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tv   US Senate  CSPAN  February 25, 2016 10:00am-12:01pm EST

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federation senior director of regulatory relations, said a big problem is the wide parameters that the agencies have placed in the waters of the u.s. rule. he noted the rule is filled with vague language like adjacent waters and tributaries which are difficult to clarify as broad as possible, they want the waters of the united states to be as broad as they can get it so it can be applied to every farm in the country. iowa farm bureau federation and other organizations have worked hard to stop the waters of the united states rule, which was imposed last year but has been temporarily suspended by court rulings. the rule was designed to revise
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the definition of what is considered a waters of the united states and is subject to federal regulation under the clean water act. but instead of adding clarity, iowa farm bureau federation and others contend the rule has only added ambiguity, leaving farmers like duarte facing the potential of delays, red tape and steep fines as they complete normal farm operations, such as fertilizing, applying crop-protection chemicals, or moving dirt to build conservation structures. another problem duarte said is that the agencies are piling the waters of the united states law with other laws, such as the
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endangered species act, to dictate how farmers use their own land or to keep them from farming it at all. they aren't just trying to micromanage farmers. they're trying to stop farmers, duarte said. thethey're trying to turn our farmland into habitat preservation. they're simply trying to chase us off of our land. duarte, who operates a successful nursery that raises grape vines and root stocks for nut trees, was first contacted by the corps of engineers in late 2012. in early 2013, the corps sent a cease and desist letter to duarte ordering suspension of farming operations based on alleged violation of the clean water act.
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the corps did not notify the farmer of the allegations prior to issuing the letter or provide duarte any opportunity to comment on the allegations. the agency, duarte said, wrongly accused him of de-ripping the soil and destroying the wetlands in the field. however, he had only had the field chisel-plowed and was careful to avoid the depressions and vernal pools. it's also important to note, duarte said, that plowing is specifically allowed under the clean water act. congress specifically added that provision to keep farmers from having to go through an onerous permitting process for doing fieldwork, he said. deciding to fight -- that's a
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headline. instead of capitulating to the corps, duarte decided to fate -- to fight the case in court. his lawsuit was met by a countersuit from the united states justice department seeking millions of dollars in penalties. the case is expected to go to trial in march -- meaning march, right around the corner. the case, duarte said, has raised some absurd charges by the agencies. at one point, the government experts claimed that the bottom of the plowed furrows were still wetlands but the ridges of the furrow had been converted to upland, he said. in addition -- in another, an owingagency official claimed tht
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duarte had no right to work the land because it had not been continuously planted to wheat. however, he said, the previous owner had stopped planting wheat because the prices were too low. they said it was only exempt if it was part of an ongoing operation, duarte said. there is no law that says farmers have to keep growing crops if there is a glut and prices are in the tank. but by the corps' thinking, if you don't plant wheat when it is unprofitable, you lose your right to ever grow it again. duarte also noted that when federal inspectors came out to his farm, they used a back hoe to dig deep pits in the
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wetlands. if you do that, you can break through the impervious layer and damage the wetlands, but it does not seem to be a problem if you are a government regulator. to date, his family has spent some $900,000 in legal fees. let me say something parenthetically here. if we had to spend $900,000 in legal fees, the grassleys might as well get out of farming. now i want to go back to quoting. so i'm going to start that paragraph over. "to date, his family has spent some $900,000 in legal fees. that is separate from the work by the pacific legal foundation, which represents the clients it takes for free and is supported by foundations.
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it would have been easier and cheaper to comply with the wishes of federal agencies, and given up use of the land. many california farmers who found themselves in a similar situation have done just that, duarte said." another two-word headline: "banding together." "however, it is important to stand and fight the agency's attempts to ban the clawrkt cler act, the endangered species act, and other laws tha for feet fedl lands. it is important for farmers to band together with the farm bureau and other groups that oppose the waters of the united states rules. we are not against the clean
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water act or the endangered species act, as they were intended, duarte said. but this is not how these acts are supposed to be enforced. we are getting entangled in regulation, and the noose seems to get tighter every year." i said that i would comment after i read that. so for people t listen article that ran on the fntm bul farmers wanting to make a living by planting wheat hishe case o ,
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government regulations from the e.p.a. and the corps of engineers are making his miserable with the threats of millions of dollars of fines. as the a stated, regulators at one pointnt triedo claim -- quote -- "the bottom of the plowed furrows were still wetlands, but the ridges of the furrows had been converted to upland." end of quote. now, that's ridiculous. the e.p.a. is out of control. you might remember the fugitive dust rule of a few years ago that i don't think now is -- they're rig to pus trying to pue e.p.a. was going to rule that when you are a he a farming operation, you got to keep the dust down. you know that only god
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determines when the wind blows? and when you're a farmer and your soybeans are 13% moisture, you got about two or three days to save the whole crop, get it harvested. and the farmer doesn't control the wind, the farmer doesn't control when the beans are dry and ready for harvest. and when you combine soy beerntion yo-- and when youcombt and floss way yoand there is nop the dust within your boundaries. you can see what they are doing to duarte doesn't reach a commonsense test. again, referring to the newspaper article i just read, if the e.p.a. and the corps of engineers are going around to the farmers' fields making
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determinations about wetlands based on tillage practices under current law, imagine what they might do with this new waters of the united states rule goes into effect, now being held up by the courts. just think how you would feel if your family farm had survived for decades, overcoming droughts, overcoming flooding, overcoming price declines, and you can name ten other things that a farmer has no control over, and then you have to put up with this nonsense. however, one day a government regulator could show up at your farm and hit you with excessive fines, and the next thing you know, your family farm is being auctioned off. now, this may sound absurd, but
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that is the reality of threats posed by the e.p.a. mr. duarte's case is the proof. we have no shortage of assurances from the e.p.a. administrator that the language in the waters of the united states rule will be not interpreted in a way that interferes with farmers. it's hard to take some assurances seriously when they are interpreting current law in such an aggressive way. so, mr. president, we have to stop the waters of the u.s. rule so that bureaucrats don't become even more powerful. the waters of the u.s. rule is too vague and allows way too much room for regulators to make their own interpretation about jurisdiction. so we should all continue to fight against the waters of the u.s. rule and all other actions the e.p.a. is taking that's ridiculous actions against
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farmers. the -- we have checks and balances of of government. the congress tried three times to stop the waters of the u.s. rule. senator barrasso tried to pass legislation taking away the authority or modifying the authority. that got about 57 votes, but not 60 votes, so that couldn't move forward. my junior senator from iowa, my friend ernst, senator ernst, she got a congressional veto through hehere, aresolution of disapproh 52 votes. it went to the president. he vetoed t so we did an override that way. then of course we tried an amendment on the appropriations bill, but we don't know get that into the ar the appropriations l before christmas. and so we tried three things, but thank god the courts have held up waters of the u.s.
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through the sixth circuit court of appeals. so temporarily at least waters of the u.s. can't move ahead. but this brings back something that's very current right now. why should we be concerned about who the next person on the supreme court is going to be? because we have a president that said, i have a pen and a pencil -- or a pen and a phone, and if congress won't, i will. and this sort of executive action by the e.p.a. and the corps of engineers is kind of an example of the waters of the u.s. rules, kind of an example of what can come out of a president -- and the president has packed the d.c. district -- d.c. circuit court of appeals that reviews these regulation r, so that they're going to have somebody friendly that says that
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whatever these bureaucrats do that may be unconstitutional, they can get away with. and then if that goes to the supreme court, we had an example just recently about a week or so before scalia died, a 5-4 ruling holding up some other ridiculous e.p.a. rules. and everybody wonders why the country around here is saying concern about who's going to be on the supreme court. because of these 5-4 decisions. and it isn't just about who's going to be on the next supreme court. it's the role of the supreme court and our constitutional system. i'll bet the senator from south dakota, in the chair now, i'll bet he has people come to his town meeting like i do and say why don't you impeach those justices, because they're making law instead of interpreting law as the constitution requires? well, you can't impeach for
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that, but it does bring up something very basic. what's the role of the supreme court in our constitutional system? it hasn't been debated in constitutional -- it hasn't been debated in presidential elections for i don't know how long. and there's a chance to get that debated in the presidential elections, and maybe lay out very clearly where hillary clinton's coming from or where our republican nominee, whoever that's going to be, is coming from and what type of people are they going to put on the court. are they going to put on the court people that -- i got about 30 seconds and i'll be done, mr. president. we've got a situation where about, a situation very much
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where this thing ought to be debated and made clear of what that role is and have the mandate from the people of this country in an election make very clear the intent of the constitution going one way to a living constitution or going to strict constructionists and a textual sort of woman or guy on the supreme court. i yield the floor. mr. toomey: mr. president? the presiding officer: the senator from pennsylvania. mr. toomey: i rise to address a huge problem affecting all of our states, all of our communities. it is a bill meant to be helpful
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in this rather. it is about the huge problem we have with opioid abuse, opioid addiction including both prescription and heroin addiction and abuse. this is an epidemic that is, it's really unbelievable in scale. it's aeffecting people of all ages, all ethnic groups, all demographics, all geography. it's everywhere and it's a huge, huge problem. i've heard it in every county that i have visited in my state, in all 67 counties of pennsylvania. i've heard about how big this problem is. in fact, more pennsylvanians will die this year from heroin overdoses and the misuse of opioid painkillers than from the flu or homicides. so i wanted to learn more about this, mr. president, so last fall i convened a hearing of the senate finance subcommittee on health care that i chair.
