S16 CONGRESSIONAL RECORD — SENATE January 23, 2012 Governor and Justice Gerrard was serv- preme Court. These decisions reveal Mr. SESSIONS. Mr. President, I ask ing on the Nebraska Supreme Court. As with clarity his philosophy regarding unanimous consent that the order for a matter of fact, the court has con- the powers and limitations of a judge. the quorum call be rescinded. curred in establishing an execution They reflect his commitment to adhere The ACTING PRESIDENT pro tem- date to take place this March 6 in the to the Constitution and the laws of our pore. Without objection, it is so or- State of Nebraska. great Nation. dered. Issuing and executing a death sen- When asked about judicial restraint f tence is one of the most solemn respon- after his nomination to the U.S. dis- sibilities the judicial and executive trict court, Justice Gerrard responded: CONCLUSION OF MORNING branches are entrusted with. In every I firmly believe that a judge should rely on BUSINESS instance, Justice Gerrard has ruled on the admissible evidence and applicable law The ACTING PRESIDENT pro tem- the death penalty, he has been bal- (and nothing else) when rendering a decision. pore. Morning business is closed. anced, even-handed and, most impor- He further responded: f tant, faithful to the Constitution. In I do not believe a judge should consider his EXECUTIVE SESSION fact, Judge Gerrard has confirmed for or her own values or policy preferences in de- the record that the U.S. Supreme Court termining what the law means—and I have never done so at any time in my judicial ca- and the Nebraska Supreme Court have reer. NOMINATION OF JOHN M. repeatedly held that the death penalty This unequivocal statement says a GERRARD TO BE UNITED is an acceptable punishment as long as lot. Justice Gerrard knows that his STATES DISTRICT JUDGE FOR the laws for imposing it are followed more than 450 opinions are a matter of THE DISTRICT OF NEBRASKA and the constitutional limitations im- public record and that they are open to The ACTING PRESIDENT pro tem- posed by the U.S. Supreme Court are everyone’s scrutiny. He has welcomed respected. pore. Under the previous order, the that. He has welcomed it with humil- Senate will proceed to executive ses- Finally, Judge Gerrard has stated, ity. and the record shows, he has voted to sion to consider the following nomina- You will not hear him boast about tion, which the clerk will report. confirm a number of sentences and con- being the youngest person ever ap- victions of those sentenced to death, The assistant legislative clerk read pointed to my home State’s high court, the nomination of John M. Gerrard, of and he has authored more than one nor will you hear him boast about his State court opinion upholding the con- Nebraska, to be United States District successful years as a private attorney Judge for the District of Nebraska. stitutionality of Nebraska’s death pen- and city attorney—and they were suc- alty law. In my view, Judge Gerrard’s The ACTING PRESIDENT pro tem- cessful. He is absolutely unassuming. pore. Under the previous order, there answers and his clear record more than He is reflective and he is articulate. He adequately address any concerns about will be 90 minutes for debate, with 60 speaks with great reverence about the minutes divided in the usual form and his ability or willingness to both apply oath he took to uphold the Constitu- the law with impartiality and to carry 30 minutes under the control of the tion. Senator from Alabama. out the law effectively . I did not know Justice Gerrard prior To sum up, John Gerrard deserves to Mr. SESSIONS. Mr. President, I ask to his appointment to the Nebraska that I be notified after 12 minutes. be confirmed by the Senate because he Supreme Court, but he quickly devel- has an outstanding legal record, he The ACTING PRESIDENT pro tem- oped a reputation as a disciplined judge pore. Without objection, it is so or- possesses the proper temperament who renders very well researched opin- needed on the Federal bench, and he dered. ions. Mr. SESSIONS. Mr. President, by all will follow legal precedent to carry out I believe Justice John Gerrard is a accounts, Judge Gerrard of the Ne- the law rather than interpret as he sees worthy member to join the U.S. dis- braska Supreme Court is a good man it. He has been and will be an impartial trict court, and so I stand here today with a good family and many friends, judge, not an activist. So I urge his urging my colleagues to vote in favor and he has done a pretty good job over confirmation by my colleagues. of his confirmation. I yield the floor and suggest the ab- I would also like to take a moment the years—maybe a good job over the sence of a quorum. to talk about the process that brought years—as a capable practicing jurist The ACTING PRESIDENT pro tem- us here this afternoon. In this regard, I now on the Supreme Court of Ne- pore. The clerk will call the roll. would like to offer my appreciation braska. The legislative clerk proceeded to and thanks to my colleague from Ne- I will vote against that nomination, reluctantly. I really do not want to in call the roll. braska, the senior Senator, BEN NEL- one sense, but his nomination raises an Mr. JOHANNS. Mr. President, I ask SON. Senator NELSON called me before unanimous consent that the order for this nomination was made and asked important issue about the duty of a the quorum call be rescinded. for my input. I took that opportunity judge to be faithful to the law and to The ACTING PRESIDENT pro tem- to sit down with Judge Gerrard and to commit to serve under the law and pore. Without objection, it is so or- talk to him. After our meeting and under the Constitution, as the oath of dered. knowing what I knew about the jus- a Federal judge requires. In other Mr. JOHANNS. Mr. President, I am tice, it was my decision to support his words, as a judge you are a servant to very pleased today to rise in support of nomination to the U.S. district court. the law. a man who has proven himself worthy In fact, I would say, if I had total con- You honor the law. You venerate the to serve as a Federal judge on the U.S. trol of this nomination, I would do . You follow the law whether or not district court. all over again. you like it, whether or not you think it Justice John Gerrard has experience, This is a fine man. This is a man who is a good idea, whether or not had you integrity, and respect for the Constitu- I hope will have strong bipartisan sup- been at the Constitutional Convention tion—all of which are necessary for port this afternoon when we vote on in the 1700s, you would have voted for someone serving on our Federal bench. making him a U.S. district judge. He is that phrase or not voted for that He has earned the respect and the ad- a good man, and he deserves a strong phrase or whether if you had been in miration of the people of Nebraska. He bipartisan vote. He is going to adhere the House or the Senate you would consistently receives top ratings from to the laws of our Nation with integ- have worked to change the Constitu- the Nebraska State Bar Association, rity, humility, and a strict adherence tion or change the law of the State of and the people of Nebraska have ex- to the law. Nebraska. Those are matters that are pressed their confidence in him not I yield the floor. outside the province of a judge. If once, not twice, but three times, voting I suggest the absence of a quorum. judges choose to be involved in policy- to retain him on the bench. The ACTING PRESIDENT pro tem- setting, then they ought to invest Justice Gerrard has authored hun- pore. The clerk will call the roll. themselves in the policy-setting dreds of opinions throughout his 16 The assistant legislative clerk pro- branches, the legislative and executive years as a member of the Nebraska Su- ceeded to call the roll. branches.

