[Pages S6945-S6963]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE CALENDAR

The PRESIDING OFFICER. The clerk will report the nomination.
The senior assistant legislative clerk read the nomination of Allison
H. Eid, of Colorado, to be United States Circuit Judge for the Tenth
Circuit.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. GARDNER. Mr. President, I rise today to add my voice and my
strong support for the confirmation of Colorado Supreme Court Justice
Allison Eid as the next U.S. court of appeals judge for the Tenth
Circuit Court, which, of course, is housed in Denver, CO.
There is no doubt that Justice Eid is superbly qualified for this
position. For the past decade, she has served Colorado as a justice on
the supreme court. In 2008, Justice Eid was overwhelmingly retained by
the people of Colorado. We have a system where every decade the voters
of Colorado vote to retain or dismiss a judge, and every time that has
come before the people of Colorado, she has been overwhelmingly
retained by the people of Colorado.
Prior to her appointment, Justice Eid represented the State of
Colorado before the State federal courts as our State solicitor
general. She served as a tenured member of the faculty at the
University of Colorado Law School, where she taught courses in
constitutional law, legislation, torts, and she has published scholarly
articles on topics such as constitutional federalism and tort law, in
addition to being a clerk on the Supreme Court. She also practiced
commercial and appellate litigation at the Denver office of the
national law firm Arnold and Porter.
She began her legal career as a clerk to Judge Jerry E. Smith on the
U.S. Court of Appeals for the Fifth Circuit. Her law experience took
her to the U.S. Supreme Court under Clarence Thomas. Prior to attending
law school, Justice Eid was a special assistant and speechwriter for
the U.S. Secretary of Education, Bill Bennett. She received her law
degree from the University of Chicago Law School, where she was the
articles editor of the Law Review. She graduated with high honors and
as a member of the Order of the Coif. She received her degree in
American studies from Stanford University, graduating with distinction
as a member of Phi Beta Kappa.
What her resume clearly shows is that whatever Justice Eid does, she
does it at the highest level, with the best results. She has
specialized knowledge of federalism, water law, and Indian law, among
other important areas of the law. Indeed, the National Native American
Bar Association has even noted that she has ``significantly more
experience with Indian law cases than any other recent Circuit Court
nominee.''
We have had some pretty doggone good circuit court nominees in the
past, including Justice Neil Gorsuch, whose seat she will be filling on
the Tenth Circuit Court. These are concepts that are critical to my
home State of Colorado, and her expertise will prove to be invaluable
to the Tenth Circuit Court, as well as to the Nation and the people of
this country.
But as impressive as her credentials are, it is her demeanor and her
approach to the law that make her ideally suited for the court. Justice
Eid has been called a ``mainstream, commonsense Westerner.'' She is
also, as her former law clerks have noted, ``fiercely independent,''
and she will decide cases ``as she believes the law requires.'' At the
same time, she seeks out different viewpoints and wants to understand
all sides of the issue she addresses.
That is the law professor I know from my days at the University of
Colorado School of Law. I can say from that experience that while
Justice Eid has her perspectives on the law, she cares very deeply
about robust debate and hearing the views of others. And I know from my
classmates who had Justice Eid as their professor--those classmates
didn't always agree with her perspectives, but Justice Eid was open to
their debate and hearing their views. She engaged them, and she was
never biased against differing perspectives but always applying the law
as the law required, not as opinions suited.
I also know that ``fiercely independent'' jurist whom her former
clerks spoke so highly of. Justice Eid will follow the law regardless
of the popular wind, regardless of personal opinion. Whether
considering the plain meaning of a statute, discerning the proper role
of the courts, the legislative branch, or the executive and its
agencies, or evaluating the relationships between the Federal
Government and the States, Justice Eid will side with what the law
says, and she will do it in that commonsense, western way that clearly
and articulately tells the American people what the law is.
I am privileged to know Justice Eid. I have known her for a number of
years now from my days as a student at the University of Colorado
School of Law and through her work in the State of Colorado at the time
that I served in the State legislature. She is an incredible human
being with a delightful demeanor that will suit the court well.
Mr. President, I ask unanimous consent to have printed in the Record
several letters in support of Justice Eid's nomination: a letter to
Chairman Grassley and Ranking Member Feinstein from former law clerks
of Justice Eid's, as well as a letter from various supporters in
Colorado and one letter from the Southern Ute Indian Tribe.
There being no objection, the material was ordered to be printed in
the Record, as follows:

July 13, 2017.
Dear Chairman Grassley and Ranking Member Feinstein: We are
all of Justice Eid's former law clerks (except those
currently clerking for a federal judge and not permitted to
sign) since she began her tenure on the Colorado Supreme
Court in 2006, and we write to give our fullest support to
her nomination to be a judge on the United States Court of
Appeals for the Tenth Circuit. We come from a diverse set of
geographic, economic, cultural, and political backgrounds,
yet we are united in our belief that Justice Eid is a jurist
and a person of the highest caliber and character. We have
each learned so much from her.
Justice Eid was raised by a single mother in Spokane,
Washington under challenging circumstances, after her father
abandoned her family. Justice Eid began college at the
University of Idaho, but with the support and encouragement
of her mother and a professor there, Justice Eid transferred
to Stanford University where she graduated with distinction
and was a member of the Phi Beta Kappa honor society. After
Stanford, she served as a speechwriter to President Ronald
Reagan's Secretary of Education, William Bennett, and then
went on to attend the University of Chicago Law School, where
she served as Articles Editor on the Law Review, graduated
with High Honors, and was elected Order of the Coif. Justice
Eid began her legal career as a law clerk for Judge Jerry
Smith on the United States Court of Appeals for the Fifth
Circuit. She then served as a law clerk to Justice Clarence
Thomas on the United States Supreme Court.
In private practice at Arnold and Porter following her
clerkships, Justice Eid practiced both commercial and
appellate litigation for a variety of clients. She departed
private practice and joined academia where she became a
tenured professor at the University of Colorado Law School,
teaching Legislation, Constitutional Law, and Torts, and
serving as the faculty clerkship advisor. During her time at
the University of Colorado, Justice Eid continued her service
in

[[Page S6946]]

the Colorado legal community as President of the Colorado
Association of Corporate Counsel. In 2005 she was appointed
by Colorado Attorney General John Suthers to serve as the
Solicitor General of Colorado. One year later, Governor Bill
Owens appointed Justice Eid to the Colorado Supreme Court
where she has served for 11 years and was successfully
retained by the voters of Colorado on a statewide ballot.
As law clerks we had the distinct privilege and opportunity
to learn by observing Justice Eid throughout her decision
making process. We learned that she never fails to provide
her full attention and dedication to each individual case,
mastering the relevant facts and carefully analyzing the law,
whether the text of a statute or the words of a contract. As
Justice Eid is so fond of saying, she ``goes where the law
takes her.'' In other words, she treats each case
individually without any preconceived notion of desired
outcome.
As young lawyers, we took particular note of the respect
that Justice Eid shows the parties and their attorneys both
in her written work product and during oral argument. We also
observed her belief in the importance of respect and
collegiality with her colleagues, particularly during times
of disagreement. Her chambers are always open, and she wants
to hear different viewpoints (even ours), but she remains
fiercely independent, ultimately deciding cases as she
believes the law requires. And her opinions do just that--in
clean and succinct prose, time and again, Justice Eid
resolves the dispute between the parties and announces a
clear rule of law that can be readily discerned by future
litigants. Her majority opinions in particular are a
testament to the care, dedication, and consensus-building
attitude she brings to her role as a Judge.
While serving as a Justice on the Colorado Supreme Court,
Justice Eid has continued to teach at the University of
Colorado. She also serves as the Chair of the Supreme Court
Water Court Committee, which works to identify rule and
statutory changes to achieve efficiencies in water court
cases, while maintaining quality outcomes for all. Justice
Eid was appointed by Chief Justice John Roberts to serve on
the Federal Advisory Committee on Appellate Rules--a
prestigious appointment where she has served alongside
federal judges, law professors, and lawyers to craft
revisions to the Federal Rules of Appellate Procedure--and by
President George W. Bush to the Permanent Committee for the
Oliver Wendell Holmes Devise (an organization that writes the
history of the United States Supreme Court and sponsors the
Oliver Wendell Holmes Lecture).
Justice Eid is active in her community and church, and as
the mother of two children, Justice Eid has also been
involved in her children's school over the years. In addition
to her service on the Colorado Supreme Court, these other
responsibilities connect her to the Colorado community,
specifically the challenges and issues facing citizens of
this State and will allow her to bring an important
perspective and diverse set of experiences to the United
States Court of Appeals for the Tenth Circuit.
Her qualifications to serve are unparalleled and speak for
themselves. At each stage of her education and career Justice
Eid has excelled at the highest levels and has received
praise, awards, and the utmost respect of her colleagues and
those who have worked for her. This is in no small part due
to her incredible work ethic and her leadership by example.
And we as law clerks have carefully observed and learned from
her simultaneous and unfaltering commitment to both her
family and her position on the Colorado Supreme Court.
We close by reflecting on our fond memories of our
experiences as law clerks under Justice Eid, whether it was a
lunch to celebrate a birthday, officiating numerous of our
weddings, or the annual holiday and summer parties that she
hosts. We all remember the genuine interest and support
Justice Eid provided to us as people and new lawyers. We will
never forget her heartfelt appreciation for our hard work and
the care and time she has taken to guide us through our
clerkships and beyond. She has been an important and
steady mentor in each of our lives. We urge the Senate to
take swift action on her nomination and are available to
speak to any member or their staff about Justice Eid and
her qualifications to serve on the United States Court of
Appeals for the Tenth Circuit.
Sincerely,
Marie Williams, Clerk for Justice Eid, 2006-07; Holly E.
Sterrett, Clerk for Justice Eid, 2006-07; Jared Butcher,
Clerk for Justice Eid, 2007-08; Clark Smith, Clerk for
Justice Eid, 2008-09; Kate Field, Clerk for Justice Eid,
2009-10; Tim Zimmerman, Clerk for Justice Eid, 2010-11; Lee
Fanyo, Clerk for Justice Eid, 2011-12; Jon Gillam, Clerk for
Justice Eid, 2011-12; Jake Durling, Clerk for Justice Eid,
2012-13; Doug Marsh, Clerk for Justice Eid, 2013-14; Jamen
Tyler, Clerk for Justice Eid, 2014-15; Ben Fischer, Clerk for
Justice Eid, 2014-15; Chris Chrisman, Clerk for Justice Eid,
2006-07; Catherine Bazile, Clerk for Justice Eid, 2007-08.
Katie Yarger, Clerk for Justice Eid, 2008-09; Sara Rundell,
Clerk for Justice Eid, 2009-10; Maranda Compton, Clerk for
Justice Eid, 2010-11; Trina Ruhland, Clerk for Justice Eid,
2010-11; Victoria Cisneros, Clerk for Justice Eid, 2011-12/
2012-13; Kate Cahoy, Clerk for Justice Eid, 2012-13; Lidiana
Rios, Clerk for Justice Eid, 2013-14; Ayesha Lewis, Clerk for
Justice Eid, 2013-14; Matt Mellema, Clerk for Justice Eid,
2014-15; Emma Kaplan, Clerk for Justice Eid, 2015-16; Julie
Hamilton, Clerk for Justice Eid, 2016-17; Rob Rankin, Clerk
for Justice Eid, 2016-17; Mairead Dolan, Clerk for Justice
Eid, 2016-17.
____

July 27, 2017.
Re Support for the Confirmation of Justice Allison Eid to the
Tenth Circuit Court of Appeals.
Dear Senators Bennet and Gardner: As members of the
Colorado legal community, we are proud to support the
nomination of Justice Allison Eid to serve as a Judge on the
Tenth Circuit Court of Appeals. We hold a diverse set of
political views as Democrats, Republicans, and Independents.
Our practices range from litigation, including both
plaintiffs' and defense work, to transactional work to
administrative law to child welfare advocacy and from
employment law to water rights and from government affairs to
minerals development, immigration, healthcare, law
enforcement, environmental justice, federal Indian law and
civil rights. This incredibly diverse group of attorneys
agrees on one thing: we all agree that Justice Eid is
exceptionally well qualified and should be confirmed.
We know Justice Eid to be a person of integrity,
professional competence, and judicial temperament. She has
received the highest possible `Well Qualified' rating from
the American Bar Association. Her private practice work,
scholarship, law teaching, and service as Colorado's
Solicitor General have all demonstrated her superb abilities
over many years. Her service on the Colorado Supreme Court
has earned her a reputation as an excellent jurist. Her
strong work ethic is renowned. She is a preeminent member of
the legal profession, not only in Colorado, but in the United
States more broadly, with outstanding legal ability and
exceptional breadth of experience. We also know her to be a
compassionate and caring person, deeply involved in the
broader community and called to service, not only in her day
job, but through her extensive volunteerism toward the
betterment of the profession. Throughout her tenure on the
bench, she has hired numerous diverse law clerks and
continuously sought to ensure that the diverse voices of
Coloradoans are heard, evincing a very strong commitment to
diversity and inclusion. We are excited to see her bring her
spirit and skill set to the Tenth Circuit.
We ask that Colorado's Senators join together and support
this very highly qualified nominee from Colorado. We believe
it is an exceptional moment to confirm Justice Eid as the
first Colorado woman to serve on the Tenth Circuit.
Respectfully,
Sarah J. Auchterlonie, Franklin Azar, Naomi Beer, Michael
Bender, Heath Briggs, Geraldine Brimmer, Scott Campbell,
Richard Cunningham, Stanton Dodge, Caleb Durling, Jacob
Durling, John Echohawk, David Fine, Jeremy Graves, Melissa
Hart, Ellen Herzog, Neal Katyal, Martin Katz, Robert Kaufman,
Kenzo Kawanabe, Kevin Kuhn.
Liz Krupa, Bradley A. Levin, Cedric D. Logan, Monica
Loseman, Victoria E. Lovato, Rebecca Love Kourlis, Cynthia
Mares, Michael E. McLachlan, Mary Mullarkey, Marc Musyl,
Habib Nasrullah, Chris Neumann, Neil Oberfeld, Angelica
Ochoa, Michael O'Donnell, Michele On-ja Choe, Peter Ortego,
David Palmer, Joseph A. Peters, Richard Petkun, John
Posthumus.
James Prochnow, Lee Reichert, Harriet McConnell Retford,
Tom Sansonetti, Cliff Stricklin, Trent D. Tanner, Robert S.
Thompson, III, Lorenzo Trujillo, John Voorhees, John Wahl,
Rebecca Watson, Dee Wisor, Jennifer Weddle, Kristin White,
Heather Whiteman Runs Him, Evan Williams, David B. Wilson,
Maureen Witt, David Yun, John Zakhem.
____

Southern Ute Indian Tribe,

Ignacio, CO, July 21, 2017.
Re Support for Confirmation of Colorado Supreme Court Justice
Allison Eid to the Tenth Circuit Court of Appeals.
Dear Chairman Grassley and Ranking Member Feinstein: The
Southern Ute Indian Tribe is writing in support of the
confirmation of Colorado Supreme Court Justice Allison Eid to
the United States Court of Appeals for the Tenth Circuit.
Justice Eid's considerable qualifications for this
prestigious appointment are not in question. As a Colorado
Supreme Court Justice, Justice Eid has demonstrated expertise
in a broad spectrum of legal matters including the field of
federal Indian law. Justice Eid's judicial record evidences
her understanding of tribal sovereignty and other matters
that are acutely important to the Tribe. Because these
matters are often resolved in the Supreme Court following a
decision in a federal appellate circuit in the West, it is
critical that the judges on those circuit courts possess a
working understanding of Indian law issues. Because she is
well-versed in the established principles of federal Indian
law, as well as many other areas of the law, the Tribe
supports the nomination of Justice Eid.
Sincerely,
Clement J. Frost,
Chairman.