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senator casey joined me in that hearing out in pittsburgh at the allegheny general hospital where we had this to learn more to understand about the nature and the scale of this huge opioid addiction problem and what we might do about it. i was surprised, mr. president, to get to the room, it was a huge auditorium and it was standing room only. the room was completely packed with people because this epidemic is affecting virtually every family. it affects almost all of us at some level in some way. it's tearing families apart. it's taking the lives of people in the prime of their lives. it's just a huge, huge problem. i will say that the hearing was very helpful in illuminating some aspects of the nature of the problem. we had medical professionals who are dealing with the treatment of people suffering from addiction. we had a recovering addict who has really put her life back together, and she told a very compelling story about what she
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went through. we had people in law enforcement. we got a lot of testimony, different per speck tifers. one of the things -- different per speck tifers. one of the things i took away is there are at least three categories of ways we can help to try to deal with this huge scourge. one is the problem of the overprescription of narcotics. the overprescription of painkillers, opioids which are chemically very, very similar to heroin. a lot of people begin their addiction with these prescriptions and then when they can no longer obtain or afford the prescription opioids, they move on to nonprescription forms like heroin and it usually goes downhill very dramatically from there. reducing overprescription has got to help. there's -- there are ways to deal with that. a second is to reduce the diversion of these opioids when they are being prescribed. my legislation really does focus on that. and then the third, we need better treatment. we need better outreach.
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we need better ways of treating people. we need to treat both the addiction but also many people find themselves addicted after they develop a mental health problem that is an underlying problem that contributes to the addiction. we've got to do a better job of identifying and helping people with these mental health problems. we've got many aspects to this challenge that arises from this terrible epidemic. but let me focus in on one aspect of this, the overprescription and the diversion of prescription narcotics. the government accounting office estimated that in one year alone there were 170,000 medicare enrollees, people who are medicare beneficiaries. 170,000 engaged in doctor shopping. doctor shopping is the process whereby a person goes to multiple doctors and gets
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multiple prescriptions for perhaps the same opioid. maybe it's oxycodone or some kind of prescription painkiller, then goes to the pharmacy and gets them filled and walks out of the pharmacy with these huge powerful, very addictive opioids which they then sell on the black market. it's a very valuable commodity on the black market. the g.a.o. found there was one beneficiary visited 89 different doctors in a single year all for the same kind of prescriptions. there's another beneficiary received prescriptions for 1,289 hydro codone pills. that's a 490-day supply. you're not supposed to get more than a 30-day supply. the inspector general found a midwestern pharmacy that billed over 1,000 prescriptions, billed medicare for reimbursementmentsr
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beneficiary. one ordered all the prescriptions for all those beneficiaries. last april the d.e.a. indicted two doctors in mobile, alabama who were writing prescriptions for massive amounts of pain pills that were filled at the pharmacy next door to their pain clinic that they also owned. the examples go on and on, mr. president. this, these examples that i mentioned, this is fraud. let's be clear that's what this is. this is fraud. these are people who are systematically abusing these programs so that they can obtain commercial-scale quantities of a very valuable narcotic which is also very dangerous and very addictive because it can be lucrative. you know why it's lucrative? in part because the american taxpayer pays for their supply. that's how outrageous this is. these people are getting a
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prescription, getting multiple prescriptions, going to multiple pharmacies and when the prescription is filled at all of these pharmacies these multiple occasions, the bill is submitted to medicare and medicare reimburses. so think about this mplets we have this criminal enterprise where the supply of the narcotics is being paid for by taxpayers, and then the people who have fraudulently obtained these drugs go out and sell them in what i'm sure is a very lucrative arrangement. this is beyond outrageous. now that is a description of the obviously fraudulent. there's another category of people who end up with multiple prescriptions and is completely innocent, and there's another criminal intent whatsoever, no criminal activity. but it's people who, especially elderly people who have multiple illnesses and they have different doctors who treat them. and in many cases there's not a good coordination of the care
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for those patients and there's nobody coordinating what all of the doctors are doing. and so doctors separately, and if it weren't for other doctors are doing, appropriately give a prescription for a powerful narcotic, they don't know that there's another doctor doing the same thing. and this patient unwittingly ends up with an excessive quantity of these opioids that dramatically increases the risk that that patient will become addicted and will suffer any number of very harmful consequences. so we've got both the fraudulent cases of excess prescriptions and then we have the innocent cases. but both are problems. the legislation that i have introduced addresses both problems and it does it -- i'll describe how it does it. first i want to thank the cosponsors, the coauthors of the bill, senator sherrod brown of ohio is the lead democrat on this bill. it is a bipartisan bill, of course. senator portman and senator
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kaine have also been very helpful. they are original cosponsors of the bill, stopping medication abuse and protecting seniors act. we have 25 cosponsors. we had a very constructive hearing last week in the senate finance committee about this legislation, this approach. senator hatch said he hopes the bill would move very soon. i hope the bill will move very soon. it's very, very important. here's what it does. the bill authorizes medicare when it discovers, when medicare discovers a beneficiary is obtaining multiple prescriptions well beyond what any individual should appropriately have. then medicare would have the authority to require that person to get their prescriptions in the future from one doctor and get it filled at one pharmacy. it's called locked in because you're locked into a single doctor, you're locked into a single pharmacy. and that in one step would go a
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very, very long way to making it very, very difficult to commit this kind of fraud or to accidentally obtain more prescriptions than you ought to have. mr. president, this procedure is not a new concept. it already exists in medicaid. it's used every day in medicaid to protect innocent people from excessive prescriptions and to protect taxpayers from fraudulent abuse. it's done by private carriers all the time, private health insurance carriers use this lock-in mechanism when they discover excessive prescriptions being written. and it is designed in a way as these other programs are, the private and medicaid, so that no one who legitimately needs a prescription, because there are legitimate prescriptions for opioids and for narcotics, no one who has a legitimate need will have an access problem. people will still be able to obtain exactly what they need.
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the lock-in applies only to a narrow category of substances, controlled substances, schedule ii controlled substances which is what we think is appropriate. i think this is going to be very helpful. help opioid addicted seniors get the help they need. it's going to stop the diversion of these powerful narcotics. it is going to save the taxpayers much money. c.b.o. estimates $79 million over ten years will be saved by bringing an end to these illegal prescriptions. and it's going to reduce the quantity of these terribly popular drugs on the streets. this legislation has very broad bipartisan support. just last weekend the national governors association came out fully in favor of adding a lock-in provision for medicare. we have nearly identical language passed in a bill in the house. it was as part of the 21st
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century cures legislation. it passed overwhelmingly. the support includes the president of the united states. his budget has repeatedly asked congress to give medicare this authority. the c.m.s. acting administrator recently before our committee said this legislation makes -- quote -- "every sense in the world. " we have the report of the c.d.c. director, white house drug czar, pew charitable trust, many law enforcement groups, senior groups like the medicare rights center. we have a list of just some of the many groups that are supporting this legislation. mr. president, this is really just common sense. we already have this capability in medicaid. we already have this capability in private health insurance. it is long past due that medicare have the ability to protect seniors from accidental excessive prescriptions, but also to prevent people from committing fraud which we know is happening on a very large
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scale today. so i'm not aware actually of any opposition to this. we have broad bipartisan support. and i'm hoping we can get this passed very soon, certainly in the next week or so. and the house will certainly pass this, as it already has, as part of the 21st century cares legislation. and we can get this to the president and get this signed into law and start to help save lives and save taxpayer money at the same time. mr. president, i yield the floor.