VerDate Mar 15 2010 01:55 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JA6.009 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE January 23, 2012 CONGRESSIONAL RECORD — SENATE S17 So judges are, as Justice Roberts said ity of the Congress or the State legisla- Court had always held that electrocu- so wonderfully, ‘‘neutral umpires.’’ tures to impose a death penalty. tion was not cruel and unusual, Judge They do not take sides in the game; The Constitution was in no way ever Gerrard asserted in the Moore case they enforce the rules of the game. thought to be a document that would that ‘‘a changing legal landscape raises How those rules have been written and have prohibited all death penalty questions regarding the continuing vi- established and what motivation cases. But there became a movement in tality of that conclusion.’’ caused the Congress to pass them is the middle of the last century and later I am not aware of anything in the not the critical issue. So there is a that the death penalty was bad and landscape that would justify any very troubling matter to me which re- that judges should overthrow it. Actu- change in that. I think 1 State in the veals an activist tendency in this ally two judges on the Supreme Court United States out of 50 has held that judge, and it was the case of State v. opposed every death penalty case be- electrocution is not appropriate. I Moore. cause they said it was cruel and un- don’t know how it violates the cruel The case of State v. Moore in Ne- usual. and unusual clause. I am not sure how braska is very significant because it That was not the Constitution. They they possibly so ruled, but they did. So raises quite clearly these very issues. were allowing their personal views it came up before this court. The Mata In the Moore case, Judge Gerrard took about the wisdom, or lack of it, of the case came up before the court and, to an active role as one of the members of death penalty to influence their judi- sum it up, let me just say they con- the court. Mr. Moore had been on death cial decisionmaking. How can we say cluded, contrary to the previous rul- row since 1980. He had confessed to the Constitution prohibits the death ings of the Nebraska Supreme Court, murdering two people. He had appealed penalty when it makes multiple ref- contrary to the rulings of the U.S. Su- to the Nebraska Supreme Court three erences to the death penalty? Every preme Court, that electrocution times. Three times the Nebraska Su- State and the Federal Government amounts to a cruel and unusual punish- preme Court had denied his appeals. He have been utilizing the death penalty ment and eliminated and stayed the had quit appealing. In fact, he filed a since the time the Republic was found- execution of two individuals, Mr. Mata motion and said he did not desire any ed. and Mr. Moore. more appeals. His pleading said he no So I am not debating the death pen- I guess what I will say is this: We all longer wished to challenge his sen- alty. I am not debating the death pen- in this body have to make a decision tence, and he was being set for an exe- alty. Good people can disagree. It about whether judges make errors— cution that by law he deserved. ought to be brought up on the floor of which they sometimes do—and then Judge Gerrard intervened on his own this Congress, on the floor of the legis- how serious those errors are and what motion and stayed that execution even latures of Nebraska, Alabama, Texas, those errors reflect about the ability of though no pleading had been filed. He and New York, and they can decide the judge to fulfill the oath they take. did it on the basis that while Moore whether they want to have one and The oath, remember, is to serve under was set for electrocution, he was aware how it will be carried out. the Constitution, under the laws of the that another case that was coming up The Constitution does say, however, United States, and to do equal justice to the Supreme Court of Nebraska that we cannot use cruel and unusual to the rich and the poor and to follow dealt with the constitutionality of the methods of carrying out the death pen- the law, in effect, whether you like it death by electrocution statute. Appar- alty because they understood that. or not. ently the judge did not like the death They did not want people to be drawn I think this was not a little bitty by electrocution statute. But he and quartered and chopped up and matter. I think the people of the stopped it. Technically, I am not sure things like that—burned in fires. The United States and judges on the Su- that was correct. He was criticized by accepted penalty at that time was fir- preme Court of the United States have three members of the court, but he did ing squad and hanging, generally. That dealt with death penalty cases for some that. is what was approved in most States. time, and the American people have Then the case came before the court, We still have States—at least one been called upon on a number of occa- this other case, the Mata case. The State today—that allows firing squad. I sions to eliminate death penalties in judge then confronted the fundamental think we still have some that have their States. A few have; most have question of whether the utilization of hanging. But most States have gone not. electrocution was a constitutional more and more to lethal injection, and Mr. President, 30 minutes has been matter. a number, quite a number, still have set aside for me, correct? Now in Nebraska and in most States electrocution. The ACTING PRESIDENT pro tem- there are two types of constitutions: So the question of electrocution was pore. That is correct. The Senator has the U.S. Constitution and the Nebraska brought up. The guy was defending a used just over 13 minutes. Constitution. As is often the case, the person who had been sentenced to die Mr. SESSIONS. I ask to be notified exact same words with regard to the as a result of his crimes. They ob- after 7 additional minutes. death penalty are in the U.S. and Ne- jected, saying electrocution was cruel The ACTING PRESIDENT pro tem- braska Constitutions: that the Con- and unusual in 1890. In 1890 the Su- pore. The Chair will notify the Sen- stitution prohibits the carrying out of preme Court ruled that it was not un- ator. a death penalty by cruel or unusual constitutional. Then again it was ruled Mr. SESSIONS. Mr. President, it is means. ‘‘Cruel and unusual’’ actually is in 1947 that electrocution was not cruel not a little bitty matter. These mat- the phrase. So it must be cruel and it and unusual punishment. Since that ters have gone to the Supreme Court. must be unusual to be unconstitu- time, up until recent years, most—I Electrocution was passed by legisla- tional, otherwise States can all carry would say perhaps even a majority of tures and voters for one reason. They out death penalties as they choose. States—used electrocution as being thought it was a way to carry out a In fact, at the time the Constitution less painful and more consistent with grim death penalty sentence in a way was adopted, every colony, every State our values than a firing squad or hang- less painful than a firing squad and that formed our Union had a death pen- ing. So it was seen as a reform, a better hanging. That is why they did that. It alty. The U.S. Government had a death way to carry out the severe penalty of was not any more cruel and unusual penalty. There are multiple references death. but less cruel and unusual. Death is in- in the U.S. Constitution to the imposi- The Supreme Court of the United stantaneous, and it is an effective tion of a death penalty. It says, for ex- States has since repeatedly denied ap- method and is consistent with our Con- ample, that you cannot deny a person peals to seek to raise again electrocu- stitution, as the Supreme Court held ‘‘life’’ without due process. It makes tion as being unconstitutional. and as the Nebraska Supreme Court reference to ‘‘capital crimes,’’ which This other case came up in Nebraska, previously held. are death penalty crimes. There are State v. Mata. It squarely challenged Here we are in this body and we have several, multiple references to that. the constitutionality of electrocution heard the debates. A lot of good people Implicit in the Constitution itself is a as a method of execution. Although he with very plausible arguments—I don’t constitutional acceptance of the abil- acknowledged the Nebraska Supreme agree with them, but I respect them—

