[Pages S4098-S4101]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Cloture Motion
The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before
the Senate the pending cloture motion, which the clerk will state.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the nomination
of David Bernhardt, of Virginia, to be Deputy Secretary of
the Interior.
Mitch McConnell, Roger F. Wicker, John Thune, Tim Scott,
John Hoeven, Pat Roberts, Orrin G. Hatch, Tom Cotton,
John Barrasso, Thom Tillis, Michael B. Enzi, John
Boozman, James M. Inhofe, John Cornyn, James Lankford,
Mike Rounds, Cory Gardner.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of David Bernhardt, of Virginia, to be Deputy Secretary of
the Interior, shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The bill clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Arizona (Mr. McCain), the Senator from Kansas (Mr. Moran),
and the Senator from Nebraska (Mr. Sasse).
Mr. DURBIN. I announce that the Senator from Vermont (Mr. Leahy) and
the Senator from Michigan (Ms. Stabenow) are necessarily absent.
The PRESIDING OFFICER (Mr. Perdue). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 56, nays 39, as follows:
[Rollcall Vote No. 165 Ex.]
YEAS--56
Alexander
Barrasso
Bennet
Blunt
Boozman
Burr
Capito
Cassidy
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Cruz
Daines
Donnelly
Enzi
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heinrich
Heitkamp
Heller
Hoeven
Inhofe
Isakson
Johnson
Kennedy
King
Lankford
Lee
Manchin
McConnell
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Schatz
Scott
Shelby
Strange
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--39
Baldwin
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Franken
Gillibrand
Harris
Hassan
Hirono
Kaine
Klobuchar
Markey
McCaskill
Menendez
Merkley
Murphy
Murray
Nelson
Peters
Reed
Sanders
Schumer
Shaheen
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT VOTING--5
Leahy
McCain
Moran
Sasse
Stabenow
The PRESIDING OFFICER. On this vote, the yeas are 56, the nays are
39.
The motion is agreed to.
The Senator from Utah.
Mr HATCH. Mr. President, is it appropriate to make a speech at this
time?
The PRESIDING OFFICER. It is.
Mr. HATCH. Thank you, Mr. President.
President Ronald Reagan used to say that people are policy. Attacking
a new President's policies, therefore, often includes undermining his
or her ability to appoint men and women to lead his or her
administration.
The Constitution gives to the President the power to appoint
executive branch officials. The Senate has the power of advice and
consent as a check on that appointment power.
In the early months of the Obama administration, Senate Democrats
were clear about how we should carry out our role in the appointment
process. Less than 2 weeks after President Obama took office, the
Judiciary Committee chairman said he wished that the Senate could have
put the new Justice Department leadership in place even more quickly.
Just 3 months into President Obama's first term, the chairman argued
that, ``at the beginning of a presidential term, it makes sense to have
the President's nominees in place earlier, rather than engage in
needless delay.''
Well, actions speak much louder than words. With a Republican in the
White House, Senate Democrats have turned our role of advice and
consent into the most aggressive obstruction campaign in history.
This chart is an illustration.
Democrats complained about obstruction when, during the first 6
months of the Obama administration, the Senate confirmed 69 percent of
his nominations. Today marks 6 months since President Trump took the
oath of office, and the Senate has been able to confirm only 23 percent
of his nominations.
I ask my Democratic colleagues: If 69 percent is too low, what do you
call a confirmation pace that is two-thirds lower?
Democrats do not have the votes to defeat nominees outright. That is
why the centerpiece of their obstruction campaign is a strategy to make
confirming President Trump's nominees as difficult and time-consuming
as possible.
Here is how they do it. The Senate is designed for deliberation as
well as for action. As a result, the Senate must end debate on a
nomination before it can confirm that nomination. Doing so informally
is fast. Doing it formally is slow.
In the past, the majority and minority informally agreed on the
necessity or length of any debate on a nomination, as well as when a
confirmation vote would occur. The first step in the Democrats'
obstruction campaign, therefore, is to refuse any cooperation on
scheduling debates and votes on nominations. The only option is to use
the formal process of ending debate by invoking cloture under Senate
rule XXII. A motion to end debate is filed, but the vote on that motion
cannot occur for 2 calendar days. If cloture is invoked, there can then
be up to 30 hours of debate before a confirmation vote can occur.
The Democrats' obstruction playbook calls for stretching this process
out as long as possible. While informal cooperation can take a couple
of hours, the formal cloture process can take up to several days.
