December 21, 2012 CONGRESSIONAL RECORD — SENATE S8375 835, 877; that the nominations be con- our Federal courts remain available to months ago to a vacancy on the Fed- firmed en bloc; the motions to recon- provide a fair hearing for all Ameri- eral Circuit by voice vote and faces no sider be considered made and laid upon cans. Nominations to fill these critical Republican opposition. This also ap- the table, with no intervening action positions, whether made by a Demo- plies to William Kayatta of Maine, who or debate; that no further motions be cratic or Republican President, have was reported nearly eight months ago in order to any of the nominations; always been considered with deference and has the support of his two home that any related statements be printed to the home State Senators who know State Republican Senators. in the RECORD; and that the President the nominees and their States best, It makes no sense for Senate Repub- be immediately notified of the Senate’s and have been confirmed quickly with licans to continue filibustering these action. that support. Never before in the 37 nominations, but it fits with their The PRESIDING OFFICER. Without years I have been in the Senate have I track record over the last 4 years. Sen- objection, it is so ordered. seen anything like what has happened ate Republicans used to insist that the The nominations considered and con- in the last 4 years. Never before in the filibustering of judicial nominations firmed en bloc are as follows: Senate’s history have we seen district was unconstitutional. The Constitution THE JUDICIARY court nominees blocked for months and has not changed but as soon as Presi- dent Obama was elected they reversed Matthew W. Brann, of Pennsylvania, to be opposed for no good reason. Many are United States District Judge for the Middle needlessly stalled and then confirmed course and filibustered President District of Pennsylvania. virtually unanimously with no expla- Obama’s very first judicial nomination. Malachy Edward Mannion, of Pennsyl- nation for the obstruction. Senate Re- Judge David Hamilton of Indiana was a vania, to be United States District Judge for publicans have politicized even these widely-respected 15–year veteran of the the Middle District of Pennsylvania. traditionally non-partisan positions. Federal bench nominated to the Sev- Jon S. Tigar, of California, to be United This is harmful to our Federal courts enth Circuit and was supported by Sen- States District Judge for the Northern Dis- and the American people. ator DICK LUGAR, the longest-serving trict of California. Until 2009, Senators who filibustered Republican in the Senate. They de- f circuit court nominees generally had layed his confirmation for 7 months. reasons to do so, and were willing to Senate Republicans then proceeded to NOMINATION DISCHARGED explain those reasons. When Senate obstruct and delay just about every Mr. REID. Mr. President, I ask unan- Democrats filibustered President circuit court nominee of this Presi- imous consent that the Veterans’ Af- Bush’s controversial circuit court dent, filibustering 10 of them. They de- fairs Committee be discharged from nominees, it was over substantive con- layed confirmation of Judge Albert further consideration of following nom- cerns about the nominees’ records and Diaz of North Carolina to the Fourth ination: PN 2024; that the nomination Republicans’ disregard for the rights of Circuit for 11 months. They delayed be confirmed; the motion to reconsider Democratic Senators. When we opposed confirmation of Judge Jane Stranch of be considered made and laid upon the Janice Rogers Brown, it was because of Tennessee to the Sixth Circuit for 10 table, with no intervening action or de- her long record on the California Su- months. They delayed confirmation of bate; that no further motions be in preme Court of deciding cases based on Judge Ray Lohier of New York to the order to the nomination; that any re- extreme views, and having argued that Second Circuit for 7 months. They de- lated statements be printed in the Social Security was unconstitutional. layed confirmation of Judge Scott RECORD; and that the President be im- When we opposed Priscilla Owen, it was Matheson of Utah to the Tenth Circuit mediately notified of the Senate’s ac- because her rulings on the Texas Su- and Judge James Wynn, Jr. of North tion and the Senate then resume legis- preme Court were so extreme that they Carolina to the Fourth Circuit for 6 lative session. drew the condemnation of even the months. They delayed confirmation of The PRESIDING OFFICER. Without conservative judges on that court. Judge Andre Davis of Maryland to the objection, it is so ordered. On the other hand, Senate Repub- Fourth Circuit, Judge Henry Floyd of The nomination considered and con- licans have filibustered and delayed South Carolina to the Fourth Circuit, firmed is as follows: nearly all of President Obama’s circuit Judge Stephanie Thacker of West Vir- THE JUDICIARY court nominees even when those nomi- ginia to the Fourth Circuit, and Judge William S. Greenberg, of New Jersey, to be nees have the support of their Repub- Jacqueline Nguyen of California to the a Judge of the United States Court of Ap- lican home