Department of Defense Appropriations Act, 2019

Floor Speech

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Mr. CORNYN. Madam President, it is August, and the Senate is in session getting the people's work done. As the majority leader said last week, the reason we can't afford to take this time off is because we have so much to do.

Of course, one of the things we could do is agree to an expedited confirmation of noncontroversial nominations--something our Democratic friends have not been willing to do to this point. Indeed, they engaged in unprecedented obstruction of some of President Trump's nominees, even those who are not controversial. For example, we just confirmed two Federal appellate court judges in a strong bipartisan manner last week. These, of course, were both highly distinguished lawyers, and I am sure they will do a great job on the Fourth Circuit. When we see nominations get overwhelmingly bipartisan votes, we wonder why we had to delay these nominations not only for the judiciary but also other important nominations, such as at the State Department and in other areas. Frankly, because of the delay, the vacancies impair the ability of government to be responsive to the needs of the American people. It is a shame we have seen that kind of mindless obstruction to President Trump's nominees who, again, are not even controversial.

While we focus sometimes on how divided we are--and I know the American people sometimes feel like we are unwilling to find common ground--it is not true that we don't occasionally come together and do important things. This week marks the continued collaboration between Republicans and Democrats that started last week when we agreed to address two important funding bills. One is for the Department of Defense, which is my personal priority, and I know the Presiding Officer would agree with that. The other involves Labor, Health and Human Services, and Education, which I will mention in just a moment.

Working together to do both of these appropriations bills is something the New York Times described as a bipartisan breakthrough because, in the past, we lurched from continuing resolution to Omnibus appropriations bills, much to the frustration of not only our constituents but many of us in the Senate.

We have seen continuing resolutions underfund our national security, for example. We have seen gargantuan Omnibus appropriations bills that basically four Members of Congress negotiate and then present to the rest of us as a fait accompli, which is obviously a terrible way to spend the people's money, but I believe we are doing something good here this week.

These appropriations bills are the two largest of all the appropriations bills. After we pass them this week, we will have passed 9 of the 12 appropriations bills, which fund 87 percent of discretionary spending. Doing this with more than a month before the end of the fiscal year is something we haven't done in a long time. We are ahead of the House, which usually moves at a fast clip--although, we are here working, and the House is taking a little time off, I might add.

I offer my appreciation to Chairman Shelby, chairman of the Appropriations Committee, and Ranking Member Vice Chairman Leahy, whom I was just talking to. He was telling me about how pretty the weather is in Vermont and how much he would like to be there instead of here, perhaps, after we finish this bill. I told him if he helped us work on some of this backlog of nominations, maybe that was something we could discuss.

I would like to congratulate both Chairman Shelby and Vice Chairman Leahy for their good work, on a bipartisan basis, facilitating a smooth process so far. As I said, there have been seven of them, and the chairman managed to mark up each prior to the Fourth of July State work period. They have done a good job of managing the bills on the floor and avoiding a quagmire--which, if encountered, would only kill the process.

I would like to highlight a few of the aspects of each appropriations bill we will be working on this week. In the Defense bill, we will be including a provision requiring the Department of Defense to issue two reports to Congress on the implementation of a bill called Fix NICS. To refresh everybody's memory, this was a piece of legislation we passed with broad bipartisan support that went to the President. I introduced it in light of the shooting last fall in Sutherland Springs, TX, that killed 26 people and wounded about 20 more. The gunman in that case had been in the Air Force and was discharged, but his criminal convictions while he served in the Air Force were not uploaded into the relevant FBI databases. That is how he got his hands on a gun that he was already legally prohibited from purchasing or possessing and committed this mayhem and inflicted this misery.

That is why this report from the Department of Defense is so important. Hopefully, they have remedied this failure to upload derogatory and disqualifying information for people who cannot legally purchase or possess firearms. We want to make sure--in light of this legislative change--that the right changes are being implemented and that lives will be saved as a consequence.

The Defense bill will also greatly benefit the Nation by providing additional funding for the F-35 Joint Strike Fighters and the V-22 Osprey aircraft, which are both made in Texas. This is important not only to make sure our warfighters have the most advanced airframes and aircraft available but also to make sure the jobs that go along with it are secured as well.

The F-35 Joint Strike Fighter is the latest and greatest warplane in the American arsenal, and we have put, literally, all of our eggs in that basket. As the saying goes, when you put all your eggs in one basket, you better take care of that basket. We need to make sure these Joint Strike Fighters are being produced in a responsible sort of way and that both of these aircraft are being provided so our warfighters can have the very best equipment they need in order to do the job we asked them to do.