VerDate Mar 15 2010 01:55 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JA6.013 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE S18 CONGRESSIONAL RECORD — SENATE January 23, 2012 say we should not have a death pen- Judge Gerrard is a good man, a smart There has been some suggestion that alty. This is a debate we should have lawyer, and he will do a good job on the Justice Gerrard might seek to craft his and talk about with the American citi- bench—and I hope he does—but I am own preferred outcomes instead of fol- zens. It is not a matter for judges to ef- not voting for judges, as I have said be- lowing the law. I wish to respond to fectively decide by altering the plain fore, who will not establish that they that. The concerns, of course, relate to meaning and principles of the U.S. Con- are willing to follow the law even if a case out of Nebraska, State of Ne- stitution because they think it is not they don’t like it. Particularly, I am braska v. Moore. right. They are not legislators. This is very reluctant to support judges who, I In that case, Justice Gerrard ordered a big issue around the country and peo- believe, in this most controversial area a stay of a death warrant pending the ple are tired of it. They say people are where much debate has occurred, in outcome of another case the Nebraska not happy with the judges and they one form or another, take extraor- Supreme Court was considering. At don’t understand the law. Well, they dinary, unlawful steps in my view, to issue in the second case was whether understand the death penalty. They undermine the death penalty because the death penalty by electrocution, as have considered it. Their elected rep- they don’t like it. provided by Nebraska statute, was con- resentatives have voted on it. It has You say: Somebody else said that sistent with the Nebraska Constitu- been approved in most States. They ex- may have been a mistake, but it is not tion. Because the defendant in Moore pect their judges to carry out the law, disqualifying. I respect other people’s was scheduled to die by electrocution, unless it plainly violates the Constitu- opinions. I am not calling on other peo- Justice Gerrard stayed the warrant tion of their State or the Nation. ple to reject Judge Gerrard. As I said, pending the court’s decision in that I just suggest that I believe this deci- by all accounts, he is a good man. I am second case. In the majority opinion in sion was a product of an ill will or a saying I don’t feel comfortable voting Moore, Justice Gerrard noted that the bias against the death penalty, con- for someone based on a legal issue such court was using its inherent authority sistent with the effort of a lot of people as this that I personally dealt with to stay the warrant. working around the legal system every over the years. I would not oppose him If I might, let me take a moment to day. I was the attorney general of Ala- if he personally opposes the death pen- explain what Justice Gerrard was say- bama, chief prosecutor in the State. I alty. That is fine. But as a judge he is ing there. was a U.S. attorney for 12 years. So I required to carry it out in an effective Some have concluded that what he have wrestled with these issues. I know way. We have had far too much ob- was saying was he was calling on some how the deal works. Everybody in the struction of the death penalty, and I nebulous, indistinct legal authority system understands what this is. hope we will see an end to it and get merely to cloak his own wishes. But I For the Supreme Court of Nebraska judges on the bench who will follow the would suggest respectfully that Justice to hold that electrocution violates the law. Gerrard has fully and very satisfac- cruel and unusual clause of the Con- I reserve the remainder of my time. The ACTING PRESIDENT pro tem- torily explained exactly what he meant stitution of Nebraska or the Constitu- by the specific choice of those words. tion of the United States—they said in pore. The Senator from Nebraska is recognized. He was, in fact, carefully using au- this case, Nebraska, which has exactly Mr. JOHANNS. Mr. President, I ask thorities granted to him by Nebraska the same language as the U.S. Con- if the Senator from Alabama will yield law. As the judge explained in a letter, stitution; for them to rule that way, I me 3 minutes to speak on Judge Nebraska law provides that the Ne- believe, is outside the bounds of what I Gerrard. braska Supreme Court is directly re- am willing to accept. We have people Mr. SESSIONS. I will. I appreciate sponsible for issuing the order of execu- saying the evolving standards of de- my colleague’s interest in this matter. tion of prisoners sentenced to death. So cency, evolving legal principles, and I believe there is considerable time left when Judge Gerrard used his inherent evolving national and international on the other side. He can certainly authority to stay the execution at law says we ought to change. No, the have that on my time. issue in Moore, he was using authority American people rule and they elect The ACTING PRESIDENT pro tem- granted by Nebraska statute to order their representatives and they pass pore. There is about 10 minutes. the execution in the first place. In laws; and judges have one obligation, Mr. SESSIONS. Mr. President, I yield other words, the Nebraska Supreme which is to enforce the law, unless it is what time I have to the Senator from Court, by Nebraska law, has the power plainly contrary to the Constitution. Nebraska. to issue the order and then deal with My opinion, as someone who has been Mr. JOHANNS. Mr. President, I that order in the future. in the legislature and had to defend thank the Senator from Alabama for This is what Judge Gerrard said in death penalties as the attorney general yielding the time. One thing I wish to his letter in a series of questions that of the State of Alabama—my opinion is say, to start out with, is that the Sen- were posed to him relative to his nomi- that declaring electrocution to be an ator from Alabama and I would almost nation for the U.S. district court: unconstitutional method of imposing always agree about judicial appoint- The ‘‘inherent authority’’ referred to in the death penalty steps out of objec- ments. It is a very unusual situation the Moore order was only the court’s inher- tive, neutral judging and evidences a that we would be in any kind of dis- ent authority to control the implementation plain activist tendency to promote a agreement. Many times I come to the of its own orders, just as any court, at any result. floor and seek out the Senator from level, can control its own orders. I think it is compounded by the fact Alabama and ask his thoughts on I should note also that Judge Gerrard that the judge went out of his way, things or to tell me more about a makes plain that he considers the contrary to other judges’ wishes on the nominee. I am here this afternoon with death penalty to be the law of the land, court, to lead an effort to stay one exe- great respect for the Senator from Ala- one that he must uphold. cution until they could take up this bama and his views of judicial nomi- On the question of whether the death case and then to rule over the Chief nees. penalty is constitutional, Justice Judge’s dissent that it was indeed un- I have very strong feelings, though, Gerrard writes: about Justice Gerrard. I have had an constitutional. I am aware of no authority, nor any per- Mr. Moore remains now, since 1980, opportunity to watch this man on the suasive evidence, supporting the conclusion even today, still on death row. People Nebraska Supreme Court for many that the death penalty itself is unconstitu- are unhappy about that. They rightly years. In my view—and I doubt there tional. Our court has concluded in multiple think the law is not working and that would be many who would disagree cases that the death penalty itself is con- there is too much politics in it, and with this—judges, especially Federal stitutional, and I have joined in (and au- people are undermining duly enacted judges, should follow the law and not thored many) of those decisions. law. There was no question of this de- their own inclinations or personal pref- Mr. President, as I have indicated in fendant’s guilt. He murdered two peo- erences or their own personal feelings my remarks in support of this nomi- ple and he confessed to it. on a matter or controversy before nee, I do believe Judge Gerrard will That is the way I feel about this. I them. I think we need to examine this base his decisions on the evidence be- can see a lot of other people saying issue very carefully. fore him and the applicable law. I have

