[Pages S6516-S6519]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session and resume consideration of the following 
nomination, which the clerk will report.
  The senior assistant legislative clerk read the nomination of Chad F. 
Wolf, of Virginia, to be Under Secretary for Strategy, Policy, and 
Plans, Department of Homeland Security. (New Position)
  The PRESIDING OFFICER. The Democratic whip.


                              Immigration

  Mr. DURBIN. Mr. President, if members of the American public came to 
the Senate Chamber this week to witness legislative activity, such as a 
piece of legislation on the floor, amendments, debate, votes, 
deliberation, or compromise, they are out of luck. We don't do that in 
the Senate anymore. We are not going to do it this week; we didn't do 
it last week; and we didn't do it the week before.
  Now, the Republican leader just said the problem is impeachment. The 
problem is not impeachment. The problem is the Senate is not a Senate 
anymore. All we do in the Senate--all we do in the Senate is this 
serial list of judicial nominations, one after the other, after the 
other, after the other. That is it. We don't take up legislation.
  Yesterday there was a--right across the street from this Capitol 
Building, in front of the Supreme Court, hundreds of people were there 
because of a hearing in the Supreme Court on the issue of DACA, which 
was created by President Obama, where 780,000 undocumented young people 
had a chance to stay in this country and was abolished by President 
Trump. Hundreds came out yesterday. They wanted to hear--at least try 
to hear the Supreme Court deliberations on their future and what would 
happen to them.
  It is quite possible that the Court will rule in the President's 
favor. I hope not, but it is possible, and the future of these young 
people will be deportation. You can imagine how they feel about this 
issue. They look back over here at the Capitol and they wonder: What 
are they doing in the U.S. Capitol building to deal with an issue of 
such grave importance for such a large group of people in the United 
States? Here's what we are doing: Nothing--nothing.

  The House of Representatives passed the American Dream and Promise 
Act in the month of June, and the U.S. Senate and Senator McConnell 
will not let us bring it to the floor. Is he going to blame the 
impeachment proceedings for the fact that we have waited 5 months now 
with this critical bill, having passed the House, not even being 
considered in the U.S. Senate? Is that the reason we haven't been able 
to take up serious legislation for weeks in the U.S. Senate? Of course 
not. It is not about impeachment; it is about a strategy designed by 
the Senate Republican leader not to entertain substantive legislation--
just to take up the issues of nominations.
  The nominations, of course, are an issue themselves. I mentioned the 
judicial nominations. Well, last week in the Senate Judiciary 
Committee, we had the ninth Trump nominee for the

[[Page S6517]]

