S5642 — SENATE July 30, 2012 able to go over and show the people When we look historically, I could go people hear varied differences of opin- what the truth was in this country. back and talk about what has happened ion on an issue that I consider to be of But Andrew Revkin, just before Co- over the years—over the centuries real- enormous consequence. So what I penhagen, on September 23, 2009, in the ly—and going through these periods of would say to my friend is, I hope, in New York Times, acknowledged: time, and it is always that the world is fact, this is the beginning of a resur- The world leaders who met at the United coming to an end. gence of discussion about this issue, Nations to discuss climate change . . . are Well, I am here to announce—and I and I look forward to engaging in the faced with an intricate challenge: building feel very good being able to do it with discussion with my friend from Okla- momentum for an international climate 20 kids and grandkids; I am happy to homa. treaty at a time when global temperatures tell them all right now—the world is With that, Mr. President, I yield the have been relatively stable for a decade and not coming to an end, and global floor. may even drop for the next few years. warming—we are going through a I suggest the absence of a . I look at some of the things—inciden- cycle. We have gone through these cy- The PRESIDING OFFICER. The tally, I kind of wish I had known my cles before, and every time we go clerk will call the roll. good friend from Vermont was going to through—in part of my book I talk The legislative clerk proceeded to be talking about this because I would about the hysterical things people are call the roll. have been delighted to join in and get saying. Mr. FRANKEN. Mr. President, I ask a little bit better prepared. But I would Back during that period of time, I that the order for say this as to the cost: When you talk mentioned between 1895 and 1930 about the be rescinded. about where this cost comes from, the how the world was coming to an end, The PRESIDING OFFICER (Mr. $300 to $400 billion, the Kyoto Protocol and the same thing from 1930 to the WEBB). Without objection, it is so or- and cap-and-trade cost—this is from end of the war. Then, of course, getting dered. the Wharton Econometrics Forecasting into the little ice age, all these things f Associates I mentioned just a minute that were taking place, the little ice ago—Kyoto would cost 2.4 million U.S. age from 1945—not the ice age but this jobs and reduce GDP by 3.2 percent or cooling period—the cooling period that about $300 billion annually, an amount started in 1945 and lasted for 30 years greater than the total expenditure on was the time in our history where we NOMINATION OF ROBERT E. primary and secondary education. had the greatest increase in carbon in BACHARACH TO BE UNITED Oh, yes, let’s talk about polar bears. the air, the greatest use of that. So it STATES CIRCUIT JUDGE FOR I am not sure my friend mentioned the is inconsistent with what reality was. THE TENTH CIRCUIT polar bears, so I will skip that part. So I would say to my good friend, I The PRESIDING OFFICER. Under Anyway, let me just say this: It has be- have no doubt in my mind that the the previous order, the Senate will pro- come something that has been some- Senator from Vermont is sincere in ceed to executive session to consider what of a religion to talk about what is what he says. While he and I are the following nomination, which the happening and the world is coming to ranked at the extreme sides of the phil- clerk will report. an end. I would just suggest they are osophical pendulum, I would say I The legislative clerk read the nomi- not winning that battle. know he is sincere. But I will also say nation of Robert E. Bacharach, of In March 2010, in a Gallup poll, Amer- this is a tough world we are in right Oklahoma, to be United States Circuit icans ranked global warming dead now. When we look at the problems we Judge for the Tenth Circuit. last—8 out of 8—on environmental have in this country and the problems The PRESIDING OFFICER. Under issues. That was not true 10 years ago. we are having in the world and the cost the previous order, there will be 1 hour Ten years ago, it was No. 1, and every- that it has, I am very thankful those of debate equally divided and con- one thought that. The more people sit who are trying to pass the cap and trolled in the usual form. back and look at it and study it, they trade, all the way from the Kyoto Mr. LEAHY. Today’s debate and vote decide: Well, maybe it is not true after Treaty—which was never brought to on the partisan of the Okla- all. the Senate, never brought because they homa judicial nominee, who has had In March 2010, a Rasmussen poll: 72 knew they were not going to be able to the support of the Republican Senators percent of American voters do not be- pass it—up until the time when that from Oklahoma since President Obama lieve global warming is a very serious ended in about 2009, I would say a lot of nominated him 6 months ago, is an- problem. In a Rasmussen poll at the activists were out there, but I think other example of how extreme Senate same time as to the Democrat base: people have now realized: Just look at Republicans have gone in their efforts Only 35 percent now think climate the patterns. It gets colder, it gets to obstruct judicial confirmations. If change is manmade. warmer, it gets colder, it gets warmer. they succeed in their partisan fili- The global warmist Robert Socolow God is still up there. And I think that buster, it will be another first for laments: will continue in the future. them. Never before has the Senate fili- I thank the Chair and yield the re- bustered and refused to vote on a judi- We are losing the argument with the gen- mainder of my time. eral public, big time . . . I think the climate The PRESIDING OFFICER (Mr. cial nominee with such strong bipar- change activists, myself included, have lost tisan support, who was voted out of the the American middle. FRANKEN). The Senator from Vermont. Mr. SANDERS. Mr. President, I have Judiciary Committee with virtually In a way, I am kind of pleased it is talked for a long time on this issue, so unanimous support. coming back up and surfacing now. I I do not want to make a great speech Their partisan efforts to shut down thank my good friend, and he is my and continue speaking at great length. Senate confirmations of qualified judi- good friend. People do not under- I do want to say a few things. cial nominees who have bipartisan sup- stand—they really do not understand— First of all, I want to thank Senator port do not help the American people. what the Senate is all about. The INHOFE for his kind words. Let me re- This is a shortsighted policy at a time House was not that way when I was in spond in the same way. He and I philo- when the judicial vacancy rate remains the House. But in the Senate, you can sophically and politically come from more than twice what it was at this love someone and disagree with them very different places. I have never point in the first term of President philosophically and come out and talk doubted for one moment the honesty or Bush. Judicial vacancies during the about it. the sincerity of the Senator from Okla- last few years have been at historically I have no doubt in my mind that my homa. He is saying what he believes. high levels. Nearly one out of every 11 friend from Vermont is sincere in what He has the courage to get up here and Federal judgeships is currently vacant. he believes. I believe he would say he say it, and I appreciate that. So we are Their shutting down confirmations for knows I am sincere with what I believe. good friends, and I hope we will con- consensus and qualified circuit court That is what makes this a great body. tinue to be good friends. nominees is not helping the overbur- But I will just say this: It is popular I think, frankly, it does this Senate, dened Federal courts to which Ameri- to say the world is coming to an end. and it does this country, good when cans turn for justice.