Mr. GARDNER. Mr. President, I wish to spend some time talking about a
letter dated July 27, 2017. This letter was sent to me and my
colleague, Senator Bennet from Colorado. This letter was titled
``Support for the Confirmation of Justice Allison Eid to the Tenth
Circuit Court of Appeals,'' which I have

[[Page S6947]]

submitted for the Record, but I want to highlight some of the people
who have signed this letter because when it comes to the courts and
nominations, I think it is very important that we listen to the voices
of those people who are closest to the court over which the nominee may
be presiding. It is also important that those who are closest to a
practicing lawyer provide their opinions of a lawyer who has been
nominated for the bench who is not already on the bench.
In the case of Justice Eid's supporters, there is an incredible list
of people from across the political spectrum--both sides of the aisle--
supporting Justice Eid. Let me talk about a few of Justice Eid's
supporters, because we will hear a lot of debate about groups who
support or oppose Justice Eid, but the people who know her the best,
the people who have practiced before her court, the people who have
worked with her over the many years of public service that she has
provided don't just fall on the Republican side of the aisle or the
Democratic side of the aisle, the support she has gathered is from
across the political spectrum.
There is Michael Bender, former Colorado Supreme Court justice;
Justice Rebecca Love Kourlis, one of the most respected jurists in
Colorado, who served on the State supreme court and is one of the most
highly regarded justices not only in Colorado but across the country,
quite frankly; Justice Mary Mullarkey. Justice Mullarkey is no longer
on the Colorado Supreme Court, but she served as the chief justice of
the Colorado Supreme Court. She was appointed by a Democratic Governor.
She is someone who believes Justice Eid would be an incredible addition
to the court. There is Neal Katyal, a former Department of Justice
civil servant for the Obama administration--a U.S. Solicitor General,
in fact. If we look at the other supporters she has, we see that
Melissa Hart, who has run for office as a Democratic candidate,
supports the nomination and confirmation of Justice Allison Eid.
As you can see, the Tenth Circuit has an incredible nominee before it
whom I hope this body will soon confirm. I urge my colleagues to move
quickly during this cloture time so that we can actually approve
somebody who I know will do an outstanding job. I urge their support. I
hope we will do our duty under our Constitution to select those people
who will be guarding the Constitution and do it in a way that we can
all be proud of. That is why I support Allison Eid.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.

Climate Change

Mr. WHITEHOUSE. Mr. President, I come to the floor today for the
184th time to ask us to at least wake up to our duty as a Congress to
enact prudent policies to address the effects of climate change. The
Presiding Officer is well aware of what Alaska faces from ocean
acidification and ocean melting and sea level rise and all of that.
For the generations who will look back at this, I have tried in these
speeches to chronicle the political tricks and bullying that have put
Congress--the Congress of the United States--in tow to a massively
conflicted special interest, such that we are incapacitated on this
vital subject. The shamelessness of the fossil fuel industry and the
spinelessness of Congress under its sway will provide a long lesson in
modern-day corruption and political failure.
The Trump administration has been particularly loathsome, threatening
the emissions standards for cars and trucks, pressing for the Keystone
XL tar sands pipeline, disbanding science advisory committees, lifting
the moratorium on Federal coal leasing, trying to expand offshore
drilling, and open national marine monuments and sanctuaries to energy
companies. The Environmental Protection Agency is working to eliminate
rules on the leaking and flaring of methane and has rescinded
requirements for reporting methane emissions. The President has
announced his intention to withdraw the U.S. from the Paris climate
agreement.
One particular target of this corrupted administration is the Clean
Power Plan, the 2015 EPA rule to reduce carbon dioxide emissions from
American powerplants--a rule that many utilities and States supported.
But it is the industry's bottom-dwellers who have the President's ear,
and they want to undo even this flexible framework for meeting
emissions-reduction targets.
When EPA balanced the costs and benefits of the Clean Power Plan
originally, it offset things, like between $14 billion and $34 billion
in health benefits in the form of preventive illnesses and deaths,
against the costs of industry compliance.
The net benefits of the Clean Power Plan came out to between $26
billion and $45 billion every year.
So with its official proposal to rescind the Clean Power Plan, EPA
administrator and fossil fuel operative Scott Pruitt had to cook the
books to wipe out this public benefit. Here is how he did it. There
were two tricks. One derives from the fact that harms, injuries, and
losses caused by carbon pollution can take place many years after the
pollution is emitted. In financial matters, future costs and benefits
are balanced against present costs and benefits, using what is called a
discount rate. It is more valuable to receive $1 million now than $1
million 20 years from now. That is the theory.
But even the George W. Bush administration recognized for healthcare
rulemaking that ``[s]pecial ethical considerations arise when comparing
benefits and costs across generations,'' and they urged care about
using a discount rate when a rule is expected to harm future
generations.
In 2015, the United States settled on a 3-percent discount rate to
estimate the out-year costs of carbon pollution to society. Scott
Pruitt jacked that up to a 7-percent discount rate so out-year harms,
injuries, and losses would count for less. Mind you, our children and
grandchildren will still suffer the exact same costs at 3 percent or at
7 percent. It is just that present-day polluters--Scott Pruitt's
masters--get a way-big discount.
Pruitt's second trick is only to count the carbon pollution harm
within our borders. You might say: That is OK; we are Americans, after
all. But it is worth taking a look at what this rule does if all
countries were to use it because there is a trick hidden in the middle
of it. The fact is that we are harmed by other countries' carbon
emissions, and they in turn are harmed by our carbon emissions. On the
flip side, we harm other countries with our emissions, and they harm us
with theirs.
There is a total amount of global emissions, and there is a total
amount of global harm. If you call the total global emissions X and the
total global harm Y, what happens when every country follows the Pruitt
method of only pricing local emissions and local harms?
For purposes of illustration, let's say there are three countries in
the world, and each emits one-third of the total carbon pollution and
suffers one-third of the global harm from the collective global
emissions. If each country only counts its own emissions and the harms
only to its own country, guess what happens. All that cross-border harm
never gets counted. It never gets counted. It disappears off the
balance sheet. It vanishes into this trick of calculation. If you are
the tool of the fossil fuel industry, how rewarding it must be to
implement a trick that just vanishes so much of the fossil fuel
industry's harm to the world.
In this hypothetical, how much harm simply vanishes? Two-thirds of it
does. Two thirds of the harm simply vanishes, never to be accounted
for--not in the real world. Nothing has changed in the real world. In
this three-country hypothetical, the total emissions is still X and the
total harm is still Y. None of that has changed. This Pruitt trick of
accounting just wiped two-thirds of the harm off the books. A happy day
for polluters, and a happy, happy day for the polluters' tool, for
there will no doubt be rewards for implementing this trick.
Those fossil fuel industry bottom-dwellers no doubt think that this
is pretty cute and that this is pretty clever stuff, indeed. There are
high-fives in the corporate boardrooms that they have a tool in office
who will pull such a trick of magical, vanishing carbon pollution
harms. But the problem with these crooked little schemes is that the
whole world is actually watching. Anybody can do the analysis that I
just did and show that this is nothing more

[[Page S6948]]

than a trick, and sooner or later, consequences do come home to roost.
Out in the real world, the Pacific Island nation of Kiribati is
buying up land in Fiji so it can evacuate its people there when rising
seas engulf its islands and eliminate the nation. It is on its way to
becoming a modern-day Atlantis, lost forever to the waves. You can
replicate that risk along the shores of Bangladesh, Burma, Malaysia and
the Maldives.
You can add in the risk of lost fisheries that left a country's EEZ
for cooler waters. If you think that is just a hypothetical, ask
Connecticut and Rhode Island lobstermen about their catch. Add in the
expansion of the world's desert areas in the Sahel and elsewhere that
forces farmers' crops and shepherds' flocks away from their historic
homes.
Add unprecedented storms powered up over warming seas. As bad as
things have been in Houston, Florida, and Puerto Rico, we are rich
enough to rebuild, to throw billions of dollars at the problem, and we
are. Other places do not have those resources. Without the help,
imagine that suffering.
To those who will suffer in the future, what do we say? On that day
of reckoning, on that judgment day, what do we tell all those people
who suffered? Ha-ha-ha, do we say? We came up with this little trick
that wiped most of your suffering off our books. We used a discount
rate that discounted your suffering to virtually zero. Is that the kind
of America we want to be? Remember the saying: The power of America's
example is more important than any example of our power. Some example
we would be, some city on a hill, if that was the way we behaved.
The natural world does not care about self-serving or ideological
arguments. The natural world is governed by immutable laws of physics,
chemistry, biology, and mathematics. Scott Pruitt's polluter-friendly
mathematics just doesn't add up. As Michael Greenstone, an economist at
the University of Chicago who helped develop the social cost of carbon,
put it, Pruitt's plan was not evidence-based policymaking. This was
policy-based evidence making.
There is enormous pressure in the Trump administration to get rid of
the social cost of carbon. What is bizarre about the Trump
administration is that they don't try to get rid of the social cost of
carbon by getting rid of its social costs, by lowering carbon
emissions, by addressing the harms that it causes. They try to get rid
of the social cost of carbon by getting rid of the scoring mechanism
that counts all of that. It is like saying: My team is winning because
I tore down the scoreboard.
Well, no, the world is getting clobbered out there by carbon
pollution and the climate change that causes it, and tearing down the
scoreboard doesn't help change the game on the field. You cannot just
cook the books and reduce the social cost of carbon.
For one thing, the social cost of carbon analysis is too well
established in the honest world. Courts have instructed Federal
agencies to factor the social cost of carbon into their regulations.
States are using the social cost of carbon in their policymaking. Most
major corporations, even ExxonMobil, factor a social cost of carbon
into their own planning and accounting.
The social cost of carbon pollution is at the heart of the
International Monetary Fund calculation, for which the fossil fuel
industry gets an annual subsidy in the United States of $700 billion a
year. Even to protect a multihundred-billion-dollar annual subsidy,
Scott Pruitt can't just wish the social cost of carbon away and just
can't stop counting it. Courts will take notice.
They may take notice that these stunts are arbitrary and capricious
under the Administrative Procedure Act. They may take note that Pruitt
has massive conflicts of interest with his fossil fuel funders. They
will surely note that the Supreme Court has said greenhouse gases are
pollutants under the Clean Air Act, and that EPA is legally obligated
to regulate them. They will surely note that the EPA itself has
determined that greenhouse gas emissions endanger the public health and
welfare of current and future generations, a determination that the DC
Circuit resoundingly upheld.
But we are not in an ordinary situation. Pruitt has a long history of
doing the bidding of the fossil fuel industry. In the recent Frontline
documentary, ``War on the EPA,'' Bob Murray of Murray Energy, a strong
Pruitt supporter, bragged about giving this administration a three-page
action plan on environmental regulations and bragged that the first
page was already done. That is the world we live in now, where the
regulated industry brags that it controls its regulator, gives it
direction, and that its work is already being done.
Courts that look at any rule proposed by Scott Pruitt must recognize
that there is a near zero chance that he is operating in good faith.
Our Nation's environmental regulator went in captured and has stayed
captured by our Nation's biggest polluters. Scott Pruitt is not their
regulator; he is their instrument. That is a conflict of interest.
I recently hosted my eighth annual Rhode Island Energy Environment
and Oceans Day, bringing together members of our business community
from the public sector, from government, and academia, to hear directly
from experts about the latest environmental news and initiatives. I was
very excited to be joined by excellent keynote speakers, including
former Secretary of State John Kerry, who has done such magnificent
work on oceans particularly but on climate change generally, leading us
into the Paris climate agreement. Also, there was former U.S. Special
Envoy for Climate Change Todd Stern, who has labored in these vineyards
so many years, and ocean advocate and Oceana board member Sam
Waterston. They were all great, but one phrase stood out.
Sam Waterston called on us to tackle today's ocean and environmental
problems with what he called a ``battle-ready kind of optimism''--a
``battle-ready kind of optimism.''
So let us go forward with a ``battle-ready kind of optimism'' to
clean the polluter swamp at EPA, to clean our Earth's atmosphere and
oceans of unbridled carbon emissions, and to clear the reputation of
our beloved country of the obloquy it is rapidly earning at the hands
of a corrupting industry.
I yield the floor.
The PRESIDING OFFICER (Mr. Burr). The Senator from Virginia.

