Nomination of Steven J. Menashi

Floor Speech

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Mr. WHITEHOUSE. Mr. President, I am here to speak on the confirmation of Steven Menashi to be a judge on the United States Court of Appeals for the Second Circuit. We have grown accustomed to the violations of norms around here, kind of a dumbing down of the institution. So by all of those standards, I would ordinarily be opposing Mr. Menashi.

We have disposed of the blue slip convention for Circuit Court nominees. I just warn my colleagues, again, that there is a price to be paid for that. The blue slip for Circuit Court nominees is the thing that connects a Circuit Court nominee to a particular State so that an Arkansas judge on the Circuit Court of Appeals or the Rhode Island judge on our Circuit Court of Appeals or the Montana judge on their Circuit Court of Appeals only is the Arkansas judge or the Rhode Island judge or the Montana judge because we honor that blue slip.

In another Presidency, when the shoe is on the other foot, I don't want to hear any of my colleagues who have thrown this Circuit Court blue slip out complain when somebody who is not even from their State gets appointed to the so-called State seat on the Circuit Court.

In addition, we have dealt with a lot of unqualified candidates. I think this administration has set the record for ABA-designated unqualified candidates. This guy has never tried a case, never taken a deposition. He effectively has not practiced law. When he has tried to practice law, it has been a disaster. He has been the counsel for the Department of Education and managed to have various programs that he advised on all thrown out in court and his Secretary held in contempt-- so not a guy who, when you get a mere legal decision, comes up with a real winning record.

Moreover, he refused, extremely arrogantly, to answer really basic questions, even to the point of frustrating Republican members of the committee when he was a witness before us, and has refused to answer related questions for the record as well.

So, for all of those reasons, this is a pretty undesirable candidate for the Federal bench, but it gets way, way worse. If you look at what Mr. Menashi has said over the years, it is quite an astonishing window into his mind. With respect to affirmative action, he has compared universities--I am quoting him here--he has compared universities cataloging students according to race on college applications and official documents, which you obviously do as part of any affirmative action program, he has compared that to the Nuremberg laws.

If you look at the issue of sexual violence, he has made fun of Take Back the Night marches and described women who are active and concerned about sexual violence as--his words here--``campus gynocentrics''-- maybe he pronounced it gynocentrics, I do not know--campus gynocentrics. When you are talking about sexual violence, that is not just a normal word to use. When you are talking about affirmative action, reference to Nazi Nuremberg laws is just not normal.

He has argued that gun regulations are ``pointless''--I am quoting him here--``pointless and self-defeating because guns reduce crime.'' Really? Ask the victims of the firearms massacres happening at such a horrifying rate in this country how guns reduce crime.

With respect to the rights that have been enshrined in our Constitution and recognized in Roe v. Wade, giving women the right, to some degree, of self-determination about when to have children, he described the rights codified in Roe v. Wade--I quote him here--as ``radical abortion rights advocated by campus feminists.'' Good luck, on an issue related to a woman's right to choose, getting a fair hearing from this character once he is enrobed.

He mocked the gay rights group Human Rights Campaign, which he said incessantly exploited the slaying of Matthew Shepard for both financial and political benefit. We engage in some pretty acid rhetoric around here, but about a young man who was murdered about being gay, that is just appalling. If you are in his court on an issue in which the rights of LGBT folks are involved, there is almost no way that you could believe that a judge that has thought or said anything as vile as that could ever give you a fair hearing.

With respect to the question of diversity, which many of us consider to be one of America's greatest traits, social scientists, he said, have found that greater ethnic heterogeneity, i.e., social diversity, is associated with lower social trust. Ethnically heterogenetic societies exhibit less political and civic engagement, less effective government institutions, and fewer public goods.

First of all, I don't think that is true. I don't think that stands to scrutiny. But, second of all, it is just kind of a creepy thing to be saying, that we would be a better country if we marshaled ourselves together into our ethnic enclaves, which ``provide the groundwork for social trust and political solidarity''--not in my world, not in Rhode Island. That is not the way we work. I don't think that is the way America works.