VerDate Mar 15 2010 01:52 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.027 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE July 30, 2012 CONGRESSIONAL RECORD — SENATE S5643 Over his 13-year career as a U.S. Mag- AMERICAN BAR ASSOCIATION, election to confirm U.S. Magistrate Judge istrate Judge in the Western District of Chicago, IL, June 20, 2012. Robert E. Bacharach to a federal appeals Oklahoma, Judge Robert Bacharach Hon. HARRY REID, court, despite Bacharach’s credentials and Majority Leader, U.S. Senate, support from both Oklahoma senators, Sen. has handled nearly 3,000 civil and Washington, DC. said Thursday. criminal matters, presided over 400 ju- Hon. MITCH MCCONNELL, Coburn, R–Muskogee, said Senate Repub- dicial settlement conferences, and Republican Leader, U.S. Senate, lican leader Mitch McConnell told him Re- issued more than 1,600 reports and rec- Washington, DC. publicans were following a tradition used by ommendations. As an attorney in pri- DEAR MAJORITY LEADER REID AND REPUB- both parties to block votes on circuit court LICAN LEADER MCCONNELL: Amid concerns nominees a few months before a presidential vate practice, Judge Bacharach tried 10 that the judicial confirmation process is election. cases to verdict, argued 2 cases before about to fall victim to presidential election That means a vote on Bacharach, whose the Tenth Circuit Court of Appeals, year politics through the invocation of the nomination to the 10th U.S. Circuit Court of and briefed scores of other cases to the ‘‘Thurmond Rule,’’ I am writing on behalf of Appeals cleared the Senate Judiciary Com- the American Bar Association to reiterate tenth circuit and the Oklahoma Su- mittee last week, ‘‘is not going to happen,’’ our grave concern for the longstanding num- Coburn said. preme Court. The ABA Standing Com- ber of judicial vacancies on Article III courts Coburn said the nomination of John E. mittee on the Federal Judiciary has and to urge you to schedule floor votes on Dowdell to be a U.S. district judge in Tulsa rated Judge Bacharach unanimously three pending, noncontroversial circuit court still has a ‘‘great chance’’ of clearing the full well qualified, the highest possible rat- nominees before July and on district court Senate. nominees who have strong bipartisan sup- ing from its nonpartisan peer review. Bacharach is ‘‘an awfully good candidate’’ port on a weekly basis thereafter. for the circuit court position, said Coburn, Judge Bacharach’s judicial col- Three of the four circuit court nominees who praised his character and judicial tem- leagues in the Western District of pending on the Senate floor are consensus perament. Bacharach, who has been a mag- nominees who have received overwhelming istrate judge in Oklahoma City since 1999, Oklahoma stand strongly behind his approval from the Senate Judiciary Com- nomination. Vicki Miles-LaGrange, was given a rating of ‘‘unanimously well mittee. Both William Kayatta, Jr. of Maine, qualified’’ for the appeals court position by Chief Judge of the U.S. District Court nominated to the First Circuit, and Robert the American Bar Association. for the Western District of Oklahoma, Bacharach of Oklahoma, nominated to the Sen. Jim Inhofe, R–Tulsa, praised has said of Judge Bacharach: Tenth Circuit, have the staunch support of Bacharach during a committee hearing last their Republican senators. Richard Taranto, month. He is an outstanding jurist and my col- nominated to the Federal Circuit, enjoys But the selection and confirmation process leagues and I enthusiastically and whole- strong bipartisan support, including the en- moved too slowly to fill the vacancy on the heartedly recommend him for the Tenth Cir- dorsement of noted conservative legal schol- appeals court—which is a step below the U.S. cuit position . . . We knew that we were ars. All three nominees also have stellar pro- Supreme Court—given the political time- lucky to have Bob as a Magistrate Judge, fessional qualifications and each has been table in Washington. rated unanimously ‘‘well-qualified’’ by the and he’s been remarkable in this position for Though the position has been open since ABA’s Standing Committee on the Federal over 12 years. He is an absolutely great Mag- July 2010, the White House didn’t make a Judiciary. nomination until January, after spending istrate Judge. His research and writing are As you know, the ‘‘Thurmond Rule’’ is nei- months vetting candidates that weren’t excellent, his temperament is superb, his ther a rule nor a clearly defined event. While going to be acceptable to Coburn and Inhofe. preparation is top-notch, and he is a wonder- the ABA takes no position on what invoca- Then, it took more than three months to ful colleague to all of the judges and in gen- tion of the ‘‘Thurmond Rule’’ actually means schedule a committee hearing for Bacharach eral to the entire court family. . . . All of or whether it represents wise policy, recent as the staff conducted a background inves- the other judges and I—Republicans and news stories have cast it as a precedent tigation; Coburn withheld his approval for a Democrats alike—enthusiastically and under which the Senate, after a specified date in a presidential election year, ceases to committee hearing until the committee in- wholeheartedly recommend Judge Bob vestigation was completed. Bacharach for the Tenth Circuit position. All vote on nominees to the federal circuit courts of appeals. We note that there has Ultimately, Bacharach may have just nar- of us believe very strongly that Judge rowly missed a full Senate vote. The Senate Bacharach would be a superb choice for the been no consistently observed date at which this has occurred during the presidential this week, over the objections of most Re- position. election years from 1980 to 2008. With regard publicans, confirmed a nominee from Ari- to the past three election years, the last cir- zona for another circuit court. After that Throughout this very careful and de- vote, McConnell told Republican senators no liberate process in which Judge Robert cuit court nominees were confirmed in June during 2004 and 2008 and in July during 2000. other votes on circuit judges would be held. Bacharach has been thoroughly vetted, In deference to these historical cut-off dates McConnell’s office declined to comment on considered, and voted on by the Judici- and because of our conviction that the Sen- Thursday. ary Committee, I have not heard a sin- ate has a continuing constitutional duty to Sen. Patrick Leahy, D–Vermont, chairman gle negative word about him. There is act with due diligence to reduce the dan- of the Senate Judiciary Committee, said Thursday, ‘‘This is really a challenge to the no Senator that I know of who is op- gerously high vacancy rate that is adversely affecting our federal judiciary, we exhort senators who have said that they will not posed to his nomination on the merits. you to schedule votes on these three out- support these and this kind of The only obstacle standing between standing circuit court nominees this month. shutdown, and to those Republican senators Judge Bacharach being confirmed to We also urge you to continue to work to- who support the circuit court nominees from serve the people of the tenth circuit is gether to move consensus district court Maine and Oklahoma.’’ But Coburn said there wasn’t anything he partisan obstruction. nominees to the floor for a vote throughout the rest of the session, lest the vacancy cri- could do about the situation. Nor is Judge Bacharach the only vic- sis worsens in the waning months of the The delaying tactic on circuit court tim of this abuse. In a letter dated 112th Congress. With five new vacancies aris- judges, which will likely extend to district June 20, 2012, the president of the ing this month and an additional five an- court judges later this year, has become common practice for the party that doesn’t American Bar Association urged Sen- nounced for next month, this is not just a possibility; it is a certainty, absent your control the White House. ator REID and Senator MCCONNELL to continued commitment to the federal judici- This year, it means Republicans will block work together to schedule votes on the ary and steady action on nominees. votes on nominees for appeals courts, which nominations of William Kayatta and Thank you for your past efforts and for can have great influence on a wide range of Richard Taranto, as well as Judge your consideration of our views on this im- legal issues since the Supreme Court agrees to hear relatively few cases. Bacharach. These are three consensus, portant issue. Sincerely, The aim of the tactic is to delay making qualified circuit court nominees await- WM. T. (BILL) ROBINSON III, lifetime appointments to federal courts in ing Senate confirmation so that they President. hopes their party will regain the White may serve the American people. I ask House and the power to fill judicial vacan- that a copy of that letter be printed in [From the Oklahoman, June 15, 2012] cies. Coburn said Bacharach could be cleared late this year if President Barack Obama the RECORD, along with an article from SENATE REPUBLICANS TO BLOCK VOTE ON wins re-election. If not, Coburn said, the Oklahoman on this nomination. OKLAHOMA NOMINEE FOR FEDERAL APPEALS COURT Bacharach would make a great nominee for a There being no objection, the mate- (By Chris Casteel) Republican president. rial was ordered to be printed in the WASHINGTON.—Senate Republicans won’t Mr. LEAHY. The ABA president RECORD, as follows: allow a vote before November’s presidential wrote:

VerDate Mar 15 2010 03:43 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.011 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE S5644 CONGRESSIONAL RECORD — SENATE July 30, 2012 Amid concerns that the judicial confirma- fied by the nonpartisan ABA Standing fourth circuit, Judge Henry Floyd of tion process is about to fall victim to presi- Committee on the Federal Judiciary, South Carolina to the fourth circuit, dential election year politics through the in- the highest possible rating. These are Judge Stephanie Thacker of West Vir- vocation of the ‘‘Thurmond Rule,’’ I am writ- not controversial nominees. They are ginia to the fourth circuit, and Judge ing on behalf of the American Bar Associa- Jacqueline Nguyen of California to the tion to reiterate our grave concern for the qualified and should be considered as longstanding number of judicial vacancies on consensus nominees and confirmed. ninth circuit for 5 months. They de- Article III courts and to urge you to sched- Senate Republicans are blocking con- layed confirmation of Judge Adalberto ule floor votes on three pending, non- sent to vote on superbly qualified cir- Jordan of Florida to the eleventh cir- controversial circuit court nominees before cuit court nominees with strong bipar- cuit, Judge Beverly Martin of Georgia July and on district court nominees who tisan support. This is a new and dam- to the eleventh circuit, Judge Mary have strong bipartisan support on a weekly aging application of the Thurmond Murguia of Arizona to the ninth cir- basis thereafter. rule. cuit, Judge Bernice Donald of Ten- This is the precise danger that was It is hard to see how this new appli- nessee to the sixth circuit, Judge Bar- the reason for that letter. Including cation of the Thurmond rule is really bara Keenan of Virginia to the fourth Judge Bacharach, William Kayatta of anything more than another name for circuit, Judge Thomas Vanaskie of Maine, and Richard Taranto, there are the stalling tactics we have seen for Pennsylvania to the third circuit, currently 20 judicial nominees voted months and years. I have yet to hear Judge Joseph Greenaway of New Jersey out of the