeld, Mr. Katsas argued that the military commissions the Bush
administration established after 9/11 were legal and consistent with
the Uniform Code of Military Justice and the Geneva Conventions. In
Boumediene v. Bush, Mr. Katsas also argued that people deemed enemy
combatants and detained at Guantanamo could not challenge their
detention on habeas corpus grounds. The Supreme Court repudiated these
arguments in their landmark decisions in both cases.
Mr. Katsas was also the public face of the Bush administration's
opposition to the Native Hawaiian Government Reorganization Act, also
known as the Akaka bill. As the Principal Deputy Associate Attorney
General in the Bush administration, Mr. Katsas testified in Congress
that the Akaka bill was unconstitutional. He went so far as to say that
it would “create a race-based government offensive to our Nation's
commitment to equal justice and the elimination of racial distinctions
What was really offensive was that his testimony was legally wrong
and insulting to a Native people, the Native Hawaiians. In rebuttal, a
bipartisan trio of highly respected former DOJ officials said in
written testimony that Mr. Katsas failed to provide a credible and
coherent legal argument against the Akaka bill. They argued that his
testimony presented “a caricatured view of the text of [the bill] and
the governing law, and should not be considered an authoritative guide
for resolving legal disputes in this area.”
I agree. The Akaka bill did not confer status to a group of people
based on race and ancestry. It did so by virtue of residency and
sovereignty. With no grounding in fact or law, Mr. Katsas advocated
treating Native Hawaiians differently from other indigenous people.
Mr. Katsas' position on Native Hawaiian rights is of particular
concern at a time when the DC Circuit could hear legal challenges to
the 2016 Interior Department rule through which the Native Hawaiian
community could reestablish a government-to-government relationship
with the Federal Government.
Mr. Katsas has a disturbing record of pushing a partisan conservative
agenda not based on sound law that has no place in the DC Circuit. We
cannot simply ignore his record and decouple his past actions from the
person responsible for them. Mr. Katsas has clear policy preferences
that are red flags as to how he will decide cases should he be
confirmed to this lifetime position.
I urge my colleagues to oppose this nomination.
I yield the floor.
Mr. GRASSLEY. Mr. President, today the Senate is voting to confirm
Gregory Katsas to serve as U.S. circuit judge for the District of
Columbia Circuit. Mr. Katsas's 28-year legal career has prepared him
well to serve as a Federal judge. His nomination has garnered
widespread support in the legal community.
Mr. Katsas graduated with his A.B. from Princeton University in 1986
and from Harvard Law School in 1989. After graduating from Harvard Law
School, Mr. Katsas clerked for Judge Edward Becker on the Third Circuit
Court of Appeals and for Justice Clarence Thomas on the DC Circuit and
on the U.S. Supreme Court. Following his clerkships, Mr. Katsas joined
the DC office of Jones Day, where he worked in the issues and appeals
section of their litigation group.
From to 2001 to 2006, Mr. Katsas served as a Deputy Assistant
Attorney General for the Civil Division at the Department of Justice,
where he argued, briefed, and supervised a number of significant
appeals handled by the Federal Government. He then served as the
Principal Deputy Associate Attorney General from 2006 to 2008 and the
Acting Associate Attorney General from 2007 to 2008. In 2007, President
Bush nominated Mr. Katsas to serve as the Assistant Attorney General
for the Civil Division at the Department of Justice. The Senate
confirmed him by voice vote in 2008, and he served in that role until
the end of the Bush administration.
Mr. Katsas rejoined Jones Day as a partner in 2009, where he handled
many important litigation matters. In January of this year, Mr. Katsas
again left the private sector to serve the President as deputy counsel
in the White House Counsel's office.
One only has to look at his professional record to understand how
eminently qualified Mr. Katsas is to serve as a Federal appellate
judge. Over the course of 28 years, Mr. Katsas has briefed hundreds of
cases and argued more than 75 appeals, including three cases in the
Supreme Court and 13 cases in the DC Circuit, the court to which he is
I am pleased to support Mr. Katsas's nomination, and I urge my
colleagues to vote for his confirmation.
Mr. DURBIN. Mr. President, I rise in opposition to the nomination of
Greg Katsas to the DC Circuit Court of Appeals, but I want to begin
with some general observations.
This year, the Republican-controlled Senate has repeatedly fallen
short when it comes to serving as a meaningful check and balance in our
constitutional system. Senate Republicans have abandoned longstanding
norms of due diligence and careful scrutiny, all in the name of
advancing the agenda of President Trump.
We saw this when Senate Republicans voted in near lockstep to confirm
President Trump's Cabinet nominees. Republicans simply looked the other
way when nominees failed to pay all of their taxes, did not disclose
millions in assets, had conflicts of interest, or could not even answer
basic questions at their hearings. Senate Republicans have repeatedly
tried to rush through partisan bills in the dark of night. Remember
when they revealed the text of the TrumpCare bill just a few hours
before the Senate voted on it? Now Senate Republicans are trying to
pass massive tax cuts for the largest corporations and wealthiest
Americans, by ramming through an enormous bill with little debate and
public scrutiny of how the bill would explode the deficit and raise
taxes on many in the working class.
This pattern, of the Senate abandoning its responsibility to do basic
due diligence when it comes to the agenda of President Trump, has also
infected our process of considering judicial nominees. When it comes to
President Trump's judicial nominees, we are seeing the Senate's
constitutional responsibility of “advice and consent” turn into
“rush through and rubberstamp.”
All year, Senate Republicans have been removing guardrails that help
ensure that judicial nominees have the qualifications, temperament, and
integrity that we need for lifetime appointments to the Federal bench.
Don't just take it from me. Take it from the conservative Wall Street
Journal. I ask unanimous consent to have printed in the Record a
November 20 article from the Wall Street Journal entitled “Checks on
Trump's Court Picks Fall Away” at the conclusion of my remarks.
This article talks about the series of procedural changes Senate
Republicans have made this year to expedite Trump's judicial
nominations--most recently, the November 16 announcement by Senator
Grassley, the chairman of the Judiciary Committee, that he would hold
hearings on nominees who do not receive positive blue slips from both
home-State Senators, something that never happened under the Obama
administration. The article begins by saying:
The Republican head of the Senate Judiciary Committee has
curtailed one of the last legislative limits on a president's
power to shape the federal courts, giving Donald Trump more
freedom than any U.S. president in modern times to install
his judges of choice, legal experts said.