State Senators. Take the Ninth Circuit for 5 months. They de- peals for Veterans Claims for the term of fif- examples of Judge Robert Bacharach layed confirmation of Judge Adalberto teen years, vice a new position created by and William Kayatta, two consensus Jordan of Florida to the Eleventh Cir- Public Law 100–389, approved October 10, 2008. circuit nominees who have the support cuit, Judge Beverly Martin of Georgia Mr. LEAHY. Mr. President, over the of their Republican home State Sen- to the Eleventh Circuit, Judge Mary last four years, Senate Republicans ators. Both these nominees received Murguia of Arizona to the Ninth Cir- have chosen to depart dramatically the ABA Standing Committee on the cuit, Judge Bernice Donald of Ten- from Senate traditions in their efforts Federal Judiciary’s highest possible nessee to the Sixth Circuit, Judge Bar- to delay and obstruct President rating, that of unanimously ‘‘Well bara Keenan of Virginia to the Fourth Obama’s judicial nominations. Qualified.’’ They have strong bipar- Circuit, Judge Thomas Vanaskie of For example, until 2009, Senators de- tisan support, and unimpeachable cre- Pennsylvania to the Third Circuit, ferred to the President and to home dentials, and there is no reason why Judge Joseph Greenaway of New Jersey State Senators on district court nomi- they should not have been confirmed to the Third Circuit, Judge Denny Chin nees. During the 8 years that George W. months ago. Republicans continue to of New York to the Second Circuit, and Bush served as President, only 5 of his stall them without final confirmation Judge Chris Droney of Connecticut to district court nominees received any votes approximately 8 months after the Second Circuit for 4 months. They opposition on the floor. In just 4 years, they were considered and approved by delayed confirmation of Judge Paul Senate Republicans have voted against the Senate Judiciary Committee. Watford of California to the Ninth Cir- 39 of President Obama’s district court The irony and dangerous new devel- cuit, Judge Andrew Hurwitz of Arizona nominees, and the Majority Leader has opment is that neither of these nomi- to the Ninth Circuit, Judge Morgan been forced to file cloture on 20 of nees faces any real Republican opposi- Christen of Alaska to the Ninth Cir- them. tion. Senator COBURN, one of Judge cuit, Judge Stephen Higginson of Lou- Federal district court judges are the Bacharach’s home State Senators, has isiana to the Fifth Circuit, Judge Ge- trial court judges who hear cases from said: ‘‘[Judge Bacharach] has no oppo- rard Lynch of New York to the Second litigants across the country and pre- sition in the Senate. . . . There’s no Circuit, Judge Susan Carney of Con- side over Federal criminal trials, ap- reason why he shouldn’t be confirmed.’’ necticut to the Second Circuit, and plying the law to facts and helping set- Still, Senate Republicans refuse to Judge Kathleen O’Malley of Ohio to the tle legal disputes. They handle the vast allow for a vote on his nomination. The Federal Circuit for 3 months. majority of the caseload of the Federal same also applies to Richard Taranto, The nonpartisan Congressional Re- courts and are critical to making sure who was reported more than eight search Service has reported that the

VerDate Mar 15 2010 04:28 Dec 22, 2012 Jkt 029060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\CR\FM\G21DE6.061 S21DEPT1 smartinez on DSK6TPTVN1PROD with S8376 CONGRESSIONAL RECORD — SENATE December 21, 2012 median time circuit nominees have had 9 months for the Senate to take action istering justice for the American peo- to wait before a Senate vote has sky- on the other 8. This resulted in the ple. In most other years, like in 2008, rocketed from 18 days for President lowest 1-year confirmation total in at judicial nominees, especially those who Bush’s nominees to 132 days for Presi- least 35 years. For the last 2 years, are qualified, consensus nominees with dent Obama’s. This is the result of Re- Senate Republicans left 19 nominations bipartisan support and the support of publican obstruction. on the Senate Executive Calendar at their home State Senators, are con- This unprecedented and meritless ob- the end of each year. It then took near- firmed before the election recess. They struction means that when the Senate ly half the following year for the Sen- are not stalled and not dragged over adjourns, Senate Republicans will have ate to confirm these nominees. This into a lame duck session after the elec- blocked more than 40 of President year they are insisting on leaving 11 ju- tion. This is not success, unless you be- Obama’s circuit and district nominees dicial nominees without action and an- lieve that perpetuating vacancies and from being confirmed. other 4 have had hearings but Senate forcing hardworking Americans to wait This obstruction is also why a dam- Republicans refused to expedite their even longer to have their day in court agingly high level of judicial vacancies consideration. is something of which to be proud. has persisted for over 31⁄2 years. While Senate Republicans claim that their Senate Republicans have also forced such tactics are bad for the Senate, delays and obstruction should be ex- the Majority