Judiciary Committee and any good reason why we should not to the third circuit, Judge Denny Chin being blocked by Senate Republicans. continue to vote on well-qualified, con- of New York to the second circuit, and During the Judiciary Committee sensus nominees, just as we did up Judge Chris Droney of Connecticut to meeting approving the nomination of until September of the last 2 Presi- the second circuit for 4 months. They Judge Bacharach, Senator COBURN dential election years. I have yet to delayed confirmation of Judge Paul noted: hear a good explanation why we cannot Watford of California to the ninth cir- I believe that Judge Bacharach will uphold work to solve the problem of high va- cuit, Judge Andrew Hurwitz of Arizona the highest standards and reflect the best in cancies for the American people. I will to the ninth circuit, Judge Morgan our American judicial tradition by coming continue to work to confirm as many Christen of to the ninth circuit, to the bench as a well-regarded member of of President Obama’s qualified judicial Judge Stephen Higginson of Louisiana the community. At a time when our country nominees as possible to fill the many to the fifth circuit, Judge Gerard seems as divided as ever, it is important that Lynch of New York to the second cir- citizens respect members of the judiciary judicial vacancies that burden our courts and the American people across cuit, Judge Susan Carney of Con- and are confident they will faithfully and necticut to the second circuit, and impartially apply the law. . . I believe Judge the country. Bacharach would be an excellent addition to Senate Republicans have become the Judge Kathleen O’Malley of Ohio to the the Tenth Circuit. party of no—no help for the American Federal circuit for 3 months. As a recent report from the non- Senator INHOFE likewise has said: ‘‘I people, no to jobs, no to economic re- partisan Congressional Research Serv- believe that Judge Bacharach would covery, no help to extend tax cuts for ice confirms, the median time circuit the middle class, and no to judges to continue the strong service Oklaho- nominees have had to wait for a Senate provide Americans with justice in their mans have provided the Tenth Cir- vote has skyrocketed from 18 days for Federal courts. Although the public an- cuit.’’ When asked last month about President Bush’s nominees to 132 days nouncement that they would be block- this effort to block a vote on Judge for President Obama’s circuit court ing qualified and consensus circuit Bacharach’s nomination, Senator nominees. This is the result of Repub- court nominees was not until June, the COBURN told The Oklahoman: ‘‘I think lican foot dragging and obstruction. In truth is that Senate Republicans have it’s stupid.’’ He is right. It is just ob- most cases, Senate Republicans have been obstructing President Obama’s ju- struction. been delaying and stalling for no good There is no good reason that the Sen- dicial nominees since the beginning of reason. How else do you explain the fil- ate should not vote on consensus cir- his Presidency, beginning with their ibuster of the nomination of Judge cuit court nominees thoroughly vetted, filibuster of his first nominee. Barbara Keenan of Virginia to the Senate Republicans used to insist considered and voted on and approved fourth circuit who was ultimately con- that filibustering of judicial nomina- with nearly unanimous bipartisan sup- firmed 99–0? And how else do you ex- tions was unconstitutional. The Con- port by the Judiciary Committee. plain the needless obstruction of Judge stitution has not changed but as soon There is no reason the Senate cannot Denny Chin of New York to the second as President Obama was elected they vote on the nomination of William circuit, who was filibustered for 4 Kayatta of Maine to the first circuit, a reversed course and filibustered Presi- months before he was confirmed 98–0? nominee strongly supported by both of dent Obama’s very first judicial nomi- The only change in their practices is Maine’s Republican Senators and re- nation. Judge David Hamilton of Indi- that Senate Republicans have finally ported nearly unanimously by the com- ana was a widely respected 15-year vet- acknowledged that they are seeking to mittee 3 months ago and 2 months be- eran of the Federal bench nominated to shut down the confirmation process for fore considering Judge Bacharach’s the seventh circuit and was supported qualified and consensus circuit court nomination. This is the same person by Senator DICK LUGAR, the longest- nominees. Three of the five circuit who Chief Justice John Roberts rec- serving Republican in the Senate. They court judges finally confirmed this ommended to Kenneth Starr for a posi- delayed his confirmation for 5 months. year after months of unnecessary tion in the Justice Department. He is Senate Republicans then proceeded to delays and a filibuster should have widely respected in Maine. Republicans obstruct and delay just about every been confirmed last year. The other cannot seriously oppose his nomination circuit court nominee of this Presi- two circuit court nominees confirmed on the merits or for ideological rea- dent, filibustering nine of them. They this year were both subjected to stall- sons. It is just more obstruction. delayed confirmation of Judge Albert ing and partisan filibusters, which were There is also no reason the Senate Diaz of North Carolina to the fourth thankfully unsuccessful. cannot vote on Richard Taranto’s nom- circuit for 11 months. They delayed The American people need to under- ination to the Federal circuit. He was confirmation of Judge Jane Stranch of stand that Senate Republicans are reported almost unanimously by voice Tennessee to the sixth circuit for 10 stalling and filibustering judicial vote nearly 4 months ago, and is sup- months. They delayed confirmation of nominees supported by their home ported by conservatives such as Robert Judge Ray Lohier of New York to the State Republican Senators. Just con- Bork and Paul Clement. Republicans second circuit for 7 months. They de- sider the States I have already men- cannot seriously oppose his nomination layed confirmation of Judge Scott tioned as having circuit nominees sup- to the Federal circuit on the merits or Matheson of Utah to the tenth circuit ported by their home State Republican for ideological reasons. It is just more and Judge James Wynn, Jr. of North Senators unnecessarily stalled—Indi- obstruction. Carolina to the fourth circuit for 6 ana, North Carolina, Utah, South Caro- Each of these circuit court nominees months. They delayed confirmation of lina, Georgia. Just last month we need- has been rated unanimously well quali- Judge Andre Davis of Maryland to the ed to overcome a filibuster to confirm

VerDate Mar 15 2010 03:43 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.012 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE July 30, 2012 CONGRESSIONAL RECORD — SENATE S5645 Justice Andrew Hurwitz of the Arizona Obama’s first term—a development more fairly and to consider judicial Supreme Court to the ninth circuit de- that is another sad first. nominees reported with bipartisan sup- spite the strong support of Senators But the real point is that their selec- port. JON KYL and JOHN MCCAIN. Now it is tive use of numbers does nothing to Nor are the nominees about whom we nominees from Oklahoma and Maine help the American people. We should are concerned recently nominated. who are being filibustered despite the be doing better. I know that we can be- These are not nominees dumped on the support of their home State Republican cause we have done better. During Senate in scores at the end of a Presi- Senators. President Bush’s first term, notwith- dential term. These are, instead, nomi- The year started with the majority standing the 9/11 attacks, the anthrax nations that date back to October of leader having to file to get an attack on the Senate, the ideologically last year. Most were nominated before up-or-down vote on Judge Adalberto driven selections of judicial nominees March. In fact the circuit court nomi- Jordan of Florida to the eleventh cir- by President Bush, and his lack of out- nees who Republicans are refusing to cuit even though he was strongly sup- reach to home State Senators, we re- consider date back to October and No- ported by his Republican home State duced the number of judicial vacancies vember of last year and January of this Senator. And every single one of these down to 29 by this point during his first year. William Kayatta was voted on by nominees for whom the majority leader term and acted to confirm 205 circuit the committee and placed before the was forced to file cloture this year was and district court nominees by the end Senate by mid-April and could have rated unanimously well qualified by of his first term. been confirmed then. Richard Taranto the nonpartisan ABA Standing Com- Another excuse from the minority and Judge Patty Shwartz have been mittee on the Federal Judiciary, the comes across more as partisan score stalled before the Senate even longer, highest possible rating. Most were to settling than anything else. They since March. The truth is that Senate fill a judicial emergency vacancy. So claim that having confirmed two Su- Republicans have shut down confirma- when I hear some Senate Republicans preme Court Justices, the Senate can- tions of circuit court judges not just in say they are now invoking the Thur- not be expected to reach the 205 num- July but, in effect, for the entire year. mond rule and have decided they are ber of confirmations in President The Senate has yet to vote on a single not going to allow President Obama’s Bush’s first term. circuit court nominee nominated by judicial nominees to be considered, I But those Supreme Court confirma- President Obama this year. Since 1980, wonder how the American people are tion proceedings from years ago do not the only Presidential election year in supposed to be able to tell the dif- excuse the Senate from taking the ac- which there were no circuit nominees ference from how they have been ob- tions it could now on the 20 judicial confirmed who was nominated that structing for the last 31⁄2 years. nominees voted out of the Judiciary year was in 1996, when Senate Repub- The minority’s stalling of votes on Committee and ready for final Senate licans shut down the process against judicial nominees with significant bi- action. That second Supreme Court President Clinton’s circuit nominees. partisan support is all to the detriment confirmation was in August 2010. That The fact that Republican stalling tac- of the American people. This has been is almost 2 years ago and it was op- tics have meant that circuit court a tactic that they have employed for posed by most Senate Republicans. nominees that should have been con- the last 31⁄2 years, despite repeated ap- Senate Republicans held down circuit firmed in the spring—like Bill Kayatta, peals urging them to work with us to and district court confirmations in Richard Taranto and Patty Shwartz— help solve the judicial vacancy crisis. President Obama’s first 2 years in of- are still awaiting a vote after July 4th We have seen everyone from Chief Jus- fice to historically low numbers—12 by is no excuse for not moving forward tice John Roberts, himself appointed the end of 2009 and another 48 in 2010 this month to confirm these circuit by a Republican President, to the non- for a total of only 60. They refused to nominees. partisan American Bar Association act on 10 nominees ready at the end of The American people who are waiting urging the Senate to vote on qualified 2009 and on 19 as 2010 drew to a close. for justice do not care about excuses. judicial nominees