Healthcare

Mr. KAINE. Mr. President, I rise to talk about the Children's Health
Insurance Program. We all know that healthcare is the most important
thing in any person's life and in their family's life, and there is
probably no healthcare issue that is more intense than a parents'
concern about the health of their children. I think all of the offices
in this building have heard from parents about the health of their kids
over the course of the number of months we have been debating what to
do about the Affordable Care Act.
I rise today to talk about another critical program, which I hope we
will act in a bipartisan way to reauthorize: the Children's Health
Program, or CHIP. CHIP builds on Medicaid, and it gives families who
earn too much to be eligible for Medicaid an insurance option for their
kids. In talking to families who avail themselves of this option--in
Virginia, years ago we didn't do a very good job of enrolling kids in
CHIP, and we have become an awful lot better at it. It is interesting
to hear the way parents talk about it. They will often talk about how
important CHIP is to them when their child is sick or when their child
is injured, but what is interesting to me is how important it is to
them when their child is perfectly fine--not sick, not injured. But if
you are a parent, you are going to have anxiety when you go to bed
every night if your child doesn't have insurance or coverage: What if
something happens tomorrow? This is a program that provides not just
healthcare but peace of mind for parents and their kids.
Between Virginia's separate CHIP program and the Family Access to
Medical Insurance Security and CHIP-funded Medicaid, the State provides
coverage to nearly 193,000 children. CHIP alone--the specific CHIP
program--covers 66,000 kids in Virginia and also pregnant moms; 1,100
pregnant moms are covered right now. The coverage is important. It
includes doctor visits, hospital care, prescription medicines,
eyeglasses--which are critical to being successful in school--
immunizations, and checkups for kids up to age

[[Page S6949]]

19, with minimal cost sharing and without premiums.
In Virginia, since 2009, when I was Governor, we extended CHIP to
also allow dental coverage. That has been really important to children
and their families. The program is one of the success stories in this
body because it has been strongly bipartisan in support since its
creation in 1997. But as the President knows, this program expired on
September 30. Despite bipartisan work on the Finance Committee, we
still have not seen a reauthorization bill come to the Senate floor.
The uncertainty surrounding CHIP has already started to have an
influence on my constituents and the constituents of every Member of
this body. According to our Virginia Department of Medical Assistance
Services, the State will be forced to send letters on December 1, 2017,
notifying families that there is an impending loss of coverage. If
there is not a reauthorization bill done by that time, imagine the
anxiety of all these families in the weeks before Christmas getting a
letter in the mailbox saying that this CHIP program, which covers
66,000 kids and 1,100 pregnant women, is about to expire. This will, at
a minimum, cause a great deal of anxiety and confusion, even if we then
come back and fix it. But if we don't fix it, obviously, the anxiety
and confusion becomes much more catastrophic for the families.
After we send out letters on December 1 telling families that they
have to prepare for the elimination of this program, enrollment will
freeze on January 1. No new children can come into the program. By the
end of January--and this differs in different States--Virginia will
have insufficient funds to continue the program. There are some States
that are already experiencing running out of the funds they have for
the program. Virginia has a little cushion, but that will take us only
through the end of January if we don't reauthorize.
Here is something that makes matters worse in Virginia, and I think
it is the case in most States. Our legislature is a part-time
legislature. The legislature is not in session. The legislature does
not come back in until January, and that will make it really difficult.
We can't find time for solutions before then because the legislature is
not in session. When the legislature comes back, that would be a lot to
face in 2 weeks, which is when this program is going to expire.
Needless to say, the kids who use CHIP in Virginia are in all parts
of the State. Just to give you some examples, the Hampton Roads area,
the second largest metropolitan area in the State--Virginia Beach,
Norfolk, and the Northern Neck--has over 5,000 kids who rely on CHIP.
In far southwest Virginia, where my wife's family is from--Appalachia--
nearly 6,000 kids rely on CHIP. It is a high poverty area, and in those
parts of the State where poverty is high, CHIP is used in a very
important way by families. The Shenandoah Valley, an agricultural area
in western Virginia, has about 6,400 kids who rely on CHIP. There is
not a county, there is not a city in Virginia where there isn't a child
and a pregnant woman who rely on this program.
On September 18--now to the good part of my talk, the positive words
from my colleagues--Senators Hatch and Wyden introduced the bipartisan
Keeping Kids' Insurance Dependable and Secure Act, which is a
bipartisan compromise in the best traditions of this body, to extend
the CHIP program for 5 years to give States sufficient time to plan
their budgets and make sure that families don't face the uncertainty
related to getting notice letters saying that the program may
terminate.
I rise today to urge my colleagues to strongly support bringing this
bill to the floor and providing certainty to the families and children
who rely on CHIP. The possibility of all these families getting letters
on December 1 saying that the program is possibly going to expire is
just a needless uncertainty, and we should try to avoid that if we can,
not just in Virginia but in every State.
My senior Senator, Mr. Warner, is also a strong supporter of the
program. I will give him some props. When he was Governor of Virginia--
he preceded me as Governor--he was the one who focused on doing a
better job of enrolling kids in the program. I give him credit for
that, and I will take credit for my teamwork and for adding dental
coverage to CHIP. But he was a great leader. He and I have together
sent a letter to the Senate leader, Mr. McConnell, asking if he would
bring a bipartisan bill to the floor quickly on behalf of Virginia's
children.
This bill was bipartisan in its introduction, and with the number of
cosponsors and the historic, bipartisan nature of support for this
program, if we can get a floor vote on this bill, I think we can pass
it today and send it to the House and do so in a way that we would
avoid the need to start sending out termination letters to families,
needlessly increasing their anxiety.
I will conclude by saying that if we can bring this to the floor, I
think we can get it passed. It is an urgent issue for children across
the country--and even more than children in some ways. The children
aren't wandering around every day thinking about their healthcare, but
their parents are wondering every day, worrying desperately about their
healthcare. This would be a bill that would help both children and
parents.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BLUNT. 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. BLUNT. Mr. President, this week we are moving to confirm four
Federal circuit judges. Because of that, it is a good week to talk
about the critical role the judiciary plays and actually about the
unique power our Constitution gave the courts to do the job they are
supposed to do.
They are to provide a check and balance on the other two coequal
branches of government--the executive branch and the legislative
branch. Most importantly, the Federal judiciary provides Americans with
an avenue with which to seek the rule of law, an avenue to know that
one is going to be impacted by what the law says and what the
Constitution says. It is a fundamental right of how we conduct
ourselves, how we seek justice, how people should be able to make
decisions about their families and about their businesses and about
their financial futures as well as their personal futures.
That is why judges who believe in the rule of law and what the law
says and what the Constitution says are so important and why it is
important to have qualified and well-grounded judges--not just people
who are really good lawyers but people who have an appreciation for how
important it is that others can absolutely rely on the law and the
Constitution. Those can be changed. There is a way to change them, but
the way to change them is seldom on the Federal bench.
According to the Administrative Office of the U.S. Courts, as of this
morning, there are 148 vacancies on the Federal judiciary. That
includes two vacancies on the Eighth Circuit Court of Appeals. It
includes the circuit judges of whose nominations we have not yet fully
complied and approved this week, but there are 148 vacancies--jobs that
are to be filled for as long as the people are able to serve. That is
why healthy judges, younger judges, and judges who are well grounded
can have such an impact for so long. The first major judicial
accomplishment this year, in terms of the nominating process, was Judge
Gorsuch, who 29 years from now will be younger than three of the judges
with whom he is currently serving. These are decisions that will last
well beyond a Presidency and well beyond the tenure of the Senators who
will vote to confirm, and we have a chance to do that.
Of these judicial circuits, the Eighth Circuit is one my State of
Missouri is in. As a matter of fact, the most recent data shows that
while there are a handful of States in that circuit, one-third of all
the cases that had been filed in the Eighth Circuit from September 2015
to September 2016 had come from our State, and I imagine that number
will be about the same again this year. Reshaping the judiciary,
generally, as well as what happens in the Eighth Circuit are important.
At the start of President Trump's term, 12 percent of all of the
positions

[[Page S6950]]

in the Federal judiciary were vacant. The Congressional Research
Service found that not since President Clinton took office has a
President had the constitutional obligation to fill more judicial
vacancies at the start of his term than President Trump. I, certainly,
believe he made the right choice when he selected Judge Gorsuch to
serve on the Court, and I have been enthusiastic about the other judges
whom he has nominated, including the four we have had a chance to talk
about and will continue to have a chance to talk about this week.
I think President Trump will continue to nominate judges who will,
first of all, pay attention to the Constitution and what it says, who
will apply the rule of law, and will not legislate from the bench.
Those three hallmarks of how this Senate should define, and how this
President has so far defined, what a judge is supposed to do not only
can happen but can happen at this moment for--or at least as of January
20--12 percent of the judicial positions, and that number will continue
to grow as judges, for whatever reason, leave the bench as judges
decide to take early retirement. If at the end of the 4 years of this
administration we have filled all of the vacancies that will have
occurred, we will have filled more than 12 percent of those lifetime
appointments. So it is really important that the Senate act to confirm
these nominees and fill as many vacancies as are there to be filled.
Last month, the Federalist reported: ``Democrats are forcing more
cloture votes than any early Presidency and demanding the full 30 hours
of floor time per nominee that the Senate rules allow.''
Yesterday, at the press stakeout that we had outside of this room, I
said that the Senate was designed to protect the rights of the
minority, and that is a good thing. Just the fact that it would take 6
years to replace the entire Senate means that the country has to stay
focused on one set of ideas if all of the Senators are going to reflect
that one set of ideas much longer than the 2-year opportunity to change
everybody in the House. Also, the understanding that the Senate
provides that protection for minorities to be heard in a big and
diverse democracy like we have is a good thing. In the points that we
were making yesterday, I also said that the protections for the
minority are always held onto, appreciated, and protected until the
minority decides to abuse those protections. When that happens, the
minority always loses the protection.
What we have had over and over again--47 times this year as compared
to 1 time with President Obama for nonjudicial appointments, 5 times in
the entire first Obama year up until this time in October, I believe,
no times for either President Bush, and 1 time for President Clinton--
is that the minority has taken a judicial nomination or another
nomination and said we are going to insist on 30 hours of debate
because the rules allow for 30 hours of debate. Well, the rules allow
for 30 hours of debate for contentious nominees. The rules allow for 30
hours of debate when there is really going to be a debate. Last week,
we had 30 hours of debate on a judge, but 20 minutes were spent talking
in support of him while zero minutes were spent in opposing him. The 30
hours that could have been used for other purposes was gone.
Frankly, I think that was the reason the 30 hours was demanded--so
the other work of the Senate had to be set aside so we could do the
equally important work of letting the President put people in vacant
positions that needed to be filled. That 30 hours will be changed if
the minority continues to abuse it. It has happened in the entire
history of the Senate, but that is what happens when you abuse these
rules that protect you and give you rights. It will happen again here
if this does not change.
We see the same thing happening this week. We have had lots of time
this week--30 hours of debate, a final vote, and Democrats and
Republicans vote. In fact, regarding the judge I mentioned a minute
ago, 28 Democrats voted for that judge. There were 30 hours of debate,
and not a single critical word was spoken in debate about the judge. A
majority of the Democrats and virtually all of the Republicans voted
for that judge. That is not an acceptable way to stop the Senate from
getting to the other work the Senate needs to do. This is not
basketball without a clock, where they used to effectively play the
delay game. The delay game got abused, and the clock became part of the
system. The clock will run faster here, too, if our colleagues do not
begin to see the importance of what we do here.

Nomination of David Stras

Mr. President, while these nominees have had cloture votes--again,
President Obama, I think, only had one on a judge in his first year--
there is one nominee, Minnesota Supreme Court Justice David Stras, in
the Eighth District, which is the district again that Missouri is in,
who has had his nomination held up. There is a rule sometimes that has
been used in the Senate--almost always if a judge is being replaced
that only affects your State--whereby a Senator can say: I am really
opposed to that. In most of the history of the Senate, that kind of
hold has been honored. It has not been honored on judges who represent
another State, many States, or will be a judge in the circuit for many
States just because they happen to come from your State.
The American Bar Association has said that Justice Stras is ``well
qualified.'' It is its very highest rating. He received his bachelor's
degree, with the highest distinction, from the University of Kansas,
which is another State in this circuit. He received his MBA from the
University of Kansas and his law degree from the University of Kansas.
He clerked on the U.S. Supreme Court before practicing law and teaching
at the University of Minnesota. Not only was he appointed to fill a
vacancy on the Supreme Court in Minnesota, but he was elected. In fact,
he was elected and received more votes than the person who is holding
his nomination received when he was elected to that job.
I urge my colleagues to not only support his nomination but to do
what we need to do to get these nominees to the floor and let everybody
express their opinion and be given the time needed to do that, not to
continue to abuse the rules, not to continue to hold these important
vacancies hostage to getting anything else done because we have 30
hours of debate in which nobody decides to come and debate.
By the way, if we want to continue to allow Senators to hold
nominations in circuits that their States happen to be a part of, in
the Eighth Circuit, most of the work before that court comes from
Missouri more than any other State. We would be glad to have an
additional judge, and there is nothing that would prevent that.
The right thing to do here is to let the nomination of a well-
qualified person come to the Senate floor and be debated, if there is
debate to be had, and be voted on and to take one of those significant
140-plus vacancies on the Federal judiciary and fill it with a person
who is well qualified, just like this week. In four other circuits, we
intend to put three women and one man on those courts who will
hopefully be able to serve long and well and will take their important
philosophies to the courts with them when they go.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mrs. CAPITO. Mr. President, thank you.
As we heard my colleague from Missouri saying, we have a great
opportunity this week to confirm four outstanding individuals to the
Federal circuit courts. These nominees are well-qualified individuals
who have demonstrated a strong understanding of the proper role that a
judge plays in our constitutional system.

I am especially pleased that we are considering three exceptionally
talented women for the Federal bench. Federal circuit court nominations
are extremely important. Circuit courts sit directly below the Supreme
Court in our judicial system. Because the Supreme Court reviews
relatively few or a smaller number of cases, many times the circuit
courts have the last word in the majority of those cases, so it is
essential that we have judges on the circuit court who will treat all
litigants fairly.
When I think about what I want in a judge, I think fairness is the
first thing that comes to mind. We want someone who treats litigants
fairly, who shows respect for our Constitution, our statutes, and the
controlling precedents.

[[Page S6951]]