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this has become ubiquitous, a lot of us carry them around in our pocket. and yet, here almost three months later, law enforcement has not been able to fully access the iphone, the one used by the terrorists in gunning down these 14 people. information obviously on the iphone could shed some light on how he planned the attack with his wife. it could obviously indicate others that were involved in the attack. and it could indicate other contacts with other terrorists in the united states or abroad who helped him in that attack.
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and yet, three months after these murders the f.b.i. cannot even access the contents of the iphone because of a security feature in the iphone potentially erases its contacts after ten incorrect passwords are put in. would need to develop new software, software it claims that does not exist today, mure in order to disablet feature in the iphone. well, if this security feature were to be disabled by apple, then the f.b.i. could use what it calls "brute force attack," which is a running through in
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milliseconds combinations of numbers to try to assess what is the password combinations in order to gain access to the iphone. but they don't have access, even though the court is involved. in federal court, a federal magistrate judge last week ordered apple to provide a reasonable technical assistance to the f.b.i. in order to provide access to the perpetratorperpetrators' iphone. apple opposes the order, given the concerns that technology developed to intentionally weaken the security features of the iphone could be abused if it's in the wrong hands. in other words, there would not be the privacy concern they
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claim putting smartphone users' data and privacy at risk. it is a legitimate argument, and it also views the federal magistrate judge's order as an example of government overreach. well, the response of the department of justice filed a motion in the district court to compel apple to comply with the magistrate judge's order. and because of the complicated nature of the issues of national security, individual privacy -- which we value, and first amendment questions involved, there's no doubt going to be prolonged litigation that may ultimately have to have the thing decided by the u.s.
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supreme court. well, i certainly understand the risk to americans' privacy as expressed by apple and other technology companies, and i don't want to run the risk of letting the trail go so cold on this terrorist attack and potentially other cases that the trail could go so cold that we lose it. because this is winding itself through months and years in the courts. in other words, we need to know what was behind this attack, a terrorist attack that everybody recognizes was terrorist. we need to know in order to get to the bottom of it and root it
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out and see if there is -- and rooted out and see if there is other terrorists inside the country that are planning to do the same thing, to protect our people and our national security. so there's got to be a way that the f.b.i. can get the information it needs from the terrorist 's iphone in a manner that continues to protect american smartphone users. now, surely, common sense can prevail here. this is why this senator urges apple and the f.b.i. to work together in order to resolve the stalemate. now, let me go back over this again. we've got a dead terrorist that he and his wife have killed 14 americans. we have that dead terrorist's
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iphone. we have a federal judge's order that says we have the right to get that information in order to protect the nation and its people. it's just like if we had this terrorist, dead or alive, and we needed to get an order to invade that person's privacy to get into their home to get evidence to protect the nation from other terrorist attacks. certainly there would be no objection to that. the judge's order would be the protector of that privacy. it's a similar situation, except it's an iphone that's in the possession of the f.b.i. but they can't get the information in it.
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well, what if this terrorist were not an american citizen and this terrorist were illegally in the u.s.? would the same standard apply? i think apple would say "yes." i mean, you can draw up these different scenarios. the bottom line is, we're going to have to protect our people, and so that's why this senator urges apple and the f.b.i. to work together in order to resolve the stalemate, giving the consideration that must be given to the rights of privacy and the protection of privacy in people's iphones. we've always found a way to balance our cherished right to privacy and to our cherished
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right of securing ourselves and our national security. and that's what's needed in this case: the safety and security of our fellow americans depends on it. otherwise when the next terrorist strikes, the 51% of americans that are surveyed today that say they feel like that the government needs access to this information to protect against future attacks -- if the next attack happens and information is on an iphone, that 51% will soar, and it will be very clear that the american people support the protection of our national security. mr. president, i yield the
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floor. mr. grassley: mr. president? the presiding officer: the senator from iowa. mr. grassley: thank you, mr. president. yesterday the minority leader came to the floor to disparage the work of the senate judiciary committee and also disparage the work of the senate as a whole. and of course, as he does from time to time, he launched into a personal attack against me. now, that's okay. i don't intend to return the favor. i love senator reid. i don't want to talk about the nuclear option and the tremendous damage that that did to the senate over the years and years that the democrat senators had to endure their -- endure his leadership without even being aiblg to offebeing able tn amendment. we have the story of one democratic senator who was defeated in the last election. he never got a chance to get a vote on an amendment of his
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during the whole six years he was in the united states senate. we all know that's just how some act when they don't get their way. but childish tantrums aren't appropriate for the senate. i think if my friend, senator biden, had been in the chamber today, he would have said, as you heard him say so many times, that's a bunch of mall alread m. i didn't come to the floor today to talk about the minority leader. i did, however, want to follow up on my remarks from earlier this week on the biden rules. now, in fairness, senator biden didn't just make these rules up out of thin air. his speech back in 1992 went into great historical detail on the history and practice of vacancies in presidential election years sm years. he discussed how the senate has
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handled these vacancies and how presidents have and should handle them. based on that history are and a dose of good common sense, senator biden laid out the rules that govern supreme court vacancies arising during a presidential election year. and, of course, he delivered his remarks when we had divided government, as we have today, in that year 1992. now, the biden rules are very clear. my friend from delaware did a wonderful job of laying out the history and providing many of the very sound reasons for these biden rules, and they boil down simply to two fundamental points. first, the president should exercise restraint and -- quote
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-- "not name a nominee until after the november election is completed" -- end of quote. and as i said on monday, president lincoln is a pretty good role model for this practice. or, stated differently, the president should let the people decide. but, if the president chooses not to follow president lincoln's model but instead, as chairman biden said -- quote -- "goes the way of fillmore and johnson and presses an election-year nomination" -- end of quote -- then the senate shouldn't consider the nomination and shouldn't hold hearings. it doesn't matter -- quote -- "how good a person is nominated by the president" -- end of quote. or, stated plainly, i.t it's the principle, not the person, that matters. now, as i said on monday, vice
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president biden is an honorable man, and he is loyal. those of us who know him well now know that this is very true. so i wasn't surprised on monday evening when he released a relatively short statement defending his remarks and, of course, as you might expect, defending the to press forward a nominee. and under the constitution, the president can do that. like i predicted on monday, vice president biden is a loyal number two. but, the vice president had the difficult task of explaining today why all the arguments he made so cogently in 1992 aren't really his view. it was a tough sell, and vice president biden did his best monday evening. but i must say, i think that
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chairman biden would view vice president biden's comments the same way he'd view the minority leader's comments today. he'd call it like he sees it, as we have so often heard him say, that it's just a bunch of malarkey. here's part of what vice president biden said on monday -- quote -- fairly long quote. "some critics say one excerpt of a speech is evidence that i do not support filling a supreme court vacancy during an election year. this is not an accurate description of my views on the subject. in the same speech critics are pointing to today, i urged the senate and the white house to overcome partisan differences and work together to ensure the court function as the founding fathers intended."