who are available to Last year they employed the same tac- They do not care about some false administer justice for the American tic in stalling action on another 19 ju- sense of settling political scores. They public. Sadly, Republicans insist on dicial nominees at the end of 2011. Now want justice, just as they want action being the party of no. it is 20 judicial nominees in this sum- on measures the President has sug- What the American people and the mer of 2012 that they are stalling. Had gested to help the economy and create overburdened Federal courts need are Republicans not stalled 19 nominations jobs rather than political calculations qualified judges to administer justice at the end of last year and dragged about what will help Republican can- in our Federal courts, not the perpet- those confirmations out into May of didates in the elections in November. uation of extended, numerous vacan- this year, we the American people and When Republican Senators try to cies. Today vacancies on the Federal the Federal courts would be much bet- take credit for the Senate having courts are more than 21⁄2 times as many ter off. As it is, however, the fact re- reached what they regard as their as they were on this date during the mains that there are 20 qualified judi- ‘‘quota’’ for confirmations this year, first term of President Bush. The Sen- cial nominations that the Senate could they should acknowledge their stren- ate is more than 40 confirmations off be voting on without further delay. uous opposition and attempts to fili- the pace we set during President They refuse to acknowledge that in buster many of the nominations for Bush’s first term. addition to confirming two Supreme which they now take credit. As re- Because they cannot deny the Court Justices in President Clinton’s cently as 2008, Senate Republicans de- strength of this comparison—using ap- first term, the Senate was able to con- nied there was a Thurmond rule. They ples to apples by comparing first firm 200 circuit and district court used to say that any judicial nominee terms—Senate Republicans instead try judges. And in 1992, at the end of Presi- reported by the Senate was entitled to to draw comfort by making compari- dent George H.W. Bush’s term, the Sen- an up-or-down vote and that they sons to President Bush’s second term ate with a Democratic majority was would never filibuster judicial nomi- after we had already worked hard to re- able to confirm 192 circuit and district nees. Well, the majority leader has had duce vacancies by 75 percent. In fact, court judges despite confirming two to file 30 cloture petitions to end their during President Bush’s second term, Supreme Court Justices. Republicans filibusters of judicial nominees. Now the number of vacancies never exceed- have kept the Senate well back from they are flip-flopping on their own call ed 60 and was reduced to 34 near the those numbers by only allowing the for up-or-down votes. end of his Presidency. In stark con- Senate to proceed to confirm 154 of What they are doing now is a first. As trast, vacancies have long remained President Obama’s circuit and district I have noted, in the past 5 Presidential near or above 80, with little progress court nominees. That is a far cry from election years, Senate Democrats have made in these last 31⁄2 years. Today, what we have been able to achieve in never denied an up-or-down vote to any there are still 76 vacancies. Their tac- addition to our consideration of Su- circuit court nominee of a Republican tics have actually led to an increase in preme Court nominations when the President who received bipartisan sup- judicial vacancies during President Senate was being allowed to function port in the Judiciary Committee. They

VerDate Mar 15 2010 01:52 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.012 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE S5646 CONGRESSIONAL RECORD — SENATE July 30, 2012 are denying votes not only to Robert And what were the results? In the firming judicial nominees during the Bacharach, a nominee from Oklahoma last two Presidential election years, we last few months of a President’s term.’’ supported by his conservative home were able to bring the number of judi- We did not in 2008 when we proceeded State Republican Senators but also to cial vacancies down to the lowest lev- to confirm 22 nominees over the second William Kayatta, a universally re- els in the past 20 years. In 2004, at the half of that year. spected nominee from Maine supported end of President Bush’s first term, va- So at the end of President Bush’s sec- by his home State Republican Sen- cancies were reduced to 28, not the 76 ond term, and at the beginning of his ators, and Richard Taranto, whose we have today. In 2008, in the last year first term as well, Senate Democrats nomination to the Federal circuit re- of President Bush’s second term, we worked to confirm consensus nominees ceived virtually unanimous support. again worked to fill vacancies and got and reduce the judicial vacancy rate. Even Judge Patty Shwartz, whose them down to 34, less than half of what Despite the pace we set during Presi- nomination to the third circuit re- they are today. In 2004, 25 nominees dent Bush’s first term for reducing va- ceived a split rollcall vote, has the bi- were confirmed from June 1 to the cancies, vacancies have remained near partisan support of New Jersey Gov- Presidential election. In 2008, 22 nomi- or above 80 for most of President ernor Chris Christie. nees were confirmed between June 1 Obama’s first term and little compara- Personal attacks on me, taking and the Presidential election. So far, tive progress has been made during the quotes out of context, trying to re- since June 1 of this year, only eight three and a half years of President package their own actions as if fol- judges have been confirmed and five re- Obama’s first term. As contrasted to 29 lowing the Thurmond rule or what they quired the majority leader to file clo- vacancies in July 2004, there are still 76 seek to dub the Leahy Rule do nothing ture to end Republican filibusters. vacancies in July 2012. If we could to help the American people who are In 2004, the Senate confirmed five cir- move forward to Senate votes on the 20 seeking justice in our Federal courts. I cuit court nominees of a Republican judicial nominees ready for final ac- am willing to defend my record but President that had been reported by tion, the Senate could reduce vacancies that is beside the point. The harm to the committee that year. This year we to less than 60 and make some the American people is what matters. have confirmed only two circuit court progress. We were 9 months later in Republicans are insisting on being the nominees that have been reported by confirming the 150th circuit or district party of no even when it comes to judi- the committee this year, and we had to judge to be appointed by President cial nominees who home State Repub- overcome Republican filibusters in Obama. Another way to look at our rel- lican Senators support. both cases. By this date in 2004 the ative lack of progress and the burden As chairman and when I served as the Senate had already confirmed 35 of the Republican obstruction is placing of the Judiciary Com- President Bush’s circuit court nomi- on the American people seeking justice mittee, I have worked with Senate Re- nees. So far, the Senate has only been is to note that by mid-November 2002 publicans to consider judicial nominees allowed to consider and confirm 30 of we had already reduced judicial vacan- well into Presidential election years. I President Obama’s circuit court nomi- cies to below where we are now. In fact, have taken steps to make the con- nees—5 fewer, 17 percent fewer—while when on November 14, 2002, the Senate firmation process more transparent proceeded to confirm 18 judicial nomi- and fair. I have ensured that the Presi- higher numbers of vacancies remain, nees, vacancies went down to 60 dent consults with home State Sen- and yet the Senate Republican leader- throughout the country. We effectively ators before submitting a nominee. I ship demands an artificial shutdown on worked twice as efficiently and twice have opened up what had been a secre- confirmation of qualified, consensus tive, blue-slip process to prevent nominees for no good reason. as fast. By that measure, the Senate is In fact, during the last 20 years, only abuses. All the while I have protected almost 20 months behind schedule. This four circuit nominees reported with bi- the rights of the minority, of Repub- is hardly then the time to be shutting partisan support have been denied an lican Senators. If Republicans want to down the process. In a letter to Senators COBURN and talk about the Leahy rules, those are up-or-down vote during a Presidential INHOFE dated July 19, 2012, the Amer- the practices I have followed. And I election year by the Senate; all four ican Bar Association’s State Delegate have been consistent. I hold hearings were nominated by President Clinton for Oklahoma urged the Republican at the same pace and under the same and blocked by Senate Republicans. Senators to rise above politics and to procedures whether the President While Senate Democrats have been nominating is a Democrat or a Repub- willing to work with Republican Presi- end this filibuster of Judge Bacharach. lican. Others cannot say that. dents to confirm circuit court nomi- I ask unanimous consent that a copy of Senate Republicans are fond of tak- nees with bipartisan support, Senate this letter be printed in the RECORD. ing quotes of things I have said out of Republicans have repeatedly ob- There being no objection, the mate- context. But look at my record as structed the nominees of Democratic rial was ordered to be printed in the chairman. I have not filibustered nomi- Presidents. In the previous 5 Presi- RECORD, as follows: nees with bipartisan support in July of dential election years, a total of 13 cir- AMERICAN BAR ASSOCIATION, Presidential election years. As chair- cuit court nominees have been con- Oklahoma City, OK, July 19, 2012. man of this committee, I have stead- firmed after May 31. Not surprisingly, Senator JAMES M. INHOFE, Russell Senate Office Building, Washington, fastly protected the rights of the mi- 12 of the 13 were Republican nominees. Clearly, this is a one-way street in DC. nority. I have done so despite criticism Senator TOM COBURN, from Democrats. I have only proceeded favor of Republican Presidents’ nomi- Russell Senate Office Building, Washington, with judicial nominations supported by nees. DC. both home State Senators. I will put Senate Republicans, on the other DEAR SENATORS INHOFE AND COBURN: The my record of consistent fairness up hand, have repeatedly asserted that the undersigned, Oklahoma’s current delegates against that of any chairman and re- Thurmond rule does not exist. For ex- to the American Bar Association (ABA) (less mind Senate Republicans that it is ample, on July 14, 2008, the Senate Re- two judge members who abstain from this letter), are writing to ask you respectfully to they who blatantly disregarded even- publican caucus held a forum and said that the Thurmond rule does not exist. press the Republican Senate leadership for a handed practices when they were ram- floor vote, before the traditional August re- ming through ideological nominations At that meeting, the senior Senator cess, on the nomination of Judge Robert of President George W. Bush. They from Kentucky, the Republican leader Bacharach to the Tenth Circuit Court of Ap- would proceed with nominations de- stated: ‘‘I think it’s clear that there is peals vacancy. spite the objection of both home State no Thurmond rule. And I think the As you probably know, the ABA wrote to Senators. facts demonstrate that.’’ Similarly, the the Senate leaders of both parties on June So those are the Leahy rules—respect Senator from Iowa, my friend who is 20, 2012, after Senator McConnell announced now serving as ranking member of the his party’s intention to invoke the so-called for and protection of minority rights, ‘‘Thurmond Rule’’ and block floor consider- increased transparency, consistency, Judiciary Committee, stated that the ation of any more nominees to any federal and allowing for confirmations well Thurmond rule was in his view ‘‘plain circuit court vacancies, including those, like into Presidential election years for bunk.’’ He said: ‘‘The reality is that Judge Bacharach, that: (1) have passed nominees with bipartisan support. the Senate has never stopped con- through the Judiciary Committee; (2)