So whether you are looking at diversity, whether you are looking at gay rights, whether you are looking at a woman's right to choose, whether you are looking at safe regulation of guns, whether you are looking at sexual violence against women, whether you are looking at affirmative action in colleges, you can find something truly creepy that this individual has said. That, on top of all the other disqualifying factors, makes him perhaps the worst candidate that Donald Trump has tried to put on the Federal bench--by the way, that is in a crop of doozies.

The problem here is that people are going to come into these courts and they are going to have a feeling that no American litigant should have and that is that I have got a judge who is predisposed against me, that it doesn't matter what my cause is. It matters who I am.

And, sadly, I don't think this is the bug in these Trump judicial appointments; I think this is the feature. I think it is the intention of the dark money fueled apparatus that has got this assembly line of unusual and peculiar judges cranked on to our courts to actually make sure that our courts are more likely to rule for certain people than others, that they are more likely to rule for polluters, that they are more likely to rule for gun companies, that they are more likely to rule for dark money political operators.

There are essentially, at this point, with this nominee to a Circuit Court of Appeals, no standards left--no standards left. I can't imagine anybody much worse.

It is a sad day.

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Mr. WHITEHOUSE. Mr. President, I am not going to be that long. I ask unanimous consent to speak for up to half an hour as in morning business.

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Mr. WHITEHOUSE. Mr. President, today is my 258th ``Time to Wake Up'' speech, and I want to use this occasion to take us back to our oceans.

Before I get into the substance of my remarks, I note that this will be the last ``Time to Wake Up'' speech during which Adena Leibman will be with me. She has been closely involved in all of my office's oceans work. She has, indeed, led it. She came to my office as a Knauss fellow.

We loved Dean Knauss in Rhode Island. He was the dean of the Graduate School of Oceanography at the University of Rhode Island. In working with Senator Pell, he helped to launch NOAA, helped to start the Sea Grant Program, and was extremely significant in the ocean work of our government. So one being a Knauss fellow--one of the Knauss legacies-- is a really big deal and is a particularly big deal in Rhode Island.

Adena has been coordinating the oceans work now for 4 years and has also been coordinating our appropriations work. In the time that Adena has been working on this, the bipartisan Oceans Caucus, which Senator Murkowski and I established, has grown to 40 Members. It is very bipartisan. It is very effective. We set it up as a working caucus, and it is working.

Adena helped us get the Coastal Resilience Fund passed into law. It is now producing tens of millions of dollars in grants for coastal communities that need the support as sea levels rise.

She helped to get the Save Our Seas Act passed. That was a unanimous effort. Dan Sullivan, of Alaska, was a remarkable partner in all of that. The participants in that included leaders from landlocked States. Senator Inhofe was a real leader on that bill. We had such a good time with it that we are now working on Save Our Seas 2.0, which today came through the Commerce, Science, and Transportation Committee after having passed the Foreign Relations Committee unanimously and the Environment and Public Works Committee unanimously. We are hoping that soon we will be able to organize the floor consideration of it and, perhaps, pass it by unanimous consent in the way we did with the Save Our Seas Act. The work of all of that progress in those committees and the negotiating of Save Our Seas 2.0 was led by Adena.

Lastly, this week, I started going around to collect cosponsors for Senator Murkowski's and my BLUE GLOBE Act, which is the ocean data monitoring bill that we have worked on and are now ready to launch. An enormous amount of preparatory work goes into getting that ready-- getting supporters lined up and doing all of the work of cross- referencing the different points of view--and getting a bill that we also hope stands a good chance of passing this body by unanimous consent. So I give the speech with gratitude to Adena for her work. Climate Change

Mr. President, the oceans send a clear and consistent signal about climate change, and it is a signal that has been untainted by fossil fuel industry propaganda attacks that have been problematic in other areas. The signals are untainted for good reason, because it is hard to dispute sea level rise measured with tide gauges all around the country. It is hard to dispute acidification that is measured with the kind of pH test kit that a middle school science classroom has, and it is hard to dispute rising ocean temperatures that are measured with that complex, analytical device--the thermometer. Even the fossil fuel industry has trouble fouling the climate signals from our oceans.

The recent ``Special Report on the Ocean and Cryosphere in a Changing Climate'' confirms through grim data that the health of our oceans is in rapid decline, and it confirms that these changes are caused not by nature but by man. Headlines extracted from the report are pretty alarming.

These are quotes: ``The global ocean . . . has taken up more than 90 percent of the excess heat in the climate system.''

