July 9, 2019 - Issue: Vol. 165, No. 114 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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NOMINATIONS; Congressional Record Vol. 165, No. 114
(Senate - July 09, 2019)
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[Pages S4740-S4742] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] NOMINATIONS Mr. CASEY. Madam President, I rise this evening to talk about judicial nominations and, in my view, the state of play, where we are. I want to highlight some of the very real impacts these nominations have on Americans across the board. We have had a number of opportunities this year to come together and have agreement on some judicial nominations, but, frankly, this year-- the last several years--this issue has been the subject of conflict and sometimes rancor and division on the Senate floor and in the committee, the committee of jurisdiction, the Judiciary Committee. I have raised concerns about the willingness of Senate Republicans to dismantle longstanding Senate rules but also Senate norms, all in a rush to pack the bench with nominees who are often both ideological and also, in some cases--not in all but in some cases--both too ideological and often unqualified. Early this afternoon, the Senate voted to confirm Daniel Aaron Bress to a Ninth Circuit seat in California. I will talk about his nomination just by way of example, not by way of argument before a confirmation vote because that has passed. I think his nomination and confirmation are another example of the decline of the Senate's once-proud traditions relating to judicial nominations. He was opposed by both of his home State Senators. Both Senator Feinstein and Senator Harris did not return a blue slip for Daniel Aaron Bress. The blue slip, as many people know, is literally a single piece of paper where Senators sign their name and then check off whether they support or oppose, as a way to have consensus between Senators from their home State, and it has always been accorded respect and deference in this Chamber, but that has all changed now. In this case, you had a California nomination--I will get to that part of it in a moment--where, as I said, both Senators did not return blue slips. In this case, in particular, I think it is particularly offensive because Senator Feinstein is the ranking member of the committee. For those who don't pay attention to all this terminology, ``ranking member'' is the top person in one party who is not the chairman or chairwoman, as the case may be. So as the top Democrat, the ranking member of the Senate Judiciary Committee, her opposition to Judge Bress should be an important factor in his nomination and confirmation. Prior to this administration, the Judiciary Committee had never held a hearing for a nominee from the ranking member's home State without his or her support. Again, that has all changed just recently. Prior rules and norms have not stopped Republicans in the Senate from pushing extreme and sometimes corporate nominees through this process, especially at the circuit court level. In a recent press release, Senator Feinstein and Senator Harris explained that they opposed Judge Bress in part because he had so few connections to California. He lived in California for only 1 year since graduating from high school, he has not voted in California in an election for over a decade, and the California bar lists him as a Washington, DC, attorney. I mention that because that should be relevant. When a home State Senator--in this case, two home State Senators, one of whom is the top Democrat on the Judiciary Committee--I think in that case there should be deference paid to that kind of concern that is raised. After all, they both represent their State. As I mentioned earlier, the blue slip process is predicated on the idea that home State Senators are more familiar than anyone else with their State's legal community. I think that goes without saying. They serve an important role in nominating individuals to serve and represent the State. Judge Bress is an example of why the blue slip process is so important. He is not part of the California legal community. Despite objections of the Senators, he will now sit on the Ninth Circuit Court of Appeals and decide cases for a State with over 39 million residents at last count. Without blue slips, what would prevent a California judge from being nominated to a court in another State? What would happen if you had someone from a different State, who had very little ties to a State, be nominated and confirmed, for example, to serve in a State like Pennsylvania? It doesn't make a lot of sense to most people. It is a norm that should not be violated. His nomination illustrates how the blue slip process has been eviscerated, especially for the circuit courts, which is something that I had some firsthand experience with. I did not return a blue slip on one nominee who was confirmed, and in the second case, there was a hearing scheduled over my objections by way of not returning a blue slip. That experience that I had as a Senator whose blue slip and the deference that should be paid as part of that blue slip process--that circumstance in my case is at variance with my experience