Federal bench who had been found unqualified by the American Bar 
Association. That is nine so far. You say to yourself, well, that must 
happen from time to time. It never happened one time under President 
Obama; not one nominee was judged unqualified. There are nine of them 
under President Trump. Why? Because this administration, with the 
cooperation of Senator McConnell, is hell-bent to fill these vacancies, 
regardless of the competency of the individual who is being nominated.
  On the calendar today is another nomination. Today the Senate is 
going to vote on the nomination of Chad Wolf. This is technically a 
vote for Mr. Wolf to be the Department of Homeland Security's Under 
Secretary for policy.
  Let's be clear. This is actually a vote on whether Mr. Wolf would run 
the entire Department of Homeland Security. He would be the sixth 
Secretary in charge of this critical agency, the Department of Homeland 
Security--the sixth one since President Trump was elected. Talk about a 
fast-moving, revolving exit door. You can hardly get your desk put 
together with a few pens and computers on top of it; then, with 
President Trump, you are out the door if you are the Secretary of the 
Department of Homeland Security.
  Next up is Chad Wolf. The President has indicated he is going to 
appoint him, not as the Secretary of Homeland Security--no, the Acting 
Secretary of Homeland Security. But he first has to be confirmed as an 
Under Secretary.
  The Trump administration has shown in their immigration policy an 
approach to this issue that we haven't seen for decades in Washington 
or the United States. The President has been especially harsh when it 
comes to families and children. President Trump's ineffective policies 
have made our southern border much less secure than when he took 
office. The situation has even been worsened by this gaping leadership 
vacuum in the Department of Homeland Security. In less than 3 years, 
there have been four heads of the Department. Wolf would be the fifth 
person--I said six earlier, sorry--to run it and the third Acting 
Secretary. Every position at the Department of Homeland Security with 
responsibility for immigration is now held by a temporary appointee 
ready to be fired at a moment's notice, and the White House is not even 
submitting nominations for those positions. This is a conscious choice 
by the Trump White House to increase their power and to undermine the 
role of the U.S. Senate, and the Republican majority thinks it is just 
fine.
  The President has boasted about all of his Acting Secretaries. He 
even has an Acting Chief of Staff. Donald Trump said: I like acting. It 
gives you great, great flexibility.
  It sure does. You can just fire a person and call the next up in a 
moment, in a matter of days.
  Stephen Vladeck, a leading expert on the Senate's confirmation 
process, notes that the President's approach is ``depriving the Senate 
of its constitutional role--and in the process, of opportunities to vet 
his nominees, to reject those who are unqualified, and to conduct 
meaningful oversight of the executive branch.''
  So what does the Senate institutionalists and the Senator from 
Kentucky think about diminishing the roles of the Senate? Just fine, 
Mr. President, whatever you want.
  Today, the Senate will actually have a chance to vote on this 
individual, Chad Wolf, to become an Under Secretary on his quick path 
to become an Acting Secretary on his even quicker path to be in some 
way retired or fired.
  So is Chad Wolf the right person to run the Department of Homeland 
Security, one of the most important law enforcement agencies? His main 
qualification appears to be that he was Chief of Staff and top adviser 
to former Secretary Kirstjen Nielsen.
  I would say that arguably she may have been one of the worst 
performing Homeland Security Secretaries ever in our history. It was 
Kirstjen Nielsen who falsely claimed, ``We do not have a policy of 
separating families at the border.'' Then came along the Federal judge 
in Southern California and demanded an accounting of what actually was 
going on at the border. Do you know what the judge found after he 
demanded that the Department of Homeland Security under Kirstjen 
Nielsen account for family separations? They found that more than 2,800 
infants, toddlers, and children had been separated from their parents 
at the border. Even worse, there was no effort made to trace where the 
parents were headed and where the child was headed. At the end, some of 
these children never ever were reunited with their parents, separated 
by Kirstjen Nielsen's Department of Homeland Security.
  I have seen the results of these disastrous separations. At the 
immigration court in downtown Chicago, in a Loop high-rise building 
that you would never pick out as a court, you take an elevator to one 
of the top floors and get out on a crowded floor. There are people 
standing four- and five-deep waiting for the docket call for 
immigration court.
  I went into the court just last year to see what family separation 
was all about. I found a good judge who had been at it for almost 20 
years, and she said to me: Senator, please stay for the docket call, at 
least the first group of clients.
  The first group of clients were called. Marta was one of the clients. 
The judge said: Would the clients please take their seats. The 
problem--the problem was, Marta was 2 years old. Marta had to be lifted 
into her chair and handed a stuffed animal that she was hanging onto 
throughout this hearing, which I am sure she never understood.
  Hamilton was a little boy who was also a client in the immigration 
court that day. He was 4 years old--4 years old in a U.S. immigration 
court because of the separation of children from their parents. He did 
jump up on the chair because he saw a Matchbox car on the table that he 
could play with while this hearing was deciding his fate.

