Executive Session

Floor Speech

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Mr. WYDEN. Mr. President, first of all, I want to thank the distinguished Senator from Vermont, who has been such a role model to me since I came to the Senate--we started working together on technology issues and worked together on so many matters dealing with appropriations and finance--for all his counsel, not just on this but over the years. I thank him for the courtesy of being allowed to go next. Nomination of Ryan Bounds

Mr. President, there is now a vitally important debate happening on the Senate floor with respect to judicial nominations. What is clear to me is, the majority is now chipping away at a century of bipartisan tradition that has protected the interests of those in our home State and served as a check on the power of the Executive. It is the Senate bowing down to the White House, derelict in its constitutional responsibility to provide or withhold advice and consent on nominees. In my view, this is a dangerous mistake that is going to have harmful consequences for decades.

Today, the debate at hand is over the mishandling of the nomination of Michael Brennan to the Court of Appeals for the Seventh Circuit. This could be the first time in decades that a judicial nominee is confirmed over the objection of a home State Senator. Tomorrow, the Senate Judiciary Committee is going to throw out the window a bipartisan practice that dates back more than a century when it holds a hearing on the nomination of Ryan Bounds to sit on the Ninth Circuit Court of Appeals. It goes without saying that individuals who are up for a lifetime seat on a powerful Federal court must be forthcoming and truthful in the nomination process. My view is, Ryan Bounds hasn't even cleared that low bar. Mr. Bounds misled the independent committee that considers potential nominees in Oregon by withholding inflammatory writings that reveal disturbing views on sexual assault and on communities of people who are vulnerable and disadvantaged.

He has had ample opportunity to clean up this mess, express remorse, and explain how his views have changed, but I haven't seen it. The comments I have seen suggest Mr. Bounds views this as a matter of poor word choice and youthful indiscretion--an issue he can almost dismiss with a small wave of the hand. In my view, that is wrong, he is wrong, and an individual up for a lifetime seat on a Federal bench has an obligation to do better than that. Yet his nomination has moved forward anyway.

This action by the majority--what will happen tomorrow unless common sense and good will and tradition prevail tonight--will throw in the dustbin a century of bipartisan tradition. Tomorrow will cheapen the advice and consent role of the U.S. Senate, and this body will cede power to the executive branch.

First, to explain what I mean, I am going to discuss the practice we have maintained in Oregon with respect to judges. When there are vacancies on the bench, Oregon Senators convene an independent committee of Oregonians from all over the legal community to select and interview candidates for judicial nominations. The committee performs a thorough, statewide search, conducts rigorous interviews, and then recommendations are made to Oregon's two Senators. Senator Merkley and I review those recommendations, and we submit a short list to the President for his consideration. For us, this process is the core of what advice and consent is all about when it comes to judicial nominees. We even wrote to the current White House counsel very early on in the new administration--now more than a year ago--to make sure they were up to date about this longstanding Oregon practice.

As part of the work the independent committee does in Oregon, candidates are asked whether anything in their past would have a negative impact on their potential nomination. Any lawyer who has read up on a hard-fought nomination in the past ought to know that inflammatory writings about women, people of color, and LGBTQ Americans certainly qualify as potentially threatening to a nomination. Mr. Bounds, however, did not alert our Oregon committee to his writings. He said there was nothing to worry about. In fact, he highlighted his precollege days in an effort to paint a picture of diversity and tolerance, conveniently skipping over his later intolerant writings. My view is that Mr. Bounds misled the committee by this omission, and he was wrong to do so.

It was not until after the committee finished its work that these writings came to light. That is why five of the seven members of the independent Oregon judicial selection committee, including the chair, said that this would have changed their decision to include Mr. Bounds among the committee's recommended candidates. Yet the Trump administration and the majority on the Senate Judiciary Committee have moved forward with his nomination anyway in direct violation of our longstanding practices.

Here is the second tradition that could be thrown out, and it goes back yet further. Not once in more than a century has the Senate held a hearing on a judicial nominee without having input from either home- State Senator. This tradition has stood for 101 years and has benefited both sides as a check on the power of the President.

Let me briefly quote a letter that the entire Senate Republican Conference sent to the last President at the beginning of his term in 2009. They wrote that dating back to the Nation's founding, the Senate has had a ``unique constitutional responsibility to provide or withhold its Advice and Consent on nominations.''

They continued: ``Democrats and Republicans have acknowledged the importance of maintaining this principle, which allows individual senators to provide valuable insights into their constituents' qualifications for federal service.''

So, in 2009, when a Democrat was in the White House, my Republican colleagues stood firm on maintaining this tradition, and the Democrats did. The last administration and Democratic leaders here in the Senate respected the request of our Republican colleagues. There were no hearings on judicial nominations when neither home-State Senator had consented. Now the Republican majority is on the verge of breaking that practice, in lockstep with the White House, to seat a nominee when there are, in my view, serious red flags.

To my colleagues in the Senate, the White House might believe that providing advice and consent begins and ends with this body's rubberstamping whatever names are sent, and the majority in the Senate might be happy to go along with that. I believe that is the wrong way to go.

Neither Senator Merkley nor I have given our approval for this nomination to go forward. As I have noted in conversations with the chairman of the committee, we are not stonewalling, and we are not fishing around for any old reason to bring down a Republican nominee. We are honoring the bipartisan tradition that has stood for more than a century, and we are fulfilling our constitutional duties.

I have declined to give approval for a hearing because I believe Mr. Bounds purposefully misled the independent Oregon committee that reviewed his candidacy. He omitted information that was vitally important during a critical time of the vetting process. That cannot be dismissed, ignored, or wished away. It is a fact and, in my view, a fact that is a disqualifying one.

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