April 3, 2019 - Issue: Vol. 165, No. 58 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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Nomination of David Bernhardt (Executive Session); Congressional Record Vol. 165, No. 58
(Senate - April 03, 2019)
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[Pages S2212-S2216] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] Nomination of David Bernhardt Mr. President, I conclude my remarks by turning briefly to a related subject that deals with, I believe, compromised, corrupt Trump nominees. The Energy and Natural Resources Committee is scheduled to vote tomorrow on the nomination of David Bernhardt to be the Interior Secretary, but there is developing news--news revealed just last night--that ought to be enough to put this flawed nomination on hold. According to the Washington Post, ``[t]he Interior Department's Office of Inspector General is reviewing allegations that acting secretary David Bernhardt may have violated his ethics pledge by weighing in on issues affecting a former client, the office confirmed Tuesday.'' I made it clear in Mr. Bernhardt's hearing last week that I believed he had ethics problems owed to the appearance that he had been working on behalf of former clients while he had served as a public official. I am also very concerned about the real possibility that Mr. Bernhardt made false statements under oath in his nomination hearing last week. I asked the Interior Department's inspector general to look into these matters, but she has not had time to respond to my request. The fact is that the inspector general is just at the very outset of this process. Here is the prospect this body faces. The Senate could be on its way to installing an Interior Secretary who [[Page S2213]] could almost immediately face an investigation for corruption and lying under oath. These are serious allegations that face Mr. Bernhardt, so I feel strongly that the vote in the Energy and Natural Resources Committee needs to be delayed until they can be investigated fully. With all of the Trump nominees who have resigned in scandal--by the way, one being the predecessor of whoever will be the head of the Interior Department, Ryan Zinke, who, when he came for his confirmation hearing, promised nine times he would be like Teddy Roosevelt and left under an enormous set of ethical clouds--it is clear this Republican- controlled Senate has decided that it is going to confirm first, ask questions later, and maybe duck all of the hard questions altogether. I believe that needs to change right now. It is time to restore public trust in this process. I do not believe the Senate should allow the Interior Department to turn into a revolving door of corruption and scandal. The vote on the Bernhardt nomination, in my view, should not proceed tomorrow in the Senate Energy and Natural Resources Committee. 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. WYDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Texas. S. Res. 50 Mr. CORNYN. Mr. President, over the last 2 years, since the beginning of the Trump administration, our Senate Democratic colleagues have brought our work to a crawl over judicial and executive branch nominees. It is as if they have frustration and surprise over the election of President Trump in the first place and still haven't gotten over it. This is another way in which they have sought to undermine the administration--to deny the President the staff necessary to populate the various executive branch Agencies as well as the judiciary. The way you do that in the Senate is by stringing out the amount of time it takes to confirm nominees who ordinarily would have been confirmed by consent or by voice vote--certainly, not by taking 3 days or so at a time to generate a confirmation. It is not because these nominees are unqualified or even controversial; it is simply because this is how the resistance operates at a time when President Trump is President of the United States. These nominees are being used as a weapon to slow the work of the Senate and, really, to deny us the floor time in which to do other things that we might be doing that would be beneficial to the American people, and they have been running this play repeatedly over the last 2 years. In February of 2018, President Trump nominated John Ryder to serve on the board of the Tennessee Valley Authority. The work of the TVA is undeniably important, but this isn't the sort of high-profile job that typically leads to a contentious nomination. In fact, these board positions are normally confirmed by voice vote. Mr. Ryder was, by any account, well qualified for the job. He received unanimous support from the committee of jurisdiction, the Committee on Environment and Public Works. Under normal circumstances, he would have been quickly confirmed by the entire Senate. Our Democratic friends, instead, decided to delay and delay and delay some more and forced the Senate to hold a cloture vote on the nominee, which caused him to sit in limbo for 400 days. I wonder how many Americans who want to serve their country in some positions that require Senate confirmation can afford to put their lives on hold and wait for 400 days or more just for the Senate to get around to doing something that should be somewhat of a routine job. With Mr. Ryder, in the end, the irony would almost be funny if it were not so pathetic. Ultimately, he was confirmed by voice vote. For 400 days, we waited to achieve the result we all knew we were to have all along if Mr. Ryder were to hang in there long enough. For 400 days, the TVA waited for the vacancy to be filled without there being an end in sight, and for 400 days, Mr. Ryder and his family waited and waited and waited with uncertainty. Sadly, he is not alone. He is part of a long list of nominees who have received similar mistreatment. There is one Texan, a friend of mine, who had to wait even longer. Susan Combs is a fourth-generation rancher from Big Bend who has led an impressive career in both the public and private sectors and has gained the respect of virtually every person who has crossed her path. She served as a member of the