Consider the other changes Republicans have already made in just the
first year of the Trump administration.
First, President Trump subcontracted the selection of Supreme Court
nominees out to rightwing special interest groups like the Federalist
Society. President Trump publicly thanked the Federalist Society for
assembling a list of candidates from which Justice Neil Gorsuch was
selected. The White House even asked Leonard Leo of the Federalist
Society to call Justice Gorsuch to let him know he was a candidate for
the job. Never before had a President credited a special interest group
with serving as a de facto selection committee for the Federal
judiciary. For anyone who wonders what the Federalist Society is all
about, I urge you to watch the video of this group laughing and
applauding at their convention a few weeks ago when Attorney General
Sessions joked about meeting with Russians. It was shameful.
Senate Republicans also changed the rules of the Senate in order to
get Neil Gorsuch confirmed. He couldn't get 60 votes on the Senate
floor, so the Republicans changed the rules to make 50 votes the
threshold for appointments to the Supreme Court.
When it comes to lower-court nominees, the Trump administration and
Senate Republicans are doing half-hearted vetting at best. We are
constantly learning information that nominees initially failed to
disclose. For example, Alabama District Court nominee Brett Talley
failed to disclose that his wife was an attorney in the White House
Counsel's Office and that Talley had apparently posted online comments
defending the early KKK and calling for shooting death row inmates.
Court of Federal Claims nominee Damien Schiff failed to disclose that
he had called Supreme Court Justice Anthony Kennedy a “judicial
prostitute” in a blog post. North Carolina District Court nominee
Thomas Farr reportedly failed to fully disclose his role in an African-
American voter suppression effort during the 1990 campaign for Senator
Jesse Helms. Yet all of these nominees were reported out of the
Judiciary Committee on party line votes.
There are other changes that Republicans have made to the nominations
process this year. Republicans have decided not to wait for the
American Bar Association to do their nonpartisan peer review of a
nominee's qualifications before holding a hearing. When the ABA
unanimously finds nominees not to be qualified, Republicans still
support the nominees anyway. Republicans have also begun regularly
holding hearings on two circuit court nominees at a time. Why?
Apparently, they are afraid to let each of their nominees stand on
their own two feet and face questioning from Senators individually. The
circuit courts have the final word on tens of thousands of cases every
year. Every single lifetime appointment to these courts deserves to be
scrutinized on its own individual merits.
Furthermore, Judiciary Committee Republicans are looking to relax the
standards for nominees with a history of past drug use. Republicans
repeatedly blocked judicial candidates proposed by President Obama who
had smoked marijuana in the past, but Republicans now want a more
lenient standard for Trump nominees. I am open to a different standard,
but it must not be a double standard for Democratic versus Republican
That takes us to the changes to the blue slip. Republicans now want
to disregard this 100-year-old tradition--meaning they will ignore the
vetting that home-State Senators do for nominees from their State.
Remember, blue slips were respected throughout the Obama
administration. Republicans sent a letter in 2009 asking President
Obama to respect blue slips, and he did. Republicans then proceeded to
block 18 Obama nominees by withholding blue slips. Now, Republicans
have announced that they are doing a 180-degree turn for Trump nominees
and that they will disregard blue slips whenever they feel like it.
Why are Republicans abandoning so many longstanding traditions and
guardrails when it comes to judicial nominations? It is because many of
President Trump's nominees simply wouldn't pass muster under the
traditional ground rules. Many Trump nominees have minimal experience,
a history of ideologically biased statements, serious questions about
their temperament and judgment, or a lack of independence from
President Trump. Senate Republicans want to rubberstamp these nominees
anyway--and confirm them as quickly as possible in their effort to pack
Just look at some of the judicial nominees who have already been
confirmed this year--like John Bush, confirmed to sit on the Sixth
Circuit, who blogged about the false claim that President Obama wasn't
born in the United States and said at his hearing that he thinks
impartiality is an aspiration for a judge, not an expectation; or
Stephanos Bibas, now a judge on the Third Circuit, who wrote a lengthy
paper calling for corporal punishment, including putting offenders in
the stocks or pillory and applying multiple calibrated electroshocks.
Now, consider DC Circuit nominee Greg Katsas, who is before us today.
Mr. Katsas works in the White House for President Trump. He is a Deputy
White House Counsel. He testified that he has been personally involved
in many of the Trump administration's most controversial policies,
ranging from the Muslim travel ban to the creation of the Pence-Kobach
election commission, to ending the DACA program, to the Trump
administration's rollback of protections for LGBTQ-Americans.
Mr. Katsas also said that, while working for President Trump, he has
given legal advice regarding the Emoluments Clause, advised on the
administration's efforts to cut off Federal public safety funds to
cities because of disagreements over immigration enforcement, and even
provided legal advice on the Special Counsel's Russia investigation.
This is a laundry list of Trump administration controversies that Mr.
Katsas has been personally involved with. It is likely that many of
these issues will end up in litigation before the DC Circuit. I don't
think appointing President Trump's staff lawyer to the DC Circuit will
strengthen the American people's confidence in the fairness of our
justice system. Instead, we need nominees with a strong track record of
independence and good judgment.
Let me talk for a minute about Mr. Katsas's judgment.
At his hearing, I asked Mr. Katsas some simple questions about the
torture technique known as waterboarding. I was deeply troubled by his
answers. I asked him if waterboarding is torture. He said, “I hesitate
to answer the question in the abstract, not knowing the circumstances,
the nature of the program.” I asked him if waterboarding is cruel,
inhuman, and degrading treatment. I noted that Senator John McCain, the
author of the 2006 law that made it clear that cruel, inhuman, and
degrading treatment is illegal, has said “waterboarding, under any
circumstances, represents a clear violation of U.S. law”--so did all
four Judge Advocates General--the top lawyers in the military--during
the Bush administration. But Mr. Katsas responded evasively, saying
“anything that is cruel, inhuman, and degrading treatment would be
clearly unlawful.” I then asked Mr. Katsas is waterboarding illegal
under U.S. law. He said “to the extent it constitutes either torture
or cruel, inhuman, or degrading treatment, yes it is.”