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end of biden quote. well, mr. president, that doesn't sound consistent with all of those biden rules that i shared with my colleagues on monday. so we ask, is it really possible to square chairman biden's 1992 election-year statement with vice president biden's 2016 election-year statement? was chairman biden's 1992 statement really just all about greater cooperation between the senate and the white house when chairman biden said in 1992 that if a vacancy suddenly arises -- quote -- "action on a supreme court nomination must be put off until after the election campaign is over." was he simply calling for more cooperation when he called for
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withholding consent -- quote -- "no matter how good a person is nominated by the president"? was he merely suggesting that the president and the senate work together a little bit more, when he said we shouldn't hold hearings until these circumstances, was that all about cooperation between the branches? well, since we're talking about filling justice scalia's seat, it seems problem to ask, how would he solve this puzzle? i suppose he'd start with the text, so let's begin there. in 1992, chairman biden discussed cooperation between the branches. yes, in fact, he did. so far, so good for vice president biden. but that can't be the end of the matter because that doesn't
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explain the two vastly different interpretations of the same statement. let's look a little more closely at the text. here's what chairman biden said about cooperation between the branches -- quote -- "let me start with the nomination process and how the process might be changed in the next administration, whether it is a democrat or a republican. end of quote. again, emphasize that was during the 1992 election. well, mr. president, we didn't have to search very long to honor -- to unearth textual evidence regarding of meaning of chairman biden's words in 1992. yes, he shared some thoughts about how he believed the president and the senate might work together, but that cooperation was to occur -- quote -- "in the next
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administration." in other words, after the presidential election of 1992, after the senate withheld consent on any nominee -- quote -- "no matter how good a person is nominated by the president." end of quote. so the text is clear. but if you need more evidence that this is an accurate understanding of what the biden rules mean, look no further than a lengthy "washington post" article one week later. in that interview, he made his views quite clear. he said -- quote -- "if someone steps down, i would highly recommend the president not name someone, not send a name up." end of quote. and if the president does send someone up -- quote -- "if the
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president did send someone up, i would ask the senate to seriously consider not having a hearing on that nominee." end of quote. specifically, my friend, chairman biden, said -- quote -- "can you imagine dropping a nominee after the three or four or five decisions that are about to be made by the supreme court into that fight, into that caldron in the middle of a presidential election year?" end of quote. chairman biden went on -- quote -- "i believe there would be no bound of propriety that would be honored by either side, the environment within which such a hearing would be held would be so super charged and so prone to be able to be distorted." end of quote. at the end of the day,
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mr. president, the text of chairman biden's 1992 statement is very clear. so in 2016, when he's serving as a loyal number two to this president, vice president biden is forced to argue that the biden rules secretly mean the exact opposite of what they say. ironically, that's a trick justice scalia taught us all to recognize and to reject on sight. we know that we should look to the clear meaning of his text, as justice scalia taught us. this was not a one-off comment by senator biden. it was a 20,000-word floor speech laying out forcefully a
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difficult and principled decision. it relied on historical precedent. it relied upon respect for democracy. it relied on respect for the integrity of the nomination process. there is no doubt what senator biden meant. mr. president, there is of course a broader point, and i hope that we in the next several months, we concentrate on this broader point, and that is that text matters. justice scalia devoted his adult life to these first principles. do the american people want to elect a president who will nominate a justice in the mold of scalia to replace him? or do they want to elect a
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president clinton or sanders who will nominate a justice who will move the courts in a drastically more liberal decision? do they want a justice who will look to the constitutional text when drilling down on the most difficult constitutional questions? or do they want yet another justice who on those really tough cases bases a decision on what is in the judge's heart, as then-senator obama famously has said. it comes down to this. we've lost one of the great jurists. it's up to the american people to decide whether we preserve his legacy. more importantly, do you follow the text of the constitution?
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do you follow the text of the law? or do you follow what's in the hearts of justices on the supreme court? this is a debate we should have. this is a debate that i hope we will have. this is a debate that i hope will be in three or four national debates between president clinton -- or nominee clinton or nominee sanders on one side and whoever the republicans nominate on the other side. the american people should be involved. and then we should let the american people decide. i yield the floor. mr. durbin: mr. president? the presiding officer: the assistant democratic leader. mr. durbin: mr. president, i want to thank my colleague from iowa. i had hoped to get a chance to speak to him personally about another matter, but i will call him from the floor afterwards.
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we'll get in touch. and i'll just -- now that senator hatch is here, i don't want to delay the proceedings of the senate but i would like an opportunity to respond on this issue that was raised by senator grassley. senator grassley of iowa is my friend. politicians say that sometimes and mean it, say it sometimes and don't mean it. i mean it. we have become friends as neighboring states and sharing a lot of plane rides together, serving on the same committee, serving in the same body for a number of years. and i respect him very much. we have different points of view on many things, but we found common agreement on many other things. so i do respect him and i say that at the outset as i respond to his remarks. what is this about? this is about the passing of justice scalia and whether his seat on the supreme court will be filled. and if it will be filled, who will do it, and when? well, the first place for us to turn when it comes to asking the
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questions is the one document, the only document that matters: the united states constitution. it's this document that we literally all swore to uphold and defend. every one of us, democrat and republican. and it's this document that is explicit, not making a suggestion but really spelling out the responsibilities when it comes to a vacancy on the supreme court. and it's article 2, section 2. article 2, section 2, says that the president shall appoint. shall appoint. and the senate shall give its advice and consent as to that nominee. shall. it is our responsibility under this constitution to do this. it is amazing to me in the history of this republic, guided by this great document, we have
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reached a point in the year 2016 where those simple words, directions in the constitution are being challenged and ignored by the republican majority. because you see, mr. president, there is never, underlying the word "never" been a moment in history when the senate has refused to extend a hearing to a nominee until this moment. there has never been a moment in history -- never, underline that word -- when the senate has refused a vote on a nominee. and, mr. president, i can't say never, but it's been more than 150 years since we have allowed a vacancy on the supreme court to go on for more than a year as the republicans in the senate are determined to do here.
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that 150 years goes back to the civil war. so i'd say to my colleague from iowa, you're about to make history if you stand by this decision. if you decide that the senate judiciary committee will not even entertain a nomination to fill the scalia vacancy on the supreme court, it will be the first time in the history of the united states senate. the first. and if the senate republican leadership makes the decision that even if a nominee is sent they will never allow a vote, it will be the first time in the history of the united states of america. that is why this is such a definitive issue. that is why the position taken by the senate republican majority is so different, so unusual, in some cases so extreme. the arguments being made on the
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other side -- listen to this argument. the argument is being made, well, we're in a campaign year. this is a presidential election year. who knows who the next president will be. let the american people choose that president and that president choose the nominee. it overlooks one basic fact. three years and three months ago the american people chose a president. by a margin of five million votes, barack obama defeated mitt romney for president of the united states. they made their selection. did they elect president obama for three years? a three-year term? let me check the constitution, but i think it was a four-year term. was it three years and three months? no. it turns out the american people spoke in our democracy by a margin of five million votes and said barack obama, you will be president of the united states
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until january 20, 2017. was there a rider? was there some exclusion that says but you can't appoint a nominee, name a nominee to fill a vacancy on the supreme court in the last year of your presidency? i don't remember that. perhaps that was the case in some states. not in illinois. and to be honest, in no other state. the president was elected for four years. he was given the consent and authority of the american people to govern this nation for four years and to fill the vacancies on the supreme court as he is directed to do by the united states constitution. now the senate republicans have come up with a different spin. no, he may have been elected but from their point of view, he wasn't given the full power of
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office. barack obama was given something less than any other previous president of the united states. he was not given the authority to fill a vacancy on the supreme court in the last year of his term. i'd like to find the constitutional precedent for that, and i invite my colleaguee floor here who both -- one is the current chairman of the senate committee. one is a former chairman. i would invite them show me that historical precedence that says barack obama, president of the united states, really only has the authority of office for three years, three years and two months. and beyond that, he's a lame-duck president. give me the authority for that. so what do they hang their hat on? they hang their hat on a speech made by vice president biden when he served in this body 25 years ago. 25 years ago. joe biden is truly my friend as
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he is the friend of i think virtually every senator on both sides of the aisle. i respect him so much. i wasn't surprised at all when i heard the senator from iowa say that he gave a 20,000-word speech. he gave a lot of 20,000-word speeches. i saw him deliver a few of them here, and they were a sight to behold. this one i think went on for 90 minutes, as then-senator biden shared his views on filling judicial vacancies and on recommendations. if you listen closely, the senator from iowa said that vice president biden recommended, should consider. well, let me ask you this question. was there ever any time when senator biden was the chairman of the senate judiciary committee that he denied a hearing to a supreme court nominee? no. was there ever a time as chairman of the senate judiciary committee when he recommended to the senate that they deny a vote
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on a presidential nomination to fill a supreme court vacancy? no. so whatever his theory was expressed on the floor of the senate -- and we all expressed a lot of theories -- joe biden was respectful of this document. he knew what the united states constitution said. i find it hard to imagine that the republican senators now in the majority are going to walk away from this constitution, turn their backs on it. i have a lengthy statement which i will with consent include after my remarks here which goes into the question of why the republican majority continues to obstruct the appointment of judges and people who serve in the executive branch of the government of this president.