  Do you know what happened? They continued their cases for another 6 
months. Fortunately, Marta was reunited with her father in less than 6 
months. Do you know what happened when separated children were united? 
Some of these children would not even let their own mothers hold them. 
That is what happens when you separate a 2-year old from her mother for 
months at a time. That is what happened over and over again on the 
watch of Kirstjen Nielsen, the Secretary of Homeland Security. Mr. Chad 
Wolf, who is on our calendar today, was her chief of staff during this 
zero-tolerance policy.
  These disastrous separations have done permanent damage to countless 
children. I saw two of them. Publicly released emails show that Mr. 
Chad Wolf, who will be voted on today in the Senate, was deeply 
involved in the discussions that led to this policy. As far back as 
December of 2017, Wolf was Acting Chief of Staff to Secretary Nielsen. 
He sent the Justice Department a list of 16 options for deterring 
undocumented immigrants. No. 2 on the list was ``separate family 
units.'' His fingerprints are all over zero tolerance.
  Mr. Wolf was also intimately involved in the Trump administration's 
efforts to use Dreamers as bargaining chips to advance the President's 
anti-immigrant agenda. After he repealed DACA, President Trump rejected 
numerous bipartisan deals to protect Dreamers. I will not go through 
the awful details of our bipartisan efforts to come up with a bill, 
which the President time and again rejected. Instead, he said: Here is 
my approach to the Senate. Take it or leave it.
  The Senate left. It received fewer than 40 votes in a Senate 
dominated by a Republican majority.
  The administration said that it would support the authorization of 
Dreamers if the Congress passed his plan, which included the largest 
cut in legal immigration in almost a century. The Senate rejected it. 
How do I know that Mr. Wolf was involved in this effort? I sat in on a 
half dozen meetings with Secretary Nielsen and Mr. Wolf, just down the 
hall from here in the office of Republican Congressman Kevin McCarthy. 
He was there. Wolf was part of the program.
  In another administration, involvement in family separation and DACA 
repeal would be grounds for dismissal. In the Trump administration, it 
is grounds for promotion--promotion to become the Acting Secretary and 
to see if this flavor of the month as the head of one of these key 
agencies can actually gut it out for 6 months. It might be a record if 
he did.

[[Page S6518]]

  I urge my colleagues to oppose the nomination of Mr. Wolf.


                    Nomination of Steven J. Menashi

  Mr. President, on the subject of nominations, last week every 
Republican member of the Senate Judiciary Committee voted to report out 
the nomination of Steven Menashi for a lifetime judgeship on the Second 
Circuit. Every Democratic Member voted the other way, and for good 
reason.
  Steven Menashi lacks even the most basic courtroom experience. He has 
never argued in court, conducted a deposition, or tried a case. He has 
written dozens of incendiary editorials and articles in which he showed 
a lack of judgment and judicial temperament.
  Let me give you a couple of examples. He said that ``charges of 
racism are typically overblown.'' He went on to say that gun control 
legislation is ``pointless and self-defeating because guns reduce 
crime.'' Then he said, ``The animal rights crowd is, by and large, a 
contemptible bunch.''
  Mr. Menashi currently works in the White House. He works with Stephen 
Miller. There is a name that may be familiar. He is pushing Stephen 
Miller's anti-immigrant agenda.
  He spent several years advising the Secretary of Education, Betsy 
DeVos, on some of the most anti-student measures that Department has 
ever undertaken.
  Mr. Menashi's hearing before the Senate Judiciary Committee was an 
embarrassment. He refused to answer basic questions from either 
Democrats or Republicans, basically saying to the Judiciary Committee: 
My experience--what I have done, what I believe--is none of your 
business.
  It was a deeply troubling nomination, to the point where even 
Republican colleagues on the committee were chiding him to answer a 
question if he wanted a lifetime appointment to the second highest 
court in the land. He continued to refuse, but he still won all of 
their votes when his nomination came up last week.
  Apparently, Mr. Menashi is hoping that in this busy week, we are 
going to hold this floor vote, and nobody will notice. Well, a lot of 
Americans will notice, especially the tens of thousands of Americans 
who have been the victims of the for-profit college scams. Do you 
remember those schools? You have heard a lot about them, haven't you? 
All these schools that said they were colleges and universities--they 
were in it for a buck. Many of them turned out to be frauds. They 
weren't really colleges and universities.
  Nine percent of high school students in the United States go to for-
profit colleges and universities--9 percent--and one-third, 33 percent 
of all the student loan defaults are students at for-profit colleges 
and universities. Why? They overcharge the students; they undereducate 
them; and they leave them with a mountain of debt. When these schools 
go out of business, we have an opportunity to say to the students: We 
are sorry you were defrauded, but it shouldn't ruin your life. We are 
going to make sure your student loan at this bogus institution is 
forgiven.
  Months ago, we learned that the DeVos Department of Education misused 
private Social Security Administration data to deny student loan relief 
to thousands of students cheated by the failed for-profit school, 
Corinthian Colleges. Last week, we learned that Mr. Menashi, the 
nominee we will consider this week, was the architect of this plan to 
deny these students full and fair relief. He gave legal advice to 
Secretary DeVos on how to carry it out.
  It was certainly bad advice. A Federal court ruled that the Menashi 
plan illegally violated student privacy and ordered the Department to 
stop putting Corinthian borrowers into collection while they waited for 
relief. This man, who wants a lifetime appointment to opine and rule 
and judge on laws and statutes and the Constitution, gave advice to the 
Secretary of Education that turned out to be found in violation of the 
law. In the months that followed, the Department failed to comply with 
the order of the court, resulting in the judge's holding Secretary 
DeVos in contempt of court and forcing her to pay a fine because of 
Menashi's advice. What a debacle. Yet my Republican colleagues believe 
that the appropriate response to this debacle by Mr. Menashi is to 
promote him to a lifetime appointment to a court that is one step below 
the U.S. Supreme Court.