What a pack of weasel words. Mr. Katsas's tortured logic about
waterboarding is unacceptable. Mr. Katsas should have said, with no
equivocation and no uncertainty, that waterboarding is illegal, that it
is cruel, inhuman, and degrading and that it is torture. That is the
law, and a Federal judge should know it.
I am concerned that Mr. Katsas's refusal to give those answers
reflects a troubling ideological viewpoint when it comes to questions
of torture and interrogation techniques. My concerns were amplified by
a speech Mr. Katsas gave in April 2009 when his speech notes said
“high bar--a lot of coercive interrogation does not equal torture.”
This is a clear-cut issue for me. I have voted against nominees in
the past who gave the wrong answers to questions about waterboarding,
and I will do it again. In my view, Mr. Katsas has not demonstrated the
independence and judgment that we need for the critical position of DC
Circuit judge. I cannot support his nomination.
Here is the bottom line. Before I was a Senator, I was a lawyer in
downstate Illinois, and I looked up to Federal judges. I thought that,
to get that job, you had to be a cut above. Otherwise, you wouldn't
make it through the Senate's rigorous advice and consent process.
Sadly, this Republican Senate is turning advice and consent into “rush
through and rubberstamp.” Republicans want to pack the courts with
judges who will support President Trump's agenda, and so they are
hurrying to confirm as many of his picks as possible--even if they are
unqualified, ideological, hiding things from the Senate, or too close
to President Trump. Our Federal judiciary is being diminished as a
I wish my Republican colleagues would stand up for an independent
judiciary and a meaningful advice and consent process. We should fill
this vacancy on the DC Circuit with someone who is independent of
President Trump, not one of his staff attorneys. We should choose
nominees who are unafraid to say what the law is on torture, instead of
what they might wish the law to be.
I urge my colleagues to vote no on the Katsas nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Nov. 20, 2017]
Checks on Trump's Court Picks Fall Away
(Joe Palazzolo and Ashby Jones)
Move to curtail `blue slips' gives the president, and successors, wide
leeway in picks for federal bench
The Republican head of the Senate Judiciary Committee has
curtailed one of the last legislative limits on a president's
power to shape the federal courts, giving Donald Trump more
freedom than any U.S. president in modern times to install
his judges of choice, legal experts said.
Last week, Sen. Chuck Grassley (R., Iowa) reined in a
tradition that empowered senators to block federal appeals-
court nominees from their home state. His decision came about
four years after Democrats, citing Republican filibusters of
President Barack Obama's circuit-court nominees, eliminated a
Senate rule that required the majority party to mount 60
votes to advance a nominee to a confirmation vote.
Together, the threat of a filibuster--or delaying tactic--
and use of “blue slips”--so named because senators indicate
support or opposition to nominees on blue slips of paper--
guarded against lifetime appointments for nominees deemed far
outside the mainstream, court experts said. Getting rid of
these checks could foment distrust in judges' work if Mr.
Trump and later presidents prioritize ideology over
experience or legal talent, some of the experts said.
“When judges lose legitimacy in the public eye, they lose
the ability to enforce unpopular decisions,” said Arthur
Hellman, an expert on the federal judiciary and law professor
at the University of Pittsburgh. “And that's when you see an
unraveling in the rule of law.”
Others said the changes were part of a natural progression
away from Senate traditions that allowed the minority party
to stall nominations for partisan reasons.
“If you're not a fan of the Senate-wide filibuster, you're
probably not a fan of a filibuster by one senator,” said
Ilya Shapiro, a senior fellow in constitutional studies at
the Cato Institute, referring to the practice of senators
blocking nominees from their states.
So far, the Republican-controlled Senate Judiciary
Committee has approved two nominees pronounced unfit to serve
by the American Bar Association, including Brett Talley, a
Justice Department lawyer who has never argued a motion in
federal court and whose wife is the chief of staff for the
top White House lawyer.
“If Senate Republicans will confirm him, then there is no
realistic sense of checks and balances,” said Christopher
Kang, who worked on judicial nominations in the Obama White
The White House declined to address criticisms of Mr.
The ABA's Standing Committee on the Federal Judiciary has
deemed two other Trump nominees “not qualified”--ratings
Republicans on the Senate Judiciary Committee dismissed as
the product of what they called a liberal advocacy group.
The ABA has rejected that criticism, saying it has rated
potential judges for more than 60 years, drawing on dozens
and sometimes hundreds of interviews with a nominee's
colleagues and other peers.
Hogan Gidley, a White House spokesman, said Mr. Trump has
delivered on his promise to nominate “highly qualified
“We appreciate the hard work of Chairman Grassley and
[Senate Majority Leader Mitch] McConnell, and we urge the
Senate to confirm all of the remaining nominees because it's
what the American people deserve,” he said in an emailed
Mr. Grassley said on Thursday that he would hold a hearing
on two nominees--David Stras, a nominee to the midwestern
Eighth U.S. Circuit Court of Appeals, and Kyle Duncan, a
nominee to the Fifth Circuit in New Orleans--over the
objections of home-state senators Al Franken of Minnesota, a
Democrat, and John Kennedy of Louisiana, a Republican.
The blue-slip practice began in the 1910s and, for a large
portion of its history, “gave Senators the ability to
determine the fate of their home-state judicial
nominations,” the Congressional Research Service, a research
arm Congress, said in a 2003 report.
Mr. Grassley said that after his recent move, a negative
blue slip would be a “significant factor” for the committee
to consider but wouldn't prevent a hearing, a break with the
practice of Senate Judiciary Committee chairmen since at
He blamed the Democrats for abusing the blue slip after
eschewing the filibuster.
“The Democrats seriously regret that they abolished the
filibuster, as I warned them they would. But they can't
expect to use the blue-slip courtesy in its place. That's not
what the blue slip is meant for,” he said on the Senate
floor last week.
Mr. Grassley also has parted with common practice by
stacking two circuit court nominees in a single confirmation
hearing, reducing time for preparation and questions, and
holding hearings before the ABA finished its judicial
“Taken together, it's clear that Republicans want to
remake our courts by jamming through President Trump's
nominees as quickly as possible,” said Sen. Dianne Feinstein
(D., Calif.), the ranking member of the Senate Judiciary
Committee, in an emailed statement.
The median time from nomination to Senate confirmation for
circuit-court nominees was less than a month in the
administrations of presidents Lyndon Johnson and Richard
Nixon, said Russell Wheeler, a visiting fellow at the
Brookings Institution who studies federal courts. That number
rose through the 1980s and 1990s and ballooned to 229 days
during President Barack Obama's two terms, he said.