VerDate Mar 15 2010 01:52 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.012 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE July 30, 2012 CONGRESSIONAL RECORD — SENATE S5647 present no controversy on their qualifica- quite a number of times in this Con- Democrats refused to process Judge tions; and (3) have the support of their home gress. We could have done so again to- Glen Conrad even though he had strong state senators. night. Instead, the majority leader has bipartisan home state support. Steve We appreciate your role in the selection of Matthews also had strong home-state Judge Bacharach and your public support for decided to pursue another course. his nomination. As you know, he has been Rather than confirm what would have support yet the Democrats in Com- rated ‘‘unanimously well qualified’’ by the been the 155th judge tonight, the ma- mittee refused to give him a vote. To ABA panel that reviewed his qualifications. jority will instead engage in a political show you the incredible lengths the We understand that both political parties activity. Make no mistake, it is purely Democrats were willing to go, they have engaged in a variety of stalling tactics, and simply a political posturing situa- even tried to justify blocking the nom- including the threat of a filibuster, regarding tion. It is really unfortunate. ination of U.S. Attorney Rod Rosen- judicial nominations in the past. However, It is well known that the practice stein to the fourth circuit by claiming this ignores the fact that this Oklahoma slot and tradition of the Senate is to stop he was doing ‘‘too good of a job’’ as on the Tenth Circuit has now been vacant for over two years. confirming circuit nominees in the U.S. Attorney to be promoted. Therefore, we are asking you (1) to use closing months of a Presidential elec- By refusing to give these nominees a your considerable influence within the Sen- tion year. That is what we have done vote in Committee, the Democrats en- ate and urge the leadership of both parties to during the last number of Presidential gaged in what amounted to a ‘‘pocket schedule a floor vote on Judge Bacharach’s election years. That started in 1980, I filibuster’’ of all four of these can- nomination before the August recess, and (2) believe. So that would be 32 years. In didates to the fourth circuit. to publicly announce your willingness to fact, today is July 30. You would have And again, this was at a time when vote to end any filibuster preventing a vote the fourth circuit’s vacancy rate was on the merits of the nomination, if nec- to go back that number of years to find a Presidential election year when we over 25 percent, similar to the Sixth essary. Circuit vacancy rate in 2004. But that Respectfully, approved a circuit court judge this didn’t matter to the other side. In 2008, JIMMY GOODMAN, late. ABA State Delegate for Oklahoma. Of course, the rationale has been that just like in 2004, they simply refused to For himself and also for: Cathy M. this close to an election, whoever wins process any more circuit nominees Christensen, OBA (OK Bar Assoc.) President; that election should be the one to pick after June. William G. Paul, ABA Past President; these lifetime nominees who will run At the end of the day, based on any Dwight L. Smith, ABA Division Delegate; fair and objective metric, the sugges- our judiciary system. It is true that James T. Stuart, OBA President-Elect; M. tion that we today are operating any there were some votes in relation to Joe Crosthwait, Jr., Okla. County Bar Dele- differently than Democrats did in 2004 circuit nominations in July during the gate; Mark A. Robertson, ABA Section Dele- and 2008 is simply without merit. gate; Peggy Stockwell, OBA Vice President; last two election years. The only prob- Democrats stalled and blocked numer- Robert S. Farris, Tulsa County Bar Delegate; lem, of course, is that those were clo- ous highly qualified circuit nominees Jennifer Kirkpatrick, Young Lawyer Dele- ture votes on outstanding nominees during those Presidential election gate. the Democrats were filibustering. Mr. LEAHY. Mr. President, it is time For example, in July 2004—remem- years including even nominees with bi- for reasonable and independent think- ber, that was a Presidential election partisan support. The Democratic leadership has in- ing Senators to end this needless and year—cloture votes were held on four voked repeatedly what has been called damaging filibuster on Judge outstanding circuit nominees the the ‘‘Thurmond Rule’’ to justify stall- Bacharach’s nomination and confirm Democrats were filibustering. Those in- ing nominees—even those with bipar- him. With judicial vacancies remaining cluded Miguel Estrada, nominated for tisan support. And now they don’t want at such high levels for so long, we need the D.C. Circuit; Richard Griffin, nomi- us to play by the same set of rules. The to continue confirming judicial nomi- nated to the sixth circuit court; David Democratic leadership doesn’t want us nees. At a time when judicial vacancies McKeagh, nominated to the sixth cir- to enforce the rule that they helped es- remained historically high for 3 years, cuit; and Henry Saad, also nominated with 40 more vacancies and 40 fewer tablish. to the sixth circuit. Let me quote from a CRS report on confirmations than at this point in I would note that at the time the this subject: President Bush’s first term, the Senate sixth circuit alone had a 25-percent va- The Senator who most frequently has as- Republican leadership should recon- cancy rate. And every one of those va- serted the existence of a Thurmond rule has sider its obstruction and work with us cancies was designated as judicial been the current chairman of the Judiciary to fill these longstanding judicial va- emergencies. Committee. cancies in order to help the American That, of course, didn’t matter to the The CRS report noted that on March people. We have well-qualified, con- other side. Despite the fact that the 7, 2008, the Chairman recalled: sensus nominees with bipartisan sup- sixth circuit was in dire straits, the When President Reagan was running for port who can fill these vacancies. It is other side filibustered every one of President and Senator Thurmond, then in only partisan politics and continued those nominees. the Republican minority as ranking member tactics of obstruction that stand in the I don’t recall too much concern from of the Judiciary Committee, instituted a pol- way. my friends on the other side of the icy to stall President Carter’s nominations. Mr. FRANKEN. Mr. President, I ask aisle about the need to confirm those That policy, known as the ‘‘Thurmond unanimous consent that any time in a judges. Rule,’’ was put in when the Republicans were quorum call be equally divided. And now, when our side seeks to en- in the minority. It is a rule that we still fol- low, and it will take effect very soon here. The PRESIDING OFFICER. Without force the rule the other side helped cre- objection, it is so ordered. ate and perfect, all we hear are com- Again, this was in March of that Mr. FRANKEN. Mr. President, I sug- plaints. Presidential election year, not June or gest the absence of a quorum. Mr. President, if ever there was an July. The PRESIDING OFFICER. The example of ‘‘crocodile tears,’’ this is it. CRS went on to note the strong sup- clerk will call the roll. In 2008, the other side was at it again. port the majority leader has expressed The legislative clerk proceeded to Once again, they closed-up shop on Cir- for the so-called Thurmond rule. Ac- call the roll. cuit nominations in June. This time, it cording to CRS: Mr. GRASSLEY. Mr. President, I ask was the Fourth Circuit that was in dire Senator Harry Reid, the Senate majority unanimous consent that the order for straits. leader, has expressed agreement with Sen- ator Leahy about the existence of a Thur- the quorum call be rescinded. Despite the fact that the Fourth Cir- mond rule. In April 10, 2008, floor remarks, The PRESIDING OFFICER. Without cuit was 25 percent vacant, the Demo- Senator Reid said, ‘‘In a Presidential elec- objection, it is so ordered. crats refused to even process four out- tion year, it is always very tough for judges. Mr. GRASSLEY. Mr. President, for standing consensus nominees. That is the way it has been for a long time, the last few weeks, it has been routine Those nominees included Judge Rob- and that is why we have the Thurmond rule practice here in the Senate that we ert Conrad, even though he had already and other such rules.’’ vote on consensus district court nomi- been confirmed unanimously as a U.S. Five days later, the Majority Leader nees most Mondays. We have done so Attorney and District Court Judge. said:

VerDate Mar 15 2010 03:43 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\A30JY6.034 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE S5648 CONGRESSIONAL RECORD — SENATE July 30, 2012 You know, there is a Thurmond doctrine to the Senate, there were 70 judicial away from the political parties’ nomi- that says: After June, we will have to take a vacancies. Over the next 3 months, nating conventions. At this point in real close look at judges in a Presidential only five more circuit nominations past Presidential election years, the election year. were sent to the Senate. By the end of Senate is diligently working on things These quotes indicate not only the June, when the Senate received its such as appropriations bills or the De- expectation, but in fact a support for first district nomination, there were 80 fense authorization bill but not this slowing down and cutting off the con- vacancies. year in the Senate. firmation of judges in a Presidential The failure or delay in submitting Our Democratic colleagues refuse to election year. nominations for vacancies has been the do the basic work of government. Even Senate Republicans are invoking this practice of this administration and it though Chairman INOUYE has said he practice in a more narrow fashion, and still continues to this day. would like to pass some of the nine ap- after more confirmations than Demo- By the end of 2009, there were 100 va- propriations bills his committee has crats did in the past. cancies, with only 20 nominees. In De- worked hard to complete, we haven’t Setting aside the so-called Leahy- cember 2010, more than half of the 108 taken up a single one. Our Democratic Thurmond rule, by any objective meas- vacancies had no nominee. At the be- colleagues will not bring the Defense ure, this President has been treated ginning of this year, only 36 nominees authorization bill to the floor either, fairly and consistent with past Senate were pending for the 82 vacancies. And even though both the chairman and the practices. it continues to this day, more than half ranking member of the Armed Services For example, with regard to the total of the 