`` . . . the rate of ocean warming has more than doubled.''

``Marine heatwaves . . . are increasing in intensity.''

`` . . . the ocean has undergone increasing ocean acidification.''

`` . . . mean sea level is rising. . . . ''

``Increases in tropical cyclone winds and rainfall . . . increases in extreme waves . . . extreme sea level events and coastal hazards.''

`` . . . multiple climate-related hazards. . . . ''

As if that is not enough, ``the ocean is projected to transition to unprecedented conditions.''

It is a grim warning.

Look at acidification. Ocean acidification is a chemical phenomenon. It is not deniable. You can replicate it in a middle school science lab. You can demonstrate it with your breath and a glass of water and an aquarium bubbler and a pH strip, as I have done from this desk.

The oceans absorb around 30 percent of our excess CO2 emissions in a chemical interaction that takes up the CO2 but acidifies the seawater. Off our west coast, the humble pteropod is a building block in the oceanic food chain. Studies show the pteropod suffering ``severe shell damage,'' worsened by acidification. It is hard to make and maintain a shell in acidifying seas. Coral reefs are dying from acidification. The great ocean die-offs in geologic eras before humans existed were signaled by ocean acidification. So that is serious.

Look at heat. The oceans absorb over 90 percent of the excess atmospheric heat--not 30 percent like the CO2--that we have trapped in our atmosphere with greenhouse gas emissions.

So think about it. All the terrestrial effects that we are already seeing from climate change come from less than one-tenth of the excess heat that we have trapped. The heat going into the oceans is sparing us humans a real catastrophe, but all that heat is changing the oceans. It is four Hiroshima-size bombs' worth of heat energy added to our oceans every second--four Hiroshima explosions worth of heat energy per second is the rate of ocean heating. The rate of this ocean heating has already doubled, and the ocean is projected to absorb from five to seven times more heat by 2100. So it is heating at the rate at which its heating is accelerating.

What does that mean? Well, warming seas expand--that is a basic law of physics--and along with melting glaciers and ice sheets, that means seas rise: so far, about 6 inches globally; on Rhode Island shores, already nearly a foot. On our current trajectory, that is more than 3 feet globally by 2100 and more than 6 feet along our shores in Rhode Island.

This is northern Rhode Island. This is Narragansett Bay, and all of these areas that you see that are blue are land now. They are peoples' homes. They are peoples' businesses. There are roads and infrastructure--all projected to disappear, all projected to be swallowed by rising seas by the end of the century if we keep fiddling around here and not paying attention.

The First Street Foundation calculates that coastal communities like these along our east coast and in the Gulf of Mexico States have already lost more than $15 billion in relative property values as the insurance and mortgage markets start to look at sea level rise and flooding, and it affects housing prices.

In Rhode Island alone, they estimate about $45 million in relative property value lost. Predicted ahead is a coastal property values crash. That is not coming from an environmental organization. That is coming from Freddie Mac, the great American mortgage corporation.

And it is global. The New York Times recently reported new research ``that some 150 million people are now living on land that will be below the high-tide line by mid-century''--150 million people.

A UK study warns global sea level rise could cost $14 trillion annually by 2100.

This is what Freddie Mac has to say about this coastal property values crash: ``The economic losses and social disruption of the coastal property values crash may happen gradually, but they are likely to be greater in total than those experienced in the housing crisis and Great Recession.'' For those of us who lived through the 2008 meltdown, we don't want to go there again. Freddie Mac is forecasting that it is going to happen because of coastal property values.

Look here to the Pacific. A new Climate Central study shows that ``chronic coastal flooding or permanent inundation threatens areas occupied by more than 10 percent of the current population of nations including Bangladesh, Vietnam, and many small island developing states.''

Here is the southern part of Vietnam, swallowed up by high tide in 2050. That was the projection just a few years ago with the flooding that was going to come into the Vietnam delta area, up here, in Ho Chi Minh City, or Saigon. This is the new projection for 2050--all of it under water, including a good part of Saigon City.