The late Senator Daniel Patrick Moynihan once said that you are
entitled to your opinion, but not to your own set of facts. I would
state, then, to let the confirmation facts do the talking.
President Trump and his three predecessors were each elected with the
Senate controlled by his own political party. This is another
illustration right here. At this point in the Clinton and George W.
Bush administrations, the Senate had taken no cloture votes--nothing,
none whatsoever--as you can see, on nominations. We took just four
nomination cloture votes at this point during the Obama administration.
So far in the Trump administration, the Senate has taken 33 cloture
votes on nominations. Think about that. If that isn't obstruction, I
don't know what is. It is not even close.
There is one very important difference between cloture votes taken in
the beginning of the Clinton, Bush, or Obama administrations and those
taken this year. In November 2013, Democrats effectively abolished
nomination filibusters by lowering the vote
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necessary to end debate from a supermajority of 60 to a simple
majority. It now takes no more votes to end debate than it does to
confirm a nomination. In other words, the Senate did not take cloture
votes during previous administrations, even though doing so could have
prevented confirmation.
Today, Democrats are forcing the Senate to take dozens of cloture
votes even though doing so cannot prevent confirmation. At least half
of these useless cloture votes taken so far would have passed even
under the higher 60-vote threshold.
Earlier this week, 88 Senators, including 41 Democrats, voted to end
debate on President Trump's nominee to be Deputy Secretary of Defense.
We have seen tallies of 67, 81, 89, and even 92 votes for ending
debate. Meanwhile, these needless delays are creating critical gaps in
the executive branch.
A clear example is the nomination of Makan Delrahim, a former Senate
staffer whom everybody on both sides knows, is a wonderful guy, and who
everybody knows is honest. But this clear example is the nomination of
Delrahim to head the Antitrust Division at the Department of Justice.
Antitrust enforcement is a critical element of national economic
policy. It protects consumers and businesses alike, and, without
filling these important posts, uncertainty in the market reigns. This
is a particular problem at a time of common and massive mergers and
acquisitions. Yet Mr. Delrahim, like dozens of others, has been caught
in the maelstrom of delays. Mr. Delrahim was appointed out of the
Judiciary Committee on a 19-to-1 vote. Everybody there knows how good
he is, how decent he is, how honorable he is, and how bipartisan he has
been. He is supremely qualified and enjoyed broad support throughout
the Senate as a whole. Yet his nomination, like so many others,
languishes on the floor because of Democratic obstruction. Indeed, it
has taken longer to get Mr. Delrahim confirmed than any Antitrust
Division leader since the Carter administration. Keep in mind that this
is a former staffer of ours who served both Democrats and Republicans.
Regarding the delay of Mr. Delrahim's confirmation, I ask unanimous
consent to have two news articles printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From www.wsj.com, July 12, 2017]
Senate Fight Over Trump's Nominees Heats Up
(By Brent Kendall and Natalie Andrews)
Washington--A congressional battle over President Donald
Trump's nominations for a range of influential positions is
escalating and becoming more acrimonious, creating additional
uncertainty over when some notable government vacancies might
be filled.
Mr. Trump has been slower than recent presidents to roll
out nominees. But for an array of people the president has
selected, Senate Democrats are using procedural tactics to
slow the confirmation process to a crawl--at least in part to
object to the lack of open hearings on health-care
legislation, Democratic leaders say.
More than 30 nominees are sitting on the sidelines while
they await a final Senate confirmation vote. Those include
several picks for the Justice and Treasury departments, as
well as new commissioners for a federal energy regulator that
has been unable to conduct official business because of its
vacancies.
If the currept pattern holds, many of these people may not
be confirmed for their jobs before the Senate takes a break
in mid-August. Senate Minority Leader Chuck Schumer (D.,
N.Y.) in most circumstances has been invoking Senate
procedures to require up to 30 hours of debate per nominee,
an amount of Senate floor time that means lawmakers can't
confirm more than a handful of nominees each week.
The minority party often waives a requirement for lengthy
debate, but Democrats are generally declining to do so. In
response to GOP complaints, they cite what they call
Republican obstructionism under President Barack Obama,
including Republicans' refusal to hold a hearing or vote on
Mr. Obama's Supreme Court nominee, Merrick Garland.
In the current environment, even noncontroversial nominees
can take up several days of Senate time. For example, the
Senate spent much of the first part of the week considering
the nomination of David Nye to be a federal judge in Idaho.
Mr. Nye was originally nominated by Mr. Obama and Mr. Trump
renominated him after taking office.