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it has been unprecedented. they decided not just on this nominee but long ago that they would not give this president the same treatment, the same respect this has been given other presidents. and now it has been brought front and center with this vacancy, the scalia vacancy on the supreme court. i sure disagreed with justice scalia on a lot of things, but i do not argue with judge posner of the seventh circuit in my state when he said that justice scalia was a major force in terms of thinking on the supreme court, in what really undergirded the philosophy of justice scalia was what he called originalism. some people mocked it, and some people just flat-out disagreed with it, but he said time and again read the constitution and read the precise wording of the
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constitution. i saw different things in those words than he did, but that was his north star when it came to supreme court decisions. well, if he read article 2, section 2, which says the president shall appoint, if he read article 2, section 2 which said the senate shall advise and consent on that nominee, there is little doubt, no doubt in those words. and if he relied on the precedent of the united states, the history of the united states that the united states senate has never denied a hearing to a presidential nominee until this moment in history, has never refused a vote on a nominee until this moment in history, then he realized that what's being done here is unprecedented and uncalled for.
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if my republican colleagues now in the majority 54 votes strong against 46 on the democratic side really disagree with the president's choice, his nominee, whoever it may be, they have an option. there is a constitutional option. the constitutional option is hold a hearing, do the background check which is done and then vote, and thank you disapprove of that nominee, vote no. that is the regular order in the regular course of events. that is the constitutional way to approach this. but they've gone even further. senator mcconnell said two days ago he would not only give the president's nominee no marrying and no vote, he refuses to even meet with that person, whoever it may be. that is the lengths they will go
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to to avoid facing the constitutional responsibility that every senator has. you can quote joe biden -- vice president joe biden's speeches of 25 years ago as long as you want. you can read his words over and over again. the fact is he never stopped a hearing, he never stopped a vote, and he honored the constitution. the wording of the constitution didn't go on for 20,000 words. just a handful. a handful that we've sworn to uphold and defend before we can become united states senators. history will not look kindly on this political decision by the republican majority. history will not give them a pass. history will ask time and again how could you ignore the constitution? how could you ignore the responsibility under the
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constitution? why won't you do your job? a job you were elected to do, to fill this vacancy. is a temporary political victory worth this, to turn your back on the constitution and the history of this country? i don't think it is. i hope that when the republican senators go home and meet with their constituents over this weekend and in the days ahead they will have second thoughts. when the president sends a nominee, i hope they will abide by the constitution, be respectful of this document and respectful of this president and give his nominee the same due consideration that has been given to nominees throughout history. justice anthony kennedy became a justice on the supreme court when a democratic controlled senate gave him a vote -- a hearing and a vote in a
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presidential year much like this one. a lame-duck outgoing president appointed justice kennedy. a democratic senate did not refuse to meet with him, did not refuse to have a hearing, did not refuse to have a vote but said we will abide by the constitution. for this outgoing president, he has the full authority of office. president barack obama deserves nothing less, and we as senators have a responsibility under this constitution, regardless of what speech was made 25 years ago to pay close attention to these words and to do our constitutional duty. mr. president, i yield the floor. the presiding officer: the senator from utah. mr. hatch: madam president, i have been very concerned about the tenor of the debate. apparently, some read the constitution differently from
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others. yes, the president has an absolute right to nominate. we have an absolute right to consider that nomination and give advice on it. now, just for the record, there are 160 -- approximately 160 justices nominated over the years. ars. 36 them were nominated and for some reason never got a vote in a number of cases. there is a lot of precedent here that you can ignore. one precedent we should not ignore is i am upset, and my dear friend, the majority leader yesterday, slandered my other dear friend, the chairman of the judiciary committee,
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senator grassley, by calling him inept as a committee chairman. there is no reason for that kind of language on the floor, even if it was true, which it was not, and i think the majority leader knows it's not true. senator grassley is one of the most effective, hardworking, decent senators in the united states senate. he's not an attorney, and yet he has run the judiciary committee as well as any chairman that i recall in my 40 years here. and everybody knows he's -- he treats people fairly. so i hope we can get rid of that kind of language and start treating people with decency and with regard. we differ widely with the democrats on this issue and on other issues, but we're not slandering them.
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i would stand up if a republican did this. it just shouldn't happen. on tuesday, i rose to honor the memory of the late justice antonin scalia. i know him well. with his passing, the nation lost one of its greatest supreme court justices ever to have served, and i lost a dear friend. today i rise to make the case that the next president should choose the nominee to replace justice antonin scalia. as we embark on this debate, our first task should be to situate properly the senate's role in seating members of the judiciary as well as the reasons for the role. in doing so, let me invoke an approach that justice scalia himself employed to make the same point. in addressing audiences, the late justice often asked what part of our constitution was most important in protecting the liberties of the people. invariably, audiences would provide answers such as
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protections for the freedom of speech, freedom of religion, the right to keep and bear arms, the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and the like. justice scalia, like the vast majority of americans, agreed that these protections are obviously important. nevertheless, he always made one crucial observation -- even the most repressive dictatorships such as the soviet union and north korea, typically have provisions akin to our bill of rights in their constitutions. simply enshrining these basic rights in constitutional text does not ensure their protection. madam president, i ask unanimous consent that i be permitted to complete my remarks. the presiding officer: without objection. mr. hatch: our nation's founders knew in the sage words of james madison in federalist 47 that the accumulation of all powers, legislative, executive and judiciary in the same hands may
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justly be pronounced the very deaf initial of -- they bestowed upon us the blessing of the constitution that creates a federal government of enumerated and limited powers with those powers ee fused and balanced between three co-equal branches of government. the federal judiciary occupies a unique station in this constitutional architecture. in deciding cases and controversies, it is in the seminal words of marbury versus madison emphatically the province and the duty of the judicial department to say what the law is. not elected and armed with life tenure and salary protection, judges thereby have the power to hold the political branches to account. this power is the source of much of the constitution's great brilliance in its ability to restrain transient political majorities from exceeding the authority granted to government by the sovereign people. however, it is also the source
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of one of the great potential pitfalls of our system of government in which five lawyers can substitute their personal policy, their personal policy preferences for the legitimate judgments of the executive and legislative branches. thereby usurping the powers of the self-governing people. this tension between the stark necessity for judicial independence to preserve limited government under the constitution and the dangers of an unaccountable judiciary shirking its duty to say what the law is and instead saying what it thinks the law should be makes the judicial it's the means by which we can maintain the big great of the judicial branch. the appointments clause delineates these distinct roles for the president and the senate in the appointment process. article 2, section 2 provides
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that the president shall nominate and by and with the advice and consent of the senate shall appoint judges ch the supreme court and all other officers of the united states by creating two separate roles in the confirmation process, the executive branch to nominate and the legislative branch to provide its advice and consent, the framers were creating rival interests. alexander hamilton explained the various rationales for this particular allocation of appointment powers in federalist number 76. following from the example of the massachusetts constitution, the framers vested the responsibility for nominations in one officer, the president, to ensure accountability and impartiality in selecting nominees and to guard against corruption. to guard against impropriety, to guard against inprudence that characterize the appointment process in many of the states.