Ms. HIRONO. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant 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, this week we are engaged in what is
perhaps the most momentous subject that we haven't dealt with in recent
times, and that is, after 30 years, updating and reforming our Nation's
convoluted, complex, and self-destructive Tax Code.
Those who are interested in getting to yes and who will cast a
“yes” vote, I believe, will be casting a vote for growing the
economy, voting for more jobs, voting for higher wages, and voting for
more take-home pay. Those who vote against this endeavor are really
saying yes to stagnant wages, less jobs, and a lower standard of
living. They are willing to accept the reality that American jobs are
going overseas because our country has the highest Tax Code in the
civilized world, and bringing the money earned overseas back home
basically means having to pay double taxes. So what people do is they
do what you would logically do, and they spend the money overseas and
hire foreign workers in foreign countries rather than Americans and
make things stamped “Made in America.”
Simply stated, this bill is about the dreamers and the doers, the
small businesses and the hard-working American families who need tax
cuts and tax reform. This is about helping the middle class.
Actually, what this bill does--the Senate version of the bill--is it
reduces the tax burden on every tax-paying cohort. In other words, all
of the tax rates come down. In order to do that, both on the personal
side and the business side, we had to eliminate a lot of what I call
the underbrush, which are the tax deductions, the tax credits, and the
other subsidies that have made our Tax Code so incomprehensible to
everybody other than accountants and lawyers. That is one reason people
are so frustrated with our Tax Code--it costs them so much money just
to comply with their legal obligations.
It has been a long time since we took up this important topic, and I
know the reaction is, well, this is just another going-through-the-
motions effort, but I assure you that is not the case. These reforms
are not only possible, they are very important because they will
positively impact real people's lives.
Arthur Brooks of the American Enterprise Institute has said that
“some believe that taxation is a dry topic
with no moral significance, but nothing could be further from the
truth.” For example, by doubling the standard deduction, we will limit
the number of people who have to itemize their tax deductions in order
to claim the full legal deduction. That means that now only 1 out of
every 10 taxpayers will have to itemize and 9 out of 10 will just claim
the standard deduction, which will now be doubled.
We are also going to double the child tax credit, which will help
working families provide the things they need in order to take care of
their growing families. It will mean that more people will have more
money left over after paying Uncle Sam to spend on their own families,
to invest in their children's education, maybe to even take the first
vacation they have taken in 10 years or more.
Mr. President, $2,200 is what a median family of four will save in
taxes under our proposal. Maybe they want to get their pickup truck
fixed. Maybe they want to build a little financial cushion because they
have been living paycheck to paycheck. I can't remember the precise
statistic, but the number of people in America who could not meet their
financial needs if they experienced an unexpected $400 cost--maybe your
car broke down, or maybe your house flooded, whatever the case may be.
We need people to be able to keep more of what they earn and build a
cushion so they don't have to live with the anxiety of living paycheck
to paycheck, knowing that if the unexpected happens, it could put them
in deep trouble. That $2,200 a year could mean a couple hundred dollars
each month to put toward your mortgage, to pay down your mortgage, or
to provide a little breathing room.
This plan is also designed to increase wages, and it is estimated
that the combined benefit of this bill, together with the economic
growth we are anticipating, could mean as much as $4,000 in additional
income. So it not only lowers the tax burden, but it raises the income
levels. Frankly, as I mentioned a moment ago, our Tax Code incentivizes
American businesses to send jobs overseas. Why in the world wouldn't we
want to incentivize them to bring those jobs back home and invest here?
Not only can we make this Tax Code better, but I want to emphasize
why we should. We have a historic opportunity, and we shouldn't
squander our chances to take a bit of the pressure off of frustrated
workers and struggling families who are trying to make ends meet.
This country has long been a leader in the world, with the strongest
economy and the strongest people, but the reality is, our Tax Code is
no longer a world leader. As I indicated earlier, we have one of the
highest tax rates in the world, particularly for businesses. So what
happens when countries like Ireland or the United Kingdom lower their
tax rates for businesses? Well, those businesses move to those
countries. People who want to start a new business say: Well, if I have
a choice where to start that business, why should I start that business
in a country that punishes us with the highest tax rate in the world?
The current tax system penalizes success by taxing American ingenuity
and hard work at rates that are uncompetitive, and it discourages our
free enterprise system. What I mean is that it sends messages to
Americans like, don't work so hard because, you know what, you are not
working for yourself, you are working for the government. We ought to
be sending the message that by working harder, you can keep more of
what you earn and spend it the way you see fit.
Companies, of course, have no particular loyalty to our country, so
they don't really have a need to stick around because they are going to
go to countries where they can make the most profit, where they can
keep more of what they earn.
My basic point is that the messages our convoluted and archaic Tax
Code is sending are counterproductive. They are counterproductive to
workers who are looking for jobs, they are counterproductive to workers
who are looking for a little more in their paychecks, and they are
counterproductive to families who want to save and provide for their
In 2016, the Tax Policy Center projected that almost 44 percent of
Americans will pay no or negative individual income tax for 2017 under
current law, and some smaller number even get more money back from the
government in the form of refundable tax credits than they pay in
taxes. We need to make sure that everybody participates in our
One thing I have heard a lot during this tax debate is that America
is horribly in debt. Sadly, that is true. But it is not because of our
Tax Code. It is not because Americans aren't taxed enough. It is not
because we spend too much money defending our country against threats
here at home and abroad. It is because we have a spending problem.
Unfortunately, our Democratic colleagues, who suddenly got religion
when it comes to deficits and debt after doubling the national debt
during the Obama administration, want to use this as a reason not to
cut the taxes for hard-working American families, and I think it is
Is the deficit important? Is debt important? Yes, it is, and we know
what we need to do to fix that. But denying the American people and
hard-working American families the tax relief they need and deserve and
failing to get the economy growing again is the wrong way to do it.