for district court judges. Senator Toomey and I--my colleague from Pennsylvania--have worked together to jointly recommend experienced, consensus nominees for the Federal district courts in Pennsylvania. We have three districts--the Eastern District, the Middle District, and the Western District. Unfortunately, this bipartisan district court process has become the exception, not the rule. It used to pertain here in the Senate, where every State had some kind of process by which nominees were presented for confirmation by their home State Senators, and the White House--the administration--in every case would pay deference to that. That is exceedingly rare today. I am thankful we have maintained it so far in Pennsylvania with regard to the work Senator Toomey and I do together and our staffs do together to reach consensus. It doesn't always work, by the way, but usually no one hears about the ones who don't work out because we keep that to ourselves and move on to the next person and see if we can't reach consensus. I appreciate that. I think we are either at 19 or 20 judges confirmed since 2011, working together, and I hope we can maintain that so that at least--at least-- the blue slip process can be respected for district court nominees. I think people who elect us in our home States expect that. They expect us to work together and to try to reach consensus where we can. Sometimes it is not possible, but they do expect us to do that. If there is an expectation of consensus and bipartisan cooperation [[Page S4741]] that adheres to or is expected of Senators, then there ought to be institutional support for that here in the Senate and by the administration. As I mentioned, that is not the case today, at least as it relates to the appeals court, the circuit courts around the country. This has relevance, of course, not just to process and norms and traditions; that is in and of itself important. It is of even greater significance when you consider the issues these courts will deal with. Just today, for example, there was oral argument before the Fifth Circuit Court of Appeals in the Texas v. United States case--a monumental case that has the potential to cause millions of Americans to lose coverage. We know that because we know that since the Affordable Care Act was passed, more than 20 million people have gained coverage, the larger share of that being people who gained coverage through the expansion of Medicaid. If that case were to be successful--a case brought by Republican attorneys general from around the country and then later opposed by Democratic attorneys general--if that case is successful, as it was at the district court level, 20 million people stand to lose their coverage, and a much larger number--depending on which number is on the record currently, but at least 150 million-plus Americans have protections today because of the Affordable Care Act, like the protection if you have a preexisting condition protection. Under the old system, the old rules, the old law, you could be denied treatment or coverage because you have a preexisting condition. That was happening routinely. That is no longer the law today. The law today is that if you have a preexisting condition, you can still get coverage. As I said, that would be at risk for something north of 150 million Americans. Some of the data tells us the numbers are equally substantial when it comes to different parts of the law and those who are adversely or potentially adversely affected. If you had to step back and summarize where we have been in the last more than--just about 2\1/2\ years now since the Trump administration came into office, working with House Republicans and Senate Republicans, you have had a campaign--really a constant campaign of what I would argue is about three things, and maybe not only three but at least three: ripping away coverage; decimating the Medicaid Program or at least attempting to over and over again; and thirdly, sabotage-- sabotage mostly by the administration itself but also supported by Republicans here in the Congress. That sabotage has been, unfortunately, successful. As of January, for example, the Gallup organization released data that said the number of Americans--I am reading from the first line of a news story from the publication Vox. The headline is ``Under Trump, the number of uninsured Americans has gone up by 7 million.'' The sub- headline is ``Even in a strong economy, Americans are losing their health coverage.'' This is an article written by Sarah Kliff--someone who spends a lot of time writing about and analyzing healthcare as an issue. It is dated January 23, 2019. I will read just the first two sentences: ``The number of Americans without health insurance has increased by 7 million since President Donald Trump took office, new Gallup data released Wednesday shows.'' Again, this is a January 2019 story. It goes on from there to say: ``The country's uninsured rate has steadily ticked upward since 2016, rising from a low of 10.9 percent in late 2016 to 13.7 percent--a four-year high.'' So at the end of 2016, at the beginning of the Trump administration, the uninsured rate was 10.9. At the end or the latter part of 2018, going into 2019, it stood at 