76 vacancies have no nominee. Committee are ready to work on this number of confirmations, this Presi- I just want to remind my colleagues important legislation as well. And they dent is well ahead of his predecessor. that all of this begins with the White refuse to work with us to help the We have confirmed 154 of this Presi- House. So if someone wants to com- economy or to prevent a looming tax dent’s district and circuit nominations. plain about judicial vacancies, they hike on nearly 1 million small busi- We have also confirmed 2 Supreme should mail those complaints to 1600 nesses at the end of the year. Court nominations during President Pennsylvania Avenue. Instead, they prefer to waste valu- Obama’s first term. When Supreme Now, I also mentioned that the Presi- able time on a vote they have argued Court nominations are pending in the dent could have had a few more district for many years shouldn’t take place Committee, all other nominations court nominees at the end of last Con- this close to a Presidential election. work is put on hold. gress. Now that there is a Democrat in the The last time the Senate confirmed Our side offered to confirm quite a White House, they refuse to follow past two Supreme Court nominees was dur- number of district court nominees who practice on postponing the consider- ing President Bush’s second term. And were on the Executive Calendar, If the ation of circuit court nominations this during that term the Senate confirmed President would provide his assurances late in a Presidential election year so a total of only 119 district and circuit that he wouldn’t bypass the Senate the American people can decide whom court nominees. with recess appointments. The Presi- they want to make these important ap- Let me put it another way, under dent refused to provide those assur- pointments. This practice is known as similar circumstances, we have con- ances, and we found out why a couple the Leahy-Thurmond rule. It is a cus- firmed 35 more district and circuit weeks later when the President uncon- tom they vigorously defended when nominees for President Obama than we stitutionally bypassed the Senate. there was a Republican in the White did for President Bush. I want everyone to understand that. House. So let’s take a look at recent history. During the last Presidential election At the end of last Congress we offered In 2004, the unemployment rate was year, 2008, the Senate confirmed a total to confirm quite a few district court only 5.4 percent. On our circuit courts, of 28 judges—24 district and 4 circuit. nominees. But the President wouldn’t however, back in 2004, there were nine This Presidential election year we have take ‘‘Yes’’ for an answer. Rather than declared judicial emergencies. That already exceeded those numbers, hav- choosing a path that led to more progress and a greater number of con- didn’t matter to our Democratic col- ing confirmed a total of 32 judges. So leagues. The Senate stopped—stopped— those who say that this President is firmations, the President chose the path to more confrontation and fewer circuit court nominations in June of being treated differently either fail to that year, even though we had nine ju- recognize history, or want to ignore confirmations. The same thing happened last week. dicial emergencies. In 2008, the unem- the facts, or both. ployment rate wasn’t much higher, at While this President has not been Once again, our side offered to confirm additional district court nominees. 6.1 percent. In our circuit courts, there treated differently than previous Presi- were almost as many judicial emer- dents, he certainly has behaved dif- But, once again, the other side refused to take ‘‘Yes’’ for an answer. Rather gencies. But in the Fourth Circuit ferently with regard to nominations. things were much worse: Fully one- He has been slow to send nominees to than choosing the path that led to co- operation and additional confirma- fourth of the seats were empty, even the Senate, and he abused his recess though there were qualified nominees appointment authority. If President tions, the other side chose more con- frontation and fewer confirmations. to fill them. Our Democratic col- Obama hasn’t gotten as many con- leagues didn’t care then either. In the firmations as he could have, it is be- They would rather waste precious time on a vote to nowhere, than spend the name of Senate custom and practice— cause he has been slow to nominate by which I mean the Leahy-Thurmond and he has abused his recess appoint- little time we have left on getting more nominations done. So here we are rule—they pocket-filibustered several ment power. outstanding circuit court nominees in Let me take just a moment to dis- engaged in this political theater. I urge my colleagues to vote ‘‘No’’ on committee. cuss how slow the President has been cloture. It didn’t matter to our Democratic with his nominations. I yield the floor and suggest the ab- friends that these nominees enjoyed When President Obama took office, sence of a quorum. strong home State support, including there were 59 judicial vacancies. One The PRESIDING OFFICER. The bipartisan home State support, or that year earlier, at the beginning of 2008, clerk will call the roll. they had outstanding credentials or there were only 43 vacancies. So, dur- The legislative clerk proceeded to that they would fill declared emer- ing the last year of President Bush’s call the roll. gencies on our circuit courts. The Sen- second term, when the Democrats con- Mr. MCCONNELL. Mr. President, I ate couldn’t process them—they told us trolled the Senate, and during a time ask unanimous consent that the order again and again and again—because it when they refused to process four for the quorum call be rescinded. was June and that was—to quote the nominees for the fourth circuit, they The PRESIDING OFFICER (Mr. chairman of the Judiciary Com- allowed the vacancy rate to increase by TESTER). Without objection, it is so or- mittee—‘‘way past the time’’ of the more than 37 percent. dered. Leahy-Thurmond rule. By mid-March 2009, when the first Mr. MCCONNELL. Mr. President, it is Today, it is August, not June, that is Obama judicial nomination was sent up almost August. We are just a few weeks upon us. The country’s unemployment

VerDate Mar 15 2010 03:43 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.031 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE July 30, 2012 CONGRESSIONAL RECORD — SENATE S5649 rate is, unfortunately, much higher Democratic friends as to why the rule I would say also to my friend from than it was in either 2004 or 2008. It is the CRS says they have been the big- Oklahoma, we have confirmed for the now at 8.2 percent. But the situation on gest proponents of somehow doesn’t President in this election year five cir- our circuit courts is much better than apply to them. They will ignore the cuit court nominees. President Bush in it was in either 2004 or 2008. There are pocket filibusters of people who would 2008 got four; President Bush in 2004 now fewer judicial emergencies. In have filled judicial emergencies during got five. We have not been unfair to the terms of what the Senate can do about a Republican administration. But, of administration. And it is certainly no it, as opposed to the President’s failure course, that is par for the course. reflection on what is apparently an to nominate people, we have con- Whether it is pro forma sessions to outstanding nominee from your State. firmed—we have confirmed—every prevent recess appointments, or judi- Mr. President, I yield the floor. nominee whom the President has sub- cial filibusters, or the Leahy-Thur- The PRESIDING OFFICER. The Sen- mitted to fill a judicial emergency on mond rule, our friends don’t want the ator from Illinois. our circuit courts, save one—only one. practices they have pioneered or been Mr. DURBIN. Mr. President, I hope That is right. The Senate has con- the biggest proponents of to apply to the American people are witnessing firmed every nominee the President them. They don’t want the practices this moment in the Senate. We are has sent to fill an emergency on our they have been the pioneers of and the about to make history. We are going to circuit courts, save one, and that one biggest proponents of to apply to them. make history here in a few minutes nominee isn’t on the Senate floor. Now it is pretty convenient for them, when we have a rollcall vote on U.S. In fact, the Senate has already con- but that is not the way the Senate is Magistrate Judge Robert Bacharach to firmed as many or more circuit court supposed to work. the Tenth Circuit Court of Appeals. nominees this year than it did in 2004 In sum, on the subject of the Leahy- This fine man who has been nominated or 2008. It has confirmed a much higher Thurmond rule, we have been more re- to this high position in the Federal ju- percentage of circuit court nomina- sponsible in deciding to invoke it in diciary has the support of both Sen- tions and it has confirmed those nomi- this year than our Democratic col- ators of his home State. They are both nations faster than during the Bush ad- leagues were in either 2004 or 2008. I Republicans. ministration. would urge my friends to oppose this Listen to what Senator TOM COBURN On that last point, although we will double standard and to oppose cloture. said of Mr. Bacharach: A stellar can- not hear our Democratic friends ac- Let me repeat. This is not about the didate. Listen to what Senator INHOFE knowledge it, the average time from individual who has been nominated. It said about this same nominee from his nomination to confirmation—the aver- wasn’t, in many respects, about the in- State: A great guy. age time from nomination to confirma- dividuals to be nominated in 2004 or I listened to these comments. Then I tion—of a circuit court nominee for 2008. What this is is a bipartisan time- reflect on the fact this man was re- President Obama is over 1 month faster out—bipartisan in the sense that it has ported out of the Senate Judiciary than it was for President Bush in his been used by both sides—a timeout Committee on a voice vote. There was first term. Again, the time from nomi- within, this year, 6 months of an elec- so little controversy because of his out- nation to confirmation for President tion; in 2008, it was within 8 months of standing record, he was reported out on Obama is over 1 month faster for a cir- the end of a term—but within 6 months a voice vote. cuit court nominee than in President of an election to these important life- The Democratic majority leader has Bush’s first term, and it is over 100 time jobs to see who the next President offered to bring to the floor of the Sen- days faster than it was for President may be. ate a nominee approved by both Repub- Bush’s circuit court nominees overall. Mr. INHOFE. Mr. President, will the lican Senators from Oklahoma, and So the situation with our economy is Senator yield? now you hear Senator MCCONNELL worse now than it was in 2004 or 2008, Mr. MCCONNELL. I yield to my come to the floor and explain why the while the situation on our circuit friend from Oklahoma. Republicans will have to filibuster and courts is better. The economy is worse, Mr. INHOFE. Let me first say it is stop this man from being appointed to but the situation on circuit courts is awkward that one of the best nomi- the court. Is it something about him? better. So what do you think our nees, Robert Bacharach, is the one sub- No. It is all about politics and it is all Democratic colleagues are going to ject to this. I regret that is the case. about the Presidential campaign. focus on? Are they going to do the The problem is this would be the latest If the Republicans sustain