  While Mr. Menashi is looking forward to his lifetime job, the victims 
of Corinthian Colleges' fraud and Menashi's illegal scheme continue to 
suffer without the relief they deserve--victims like a man named 
Sheldon, one of my constituents from Bloomington, IL. He took out 
student loans to enroll in an online criminal justice course from one 
of the Corinthian schools, called Everest College.
  Corinthian may have gone bankrupt in 2016 after it was revealed that 
it had defrauded students into signing up, but former students like 
Sheldon have had no relief from the Department of Education for their 
student loan debt from this bankrupt school that defrauded them. The 
collection agencies still keep calling Sheldon's home. He wrote to my 
office and told me how he had his wages garnished because he owes 
$13,000 in student loans for enrolling in this bogus Corinthian College 
program. He said: ``My checks have been taken away from me for the past 
3 years.''
  Mr. Menashi should be embarrassed by the advice he gave to Secretary 
DeVos to deny full and fair relief to students like Sheldon and 
thousands of others who were tricked and cheated by for-profit 
colleges. He is not. Mr. Menashi told me in writing after his hearing: 
``I am proud of my work at the Department of Education and of the legal 
advice that I provided.''
  The Second Circuit is one of our most important appellate courts. It 
hears appeals coming out of the Southern District of New York, where 
there are multiple investigations underway of national note.
  The Senate should have grave reservations about advancing a nominee 
to the Second Circuit who currently works in the White House but would 
not disclose under oath what he does, who has minimal courtroom 
experience, who has a record of giving troubling legal advice, and who 
has a history of expressing views which were entirely out of the 
mainstream.
  I want to commend one Republican colleague, Senator Susan Collins of 
Maine, who said she is personally going to oppose the Menashi 
nomination because in her words--I couldn't say it more clearly--``I do 
not believe he is well-suited to serve on the federal bench.'' Wouldn't 
it be great if a few more Senate Republicans felt the same way?
  I urge a ``no'' vote on the Menashi nomination.
  I yield the floor.
  Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the 
nomination of Steven Menashi to the United States Court of Appeals for 
the Second Circuit.
  From 2017 to 2018, Mr. Menashi served as the Acting General Counsel 
of the Department of Education under Secretary Betsy DeVos. Mr. Menashi 
has stated that, in this role, he was ``responsible for providing legal 
advice related to all aspects of the Department's operations, including 
litigation, rulemaking, regulation, and enforcement.''
  Before Mr. Menashi joined the Department of Education, the Department 
had found that thousands of students had been defrauded by for-profit 
colleges. The for-profit schools had lied to students about job 
prospects, graduation rates, and steered them into mountains of debt. 
The Department had concluded that these students were entitled to 
relief from their student loan debt.
  But when Mr. Menashi arrived at the Department, he took a different 
view. He wrote a memo, which has since been obtained by the New York 
Times, arguing against full debt relief for the students.
  Many of these students found themselves unable to work in the fields 
that they had pursued at the for-profit colleges because the colleges 
had either suddenly closed or the degrees had proven to be worthless. 
Nonetheless, Mr. Menashi's idea, which the Department adopted, was to 
use the private Social Security earnings data of the defrauded students 
as a basis for limiting their relief. Even if you put aside the 
unfairness of Mr. Menashi's plan, there was another problem: It was 
illegal.
  Six months after Mr. Menashi's plan was implemented, and while Mr. 
Menashi was still at the Department, a