Texas House of Representatives, then as the first female agriculture commissioner of Texas, and later served as the Texas comptroller of public accounts. When she was nominated to be the Department of the Interior's Assistant Secretary for Policy, Management and Budget, I was thrilled, and I was happy to introduce her before her committee hearing. Less than a month after she was nominated, Susan was unanimously approved by the Senate Energy and Natural Resources Committee. Again, I was hopeful that her nomination would sail through since it, clearly, was not a controversial nomination. Unfortunately, that was not the case. Here we are, 631 days later, and Susan Combs has still not been confirmed. Again, it is not because she is not qualified for the job or that she is a controversial nominee. Just the opposite is true. This is simply the way our Democratic colleagues have sought to deal with nominees from this President. If Senate Democrats were delaying well-qualified nominees like Susan to make sure they had adequate opportunity to debate their nominations, we wouldn't have any disagreement with that, but we know, by their actions, that they will stop at nothing to bring the work of this body to a screeching halt, particularly during the time of the Trump administration. Over the last 2 years, our colleagues on the other side of the aisle have forced votes on nominees who in previous years would have sailed through the Senate. During President Trump's first 2 years, we held more than five times the number of cloture votes on nominees as we did during the same time for the last six Presidents combined. So to call this unprecedented is not an exaggeration, and the long list of vacancies is growing. Our government is suffering, and the services that we provide to the American people are being obstructed as well. The Senate's duty of advice and consent is important, but it is not our only job. We have a lot of other things we are supposed to do here, and they are falling by the wayside while we try to work through these, largely, noncontroversial judicial and executive branch nominees. Unfortunately, our Democratic colleagues' delay tactics have brought us to the point at which we really don't have many other options. We have tried negotiations. We have been told they will be happy to limit postcloture debate time but that, oh, by the way, they will not agree to that unless it starts in the year 2021. This is hardly a principled position. This is simply about resisting President Trump, his administration, and this administration's ability to do the job the President was elected to do. What we have proposed is something that will not make nominations easier to be confirmed. The process will be largely the same, and the vote threshold will remain the same. It will simply keep us from wasting valuable time that we should be spending on debating and voting on other important policies, not widely supported nominees. This certainly isn't as radical a change as many of our Democratic colleagues are presenting it to be. In January of 2013, current Majority Leader Schumer and then Majority Leader Harry Reid led the charge to make similar changes in order to process President Obama's nominees. At that time, Republicans were in the minority. What did we do then? Well, we weren't exactly fans of President Obama's, but he had just been elected to his second term, and suffice it to say that while we were hoping for a different outcome, we weren't about to obstruct his ability to populate and staff the various Departments in the Federal Government. We didn't obstruct nominees. We didn't sulk. We didn't try to prevent the President [[Page S2214]] from filling these nominations throughout the entire government. This is our government. In fact, we took the opposite approach. Along with several of my Republican colleagues, I joined Democrats in voting for a resolution that would speed up the consideration process for lower level nominees. I have to give Senator Alexander, the Senator from Tennessee, a lot of credit for negotiating that in the first place. But it has now expired, and we are back to the status quo before that temporary change went into effect. Like the changes we are talking about today, it didn't change the threshold for nominees; it just made the process a little more efficient. It received votes from 78 Senators on a bipartisan basis. So that is why it is a real head-scratcher that we find ourselves where we are today. Unfortunately, I think we know what the answer is. This is part of the anti-Trump resistance. Unfortunately, it is not playing out just in social media or on TV; it is playing out right here in the Senate--what used to be known as the world's greatest deliberative body. When our colleagues Senator Blunt, chairman of the Rules Committee, and Senator Lankford of Oklahoma introduced this resolution, I was surprised that our colleagues across the aisle wouldn't do what we did back in 2013. Back then, all but one Member of the Democratic caucus voted for the resolution--again, something very similar to what we are proposing today--but yesterday, they refused to even proceed to debate a similar change. They could have offered amendments. They could have made changes to the resolution where they thought it fell short. But no--their commitment to obstruction remains. It is clear they don't really oppose the resolution; they oppose supporting a resolution under the President of another party. Indeed, they oppose supporting this resolution under President Trump. When 78 Republicans voted for a similar change in 2013--as I said, we didn't vote for President Obama, but we understood the importance of protecting the Senate as an institution and allowing our valuable work to continue on behalf of the American people. I wish our colleagues across the aisle had that same commitment today. Just as I supported this modest change in 2013, I will support it again today. This will allow us to make meaningful progress in confirming the long list of pending nominees without impeding our ability to do our other work, like legislation. In particular, there are four district court nominees from