VerDate Mar 15 2010 01:55 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JA6.014 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE January 23, 2012 CONGRESSIONAL RECORD — SENATE S19 had an opportunity to watch him do in the past would have been considered not have to wait for three years before that for years and years. That is what and confirmed by the Senate within a judge hears the case. When two small he will do. He will base his decisions on days of being reported with the support business owners disagree over a con- the evidence before him and the appli- of their home state Senators and the tract, they should not have to wait cable law and nothing else. Further- support of both Democrats and Repub- years for a court to resolve their dis- more, he has earned the respect and lican on the Senate Judiciary Com- pute. With one in 10 Federal judgeships support of Nebraskans, who three mittee. currently vacant, the Senate should times voted to return him to the Last year, final consideration of have come together to address the seri- bench. I believe he is well qualified to qualified, consensus judicial nominees ous judicial vacancies crisis on Federal serve our Nation in the Federal courts took months because Senate Repub- courts around the country. as a district judge. Justice Gerrard’s licans refused to consent to confirma- Professor Carl Tobias makes the nomination deserves our support, and I tion votes. They took this to a new ex- point in his column at the end of last again urge my colleagues to support treme by ending the year by refusing year entitled, ‘‘Judicial Openings him today. to hold votes on any judicial nominees. Erode U.S. Justice System.’’ He cor- Mr. President, I yield the floor. Meanwhile, the millions of Americans rectly observed: ‘‘The Senate recessed The ACTING PRESIDENT pro tem- who are served by the Federal courts in without considering any of the 21 pore. The Senator from Vermont. those districts and circuits whose va- nominees, 16 of whom the Committee Mr. LEAHY. Mr. President, I wish to cancies could be filled with qualified, unanimously reported, on its calendar compliment the Senator from Ne- consensus nominees are left with over- because Republicans refused to debate braska for his comments. I totally burdened courts and unnecessary and vote on them.’’ He goes on to de- agree with him. delays in having their cases deter- scribe some of the slowdown tactics As last year drew to a close, I spoke mined. Senate Republicans have employed and about the Senate’s lost opportunity to I thank the Majority Leader for ar- concludes: ‘‘Most problematic has been take long overdue steps to address the ranging for final consideration of Jus- Republican refusal to vote on serious vacancies crisis on Federal tice John Gerrard’s nomination. Since uncontroversial nominees.’’ I ask con- courts throughout the country. With 1995, Justice Gerrard has served on the sent that a copy of Professor Tobias’ nearly one out of every 10 Federal Supreme Court of Nebraska, and his column be included at the conclusion judgeships vacant, the Senate should nomination received the highest pos- of my statement. not have adjourned with 21 judicial sible rating from the ABA’s Standing In his 2010 Year-End Report on the nominations on the calendar and Committee on the Federal Judiciary, Federal Judiciary, Chief Justice Rob- stalled from having a vote. Regret- unanimously ‘‘well qualified.’’ He re- erts rightly called attention to the tably, Senate Republicans chose to end ceived a near-unanimous vote before problem of overburdened courts across last year using the same obstructionist the Senate Judiciary Committee back the country. Indeed, the workload in tactic that they used the year before. in mid-October last year and has had our Federal trial courts has increased 5 They continue to delay final confirma- the support of his home state Senators, percent during President Obama’s term tion votes on consensus judicial nomi- a Democrat and a Republican, from the in office and 22 percent over the last 10 nees for no good reason. Such delaying outset. Recently, the senior Senator years. Senate Republicans have shown tactics are a disservice to the Amer- from Nebraska announced that this no interest in adding the judgeships ican people and prevent the Senate will be his last year in the Senate. I that the Judicial Conference, Chief from doing its constitutional duty and have always enjoyed working with Sen- Justice Rehnquist and Chief Justice ensuring the ability of our Federal ator NELSON. He has worked hard and Roberts have requested. To the con- courts to provide justice to Americans represented the people of his state well. trary, they have been stalling needed around the country. He has been diligent with respect to ju- Federal judges and keeping judicial va- The result of the Senate Republicans’ dicial nominations for vacancies in Ne- cancies at historically high levels for inaction is that the people of New braska and tirelessly pressed to fill va- unprecedented lengths of time. Unfor- York, California, West Virginia, Flor- cancies there to ensure that cases be- tunately, the unprecedented obstruc- ida, Nebraska, Missouri, Washington, fore the Federal courts in Nebraska tion of consensus judicial nominations Utah, the District of Columbia, Ne- were not needlessly delayed. I am sorry by Senate Republicans continues. They vada, Louisiana, and Texas are without that confirmation of this judicial nom- have dramatically departed from the the judges they need. The result is that ination, one he has so strongly sup- Senate’s longstanding tradition of reg- judicial emergency vacancies in Flor- ported, has been needlessly delayed ularly considering consensus, non- ida, Utah, California, Nevada and more than three months while the Fed- controversial nominations. Their ob- Texas remain unfilled. Last year it eral trial court for the District of Ne- struction marks a new, dark chapter in took us until June to make up the braska remains overburdened. what Chief Justice Roberts had called ground we lost when Senate Repub- More than half of all Americans live the ‘‘persistent problem of judicial va- licans refused to complete action on ju- in districts or circuits that have a judi- cancies in critically overworked dis- dicial nominees at the end of 2010. The cial vacancy that could be filled today tricts.’’ Senate starts this year with 19 judicial if Senate Republicans just agreed to Chief Justice Rehnquist had chas- nominees awaiting final Senate action, vote on the nominations that have tised Senate Republicans for their all but one of them reported with sig- been voted out of the Senate Judiciary stalling tactics on judicial nominees nificant bipartisan support, 16 of them Committee and have been awaiting a during the Clinton administration. In unanimously. They should have been final confirmation vote by the Senate his 2001 Year-End Report on the Fed- confirmed last year. since last year. It is wrong to delay eral Judiciary, Chief Justice Rehnquist By repeating its obstruction and re- votes on these qualified, consensus ju- reiterated his critical comments from fusing to consent to votes on consensus dicial nominees. The Senate should be 1997 and 1998 when Senate Republicans nominees before the end of the year, helping to fill these numerous, ex- were responsible for stalling scores of Senate Republicans have again tended judicial vacancies, not delaying qualified, needed judicial appoint- ratcheted up the partisanship in con- final action for no good reason. ments. By the next year, Senate Demo- nection with filling judicial vacancies. Our courts need qualified Federal crats had completed confirmations of While once Republican Senators judges not vacancies, if they are to re- 100 of President Bush’s nominees and threatened to blow up the Senate to duce the excessive wait times that bur- reduced judicial vacancies throughout force votes on a handful of President den litigants seeking their day in the country to 60. By the end of the Bush’s most extreme ideological picks, court. It is unacceptable for hard- third year of the Bush administration, Senate Republicans now stall and working Americans who are seeking the Chief Justice reported that he was block even President Obama’s main- their day in Federal court to suffer un- pleased by the progress being made fill- stream, consensus nominees across the necessary delays. When an injured ing vacancies and focused his attention board. Those they delayed are the kind plaintiff sues to help cover the cost of on seeking to raise judicial salaries. of qualified, consensus nominees who medical expenses, that plaintiff should With respect to judicial vacancies, he

