Schumer Floor Remarks On Leader McConnell And Senate Republicans’ Debasement Of Senate Rules

April 3, 2019

Washington, D.C. – U.S. Senator Chuck Schumer today spoke on the Senate floor regarding Leader McConnell’s plan to invoke  the terribly destructive nuclear option to fast-track even more of President Trump’s ultra-conservative nominees. Below are his remarks, which can also be viewed here:

This is a very sad day for the Senate. At a time when Leader McConnell brags about confirming more judges than anyone has done in a long time, he feels the need to invoke the terribly destructive and disproportionate procedure of the nuclear option in order to fast-track even more of President Trump’s ultra-conservative nominees to the federal bench.

Before I discuss in greater detail, I want to note for the record, Democrats were prepared to confirm the nomination of Mr. Kessler by unanimous consent. So the cloture vote we had was unnecessary.

Now, if you’ve been listening to senators debate this issue in recent days, you’ve heard a lot of claims and counter-claims about cloture votes; about rates of confirmation for Circuit and District Courts in different congresses; about judicial vacancies; and other arcane things that may not sound very illuminating. 

So I want to start by making clear what this debate is really all about. I want to issue a warning about what is at stake in this fight. 

Underneath all the statistics, what Leader McConnell, President Trump, and Republicans in the Senate are trying to do is use the courts to adopt a far-right agenda that Republicans know they cannot enact through the legislative process. 

Why can’t they?  Because it’s an agenda the American people reject, an agenda set by the far-right that Republicans in the Senate follow. 

Senator McConnell and Republicans in Washington understand that they will never persuade enough Americans to support backward goals like ending women’s reproductive freedom; taking away health care; rolling back civil rights; making it more difficult to vote; or abolishing safeguards for clean air and clean water. 

Instead, they decided there was another route to achieving their policy goals, one that requires neither public support nor legislation:  the courts.  So Republicans, pressured by the hard-right and wealthy special interest donors, launched a sustained effort to pack the courts with very, very conservative judges – preferably young ones who would sit on the bench for decades. These prospective judges were identified as early as law school, having signaled their hard-right leanings through their writings or their membership in conservative groups like the Federalist Society. 

Nominees like these started to appear during the George W. Bush administration. 

Take Miguel Estrada, a Bush nominee with no judicial experience, who held a Federalist Society membership but had no writings, and claimed he had never even thought about Roe v. Wade.

Or William Pryor, another Bush nominee who called Roe “the worst abomination in the history of constitutional law” and who argued that states should have the right to criminalize homosexuality.

Or take Charles Pickering who advocated a reduced sentence for a man convicted of burning a cross in the front yard of an interracial couple. Before the Republicans launched their campaign to remake the courts, neither party would have dared put forward such radical nominees.

Starting with his campaign, and into his Presidency, President Donald Trump has been captive – totally captive – to the conservative campaign to take over the courts. Before he was a presidential candidate, Mr. Trump had been a Democrat and a person with no fixed judicial philosophy, so conservatives didn’t trust him. He and his advisors came up with a solution: ask the Federalist Society to produce a list of far-right Supreme Court nominees, and then have candidate Trump pledge to only nominate people on that list. 

And not just the Supreme Court, the Federalist Society played and continued to play a huge influence on nominees to the Circuit Courts.

No other presidential candidate had so willingly and openly outsourced judicial nomination decisions this way. But it mollified the hard-right, and the president has dutifully nominated people from the list to the Supreme Court. He has made similarly ideological choices for the Circuit and District Courts. 

This is an alarming strategy, because over the last two years, President Trump has nominated – and Senate Republicans have advanced – the most unqualified and radical nominees in modern times.

Consider the nomination of Ryan Bounds, who misled the Oregon Senators’ bipartisan judicial selection committee about his controversial writings in the past, writings in which he dismissed efforts to increase diversity as mere “race-think,” criticized Stanford University’s suggested punishment for students who defaced an LGBT pride statue, criticized a student group for protesting a hotel company that had fired workers trying to unionize, and disregarded the value of university disciplinary actions against students accused of sexual violence.