We need somebody knowledgeable in the law. That sort of goes without
saying but certainly is a top attribute of a judge. Every party before
our Federal courts has the right to expect evenhanded, fair judges and
fair justice from those judges who are handling their case.
Each of the four nominees being confirmed this week have a strong
record and impeccable qualifications. They respect the rule of law. All
were given a high rating by the nonpartisan American Bar Association.
Yesterday I was very pleased to support Amy Barrett's confirmation to
the Court of Appeals for the Seventh Circuit. Despite obstruction by my
colleagues on the other side, I am pleased that yesterday we confirmed
Ms. Barrett, but I still have deep concerns about some of the debate
and some of the questions that were raised about her religious beliefs
throughout the confirmation process.
The Constitution clearly states that there can be no religious test
for any Federal office. The Senate has a responsibility to consider
qualifications and fitness for office of individuals nominated by the
President, but that does not include an evaluation of a nominee's
religious beliefs. Our Constitution fundamentally protects religious
liberty for all Americans. That principle is deeply rooted in our
Nation's history and allows individuals of all faiths the freedom to
exercise their religious beliefs.
Ms. Barrett's credentials clearly demonstrate her ability to serve on
the Federal bench, which she will be doing, and I hope future nominees
are questioned by this body on their record, their qualifications, and
their jurisprudence, not on their faith.
Today we confirmed the nomination of Michigan Supreme Court Justice
Joan Larsen for the Sixth Circuit, a supremely qualified individual. A
former clerk for Supreme Court Justice Antonin Scalia, she served as a
Deputy Assistant Attorney General and as a law professor at the
University of Michigan before joining her State's highest court, the
supreme court.
We are now considering the nomination of Colorado Supreme Court
Justice Allison Eid for the Tenth Circuit. Justice Eid served as
Colorado's solicitor general and is a law professor at the University
of Colorado. She clerked for Supreme Court Justice Clarence Thomas and
was appointed by Chief Justice John Roberts to serve as a member of the
advisory committee on Federal appellate rules.
Finally, we will consider the nomination of Stephanos Bibas to the
Third Circuit. Mr. Bibas is a law professor at the University of
Pennsylvania and clerked for Justice Anthony Kennedy after earning
degrees from Columbia, Oxford, and Yale.
This is a supremely qualified slate of nominees, as their impressive
credentials make clear. My colleagues who are familiar with these
nominees have given praise to these nominees in earnest and honest
discussion, which very much lends itself to my support. Without
question, their fitness for the Federal bench is evident.
The fact that Democrats have been holding up these qualified
individuals is totally misguided. We heard from Senator Blunt in his
remarks about the numbers. There are currently 21 circuit court
vacancies and 120 district court vacancies in the Federal judiciary.
While the Senate has an important role in examining nominees to fill
these vacancies, Democrats have required virtually every potential
judge to go through a time-consuming floor process that is simply not
sustainable, even when there are no objections raised against the
individuals. In fact, Democrats have used political tactics to delay
virtually every one of President Trump's judicial nominees,
controversial or not.
Every Senator has the right to vote against a judicial nominee if
they believe that person to be unfit or unqualified--we all have that
right--but engaging in a de facto filibuster against virtually every
judicial nominee is an abuse of the rules, I believe, especially when
the nominee has overwhelming bipartisan support.
The American people expect the Senate to confirm well-qualified
nominees. They also expect us to advance a legislative agenda that will
improve our economy and our security. By filibustering against
qualified nominees, Democrats are keeping the Senate from tackling our
important legislative work.
Starting with Justice Neil Gorsuch to the nominees being considered
this week, President Trump has nominated mainstream judges who will
serve our country for years in the judiciary. I commend the President,
the chairman, Senator Grassley, and the members of the Judiciary
Committee for their work in advancing these talented individuals. We
should confirm these judges and act promptly to fill other judicial
vacancies.
I thank the Presiding Officer.
I yield the floor.
The PRESIDING OFFICER (Mr. Cotton). The Senator from Iowa.
Mr. GRASSLEY. Mr. President, tomorrow morning the Senate will vote on
the nomination of Colorado Supreme Court Justice Allison Eid. She is
going to be voted on to serve on the Tenth Circuit Court of Appeals.
She is an eminently qualified and exceptional nominee who has received
widespread, bipartisan praise and support.
Justice Eid has spent over a decade on the Colorado Supreme Court.
Before her appointment, she served as the Colorado State solicitor
general. In that role, she represented the State before both Federal
and State courts. She also served as a tenured faculty member at the
University of Colorado School of Law, where she taught courses in
constitutional law, legislation, and torts. Justice Eid practiced
commercial and appellate litigation at Arnold and Porter. At the
beginning of her legal career, Justice Eid served as a clerk for Judge
Jerry Smith on the Fifth Circuit and as a law clerk for Supreme Court
Justice Clarence Thomas.
Justice Eid was raised by a single mother, whom Eid credits for her
significant personal and professional achievements. She earned a
scholarship to Stanford and graduated with distinction and is a member
of Phi Beta Kappa. Justice Eid received her law degree from the
University of Chicago, where she graduated with high honors and Order
of the Coif. She has had an impressive legal career, and she has an
impressive life story.
In her long and celebrated tenure on the Colorado Supreme Court,
Justice Eid has heard roughly 900 cases and written approximately 100
opinions. In 2008, 75 percent of Colorado voters retained Justice Eid
to the Colorado Supreme Court.
Her nomination has also received wide, bipartisan support. As an
example, Justice Eid's former clerks, who noted that they ``come from a
diverse set of geographic, economic, cultural and political
backgrounds,'' wrote a letter to the Judiciary Committee supporting her
nomination. Judges work closely with their law clerks every day. Law
clerks understand a judge's deliberative process and approach to the
law better than anyone. How did these clerks describe Justice Eid? They
said: ``She never fails to provide her full attention and dedication to
each individual case, mastering the relevant facts and carefully
analyzing the law, whether the text of a statute or the word of a
contract.'' Her law clerks also wrote that she goes ``where the law
takes her'' and that in their decade of collective experience in over
900 cases, Justice Eid ``treats each case individually without any
preconceived notion of desired outcome.''
The National Native American Bar Association also endorsed Justice
Eid. In their letter to the committee, they noted that she ``has
demonstrated deep understanding of Federal Indian law and policy
matters, as well as significant respect for the tribes as governments.
Such qualities and experiences are rare among nominees to the federal
bench.'' They went on to note that ``while we do not expect that
Justice Eid will agree with tribal interests on every issue, we also
believe that she is immensely well qualified and we are confident that
Justice Eid is a mainstream, commonsense Westerner who will rule fairly
on Indian Country matters.'' That is from the National Native American
Bar Association. I think ``mainstream, commonsense Westerner'' is the
perfect way to describe Justice Eid.
Despite this bipartisan support and her professional achievements,
all the Democratic members of the Judiciary Committee voted against her
nomination in committee, and I suspect most of the minority will vote
against her

[[Page S6952]]

confirmation when it comes up. That surprised me. Justice Eid received
a majority ``well qualified'' rating from the American Bar Association,
an outside group who evaluates judicial nominees. My colleagues on the
other side claim that this group's ratings weigh very heavily in their
decision to support or oppose a judicial nominee. In fact, my
Democratic colleagues claim that these ratings should carry a great
deal of weight with Senators, and they argue that the Judiciary
Committee shouldn't hold hearings on nominees who have not yet received
ABA ratings.
This week, we are voting on four circuit court nominees--including
three women--who received ``well qualified'' ratings from the ABA. The
American Bar Association rated two of these individuals unanimously
``well qualified.'' Yet the vast majority of my Democratic colleagues
voted against the two nominees on whom we have already voted, and I am
willing to bet that the other two nominees will see similar opposition
from my Democratic colleagues.
Why do my Democratic friends profess such admiration for the American
Bar Association's evaluation process and then vote against nominees who
received the American Bar Association's ``well qualified'' rating? I
would like to see them put their money where their mouth is or maybe,
better yet, their vote where their mouth is. If my colleagues believe
so strongly in the ABA evaluations, they should start voting for
nominees who receive ``well qualified'' ratings, but I suspect they
will not.
When the Judiciary Committee voted on Justice Eid's nomination, my
Democratic colleagues really stretched to find reasons to oppose that
nomination. One of the chief reasons given for opposition to her
nomination centered on a quote in a Denver Post article that said
Justice Eid has ``earned a reputation of one of [the Colorado Supreme
Court's] most conservative members.'' I find that statement to be
misleading. Of the seven justices on the Colorado Supreme Court,
Justice Eid is one of only two justices appointed by a Republican
Governor. To argue that she is somehow extreme just because she was not
appointed by a Democratic Governor is very unfair.
Furthermore, the Denver Post published a subsequent article that
disagreed with this characterization. By contrast, the more recent
article stated that ``appointment by a Republican or Democrat does not
always dictate the ideology of the justice. . . . Even categorizing
justices as either conservative or liberal is generally an error.'' I
would agree with the Denver Post on this point.
Justice Eid should not be evaluated by her ideological reputation
but, rather, by how she approaches issues before her judiciary. That is
how I have evaluated Justice Eid and other judicial nominees, and that
is why I strongly support her confirmation today.
I am very proud to support the nomination of Justice Allison Eid. She
is the third in a series of distinguished female circuit court nominees
we have had the opportunity to vote on this week. Her impressive
experience and numerous accomplishments speak to her qualifications for
this role. I commend the President for nominating these outstanding and
accomplished women to our circuit courts. Justice Eid is an exceptional
nominee, and her record overwhelmingly supports her nomination. As a
result, I will support her confirmation tomorrow, and I urge all of my
colleagues to do the same.
I yield the floor and 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 have been talking about some
sterling nominees for our Nation's circuit courts of appeals. These are
our intermediate appellate courts in the country, one step above the
trial courts where cases are tried and one step below the Supreme Court
of the United States.
What most people don't realize is that the Supreme Court only decides
roughly 80 cases a year. In other words, there is no guarantee that if
your case is tried in the trial court, it will go beyond the circuit
court of appeals. So in many instances, our circuit courts are the
``supreme court,'' or the court of last resort. These sterling nominees
that the President has nominated include Professor Amy Barrett, who
yesterday was confirmed to the Seventh Circuit Court of Appeals by a
bipartisan vote of 55 to 43. For some reason, our friends across the
aisle have decided it is to their advantage to inexplicably drag out
the clock against a really accomplished scholar--and to boot, a mother
of seven--but, of course, to no avail.
What is worse is our colleagues across the aisle have seemed to have
forgotten some of their own priorities when it comes to judges. For
example, the senior Senator from Minnesota has said in the past: ``It
is time to get women on the bench.'' Well, we just did that yesterday,
and we are going to do it again. ``They should get an up-or-down vote .
. . that is what women deserve.'' I would say that is what the
President's nominees--whether they be women or men--deserve, but,
unfortunately, that hasn't always been the case.
There is still time, however, for our Democratic colleagues to honor
their previous statements and to put more women on the circuit courts
without needlessly stringing them along with unnecessary delays.
Joan Larsen was the first. She was confirmed earlier today. She
fulfills the desire of the senior Senator from Vermont to ``confirm
women practicing at the pinnacle of the legal profession.''
That is certainly where Joan Larsen works. She has been a justice on
the Michigan Supreme Court and was nominated to the Sixth Circuit,
which handles Federal appeals from Michigan, Kentucky, Ohio, and
Tennessee. Justice Larsen graduated first in her class from
Northwestern University's law school. She then clerked for the
prestigious DC Circuit Court of Appeals, right here in Washington, DC.
She then went on to serve as a law clerk to Justice Antonin Scalia of
the U.S. Supreme Court.
Since then, she has worked in public service at the Office of Legal
Counsel at the Department of Justice during the George W. Bush
administration and has taught at the University of Michigan Law School.
Both of our Democratic colleagues from Michigan have returned their
blue slips, which is the piece of paper which says they are OK with the
nomination going forward, signaling their approval. Given her
credentials, my question would be, How could they not?
Ms. Larsen will make an excellent judge. She already has been, but
she will make an excellent addition to the circuit court of appeals,
and I am glad we have now confirmed her.
Another nominee is on the way. Justice Allison Eid of the Colorado
Supreme Court has been nominated to the Tenth Circuit post formerly
held by Justice Neil Gorsuch, who was recently confirmed to the U.S.
Supreme Court. The Tenth Circuit sits in Denver and includes Colorado,
New Mexico, Kansas, Oklahoma, Utah, and Wyoming.
As in the case of Professor Barrett and Justice Larsen, Allison Eid
is exceptional in every respect. She attended Stanford University and
the University of Chicago Law School, where she was elected to the
Order of the Coif and graduated with high honors. She clerked for the
Fifth Circuit Court of Appeals in New Orleans and then went on to clerk
for Justice Clarence Thomas on the U.S. Supreme Court.
As with Justice Larsen, Justice Eid has received the blue slips from
both of her home State Senators, which means they are willing to let
this confirmation go forward. So I look forward to her quick
confirmation.
Finally, the fourth judge who will be confirmed this week is
professor Stephanos Bibas, who teaches at the University of
Pennsylvania Law School. He has been nominated for the Third Circuit
Court of Appeals, which covers Delaware, New Jersey, and Pennsylvania.
Stephanos Bibas was educated at Columbia, Oxford, and Yale Law School.
He, likewise, clerked for the Fifth Circuit Court of Appeals and then
went on to clerk for Justice Anthony Kennedy on the U.S. Supreme Court.
He has worked both in private practice and as a prosecutor. Now he

[[Page S6953]]

has distinguished himself as an academic, teaching and publishing in
the realm of criminal law and procedure.
In their ringing endorsement of his nomination, a diverse group of
more than 100 law professors noted Professor Bibas's ``fair-mindedness,
conscientiousness, and personal integrity.'' Those are the sort of
qualities we should all want in a circuit court judge.
We are going to confirm Stephanos Bibas and the other nominees I
mentioned, no matter how long it takes, this week. The majority leader
has put our friends across the aisle on notice, and there is nothing
they can do to stop those confirmation votes before we call it a week.
Once again, the administration has demonstrated its skill at picking
bright nominees for the right reasons. This week's nominees will read
the law faithfully. They will honestly interpret its text, and they
will apply it to cases with a sense of humility no matter what their
preferred outcome might be.
I appreciate President Trump, Leader McConnell, and the chairman of
the Senate Judiciary Committee, Senator Chuck Grassley, for the hard
work in bringing these nominees to the floor. Now let's get them on the
Federal bench.

Tax Reform

Mr. President, the other issue I wish to bring up in my remarks today
is tax reform, because we all know that the House of Representatives
will release the Ways and Means Committee's beginning bill for tax
reform--something we have promised for a long time and that the country
is anxiously awaiting.
This will be the culmination of months--if not years--of hard work,
of meetings, white papers, listening sessions, and the like so that we
can deliver on our shared goal of a simpler, fairer tax system that
boosts jobs and puts more money in the pockets of every American. Those
are our goals.
We know that many hard-working Americans have had a rough time in
recent years. Sending their kids to college and securing retirement
seems to be harder and increasingly out of reach for some of my
constituents back in Texas and people around the country. I hear about
their concerns and their anxieties--economic anxieties--every time I go
home. It is not acceptable that 50 percent of Americans are finding
themselves living from paycheck to paycheck and that a third of voters
are one trip to the mechanic shop away from a household financial
crisis.
Last week, several of my colleagues and I sat down with the
President--we were members of a bipartisan group of the Senate Finance
Committee--and discussed our objectives in achieving meaningful and
lasting changes to our Tax Code. The President agreed that we should
cut taxes for hard-working Americans and that we should nearly double
the standard deduction, which reduces the number of people who will
have to itemize deductions on their tax return, thus, making compliance
with the Tax Code much simpler and cheaper. We agreed that we would
significantly increase the child tax credit and reduce taxes on
businesses and job creators.
This last objective--reducing taxes on businesses and job creators--
deserves a little bit more discussion.
Ireland represents an interesting point of comparison for the United
States. We have the highest tax rate in the world--35 percent for
businesses that do business all around the globe. Ireland has a
corporate rate of 12.5 percent. That is 35 percent to 12.5 percent.
Because of that, it has become a haven for large American companies,
especially in the high-tech sector.
Ireland has since ended its so-called ``double Irish'' tax scheme,
which allowed it to benefit from taxes on income that should have been
taxed in the United States. In other words, there is some rivalry and
competition when businesses do business worldwide as to where their
profits will be taxed. We want to make sure that those profits are
taxed in the United States and not in countries abroad, where we would
enjoy no benefit from.
This example illustrates what happens when we keep our tax rate so
high. Sadly, companies leave. They go elsewhere, because they know that
the difference between a 35-percent tax rate and a 12.5-percent tax
rate in Ireland may be the difference between making a profit for your
shareholders--whether it is the teachers retirement system or the
firefighters pension fund--or ending up in the red and not making a
profit at all. Savvy companies will leave, and they will go elsewhere.
They know to create new entities and search the globe for better rates.
It is really a matter of their competitiveness in a global economy.
Of course, when they do this, it is legal. It is rational because
they want the best deal they can get for their shareholders. They also
want to make sure they can achieve a profit for their shareholders and
not a loss, frankly, due to the differential in tax rates.
When companies dodge U.S. taxes, it means we here in the United
States miss out on revenue that we would otherwise reap. One thing is
for sure. With $20 trillion in debt, we want to make sure that our Tax
Code is fair and simple and is competitive and will help us grow our
economy in a way that will help us pay down those deficits and that
debt.
Now, our Democratic friends have been known to demagogue this issue a
little bit, saying: Who wants to cut these corporate tax rates
overseas? Corporations shouldn't get a tax cut, even though they know
what the facts are.
Well, they should simply listen to people like Barack Obama. In 2011
he was speaking to a joint session of Congress and called on
Republicans and Democrats alike to lower the U.S. corporate tax rate
because he knew--and he was right--that this was hurting our global
competitiveness in a global economy and that companies, out of sheer
self-interest, were keeping the profits they had earned overseas rather
than bringing them back and suffering from double taxation, meaning
that workers here in the United States didn't get the benefit of that
infusion of extra cash in their paycheck, and the investment that
should occur here in the United States was occurring overseas strictly
because of our Tax Code.
My colleague, the senior Senator from Oregon, described corporate
inversions. That is what happens when an American company shifts its
legal address to a foreign country, such as Ireland, for tax purposes.
He called it a ``contagion'' that has affected the Tax Code with ``the
chronic diseases of loopholes and inefficiency.'' He went on to call
the Tax Code an ``anti-competitive mess.'' He is right.
The senior Senators from Maryland and Ohio have also made similar
statements in past years.
We all realize that simplifying our Tax Code will reduce tax
compliance costs, which currently run for small business owners at
around $19 billion a year. Our Tax Code has simply gotten to be too
complex and too convoluted for honest, law-abiding small business
owners to do it on their own. So they have to hire somebody else to
help them sort it out.
The less money that a small business pays in tax compliance is the
more they can spend on their employees or on expanding their business
or on investing in new equipment or simply giving their workers a pay
raise. Let's give them the relief that they need. Let's reduce the
corporate rate, as President Obama and our colleagues on the other side
used to argue for. With our proposals, we can also get moving on fixing
the rest of the Tax Code to let the hard-working people of Texas and
American families keep more of what they earn, improve their standard
of living in the process, and to make our Tax Code more competitive in
a global economy so that businesses that operate internationally will
be incentivized to bring that money back here to the United States to
make and manufacture products that are stamped ``Made in America'' and
to improve the wages and quality of life and income of American
workers. It just strikes me as a no-brainer, and that is exactly what
we are going to set out to accomplish to.
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. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Toomey). Without objection, it is so
ordered.
Mr. SCHUMER. Mr. President, thank you.