13.7. So Gallup tells us that 7 million more people do not have healthcare who had it when the President started his administration. A number of organizations have catalogued recent analyses of the potential threats that could impact communities if this Texas v. United States case were successful. I will mention again for the record that the litigants--the ones who were bringing the case, these Republican attorneys general--prevailed at the district court level. Now it is on appeal at the circuit court, and, in my judgment, it is probably more likely than not that they will prevail at that level too. Then, of course, the only option would be the Supreme Court, and I don't have a lot of confidence that this Supreme Court would rule against that case, which would result in chaos. That is a terrible understatement for what would happen when 20 million people potentially lose their coverage and tens and tens of millions more lose the protections they enjoy now, especially those against the denial of treatment or coverage because that individual has a preexisting condition. Here are the numbers, just to remind folks. Everyone has heard the number nationally. One hundred thirty-three million Americans, roughly, have a preexisting condition. In my home State of Pennsylvania, that number is a little more than 5.3 million people. Those numbers are terribly high, but I think the one really making an impression on me and I hope on others--especially those in Pennsylvania--is the number of children in the Commonwealth of Pennsylvania who have a preexisting condition. Six hundred forty-two thousand seven hundred Pennsylvania children have a preexisting condition--642,700. No action by the U.S. Congress, by the administration, or by a court should ever result in any child being denied coverage or treatment because of a preexisting condition--any child but let alone numbers that are so high and so offensive to even consider that number of children or any portion of that number could be denied coverage. The only number I will emphasize tonight is 642,700 Pennsylvania children with a preexisting condition. I won't go through all the numbers because I know we are here late tonight, but another number that jumps out at me--and this number comes from a document published by Protect Our Care telling us in a publication today that when you consider the doughnut hole coverage, meaning that the Affordable Care Act began to fill the coverage gap when older Americans were paying for prescription drugs and often paying exorbitant prices for prescription drugs--the Affordable Care Act began to chip away at that number, so much and in such a substantial fashion that the average senior, since the Affordable Care Act was passed--and this is the period of time between 2010 and 2016--that seniors gained $2,272 on average, almost $2,300 per senior to help them with their prescription drug costs by helping to fill that so-called doughnut hole, which is a very benign way to talk about a terrible coverage gap that burdens a lot of older Americans. In Pennsylvania, that number is lower, but it was still more than $1,100 per person. All of that will be at risk if this case is successful. Just like the protections for preexisting conditions are at risk, the support that has been available up until the recent past for prescription drug coverage for seniors--that support potentially could go away completely. So seniors will again potentially be footing the bill if this lawsuit is successful. Two more, just for the record. Access to treatment would be in jeopardy for some 800,000 people with opioid use disorder issues. We know there are a huge number of Americans who have a substance use disorder issue, often an addiction. A subcategory of that--probably the biggest subcategory--are those with an opioid addiction. That has hurt families of all kinds--rich and poor, north and south, no matter where you live--east, west, rural, urban, suburban. It knows no bounds. A lot of that support has come from the support for quality treatment that folks need to lift themselves out of the grip of an addiction. A lot of that support comes from Medicaid expansion. Whether it is the repeal bills that were promoted on the Senate floor over and over again or whether it is the lawsuit that could have as devastating of an impact on healthcare as any repeal bill would, no matter where you turn, in terms of Republican healthcare bills and this lawsuit, you can see the adverse impact on Medicaid expansion. Virtually every one of them not only wants to cut Medicaid expansion, in most of the Republican bills, they want to eliminate it over time-- completely eliminate Medicaid expansion. Somehow it was wrong. I have to ask why. [[Page S4742]] Why was it wrong that millions of people got their healthcare through an expansion of Medicaid? Why would anyone ever doubt that someone next to you who doesn't have coverage, first and foremost, and might have an opioid addiction problem is getting coverage, and because they have insurance coverage, they can get treatment for that terrible scourge our country is going to be dealing with for decades--why is that the wrong thing to do? How would taking that coverage away from someone with an