Five members of the seven members of Oregon’s in-state screening committee – including the committee’s chair – said they would NOT have recommended Bounds had they known of his college writings when they first interviewed him. 

Fortunately, it became clear that a few Republicans would not support Mr. Bounds on the floor, and his nomination was withdrawn.

Or consider the nomination of Thomas Farr, who had an extensive record defending discriminatory voting laws and racial gerrymandering in North Carolina. He is also credibly alleged to have played a role in Jesse Helms campaign’s voter suppression efforts, including sending over 100,000 postcards to heavily African-American precincts that “falsely told voters that they could be found ineligible to vote based on several conditions involving place and length of residence.” Yet amazingly, after something as despicable as that, President Trump and Leader McConnell pushed hard for his nomination, but it could not withstand scrutiny by the Senate, and was ultimately withdrawn due to the united Democratic opposition and a few conscientious Republican senators. 

I would note that in the cases of both Mr. Farr and Mr. Bounds, the Republican concerns only emerged at the end of post-cloture debate time, which Republicans now propose to limit. Had we only had two hours, horrible, horrible nominees – way beyond the bounds of normal nomination and discourse even from conservatives – like Farr, like Bounds would be sitting on the courts today.

I agree with what my colleague Senator Klobuchar has said: two hours for a lifetime appointment is unacceptable. Two hours for a lifetime appointment with huge influence on people’s lives is unacceptable. It’s ridiculous. It’s a mockery of how this institution should work.

It’s not just the courts. There are many examples in the executive branch, as well. Ann Marie Buerkle, nominated to chair the CPSC. Just today, the Washington Post reported the nominee blocked action at the Commission to recall hundreds of thousands of potentially defective baby strollers – even in the face of reports that they caused “potentially life-threatening injuries.” She even kept Democratic commissioners in the dark about the investigation.

And of course, there’s Chad Readler, who led the charge to end pre-existing condition protections. President Trump and Senate Republicans – the self-declared “party of healthcare” – rewarded him by overwhelmingly confirming him to a lifetime position as a circuit court judge. Despite Mr. Readler’s conspicuous role in trying to curtail Americans’ health care, no Republicans were willing to stand up to President Trump and vote against his confirmation.

Now, at this point people listening to these proceedings might be asking themselves:  What happened when a Democratic president occupied the White House? 

 

The answer is that Republicans, led by Senator McConnell, remained undeterred. 

In such times, they chose to employ the extraordinary tactic of denying confirmation to a Democratic president’s nominees in order to hold vacancies open until a Republican could regain the presidency. 

It was an audacious and insidious gambit, a way to nullify a Democratic president’s power to fill judicial vacancies.

We saw this tactic during the Clinton administration, when Republicans on the Judiciary Committee killed a number of President Clinton’s quite moderate judicial nominees –even without the basic courtesy of a hearing.

We saw it again during the Obama administration, when Republicans used the filibuster and other forms of delay to more than double the number of Circuit and District Court vacancies. During Obama’s last two years in office, the Republican Senate confirmed fewer Circuit Court nominees than in any Congress in 70 years.

And then, in March of 2016, Senator McConnell and Senate Republicans took this maneuver to a new, Machiavellian low. 

They refused to even consider President Obama’s nomination to the Supreme Court of U.S. Circuit Judge Merrick Garland, one of the most respected jurists in the nation and a man known not only for his judicial excellence and perfect judicial temperament, but his moderation. 

In fact, Senator Orrin Hatch, a conservative’s conservative, the former chairman of the Judiciary Committee, had previously endorsed Judge Garland for the Supreme Court. 

But the merits didn’t concern Senator McConnell.  His cynical strategy required Republicans to block the Garland nomination for almost a year, until after President Obama’s second term ended.  And that is exactly what they did. 

It was widely condemned as a naked power grab that nullified a president’s constitutional authority.  It was a terrible, deeply lamentable moment for our democracy and our Constitution. 

And yet, and yet, as the New York Times reported, Senator McConnell says it was one of his “proudest achievements.”