VerDate Mar 15 2010 01:55 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JA6.019 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE S20 CONGRESSIONAL RECORD — SENATE January 23, 2012 noted that the Federal trial courts had If Republican Senators were con- cial nominees voted on by the Judici- only 27 vacancies. cerned about ensuring that our courts ary Committee who are by any meas- Regrettably, that progress is not have the judges they need to admin- ure consensus nominees be confirmed. being replicated despite President ister justice for the American people, With vacancies continuing at harm- Obama’s efforts to work with home they would not have refused consent fully high levels, the American people state Republican Senators and to for the Senate to consider qualified, and our Federal courts cannot afford nominate qualified, mainstream can- consensus judicial nominees. Repub- these unnecessary and damaging didates. A New York Times editorial licans’ consent is what was needed to delays. So while I am pleased to see from January 4, 2011, properly noted vote to fill these judicial vacancies and John Gerrard’s nomination voted on that Senate Republicans’ ‘‘refusal to support the Federal judiciary, to help today, there remain another 17 quali- give prompt consideration to non- them deal with what Chief Justice Rob- fied, consensus judicial nominees still controversial nominees’’ in 2010 was a erts calls ‘‘demanding dockets’’ and to being stalled from last year. ‘‘terrible precedent.’’ Regrettably, Sen- further public confidence in the integ- For the last two years in a row, Re- ate Republicans continued that tactic rity and responsiveness of our Federal publicans have rejected the Senate’s through 2011. They replicated the justice system. Instead, Senate Repub- traditional, longstanding practice of blockade of consensus judicial nomi- licans’ refusal to confirm 18 qualified, taking final action on consensus nomi- nees they had conducted at the end of consensus judicial nominees before ad- nations before the end of the Senate 2010 by again blocking consensus nomi- journing last year, reminds me of the session. Senate Democrats consented nees across the board at the end of 2011. Republican pocket filibusters that to consider all of the consensus nomi- At the end of 2010, they blocked 17 judi- blocked more than 60 of President Clin- nations at the end of President Rea- cial nominees who should have been ton’s judicial nominations from Senate gan’s third year in office and President confirmed in 2010 but had to be carried consideration. George H.W. Bush’s third year in office, over for months before finally being When I became Chairman in 2001 and when no judicial nominations were left acted upon by the Senate. In 2011, Sen- made the Committee blue slip process pending on the Senate Executive Cal- ate Republicans ended the year need- public for the first time and worked to endar. That is also what the Senate did lessly stalling another 19 judicial confirm 100 judicial nominees of a con- at the end of the 1995 session, President nominees, including 18 who were by servative Republican President in 17 Clinton’s third year in office, when any measure consensus nominees, who months, I hoped we had gotten past only a single nomination was left pend- should have been confirmed. these partisan tactics. I am dis- ing on the Senate calendar. Their partisan tactics are at odds appointed after working for more than That is also what we did at the end of with the professed concern about case- a decade to restore transparency and President George W. Bush’s third year. loads that Republican Senators con- fairness to the process of considering Although some judicial nominations tended justified their filibuster of judicial nominations that Senate Re- were left pending, they were among the Caitlin Halligan and prevented a vote publicans are again using partisan most controversial, extreme and ideo- on her nomination to the D.C. Circuit. holds to block progress at filling judi- logical of President Bush’s nominees. The Washington Times’ banner head- cial vacancies. They had previously been debated ex- line last December 7th correctly pro- If Republican Senators were con- tensively by the Senate. The standard claimed that with the Senate Repub- cerned about ensuring that our courts then was that noncontroversial judicial lican filibuster of that nomination have the judges they need to admin- nominees reported by the Judiciary ‘‘GOP Ends Truce on Judicial Hope- ister justice for the American people, Committee were confirmed by the Sen- fuls.’’ Of course, if caseloads were real- they would do what Democrats did dur- ate before the end of the year. That is ly what mattered to Senate Repub- ing President Bush’s first term. During the standard we should have followed licans, they would not have blocked President Bush’s first term we reduced in 2010 and 2011, but Senate Repub- the Senate from voting to confirm con- the number of judicial vacancies by al- licans would not. They set a new and sensus nominees to fill judicial emer- most 75 percent. When I became Chair- destructive standard to hold up quali- gency vacancies around the country. man in the summer of 2001, there were fied, consensus judicial nominees for If caseloads were really what 110 vacancies. By the time Americans no good reason. mattered to Senate Republicans, they went to the polls in November 2004 The Senate remains far behind where would have consented to consider the there were only 28 vacancies. Despite we should be in considering President nomination of Judge Adalberto Jordan 2004 being an election year, we were Obama’s judicial nominations. Three of Florida, which was reported unani- able to reduce vacancies to the lowest years into his first term, the Senate mously last October, to fill a judicial level in the last 20 years. has confirmed a lower percentage of emergency vacancy on the Eleventh In November of 2008, when I was President Obama’s judicial nominees Circuit. If they were really concerned Chairman with a Republican president, than those of any President in the last with caseloads, they would have con- we again reduced judicial vacancies to 35 years. The Senate has confirmed just sented to move forward to confirm only 37. I was willing to accommodate over 70 percent of President Obama’s Judge Jacqueline Nguyen of California, Senate Republicans and held expedited circuit and district nominees, with a well-qualified nominee to fill a judi- hearings and votes on judicial nomina- more than one in four not confirmed. cial emergency vacancy on the Ninth tions, even as late as September 2008. In stark contrast, the Senate con- Circuit, the busiest Federal appeals By working together, even in an elec- firmed nearly 87 percent of President court in the country. Judge Nguyen is tion year, we were able to reduce the George W. Bush’s nominees, nearly nominated to fill the judicial emer- number of judicial vacancies. nine out of every 10 nominees he sent gency vacancy that remains after an- It is wrong to dismiss the delays re- to the Senate over two terms. That was other Republican filibuster, that sulting from the Senate Republicans’ a higher percentage of judicial nomi- against the nomination of Goodwin obstruction as merely tit for tat. This nees confirmed than President Clinton Liu, now a Supreme Court Justice in is a new and damaging tactic Senate achieved and is far higher percentage California. If they cared about case- Republicans have devised. They are than for President Obama’s nominees, loads, they should also have consented stalling action on noncontroversial most of whom are mainstream, con- to votes on the nominations of Michael nominees and have been doing so for sensus choices. Fitzgerald to the Central District of the last three years. Meanwhile, mil- We remain well behind the pace set California, David Nuffer to the District lions of Americans across the country by the Senate during President Bush’s of Utah, Miranda Du to the District of who are harmed by delays in overbur- first term. By the end of his first term, Nevada, Gregg Costa to the Southern dened courts bear the cost of this ob- the Senate had confirmed 205 district District of Texas, and David struction. and circuit nominees. At the beginning Guaderrama to the Western District of I had hoped and urged that such dam- of his fourth year in office, the Senate Texas, all nominations to fill judicial aging obstruction not be repeated. I had lowered judicial vacancies to 46 emergency vacancies in our Federal had urged that before the Senate ad- and already confirmed 168 of his judi- trial courts. journed last year at least the 18 judi- cial nominees. In contrast, the Senate