Let me quote from Arthur Brooks again. He said: “If income tax rates
are 100 percent, income tax revenue will be zero. Why? Because with a
100-percent tax rate, nobody will bother to work. And companies won't
On corporate taxes, we are seeing a lot of hypocrisy from our friends
across the aisle who had previously championed some of the very
provisions we have included in this legislation. For example, the
ranking member of the Senate Finance Committee, our Democratic friend
from Oregon, had previously championed a 24-percent corporate rate
because he recognized that a 35-percent corporate rate chased
companies, businesses, and jobs overseas. Now he calls our reduction in
corporate taxes a giveaway to corporations. You could consider the
statements made by President Barack Obama in 2011 when he said to a
joint session of Congress--he said that one of the things Republicans
and Democrats need to do together is to work on lowering the corporate
tax rate because he, too, recognized that this was self-destructive,
that it was chasing jobs overseas, that it was preventing the U.S.
Treasury from collecting its taxes, and frankly that it was hurting the
bottom line for American families who maybe couldn't find work or whose
work was not rewarded with fatter paychecks and more take-home pay.
For corporate taxes, economists have said that actually lowering the
corporate tax rate will bring more investment and more jobs back home.
If it were lowered, expanded production and investment would increase
Even though it might seem a little counterintuitive, Barack Obama;
the Senator from Oregon, Mr. Wyden; and the minority leader, Senator
Schumer from New York, were correct when they called for lowering the
corporate rate, and it is unseemly to now try to demagogue this issue
by calling it a giveaway when it is not. We are doing what they said we
should do years ago.
When it comes to these corporate rates, some of my colleagues have
raised concerns about passthrough businesses. It is true that a number
of businesses operate here in America not as corporations but as
passthrough entities, meaning that they pay their business income on an
individual tax return. These concerns are legitimate, and we have
worked hard to try to address them.
Earlier, we were working with the National Federation of Independent
Business, which is one of the largest trade associations in the country
representing small- and medium-sized passthrough businesses. We were
able to come up with a solution which addressed their concerns and
which benefits those passthrough businesses. We still have some more
work to do, but that demonstrates what we can do when working together
to try to answer the concerns people have raised along the way during
this legislative process.
The U.S. Chamber of Commerce, the National Federation of Independent
Business, which I mentioned a moment ago, and nearly all major small
business advocacy groups support this legislation. We had a press
here in the Senate, just off the floor, earlier this morning, and it
was uniform--everybody said this is good for small businesses. And
small businesses are what create the vast majority of jobs in America.
I know that those who have continued questions or issues about the
legislation have had productive discussions with all of us and today
with the President, who came to visit us. I am confident that if we
keep working at it in good faith, we can come up with a way to address
the remaining issues so that we are all satisfied as much as possible.
There is an expression: Don't let the perfect be the enemy of the
good. If you are waiting around for perfection, particularly here in
the legislative process, you are never going to get anything done. That
is not an excuse for not making it as good as it can possibly be, I
believe, working together, preferably on a bipartisan basis. But if our
Democratic colleagues refuse to participate, as they have done so far,
then we have no choice but to do it ourselves.
So in the end, a vote against tax reform is a vote for economic
stagnation. It is allowing the perfect to be the enemy of the good. The
Wall Street Journal, as they said yesterday--the question we need to
ask ourselves is not whether the tax bill is perfect but whether it is
a net benefit to the United States. I think it clearly is, and I think
that, with the policies embodied in this bill, we can restore America's
America must continue to prosper if it is to remain the economic
beacon of the world, and we need to remain a strong country
economically so we can defend ourselves and our friends and allies
abroad. The rest of the world--it is true--is just waiting for a sign
that America's best days are ahead, and passing this important tax
legislation is an indication that it is the case that America's best
days still lie ahead.
It is time to awaken the slumbering giant of the American economy. By
lightening the load on workers and companies alike, we can make sure
new opportunities abound for those just coming into the workforce. We
will make everyday drivers of the economy excited once again about our
country's future. The President noted today, when he was with us at
lunch, that consumer confidence is literally at an alltime high. People
have seen the stock market go up and their retirement funds that are
invested in pension funds or in their IRA or elsewhere skyrocket since
the Trump administration came into office. I think that is because
people are sensing we are on the verge of a great economic recovery.
Accepting a stagnant, anemic recovery is not something we have to do.
We know what we need to do to rev up the engine of the American economy
and get it moving again to benefit all of us. Through tax reform, let's
show that the American dream of allowing men and women to work hard and
earn success isn't just a bygone notion, and it is not just a figment
of our imagination. We can do it if we pass this tax reform bill this
week, which we intend to do.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Johnson). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
American Bar Association and the Blue-Slip Courtesy
Mr. HATCH. Mr. President, I rise today to address two elements of the
Senate's process for evaluating judicial nominations: the role of the
American Bar Association and the so-called blue-slip courtesy. Each can
influence the appointment process, and we must be diligent to ensure
that neither is abused.
The Eisenhower administration was the first to request the input of
the ABA--American Bar Association--on prospective judicial nominations.
Speaking to the 1955 ABA convention, President Eisenhower thanked the
ABA for helping him and his advisers to “secure judges” of the kind
he wanted to appoint. If that sounds as though the ABA was a part of
the administration, it was.
The ABA evaluated individuals before they were even nominated.
Individuals deemed not qualified by the ABA were almost never
nominated. No other interest group was given such a quasi-official veto
over nominations to any other office.
What could justify such a special role for an interest group? What
could do that? The theory is that the ABA was a nonpolitical
professional association concerned only with the legal profession and
the practice of law.
At its 1933 annual meeting in Grand Rapids, MI, for example, the
ABA's executive committee considered changing the ABA constitution to
allow “discussion and expressions of opinion on questions of public
interest.” After arguments that this would revolutionize the scope and
purpose of the ABA, no one--not one person--supported the amendment, to
the best of my knowledge.
In February 1965, ABA President Lewis Powell, who later served on the
Supreme Court, wrote that “the prevailing view is that the Association
must follow a policy of noninvolvement in political and emotionally
controversial issues.” If that view actually prevailed in 1965, it did
The ABA House of Delegates soon crossed the political Rubicon and
began taking positions on a host of issues through Federal arts
funding, affirmative action, the death penalty, welfare policy,
immigration; you name it, and the ABA has endorsed the liberal
position, oftentimes the most liberal position. The ABA not only opines
on such issues through resolutions but also lobbies legislatures and
files briefs in court cases.
The ABA has done exactly what it chose not to do back in 1933 and
revolutionized the scope and purpose of the organization. It abandoned
nearly a century of noninvolvement in political issues, the condition
that was said to justify a special role in the judicial appointment
process. It hardly seemed reasonable that the ABA could somehow seal
off its evaluation of judicial nominees from all of this political
activism so that its conclusions could still be trusted.