After President Trump took office, Republicans sensed an opportunity to grease the conveyor belt even more. Senator McConnell ordered the Judiciary Committee Chairman to do away with the longstanding practice that Senators be consulted about Circuit Court judicial nominees in their home states. 

The “blue slip” tradition ensured that judicial nominees reflected the ideology and values of the state to which they were nominated. It provided some healthy counterbalance against nominees who were outside the mainstream from either party, or were lacking in proper qualifications. 

Thanks to Senate Republicans, led by Senator McConnell, that protection is now history. 

So when Republicans complain about Democratic handling of nominees, there’s no other word for it but hypocrisy. 

You don’t have to take my word for it:  according to the Congressional Research Service, more circuit judges have been confirmed in the first two years of the Trump administration than in the first two years of any presidency since at least the Truman administration. 

The Majority Leader himself has celebrated the pace of confirmations.  He bragged about it to the Heritage Foundation!  He said this to them just a few months ago, “We confirmed every circuit judge.  We’ve now done 29 circuit judges.  That’s a record for this quick in any administration in history.” Those are Leader McConnell’s words not mine, and now we have to change the rules? Even though you have confirmed more circuit court judges than anyone in history! That’s a shame. That’s a disgrace. That is not the Senate we want.

For Leader McConnell to brag about confirming more judges than ever before, and then complain about Democratic obstruction and say the process is broken so they have to change the rules, is the height of hypocrisy.

Now, Leader McConnell and Senate Republicans also complain about the pace of confirmation for President Trump’s executive branch and independent agency choices. 

They conveniently omit Republicans’ sorry record of obstruction of nominees to Democratic seats at important agencies like the National Labor Relations Board, the Federal Deposit Insurance Corporation and the Securities and Exchange Commission, which have suffered as Republicans caused dedicated public servants like former NLRB Chair Mark Pearce to languish for months or even years. 

It’s actually a little surprising that Leader McConnell and his Republican colleagues would draw attention to the subject of executive nominees now, given the appalling history of incompetence, corruption and venality among President Trump’s so-called “best people.” Not to mention the fact that there are hundreds of vacancies the president can’t even be bothered to fill. 

Staffing the government is serious business.  And so is the system of justice assigned to our courts by the Constitution. 

They both deserve better than Senate Republicans’ cynical, partisan efforts to turn the Senate into a “conveyor belt” for ideological conservatives.

The notion that President Trump’s judicial nominees have been treated unfairly is simply false. Simply false. There’s no truth to it as all these statistics that I have talked about have shown.

What Republicans really want to see is the elimination of yet another norm of the Senate, so they can automate, and expedite, the nomination process without a modicum of debate. 

They’re all for “consent” with no “advice.”  With all undue haste, they want to pack the courts with partisan warriors, not impartial jurists.  It’s outrageous.

Democrats have a different view of who should sit on the federal bench. We have a different view of the role of this chamber. Our judicial system works best when we hold nominees to three simple standards: excellence, moderation, diversity. These are not ideological litmus tests, they are the pillars of a healthy system of justice.

They are the benchmarks by which we can rest assured that the men and women who are appointed to the federal bench will respect the rule of law and execute their duties impartially.

And it cuts both ways – when Republicans are prepared to act in good faith and advance nominees of high caliber, we are ready to give them the consideration they deserve.

Mr. President, for generations, the United States Senate has done the work of the American people through consensus, through compromise, through cooperation.

It’s been the place where seemingly impossible disagreements have found sensible solutions. Indeed: the legacy of the Senate is a story of debate, ample debate, followed by compromise.

And it’s thanks in large part to the rules that govern how this chamber works. It is crucial that those rules not be twisted or abused for partisan advantage.

The Majority, by taking yet another step to erode that legacy, risks turning this body into a colosseum of zero-sum infighting, a place where the brute power of the majority rules, with little or no regard to the concerns of the minority party, and where long standing rules have little or no meaning. 

I’m sorry, my Republican colleagues have gone along with Senator McConnell’s debasement of the Senate. 

To do this for such blatantly political ends is simply unworthy of this institution.

I yield the floor.

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