VerDate Mar 15 2010 01:55 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\A23JA6.006 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE January 23, 2012 CONGRESSIONAL RECORD — SENATE S21 has confirmed only 124 of President ican jobs. Stealing and counterfeiting tration. We incorporated revised defini- Obama’s district and circuit nominees, are wrong. They are harmful. The In- tions suggested by Senator WYDEN. We leaving judicial vacancies at more than stitute for Policy Innovation estimates held additional hearings to which we 80. The vacancy rate remains nearly that infringement alone invited and Yahoo!. And we re- double what it had been reduced to by costs more than $50 billion a year, and drafted the legislative measure and re- this point in the Bush administration. the sale of counterfeits online is esti- introduced it as The Preventing Real Senate Republicans have returned to mated to be several times more costly. Online Threats to Economic Creativity the strategy of across-the-board delays The AFL–CIO estimates that hundreds and Theft of Intellectual Property Act, and obstruction of the President’s judi- of thousands of jobs are lost to these more commonly known as the PRO- cial nominations, again leading to per- forms of theft. TECT IP Act. Senator GRASSLEY joined sistently high judicial vacancies. In And this is not just an economic and as an original cosponsor. I continued to 2009, the Senate was allowed to confirm jobs problem for Americans. This is a work with all who showed interest. The only 12 Federal circuit and district consumer safety issue. According to a measure was reported unanimously court judges, the lowest total in 50 study released earlier this year, a cou- years. In 2010, the Senate was allowed ple dozen websites selling counterfeit from the Judiciary Committee in May to confirm 48 Federal circuit and dis- prescription drugs had more than 2011, and 40 Senators from both sides of trict judges. That has led to the lowest 141,000 visits per day, on average. Coun- the aisle have cosponsored it. It is rare confirmation total for the first two terfeit medication, brake linings and that editorial boards with divergent years of a new presidency in 35 years. other products threaten Americans’ viewpoints such as The Wall Street As a result, judicial vacancies rose safety. These are serious concerns. Journal and again over 110 and stayed at about 90 These are the concerns I have kept in agree on a problem and legislative ap- for the longest period of historically mind over the last several years as I proach. As I have already noted, this high vacancies in 35 years. have worked with Senators on both problem of foreign rogue websites en- Last year, we worked hard to over- sides of the aisle to help resolve these gaging in piracy, theft and counter- come filibusters and delays and im- serious problems. feiting is one such time. I ask that cop- prove the number of confirmations. I admire and respect the marvelous ies of the recent editorials from The They included 17 confirmations that advances of technology and, in par- Washington Post and The Wall Street should have taken place in 2010 but ticular, those represented by the Inter- Journal be included in the RECORD at were delayed. That resulted in only 47 net. I have promoted its democratizing the conclusion of my remarks. judicial nomination confirmations impact around the world. I have fought The ACTING PRESIDENT pro tem- from hearings conducted last year. to keep the Internet free and open, as pore. Without objection, it is so or- Even including the 17 confirmations in it has become the incredible force that dered. last year’s total that should not have it is today. I have promoted its poten- been delayed from the previous year, tial for access in rural areas, for dis- Mr. LEAHY. Few issues unite the the total lags far behind the total in tance learning, for increasing points of United States Chamber of Commerce President Bush’s second year in office view and allowing all voices to be and the AFL–CIO; the National Asso- when the Senate Democratic majority heard and as a means for small start ciation of Manufacturers and the confirmed 72 Federal circuit and dis- ups and firms in Vermont and else- Teamsters; the cable industry and the trict court judges. It was lower than where to market quality products. Nor broadcast industry. By targeting the is this a newfound interest or passing the total in President Bush’s third year worst-of-the-worst and protecting the fancy. I started and chaired a Judiciary in office, when Senate Democrats integrity of the Internet, we have been worked with the Senate Republican Committee panel two decades ago on technology and the law and was a able to create a broad ranging coalition majority to confirm 68 Federal judges. of support of the PROTECT IP Act. And it was lower than the 66 Federal founder of the bipartisan, bicameral congressional Internet Caucus. Yester- Along with law enforcement groups, judges the Senate Democratic majority more than 400 companies, associations, confirmed in the last year of President day, The Washington Post got it right in its editorial entitled ‘‘Freedom on and unions have come together to sup- George H.W. Bush’s presidency during the Internet’’: port this targeted, bipartisan legisla- a presidential election year. tion to combat foreign rogue websites. The Senate starts this year with 18 A free and viable Internet is essential to qualified, consensus judicial nomina- nurturing and sustaining the kinds of revolu- Protecting American intellectual tionary innovations that have touched every property and the American jobs that tions that should have been confirmed aspect of modern life. But freedom and law- last year. Senate action on those 18 lessness are not synonymous. The Constitu- depend on it is important. Last year we qualified, consensus judicial nomina- tion does not protect the right to steal, and were able to reform our patent laws to tions would have gone a long way to that is true whether it is in a bricks-and- unleash American innovators and help helping resolve the longstanding judi- mortar store or online.’’ boost our economic recovery. Now we cial vacancies that are delaying justice Last week, a Wall Street Journal edi- need to confront the threat to our eco- for so many Americans in our Federal torial was like-minded, noting: nomic recovery posed by Internet pi- courts across the country. I urge Sen- The Internet has been a tremendous engine racy. ate Republicans to abandon these de- for commercial and democratic exchange, but that makes it all the more important to As I have demonstrated throughout structive practices and join with us to police the abusers who hijack its architec- my service in the Senate and again confirm the qualified, consensus judi- ture. during the last two years, I have re- cial nominations they have stalled. . . . Without rights that protect the cre- mained flexible in terms of the legisla- This cycle of unnecessary delays must ativity and innovation that bring fresh ideas end. and products to market, there will be far tive language in order to best meet our Mr. President, I ask to proceed in fewer ideas and products to steal.’’ goals of stemming the criminality morning business to speak about an Two years ago, I announced a bipar- when protecting legitimate activities important effort to help the American tisan effort to target the worst-of-the- and guarding against doing anything to economic recovery and preserve Amer- worst of the foreign rogue websites undercut innovation or fetter free dis- ican jobs. that profited from piracy, stealing and cussion. I have urged those with con- The ACTING PRESIDENT pro tem- counterfeiting, while also ensuring cerns to come forward and to work pore. Without objection, it is so or- that we protect the Internet. I have with us. We adjusted the very defini- dered. been working since that time to do just tions in the bill to narrow them as Sen- PROTECT IP ACT, S. 968 that. In 2010, the bill that Senator ator WYDEN had suggested. I announced Mr. President, rogue websites, pri- HATCH and I introduced was reported two weeks ago that I took seriously marily based overseas, are stealing unanimously by the Senate Judiciary the concerns about the American property, harming American Committee. system provisions and would fix it as consumers, hurting the American eco- I took seriously the views of all con- part of a manager’s amendment when nomic recovery and costing us Amer- cerned. I reached out to the adminis- the bill was considered by the Senate.