As one of the authors of the report said, ``most sea level rise here between now and 2050 is already baked in.'' Decades more of sea level rise means the fate of many coastal communities here and around the world is already sealed, which may explain the 2013 warning by the commander of our U.S. forces in the Pacific that upheaval related to climate change ``is probably the most likely thing that is going to happen . . . that will cripple the security environment.'' He said:

You have the real potential here in the not-too-distant future of nations displaced by rising sea level. . . . If it goes bad, you could have hundreds of thousands or millions of people displaced and then security will start to crumble pretty quickly.

Well, here it is, as predicted by our Navy in 2013.

Thankfully, countries around the globe are awakening to the problems in our oceans. In 2015, I fought to protect a mention--a mention--of oceans in the Paris climate agreement. This year's original host, Chile, christened the entire upcoming climate meeting a ``Blue COP'' with a blue vision of repairing ocean health.

I attended, as a U.S. congressional delegation of one, this year's international Our Ocean conference in Oslo, where advocates, corporations, and governments from around the world, even the helpless Trump administration, made national and corporate and regional ocean commitments.

Norway leads a panel of 14 nations--14 heads of state and the United Nations Special Envoy for the Ocean, advised by people like our own former NOAA Administrator, Jane Lubchenko. A recent panel report outlined five major ocean initiatives that could reduce 20 percent of global emissions by 2050.

The United Nations also declared the 2020s the ``Decade of Ocean Science for Sustainable Development.'' The world has turned toward action on oceans.

Now, usually, in confronting threats of this magnitude, the United States sets an example of leadership. We are abandoning that tradition. In conversations about climate change and ocean challenges, the United States is, at best, absent. At worst, we are the obstruction. That is a mistake. The United States should not lose its place as an international leader, not if we care about our vaunted role as the indispensable Nation and not if we care about the security and prosperity of our democracy.

It doesn't have to be this way. Other ocean threats have prompted Congress to do what is right. We passed international fisheries treaties and the Port States Measures enforcement law. We did it unanimously here in the Senate, and now satellites are seeking out and tracking pirate fishing ships to bring them to justice.

We passed our first marine plastics legislation unanimously, and a bigger, better marine plastics bill is moving in the Senate right.

Now Senator Murkowski and I are moving the biggest ocean data bill since NOAA was founded through our bipartisan Oceans Caucus.

So, yes, we can do better, and we must.

Henry Kissinger once told me that the great revolutions of the world have come about from what he called a confluence of resentments. Well, the poorest--those who depend most closely on the oceans, those who lead subsistence lives--will suffer most the brunt of the coming crisis, and they will resent it.

Look at fisheries. The poorest starve when their fisheries collapse. Others are distressed when fisheries collapse but have the resources to migrate or find alternative food sources. For wealthy nations, like ours, the fish in our air-conditioned supermarkets may cost a bit more, but our lives aren't seriously affected. But when the poor and distressed are hurt like that, they will resent it. That is human nature, and if you turn the pain up high enough, well, good luck defending to them the systems of parliamentary democracy and market capitalism that countenanced their suffering.

Years ago, Daniel Webster described the work of our Founders as having set the world an example. He went on to say that ``the last hopes of mankind, therefore, rest with us.'' From Jonathan Winthrop to Ronald Reagan, we have called America ``a city on a hill,'' set high for the world to witness. President Clinton argued that ``people . . . have always been more impressed by the power of our example than the example of our power.''

We still tout our system of democracy and capitalism as a beacon of success and progress, but we have aided and abetted the failure of our system to address the climate and oceans crisis. Worst of all is the reason for it--the fossil fuel industry's menacing climate denial apparatus. That apparatus may have won the day influencing Congress for now, but it will surely fail the test of time. History will judge harshly an American generation that let its democracy be corrupted by this industry.

The voice of the oceans is more lasting than the greed and folly of man, and it warns of consequences driven by laws of chemistry, physics, and biology. These stern natural laws cannot be repealed or vetoed. Propaganda can manipulate people, passions, and politics, but propaganda cannot change the immutable laws of nature. The data are the voice of the oceans, and if data could scream, the oceans would now be screaming.

So to paraphrase a poem, let us be the ``voice the sea would have if it had not a better one: as it lifts . . . its rumbling, deep- structured roar.'' Let us wake up and get to our duty.

``Slap Nature,'' Pope Francis said, ``and she will slap you back.'' We have a hell of a slap coming if we don't get ahead of this, and we better wake up to it.

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