In 1987, several members of the ABA evaluation committee said that
Judge Robert Bork was not qualified to serve on the Supreme Court. I
said at the time that the ABA was “playing politics with the
Three years later, several of us on the Judiciary Committee,
including now-Chairman Grassley, expressed the same view in a letter to
Attorney General Richard Thornburgh. We wrote that the ABA “can no
longer claim the impartial, neutral role it has been given in the
judicial selection process.”
This conclusion has been bolstered by academic research. In 2001,
Professor James Lindgren of Northwestern University law school
published a study in the Journal of Law & Politics that examined ABA
ratings for nominees of Presidents George H.W. Bush and Bill Clinton.
Controlling for race, gender, and a range of objective measurable
credentials, Professor Lindgren found that Clinton nominees were 10
times--10 times--more likely than Bush nominees to be rated well
qualified by the ABA. In fact, he found that “just being nominated by
Clinton instead of Bush is better than any other credential or than all
other credentials put together.” Professor Lindgren concluded that
“the patterns revealed in the data are consistent with a conclusion of
strong political bias favoring Clinton nominees.”
A decade later, three political scientists published a study in the
Political Research Quarterly, looking at ABA ratings for U.S. Court of
Appeals nominees over a 30-year period. Applying recognized social
science methods, they concluded that “individuals nominated by a
Democratic president are significantly more likely to receive higher
ABA ratings than individuals nominated by a Republican president. . . .
[W]e find . . . strong evidence of systematic bias in favor of
Democratic nominees.” You don't say.
President Trump recently nominated Steven Grasz to the U.S. Court of
Appeals for the Eighth Circuit. The distinguished Senators from
Nebraska have, in the Judiciary Committee and here on the Senate floor,
detailed Mr. Grasz's extensive experience and wide support throughout
the legal community. He served as chief deputy attorney general of
Nebraska for nearly a
dozen years, during which time he defended the constitutionality of the
State's law banning partial-birth abortion. That might have been his
most serious sin in the eyes of the ABA, which has aggressively
embraced the abortion agenda for more than four decades.
In 1969, the ABA formed a committee on overpopulation, which
immediately launched a project on the law of abortion and endorsed the
Uniform Abortion Act in 1972, even before the Supreme Court's now-
infamous Roe v. Wade decision legalizing abortion on demand. The
committee endorsed Federal funding of abortion in 1978, and in 1990, by
more than two to one, they opposed any requirement of parental
notification before abortions are performed on minors. The ABA, again,
fully embraced the abortion agenda in 1992 and never looked back. It is
no wonder that they would deem someone like Mr. Grasz not qualified for
President Trump has also nominated Brett Talley to the Federal
district court in Alabama. Tally attended Harvard Law School. He spent
years in a prestigious clerkship at the Federal appellate and trial
court levels. He has worked here in the Senate. He has served as a
deputy solicitor general of the State of Alabama. He has served in the
Justice Department most recently as Deputy Assistant Attorney General
in the Office of Legal Policy. He enjoys the support of both of
Alabama's home State Senators and has a sterling reputation in the
legal community. Yet he, too, has been deemed not qualified by the ABA.
How is that possible? That determination is nakedly political and
should not be taken seriously.
The ABA once defined its purpose in terms of the legal profession and
the practice of law. It has, however, chosen a different path. By doing
so, the ABA has not only abandoned what once might have justified its
role in judicial selection but has also cast serious doubt on the
credibility and integrity of its judicial nominee ratings. The ABA was,
of course, free to do so, but it should not expect that its actions
have no consequences.
The other element of the judicial confirmation process that I want to
address is the so-called blue-slip courtesy. This is an informal
practice, begun in 1917, by which the Judiciary Committee chairman
seeks the views of Senators regarding nominees who would serve in their
States. This practice really gets noticed only when the President and
Senate majority are of the same party. In that situation, as we face
today, the question is whether a home State Senator can use the blue-
slip courtesy to block any Senate consideration and, therefore,
effectively veto a President's nominees.
Since the blue-slip courtesy was established, 19 Senators, including
myself, have chaired the Judiciary Committee--10 Democrats and 9
Republicans. Only 2 of those 19 chairmen treated the blue-slip courtesy
as a single-Senator veto. One of them, apparently, was to empower
southern segregationist Senators to block judges who might support
The other 17 chairmen fall into two categories. The early chairmen
allowed objecting home State Senators to present their views in the
nominee's confirmation hearing. In the last few decades, chairmen of
both parties have said that a negative blue slip would not veto a
nominee if the White House consulted in good faith with the home State
Senators. That is the approach that Chairman Joe Biden took and that I
continued when I was chairman, each of us under Presidents of both
The blue-slip courtesy, then, has been a way to highlight the views
of home State Senators and to encourage the White House to consult with
them when choosing judicial nominees. And it works. When chairmen of
both parties have chosen, only a handful of times, to proceed with a
hearing for a nominee who lacked two positive blue slips, their
decision was consistent with this approach.
Today, Democrats want to rewrite the history of blue slips and
redefine the very purpose of the courtesy behind the process. They want
to weaponize the blue slip so that a single Senator can, at any time
and for any reason, prevent Senate consideration of judicial nominees.
They want to change the traditional use of the blue slip because they
can no longer use the filibuster to defeat judicial nominees who have
Democrats opposed filibustering judicial nominees during the Clinton
administration. Then, in just 16 months during the 108th Congress,
Democrats conducted 20 filibusters on judicial nominees by President
George W. Bush. These were the first judicial filibusters in history to
defeat majority-supported judicial nominees.
The filibuster pace dropped by two-thirds under President Obama when
Republicans conducted just 7 filibusters in 30 months. Claiming that
declining filibusters were nonetheless a crisis, Democrats in 2013
abolished nomination filibusters for all executive and judicial
nominations except for the Supreme Court.
Democrats took away the ability of 41 Senators to block consideration
of judicial nominations on the Senate floor, but now they demand that a
single Senator have that much power in the Judiciary Committee by
turning the blue-slip courtesy into a de facto filibuster. Like the
ABA's rating of nominees, nothing but politics explains this flip-
flopping and manipulation of the confirmation process.