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by concentrating the power of nomination in one person, the framers sought to create accountability or in hamilton's words, a -- quote -- "livelier sense of duty and more exact regard to reputation. " that said the framers expressly rejected the notion of vesting an unchecked appointment power in the president alone. by regarding the president to submit his nominee for the senate's approval, the founders sought to forestall any potential abuse ever the nomination power. hamilton argued that the requirement of advice and consent would serve as -- quote -- "an excellent check upon a spirit of favoritism in the president and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment or from the view to popularity." although the practice of the early republic confirmed
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washington's interpretation that the chief executive enjoys authority over nominations, history also shows that the senate equally possesses the plehn father authority to reject or confirm the nominee for any reason, nothing in the text of the appointments claw appears to limit the kind of -- clause appears to limit the kind of considerations the senate can take up. like the president's unfettered right to veto legislation, the senate enjoys complete and final discretion in whether to approve or even consider a nomination. madam president, my colleagues on the other side of the aisle have taken up the man that that we must do our job with respect to the current vacancy and so we must but our job despite what the democrats are saying is not to follow a particular path found nowhere in the constitution. rather, it is to determine the most appropriate way to fulfill our advice and consent role for
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this particular vacancy. the senate would not be doing its job if we followed a process that is not appropriate for the situation before us today. indeed, with holding come sent can be just as valid an exercise of our role as granting it. and deferring the confirmation process for a particular vacancy may be the most appropriate and responsible exercise of vice and consent -- advice and consent. it all depends on the circumstances. madam president, consider these precedents. the senate has never, never confirmed a nominee to the supreme court vacancy that opened up this late in a term limited president's time in office. it is only the third vacancy in nearly a century to occur after the american people had already started voting in a press defense election -- presidential election and in both the previous two instances, in 1956
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and 1968, the senate did not confirm the nominee until the following year. in other words, after the election had occurred. that's precedent. it has been more than three-quarters of a century since the supreme court justice has been nominated and confirmed in a presidential election year. and the only time the senate has ever confirmed a nominee to fill a supreme court vacancy created after voting began in a presidential election year was in 1916. and that vacancy arose only because charles -- justice -- chief justice charles evans hughs resigned his seat on the court to run against incup incumbent president wood degree wilson. the cautiousness with which senators in times past have approached election year vacancies are only amplified by present circumstances. as my colleagues in the minority
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are fond are saying, elections have consequences and the election 200014 has certainly -- 2014 has certainly had tremendous consequences. its unilateral cancellation of dually enacted law such as with illegal immigration. its regulation contrary to the plain text of the law such as with the clean power plant. it's willingness to ignore its statutory obligations without meaningful justification, such as with the president's decision to release the top five taliban leaders in u.s. custody without notifying congress beforehand as required by federal law. its efforts to stretch what lawful authorities the executive branch does possess beyond all recognition, such as with its mass clemency effort for drug
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offenders. and its attempt to bypass the senate's role in the confirmation process, one of nearly two dozen times that the obama administration has lost 9-0 before the supreme court. the american people elected our republican senate majority in large part to check the overreach of president obama and given how crucial the courts have proven in holding this administration accountable to the constitution and the law, the senate has every reason to approach lifetime appointments cautiously and deliberately, especially appointments to the highest court in the land. moreover, leaving justice scalia's seat open till after the election would hardly result in a constitutional crisis. in absence of this link would be far from precedented as the court has adapted to vacancies that lasted for more than two years over its history. and as recently as 1970, accommodated a vacancy of more
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than a year thanks to liberal obstruction of two candidates nominated by a republican president. what right do they have to be self-righteous on these matters? famously when justice robert jackson took a year long leave of absence to serve as chief prosecutor at the newerrenburg tribunal, justice frankfurter wrote to him and advised him that having a temporary eight-member court as a result of his prolonged absence did not sacrifice a single interest of importance, unquote. naturally we'd all prefer the court to be full. but it's not unusual to have an 8-8 court that does its job and does it well. moreover, the recusal process oftentimes requires the court to consider various cases, including recent high profile cases, such as a vs. the united
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states -- arizona vs. the united states in 20e 12 with a reduced number of justices. and even -- an even number of justices never inhibits the supreme court from functioning. consider the justice kagan due to our service to solicitor general has had to reciewls herself in 38 cases. in these situations the court has well established rules for dealing with its cases including 4-4 splits. in the unlikely event that a tie should occur as has occurred in only two of 38 of justice kagan's recusals, the ruling of the lower court is simply upheld. indeed, the vast majority of the supreme court's decisions are unanimous. nearly so are split along nonideological lines. only a relatively small minority of cases, typically 20% are decided 5-4 and even fewer divide along predictable
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ideological lines. and at its discretion, the court has the authority to hold cases over or reargue them when a new justice is confirmed. put simply, the absence of one of the nine justices on the court is far from calamitous but a hastily made lifetime appointment could be. madam president, in the particular circumstances we face today, counsel in favor of waiting till after the election, why would we act otherwise simply because the other party tells us to do so. the minority leader made this same point in 2005 when he rejected the claim that the senate must always give nominees an up-or-down vote. he said the very idea would be in his own words, rewriting the constitution and reinventing reality. he said, let's refer to this chart right here. the duties of the united states are set forth in the
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constitution of the united states. nowhere in that document does it say that the senate has the duty to give presidential nominees a vote. it says that appointments shall be made with the advice and consent of the senate. that's very different than saying that every nominee receives a vote. now that's our minority leader. yesterday i was stun toed hear numerous democrats contradict the minority leader on this point. the minority whip, for example, said that the, quote, clear language of the constitution, unquote, requires an up or down confirmation vote. that claim is obviously wrong on its face. since the constitution says no such thing. by the minority leader's 2005 standard, these democrats today
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are rewriting the constitution and reinventing reality. perhaps they received different sets of talking points. this claim by the minority whip and others that the constitution requires an up or down confirmation vote is baffling for another reason. between 2003 and 2007, the minority whip voted 25 times to filibuster republican judicial nominees. in other words, he voted 25 times to deprive judicial nominees of an up or down confirmation vote that he now says the constitution's clear language requires. come on, you can't have it both ways. many of my colleagues on the other side of the aisle have also repealed the observed that deferring the confirmation process till the next president takes office would be unprecedented. now, this point escapes me as well. the filibuster is used to defeat republican judicial nominees also unprecedented yet many democrats voted for them anyway.
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the proper question is not whether this has happened before but whether or not it's the appropriate step to take now. madam president, the senate's job is to decide how best to carry out its duty of advice and consent in the situation before us. thankfully we are not without guidance in making that judgment. i think back to 1992, a presidential election year, not unlike this one, in which different parties controlled the white house and the senate. judicial committee chairman joe biden, now vice president, friend of mine, came to this very floor on june 25, 1992, and delivered what he said was the longest speech in his then 19 years in this body. he evaluated the state of the confirmation process suggested reforms for the future, and made a specific recommendation. he said that if a supreme court vacancy occurred in that
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presidential election year, president george h.w. bush -- quote -- should consider following the practice of a majority ever his predecessors and not -- and not name a nominee until after the november election is completed, unquote. if the president did choose a supreme court nominee, chairman biden said -- -- quote -- "the senate judiciary committee should seriously consider not scheduling confirmation hearings on the nomination till after the political campaign season is over -- unquote. i'm sure vice president biden might feel differently about that today but that's what he said then as chairman of the committee. in other words, deferring the confirmation process until the next president was in office was the most appropriate way for the senate to fulfill its advice and consent role. then chairman biden listed several factors that led him to this recommendation and everyone of these factors exists today.