Senators took a procedural vote Monday on Mr. Nye, but he
wasn't confirmed until Wednesday afternoon, on a 100-0 vote.
Raw feelings on both sides of the aisle erupted this week.
Republicans accused Democrats of unprecedented obstruction,
saying it would take the Senate more than 11 years at the
current pace before Mr. Trump could fully staff a government.
White House legislative affairs director Marc Short, in a
press briefing Monday, accused Mr. Schumer of being an
irresponsible champion of the ``resist'' movement. Senate
Majority Leader Mitch McConnell (R., Ky.) cited the issue as
a top reason for his decision to push back the Senate's
planned August recess by two weeks.
On the Senate floor Wednesday, Mr. McConnell said Democrats
were ``bound and determined to impede the president from
making appointments, and they're willing to go to
increasingly absurd lengths to further that goal.''
Democrats dismiss such characterizations given what they
see as unprecedented Republican tactics toward Mr. Obama's
nominees, especially Judge Garland. In February 2016,
Republican Senate leaders said they wouldn't consider a
Supreme Court nominee until after the election.
Democrats also note that Mr. Trump has yet to name people
for hundreds of vacancies and say there have been paperwork
problems with a number of people he has chosen.
``Our Republican friends, when they're worried about the
slow pace of nominations, ought to look in the mirror,'' Mr.
Schumer said on the Senate floor on Tuesday. The GOP
complaints about the pace of confirmations, he added, ``goes
to show how desperate our Republican leadership is to shift
the blame and attention away from their health-care bill.''
Mr. Schumer has said Democrats will generally insist on
lengthy Senate debate time for nominees until Republicans
start using traditional Senate procedures for advancing their
health legislation, including committee hearings and bill
markups.
Mr. McConnell has said Republicans have held numerous
hearings on ACA issues in the past and it isn't necessary to
do so for the current legislation.
Unlike the political fights earlier in the year over some
of Mr. Trump's cabinet picks and his Supreme Court nomination
of Neil Gorsuch, the current nominees at the head of the
queue aren't high-profile, and some have bipartisan support.
Those awaiting Senate floor action include Makan Delrahim,
in line to lead the Justice Department's antitrust division.
Mr. Delrahim, a deputy White House counsel who served as a
government antitrust lawyer in the George W. Bush
administration, was approved by the Senate Judiciary
Committee five weeks ago on a 19-1 vote.
Among its current pending matters, the antitrust division
is deep into its review of AT&T Inc.'s proposed $85 billion
deal to acquire Time Warner Inc., a transaction announced in
October.
Also pending are two picks for Republican seats on the
Federal Energy Regulatory Commission, which usually has five
members but currently has just one. Since February, the
commission has lacked a quorum to conduct official business
such as approving energy infrastructure projects. The
nominees, Neil Chatterjee, a McConnell aide, and Robert
Powelson, each were approved on a 20-3 vote by the Senate
Energy and Natural Resources Committee last month.
Mr. Trump may have made a tactical misstep by not moving to
fill an open Democratic FERC seat at the same time he
announced the GOP nominees in May. For government commissions
made up of members from both parties, presidents usually look
to pair Democratic and Republican nominees, which gives both
sides an incentive to move forward with the nominations. Mr.
Trump in late June announced his intention to nominate
Richard Glick, a Democratic Senate staffer, for an open FERC
seat, but he hasn't done so yet.
Other pending nominees include Boeing executive Patrick
Shanahan to be deputy secretary of defense, the No. 2 slot at
the Pentagon, and Kevin Hassett to be the chairman of the
Council of Economic Advisers.
Dozens of other nominees have been working their way
through Senate committees and could be in line for full
Senate consideration in the coming weeks. Those include
Christopher Wray for FBI director as well as two nominees for
the Nuclear Regulatory Commission.
____
[From Law360, New York, July 14, 2017]
Wait To Confirm Trump's Antitrust Chief Longest In 40 Years
(By Eric Kroh)
It has taken longer for the administration of President
Donald Trump to get its top antitrust lawyer in place at the
U.S. Department of Justice than any since President Jimmy
Carter, leaving the division running at a limited clip some
six months into Trump's tenure.
As of Friday, it has been 175 days since Trump's
inauguration, and his nominee for assistant attorney general
in charge of the DOJ's antitrust division, Makan Delrahim,
has yet to be approved by the full Senate despite pressing
matters such as the government's review of AT&T's proposed
$85 billion acquisition of Time Warner.