[[Page S6954]]

Freedom to Negotiate

Labor unions and strong labor laws have helped build the middle class
in America and protect the rights of workers for generations.
In the 1970s, union participation was around 30 percent, and it was a
golden era for the American middle class. Wages went up. Families had
benefits and vacations. Parents could pay for college. They could put
food on the table and have money left over. The vast, thriving middle
class was built on the blood and sweat of labor unions and those who
organized the labor unions, often at their physical peril, back in the
thirties.
Unfortunately, over the last few decades, union membership has
declined and, along with it, middle-class wages and opportunities. In
the seventies, union membership was near 30 percent, but it had fallen
to just 11 percent of all workers by 2014. That decline is mostly
because the union movement and, concurrently, the middle class, with
which it is allied, have been under attack from big corporate special
interests and the conservative movement for the better part of the last
three decades. It is well funded by a small group of very rich and, I
might say, greedy people, and it is patient.
Their goal is to, by any means necessary--Congress, the courts,
whatever--break up existing unions and prevent new unions from forming.
They will pursue any avenue in order to disrupt the ability of workers
to organize and collectively bargain for a fair share of the profits
they create so that they can make an extra buck.
These forces will do whatever it takes to keep rigging the system in
their favor, like asking the Supreme Court to rule on Janus v. AFSCME,
a case backed by the Koch brothers--$40 billion each, maybe more;
plenty of money--but they hate giving any money to workers. And there
is no record evidence of a single lower court ruling in its favor.
If anyone doubts the politicization of the Supreme Court, just look
at their being willing to hear this case twice, which comes with a
crazy legal theory that a First Amendment basis should be used to
destroy collective bargaining. It is merely designed to eliminate the
freedom of people to come together in unions. If the Supreme Court
endorses the arguments of Janus, it will be a dark day for the American
worker.
Chief Justice Roberts, who said he would be fair and call balls and
strikes, in my view, has lost all pretence of fairness. He wants to
keep the Court nonpolitical, but he keeps pushing cases like this.
Since his confirmation, under Chief Justice Roberts, the Court has
methodically moved in a pro-corporate direction in its constantly and
consistently siding with the big corporate interests over the interests
of workers. Already, it has been the most pro-corporate Court since
World War II. A decision in favor of Janus will be a shameful capstone
on that already disgraceful record.
I would say to all of those wealthy people who have plenty of money
and to all of those corporate executives who get paid in the tens of
millions, who are desperate to take money away from middle-class people
whose incomes are declining, that you are creating an anger and a
sourness in America that is hurting our country in so many different
ways.
American workers deserve a better deal, and Democrats are going to
offer it. We are calling it freedom to negotiate. We are offering the
middle class, and those who are struggling to get there, a better deal
by taking on companies that undermine unions and underpay their
workers, and beginning to unwind a rigged system that threatens every
worker's freedom to negotiate with their employer.
Our plan would, among other things, strengthen penalties on predatory
corporations that violate workers' rights; ban State right-to-work laws
that undermine worker freedoms to join together and negotiate;
strengthen a worker's right to strike for essential workplace
improvements; and provide millions of public employees--State, local,
and Federal--with the freedom to join a union and collectively bargain
with their employers.
Over the past century, labor unions have fought to stitch into the
fabric of our economy a basic sense of fairness for workers. Each
worker left on his or her own has no power against the big corporate
interests that employ them, but together unions and workers who unite
in unions can have some say.
No one taught me better about the lack of fairness than a 32BJ worker
I met several years ago at the JFK International Airport, who was named
Shareeka Elliot. When I first met Shareeka, she was a mother of two
children who was struggling to make ends meet. She was working the
graveyard shift cleaning the terminals at JFK and serving hamburgers at
McDonald's during the day. She was forced to rely on public assistance
since she had gotten so little in wages from those jobs. She lived in a
house with six other family members to be able to pay the rent. She was
not a freeloader. She was working two jobs, but she got minimum wage
and could hardly support herself. She barely saw her children and spent
most of her free time in getting to this job--this poorly paid, minimum
wage job. She had to take a bus for 2 hours from East New York to the
JFK International Airport.
She was not angry, by the way, as she was a churchgoing lady. She had
faith in God to provide, but she suffered so.
By the way, 30 years ago, if you had cleaned bathrooms at an airport,
you would have been employed by the airlines or by the terminal. But
because these companies have learned to farm out the labor to
subsidiaries, to franchises, and to other corporations that have no
accountability, now cleaning those toilets is a minimum wage job.
Over the last 4 years, though, I have seen Shareeka and her coworkers
start to rebuild their dreams. She said to me: Senator, if I only could
get minimum wage, I might be able to take my kids out to a restaurant--
I never could--or buy them toys for Christmas. I never could do that.
Shareeka joined the union, and they fought for a $15 minimum wage. In
some parts of the country, that may seem like a lot of money. In New
York City, I can tell you that it does not go that far. Costs are
higher. Shareeka was able to quit her second job and spend time with
her daughters, like all parents want to do. Shareeka and her coworkers
won a union contract, and now they are able to gain the tools they
needed to protect themselves and do their work in a safer environment.
Shareeka is a metaphor for ``American workers,'' so many of whom have
lost good-paying jobs that have gone overseas or that have been closed
due to automation. When they organize in these new types of jobs, they
can get the kinds of wages people used to get in the jobs that have
gone away.
It is pretty simple: When workers have the freedom to negotiate with
their employers, they have safer working conditions, better wages, and
fairer overtime and leave policies. Shareeka's story is a testament to
that fact.
Our better deal, the freedom to negotiate, will do for so many
Americans what Shareeka's union did for her in New York. It will turn
things around for our country. Maybe middle-class wages will start
going up, and maybe people will start having faith in the future again.
We Democrats--hopefully, maybe, joined by a few courageous
Republicans--are going to fight to get it done.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. MURRAY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Gardner). Without objection, it is so
ordered.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. MURRAY. Mr. President, I want to thank my colleague Senator
Brown for leading the effort on the floor to speak out against the
latest attacks on union rights that are in front of the Supreme Court
right now. I am very proud to join him to highlight the contributions
unions have made to our middle class, to the economy, and to our
country. I want to express my commitment to stand up against any
attempts to undermine workers' rights to join a union and bargain
collectively.

[[Page S6955]]

Since day one, President Trump has broken his campaign promise, which
was to put our workers first, by rolling back worker protections and
putting corporations and billionaires ahead of our working families,
and now we are seeing corporate special interests doubling down on
their attempts to undermine the rights of workers to band together. So
it is critical now more than ever that we are committed to protecting
our workers and their ability to advocate for safe working conditions,
better wages, and a secure retirement.
Unions helped create the middle class in this country and helped a
lot of our families in the last century become financially secure. But
over the last few decades, as workers' bargaining power and union
density have declined, we as a country have seen a decline in the
middle class and a rise in income inequality in this country. As we all
know, too many families today are struggling to make ends meet.
Meanwhile, corporations' profits are at an alltime high.
I will continue to fight back against any attempts by this
administration and by special interests to rig the rules against the
people who go to work every day. I will keep fighting for policies that
will help families save just a little more in their bank account,
whether it includes raising the minimum wage or fighting for equal pay
for equal work or strengthening our workers' rights to seek out and
join a union and bargain collectively. I urge all of our colleagues who
want to help working families to get ahead to join me in that effort.
Thank you, Mr. President.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. DUCKWORTH. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. DUCKWORTH. Mr. President, I am here to speak out in favor of
working families and how we can empower American workers to obtain good
jobs, to secure a safe retirement after a lifetime of hard work, and to
give them the freedom to join together to negotiate for better pay and
safer working conditions.
Unions in the United States are important for our families and for
our Nation's economy. Organized labor is one of the greatest forces
driving the middle class, which is especially important for our
veterans and members of the military. Union jobs help provide our
servicemembers and veterans with the economic opportunities that they
have earned. Union jobs help working moms and dads put food on the
table, and union jobs help power the engine of our economy--our middle
class. That is why I am working every day to protect the rights of
working people and why I stand shoulder to shoulder with organized
labor.
We must work together to combat the assault on the protections that
workers have fought so hard to secure. It is more important than ever
that we here in Washington work to expand economic opportunity for
hard-working Americans, many of whom come from a union home. That means
passing labor law reform to make it easier, not harder to join a union.
That also means expanding the use of project labor agreements for major
construction projects and opposing efforts to repeal prevailing wage
laws. It also means defending the Davis-Bacon Act. The Federal
Government can and should be a model employer that encourages companies
to pay fair wages.
It is important to note the great progress that collective bargaining
is making for all people. More families today have two working parents
than ever before, and women's growing role in our unions have increased
to nearly half of the labor workforce. In Illinois alone, 44 percent of
union workers are women. The labor movement, which had a pivotal role
in creating national minimum wage, the 40-hour workweek, overtime pay,
and standards for workplace health and safety, is now also impacting
women workers and their families in a significant way.
The collective voice that working Americans have is responsible for
improving sick leave and paid family leave policies at the State and
local levels. These efforts can also lead to reducing our Nation's
long-lasting wage gaps between gender and race. Labor unions tend to
raise wages and improve benefits for all represented workers,
especially for women, and women of all major racial and ethnic groups
experience a wage advantage when they are in a union. There is still a
long way to go in the wage gap fight, but unions are leading the way to
make those gaps smaller.
Unfortunately, organized labor is under attack. In Illinois, the
anti-union surge is on the rise. Nationwide, so-called right-to-work
efforts are growing. We need to be clear on one thing: These laws do
absolutely nothing to strengthen workers' rights, despite their
misleading names and rhetoric.
Make no mistake, opponents of organized labor are well funded and
relentless in advancing union-busting campaigns. We must work together
and challenge these growing dangers to America's middle class.
The U.S. Supreme Court will soon decide a case that could determine
the future of American unions. A slim majority of conservative Justices
may hand down an anti-worker decision that would dramatically undo
existing precedent and sabotage the ability of unions to effectively
represent hard-working, everyday Americans. Workers should not be able
to reap all the benefits of union negotiations while refusing to pay
dues that made those efforts possible. Make no mistake, a decision
sanctioning this practice would strip away freedom from millions of
Americans. It would steal their freedom to join together to bargain for
better wages, it would steal their freedom to join together to insist
on worker protections, and, ultimately, it would betray middle-class
America, which relies on organizing to effectively negotiate with
powerful corporations.
Another way we can support our union workers is by making a serious
investment in our Nation's infrastructure, which leads to more good-
paying jobs and greater economic opportunity for working families.
Improving our Nation's infrastructure is really just common sense. That
is why I introduced a bill, which was passed into law, to cut redtape
and reduce delays on construction projects in Illinois and our
surrounding States. Upgrading our transportation systems will help
Illinoisans and all Americans who depend on our roads and transit
systems to get to work every day, as well as businesses that need our
airports, highways, and our freight network to ship their products.
I am working each day to support our hard-working, middle-class
families. Through organizing, unions have become champions for working
families both in and out of the Federal Government.
I thank our union representatives for all the work they do for our
families, our communities, and our Nation.
Thank you.
The PRESIDING OFFICER. The Senator from Massachusetts.
Ms. WARREN. Mr. President, last year, powerful corporate interest
groups actually stole a Supreme Court seat and handed it over to their
handpicked choice, Neil Gorsuch. Now those powerful corporate groups
are about to use that seat to deal a devastating blow to hard-working
teachers, firefighters, nurses, and police all across this country.
On September 28, the Supreme Court announced that it would hear a
case called Janus v. AFSCME Council 31. AFSCME 31 is a union
representing public sector workers in Illinois. This case will
determine whether the public sector unions that represent teachers,
nurses, firefighters, and police officers in States and cities across
the country can collect fees from all the employees in the workplaces
they represent.
Many expect that Justice Gorsuch will deliver the deciding vote in
that case, that he will force unions to represent employees who do not
pay dues and, in doing so, cut off sustainable funding for public union
organizing.
Judges are supposed to be impartial, but there is no reason to expect
that Justice Gorsuch will be impartial in this case. On the afternoon
of September 28--the very same day that the Supreme Court announced
that it would hear the Janus case--Justice Gorsuch attended a luncheon
at the

[[Page S6956]]