Leader to file cloture on they are also bad for our Nation’s over- cused because, despite their opposition, 30 nominees, which is already more burdened courts. Persistent vacancies the Senate confirmed the President’s than 50 percent more nominees than force fewer judges to take on growing two Supreme Court Justices. Senate had cloture filed during President caseloads, and make it harder for Republicans ignore the fact that during Bush’s 8 years in office. Almost all of Americans to have access to justice. President Bush’s first 4 years 205 cir- these 30 nominations were non- While they have delayed and ob- cuit and district court nominees had controversial and were ultimately con- structed, the number of judicial vacan- been confirmed, and that judicial va- firmed overwhelmingly. Barely 80 per- cies has been historically high and it cancies were reduced to as low as 28. cent of President Obama’s judicial has become more difficult for our During his second term, vacancies were nominees have been confirmed, com- pared to almost 90 percent of President courts to provide speedy, quality jus- reduced to 34. Vacancies have stood at George W. Bush’s first term nominees. tice for the American people. In fact, nearly or above for most of President While this is not even close to a full Obama’s first four years and will not five of the judicial nominees pending account of the precedents broken in dip below 60. Vacancies remain more on the Senate calendar on whom Re- the last 4 years, the record is clear: than twice what they were at the end publicans refuse to allow a vote would Senate Republicans have engaged in an of President Bush’s first term. The 173 fill judicial emergency vacancies. unprecedented effort to obstruct Presi- For almost 4 years now, ever since judges that we have been able to con- dent Obama’s judicial nominations. President Barack Obama took office, firm fall more than 30 short of the Pretending it has not taken place is an we have heard the same spurious argu- total for President Bush’s first term. insult to the American people. The ments from Senate Republicans for Moreover, when the Senate confirmed American people know better. Chief why they refuse to help our Federal two Justices during President Clinton’s Justice Roberts, in his year-end Report courts function. Senate Republicans first term and President George H.W. on the Federal Judiciary in 2010 point- claim that we have not confirmed more Bush’s term, the Senate also confirmed ed to the ‘‘[P]ersistent problem [that] judges because President Obama has 200 and 192 circuit and district nomi- has developed in the process of filling not made a sufficient number of nomi- nees, respectively. Their obstruction of judicial vacancies.... This has cre- nations. It is Senate Republicans them- needed confirmations cannot be justi- ated acute difficulties for some judicial selves, and their unwillingness to work fied on account of the two Supreme districts. Sitting judges in those dis- with a President who has reached out Court vacancies. tricts have been burdened with extraor- to them to submit recommendations Until 2009, when a judicial nominee dinary caseloads.... There remains, and to work with him that has delayed had been reported by the Judiciary however, an urgent need for the polit- many nominations. Committee with bipartisan support, ical branches to find a long-term solu- Unlike his predecessor, President they were generally confirmed quickly. tion to this recurring problem.’’ De- Obama has worked hard to solicit rec- Until 2009, we observed regular order spite bipartisan calls to address the ju- ommendations from home State Sen- and usually confirmed four to six nomi- dicial vacancy crisis, Senate Repub- ators, including those from the other nees per week, and we cleared the Sen- licans continued their obstruction of party. This President has consistently ate Executive Calendar before long re- judicial confirmations. selected qualified, mainstream nomi- cesses. Until 2009, if a nominee was fili- Today, the Senate is finally being al- nees. For the judicial vacancies in bustered, it was almost always because lowed to vote on 3 but only 3 of the 14 States with two Republican Senators, of a substantive issue with the nomi- judicial nominees pending on the Sen- just 21 percent have a nominee. Four nee’s record. We know what has hap- ate Executive Calendar. such vacancies exist in Texas—includ- pened since 2009. The average district Judge Malachy Mannion is nomi- ing three judicial emergency vacancies. nomination is stalled 4.3 times as long nated to fill a judicial emergency va- This has prompted a retired Federal as it took to confirm them during the cancy in the U.S. District Court for the judge in Hawaii to move to Texas to Bush administration, and the average Middle District of Pennsylvania, where help the overburdened judges with circuit court nomination is stalled on he currently serves as the Chief U.S. their caseload. I urge Senate Repub- average 7.3 times as long as it took to Magistrate Judge. He has been a Mag- licans to do a better job providing con- confirm them during the Bush adminis- istrate Judge in that District for over sensus recommendations and fulfilling tration. Nor