After taking office, Trump's five predecessors had their
nominees to head the antitrust division confirmed by June at
the latest. In the last 40 years, only Carter has taken
longer to get his pick permanently installed after a change
in administration. Carter nominated John H. Shenefield to be
assistant attorney general on July 7, 1977, and he was
confirmed on Sept. 15 of that year.
[[Page S4100]]
On the rung below, only two of five deputy assistant
attorney general positions are currently filled at the
antitrust division. Though the division is largely staffed by
career employees and has been humming along under acting
directors, the lack of a confirmed head and the vacancies at
the deputy level could be a sign that the administration
doesn't place a high priority on antitrust matters, according
to Christopher L Sagers of the Cleveland-Marshall College of
Law at Cleveland State University.
``It doesn't seem like this particular White House has been
as interested in the day-to-day administration of government
as it has been in political issues,'' Sagers said. ``I don't
think that bodes particularly well for antitrust
enforcement.''
Trump did not take especially long to nominate Delrahim. It
had been 66 days since his inauguration when Trump announced
his choice on March 27. Former President Barack Obama was
relatively speedy with his pick, naming Christine A. Varney
to the position a mere two days after taking the oath of
office. On average, though, the six presidents before Trump
took about 72 days to announce their nominees.
However, it has taken an unusually long time for Delrahim
to make it through the logjam of nominations in the Senate.
As of Friday, it has been 109 days since Trump announced
Delrahim as his pick to lead the antitrust division. Of the
past six administrations, only President George W. Bush's
nominee took longer to confirm when the Senate approved
Charles A. James on June 15, 2001, 120 days after he was
nominated.
Popular wisdom holds that the antitrust division is
hesitant to launch any major merger challenges or cartel
investigations when it is operating under an acting assistant
attorney general, but that is largely a canard, Sagers said.
It's true that the division has been mainly focused on
addressing litigation and deal reviews that were already
ongoing when Trump took office and continuing probes begun
under Obama. However, past acting assistant attorneys general
have not been afraid to take aggressive enforcement actions,
such as the DOJ's challenge to AT&T's acquisition of T-Mobile
in 2011 under acting head Sharis A. Pozen, Sagers said.
Nevertheless, the lack of permanent leadership is likely
being felt at the division, Sagers said.
``At a minimum, it's a burden on the agency's ability to
get all its work done,'' he said.
For example, the DOJ asked the Second Circuit on two
occasions for more time to file its opening brief in a case
involving the government's interpretation of a decades-old
antitrust consent decree that applies to music performing
rights organization Broadcast Music Inc. In its request, the
DOJ said it needed to push back the filing deadline because
of the turnover in leadership at the antitrust division.
``Given the context of decrees that govern much of the
licensing for the public performance of musical works in the
United States, this is an important issue,'' the DOJ said in
an April court filing. ``In the meantime, there is still an
ongoing transition in the leadership in the Department of
Justice, and this is a matter on which the newly appointed
officials should have an opportunity to review any brief
before it is filed.''
The Second Circuit ultimately declined to grant the DOJ's
second request for an extension.
The setting of big-picture policies at the antitrust
division such as in the BMI case is exactly the kind of thing
that can fall by the wayside under temporary leadership,
Sagers said.
Depending on the industry, companies may also be waiting to
see the direction the DOJ takes on merger reviews under the
Trump administration before deciding to follow through with
or pursue large deals, according to Andrea Murino, a partner
with Goodwin Procter LLP.
``I do think it is something you have to factor in,''
Murino said.
Dealmakers may be watching to see how the DOJ acts on
blockbuster transactions such as the AT&T-Time Warner merger.
The antitrust division also has to decide whether to
challenge German drug and chemicals maker Bayer AG's $66
billion acquisition of U.S.-based Monsanto Co.
The antitrust division's tenor will in large part be set by
who will serve under Delrahim in the deputy assistant
attorney general positions. Following Delrahim's
confirmation, current acting Assistant Attorney General
Andrew Finch will serve as his principal deputy. Last month,
the DOJ named Donald G. Kempf Jr. and Bryson Bachman to two
of the deputy assistant attorney general openings, leaving
three vacancies remaining.
While it's preferable to have a full slate of officials and
enforcers in place, the antitrust division will continue to
review deals, go to court and police cartels until those
seats are filled, Murino said.
``They've gone through this before, maybe just not for this
length of time,'' she said. ``There is a slew of really
talented career people that do not change with the political
administration.
As long as those people are in place, they will keep the
trains running on time.''
