March 12, 2019 - Issue: Vol. 165, No. 44 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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Nomination of Paul B. Matey (Executive Session); Congressional Record Vol. 165, No. 44
(Senate - March 12, 2019)
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[Pages S1773-S1775] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] Nomination of Paul B. Matey Mr. BOOKER. Mr. President, I rise today to speak on the nomination of Paul Matey, who has been nominated by President Trump to a New Jersey seat on the U.S. Court of Appeals for the Third Circuit. The Constitution actually charges this body with a sacred obligation. This body is charged by our Founders and by our Constitution with providing advice and consent on the individuals the President nominates to serve on the Federal courts. Over the last century, the United States has developed a process for carrying out that duty of evaluation, evaluating those nominees, but just a couple weeks ago, the body broke a century-old precedent. Until then, the Senate had never ever confirmed a judicial nominee over the objections of both home State Senators. I looked into this through the Congressional Research Service, and they didn't find a single example where that has ever happened. During the last century before the Trump administration, you could count on one hand the number of times the Senate had confirmed a judicial nominee when even one home State Senator had objected. That happened four times during the 1980s and once during the 1930s. That is it. But with the nominees now coming to the Senate floor, to this body, it is breaking a longstanding, bipartisan tradition and has jettisoned that rule and that idea. This has already happened--ignoring the objections of one home State Senator--five times. Now that is happening in a doubling-down capacity. The Senate confirmed Eric Miller to the Ninth Circuit a couple weeks ago, and he was opposed by both of his home State Senators, my friends Patty Murray and Maria Cantwell. This was the first time in a century that this body has disregarded the objections of both duly-elected Senators, who know their States, who know their communities. It was a breakdown of this longstanding, bipartisan tradition, this idea that this body is different from the majoritarian body in the House; that in this body, we believe home State Senators should have a say on the nomination of judges. Not that they are in line ideologically--clearly, when you have a Republican President, you are going to see Republican-appointed judges. But this breakdown has now undermined this tradition that in the Senate, we find a way to come together and work together on this sacred duty of putting people into that third branch of government. What worries me now is this week, the Senate is on the brink of doing it again. Senate Republicans are moving to confirm an individual to the Third Circuit over the objections of both home state Senators--in this case, both home State Senators from New Jersey, Senator Menendez and me. So this moment is personal to me, but more importantly, I want to sound the alarm yet again and not just sit as a bystander to history and let this Senate tradition be eviscerated. When I first got to the Senate, I made it known that I really wanted to be a member of the Judiciary Committee. It took me years to get on that committee. I am so proud to be on a committee that has an incredible record of doing bipartisan work, whether it was the bill we passed out of committee to protect Robert Mueller or just last Congress when we worked together across the aisle to do comprehensive criminal justice reform. I know the history of that committee. I have been watching it since I was much younger and had a lot more hair. I knew that this committee-- as Senator Durbin so eloquently described last week in our markup committee--this is a committee whose [[Page S1774]] Members have worked together to confront many great challenges. But now we find ourselves in a perilous position where important guardrails that were put in place to properly vet judicial nominees are being thrown by the wayside. The latest development in the Senate is disregarding the blue-slip tradition, which over the last century has enabled home State Senators to have a meaningful role in the nomination process. In late January of this year, the Senate Judiciary Committee held a markup meeting for 44 judicial nominees. Folks around here were literally calling it the monster markup. At that meeting, I told Chairman Graham, just as I had told Chairman Grassley last year, that the White House had not meaningfully consulted with me or Senator Menendez ahead of that markup. In fact, I pointed out, the White House had not offered to even arrange a meeting between Mr. Matey and me or Senator Menendez. We didn't get an offer of a meeting before the nomination. We didn't get an offer of a meeting before the confirmation hearing. We didn't get an offer of a meeting before the markup. Chairman Graham said he would make sure that Mr. Matey and I would be able to meet before the full Senate voted on his nomination, and we did. I really appreciate that and Senator Graham being a man of his word. But when I met with Mr. Matey last week, our conversation was refreshingly honest because we both knew it was just a courtesy. We knew this process was completely backward. Two home State Senators had just been rendered completely irrelevant in the selection of a circuit court judge from their State. I ask any of my colleagues to imagine this: that a person to the circuit court from their community--and Mr. Matey is from my city--that you don't even have a chance to meet with them, have a discussion, ask them questions. If it weren't for my presence on the Judiciary Committee, where I got 5 minutes to question him, this person would have sailed through without any consultation with two home State Senators. I ask my colleagues how they would feel if this happened to them. This breaking of a century-old precedent has made it clear that we are going to keep on breaking it. This is something that is now going to become a part of this body. Are we all really comfortable with the implications of that? The Republicans on the Judiciary Committee just voted out two Second