opioid problem advance the interests of the American people? The answer is, it wouldn't. The answer is, it would set back the efforts to deal with a whole host of folks out there who are getting treatment today solely, completely, because of Medicaid expansion. The last thing I will mention is our rural areas. I represent a State that has 67 counties, and 48 of them are rural. A lot of the rural hospitals in those communities are already teetering on the edge of collapse and have been for years--not just the last several years but for many years. One of the fastest ways to ensure that more rural hospitals would close and collapse is to cut Medicaid or to take away Medicaid expansion. That has an adverse impact, the likes of which we can't even begin to calculate because folks in rural Pennsylvania will lose coverage if you decimate Medicaid or you take away Medicaid expansion, but that doesn't end there. A lot of folks in those communities are getting treatment for an addiction issue or something related. They will be adversely impacted; their families will; their communities will, but it doesn't stop there in a rural area. In a lot of these rural areas in my home State--and it is true all across the country--the biggest employer, or at least the second or third biggest employer, is often a hospital. In my State, there are probably 25 counties where the top employer in those 48 rural counties--about half of them, roughly--the No. 1 and No. 2 employer is a hospital. So cutting Medicaid or eliminating Medicaid expansion or sabotaging the health insurance markets or taking away the coverage of the Affordable Care Act has healthcare consequences, has opioid addiction treatment consequences, and of course has a job consequence as well. If you cut Medicaid in a lot of rural areas, you are going to lose a lot of jobs. It is as simple as that, as devastating as it is. So we have a long way to go to make progress on healthcare. I hope--I hope--my Republican friends will come together with us and work on lowering the cost of healthcare and lowering the cost of prescription drugs, but they don't seem to be that interested in that. Some are, intermittently, once in a while, but they don't seem to be interested because there is an obsession in the Senate, on the Republican side, with decimating the Medicaid Program, ending Medicaid expansion, and completely wiping out all the gains of the Affordable Care Act. That would be bad enough, but it is doubly worse or it is doubly insulting, I should say, when there is no plan for replacement. So what if a court of law, what if a Federal court in the Fifth Circuit, in the next couple of months, says the moving party here, the party that wants to declare the Affordable Care Act unconstitutional--declares the moving party is the prevailing party, that they win? Let's say it doesn't go to the Supreme Court, but even if it does, let's say it loses there. What happens then to those 20 million people who got coverage? What happens to the 150 million-plus who have coverage today, protections today, who did not have it before the Affordable Care Act? They were paying their premiums for years, if not decades. They had coverage for years, if not decades. Their children were maybe covered in their employer-sponsored plan, but in many cases--maybe not in every case--they didn't have much protection from preexisting conditions. They didn't have protections against lifetime limits or caps on the treatment you can get in a year or over a lifetime. We had the bizarre and insulting and degrading experience, where women were discriminated against by the insurance companies because they were women. Being a woman was actually, in a sense, a preexisting condition. That made no sense. Are we going to go back to those days because a group of attorneys general wanted to change the law, and they couldn't prevail on the Senate floor, or they couldn't prevail over time in the House, or by way of what the administration would do, so they went into court, and they are going to wipe out coverage for tens and tens of millions of Americans? Is that a good thing for America? I don't think so. I think that sends everything in the wrong direction. Unfortunately, that is not just theory. Some of it is already happening. As I said before, Gallup tells us that 7 million fewer people have healthcare today, or at least as of January, than did two Januarys before that. So we have a long way to go to make progress on healthcare, but we are not going to make much progress around here if we have a continual fight. I hope some will agree to set aside the fight about repeal and lawsuits taking away coverage. Let's work together to lower costs, and let's work together to lower the costs of prescription drugs, in particular, because I have to answer to a lot of families. One of them is Matt Stefanelli, a young man we just spoke to today talking about his children. Matt's son has type 1 diabetes. We are from the same home county. He is worried not only about his own healthcare, but he is worried about his son's healthcare. We have an answer, and the answer is to respond to families like Matt's. I yield the floor. ____________________
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