Mr. HATCH. Mr. President, Mr. Delrahim's appointment is just one
example among many. This particular example serves an important case in
point. Democrats are deliberately slow walking dozens of confirmations
in a cynical effort to stall the President's agenda and hurt the
President, but they are hurting the country, and they are hurting the
Senate. They are hurting both sides.
I don't want to see Republicans respond in kind when Democrats become
the majority and when they have a President.
It won't surprise anyone to hear that they are not limiting their
obstruction campaign to executive branch nominees. In fact, looking at
the judicial branch shows that this is part of a long-term obstruction
strategy. In February 2001, just days after the previous Republican
President took office, the Senate Democratic leader said they would use
``any means necessary'' to obstruct the President's nominees. A few
months later Democrats huddled in Florida to plot how, as the New York
Times described it, to ``change the ground rules'' of the confirmation
process. And change the ground rules is exactly what they did.
For two centuries, the confirmation ground rules called for reserving
time-consuming rollcall votes for controversial nominees so that
Senators could record their opposition. Nominations with little or no
opposition were confirmed more efficiently by voice vote or unanimous
consent.
Democrats have literally turned the confirmation process inside out.
Before 2001, the Senate used a rollcall vote to confirm just 4
percent--4 percent--of judicial nominees and only 20 percent of those
rollcall votes were unopposed nominees.
During the Bush Administration, after Democrats changed the ground
rules, the Senate confirmed more than 60 percent of judicial nominees
by rollcall vote, and more than 85 percent of those rollcall votes were
on unopposed nominees.
Today, with a Republican President again in office, Democrats are
still trying to change the confirmation ground rules. The confirmation
last week of David Nye to be a U.S. district judge was a prime example.
The vote to end debate on the Nye nomination was 97 to 0. In other
words, every Senator, including every Democrat, voted to end the
debate. Most people with common sense would be asking why the cloture
vote was held at all and why the delay.
But Democrats did not stop there. Even after a unanimous cloture
vote, they insisted on the full 30 hours of postcloture debate time
provided for under Senate rules. To top it off, the vote to confirm the
nomination was 100 to 0.
I don't want anyone to miss this. Democrats demanded a vote on ending
a debate none of them wanted, and then they refused to end the debate
they had just voted to terminate--all of this on a nomination that
every Democrat supported. That is changing the confirmation ground
rules.
Only four of the previous 275 cloture votes on nominations had been
unanimous. In every previous case, whatever the reason was for the
cloture vote in the first place, the Senate proceeded promptly to a
confirmation vote.
In 2010, for example, the Senate confirmed President Obama's
nomination of Barbara Keenan to the Fourth Circuit 2 hours after
unanimously voting to end debate.
In 2006 the Senate confirmed the nomination of Kent Jordan to the
Third Circuit less than 3 hours after unanimously ending debate.
In 2002 the Senate confirmed by voice vote the nomination of Richard
Carmona to be Surgeon General less than 1 hour after unanimously ending
debate.
The Nye nomination was the first time the Senate unanimously invoked
cloture on a U.S. district court nominee. This was the first time there
was a unanimous vote to end debate on any nomination on which the
minority refused to allow a prompt confirmation vote.
Here is another chart that shows the percent confirmed by rollcall
vote during the Clinton administration, the George W. Bush
administration, and the Obama administration. Here we have the Trump
administration, and, as you can see, they are not confirming his
nominees even if they are qualified and the Democrats admit it. No
matter how my friends across the aisle try to change the subject, these
facts are facts.
While the Senate used time-consuming rollcall votes to confirm less
[[Page S4101]]
than 10 percent of the previous three Presidents' executive branch
nominees, under President Trump, it is nearly 90 percent.
I admit the Democrats are bitter about the Trump win. I understand
that. Everybody on their side expected Hillary Clinton to win. Many on
our side expected her to win as well. But she didn't. President Trump
is now President, and he did win, and he is doing a good job of
delivering people up here to the Senate for confirmation.
This is not how the confirmation process is supposed to work.
The Constitution makes Senate confirmation a condition for
Presidential appointments. This campaign of obstruction is exactly what
the Senate Democrats once condemned. Further poisoning and politicizing
the confirmation process only damages the Senate, distorts the
separation of powers, and undermines the ability of the President to do
what he was elected to do.
I hope our colleagues on the other side will wise up and realize that
what they are doing is destructive to the Senate, harmful to the
Senate, and it is a prelude to what can happen when they get the
Presidency. I don't want to see that happen on the Republican side.