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first he noted an appointment process in 1992 would take place in divided government. different parties also controlled the white house and senate today. second, he said the president had recently made controversial supreme court appointments, noting that those nominees received a significant number of negative votes in the senate. again, the same is true today. president obama's appointments of sonia sotomayor and elena kagan, for example, are both among the top five most-opposed supreme court nominees in history -- or should i say appointees in history. third, then-chairman biden noted that the presidential election process had already begun. once again, that is the case stayed. in fact, we've had a lot of votes. that's the case today with voters in numerous states having already cast ballots. and other states going to cast
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ballots probably before the nomination occurs. fourth, chairman biden said that the confirmation process itself had become increasingly divisive. this criterion strikes me as ironic given its source. after all, senate democrats are responsible for provoking the so-called confirmation wars with the political and ideological inquisition used to defeat the supreme court nomination of robert bork and the despicable smear tactics used against the nomination of clarence thomas. by the way, i remember when miguel estrada was nominated by a republican president, and they did everything in their power to stop him from even being on the district of columbia circuit court of appeals, or circuit court of appeals for the district of columbia. there was one reason they did that, because he would have beee circuit court of appeals for the district of columbia is a
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steppingstone and has been a steppingstone to the supreme court. they didn't want the first hispanic in the history of this country to be on the court nominated by republicans. miguel is one of the greatest attorneys in this country, and yet that's what happened. it's hard to believe with the crying and moaning and groaning i'm getting from the other side when you look at some of these facts. let's go all the way back to roosevelt. roosevelt tried to pack the court. he was a democrat. in these instances i'm showing here, they're all part of being democrats. senate democrats have also been responsible for every major escalation in judicial confirmation since 1992. within two weeks of president george w. bush's nawx, the senate democratic leader vowed
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to use -- quote -- "whatever means necessary -- unquote -- to defeat undesirable judicial nominees. a few months later, senate democrats organized a retreat with the goal, as "the new york times" described it, of changing the ground rules for the confirmation process. in january, 2002, former democratic congressman, appeals court judge and white house counsel abner mikfa urged senate democrats not to consider any supreme court nominees during president bush's first term. he went on to be on the circuit court of appeals. in 2003, democrats began for the first time to use the filibuster to defeat judicial nominees who otherwise would have been confirmed, and in july, 2007, senator charlie schumer, a friend of mine, said in a speech
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to the american constitution society that the senate should not confirm a supreme court nominee during president bush's final 18 months in office, except in what he called extraordinary circumstances. when chairman biden said in 1992 that the state of the confirmation process should defer consideration of any supreme court nominee, no judicial nominee had been defeated by a filibuster in nearly 25 years. during president george w. bush's tenure alone, democrats led 20 filibusters that ultimately defeated five appeals court nominees. think about that. and more to the point, in 2006, senators biden, clinton, reed, leahy, sherman and obama voted to filibuster the supreme court nomination of samuel alito who was sitting on the third circuit court of appeals at the time. president obama did say last
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week that he now regrets voting to filibuster the alito nomination, although it is unclear why it took him 3,670 days to reach that conclusion. now, he told me that last night in the white house in a private conversation we had, and i accept his statement. i like the president personally. the reason i'm bringing this up is there is no -- there is no reason for the other side's screaming and shouting on this. and finally, after the d.c. circuit court of appeals, a court that many of us considered nearly as important as the supreme court, rightfully invalidated several key actions of the obama administration, democrats openly sought to fill that court with compliant judges in order to obtain more favorable decisions. the president's allies in this body in their own words -- quote -- focus very intently on the
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d.c. circuit -- unquote -- to -- quote -- switch the majority -- unquote -- who are willing to -- quote -- fill up the d.c. circuit one way or another, unquote. they broke the rules to change the rules so they can pack this very important court where most of the regulatory matters are decided. most of the administrative law matters are decided. like i say, one of the most important courts in the country. in the rush to eliminate any possible judicial obstacle to the administration's overreaching agenda, senate democrats in 2013 used a parliament maneuver. the so-called nuclear option to abolish the very nomination filibusters that they had used so aggressively but with one telling exception -- they left alone the possibility of filibustering a supreme court nomination. having done so, they must continue to believe that the senate's advice and consent rule allows denying any confirmation vote to a supreme court nominee. i'm disappointed and frankly a
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little baf ld at the response so far of my democratic colleagues. now vice president biden and president obama himself are both sad that he was speaking in 1992 about a -- quote -- hypothetical vacancy, unquote. of course he was. and his purpose in doing so is to out line what the president and senate should do if that hypothetical vacancy materialized. well, that vacancy is no longer hypothetical. it is very real. yet the vice president now says that the senate should not take his advice after all. vice president biden has also said that his words from 1992 are being taken out of context. we have all faced the inconvenient truth of our past words, and especially in these areas, and then -- and the go-to objection is often about context. i have two suggestions. first, my colleagues should read chairman biden's speech for themselves. it takes up ten full pages in the "congressional record," so
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there is as much context as anyone could possibly want to consider. a second option is to consider how the media have described that speech. one cbs news story, for example, has the headline "joe biden once took g.o.p.'s position on supreme court vacancy." perhaps they, too, are contextually challenged. here is what "the washington post" said about the speech. let me refer to the chart here. "biden's remarks were especially pointed, voluminous and relevant to the current situation. embedded in the roughly 20,000 words he delivered on the senate floor were rebuttals to virtually every point democrats have brought forth in the past week to argue for the consideration of obama's nominee."
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well, the constant refrain of senate democrats and their media allies over the past few days is that the senate should just -- quote -- do its job, unquote. of course what they really mean is that the senate should do what they want the senate to do. then-chairman biden believed in 1992 that the senate would be doing its job by deferring the confirmation process for a supreme court nominee. senate democrats presumably believe that the senate was doing its job by denying confirmation votes to judicial nominees under president george w. bush. the minority leader presumably believes that the senate would be doing its job by not voting on nominations since, as he said in 2005, the constitution is not required to do so. i can the senior senator from new york believes that the senate would
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be doing its job if it followed his 2007 recommendation and refused to consider supreme court nominees in a president's final 18 months. perhaps the most audacious claim trafficked by the other side of the aisle over the past few days is, as the senior senator from new york has said -- quote -- "it doesn't matter what anybody said in the past." unquote. or as president obama put it, quote, senators say stuff all the time, unquote. i agree with both of those statements. in response, consider this point. benjamin franklin wrote in 1789 that -- quote -- in this world, nothing can be said to be certain except death and taxes, unquote. i'd like to add one more thing to that list. it is equally certain that if a supreme court justice beloved by the left passed away in the final year of president -- of a republican president's tenure, a democratic-controlled senate would not only refuse to consider any nominee of the
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lame-duck president but would extensively cite chairman biden's 1992 speech and other such clear statements for support. yeah, if this was reversed, you can imagine what the other side would be saying. my personal approach is i think we ought to get out of this terrible atmosphere and get out of it next year and whoever is president has that obligation to nominate. indeed, my friends on the other side seem to have fallen into a trap identified by justice scalia and his opinion in the noel canning case in which he warned that -- quote -- individual senators may have little interest in opposing presidential encroachment on legislative prerogatives, especially when the encroacher is the president who is the leader of his own party, unquote. now, before i conclude, i cannot let pass the disturbing comments yesterday by our minority leader, a friend of mine, i care for him a great deal, about
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judiciary chairman chuck grassley. i have served with senator grassley for nearly 25 years on the finance committee, and for 35 years on the judiciary committee. if there is anybody in this body who knows his own mind and makes his own decisions, it is chuck grassley. i was flabbergasted by the minority leader's statement that chairman grassley has allowed the majority leader to -- quote -- run roughshod -- unquote -- over him. if the minority leader's case for committee action depends on grasping at such unwarranted and unjustified personal attacks, then the minority leader exposes the weakness of his own position. under chairman grassley's leadership, the judiciary committee has reported 21 bipartisan bills, five of them have become law, the same number as during the entire 113th congress under democratic
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leadership. this record contrasts quite favorably to the senior senator from nevada's abysmal record in the last congress as majority leader in which the senate set a record for bills that bypass the committee consideration and voted on only 15 amendments in all of 2014. i know that there are different opinions about whether or not -- about whether or how to address filling a vacancy left by justice scalia's death, and i appreciate that. and i appreciate that senators and others feel strongly about these issues. nevertheless, it is absolutely disingenuous for the minority leader, who today demands the same up-or-down vote that he has 25 times tried to prevent for republican nominees, to suggest that chairman grassley is doing anything other than what he believes is right. grassley is one of the great senators here. he's totally honest. we all know it. and he speaks his mind. and we all know that, too. madam president, i've served longer on the judiciary committee than any other current
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member of this body. except for senator leahy. during these past four decades, including during my more than eight years as chairman of the committee, i have strived to develop a record of true fairness toward the nominations made by presidents of each party. i have absolutely no doubt that the treatment of this vacancy fits squarely within this record of fairness. the bottom line here is simple -- the constitution obliges the senate to take its role seriously as a check on the president in the consideration of lifetime appointments to the federal courts, especially the supreme court. with voting already under way to replace our lame-duck president, delaying consideration of a nomination until after the election comports not only with historical practice but also the prescription of key democrats in the senate on the white house over many years. by protecting the integrity of
