March 6, 2019 - Issue: Vol. 165, No. 40 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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Judicial Nominations (Executive Session); Congressional Record Vol. 165, No. 40
(Senate - March 06, 2019)
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[Pages S1696-S1697] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] Judicial Nominations Mrs. FEINSTEIN. Mr. President, I rise today in opposition to three circuit court nominees who will receive votes on the floor this week: Allison Jones Rushing, nominated to the Fourth Circuit Court of Appeals; Chad Readler, nominated to the Sixth Circuit Court of Appeals; and Eric Murphy, also nominated to the Sixth Circuit. I want to begin by addressing how these nominations were handled and the ongoing disregard for Senate norms and traditions by Republican leadership. Most notable is the change in how blue slips are treated. Blue slips work. The blue slip ensures that the interests of home State Senators are respected when it comes to judicial nominees from their States. Honoring blue slips helps guarantee that the White House nominates well-qualified, mainstream individuals to key seats on the circuit and district courts, and it prevents the selection of nominees who do not reside in the circuit in which they are slated to serve. In the past century, before President Trump took office, only five judges had ever been confirmed with only one blue slip; two were by a Democratic chair over the objection of a Democratic Senator, not over the objection of a Republican, then in the minority. The other three instances occurred when a Republican chairman overruled a Democratic Senator. In fact, Democratic chairs have never moved a judicial nominee to confirmation over the objection of a Republican Senator. Let me say that again: Democratic chairs have never confirmed a judicial nominee without a blue slip from a Republican Senator. However, since President Trump took office, 10 circuit court nominees have received hearings, and four have been confirmed over the objection of Democratic home State Senators. In just over 2 years, Republicans are on their way to doubling the number of judges confirmed over the objection of home State Senators than have been confirmed in the last 100 years. This week we are considering both Mr. Readler and Mr. Murphy who lack blue slips from Ohio's Senior Senator, my friend and colleague Senator Brown. Senator Brown's opposition was not unreasonable; in fact, Senator Brown worked with the White House for weeks in an effort to find consensus picks for the Sixth Circuit. But the White House refused to cooperate, and he was left with no choice but to withhold his blue slip. In doing so, Senator Brown said: ``I cannot support nominees who have actively worked to strip Ohioans of their rights. Special interests already have armies of lobbyists and lawyers on their side, they don't need judges in their pockets.'' Further, when the majority did move forward on the nominations of Mr. Readler and Mr. Murphy, the two appeared on the same panel at the same hearing. With 5-minute rounds of questioning, these stacked circuit court hearings make it all but impossible for Senators on the committee to thoroughly vet judicial nominees, and that, in turn, makes it impossible for this body to fulfill its obligation of providing advice and consent. Ms. Rushing's nomination is also the product of a departure from Senate norms. Then-Chairman Grassley held Ms. Rushing's hearing on October 17, 2018, during an extended Senate recess. Only two Senators questioned Ms. Rushing, and no Democrats were present to question the nominee. These process violations matter. They matter because they impact the quality of the nominees we are considering and the ability of the nominee to reflect the State and community to which they are being nominated. We have already seen several nominees who have had no judicial experience, and others with no trial experience whatsoever. We have seen nominees who have been rated unqualified for lack of experience and also for lack of judgement, ethical problems, and issues with impartiality and temperament. This isn't a partisan issue. This is an issue that should concern Senators from both sides of the aisle. At a time when Americans increasingly distrust the institutions of our government, we should not be degrading the Federal judiciary with unqualified and ideological nominees. Turning to the nominees themselves, I first want to discuss Allison Rushing. Ms. Rushing is only 36 years old. In fact, she has practiced law for only 9 years. She has never tried a case in the Fourth Circuit, the court to which she has been nominated, and she was not even admitted to practice in the Fourth Circuit until 2017; yet she is being nominated to serve on a Federal circuit court. Even in her limited experience, Ms. Rushing has demonstrated strong ideological views. For instance, in 2013, Ms. Rushing spoke about the Supreme Court's decision to strike down a key provision of the Defense of Marriage Act. She claimed that Justice Kennedy had written ``the opinion in a unique way that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.'' Ms. Rushing also demonstrated her hostility to the rights of employees in a brief she submitted in a 2018 Supreme Court case. Ms. Rushing argued that employment agreements requiring employees to waive their rights to go to court as a condition of employment should be allowed, even though most people don't have a choice to turn down a job. Ms. Rushing's view prevents employees who have entered arbitration agreements from bringing lawsuits against their employers, even if the employers have violated their rights or fired them against the law. As the dissent pointed out, Ms. Rushing's position risked leading to ``the under-enforcement of federal and state statutes designed to advance the well-being of vulnerable workers.'' I next would like to address the nomination of Chad Readler. Mr. Readler previously headed the Justice Department's Civil Division. In that position, he defended some of the most troubling policies this administration has implemented. He defended the President's decision to end the DACA program, the policy to separate immigrant children from their parents, and the President's Muslim travel ban. Most concerning, however, is that Mr. Readler led the administration's efforts to overturn the Affordable Care Act. Mr. Readler argued that the healthcare law's protections for preexisting conditions should be struck down. Even Senator Lamar Alexander called the arguments made in Mr. Readler's brief ``as far-fetched as any I've ever heard.'' Finally, the Senate is voting on Eric Murphy to the Sixth Circuit. As the chief appellate lawyer for the State of Ohio, Mr. Murphy led the State's defense of its law banning same-sex marriage, which was struck down by the Supreme Court in Obergefell v. Hodges. Jim Obergefell wrote an op-ed recently saying: ``Barely four years ago, Mr. Murphy made a forceful argument that my marriage was unconstitutional. As the attorney tasked with defending Ohio's discriminatory ban on same-sex marriage, he used dog-whistles . . . [I]f Murphy had been successful, [my husband] and I, and tens of thousands of couples like us, would have been denied the right to marry and forced to live as second-class citizens.'' Mr. Murphy also led Ohio's defense of restrictive voting laws, including the Ohio law allowing the State to purge eligible voters if they missed voting in just one Federal election, and he has amassed a troubling record on women's reproductive rights, arguing for instance in support of a 20-week abortion ban, which he claimed would create ``at most, an incidental burden'' on a woman's right to make her own reproductive health care decisions. The three nominees before the Senate exemplify the Trump administration's efforts to stack our courts with nominees who are far outside the judicial mainstream. I believe they will [[Page S1697]] not protect the rights of all Americans and should not be confirmed. I will vote no on each of these nominees, and I hope my colleagues will do the same. The PRESIDING OFFICER. The Senator from Ohio.
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