Texas I am eager to get off the Senate calendar and on the Federal bench. I yield the floor. The PRESIDING OFFICER (Mrs. Hyde-Smith). The Senator from Colorado. Mr. BENNET. Madam President, later today, the majority leader will use the so-called nuclear option to once again break the Senate rules. This is going to be the latest episode in a series of decisions that have been made around here--mostly by the majority leader but not only by the majority leader--to degrade the Senate's responsibility to advise and consent. What has happened here is a travesty. We have destroyed--this generation of American politicians has decided that somehow we have prerogatives that the people who came before us didn't exercise. I think part of the problem we have is that people are so sick and tired of the dysfunction around this place, they are not even paying attention to what is happening here even though, in theory, it is happening in their name. Two days ago--on the first of April, fittingly--the majority leader wrote an op-ed laying out his case. He wrote: Since January 2017, for the first time in memory, a minority has exploited procedure to systematically obstruct a President from staffing up his administration. Let's read that again. Since January 2017, for the first time in memory, a minority has exploited procedure to systematically obstruct a President from staffing up his administration. Senator McConnell went on to write: Crucial jobs are still being held empty out of political spite. He seems to have completely forgotten the Obama administration when he was the leader of the minority, when he was systematically denying President Obama the right not only to put people in his Cabinet and in his administration but to put judges on the bench as well. Before President Obama arrived in Washington, the filibuster had been used 68 times on this floor--68 times since that rule was created sometime right before 1920. In the first 5 years of the Obama administration, the Republicans filibustered his nominees or used the filibuster in some other way 79 times. It had been used 68 times from when the rule was created to when President Obama became President, and then over the first 5 years of his administration, they used it 79 times. And they can't remember a time when a minority systematically denied a President the ability to put judges on the court or to staff their administration. When President Obama was President, they filibustered the Secretary of Defense nominee for the first time in the history of America, and he was a former Senator and a Republican. His name was Chuck Hagel. They filibustered him. Secretary of Defense seems like a pretty crucial appointment. In President Obama's last 2 years, the Republican Senate confirmed only 22 judges. That is a smaller number than at any time since the Truman administration. Twenty-two judges was all he got. President Obama left 100 vacancies to President Trump to fill--a record number. There were more vacancies at the end of his term than there were at the beginning. It has been a concerted strategy of Senator McConnell's for a decade--for more than that--and he has succeeded. He led the most famous blockade that has ever happened in the Senate, and that was the blockade he led of Merrick Garland. When Justice Scalia died 342 days before the end of President Obama's term, Senator McConnell responded to that by saying: ``This vacancy should not be filled until we have a new President.'' He called President Obama a lameduck President. There were 342 days left in his term. He had an entire year left in his term. Until that point, the Senate had never refused to consider an elected President's nominee because the vacancy arose in an election year, which they claimed over and over again wasn't the case. Since the Nation's founding, the Senate has confirmed 17 Supreme Court nominees in election years; it has rejected 2. The majority leader would later say: One of my proudest moments was when I looked Barack Obama in the eye and said, ``Mr. President, you will not fill this Supreme Court vacancy.'' He did it because he knew he could get away with it, and he thought he would roll the dice. It was shameful. And it wasn't true that it was consistent with our history; it was completely inconsistent with our history. Whether you support Donald Trump or you don't support Donald Trump, I think you can thank the majority leader for electing Donald Trump because by keeping that vacancy on the Court, he made that the issue in the election, and he galvanized the Republicans around a candidate who otherwise wouldn't have been very appealing to many of them. People say that he stole a Supreme Court seat. It is bigger than that--he won the Presidency for Donald Trump. And we know what has happened since that time. But it amazes me that in the name of things not moving quickly enough, he can come out here and claim that the most significant thing he has ever done is what he did to Merrick Garland and then the record he has set putting judges on the circuit courts and the district courts since Donald Trump was elected President. Nobody has ever had this many judges put on the court as fast as the majority leader has put them on the court. Now, for district court judges, he wants to do it in 2 hours of time. He is just going to crank the machine until it is not available to him anymore, and it has been clear that has been his objective from the beginning. But it is not just that the judges are conservative judges; it is that they are not as good as they used to be. You know, until the group of people in this room--including me, by the way--in 2013, out of desperation, I came to this floor and voted to change the [[Page S2215]] rules so that President Obama could actually get some nominees confirmed, some judges confirmed, and some administrative appointments confirmed. I have said on this floor before that that is the worst vote I have taken as a Senator, and I apologize for that vote. I share some of the responsibility for where we find ourselves today. The majority leader said at that time: ``You're going to come to regret this decision.'' And I will say this about him: He was right. I do. Not for me and not for the Senate but for the American people who are having their judiciary infected by the mindless partisanship of this place, which is hopefully temporary partisanship. But those are lifetime appointments that we are confirming that we can't take 30 hours to confirm anymore, and now we are going to do them in 2 hours just to make sure we populate the court with conservative judges whose views are consistent with the majority leader's and the President of the United States. But, as I said, it is not just about their point of view, their judiciary philosophy, it is also their quality, because if you have to earn 60 votes for a lifetime appointment or--when I was in law school and you were a qualified judge who was nominated by a President for the Supreme Court, you would then command 90 votes or 95 votes, and that gave the American people confidence that the judiciary was insulated from politics, that it was insulated from partisanship. Now, because of what the majority leader has done to the Supreme Court, we are going to put people on that Court with lifetime appointments by the barest partisan majorities. It is impossible for me to see how that is going to build confidence in the judiciary. So when he says he has just put it back to the way it was before anybody around here started to filibuster circuit court judges, that is not true because before that, you would get 90 votes for somebody who was qualified for the Supreme Court, and today, you get whatever you get from the partisan majority that happens to be in power. By the way, I have absolutely no idea what is going to happen when we have a President of one party and a majority of another party and there is a vacancy on the Supreme Court, or two or three. If we don't change our behavior around here, those vacancies are just going to remain until we have a President and a Senate of the same party, however long that takes. But if you only need to get 51 votes, I guess you don't have to be that qualified. The Senate confirmed a nominee recently to the Sixth Circuit who wrote blog posts peddling conspiracy theories about Barack Obama and compared abortion to slavery. He was confirmed 51 to 47. He would never have survived the vet before. The Senate confirmed a nominee to the Fifth Circuit who dismissed concerns about glass ceilings for women, sexual harassment, and the gender pay gap as a Trojan horse for government intervention. He was confirmed 50 to 47. This man would never have gotten to this floor before we changed the rules, and he now has a lifetime appointment. The Senate confirmed a nominee for the Eighth Circuit, even though the American Bar Association rated him unanimously as ``not qualified''--a unanimous rating of ``not qualified,'' and he is now a circuit court judge with a lifetime appointment. It has never happened in our history. The ABA questioned whether he ``would be able to detach himself from his deeply held social agenda and political loyalty.'' He was confirmed 50 to 48. They said he was unqualified unanimously because they thought his ideology would blind him, and now he has a lifetime appointment. The Senate confirmed a second judge the ABA deemed unqualified for a district court in Oklahoma. According to the ABA, this nominee frequently missed work, and when he did show up, it was often in the middle of the day. He was confirmed by 52 votes. Last December, the Senate confirmed a third judge the ABA found unqualified with 50 votes. He barely made it, but Vice President Pence made a trip from the White House to break the tie. The partisan temper that is destroying this place needs to come to an end, and we need to make sure, between now and whenever that happens, that we don't take down the rest of government with us. The Founders didn't design the court to be an extension of our partisan foolishness. The independent judiciary is responsible for enforcing the rule of law, which is at the heart of our democratic Republic. It is what separates us from so many other countries around the world that have failing economies because no one subscribes to the rule of law or that are filled with corrupt institutions, where rules are bent, broken, or ignored, with no thought about what is going to be left for tomorrow but just the looting of the economy for the benefit of people today. The Constitution makes it clear that the Senate has a responsibility--we have a constitutional responsibility--to advise and consent on judicial nominations. There is no one else assigned that responsibility. The House of Representatives has nothing to do with it. Through this decade-long--it is more than that--20-year-long series of preemptive retributions, where one party says: If we don't do it to them, they are going to do it to us, we are now at the point where we are destroying the judiciary, and I think we should pull back from the brink. I don't think the majority leader should invoke the nuclear option today, should break another rule around here. No one else in America runs their operation by breaking the rules. Just in this session alone, we have seen not only this, not only this violation of our norms and our customs, of the rule of law, of our responsibility to advise and consent, we have seen the same people support the President's extraconstitutional destruction of the rule of law when he claimed an emergency to fund his wall or to fund $5 billion for his wall, which, by the way, he said had already been largely built. Just like the majority leader today is saying, we have a record number of judges who have been confirmed since President Trump has been put in office, but we are not moving quickly enough so I have to change the rules by using the nuclear option. I need to declare an emergency to build the wall, even though it is almost complete because of my excellent administration. It is all gibberish, and it is all meant just to get a result for partisan reasons. I think when the history is written about this period of our political system, this is all going to look like a tragic farce--all of it. People are going to know, when they write an op-ed piece on April Fools' and say