this fili- basic work of government—fund the confirmation of a circuit court nomi- buster and stop this good man from his government, for example? It doesn’t nee during an election year in 20 years. service on the circuit court, it will be look like it. Are they going to reau- I was thinking today that I cannot the first time in the history of the Sen- thorize important programs for our Na- vote against this guy, but I sure can ate that an appeals court nominee with tion’s defense? I am told it has been 50- vote present. If we have a 20-year some-odd-years since the Defense au- precedent that was put in there by the bipartisan committee support has ever thorization bill hasn’t passed—no sign Democrats and the Republicans alike, I been filibustered on the floor of the of it this year. Are they going to work wouldn’t want to be the one to break Senate. But how can we be surprised? with us to fix the economy or prevent that precedent. We are within 4 months This will be the 86th Republican fili- a looming tax hike? I don’t see any evi- of an election right now. It is very im- buster this Congress. dence of it yet. portant that we do what we have done It is said that if the only tool you What they want to do, instead, is vio- over the last 20 years and allow the own is a hammer, every problem looks late the custom in Presidential elec- new administration to come in. like a nail. If you happen to be a Re- tion years that the Congressional Re- The nomination of Robert Bacharach publican leader in the Senate, every search Service says they have been the has been up there for 2 years before any day looks like another chance for a fil- biggest proponents of. This is not me action. You have to be a little sus- ibuster. Eighty-six filibusters. Now saying this, this is the Congressional picious as to why is he coming up right they are filibustering judicial nomi- Research Service. They want to violate now. So I may end up voting present. nees approved nearly unanimously by the custom in Presidential election Mr. MCCONNELL. I thank my friend the committee and approved by both years that the CRS says they have been from Oklahoma. He confirms that this Republican Senators. The President is the biggest proponents of. is not about the nominee, who appar- prepared to assign this man into this The CRS does not say the biggest ently is well qualified. This is about an position—a critically important posi- proponent of the Leahy-Thurmond rule approach that has developed over sev- tion in the judiciary—and who is stop- is me or Ranking Member GRASSLEY or eral decades called the Leahy-Thur- ping him? The Republicans in the Sen- even Senator Thurmond. Rather, the mond rule, under which it has been the ate, the 86th Republican Senate fili- CRS says the most frequent proponent practice to kind of call a timeout with- buster in this Congress. No surprise of the rule ‘‘is the current chairman of in rather close proximity to an elec- that it comes from Senator MCCON- the Senate Judiciary Committee.’’ tion. In 2008, the timeout was called in NELL, who very openly and candidly, No doubt we will hear some post hoc, June. We are going to enter August at and I assume honestly, said, My big- gerrymandered rationale from our the end of this week. gest job in the Senate is to make sure

VerDate Mar 15 2010 01:52 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.033 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE S5650 CONGRESSIONAL RECORD — SENATE July 30, 2012 Barack Obama is a one-term President. Mr. President, I yield the floor. The PRESIDING OFFICER. Without That is how he welcomed President The PRESIDING OFFICER. The Sen- objection, it is so ordered. Obama to the White House. ator from Alabama. Let me just say this: In the last 20 So they have piled filibuster on top Mr. SESSIONS. Mr. President, I years, going back even before this dis- of filibuster to stop the rare possibility don’t like to get involved in the back pute began in 2000, when Democrats that this President would give this and forth on this issue. It bothers me. changed the ground rules of confirma- good man, this exceptional man, a Chairman LEAHY goes into all these tions and started filibustering system- chance to serve his country. Listen to numbers, and they are distorted for the atically qualified nominees, not one the background of this man who is most part in connection with the re- circuit judge has been confirmed after about to become a victim of the 86th ality. I have said that I simply will this day. That has been the tradition of Republican filibuster: not, however, stand by and see the the Senate. It has been referred to as For 13 years he has served as a fed- record misconstrued and the picture the Thurmond rule. Maybe it would be eral magistrate. He has handled an im- painted as something other than it is. even more appropriate to say the pressive caseload, including almost President Bush’s judicial nominees Leahy rule. 3,000 civil and criminal matters, and were filibustered extraordinarily, un- Others have talked about the quotes 400 judicial settlement conferences. He like anything we had ever seen before. that have been made from Senator is the type of consensus nominee we And this is the way it happened. I was REID and Senator LEAHY on the floor. look for in every single State. He has here, I remember it very distinctly. This is the tradition of the Senate that been given the highest possible rating President Bush was elected President. when someone is up for reelection, by the American Bar Association. No In 2001, shortly after he was elected, after this day, to get their nominees questions asked, this is a good man and the New York Times reported that a confirmed, they have to win reelection. a good candidate for this job. In the group of well-known liberal law profes- If President Obama is successful in American Bar Association’s non- sors, including Laurence Tribe, Cass being reelected, I am sure he will have partisan peer review, every single re- Sunstein, and Marsha Greenberger, a high likelihood of getting this nomi- viewer said this magistrate is well met with Democratic Senators in a re- nee and others confirmed. qualified to serve as a circuit court treat. They proposed to the Democratic I thank the Chair, yield the floor, judge in the Tenth Circuit Court of Ap- conference, who were then in the mi- and note the absence of a quorum. peals. And where are the politics there? nority in the Senate—they didn’t have The PRESIDING OFFICER (Mr. The politics are that the Democratic the majority. President Bush was going MANCHIN). The clerk will call the roll. majority leader has offered to the two to be nominating judges, and they de- The assistant legislative clerk pro- Republican Senators from Oklahoma a cided to change the ground rules of ju- ceeded to call the roll. chance for this good man to serve, and dicial confirmation. That is a fact. The PRESIDING OFFICER. The Sen- now they are going to stop him with a After that, they aggressively executed ator from Alabama. Republican filibuster. a plan of unprecedented obstruction of Mr. SESSIONS. Mr. President, I ask If you are looking for evidence of a judicial nominees. unanimous consent that the quorum dysfunctional Senate, hold on tight. In In a totally unprecedented use of the call be rescinded. just a few moments we will start a roll- filibuster, the Senate confirmed only 6 The PRESIDING OFFICER. Without call, and you will watch as Republican of 25 of President Bush’s circuit court objection, it is so ordered. after Republican comes and votes to nominees. Two of those six were prior Mr. SESSIONS. Mr. President, I yield kill this man’s nomination for the Clinton nominees President Bush, in an back all time prior to the vote. Tenth Circuit Court of Appeals. Presi- act of good faith, renominated. Of CLOTURE MOTION dent Obama will be the first President course they were immediately con- The PRESIDING OFFICER. Under in 20 years to complete his first term firmed. Yet the majority of President the previous order, pursuant to rule with more judicial vacancies than Bush’s first nominees to the circuit XXII, the Chair lays before the Senate when he took office. They have dragged court waited years for confirmation. the pending cloture motion, which the their feet every step of the way with Many were never confirmed. clerk will report. filibusters and delays to stop this Perhaps the most disturbing story The assistant legislative clerk read President from appointing the judges was that of Miguel Estrada, which has as follows: he was elected to appoint. And good come up recently in the confirmation CLOTURE MOTION people—good people such as U.S. Mag- of Supreme Court Justices in which We, the undersigned Senators, in accord- istrate Judge Robert Bacharach—who some of my Democratic colleagues ba- ance with the provisions of rule XXII of the submit their names in this process, sically acknowledge that he was un- Standing Rules of the Senate, hereby move who go through extensive background fairly treated. He is an outstanding ap- to bring to a close debate on the nomination investigations, who put their lives on pellate lawyer, supremely qualified to of Robert E. Bacharach, of Oklahoma, to be hold wondering if they are going to serve on the District of Columbia Cir- United States Circuit Judge for the 10th Cir- make it, end up getting caught in a po- cuit Court. He waited 16 months for a cuit. litical game that is being played here hearing. They would not give him a Harry Reid, Patrick J. Leahy, Thomas R. Carper, Tom Udall, Robert Menendez, on the floor. hearing. Kirsten E. Gillibrand, Dianne Fein- I hope there is a handful—five, six, or This was all after 2000, in their deter- stein, Kent Conrad, Christopher A. seven—Republican Senators who will mination to change the ground rules. Coons, Herb Kohl, Amy Klobuchar, give this man a fair break and will give Before that, filibusters had not been Jack Reed, , Richard J. Dur- him a chance to serve his country as a utilized against nominees, not to any bin, , Richard Blumenthal, circuit judge for the Tenth Circuit degree. Almost never, actually. We had Sherrod Brown. Court of Appeals. Please, let us not a fight over it. I spoke on maybe half a The PRESIDING OFFICER. By unan- make history today by stopping a high- dozen or a dozen times about Mr. imous consent, the mandatory quorum ly qualified bipartisan nominee, well Estrada. There were seven cloture call has been waived. qualified by the American Bar Associa- votes—seven attempts—by the Repub- The question is, Is it the sense of the tion, from serving this circuit. The Re- licans to get a vote on Mr. Estrada so Senate that debate on the nomination publican Senators from Oklahoma are he could be confirmed. He was a superb of Robert E. Bacharach, of Oklahoma, right—he is a stellar candidate and, by nominee, and he was treated very poor- to be United States Circuit Judge for every measure, a great guy. Please ly. It was not the right thing, and peo- the Tenth Circuit, shall be brought to don’t make him a victim of last- ple have acknowledged it since. a close? minute political campaigning in this Mr. President, is there a time agree- The yeas and nays are mandatory last week before the recess we take for ment on the vote to commence? under the rule. our Democratic national convention The PRESIDING OFFICER. The time The clerk will call the roll. and the Republican national conven- for the minority leader just expired. The assistant legislative clerk called tion. He shouldn’t be a victim of this Mr. SESSIONS. Mr. President, I ask the roll. Presidential campaign. He deserves a unanimous consent to have one addi- Mr. COBURN (when his name was chance to serve. tional minute. called). Present.