This bill also provides $30 billion for local school districts that provide education to military children. Sometimes this is called impact aid because our military bases aren't taxed by local school districts when they are then called upon to provide education to the children of Active-Duty military or military dependents. It is important the Federal Government make sure they have the financial resources they need in order to make that happen. Indeed, $30 million in impact aid will be provided for local school districts.

Finally, this includes a 2.6-percent increase in military pay and increases Active-Duty troop levels by more than 7,000. Both of those are really important. Obviously, in an all-volunteer military, it is important that we compensate our servicemembers appropriately. This isn't about the money for them, but we have to make sure they can provide for their families while they serve our Nation and help keep us safe.

In terms of troop levels, it is important the troop levels match the commitments we have made around the world to help stabilize unstable regions and to provide safety not only for ourselves but for our friends and allies around the world. Unfortunately, because of extensive and lengthy commitments we made with a small force, our Active-Duty servicemembers are likely to be deployed over and over again, with a lot of stress not only on their families but on the force effectiveness in general. Both of these are very important--a 2.6- percent increase in pay for Active-Duty military and increasing troop levels by about 7,000.

In the second bill we will be passing, in addition to the Defense appropriations bill, this will fund the Department of Labor, Health and Human Services, and provide more funds for biomedical facilities to expand, remodel, and renovate their existing research capabilities that will benefit a multitude of institutions. Those include the Texas Biomedical Research Institute in San Antonio. We know that in the healthcare field, nurses are always in short supply. This bill will also benefit nursing programs, like the one at Texas Tech University, which will assist veterans in making the transition from military life to civilian life. Finally, in the education sphere, it will provide more than $475 million for charter school programs. Nomination of Brett Kavanaugh

Madam President, at the same time, we are continuing our work on the nomination of Judge Brett Kavanaugh, who will succeed Justice Anthony Kennedy as Associate Justice on the U.S. Supreme Court. His hearing is set for the first week of September--September 4. I hope we will move quickly thereafter to vote on his confirmation.

I have perhaps benefited from my familiarity and my acquaintance with Judge Kavanaugh, dating back to 2000. Many of our colleagues are just now meeting him for the first time and becoming acquainted with his outstanding record as a lawyer for the White House and as a judge.

Late last week, the Senate Judiciary Committee received another production of documents on Judge Kavanaugh. This batch amounted to about 64,000 pages. Just so everybody can keep count of all the documents that are being produced as part of his confirmation hearing, the committee now has more than 248,000 pages of executive branch material related to the nominee. The reason I mention that number is because it really dwarfs the previous record for Judge Gorsuch, which was roughly 180,000 documents.

The committee was also handed a list of documents that were withheld on grounds that they are personal records as opposed to government records under the Presidential Records Act. Chairman Grassley has appropriately--and I think wisely--asked the National Archives to review those withheld documents and confirm this determination by making their own determination as to whether they are responsive or should be withheld. I think this speaks volumes to the transparency of the process since day one.

I am particularly grateful to Chairman Grassley for his leadership, as well as for the efficiency and thoroughness the committee has so far displayed in reviewing the documents. We worked hard to accommodate our Democratic colleagues' requests all along the way. Let's not forget that for nearly 2 weeks before issuing the committee's request to the George W. Bush Presidential Library, Chairman Grassley attempted to seek a good-faith agreement from the ranking member to jointly request documents relating to Judge Kavanaugh's legal work at the White House. These efforts at good-will collaboration, unfortunately, were to no avail. The chairman received, instead, unprecedented counterproposals designed to unnecessarily draw out the process.

Although the chairman is right to prioritize review of some of the documents coming from President George W. Bush's administration, we all know the best evidence of how Judge Kavanaugh will perform as a member of the Supreme Court is how he has already performed as a judge during the last 12 years on the DC Circuit Court of Appeals. He has written more than 300 opinions during that time. Of course, his work as a judge is the best lens for how he will evaluate real cases in the future. Our friends on the other side used to agree with that.

Back during Justice Sotomayor's hearings, they made this identical comment that her judicial record was far more important than any comments or speeches she may have made outside of that context. Maybe belatedly for them, we now agree with them that this is the best evidence. It is just common sense.

In Judge Kavanaugh's case, reviewing his judicial record, I think what the record reveals is, he is diligent and thoughtful in his reasoning. His rulings are clear, impartial, and just.