one thing, and they have spent the last 20 years doing something else, that is not going to be lost to the pages of history. People are going to know how the system worked when we arrived here, when the people who were in this Chamber arrived, including myself, and maybe in some tiny, little footnote there will be something that says: Well, at least Bennet was out here admitting the mistake he made to contribute to this disaster. For the life of me, I don't know why we aren't correcting course. We are free people. Everybody in this Chamber, I think, should have an incentive to try to be remembered well and to be remembered as a good steward of this place and of the work we did here. I doubt very much, when our careers are at an end, what people are going to say is, the good news is, they broke the rules. I know what the result is going to be today. I know my friend from Oklahoma has actually worked hard to see if he could get a bipartisan result here, and today that has been impossible, but what I really hope is that we can change what we are doing in the Senate so we can protect and preserve the independence of our judiciary and that maybe we will even move beyond the bipartisanship that is bringing the Senate to its knees today. With that, I yield the floor. The PRESIDING OFFICER. The Senator from Oklahoma. Mr. LANKFORD. Madam President, Republicans believe, regardless of who the President is, they should be able to hire their staff. I can say we not only believe that, we practice that. In 2013, there was an ongoing debate over nominations with President Obama. Democrats and Republicans came together to resolve the time issue for nominations under President Obama. Democrats asked Republicans to join them to say: Let's fix the problem we have with the length of time on [[Page S2216]] nominations because it is taking too long, and so they made a proposal. It was 2 hours, equally divided--so it would actually be 1 hour--for district court judges, 8 hours for other nominees, which again equally divided would actually be 4 hours total for other lower nominees, 30 hours for circuit court, Supreme Court, Cabinet officers. Republicans joined with Democrats in 2013 and with 78 votes at the beginning of President Obama's second term--and may I remind this body, Republicans were not excited about President Obama's second term-- Republicans joined with Democrats on this one principle: Every President should be able to hire their own staff and their staff not be blocked. When the American people vote for a President, this body should respect the vote of the American people and allow that President to hire their staff. Now, when President Trump was elected, Democrats have 128 times blocked President Trump from getting his nominees--128 times. I have, for now 2 years, met with my Democratic colleagues, and I have asked, let's put back into place exactly what Republicans voted with Democrats to do. I am asking Democrats to now vote with Republicans to do that. They have said no for 2 years. So I simplified the proposal and said: Let's just make it straightforward and simple, taken from the same principles Harry Reid put forward under President Obama. Let's make that permanent, no matter who the President is now or in the future. Let's make it consistent and straightforward. I was told no by every single Democrat, with this one exception. I will vote for that proposal as long as it starts in January of 2021. I am glad you Republicans joined with Democrats, they would say, to help President Obama get nominees, but we will not help President Trump and will block him all the way through. Now, if you want to open this up for 2021, we will be glad to be able to help. I want to reiterate that Republicans believe whoever the President is, when the American people select a President, they should be able to hire their staff. I wish my Democratic colleagues believed the same thing. Because of that, we are making a change today. I have worked for months, meeting with Democratic colleagues, trying to find some way we could come to an agreement as was done in 2013, where Republicans and Democrats came together to resolve this. I have been rebuffed for 2 years. Not a single Democrat has been willing to join us in this, not a single one. That is unfortunate. At the end of the day, we will try to restore this body back to how it used to function for two centuries, when every President was allowed to get a hearing for their nominees and get a vote in the Senate. For two centuries, we functioned that way. I think it is not unreasonable to function that way again in this body. I look forward to this dialogue, and I look forward to the day we can get this issue resolved so we can get back to the work of legislation because we can't even get to legislation right now because we are blocked on nominations. So let's get the nomination issue resolved, as we have for two centuries, and then let's get on to legislation and finish the task. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER (Mr. Perdue). The clerk will call the roll. The senior assistant legislative clerk proceeded to call the roll. Mr. COTTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Mr. COTTON. Mr. President, we raise this point today, not just because of what has happened to Donald Trump's nominees over the last 2 years, but we reached this point because 16 years ago the Senator from New York started this Senate down a path that was unprecedented in 200 years. For 200 years, any President's nominees got an up-or-down vote. That was the custom, the unwritten rule, if you will. Starting in 2003, specifically geared toward a brilliant young lawyer named Miguel Estrada, the Senator from New York warped those unwritten rules and customs. That has brought us to where we are today. So today Senator Schumer will reap what he sowed. I will call it Miguel Estrada's revenge. 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. 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. I ask unanimous consent that the mandatory quorum call be waived. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.
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