Trump International Hotel. And he didn't just attend an event at a
hotel that makes money for the President. Nope. He gave the keynote
speech for a rightwing group funded by one of the Koch brothers and by
the Bradley Foundation--billionaires and wealthy donors who are pumping
money into the people behind the Janus case.
It is no surprise that these rich guys want to break the backs of
unions. After all, unions speak up, unions fight back, and unions call
out billionaires who rig the system to favor themselves and to leave
everyone else in the dirt.
What is at stake in the Janus case is basic freedom--the freedom to
build something strong and valuable, the freedom to have a real voice
to speak out, the freedom to build a future that doesn't hang by a
thread at the whim of a billionaire. And just as the Supreme Court
decides to take up a decision that puts the freedom of millions of
working people in jeopardy, Justice Gorsuch shows up as the star
attraction for a billionaire-sponsored outing to celebrate an
organization that is sponsoring an operation to put workers' freedom on
the chopping block.
With this kind of brazen disregard for fairness and impartiality, it
is no wonder that Gallup Polls have found that fewer than half of all
Americans approve of the way the Supreme Court is now handling its job.
In a shameless decision to abandon even the appearance of neutrality,
Justice Gorsuch makes it clear that he is on the attack against
American unions and American workers.
In the Trump administration, workers have been under repeated attack.
Since taking office, President Trump has signed several laws sent to
him by the Republican Congress, laws that directly undermine the wages,
benefits, health and safety of American workers. In just 10 months,
they have rolled back rules designed to make sure that Federal
contractors don't cheat their workers out of hard-earned wages. They
have delayed safety standards that keep workers from being exposed to
lethal, carcinogenic materials. They have given shady financial
advisers more time to cheat hard-working Americans out of billions of
dollars in retirement savings, and the list goes on.
This is a democracy, and in a democracy, the government in Washington
is supposed to work for the people who sent us here. So why is it that
the Federal Government seems to be working against the interests of 150
million Americans who work for a living? Well, there is one reason--
money.
Money slithers through Washington like a snake. Its influence is
everywhere. There are obvious ways that we know about--the campaign
contributions from giant corporations and their armies of lawyers and
lobbyists--but it is also the think tanks and the bought-and-paid-for
experts who are funded by shadowy money, whose point of view seems
always to help the rich and powerful get richer and more powerful.
Powerful interests invested vast sums of money in electing President
Trump, and with each of his anti-worker actions, their investments are
paying off. Powerful interests also spent vast sums of money to push
Federal judges who will tilt our courts even further in favor of
billionaires and big businesses.
They did it when they spent millions of dollars to hold open a
Supreme Court seat for over a year. They did it when they spent
millions more to promote Neil Gorsuch to fill that seat. Now that the
Court is poised to deliver a massive blow to public sector unions and
workers, their investment is paying off big time.
The stakes here couldn't be higher. Millions of teachers, nurses,
firefighters, and police officers are looking to the Court for a fair
hearing of the case. They are holding out hope that their freedom to
come together and to stand up for themselves in the workplace, their
freedom to fight for higher wages, their freedom to fight for more
generous benefits, and their freedom to fight for a better future for
themselves and their children will be preserved.
Unless we make real change, working people are just going to get
kicked again and again, and we can make change. We can make the change
right here in Washington. We can stand up and fight for our democracy,
and we can start by demanding that everyone in our government is
accountable, including the President of the United States and the
Supreme Court of the United States.
Thank you, Mr. President.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. CASEY. 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. CASEY. I also ask unanimous consent to speak as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CASEY. Mr. President, 40 years ago, the U.S. Supreme Court ruled
that nonunion public workers who benefit from the work conducted by a
union to negotiate contracts that they benefit from should have to pay
a fee to cover costs associated with this work. If all workers benefit,
it is only right that everyone contributes a fair-share fee.
However, in recent years, there has been a well-funded effort by
special interest groups backed by corporate billionaires to dismantle
unions and silence the voice of workers. There have been a number of
attempts to overturn the 1977 decision in Abood v. Detroit Board of
Education. Other efforts have targeted State legislatures where they
have had success in many States. In other States like Pennsylvania,
these efforts were blocked.
Workers already have the right to decide whether to join a union.
They have the right to decide. It is common sense that if these workers
benefit from the higher wages and better working conditions that result
from contract negotiations undertaken by the union, that those workers
should have to chip in for the cost of these negotiations. That is just
fair. These negotiations get results and they benefit workers. They
benefit workers who are in the union and benefit workers who are not in
the union.
The right to bargain collectively has been an integral part of
raising income and growing the middle class over the course of the last
century. Being able to organize and bargain collectively allows workers
to demand higher wages and salaries and of course boost their incomes.
These workers have more money to provide for their families, to
increase consumption, which in turn increases both production and
employment. Putting more money in the hands of workers is good for
workers and for the country.
Over the last several decades, we have seen the balance of power
across our Nation tilt more and more in favor of the wealthy and the
largest corporate interests at the expense of working Americans.
The Supreme Court has not been immune from this trend. Under Chief
Justice Roberts, the Court has become an ever more reliable ally for
big corporations. A major study published in the Minnesota Law Review
in 2013 found that the four conservative Justices currently sitting on
the Court--Justices Alito, Roberts, Thomas, and Kennedy--are among the
six most business-friendly Supreme Court Justices since 1946. So four
of the six most business-friendly are serving on the Court at the same
time.
A review by the Constitutional Accountability Center--which is an
ongoing review and is updated with every case the Supreme Court
decides--shows the consequences of the Court's corporate tilt, finding
that the chamber of commerce has had a success rate of 70 percent in
cases before the Roberts' Court--a significant increase over previous
courts.
These are all critical cases. These are cases of critical importance
to everyday Americans. These are cases involving, for example, rules
for consumer contracts, challenges to regulations ensuring fair pay and
labor standards, attempts by consumers to hold companies accountable
for product safety, and much more.
Well-funded corporate special interests do not have the best
interests of working families at heart. They are pushing these efforts
to reduce their bottom line by reducing the incomes of working
families.
That is why we are standing today to make sure that the voice of
working Pennsylvanians and Americans are heard. To increase incomes and
strengthen the middle class, we need to

[[Page S6957]]

stop the assault on workers and labor unions, whether it happens in
Congress or in State legislatures or, indeed, in the U.S. Supreme
Court.
I yield the floor.
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. PETERS. 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. PETERS. Mr. President, I rise today to speak in proud support of
America's workers--the men and women who build our cars and our homes,
who move American-made products across oceans, lakes, and highways, who
teach our children every school day, who take care of our families when
they get sick, and who keep us safe in our communities. I have seen
firsthand the importance of unions, both in my home State, where I grew
up, and across the country.
This is deeply personal for me. My father Herb was a public school
teacher and an active member of the Michigan Education Association. My
father-in-law Raul was a proud member--and continues to be a proud
member--of the United Auto Workers.
My mother Madeleine found economic opportunity as a nurse's aide. As
part of providing the best care possible to patients, she fought for a
better workplace for her colleagues, and then she went on to help
organize her workplace. She later served as a union steward with the
SEIU.
My parents raised me in a middle-class, union household. They
instilled in me the need, both, to stand up for rights and to never
take those rights for granted.
Standing together for fair wages, safer workplaces, and better hours,
Michigan's strong labor movement built the American manufacturing
sector and a middle class that made the United States a global economic
powerhouse.
My parents and their fellow union members embraced the union values
that built Michigan: the ability to earn a good life where you grow up,
hard work, fairness, and looking out for your neighbor--whether it is
your neighbor on the assembly line or in your neighborhood. These are
not just union values. These are American values, and I learned to
cherish them at a very young age. Now, I am sorry to say, these values
are under attack, and I can't help but to take it personally.
This year we have seen new and unprecedented attempts to undermine
our Nation's workers and their ability to collectively bargain. Earlier
this year, my Republican colleagues passed legislation to repeal
Federal rules that simply required businesses to disclose previous
workplace safety and fair pay violations before they could contract
with the Federal Government. The reason for this rule was fairly
straightforward: We should not be sending taxpayer dollars to employers
that can't keep their employees safe or that cheat them out of their
hard-earned dollars. Yet Republicans repealed the rule.
Now, across the country, we are seeing a wave of so-called right-to-
work legislation, which in practice means you can work more hours for
less pay. In Michigan we are seeing the impact of this misguided
legislation.
Supporters of these policies told us that wages and job growth would
increase if Michigan just passed laws to crack down on union
membership. Well, Michigan has the law, but workers and their families
aren't seeing any of the promised benefits.
In the years since passage of the law, the economic data clearly
shows that, yes, corporate profits are up but not wages. In fact, when
comparing Michigan to States that haven't attacked union membership,
studies suggest that we have fallen behind pro-union States when it
comes to worker pay.
I am deeply concerned by the ongoing efforts to implement national
anti-union laws, including the Janus v. AFSCME case that the U.S.
Supreme Court will rule on in the very near future. A negative ruling
in this case would be a huge loss for American workers and would
undermine the right to collectively bargain.
We should be doing everything we can to support American workers and
their right to fight for better working conditions, fair pay, and the
ability to care for their families. Instead of attacking our Nation's
labor unions, we should be celebrating them.
For generations, unions have helped America build the world's most
robust middle class and a powerful economy, second to no other nation.
Unions have not only helped workers to take home more pay and have a
safe place to work, but they have also built communities. Unions teach
their members valuable skills and help them earn a secure retirement
and have quality healthcare.
Big corporations are not trying to undermine unions because they are
looking out for newly hired employees. They are fighting against unions
because of what unions stand for--the right to collectively bargain for
better pay, increased workplace safety, hard-earned retirement
benefits, and quality healthcare.
I ask my colleagues to take a moment to consider our history and the
hard-working men and women who built this great Nation of ours. Union
members are our neighbors, our firefighters, our police officers, our
teachers, our nurses, our brothers and sisters, our moms, and our dads.
They build our cars, our homes, and our infrastructure.
I urge all of my colleagues to honor these men and women by opposing
any and all efforts to expand harmful policies designed to undermine
American workers.
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. BROWN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Lee). Without objection, it is so ordered.
Mr. BROWN. Mr. President, I wish to thank my colleagues for joining
me on the floor today to stand with American workers. We organized a
group of close to a dozen Senators who have heartfelt and strong views
about the dignity of work, who understand so well that workers are
working harder and smarter but earn less and less money, in spite of
their hard work, in spite of their commitment.
I have been joined on the floor already by Senator Schumer from New
York, Senator Murray from Washington State, Senator Duckworth from
Illinois, Senator Warren of Massachusetts, Senator Casey from
Pennsylvania, and Senator Peters from Michigan, and speaking after I
speak will be Senator Whitehouse of Rhode Island and Senator Merkley of
Oregon and Senator Durbin of Illinois. I thank them for standing up for
American workers.
People in Ohio and around the country, as I said, work harder, and
they work longer than ever, but they have less and less to show for it.
Over the last 40 years, GDP has gone up, corporate profits have gone
up, executives' salaries have gone up all because of the productivity
of American workers. Again, GDP goes up, corporate profits go up,
executive salaries explode upward. Workers are more productive, but
workers have not shared in the economic growth they have created. Hard
work just doesn't pay off like it did a generation ago.
It is no coincidence that over that same timeframe, we have seen
attack after attack after attack on the labor movement. Corporate
special interests have spent decades stripping workers of their freedom
to organize for fair wages and for benefits. The case the Supreme Court
just agreed to take up, Janus v. AFSCME, is yet another attempt to chip
away at workers' power in the workplace.
These are public service workers. These are public schoolteachers,
librarians, police officers, school nurses, firefighters, and postal
workers. They are not looking to get rich in these jobs. They are just
looking to be paid what they earn, the same as any other worker in this
country.
Make no mistake, an attack on public sector unions is an attack on
all unions. An attack on unions is an attack on all workers, whether
they belong to a union or not, and I mean all workers, whether you
punch a timeclock or whether you fill out a timesheet or swipe a badge,
whether you make a salary or earn tips, whether you are on payroll, a
contract worker,

[[Page S6958]]

a temp, working behind a desk, cutting hair, working on a factory
floor, or working behind a restaurant counter. I mean all workers.
The fact is, all workers across this country--as profits go up, as
GDP goes up, as executive compensation goes up, as workers get more
productive, all workers across this country are feeling squeezed. Work
doesn't pay off the way it used to.
We have seen what happens when workers have no power in the
workplace. Increasingly, corporations view American workers as a cost
to be minimized instead of a valuable asset in which to invest.
Look at the news we got last month. This piece of news, when I
mention this to some of my colleagues, when I mention it around the
State of Ohio, peoples' mouths drop. The Bank of America, Merrill Lynch
downgraded the fast food restaurant Chipotle because the company pays
its workers too much.
Remember what happened with American Airlines a few months ago.
American Airlines announced it was doing a companywide pay increase,
and the stock market punished them by knocking their stock down.
Imagine that. So when a company wants to do the right thing, Wall
Street says: No, you are not going to do the right thing. Wall Street
is saying: We want all the money. Don't give any of this money to
workers--workers making $10 or $12 or $15 an hour. Think about that.
Wall Street and Merrill Lynch didn't say they paid their workers too
little, they paid their workers too much. That is why the labor
movement matters.
Pope Francis spoke about how unions perform ``an essential role for
the common good.'' He said that the labor movement ``gives voice to
those who have none . . . unmasks the powerful who trample on the
rights of the most vulnerable workers, defends the cause of the
foreigner, the least, the discarded.''
I just had the pleasure, for the last few minutes in my office, to
speak with Bishop Murry of Youngstown, OH, and we were talking about
the Pope and about steelworkers in Youngstown and about the struggles
of workers and wages and layoffs and all the things that have happened
to--where the winds of globalization have buffeted the workers in that
community. Bishop Murry, as does Pope Francis, understands what too
many in this town don't; that workers feel invisible, entire
communities feel invisible. They feel like they are getting used and
abused and some other words I can't say on the Senate floor.
What, exactly, is the point of creating economic growth if workers
don't share in it, if ordinary families still can't get ahead?
Everybody here loves to talk about tax reform and bring the corporate
rate down, but nobody is talking about paying workers more or giving
workers more job security or what we should be doing--in working with
companies and creating good jobs.
My legislation, the Patriot Corporation Act, says if corporations do
the right thing--if they pay their workers well, if they pay benefits,
if they do the kinds of things American corporations should do--then
they get a lower tax rate because they have earned it.
We seem to have forgotten that all work has dignity. We have
forgotten, as the Pope said, that ``the person thrives in work. Labour
is the most common form of cooperation that humanity has generated in
its history.'' Think about that. ``Labour is the most common form of
cooperation that humanity has generated in its history.''
What Washington and Wall Street don't seem to understand is that
workers drive our economy, not corporations. You focus on the middle
class, you grow the economy from the middle out, not cut taxes on the
richest people and expect the money to trickle down into more money in
workers' pockets and more people are hired. You grow the economy by
treating workers well, by investing in workers. That is why we need
unions to ensure that we spread economic growth to the people creating
it, to the people working too many hours for too little pay.
I think about workers like Stephanie in Columbus. She has worked for
25 years as a childcare attendant for students with special needs. She
wrote, saying: ``Every day I wake up before the sun rises to prepare
for three daily shifts aiding students with special needs on their way
to and from school.''
That is the person whom--because she belongs to a union, that is the
person whom corporate America, that the rightwing of the Republican
Party wants to attack? That is the kind of person--Stephanie in
Columbus--they want to attack?
She worries that cases like this that undermine her union ``could
severely limit our voice on the job and hurt our ability to best serve
the children we care so much about.'' She said: ``Unions provide a
pathway to the middle class for all people.''
Think about a janitor I met in Cincinnati. I was speaking at a
dinner. There was a table down front with seven middle-age women--a
pretty diverse group. There was one empty seat at the table. It was
told to me by some others that this group of women were janitors,
custodians in downtown Cincinnati, southwest Ohio, and these women had
signed their first union contract with downtown Cincinnati business
owners. So there were 1,200 janitors working in these downtown
businesses--in these big buildings downtown--and they had signed their
first union contract.
I asked if I could sit at their table, and they said yes. I said to
the woman next to me: What is it like to have a union?
She said: I am 51 years old, and this is the first time I will have a
1-week paid vacation in my life.
Think about that. We don't think--I am guessing that most of my
colleagues think: Well, you know, people have paid vacations and people
have paid sick leave. Well, much of the country doesn't, No. 1; and No.
2, those who do often have that because they had a strong union--a
union that negotiated sick leave pay for them, a union that negotiated
vacation days for them, a union that negotiated family leave for them,
and then, when those workers at a company get it, the other
nonunionized workers and companies get it, and then those companies
compete with other companies.
So the fact is--there is a bumper sticker that says: ``If you enjoy
your weekend, thank a labor union.''
Labor unions brought to this country things like weekends and more
leisure time and decent pay and all that. That is why unions matter.
That is why this decision in the Supreme Court matters.
If the Supreme Court rules against AFSCME, it will starve the union
for resources they use to organize and grow and advocate for more
workers. At the risk of being disrespectful, it would be nice if those
nine members of the Supreme Court would follow the admonishment of Pope
Francis, the words of Pope Francis, who admonished his parish priests
to go out and smell like the flock. Find out where people live and
work. Find out what people do.
Find out the living conditions of people.
Abraham Lincoln in the White House one day was talking to his staff.
His staff said: You have to stay here in the White House. You have to
win the war. You have to free the slaves. You have to preserve the
Union.
Lincoln said: No, I have to go out and get my public opinion baths.
It could be important if the Chief Justice of the Supreme Court--who
has an Ivy league education, went to the best colleges and the best law
schools, grew up in a wealthy family, has done very well as a
professional, and is a very smart man--if he would go out and smell
like the flock, if he would go out and get his public opinion bath,
maybe he would hear some stories, as I have heard in my time in the
Senate.
He would hear stories from people who talk about how important it is
that Stephanie has union protection. He probably has never really
thought much about the fact that janitors, who have worked 30 years as
janitors--35 years for some of those women--but never had a paid day
off, never had a paid vacation. He might learn something from them and
think a little differently about this.
If the Supreme Court rules against AFSCME, it is the opposite of what
we need. We should be making it easier, not harder, for workers to come
together and negotiate. That is why, this week, I am introducing
legislation to strengthen the National Labor Relations Act, to make it
harder for employers to deny workers the freedom to collectively
bargain by playing games with their job titles and classifications.