VerDate Mar 15 2010 04:30 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\A23JA6.007 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE S22 CONGRESSIONAL RECORD — SENATE January 23, 2012 I regret that the Senate will not be access to sites like YouTube, , are men and women of our National proceeding this week to debate the leg- or eBay. Nothing in PRO- Guard and military who put their lives islation, and any proposed amend- TECT IP requires anyone to monitor on the line for all of us every day, and ments. I thank the Majority Leader for their networks. Nothing in PROTECT for whom a counterfeit part can lit- seeking to schedule that debate on this IP criminalizes links to other websites. erally be a matter of life and death. serious economic threat. I understand Nothing in PROTECT IP imposes li- There are the seniors who are strug- that when the Republican leader re- ability on anyone. Nothing in PRO- gling to be able to afford medications cently objected and Republican Sen- TECT IP can be required without a and order from what appears to them ators who had cosponsored and long court order, first, and without pro- to be a reputable site, only to find that supported this effort jumped ship, he viding the full due process of our Fed- a foreign website has sent them an un- was faced with a difficult decision. My eral court system to the defendants be- tested counterfeit drug that will not hope is that after a brief delay, we will, fore a final judgment is rendered. I also control their blood pressure or diabetes together, confront this problem. Every- note that the guarantees of due process or heart problem. one says they want to stop the Internet provided in the PROTECT IP Act are At the end of the day, this debate piracy. Everyone says that they recog- those likewise provided every defend- boils down to a simple question. Should nize that stealing and counterfeiting ant in every Federal court proceeding Americans and American companies are criminal and serious matters. This in the United States, no less. The PRO- profit from what they produce and be is the opportunity for those who want TECT IP Act requires notice to the de- able to provide American jobs, or do we changes in the bill to come forward, fendant. If the plaintiff seeks an in- want to continue to let thieves oper- join with us and work with us. This is junction, the court must apply Federal ating overseas steal that property and the time to suggest improvements that Rule of Civil Procedure 65, which is the sell it to unsuspecting American con- will better achieve our goals. The PRO- standard for all courts in determining sumers? I hope that in the coming days TECT IP Act is a measure that has whether to issue an injunction, includ- the Senate will focus on stopping that been years in the making, and which ing whether to issue the injunction as theft that is undercutting our eco- has been twice reported unanimously a temporary restraining order for a nomic recovery. I remain committed to confronting this problem. And I appre- by the Senate Judiciary Committee to limited period of time. When stealing ciate the efforts of Senator KYL, Sen- better enforce American intellectual of are involved, such court ator ALEXANDER and others who want property rights and protect American orders can be made if, upon a factual to continue to work in a thoughtful consumers. It has been awaiting Senate showing, a court finds that serious manner with all interested parties to action since last May. Today the rogue harm would otherwise occur and it is find an effective solution to eliminate foreign websites based in Russia that in the public interest to do so while the online theft by foreign rogue websites. are stealing Americans’ property are case is more fully considered. I thank those Senators who called me delighted to continue their operations The PROTECT IP Act is directed at in Vermont and back here this past and counterfeiting sweatshops in China the foreign websites that are the worst- week when I got back to Washington to are the beneficiaries of Senate delay. of-the-worst thieves of American intel- offer their help—Senators on both sides People need to understand that the lectual property and operate from out- PROTECT IP Act would only affect of the aisle. It means a lot. side the United States and the jurisdic- I know the senior Senator from Ne- websites that have been judged by a tion of our courts. These website opera- braska is waiting to speak about the federal court to have no significant use tors prey on American consumers, judicial nominee from his State. I will other than engaging in theft whether steal from our creators and economy, say what I said to him privately be- through stolen content or the selling of but are currently beyond the jurisdic- cause I know this is his last year in the counterfeits. It is narrowly targeted at tion of U.S. courts. Senate. I have always enjoyed working the worst-of-the-worst. Websites that The Obama administrative officials with him. He has worked hard. He has have some infringing content on their were right in a recent post saying ‘‘ex- represented the people of his State sites but have uses other than profiting isting tools are not strong enough to well. He has been very honest in his from infringement are not covered by root out the worst online pirates be- dealings with me. He has been diligent the legislation. Websites like yond our borders.’’ They called on Con- with respect to judicial nominations and YouTube that have obvi- gress ‘‘to pass sound legislation this for vacancies in Nebraska. He has tire- ous and significant uses are among year that provides prosecutors and lessly pressed to fill vacancies there to those that would not be subject to the rights-holders new legal tools to com- ensure cases before the Federal court provisions of the bill. That Wikipedia bat online piracy originating beyond are not needlessly delayed. He did that and some other websites decided to ‘‘go U.S. borders while staying true to the to protect everybody in Nebraska, Re- dark’’ on January 18 was their choice, principles outlined. . . . We should publicans and Democrats, to make sure self imposed and was not caused by the never let criminals hide behind a hol- the courts are open for them. legislation and could not be. low embrace of legitimate American I am sorry the confirmation of Jus- It was disappointing that sites linked values.’’ That is what we are trying to tice Gerrard, one he so strongly sup- to descriptions of this legislation that do with the PROTECT IP Act. ported, has been so needlessly delayed were misleading and one-sided. The What the PROTECT IP Act does is for more than 3 months, but I say to Internet should be a place for discus- provide tools to prevent websites oper- the people of Nebraska they are very sion, for all to be heard and for dif- ated overseas that do nothing but traf- fortunate to have been represented by ferent points of view to be expressed. fic in infringing material or counter- the senior Senator from Nebraska, my That is how truth emerges and democ- feits from continuing to profit from pi- friend BEN NELSON, who has been there racy is served. Last week, however, racy with impunity. The Internet needs fighting for them. He fought for the many were subjected to false and in- to be free, but not a lawless market- people of Nebraska every day from the cendiary charges and sloganeering de- place for stolen commerce and not a day he took the oath of office. This signed to inflame emotions. I am con- haven for criminal activities. may be his last year here, but based on cerned that while critics of this legisla- In the flash of interest surrounding past performance I think it is safe to tion engage in hyperbole about what this bill last week, those who were for- say he will fight for Nebraska right up the bill plainly does not do, organized gotten were the millions of individual until the moment that adjournment crime elements in Russia, in China, artists, the creators and the companies bell sounds. and elsewhere who do nothing but ped- in Vermont and elsewhere who work Mr. President, I ask unanimous con- dle in counterfeit products and stolen hard every day only to find their works sent a January 19 article from the Wall American content are laughing at their available online for free, without their Street Journal and a January 22 article good fortune that congressional action consent. There are factory workers from the Washington Post be printed in is being delayed. whose wages are cut or jobs are lost the RECORD. Nothing in PROTECT IP can be used when low-quality counterfeit goods are There being no objection, the mate- to cut off access to a . Nothing in sold in place of the real thing they rial was ordered to be printed in the PROTECT IP can be used to shut off worked so diligently to produce. There RECORD, as follows:

VerDate Mar 15 2010 02:38 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JA6.020 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE January 23, 2012 CONGRESSIONAL RECORD — SENATE S23 [From the Wall Street Journal, Jan. 19, 2012] and our parent company, News Corp., sup- government censorship and threatened the BRAKE THE INTERNET PIRATES ports the bills as do most other media con- viability and security of the Internet. The tent companies.) protests culminated last week in a remark- Wikipedia and many other websites are Moreover, SOPA is already in its 3.0 able, largely unprecedented protest during shutting down today to oppose a proposal in version to address the major objections. which sites such as Wikipedia temporarily Congress on foreign Internet piracy, and the Compromises have narrowed several vague went dark. Millions of individuals—many of is seconding the protest. The and overly broad provisions. The bill’s draft- them armed with distorted descriptions of covert lobbying war between Silicon Valley ers also removed a feature requiring Internet the bills—phoned, e-mailed and used social and most other companies in the business of service providers to filter the domain name networks to demand that they be quashed. intellectual property is now in the open, and system for thieves—which would have meant Whether it was democracy in action or this fight could define—or reinvent—copy- basically removing them from the Internet’s spinelessness by cowed lawmakers, the cam- right in the digital era. phone book to deny consumer access. But paign worked. House and