On October 31, I addressed this issue here on the Senate floor and
suggested that the history and purpose of the blue-slip courtesy could
help guide its application today. I still believe that. The views of
home State Senators matter, and the White House should sincerely
consult with them before making nominations to positions in their
States. Home State Senators enjoy countless ways to convey their views
to colleagues here in the Senate, and every Senator may decide whether
and how to consider those views. But in the end, the blue slip is a
courtesy, not an absolute veto. This distinction matters because
tomorrow the Judiciary Committee will hold a hearing on a nominee to
the U.S. court of appeals from a State with two Democratic Senators.
One has returned the blue slip; the other has not.
Chairman Grassley's decision to hold a hearing is completely
consistent with the history and purpose of the blue-slip courtesy.
Democrats falsely claim that Chairman Grassley is eliminating what they
say is a longstanding precedent that home State Senators may
automatically veto appeals court nominations. No such precedent exists,
or ever has, unless the practice of only two chairmen for only a
fraction of the last century constitutes controlling precedent--and we
all know it shouldn't.
It is beyond hypocritical for Democrats to pretend they actually care
about the confirmation process precedent. They began the practice of
forcing time-consuming rollcall votes for nominees with no opposition
at all. They began the practice of using the filibuster to defeat
majority-supported nominees. They began the practice of forcing the
President to renominate individuals multiple times. They began the
practice of forcing cloture votes on unanimously supported judicial
nominees and then delaying a confirmation vote for days. These weren't
actions undertaken by Republicans. There is one side, and one side
only, that has continuously pushed this envelope.
Democrats cite a 2009 letter to President Obama from the Republican
conference and an op-ed I publishing in 2014 defending the blue-slip
courtesy. In each situation, the Democratic majority was actually
threatening to abolish the blue-slip policy altogether. In my op-ed, I
emphasized that the blue-slip courtesy is intended to encourage
consultation by the White House with home State Senators.
When he became chairman in 2015, Senator Grassley explained the blue-
slip process to his constituents in a Des Moines Register op-ed. He
wrote that the process has value and that he intended to honor it. He
is doing just that by returning to the real history and purpose of the
My Democratic colleagues seem to think that the confirmation process
should be whatever they want it to be at whatever moment they so
choose. Now they demand that, contrary to most of the last century, a
single Senator should be able to do informally what 41 Senators can no
longer do formally. They demand following precedent that does not exist
while creating new obstruction precedents of their own. Democrats have
forced the Senate
to take 60 cloture votes on nominations so far this year, 13 of them on
judicial nominations. That is nearly nine times as many as during the
first year of all new Presidents--all new Presidents--since the cloture
rule was applied to nominations in 1949.
I have been in the minority a number of times, multiple times. I get
it. Democrats want their way, and they don't always get it. That hardly
means that the majority in general and Chairman Grassley in particular
are not being fair, consistent, or evenhanded. The blue-slip courtesy
has a history, and it has a purpose. It exists to allow home State
Senators to share their views with the Judiciary Committee and to
encourage White House consultation with them before making nominations.
Neither a liberal interest group like the American Bar Association
nor abuse of the blue-slip courtesy should be allowed to further
distort and politicize the judicial confirmation process.
It is a disgrace. It really is a disgrace, the way the Democrats
changed the rules automatically, overnight, without even consulting
with Republicans, and doing it solely to give advantage to their side,
even though this is a process that really ought to have fair treatment
on both sides at all times.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. RUBIO. Mr. President, I ask unanimous consent that I be allowed
to complete my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. RUBIO. Mr. President, I know we are scheduled for a vote in a few
minutes. We will have plenty of time to talk about this in the days to
I think one of the core things that I hope tax reform will be about
is empowering the American worker. By “the American worker,” I mean
the people whom they don't make Netflix series about and we don't see
movies about too often anymore. There was a time when the American
worker was a hero in our country. People looked up to the American
worker and idealized them. Today, obviously, entertainment focuses on
other professions. There is nothing wrong with that, but we have
forgotten about their hard work and the millions and millions of
Americans across this country who truly remain the backbone of our
economy and our Nation.
There are hard-working men and women who are struggling to get by,
not because they are not working hard but because everything costs
more--something you quickly find out as your family begins to grow.
That is why I have spent so much time talking about the child tax
credit. A lot of people confuse that with the childcare credit, which
is important as well.
The child tax credit takes into account the reality that raising
children is an expense. It is a blessing, but it costs money. At the
end of the day, it doesn't always matter only how much you make; it
also matters how much you spend. And when you are raising children and
raising a family, the costs are often out of your control, and they
increase substantially every single year. So perhaps the best way to
illustrate to my colleagues the impact that tax reform has on working
families is to talk about real people and their real lives--how much
money they make and what tax reform would mean for them.
I want to start with a real family, a particular family my staff has
been communicating with; that is, the Starling family, Richard and
Emily, a very young family from Jacksonville, FL. They have a 2-year-
old daughter, and they are expecting their second child in March.
Richard is a pastor, and he works part time at Starbucks. He makes
about $25,000 a year. His wife Emily stays home and cares for their
daughter while he is at work.
Because of their income, the Senate tax bill's nonrefundable child
tax credit increase would actually be worth very little to them. A lot
of people have said to me: Well, we have increased it to $2,000. Isn't
that great? It is. But what it means that people don't understand is,
if the majority--if all the taxes you pay are payroll taxes, it doesn't
help a lot.
I, frankly, get offended when I hear people say: These are Americans
who don't pay taxes. They do pay taxes--not income tax, but they pay
payroll taxes. They take it out of your check every month. Trust me, it
is a tax. It is less money than what was supposed to be there after the
So the tax credit, while we increased it to $2,000--and that is great
for a lot of people--it does nothing for them. The total effect is only
about $115 for the family. That is how much they will be saving in
their taxes from the current year--$115.
But here is where it gets worse. The Senate bill--which I am largely
supportive of, but I just want to tell my colleagues what the numbers
are so we can see where the changes need to be--the Senate bill would
actually increase taxes in March when they have a child. You say: How
can that be? Well, for some families in their income range, the
nonrefundable increase for the child tax credit is less valuable than
the current lost personal exemption. So we take away the personal
exemption and we put in this additional child tax credit, but it is
nonrefundable. They can't get to that tax credit because they are not
paying income taxes, and the result is that if they make $26,000
instead of $25,000, the Senate bill would actually take away $15 from
their per-child tax cut.