In the recent questionnaire he returned to the Judiciary Committee-- which is a standard part of the vetting process. Nominees are sent a questionnaire, and they respond and attach copies of speeches, law review articles, and other things they have spoken on or written. Judge Kavanaugh listed what he saw as his most significant cases. I want to mention a couple of those. I think they are illustrative of the work he has done not only on the DC Circuit Court of Appeals but the kind of work he will do as a member of the Supreme Court and his standing in the Federal Judiciary.

First is a case called Free Enterprise Fund. Judge Kavanaugh found himself in dissent. In other words, he didn't join the majority decision, finding that the structure of an independent agency in the executive branch violated the Constitution. Interestingly, when the case was appealed thereafter to the Supreme Court, a majority of the Justices on the Court cited Judge Kavanaugh's dissent in reversing the panel's decision on the District of Columbia Circuit Court. When the Supreme Court agrees with a lower court judge and cites that author's opinion, that is a pretty good sign that he or she deserves to be taken seriously. In Judge Kavanaugh's case, it didn't just happen once.

Consider a second case, Bluman, which involved a Federal ban on election contributions made by foreign nationals. Judge Kavanaugh authored the majority opinion, which rejected the plaintiff's challenge. When the Supreme Court took the case thereafter, it unanimously agreed with Judge Kavanaugh. All nine members of the Court sided with Judge Kavanaugh's position.

In a third case, Wesby, Judge Kavanaugh filed a dissenting opinion on a question of qualified immunity afforded to law enforcement officers. Even though Judge Kavanaugh's views did not win the day in the DC Circuit, the Supreme Court took the case and reversed the panel decision and embraced Judge Kavanaugh's position in the end. Once again, it bears repeating that the decision was unanimous--9 to 0. Judge Kavanaugh's view was vindicated.

These are just a few of the 307 opinions he authored while he was on the DC Circuit, and, of course, there are many more. In the coming weeks, I know the lawyers on the Judiciary Committee, as well as my colleagues, will have a chance to thoroughly delve into each of them and then ask the nominee probing questions about them when he testifies before the committee during the first week of September.

For now, we will continue with the great paper chase, which includes the largest production of documents ever in the Senate's consideration of a Supreme Court nominee. Unfortunately, as I have said before, many of our Democratic colleagues aren't likely to ever be satisfied with the boxes upon boxes of written materials. It will never be enough. In some cases, it is because they have already decided to vote no against the nominee even before having met the nominee or having reviewed any documents whatsoever.

Emblematic of this phenomenon is one of our colleagues on the Senate Judiciary Committee who has threatened to sue to obtain even more records. The problem for that Senator is, on the night Judge Kavanaugh was nominated by President Trump, he said he had done enough due diligence to have reached a conclusion on whether the nominee should be confirmed and had said he would not vote for the nominee. Yet this is the same Senator who is now saying we ought to file a suit to get more documents. I think the American people are smart enough to figure out what is going on. It is gamesmanship, plain and simple.

So my question is, If our colleagues have done enough due diligence to make a decision to not support the nomination, why do they need more paper? To what avail? Why should we extend this process that will cost the taxpayers more money and create a lot of confusion when they have already made their decision?

Despite these games, the truth is, Judge Kavanaugh is eminently qualified and well respected by all who know him, and I look forward to confirming him as Justice Kavanaugh early this fall, following the Judiciary Committee's hearings during the first week of September.

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Mr. CORNYN. The following Senators are necessarily absent: the Senator from Texas (Mr. Cruz), the Senator from Nevada (Mr. Heller), the Senator from North Dakota (Mr. Hoeven), the Senator from Mississippi (Mrs. Hyde-Smith), the Senator from Oklahoma (Mr. Inhofe), the Senator from Utah (Mr. Lee), the Senator from Arizona (Mr. McCain), the Senator from Kansas (Mr. Moran), the Senator from Idaho (Mr. Risch), and the Senator from Pennsylvania (Mr. Toomey).

Further, if present and voting, the Senator from North Dakota (Mr. Hoeven) would have voted ``yea''.

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Mr. CORNYN. The following Senators are necessarily absent: the Senator from Texas (Mr. Cruz), the Senator from Nevada (Mr. Heller), the Senator from North Dakota (Mr. Hoeven), the Senator from Mississippi (Mrs. Hyde-Smith), the Senator from Oklahoma (Mr. Inhofe), the Senator from Utah (Mr. Lee), the Senator from Arizona (Mr. McCain), the Senator from Kansas (Mr. Moran), the Senator from Idaho (Mr. Risch), and the Senator from Pennsylvania (Mr. Toomey).

Further, if present and voting, the Senator from North Dakota (Mr. Hoeven) would have voted ``yea.''

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