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the supreme court in this environment, senate republicans are unquestionably doing the job the constitution charges us to do. we can have differences, no question about it, but the senate republicans are acting responsibly. madam president, i yield the floor. the presiding officer: the senator from washington. mrs. murray: thank you, madam president. madam president, next week, actually the supreme court is going to hear oral arguments in whole woman's health versus hellerstad. this is a case that could not mean more to a woman's ability to exercise her constitutionally protected health care rights. as this case moves forward, i will take a few minutes here today to explain how much is at stake and why it is so critical that texas extreme antiabortion law be treated as exactly what it is. unconstitutional. madam president, texas and across the country extreme
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right-wing conservatives continue to try to turn back the clock on american women. just yesterday the fifth circuit allowed a louisiana law to go into effect that would leave women with only one health center where they can exercise their reproductive rights. this debate is frustrating and it's disappointing. and frankly, it is appalling that in the 21st century, 43 years since the historic ruling in roe vs. wade, we even have to have a discussion about whether a woman has the right to make her own decisions about her own body. but one thing that has always kept me going is seeing that when their health and their rights and their opportunities are at stake, women stand up and make it clear why reproductive freedom is so important. as we have fought back against texas' extreme antiabortion law, women have exmarriaged that -- explained that because they were
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able to plan when they had children, they were able to escape abusive relationships. they have told us that because they had control over their own bodies, they were able to break cycles of poverty, generations long and give back to their communities. they have shared their experiences making the extraordinarily difficult decision to end a pregnancy out of medical necessity. these are powerful stories about the difference self-determination makes for women and these stories are possible because of constitutional rights affirmed in roe vs. wade and protected in planned parenthood vs. casey. but if texas' extreme antiabortion law stands, three-quarters of clinics in the state are expected to shut down. three-quarters of them. and as a result, 900,000 women of child bearing age in texas
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will have to drive as far as 300 miles round trip just to get the care they need. and women in states with laws like texas will face similar barriers. and i believe strongly a right means nothing without the ability to exercise that right. and laws like texas or louisiana's which are driven by extreme conservative efforts to undermine women's access to care are without question getting in between a woman and their constitutional right, especially the rights of women who cannot afford to take off of work and drive hundreds of miles when they need health care. put simply, texas extreme antiabortion law and laws like it across the country threaten women's lives. these laws are intended to take women back to the days of before roe vs. wade when women had less control over their bodies and their futures. as a mother and as a grandmother and as a united states senator,
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i know that is absolutely the wrong direction for our country. our daughters and our granddaughters should have more opportunity and stronger rights, not less. that's why 163 democratic and independent members of the house and senate urge the supreme court to stand up for women's constitutionally protected health care rights and it's the reason that even some of our republican colleagues are focused on doing everything they can to undermine the supreme court. i and my democratic colleagues are focused on how much the court's decision in this case will mean for women now and for generations to come. so instead of trying to obstruct justice, we are urging the supreme court to ensure justice by upholding settled law. no women being able to exercise their constitutionally protected reproductive rights means health, it means freedom and it
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means opportunity. and we cannot and we should not go backwards. thank you and i yield the floor. a senator: madam president? the presiding officer: the senator from maryland. a senator: i rise today to recognize children's dental health month. this month since 1981 has afforded us the opportunity to acknowledge the importance of children's dental health, recognize the significant strides we have made and the work that remains to be done and renew our commitment to ensuring all children in our country have access to affordable and comprehensive dental services. mr. cardin: to echo former u.s. surgeon general c. everett coop, there is no health without world health. despite being largely preventible, tooth decay is the single most common chronic health condition among children and adolescence in the united states. it's five times more common than
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asthma and 20 times more common than diabetes. nearly half, 44% of the children in the united states will have at least one cavity by the time this he start kindergarten. children with cavities in their primary or baby teeth are three times more likely to develop cavities in their permanent adult teeth. and the early loss of baby teeth can make it harder for permanent teeth to grow in properly. left untreated, tooth decay cannot only destroy a child's teeth but also can be can he bill at a timing -- debilitating impact on his or her health and quality of life. tooth and gum pain can impede a child's healthy development, including the ability to learn, play, and eat nutritious foods. recent studies have shown that children with poor oral health are three times more likely to miss school due to dental pain and children with doot decay are four times more likely to have a
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lower grade point average than their peers without dental pay. tooth decay and oral health problems also disproportion fatly affect children from low-income families and minority communities. according to the national institutes of health, approximately 80% of childhood dental disease is concentrated in 25% of the population. these children and families often face inordinately high barriers to receiving essential oral health care and simply put, the consequences can be devastating. madam president, many have heard me ste before about the tragic loss of demonte driver, a 12-year-old prince george's county resident. in 2007 his death was particularly heartbreaking because it was entirely preventible. what started out as a toothache turned into a severe brain infection that could have been prevented by an $80 extraction. after multiple surgeries and a
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lengthy hospital stay, sadly demonte passed away. nine years ago today. we marked the ninth anniversary of his tragic death. since the tragic death of demonte in 2007 we have made significant process in providing dental care in the country. congress reauthorized the children's health insurance program with an important addition. a guaranteed pediatric dental benefit. today chip provides affordable comprehensive health coverage including dental coverage to more than 8 million children. thanks to chip, we now have the highest number in the history of children with medical and dental coverage. in addition, in 2010 congress included pediatric dental services and health benefits established under the affordable care act. i'm very proud that my state of maryland has been recognized as a national leader in pediatric
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dental health coverage. in 2011, pew center report the state of children's dental health, maryland earned an a and was the only state to meet seven ever the eight policy benchmarks for addressing children's dental health needs. in addition in the maryland health benefit exchange, every qualified health plan now includes pediatric dental coverage so families do not have to pay a separate premium for dental coverage for their children and do not have a separate deductible or out of pocket limit for pediatric dental services. however, madam president, more work remains to be done. for example, according to the recent report by the department of health and human services office of inspector general, three out of four children covered by medicaid did not receive all required dental services over a recent two-year period with one in every four failing to see a dentist at all. this is simply unacceptable. and we must act to ensure that
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all american children have access to comprehensive oral health care. i urge my colleagues to join me in this effort. tragically our health care system was not there for deamonte. today on the ninth anniversary of his death, let us honor his memory and pledge to do better for the children in our country. by working together to build on the significant strides we have made over the past nine years and to ensure all children have access to affordable and comprehensive pediatric dental services. madam president, i yield the floor. a senator: madam president. the presiding officer: the majority whip. a senator: madam president, not with strange our occasional
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dustups in the senate and disagreements that we have and that's not a bad thing, this is what the senate is supposed to be for where the differences of opinion, the different points of view are debated, voted on and play out here on the floor of the senate. mr. cornyn: in an attempt to try to achieve consensus on a bipartisan basis and help make legislative progress for the american people. and i have to say since 2015 under new leadership this chamber has been marked by a spirit of hard work, bipartisanship and accomplishment. sure, we've been frustrated by the things we can't accomplish because frankly there's no consensus but that shouldn't deter us from trying to work together where we can to make progress for the american people. so i'm frankly proud of what the senate has done again on a bipartisan basis. i think one of the greatest
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frustrations under the previous leadership was that even if you're a member of the majority party, you couldn't even get amendments on legislation and you couldn't get votes on those amendments. so you were basically shut out of the process, not just if you were in the minority but including when you were in the majority. that's a little hard to explain back home to your constituents and indeed i think that's one reason why we saw some races turn around the way they did in 2014, races for the senate. but the truth is that under new leadership, we have proven that we can work together on the issues that matter most to the people of our country. that's not to say there won't be some partisan differences. there's a reason why people choose to be republicans and democrats. my experience has been that most
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of the time we agree on the goal with you not -- goal but not on the means to achieve that goal. but while bipartisanship is important, leadership really, really does matter and i think we've seen what a difference it can make in the 114th congress since the last election in 2014. just a couple of examples i'll mention. one is the first major overhaul to education reform since no child left -- no child left behind. we also passed a major long-term transportation bill. i know it seems like a small thing, an isolation but it really does make a difference to fast growing states like mine, like texas, to be able to plan ahead when it comes to maintaining and operating your transportation infrastructure. and frankly, it saves taxpayer money when you can plan on the
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long haul rather than in a series of starts and stops. and then a subject that's near and dear to my heart is the first major help that we've been able to provide to victims of human trafficking in 25 years where the resource deficit at the local level, a lot of big hearted people who want toed help simply didn't have the resources to do it. simple things like rescuing people who are victims of human trafficking and providing them a safe place to stay. now as a result of the justice for victims of trafficking act, we're going to be able to provide through a victims compensation fund up to $60 million a year. to help provide grants for housing, for rescue, and for help for victims of human trafficking. but it is true that there are some differences between the political parties. and that shouldn't be a matter for panic. we shouldn't say, well, i guess
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we can't do anything since we can't do this one thing. and certainly it's true with the recent passing of supreme court justice antonin scalia. it's clear that we've reached a major point of disagreement. or i guess you could look at it this way -- we actually are agreeing with the position that vice president biden took when he was chairman of the senate judiciary committee. we're now agreeing with the position that was taken by then-senator -- legitimate leader reid, and we are agreeing with the position that was taken in 2007 by senator chuck schumer, a member of the senior leadership in the democratic party. i mentioned these yesterday and i will just go over them real quickly again. surely our democratic friends don't think that the republicans when we're in the majority ought to be

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