VerDate Mar 15 2010 03:43 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.034 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE July 30, 2012 CONGRESSIONAL RECORD — SENATE S5651 Mr. HATCH (when his name was most important things the majority Bob Bacharach’s eventual confirma- called). Present. leader can do. tion. If President Obama wins the elec- Mr. INHOFE (when his named was What we have seen happen with the tion, I fully expect Judge Bob called). Present. lack of agreement this last holiday Bacharach will be approved. If he does Mr. KYL. The following Senators are season over the moving forward of not win the election, I plan on standing necessarily absent: the Senator from judges and their approval was the un- and fighting for this judge for this New Hampshire (Ms. AYOTTE), the Sen- constitutional usurpation of power by same position under a Republican ator from South Carolina (Mr. the President of the United States in President because he is exactly what DEMINT), the Senator from South Caro- the appointment, during our pro forma we want on a court, someone who is lina (Mr. GRAHAM), the Senator from Il- sessions, of four individuals, one to right down the middle in terms of what linois (Mr. KIRK), the Senator from CFPB and three to the NLRB. the law means, what the Constitution Utah (Mr. LEE), the Senator from Ari- Quite frankly, if we look at what means. He has stellar intellectual ca- zona (Mr. MCCAIN), and the Senator Madison wrote in Federalist 51: pabilities, and he has the qualities we from Alaska (Ms. MURKOWSKI). The great security against a gradual con- all would want, both from the right The PRESIDING OFFICER (Mrs. centration of the several powers in the same branch of government consists in giving to and the left, as a fair decider of the HAGAN). Are there any other Senators those who administer each branch the nec- facts. That is what we want in judges. in the Chamber desiring to vote? essary constitutional means and personal He will make an ideal appellate judge, The yeas and nays resulted—yeas 56, motives to resist encroachment of the oth- regardless of his political affiliation. nays 34, as follows: ers. Ambition must made to counteract am- If we cannot get there then what that [Rollcall Vote No. 186 Ex.] bition. The interest of the man must be con- says is the partisan politics of today, YEAS—56 nected with the constitutional rights of the as everybody outside Washington rec- place. Akaka Gillibrand Nelson (NE) ognizes, is killing our country. Baucus Hagan Nelson (FL) So started the saga in January of Begich Harkin Pryor this past year, where the reaction of f Bennet Inouye Reed my colleagues on my side of the aisle LEGISLATIVE SESSION Bingaman Johnson (SD) Reid was to shut down, in response to the Blumenthal Kerry Rockefeller President’s move, all circuit court con- The PRESIDING OFFICER. Under Boxer Klobuchar Sanders the previous order, the Senate will re- Brown (MA) Kohl Schumer firmations. Brown (OH) Landrieu sume legislative session. Shaheen I stood in my caucus and fought that. Cantwell Lautenberg Snowe I thought it was the wrong action then. Cardin Leahy f Stabenow Carper Levin I still think it would have been the Casey Lieberman Tester wrong action. But I convinced my cau- CYBERSECURITY ACT OF 2012 Udall (CO) Collins Manchin cus not to go that direction. To do The PRESIDING OFFICER. Under Conrad McCaskill Udall (NM) Coons Menendez Warner that, I agreed I would consent to the the previous order, the motion to pro- Durbin Merkley Webb Leahy-Thurmond rule in this election ceed to S. 3414 is agreed to and the Feinstein Mikulski Whitehouse cycle. But I hope this is the last elec- clerk will report the measure. Franken Murray Wyden tion cycle we use the Leahy-Thurmond The assistant legislative clerk read NAYS—34 rule. as follows: Alexander Grassley Portman Because on the other side of the con- A bill (S. 3414) to enhance the security and Barrasso Heller Risch stitutional issues is that a duly elected resiliency of the cyber and communications Blunt Hoeven Roberts President does have the right to have infrastructure of the United States. Boozman Hutchison Rubio their nominees considered, whether I Burr Isakson The PRESIDING OFFICER. The ma- Sessions agree with them or not. To prove this, Chambliss Johanns Shelby jority leader. Coats Johnson (WI) Thune that this was a stunt rather than any- Mr. REID. Madam President, I ask Cochran Kyl Toomey thing other than that, and Bob Corker Lugar unanimous consent that there now be a Vitter Cornyn McConnell Bacharach becomes the pawn in that, Wicker period of debate only on S. 3414, and Crapo Moran is that we had an agreement on judges. that this will go forward until 2:15 p.m. Enzi Paul Then we had cloture filed on fourteen on Tuesday, July 31; further, that at ANSWERED ‘‘PRESENT’’—3 district court judges, of which there 2:15 p.m. on that date, Tuesday, I be was no real controversy. Coburn Hatch Inhofe recognized. All of those district court judges, The PRESIDING OFFICER. Is there NOT VOTING—7 after that cloture was filed on them Ayotte Kirk Murkowski and then withdrawn, have henceforth objection? DeMint Lee Mr. COBURN. Madam President, re- Graham McCain been approved. To the American public, the game is politics and not policy for serving the right to object. The PRESIDING OFFICER. On this our country. To me, it saddens me. It The PRESIDING OFFICER. The Sen- vote, the yeas are 56, the nays are 34, 3 frustrates me that we are at this state ator from Oklahoma. Senators responded ‘‘present.’’ Three- because it is not a whole lot different Mr. COBURN. Just a question fifths of the Senators duly chosen and than what we see in the playground at through the Chair to the majority lead- sworn not having voted in the affirma- a kindergarten. er. I had planned to make a statement tive, the motion is rejected. The person who most has spoken in on Judge Bacharach, and the Senator Mr. COBURN. We just disallowed one favor of the Leahy-Thurmond rule is is saying we will have debate only. Will of the best candidates for the appellate the chairman of the Judiciary Com- that preclude a unanimous consent for court in my 8 years since I have been in mittee. Yet we find this impasse today. speaking as in ? the Senate. Magistrate Judge Bob So what we ought to all do, every Mr. REID. The Senator can do that. Bacharach is a stellar individual rated Member of the Senate and the Judici- It is totally appropriate. ‘‘very highly qualified’’ by the Amer- ary Committee during the break after Mr. COBURN. I thank the Senator. ican Bar Association. What has hap- this election, is work together to try to I have no objection. pened is we are in the position today resolve this so this does not happen to The PRESIDING OFFICER. Without because of games that are being played, any other President and does not do objection, it is so ordered. political games. damage to the Senate and the integrity The Senator from New Hampshire. Let me just put into the RECORD of the Senate and the game on judges. Mrs. SHAHEEN. Madam President, if what is going on. There are three The President gets elected, with their the majority leader is finished, I ask judges ahead of Bob Bacharach in line. home State Senators, they make a se- unanimous consent to speak as in We have had a Leahy-Thurmond rule lection. We should not use the fili- morning business. for some 20 years. I have been quoted buster, unless a judge is highly ques- The PRESIDING OFFICER. Is there saying I think it is a stupid rule. But tionable or biased in their viewpoint. objection? the background is that protecting the I regret that we are in this position. Without objection, it is so ordered. prerogative of the Senate is one of the I think this was just a vote to delay Mr. REID addressed the Chair.

VerDate Mar 15 2010 01:52 Jul 31, 2012 Jkt 019060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G30JY6.036 S30JYPT1 smartinez on DSK6TPTVN1PROD with SENATE