has any other President’s 10 years, where he has presided over 104 their own constitutional responsibility judicial nominees had to wait an aver- cases that have gone to verdict or judg- to ‘‘advise’’ the President on nomina- age of over 100 days for a Senate vote ment. Prior to his appointment as a tions and work with President Obama after being reported by the Judiciary U.S. Magistrate Judge, Judge Mannion to fill these vacancies. Committee. served as Federal prosecutor for over 10 At the end of each calendar year, No one is happier than I that a dozen years, where he rose to become the Senate Republicans now deliberately district court nominees will be con- Chief of the Office’s Organized Crime refuse to vote on several judicial nomi- firmed during this lame duck session Enforcement Task Force. The ABA nees who could and should be con- but that is hardly something justifying Standing Committee on the Federal firmed in order to consume additional Republican chest beating. What it Judiciary unanimously gave him its time the following year confirming starkly demonstrates is that they have highest possible rating of ‘‘Well Quali- these nominees. At the end of 2009, been stalling consensus nominees for fied.’’ His nomination has the bipar- they left 10 nominations on the Execu- months without cause. All of these tisan support of his home State Sen- tive Calendar without a vote. Two of nominees could and should have been ators. He was approved by the Judici- those nominations were returned to confirmed before the August recess and ary Committee 5 months ago by voice the President, and it subsequently took should have been at work admin- vote.

VerDate Mar 15 2010 04:28 Dec 22, 2012 Jkt 029060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\CR\FM\A21DE6.043 S21DEPT1 smartinez on DSK6TPTVN1PROD with December 21, 2012 CONGRESSIONAL RECORD — SENATE S8377 Matthew Brann is nominated to fill a openly gay Americans than his prede- identifiable, to ensure that problematic judicial emergency vacancy in the U.S. cessor did in 8 years. Americans can be drywall removed from homes is not reused, District Court for the Middle District proud of President Obama’s efforts to and for other purposes. of Pennsylvania. He has been in private increase diversity in the Federal judi- There being no objection, the Senate practice for over 2 decades, where he ciary and to ensure that it better re- proceeded to consider the bill. specializes in complex corporate and flects all Americans. Mr. REID. Mr. President, I ask unan- commercial transactions, real estate, I hope that next year, and in the next imous consent that the Vitter sub- probate, and estate planning. He has 4 years, Senate Republicans will end stitute amendment which is at the tried 20 cases to verdict, judgment, or their misguided and harmful obstruc- desk be agreed to, the bill as amended final decision. He has the support of his tion and work with us in a bipartisan be read a third time and passed, the home State Senators, and he was voted manner to do what is right for the motions to reconsider be considered out of the Judiciary Committee by country. President Obama has nomi- made and laid on the table, and any voice vote 5 months ago. nated qualified, mainstream lawyers, statements be printed in the RECORD. Judge Jon Tigar is nominated to fill and the Senate should consider them in The PRESIDING OFFICER. Without a judicial emergency vacancy in the regular order, without unnecessary objection, it is so ordered. U.S. District Court for the Northern delays. That is what we had done for as The amendment (No. 3432) was agreed District of California. Judge Tigar is long as I have served in the Senate, to, as follows: currently a Superior Court Judge for whether the nominations came from a (Purpose: In the nature of a substitute) Alameda County, where he has presided Democratic or a Republican president. Strike all after the enacting clause and in- over 175 cases that have gone to verdict We should work together to restore and sert the following: or judgment. He previously spent 10 uphold the best traditions of the Sen- SECTION 1. SHORT TITLE. years as a litigator in private practice ate. This Act may be cited as the ‘‘Drywall Safety Act of 2012’’. at two prominent law firms in San f Francisco. He earned his law degree SEC. 2. SENSE OF CONGRESS. from the University of California at LEGISLATIVE SESSION It is the sense of Congress that— Berkeley. After law school, he clerked The PRESIDING OFFICER. The Sen- (1) the Secretary of Commerce should in- for the Honorable Robert S. Vance in ate will return to Legislative Session. sist that the Government of the People’s Re- the U.S. Court of Appeals for the Elev- public of China, which has ownership inter- f ests in the companies that manufactured and enth Circuit. The ABA Standing Com- exported problematic drywall to the United mittee on the Federal Judiciary unani- DESIGNATING THE CITY OF SALEM, MASSACHUSETTS, AS States, facilitate a meeting between the mously gave him its highest possible companies and representatives of the United rating of ‘‘Well Qualified.’’ His nomina- THE BIRTHPLACE OF THE NA- States Government on remedying home- tion has the support of his home State TIONAL GUARD OF THE UNITED owners that have problematic drywall in Senators, and he was approved by the STATES their homes; and Judiciary Committee more than four Mr. REID. Mr. President, I ask unan- (2) the Secretary of Commerce should in- months ago by voice vote. imous consent the Armed Services sist that the Government of the People’s Re- After today’s vote, there will still be public of China direct the companies that Committee be discharged from further manufactured and exported problematic 11 judicial nominees on the Senate Ex- consideration of H.R. 1339 and we now drywall to submit to jurisdiction in United ecutive Calendar, 6 of whom were voted proceed to this matter. States Federal Courts and comply with any out of the Judiciary Committee before The PRESIDING OFFICER. Without decisions issued by the Courts for home- the August recess. There is no reason objection, it is so ordered. The clerk owners with problematic drywall. why we cannot confirm all of them will report the bill by title. SEC. 3. DRYWALL LABELING REQUIREMENT. today. I have also been urging Repub- The legislative clerk read as follows: (a) LABELING REQUIREMENT.—Beginning 180 licans to expedite consideration of the A bill (H.R. 1339) to amend title 32, United days after the date of the enactment of this 4 judicial nominees who participated in States Code, the body of laws of the United Act, the gypsum board labeling provisions of hearings last Wednesday. That would States dealing with the National Guard, to standard ASTM C1264-11 of ASTM Inter- lead to 11 more confirmations before recognize the City of Salem, Massachusetts, national, as in effect on the day before the date of the enactment of this Act, shall be the Senate adjourns to help address the as the Birthplace of the National Guard of the United States. treated as a rule promulgated by the Con- judicial vacancies that currently exist sumer Product Safety Commission under in our Federal courts. There being no objection, the Senate section 14(c) of the Consumer Product Safety If we adjourn today without con- proceeded to consider the bill. Act (15 U.S.C. 2063(c)). firming these additional nominees, we Mr. REID. Mr. President, I further (b) REVISION OF STANDARD.—If the gypsum will leave those 11 vacancies and 5 ask the bill be read a third time, board labeling provisions of the standard re- emergency vacancies open for even passed, the motion to reconsider be ferred to in subsection (a) are revised on or longer, and there will be at least 80 va- considered made and laid on the table, after the date of the enactment of this Act, cancies when President Obama begins with no intervening action or debate, ASTM International shall notify the Com- mission of such revision no later than 60 his second term. Recall that during and any statements be printed in the days after final approval of the revision by President Bush’s entire second term, RECORD. ASTM International. The revised provisions the 4 years from January, 2005 through The PRESIDING OFFICER. Without shall be treated as a rule promulgated by the January, 2009, vacancies never exceed- objection, it is so ordered. Commission under section 14(c) of such Act ed 60. So far during President Obama’s The bill (H.R. 1339) was ordered to a (15 U.S.C. 2063(c)), in lieu of the prior first 4 years in office and as far into third reading, was read the third time, version, effective 180 days after the Commis- the future as we can see there have and passed. sion is notified of the revision (or such later never been less than 60 vacancies, and date as the Commission considers appro- f priate), unless within 90 days after receiving for much of that time many, many DRYWALL SAFETY ACT OF 2012 that notice the Commission determines that more. This is a prescription for over- the revised provisions do not adequately burdened courts and a Federal justice Mr. REID. Mr. President, I now ask identify gypsum board by manufacturer and system that does not serve the inter- unanimous consent the Committee on month and year of manufacture, in which ests of the American people. Commerce be discharged from further case the Commission shall continue to en- I commend President Obama for consideration of H.R. 4212, and we now force the prior version. nominating such a diverse group of proceed to this matter. SEC. 4. SULFUR CONTENT IN DRYWALL STAND- qualified judges. In his first 4 years, The PRESIDING OFFICER . Without ARD. President Obama has appointed as objection, it is so ordered. The clerk (a) RULE ON SULFUR CONTENT IN DRYWALL many women judges as President Bush REQUIRED.—Except as provided in subsection will report the bill by title. (c), not later than 2 years after the date of did during his entire 8 years in office. The legislative clerk read as follows: the enactment of this Act, the Consumer In just 4 years, President Obama has A bill (H.R. 4212) to prevent the introduc- Product Safety Commission shall promul- also nominated more African Ameri- tion into commerce of unsafe drywall, to en- gate a final rule pertaining to drywall manu- cans, more Asian Americans, and more sure the manufacturer of drywall is readily factured or imported for use in the United

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