Executive Session

Floor Speech

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Ms. HIRONO. Mr. President, just before we left for last week's State work period, the majority leader filed cloture on six nominees for Federal circuit courts. He did not take this action in a vacuum.

Over the past year and a half, the majority leader and the Republicans in the Senate have joined with Donald Trump to try to pack our Federal courts with ideological judicial nominees who seek to change American law to match their partisan politics.

To accomplish this goal, the majority leader and Senate Republicans have also been eliminating procedural checks designed to ensure a fair and qualified judiciary. One of those checks is the blue-slip requirement--a mechanism for Senators to indicate their approval of nominees from their States.

In the past, when Senators objected to a judicial nomination in their home State, with almost no exceptions, the Judiciary Committee took no further action on that nominee. This was because the Constitution requires the President to get the advice and consent of the Senate when nominating judges.

Traditionally, this has been done by consultation with the home State Senators, but the majority leader and his Republican colleagues have largely abandoned this constitutional safeguard.

The Judiciary Committee has, though very rarely, scheduled hearings for nominees who lack one blue slip and whose home State Senators have returned negative blue slips.

Now, tomorrow, we will have a hearing for a Ninth Circuit nominee for whom no blue slips have ever even been returned. This has never happened in the modern history of the Senate, and it certainly was not the standard the majority leader and the chair of the Judiciary Committee applied to President Obama's judicial nominees.

It does not have to be this way. It is possible for home State Senators to confer with this administration and identify nominees acceptable to both parties. For example, the Trump administration consulted with Senator Schatz and me about nominees to fill Hawaii vacancies on the district and circuit courts. We worked together to identify nominees who would be qualified and appropriate for these lifetime appointments--Jill Otake for the district court and Mark Bennett for the Ninth Circuit. We returned our blue slips, and the nominations are moving forward.

Abandoning the blue slip has nothing to do with overcoming so-called Democratic obstruction of President Trump's judicial nominees. This President has seen more circuit court nominees confirmed at a faster pace than any modern President. In fact, he has bragged about the pace of confirmation of his judges, including at the State of the Union Address.

Instead, abandoning the blue-slip process is about gutting checks and balances that would prevent Donald Trump from packing the court with ideologically driven judges as quickly as possible.

This week, we are considering one of those judges--Michael Brennan-- whose nomination should not proceed. It has come to the Senate without the traditional advice and consent and over the strong objection of his home State Senator, Ms. Baldwin.

In fact, in a particularly hypocritical twist, Mr. Brennan was nominated to fill a seat that has been kept open for over 7 years because the senior Senator from Wisconsin--a Republican--refused to return a blue slip for Victoria Nourse--President Obama's nominee for this very same seat.

At that time, Mr. Brennan--the nominee we are debating today--even wrote an op-ed in the Milwaukee Journal Sentinel in 2011 arguing in favor of respecting the blue-slip requirement on the Nourse nomination, saying:

There are now two Senators from Wisconsin from different political parties, so to exclude Johnson and those citizens who voted for him would be a purely partisan move.

Johnson represents millions of Wisconsin citizens, just as Sen. Herb Kohl does and Feingold did. In the same way those senators had their say in Nourse's first nomination, Johnson should have his say . . . [He] just wants to be heard and fulfill his constitutional duty of ``advice and consent.''

Why can't Johnson, elected by the citizens of Wisconsin, participate in the selection of a judge for a Wisconsin seat on the 7th Circuit, as Kohl did?

Now that the shoe is on the other foot, Mr. Brennan is perfectly happy to have his nomination move forward over the objections of one of Wisconsin's Senators--Ms. Tammy Baldwin. This is the kind of hypocrisy we have come to expect from this administration, but I am also not surprised that Senator Baldwin did not approve Michael Brennan, considering his troubling views on the way the law works. He should not be confirmed to a lifetime appointment on the Seventh Circuit.

In a 2001 op-ed for the National Review online, Mr. Brennan expressed dangerous ideas that call into question the duty of Federal judges to follow precedent. In his op-ed, Mr. Brennan casts doubt on whether judges have a responsibility to rely on how other judges before them interpreted laws, what lawyers call stare decisis. He wrote:

If, after reexamination of a legal decision, a court concludes that the ruling was incorrect, stare decisis does not require that the rule of that case be followed. . . . Bush-appointed judges cannot accurately be labeled as activists for reexamining and following only correct precedent.

I interpret this op-ed to mean that a judge is free to determine whether he or she will agree that the precedent is correct. That is not how the law works. So we, in the Judiciary Committee, asked Mr. Brennan about this article during his confirmation hearing, and he came up with a clever explanation for it. He claimed his article asserted that judges are not necessarily bound by decisions of their own district or their own circuit. His article, he claimed, did not argue that judges can disregard precedent of higher, controlling courts. That is not what he wrote.

It is a convenient explanation, I admit, but it doesn't really hold up if you read his op-ed, where he clearly argues that President George W. Bush's judicial nominees should receive a pass for not following the law. This is what used to be called a confirmation conversion.

As with too many of President Trump's nominees, we are being told to ignore what we read or hear and set aside common sense. We are told by these nominees that what they talked about yesterday, think about today, wrote about yesterday--we are supposed to just ignore all of that. We are supposed to pretend that what someone has advocated for in the past, no matter how recent, will have no bearing on what they will do as a judge, but, remember, Judge Brennan has said he doesn't feel bound, according to his op-ed piece, by precedent.

Judges, as former Chief Justice Rehnquist said, do not come to their positions as blank slates. Each of them brings their own ideas and perspectives to the bench.

The majority leader recently said his most consequential political act--political act--was blocking Judge Merrick Garland's nomination to the Supreme Court. This is the same majority leader complaining that Democrats are now obstructing President Trump's judicial nominees. What could be more obstructionist than to totally ignore a nominee to the Supreme Court, no less?

The majority leader's unprecedented action prevented President Obama's well-qualified, centrist nominee from even having a confirmation hearing, let alone a vote, and it paved the way a year ago for Senate Republicans to jam through President Trump's conservative, ideological nominee, Neil Gorsuch--a Federalist Society-backed nominee--to provide a five-vote conservative majority on the Court that will continue to roll back individual rights for decades. President Trump put his stamp on this approach when he tweeted, ``Republicans must ALWAYS hold the Supreme Court.'' They are taking this same approach to all of our Federal courts.

I take the Senate's constitutional obligation to provide advice and consent on judicial nominees very seriously. We should be carefully considering a nominee's record to ensure they understand that courts are supposed to protect the rights of minorities.

The courts do not belong to Democrats or Republicans, despite the fact that Donald Trump has said Republicans must always hold the Supreme Court. He applies that, by the way, to the district courts as well as circuit courts. We must ensure that judges with lifetime appointments will treat all Americans--all Americans, and, I would say, particularly minorities and women--fairly in court. This is what the blue-slip requirement is really about. Home State Senators have a unique role in ensuring that the Federal judges serving in their States are highly qualified, understand the importance of applying the law fairly, and meet the needs of their community.

I urge Senate Republicans to reverse their ill-conceived decision to functionally eliminate the blue-slip requirement. We must all stand together to respect Senator Baldwin's objections and oppose this nominee--who, to me, is the height of being a hypocrite--or all of us are at risk.

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