[[Page S6519]]

Federal court ruled that using students' private Social Security data 
violated the Federal Privacy Act. The court ordered the Department to 
stop using the students' private information and to stop collecting on 
their student loans.
  Even after this Federal court ruling, the Department failed to 
comply. The Department continued to illegally collect on the student 
loans of at least 16,000 defrauded students. The Department garnished 
wages, seized tax refunds, and wiped out some students' credit ratings.
  Less than 3 weeks ago, a Federal court held Secretary Betsy DeVos in 
contempt of court and fined the Department $100,000. The Federal 
magistrate judge who issued the contempt order said, ``[T]here have to 
be some consequences for the violation of my order 16,000 times.''
  Mr. Menashi should not be rewarded for providing such bad legal 
advice with a lifetime appointment to the Federal bench.
  While at the Department, Mr. Menashi also helped push new rules on 
campus sexual assault that the administration's own analysis concluded 
would dramatically reduce the number of sexual assault investigations. 
Under these new rules, a student who is the survivor of sexual assault 
would be subject to cross-examination by their attacker's 
representative at a live hearing.
  In 2018, Mr. Menashi joined the White House Counsel's Office, where 
he has been a member of Stephen Miller's White House Immigration 
Strategic Working Group. This working group has helped push a number of 
extreme anti-immigrant policies, including the White House's policy of 
separating children from their families, a problem that still has not 
been fully remedied, despite a court order to do so.
  At his hearing, Mr. Menashi refused to answer numerous basic 
questions about his work, including about his role in the 
administration's family separation policy. He also refused to answer 
written questions about whether he has worked or advised on matters 
relating to the whistleblower complaint and President Trump's call with 
Ukraine's President. Importantly, none of these questions asked Mr. 
Menashi about the substance of his advice. These questions simply 
sought to understand what matters he has worked on. His refusal to 
answer makes it difficult for us to fulfill our constitutional duty to 
advise and consent.
  Mr. Menashi's earlier career is equally troubling. He criticized 
``Take Back the Night marches,'' which aim to stop campus sexual 
assault. He also wrote that the Supreme Court's decision in Roe v. Wade 
had codified the ``radical abortion rights advocated by campus 
feminists.'' He wrote that gun control legislation is ``pointless [and] 
self-defeating, because guns reduce crime,'' and he claimed that a 
major LGBT-rights organization had ``incessantly exploited the slaying 
of Matthew Shepard for both financial and political benefit.'' Mr. 
Menashi wrote that ``charges of racism are typically overblown,'' and 
he compared affirmative action in college admissions to Nazi Germany's 
Nuremberg laws.
  I want to close with a quote from a letter of opposition submitted by 
the Congressional Black Caucus. The CBC rarely takes a position on 
judicial nominees, but in this instance, felt compelled to do so. The 
CBC writes: ``Menashi's writings show a willingness to discriminate 
against minorities, women and the LGBTQ community. Menashi, who has 
consistently spoken against diversity and inclusiveness, does not 
deserve a lifetime position on one of the most important appellate 
courts in this country.''
  In light of Mr. Menashi's record, it is hardly surprising that there 
is bipartisan opposition to his nomination.
  I will vote no on Mr. Menashi's nomination, and I urge my colleagues 
on both sides of the aisle to do the same.

                          ____________________