[[Page S6959]]

Instead of stacking the deck even further in favor of corporate CEOs,
we need to make it easier for workers to organize. That is how we make
hard work pay off.
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. WHITEHOUSE. 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. WHITEHOUSE. Mr. President, the Janus decision coming up in the
U.S. Supreme Court, which Senator Brown has just spoken about, is one
that merits the attention of people who are concerned about the country
and the Court.
I wish to make two points in my remarks. The first has to do with the
very difficult to explain--or at least very difficult to comfortably
explain--pattern of 5-to-4 decisions of the U.S. Supreme Court, in
which the five consist entirely of Republican appointees.
The Supreme Court makes a lot of decisions, of course. But there is
something that is particularly interesting about the 5-to-4 decisions,
where the five Republican appointees line up and roll the other
appointees. When we start looking at those decisions, there are some
really significant patterns that emerge. The first pattern goes to
issues in which the court is treading into the world of politics.
Bear in mind that when Sandra Day O'Connor left the Court, it lost
its only member who had ever run for office. What Justice O'Connor left
behind was the first Court in the history of the United States that had
exactly zero experience with elections and politics. There has never
been as ignorant and green a Court in the history of the United States
when it comes to politics; yet there has rarely been a Court so
flagrantly eager to jump into politics and make very consequential
decisions.
When we look at the 5-to-4 decisions--which I think are probably the
bulk of those--each one aligns with the political interests of the
Republican Party--each one. It is not one or two or even three. It goes
on and on and on.
The oldest one in the series is probably Vieth v. Jubelirer, which
was the decision in which the five Republicans said: This whole
gerrymandering thing is just too difficult for us. We are going to
declare open season. There is going to be no judicial remedy. We can't
figure out one, so we don't have one.
It is not just me who is saying that. The ABA section on election law
said in its volume: Look, basically, it is game over for court review
of gerrymandering. What immediately happened after that was the
Republican Party went to work with that green-light signal and did the
REDMAP project, which created massive, bulk gerrymandering through the
battleground States. This was not an easy plan because, in some cases,
they had to spend millions of dollars to win one or two State
legislative seats, so they could then control the State legislature, so
they could then change the districts consistent with the bulk
gerrymandering scheme.
The result is what happened in States like Senator Brown's, where,
when he was reelected, he was on the ballot with President Obama, who
was also reelected, and the majority of the votes cast in his State for
Members of Congress were cast for Democrats, but against that
background, many more Republicans than Democrats actually went to
Congress in that election.
A similar thing happened in Pennsylvania. My recollection is that on
the same set of facts, Senator Casey, a Democrat, was reelected;
President Obama, a Democrat, was reelected; a majority of Pennsylvania
votes were cast for Democratic Members of Congress; the delegation was
13 Republicans and 5 Democrats. Somebody is messing around, and it was
a 5-to-4 Republican Supreme Court that opened that can of worms and
unleashed REDMAP on the political landscape.
They have a chance to review that now. Senator McCain has written a
bipartisan brief asking them to wake up and smell the coffee about what
has gone wrong here. We will see if they do or not, but, clearly, that
was a decision that benefited the Republican Party's polls, and,
clearly, it was 5 to 4.
Then you go to the Voting Rights Act cases. There were two of them.
In the first one, Bartlett v. Strickland, the five Republican members
teed up a new standard, which they mentioned, but they didn't really
act on it. Then, when it came to the home run pitch, Shelby County v.
Holder, they created this new theory about which very conservative
judges, like Posner, said that, basically, it stands on thin air. It
has no basis whatsoever in any real legal theory. They knocked out the
part of the Voting Rights Act that requires States with a wretched
history of abuse of minorities and Democratic voters at the polls to
get preclearance from the Department of Justice or from a court before
they can change their State laws to scare people or keep people away
from the polls.
With that knocked out, guess what. All these legislatures across the
South went straight to work. They passed law after law after law to
deny people access to the polls, and over and over again, the courts
that reviewed those and the appellate courts that reviewed the district
court decisions found that the laws had been intentionally
discriminatory, that the legislature had intended to keep people away
from the polls, that they had intended to discriminate against Democrat
and minority voters, and that they had chosen to do that deliberately.
Of course, you can go back after all that litigation and clean it up
and try to get the laws stricken and all of that. But in the meantime,
you have had election after election in which the effect at the polls
was had.
They couldn't have been more wrong about the notion that if you
lifted the preclearance requirement, everybody was going to be fine.
Those were just the bad old days; it was a whole new America; racism
didn't exist; efforts by one party to keep the other parties away from
the polls weren't anything to worry about. Move along, move along;
nothing to see here, folks. They were just plain dead wrong. They had
absolutely no clue, and they have been proven dead wrong since. But,
again, both of those cases were 5 to 4, all Republicans together.
Then, of course, the big whammy came when the big special interests
that so often are the core backers of the Republican Party decided that
they felt really constrained by having to live under campaign finance
limits. They wanted to be able to spend unlimited money in elections.
Well, that is fine. It reminds me a little bit of the story of the
French philosopher who touted the majesty and equality of the French
law, which forbid both rich and poor alike from sleeping under bridges
and begging for bread. Well, guess who actually sleeps under bridges
and begs for bread. It is not rich and poor. And guess who can take
advantage of a rule that you can spend unlimited money in politics.
Only those who meet two conditions: One, they have unlimited money to
spend, and, two, they have a good reason to spend it. In other words,
really big special interests.
The Court's decision, presuming that this spending was going to be
either independent or transparent, has been turned into a mockery by
events since. They obviously did not know what they were talking about.
Facts have borne out that they did not know what they were talking
about. They were completely dead wrong.
Interestingly, since then, despite the presumption of their decision
having been cut completely out from underneath it, the Court has shown
no interest in a correction. They have shown no interest in correcting
their error. They seem completely happy, the 5 to 4--the five
Republican appointees--completely happy to have the landscape of
American politics polluted with this money.
There again, it wasn't just one decision. It was a bunch of them.
Citizens United was the big one; Tradition Partnership, Inc. v. Bullock
another; McCutcheon v. FEC yet another; Davis v. FEC yet another;
Arizona Free Enterprise Club's FreedomClub PAC v. Bennett yet another--
all 5 to 4, all the Republicans lining up, all throwing out precedent
or laws that had stood for 100 years.
So Janus fits right into this pattern of 5-to-4 decisions. Indeed, it
is actually a little bit worse because something weird happened early
on when one of those 5 to 4--the Republican five Justices on the
Supreme Court--signaled to the corporate supporters of

[[Page S6960]]

this ideology that he was interested in taking a whack at unions in a
particular way.
There is a pet peeve of the union-busting rightwing and the corporate
sector, which was a decision from 1977 called Abood v. Detroit Board of
Education. That decision allows unions to collect some dues from
nonmembers on the grounds that their work for their members has benefit
to other members. So you break out their wages work, which helps
everybody, from their political work, which you can disaggregate from,
and it allows you to collect certain dues--not complete dues, but
certain dues--from nonunion members. What Abood did was to help unions
keep revenues from the service that they give to nonmembers who benefit
from their work. Without that rule, employees would be encouraged to be
free riders and just get the benefit of what the union is doing without
making any contribution to support it whatsoever. Of course, if that
were to happen, the balance of power between corporations and unions
would shift further toward corporations.

The story is told quite well in the New York Times by a reporter
named Adam Liptak, who is a Supreme Court reporter. I will read his
story.

In making a minor adjustment to how public unions must
issue notifications about their political spending, Justice
Alito digressed to raise questions about the
constitutionality of requiring workers who are not members of
public unions to pay fees for the unions' work on their
behalf. . . . Justice Sonia Sotomayor saw what was going on.
``To cast serious doubt on longstanding precedence,'' she
wrote in a concurrence, ``is a step we historically take only
with the greatest caution and reticence. To do so, as the
majority does, on our own invitation and without adversarial
presentation is both unfair and unwise.''
Michael A. Carvin, a leading conservative lawyer, also saw
what was going on. He and the Center for Individual Rights, a
libertarian group, promptly filed the challenge Justice Alito
had sketched out.

I would say that he had invited.

Indeed, Mr. Carvin asked the lower courts to rule against
his clients, a Christian education group and 10 California
teachers, so they could high-tail it to the Supreme Court.

Let me interrupt my reading of the story for a second and make the
point that this lawyer wanted to lose his case in the lower courts. It
is rare for lawyers to go into a court wanting to lose. You have to
have kind of a weird motive to take a case into court that you want to
lose. The obvious motive here is that Mr. Carvin had heard the signal
from Justice Alito that he was willing to rule his way if he would just
bring the right case. So it didn't matter whether he won or lost.
Losing is actually quicker. It gets you right up to the Supreme Court.
He is not interested in litigating the matter truly on the merits; he
is only interested in getting as quickly as possible to the Supreme
Court. Why? Because he knew that 5 to 4, he would get the right
decision.
When you are a lawyer, the most sickening feeling you can have is to
go into court with the belief that the judges you are going to argue
before are prejudged against you. The confidence that Carvin must have
had to want to lose a case deliberately below so that he could hightail
it at high speed up to a court that he knew was going to rule his way
because they told him they would--that is not American justice in the
way it should be delivered.
As it turned out, they took up the case. It was called Friedrichs. It
was going to be 5 to 4, just as expected, and then Justice Scalia
unexpectedly passed away. If you read about how the press took that, it
was very clear that the fix had been in on this case.

``Corporate America had high hopes,'' the Journal said,
because ``the Supreme Court appeared poised to deliver long-
sought conservative victories.''

Since when should a court be poised to deliver long-sought
conservative victories, not fair, dispassionate adjudication? But that
is the reporting of the friendly Wall Street Journal. And those long-
sought conservative victories were going to take the form of `` `body
blow[s] that business had sought against consumer and worker
plaintiffs.' The cases `had been carefully developed by activists to
capitalize on the court's rightward tilt.' ''
Come on. This is not adjudication any longer; it is just the exercise
of political power. And these 5-to-4 partisan decisions by the Supreme
Court are degrading the reputation of the Supreme Court, they are
degrading the integrity of the Supreme Court, and they are degrading
the role of the judiciary in our vaunted scheme of constitutional
government in the United States of America.
With that, I yield to my distinguished colleague from Oregon.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Mr. President, our Nation was founded on a powerful
principle encapsulated by the first three words of our Constitution:
``We the People.'' We are meant to be a nation, in the words of Abraham
Lincoln, ``of the people, by the people, and for the people,'' not a
nation by and for the most powerful, not a nation by and for the most
privileged. Yet time and time again, we are seeing a complete and total
corruption of the vision of our Constitution.
We saw this earlier this year with one TrumpCare bill after another
designed to rip healthcare away from 20 to 30 million Americans to
deliver tax giveaways to the richest in America. We have seen it just
recently in the consideration of a budget that reversed that and said
that in order to give $4.5 trillion of tax giveaways almost entirely to
the richest Americans, we will take $1 trillion out of Medicaid and
half a trillion out of Medicare. We have seen this powerful conversion
of standing our Constitution on its head, and now we have the Supreme
Court fully participating in this effort in a case called Janus v.
AFSCME. It is the very epitome of the principle of a nation so
corrupted that it honors the opposite of what our Constitution stands
for.
The sole purpose of this case, Janus v. AFSCME, is to undercut the
ability of workers to organize. This is an assault on the freedom of
working Americans to associate with their coworkers. It is an assault
on the freedom of working Americans to negotiate a fair wage. It is an
assault on the freedom of Americans to fight for fairer benefits and a
safe workplace. Bottom line: It is an assault on the freedom of workers
to participate in the wealth they work so hard to create.
In short, this is the right to exploit that our Supreme Court--
majority of five--is so determined to elevate. I have read the
Constitution, and I have never seen embedded in it a right to exploit,
a right to cheat, a right to take advantage of. Yet here is the
majority of the Court prepared to fight for exploitation on behalf of
the 1 percent of Americans at the very top.
The key strategy in this case is to attack the finances of workers
when they organize. Former President Jimmy Carter once said: ``Every
advance in this half-century--Social Security, civil rights, Medicare,
aid to education, one after another--came with the support and
leadership of American labor.'' It has been workers banding together to
say: We can create a better foundation for families to thrive. And that
hasn't just created a better foundation for those who belong to unions;
it has created a better foundation for all workers. We saw them
successfully band together and fight for a 40-hour workweek, fight for
minimum wage, fight for sick leave, and fight for healthy and safe
working conditions--again, benefits that every worker enjoys because
workers were able to organize and fight to receive and win these
provisions.
What is really going in the Janus case? Any organization, in order to
function, has rights and responsibilities. Rights are the rewards you
get for participating, and responsibilities are the requirement that
you be part of the team and you contribute to the effort.
When I was small, probably just 2 or 3 years old, my mother had a
book she would read to me that involved the animals in the barnyard.
Animal after animal was asked to participate in making the bread, and
animal after animal turned it down, but when the bread was baked, they
wanted a full share even though they had refused to participate in the
effort to create it. This is what Janus is all about. It is about the
right to the rewards, divided from any responsibility to get the work
done.
When workers organize, they say: We are going to have to be able to
have the finances to drive this organization, and to do that, we need
to have every worker contribute a fair share. Those fair share fees
mean that all the workers