So these families work hard and pay their taxes, they raise children,
they are contributing an extraordinary amount to our country, and they
need our help more than ever before.
There are a couple other examples, and I will go to the first chart.
Let's take for example a tire changer and a preschool teacher with two
children in Gainesville, FL--the home of the university in Florida, the
finest learning institution in the Southeast--an editorial thing, but
it is a matter of fact. But I digress. Let me get back to chart No. 1
and talk about this family.
The husband, as I said, works at a local auto shop as a tire changer.
His wife is a preschool teacher. According to the Bureau of Labor
Statistics, with these two jobs, their combined income would be
$28,300. Because the increase to the child tax credit is
nonrefundable--the extra money we put in--this family wouldn't nearly
have enough income tax liability to take advantage of the full credit.
So the bill as it is currently written gives them a tax cut of $200--
about $50 per person.
But what if we did what Senator Lee and I are proposing, which is to
make the child tax credit fully refundable, even against payroll tax.
Well, then their tax cut would not be $200, it would be $1,570. Trust
me when I tell you that for a family making $28,000 a year, a $1,500
pay increase in real cash matters. It matters. It doesn't solve all of
their problems, but it helps.
Here is another one. Take this example. The husband is a private in
the Army National Guard, and his wife is a waitress at a local
restaurant. They have three children. He is on Active Duty at Camp
Blanding in Starke, FL. She works full time. They have a combined
income of $33,832, according to the National Guard base pay.
Because the increase, again, is nonrefundable in the child tax
credit, they don't have enough income to take full advantage of the tax
credit. The bill as currently written cuts their taxes by $388. The
proposal that Senator Lee and I have outlined would cut their taxes by
$2,100. So a $2,100 pay increase for this working family in cash will
matter. It will matter. It doesn't solve all of their problems but,
trust me, $2,100 for this family, more than what they have today, will
help them a lot, and it rewards the work they are doing.
What about a single mother. Let's say she is a childcare worker. She
has one child and is living in Miami, FL, where I live. She works full
time. According to the Bureau of Labor Statistics, the median wage for
that job is $14,800 a year. She gets a tax cut under the current bill
of about $100. If we do what Senator Lee and I are talking about doing,
she will get a $1,000 tax cut. I am not telling you that $1,000 solves
all of her problems, but a $1,000 pay increase for a single mother
making $14,800 a year will matter.
How about a loading dock worker and a cashier in Northwest Florida
after having two kids. Here is what we point to: a glaring blind spot
in the way this is structured. Again, for many working families,
because the child tax credit is nonrefundable, it will actually be less
valuable to parents than the dependent exemption and the existing child
credits are under current law today. I think
this is the opposite of pro-family policy.
Let's look at this example. He works as a freight mover at a lumber
warehouse, and she works as a cashier. They both work and live full
time in Live Oak, FL. Their average combined income is about $28,650.
Under the current Tax Code, the way the law is today, if they have two
kids, their tax cut would be $2,776. That is what they would save.
Under the current bill, their tax cut would be $2,656. So, in essence,
under the way the bill is structured now, they would be getting $120
less--or keeping $120 less--than what they would under the law today,
for a family making $28,000 a year.
We can fix it, because under the proposal Senator Lee and I will
have, they are going to see a tax cut of $4,000 for having that
additional child. That is $1,200 greater than the current law. That is
a raise of $1,300 more than would happen under the bill as it is
I don't think this is an intended consequence. But this is a working
family. They work. They pay payroll tax. They make $28,000, $29,000 a
year. Trust me when I tell you this money will matter. It won't solve
all of their problems, but it will help. It is a pay raise.
Last but not least, I live in West Miami, FL. I have lived there
since 1985. It is a working-class neighborhood. According to the
census, the average family income in West Miami, where I live, is
$38,000--let's say $39,000. That doesn't mean that West Miami is poor.
I know the people there. They work hard. They pay their taxes. They
raise their children well. They go to work 5 days a week for 8 or 9
hours a day, sometimes on the weekends. But because it is a working-
class town, the nonrefundable increase we put in for the child tax
credit doesn't do much.
As an example, based on the census data for West Miami, for that ZIP
Code that I live in, more than 2,500 children in this ZIP Code--meaning
more than half of the total number of children living in that area--
would be receiving less than the full credit than they would otherwise
be eligible for. Why? Because for their parents, their primary tax
liability is the payroll tax. And you cannot help working families with
a tax cut if you do not allow the cut to apply to the payroll tax. It
is as simple as that.
We have to do that. If we want to help people in this country, if we
really want to help them have a little bit more in their pocket, then
let's implement the proposal that Senator Lee and I have put forward.
By the way, I hear these economists and other people say: Well, it
won't do anything for growth.
You really don't understand how working Americans live. Someone who
makes $38,000 a year or $35,000 a year basically spends every penny
they make. They have to. If you make $38,000 a year, with two kids, you
are spending every penny you make and then probably having to put the
extra on your credit card, unfortunately. This proposal will drive
consumer spending. It will allow them to pay for some things they can't
buy now. These kids outgrow their shoes so fast. The bookbags don't
make it through a year. There are so many things we could be helping
families with, and our tax reforms should do that.
Everybody in this town has a trade association, has a lobbyist, has
newspapers that write about them. Who writes about them? Who writes
about these working Americans--working Americans, not people asking for
anything from the government. They go to work. They work hard. They
work every day. Who fights for them? Who talks about them? Who
represents them? That is supposed to be us.
If we are serious about representing them, then let's prove it. Let's
amend this bill and change it so we can give working Americans the
raise they deserve, and that they need, to strengthen our country and
strengthen our families.
I yield the floor.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the Katsas nomination?
Mr. RUBIO. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant bill clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Tennessee (Mr. Corker) and the Senator from Arizona (Mr.
The result was announced--yeas 50, nays 48, as follows:
[Rollcall Vote No. 283 Ex.]
The nomination was confirmed.
The PRESIDING OFFICER (Mr. Rubio). The majority leader.
Mr. McCONNELL. Mr. President, I ask unanimous consent that with
respect to the Katsas nomination, the motion to reconsider be
considered made and laid upon the table, the President be immediately
notified of the Senate's action, and the Senate then resume legislative
The PRESIDING OFFICER. Without objection, it is so ordered.