Circuit nominees over the objections of their home State Senators-- again, historically unprecedented--and three more nominees to the Ninth Circuit with the very same problem are about to come before this committee. Senate Republicans seem to be intent on dismantling the century-old process for the vetting of judicial nominees. This is being done methodically--taking it apart piece by piece, whatever it takes to push through these nominees. The pendulum does swing in this place. I was told by Senators whom I respect--I still remember coming here and sitting down with some of the statesmen in this area on both sides of the aisle. I still remember conversations with Senator Harkin, who is no longer here, and Senator McCain telling me to respect the traditions of this body, to understand that this body, as our predecessors said, should be the cooling of the partisan rage or passions of the time; that we should preserve those parts of this institution that create comity, that force us to come together. But the wound that is being created right now goes to the ability of any Senator in this body to truly represent their State. Look, the pendulum is going to swing. Eventually, there is going to be a Democratic President. This body will shift again. Every single Senator, should they stay in this body, is probably going to see the time when, because of what we are doing today, they will have no say whatsoever when it comes to their constitutional duty of advice and consent. My message to my colleagues is this: The feeling I had last week when I met with Mr. Matey is a feeling that everyone in this Chamber is going to have at some point if we do not stop this now. If we continue down this path, you will find yourself rendered irrelevant in the selection of judicial nominees from your State. You were duly elected by the people of your State, and there won't be a thing you can do to stand up for their interests in this process. This will be a sad chapter if we allow it to be written into our history. It doesn't have to be this way. We could go back in this process. We could say: You know what, this guy is qualified. Why don't we go back and have the process done the right way--have the White House sit down with their home State Senators and see if they can work out a deal, as it was done before, to make sure we have a role in the process the Founders designed. The guardrails we have established in this body have an important purpose: to enable the Judiciary Committee and Senators to properly vet judicial nominees, to ensure that those nominees are not just qualified to serve but that they are more in the mainstream, not ideologues, and to ensure that they have a good judicial temperament. We cannot walk away from the longstanding Senate practice of respect for the views of home State Senators about the judges who will serve in their State. I urge my colleagues to vote no on this nomination because of the trashing of the processes that have been a time-honored way of doing things in the Senate. But let me be clear. This is about more than just the dismantling of the Senate procedures. As a Senator, I do have a perspective on the nature of some of the nominees who are being put forward to serve on our courts, and I want to take a moment to speak to that. The Constitution charges this body with vetting the President's judicial nominees for good reason. It is our duty as Senators to provide a check and balance on those nominations to ensure that people who serve as Federal judges can be fair and impartial. It is our duty to help protect the independence of the judiciary. But over and over, we are seeing that President Trump is selecting nominees precisely because they will bring an ideological agenda to the bench. This will be seen as we soon consider the nomination of Neomi Rao to the DC Circuit Court. Ms. Rao is a prime example of how the administration is working to politicize our Federal courts to achieve far-right policy objectives that do not sit in the mainstream of America. The examples of this are not just rhetoric; the examples of this are clear. The DC Circuit Court often gets the last word on legal challenges to important regulatory protections. Who is the person the President has chosen to sit on this court? Ms. Rao has dedicated much of her career as a law professor and as a Trump administration regulatory czar to tearing away critical protections for American citizens. During her time in the Trump administration, Ms. Rao has overseen efforts to roll back an array of Federal protections, from fair housing to clean air and water, from women's rights to LGBTQ rights, from food safety to workers' rights, to so many areas that impact Americans of all backgrounds and all aspects of American life. She has also criticized landmark decisions by the Supreme Court. Other Trump nominees have not gone as far as she has. She literally criticized Brown v. Board of Education, Lawrence v. Texas, and Roe v. Wade. Worse still, Ms. Rao has been unwilling to make the firm commitment to recuse herself from legal challenges to regulations that her office reviewed while she was a Trump administration regulatory czar. This is fundamental to the independence of our judiciary. If you compare her position to others within the Trump administration, you will see that other judicial nominees, including President Trump's prior nominee to the DC Circuit, have pledged to recuse themselves from matters they worked on in the executive branch, but Ms. Rao is refusing to do the same. Given her long track record of opposing critical Federal protections, the serious concerns about independence and recusal, Ms. Rao is the wrong person to sit on the DC Circuit Court, and I urge my colleagues to vote no on the nomination as well. Most importantly, I urge my colleagues--all of my colleagues, Democrats and Republicans--who do not want to be rendered irrelevant in the selection of judges from their States to [[Page S1775]] stop--stop--this evisceration of a longstanding blue-slip tradition in the Senate. I thank you for the time. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The senior assistant legislative clerk proceeded to call the roll. Mr. CORNYN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered.
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