[[Page S6961]]

are in it together, they are all contributing, and they all benefit
from the rewards.
Forever, the courts have said: Yes, with the reward goes the
responsibility. That is true of any organization. It is fundamental in
how organizations work. If you don't show up here on the floor, you
don't get to vote. Every organization has its responsibilities that go
with its rewards. But the 1 percent have chosen a strategy that says:
We will take one organization in America--and that is workers
organizations--and we will drive an absolute wedge between the
responsibility and the reward.
These fees that we are talking about, these fair share fees, are not
fees that go to political purposes. They don't go to donations to
candidates. They don't go to organizing campaigns walking door-to-door
for candidates. They don't go to advertising on the television or the
web. They are simply the cost of having a team that works to negotiate
an agreement with a company.
I find it absolutely evil that a majority of the Supreme Court is
excited about embracing this right to exploit other workers by saying
in this one case in America, you get the rewards without the
responsibilities. If the Court was applying that to a stockholder in a
company, the equivalent would be to say that the stockholder doesn't
have to contribute to the costs of the management of the corporation,
so they can demand back their share of what the management spends on
their salaries, on their office spaces, on their private jets, and on
their trips to do whatever they do, of the time they spend negotiating
acquisitions to build the size of the company or striking deals to sell
their products. That would be the equivalent, that a stockholder gets
the rewards of all of that negotiation without having to participate in
the cost. But this is not a situation in which five Justices want to
apply consistent principle because their goal isn't to honor the
Constitution, and their goal is not fairness; their single goal is to
demolish the ability of workers to organize, to get a fair share of the
wealth they work to create.
We can see that already our Nation is in trouble on this principle.
For the three decades after World War II, we had workers who had the
strong ability to organize and demand a fair share, and we saw a
revolution in the prosperity of workers in those three decades from
1945 through 1975. Individuals who had lived in shacks, individuals who
had been wiped out by the Great Depression suddenly were able to buy,
on a single worker's income--it didn't even take two incomes--a three-
bedroom ranch house with a basement and a single-car garage and were
still able to save money for an annual camping trip and perhaps to save
some to help their children launch themselves into life. That is what
we had when workers got a fair share.

Yet, in the midseventies, the multinational companies said: Do you
know what? Let's undercut the American worker by making our goods
overseas in China and importing them. That way, we will demolish the
jobs here in America, and we, the company, will have made things at the
lowest price in the world, have sold them at the world market price,
and have made a lot more money. This strategy worked for the
multinational companies. They made vast sums of money for their
stockholders and for their executives.
This application of different rules for foreign workers and domestic
workers really gave a huge advantage to our competitor overseas and to
a company that spanned both shores and could move its production
overseas. So we saw the loss of 50,000 factories; we saw the loss of 5
million factory jobs; we saw the loss of an enormous number of supply
chain jobs; and we saw, without those payrolls being spent in the
community, an enormous loss of retail jobs in the community, but it
made the wealthy wealthier, and that was the goal of the strategy.
So here we are, facing this case that will come before the Court
later this year, but the members of the Court have, essentially,
already declared their positions. Four members of the Court were on the
previous version of this when the Court tied 4 to 4, and Neil Gorsuch,
who was added to the Court, has been very clear on which side of this
he stands.
Should we put an asterisk by Neil Gorsuch's name? Should a 5-to-4
decision, with Gorsuch being in the majority, even carry weight here in
our society? This is the seat that for the first time in U.S. history
was stolen from one President and delivered to another. The majority of
this body right here stole the seat, undermining the integrity,
dishonoring the oath, the responsibility for advice and consent, and
damaging the legitimacy of the Supreme Court. It was done because it
was a strategy to enable the 1 percent to rip off ordinary working
Americans. The prize for that was a position on Citizens United that
now allows the wealthiest Americans to continue to fund campaigns
across this country to drown out the voices of ordinary people and a
position on this case, the Janus case, that says that we will take one
organization in America, that of the workers, and divide the rewards
from the rights.
We know who is behind this strategy. It is the Koch brothers through
their organizations, the National Right to Work Foundation and the
Liberty Justice Center. They were behind the strategy for the theft of
the Supreme Court seat. They were behind the massive increase in third-
party spending that polluted the campaigns across this country. They
are behind this strategy to destroy the vision that is embedded in our
Constitution.
Eleanor Roosevelt once said: I am opposed to this legislation because
it gives employers the right to exploit. Eleanor Roosevelt was a real
champion for workers, and she called a spade a spade. The right to
exploit is not a right that any Member of this body should pursue, and
it certainly should not be pursued by the Supreme Court.
We know that there is a chapter 2 to this strategy. The first is to
get the Supreme Court so that you can divide the rights from the
responsibilities; therefore, you as a worker do not have to contribute
to the cost, but you will benefit from the rewards. Pretty soon, very
few people will be contributing; therefore, it will undermine the
financial ability of the union to negotiate.
Then they have a second strategy. This fundraising letter was sent
out last year by the State Policy Network. By the way, the State Policy
Network is an alliance of 66 State-based think tanks that are designed
and funded by the Koch brothers and their friends to undercut the
ability of workers to get a fair share of the wealth that they create.
They said: Here is our plan to defund and defang our opponent, the
unions--to deal a blow to the left's ability to control government.
Ah, they are fancy words, but what they really meant was our goal is
to take and undo the ability of workers to organize so as to get a fair
share of the wealth they create. It is one evil act after another that
is funded by the Koch cartel.
In our Nation, we have stood up to this type of abuse time and again.
The American historian who created the phrase the ``American dream''
said, in each generation, there is a group of Americans who rises up to
take on the forces that appear to be overwhelming us. We need to call
on the people of the United States who believe in the vision of our
Constitution, to be that group to rise up and take on this effort to
turn our Constitution on its head--to strip ``we the people'' out of
our Constitution and replace it with ``we the powerful''--and to stand
up against this type of right to exploit, whether it is a bill here on
the floor of the U.S. Senate or it is a begotten majority of the
Supreme Court.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I am not the first guy to stand up here
and make this observation, but I have serious concerns with how the
nominee confirmation process has been going in this Congress.
There is a blatant lack of respect for the Senate nomination process
and an unprecedented level of obstructionism. I have been here for a
number of years, so I know what to compare it with. I have never seen
so many people being delayed in their confirmations, knowing that they
are, ultimately, going to be confirmed and that they are well-qualified
civil servants.
The Democrats are forcing cloture votes on nominees who have well
over 60 votes in support. Last week, we held a cloture vote on Scott
Palk. Scott Palk is from Oklahoma. He is a guy who everybody likes. He
doesn't have

[[Page S6962]]

any enemies out there. In fact, he was actually nominated by President
Obama. He was not even nominated by this President. He ended up getting
79 votes. Still, the stall was there, and we had to wait and wait and
wait. Meanwhile, things are not getting done that should be getting
done. Furthermore, the agency positions that we have hardly ever held
rollcall votes on are being forced to occupy floor time. There is no
reason for these votes except to delay the work of the courts and our
agencies.
I am very supportive of the leader's commitment to our courts and how
he has prioritized judicial nominees. These nominations are extremely
important and will ensure that the rule of law is upheld for, possibly,
decades to come, benefiting all Americans.

Environmental Protection Agency

However, there is an Agency that is doing work that is also important
to all Americans and needs appointments, and that Agency is the
Environmental Protection Agency. If there has been one Agency over the
last 8 years that has run around and expanded its authority beyond
congressional intent, it is the EPA. Putting confirmed appointees in
place at the EPA will allow the President and Scott Pruitt to be
successful in their efforts to rightsize that Agency. He has talked
about that quite a bit. It is a bloated Agency that needs to be
rightsized, and he needs help to do that.
Last week, I highlighted the great things that Scott Pruitt is doing
as Administrator. I was able to visit with him yesterday at the EPA and
witness firsthand the implementation of new policies that will bring
about positive changes in an Agency that has run roughshod over the
American people. With the repeal of WOTUS and the Clean Power Plan,
with the implementation of TSCA, in reforming the Agency by ending sue-
and-settle processes, and by creating greater transparency on the EPA's
Science Advisory Committee, he is really doing a great job.
By the way, yesterday, we had this event over there which had to do
with the scientists. There are three Scientific Advisory Boards in the
EPA. These are supposed to be made up of scientists who advise the
policymakers as to what they are supposed to be doing. During the last
administration, we discovered in just one of these that six out of
seven of the appointees were actually recipients of grants from the
EPA. In fact, I was over there, and I gave a little talk about those
six. They actually received $119 million, and they are supposed to be
unbiased in making policy. Obviously, this is one of the many things
that he is going to make sure will no longer exist.
He is making it impossible for anyone who serves on a scientific
advisory board to receive any grants from the EPA. How reasonable is
that? Yet that is still a practice they use and one of the many things
he is cleaning up there.
There is a lot of work still to do. The Agency needs its Assistant
Administrators, who will work to implement many of the initiatives I
have worked toward for years. The Environment and Public Works
Committee has now voted out five Assistant Administrators and General
Counsel nominees, and I hope we can move swiftly to get these well
qualified nominees over to the EPA to bring their expertise to an
Agency that desperately needs them. Unfortunately, Democrats have
targeted two of these nominees and have disparaged them, their work,
and their backgrounds.

Nomination of Dr. Michael Dourson

Dr. Michael Dourson will be an excellent Assistant Administrator for
the Office of Chemical Safety and Pollution Prevention and will bring
much needed expertise and experience to the office in charge of the
TSCA reauthorization law. The TSCA bill was a huge success last year.
It was done on a bipartisan basis. It is the first major reform bill in
40 years, and we were able to get that through. Yet we need to have a
person as the Assistant Administrator to make sure it is done right.
Dr. Dourson has endured a coordinated campaign against him that
misrepresents who he is and his record. There are groups working to
paint Dr. Dourson as an ``industry scientist.''
What you will not hear from these groups is that much of his career
experience comes from the EPA itself, where he worked for 15 years.
During his years at the EPA, Dr. Dourson helped establish the
Integrated Risk Information System, which helps identify and document
the potential dangers of chemicals found in the environment. He also
has the honor of having received four bronze medals from the EPA for
this commendable work. Dr. Dourson also served on EPA's Scientific
Advisory Board for 6 years and has held leadership roles with a number
of relevant toxicology organizations, receiving several awards from his
peers.
Since his time at EPA, Dr. Dourson has devoted his career to
protecting public health by founding his own nonprofit that works to
develop, review, and share risk assessments on various chemicals. His
nonprofit work is mostly on behalf of government, with a minority of
the work done at the request of various industries--many of these
industries are very pro-environmental industries--as well as providing
pro bono assistance to those in need of help. In other words, he used
his expertise to help people who needed help and were not able to get
it in any other way.
Naturally, the industry work is the part that environmental activists
have focused on to prove their claims that his research is a
rubberstamp for dangerous chemicals. They hold the perspective--which
is a myth--that working at the request of industry must mean that you
are evil.
As always, the reality is much different. On many occasions the
nonprofit has developed risk assessments that did not support the
industry sponsor and were the same or lower than the safe levels set by
government. Furthermore, he has provided expert testimony against
industry on several occasions. Unfortunately, the coordinated attack on
Dr. Dourson will persist and a good man's reputation will continue to
be put at risk.
I ask that the leader find floor time for Dr. Dourson as soon as
possible so he can get back to work at an agency that he served
commendably for many years and ensure that those who seek to tear him
down do not win.

Nomination of Bill Wehrum

I also ask that the leader prioritize another nominee that has also
faced unfair and false attacks. I have known Bill Wehrum for years, and
I have no doubt that he is the best choice to head the Office of Air
and Radiation. I regret that his first nomination to the EPA back
during the George W. Bush administration was blocked by Senate
Democrats. It is my hope that we can correct that wrong and confirm him
as one of the Assistant Administrators. He has served the public and is
widely recognized for his knowledge of the Clean Air Act.
The Clean Air Act has been very successful. In fact, I was one of the
original cosponsors of the Clean Air Act Amendments. It has performed
very well. He was very much involved in that also. So there is no one
more qualified to head that Office of Air and Radiation than Mr.
Wehrum, and I am sure of that. He has been consistently recognized as a
leader and top lawyer in environmental law by such groups and
publications as Chambers USA, the Legal 500 United States, and
Washingtonian magazine.
He, too, has worked at the EPA in the past and will once again serve
the Agency and the American people with integrity. Mr. Wehrum is also
under attack for working on behalf of industry. The environmental
industry--and it is an industry, as they, too, are working to secure
money for themselves by pursuing an agenda of their sponsors--is
lobbying against Mr. Wehrum because he wants to make regulations
workable within the scope of the statute for the regulated community.
This is very curious to me because we want environmental regulations
to improve our air quality without putting entire industries out of
business--a balance that is a part of the Clean Air Act. Those words
are used in the Clean Air Act: The rules need to be workable and
implementable without undue harm to our economy.
It is time that we returned some common sense and rule of law to the
Environmental Protection Agency. We have taken the first and only step
with the confirmation of Scott Pruitt, and Bill Wehrum is the next step
toward that goal. Right now there has only been one confirmation, and
that is for Scott Pruitt.
With the repeal of the Clean Power Plan sitting before the EPA, I ask
that

[[Page S6963]]

the leader prioritize Mr. Wehrum's confirmation vote so that we can
give the Office of Air and Radiation the leadership it needs to make
the important policy objectives of the President and a majority of our
colleagues and States a reality.
Again, we have five EPA nominees that have been voted out of
committee, and we are now into November and only have one EPA appointee
confirmed. We need to do better than that, and I think this is going to
happen.
Let me just repeat some of the things that are going on in the
Environmental Protection Agency. Scott Pruitt in his meeting yesterday
called this to the attention of the American people. We knew it all the
time, but people on the outside didn't know it and they were shocked.
They found out that in the Scientific Advisory Board of the Obama
administration, six of the seven on the board were direct recipients of
grants from the EPA and they were making policy decisions for the EPA.
Now, how bad is that? In fact, we added it up. I would state to the
Chair that it came to $119 million going to six people who are on the
board making decisions that affected the grants to go out. That is the
type of thing that he is cleaning up. He has the guts to do it, and he
is doing it.
I am anxious to get these two confirmed, and I am hopeful that will
take place.
With that, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sullivan). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. 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. McCONNELL. Mr. President, I ask unanimous consent that
notwithstanding rule XXII, that at 11:30 a.m. on Thursday, November 2,
there be 30 minutes of postcloture time remaining on the Eid
nomination, equally divided between the leaders or their designees;
that following the use or yielding back of that time, the Senate vote
on the confirmation of the Eid nomination; that if confirmed, the
motion to reconsider be considered made and laid upon the table and the
President be immediately notified of the Senate's action.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________