Senate leaders said Everyone agrees, or at least claims to the anti-SOPA activists don’t care about they would pull back the bills for further agree, that the illegal sale of copyrighted these crucial details. consideration. While a temporary breather and trademarked products has become a The e-vangelists seem to believe that any- may be helpful, lawmakers should not aban- world-wide, multibillion-dollar industry and body is entitled to access to any content at don the quest to curb the multibillion-dollar a legitimate and growing economic problem. any time at no cost—open source. Their real problem that is overseas online piracy. This isn’t college kids swapping MP3s, as in ideological objection is to the concept of Some opponents will fight any regulation the 1990s. Rather, rogue websites set up shop copyright itself, and they oppose any legal of the Internet. This should not be accept- overseas and sell U.S. consumers bootleg regime that values original creative work. able. A free and viable Internet is essential movies, TV shows, software, video games, The offline analogue is Occupy Wall Street. to nurturing and sustaining the kinds of rev- books and music, as well as pharmaceuticals, Information and content may want to be olutionary innovations that have touched cosmetics, fashion, jewelry and more. free, or not, but that’s for their owners to de- every aspect of modern life. But freedom and Often consumers think they’re buying cop- cide, not Movie2k.to or LibraryPirate.me or lawlessness are not synonymous. The Con- ies or streams from legitimate retail enter- MusicMP3.ru. The Founders recognized the stitution does not protect the right to steal, prises, sometimes not. Either way, the tech- economic benefits of intellectual property, and that is true whether it is in a bricks-and- nical term for this is theft. which is why the Constitution tells Congress mortar store or online. The tech industry says it wants to stop to ‘‘promote the Progress of Science and use- such crimes, but it also calls any tangible ef- ful Arts by securing for limited Times to Au- The PRESIDING OFFICER (Mr. fort to do so censorship that would ‘‘break thors and Inventors the exclusive Right to COONS). The Senator from Nebraska. the Internet.’’ Wikipedia has never blacked their respective Writings and Discoveries’’ Mr. NELSON of Nebraska. I thank itself out before on any other political issue, (Article I, Section 8). my colleague, the esteemed chair, for nor have websites like or the social The Internet has been a tremendous engine such kind remarks. I wish they were news aggregator . How’s that for for commercial and democratic exchange, universally believed by all. This is the irony: Companies supposedly devoted to the but that makes it all the more important to kind of introduction my father would free flow of information are gagging them- police the abusers who hijack its architec- have enjoyed but my mother would selves, and the only practical effect will be ture. SOPA merely adapts the current ave- to enable fraudsters. They’ve taken no com- nues of legal recourse for infringement and have believed. I appreciate so very parable action against, say, Chinese repres- counterfeiting to new realities. Without much his kind comments. sion. rights that protect the creativity and inno- The Nebraska Supreme Court tempo- Meanwhile, the White House let it be vation that bring fresh ideas and products to rarily stayed the execution of one pris- known over the weekend in a blog post—how market, there will be far fewer ideas and oner, a Carey Dean Moore, because a fitting—that it won’t support legislation products to steal. full evidentiary record was before it in that ‘‘reduces freedom of expression’’ or another immediately pending case, [From the Washington Post, Jan. 22, 2012] damages ‘‘the dynamic, innovative global State v. Mata, which was referred to by Internet,’’ as if this describes the reality of SHOWS ONLINE COPYRIGHT my friend and colleague from Alabama, Internet theft. President Obama has finally PROTECTION IS NEEDED Senator SESSIONS. That case chal- found a regulation he doesn’t like, which (By Editorial Board) lenged the constitutionality of electro- must mean that the campaign contributions By most measures, the Web site of Google and the Stanford alumni club are Megaupload was a 21st-century success cution as a method of execution. It did paying dividends. story, with 50 million daily visitors and $175 not challenge, it did not deal with, and The House bill known as the Stop Online million in profits. According to the Obama was not associated with whether or not Piracy Act, or SOPA, and its Senate coun- administration, it was also an ‘‘international to have a death penalty. It was not terpart are far more modest than this cyber organized crime enterprise.’’ challenging the death penalty but the tantrum suggests. By our reading they would In an indictment last week, the Justice De- methodology of a death penalty. create new tools to target the worst-of-the- partment accused the company and several worst black markets. The notion that a The court had to determine whether of its principals of conspiracy, racketeering a prisoner should be executed depend- SOPA dragnet will catch a stray Facebook and vast violations of copyright law. The post or Twitter link is false. loss to copyright owners of movies, tele- ing on whether that question was soon Under the Digital Millenium Copyright Act vision programs, entertainment software and answered. The temporary stay was of 1998, U.S. prosecutors and rights-holders other content: some $500 million. The gov- issued and the other case decided as a can and do obtain warrants to shut down ernment calls this the largest criminal copy- matter of State constitutional law. rogue websites and confiscate their domain right case in the nation’s history. The court, by a vote of 6 to 1, deter- names under asset-seizure laws. Such powers Megaupload maintained servers in the mined that execution as a method—and stop at the water’s edge, however. SOPA is United States and relied on U.S.-registered I emphasize ‘‘a method’’ of electrocu- meant to target the international pirates domain names, allowing U.S. prosecutors to that are currently beyond the reach of U.S. tap domestic laws to shutter the business. tion—violated prohibitions against law. But what if the Web site had been run using cruel and unusual punishment, which The bill would allow the Attorney General only foreign-based servers and foreign-reg- is the purview of the court to make to sue infringers and requires the Justice De- istered domain names? U.S. law enforcers that determination where there is a partment to prove in court that a foreign would have had a difficult if not impossible question of dealing with the Constitu- site is dedicated to the wholesale violation time stopping the alleged wrongdoing. tion. of copyright under the same standards that That reality, of course, is what gave rise to The court was clear that the death apply to domestic sites. In rare cir- the Protect IP Act (PIPA) and its House penalty remained valid in Nebraska. cumstances private plaintiffs can also sue for counterpart, the Stop Online Piracy Act remedies, not for damages, and their legal (SOPA), which proposed to give the Justice No writ of certiorari had been taken. tools are far more limited than the AG’s. Department and copyright owners the legal The Nebraska Legislature changed the If any such case succeeds after due process reach and muscle to thwart overseas theft of method of execution to lethal injec- under federal civil procedure, SOPA requires American intellectual property. SOPA was tion, and the execution of Moore, Mata, third parties to make it harder to traffic in fatally flawed, with vague provisions that and others will be carried out accord- stolen online content. Search engines would could have made legitimate Web sites vul- ingly. be required to screen out links, just as they nerable to sanctions. PIPA was more meas- As a matter of fact, the court has set remove domestic piracy or child pornog- ured, allowing action against a site only if a a date of execution for a prisoner to be raphy sites from their indexes. Credit card federal judge concluded it was ‘‘dedicated executed on March 6. This same court and other online financial service companies to’’ profiting from the unauthorized peddling couldn’t complete transactions. of others’ work. set dates of execution while I was Gov- (Obligatory housekeeping: We at the Jour- Still, Internet giants such as Google railed ernor on three occasions, and they nal are in the intellectual property business, against the bills, arguing they sanctioned were carried out. Judge Gerrard was a

VerDate Mar 15 2010 02:38 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\A23JA6.008 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE S24 CONGRESSIONAL RECORD — SENATE January 23, 2012 member of the court at that time and are proceeding with this nomination, cess at least 10 days before the Presi- had no objections to the executions. It which I will support, despite the Presi- dent has invoked this power. is the methodology that the court dent’s actions on recess appointments. Other parts of the Constitution be- dealt with. During the last session we acted re- yond Article II, Section 2 show that It is important to recognize that in sponsibly in considering the Presi- these purported appointments are in- the Moore case the issue was not dent’s nominees. Even the Majority valid. Article I, Section 5 provides, whether the death penalty itself was Leader acknowledged this. He stated, ‘‘Each House may determine the Rules constitutional; it was whether a par- ‘‘We have done a good job on nomina- of its Proceedings. . . .’’ ticular means of execution was con- tions the last couple of months. Actu- In December and January, we pro- stitutional. Those are completely dif- ally, in the last 3 months, we have ac- vided that we would be in session every ferent questions. complished quite a bit.’’ 3 days. The Senate was open and pro- Senator SESSIONS claims that Judge I will have more to say about the re- vided the opportunity to conduct busi- Gerrard stayed the defendant’s execu- cess appointments. But with regard to ness. That business included passing tion in the light of ‘‘a changing legal this nomination I hope my colleagues legislation and confirming nomina- landscape.’’ However, it is not uncom- understand that even though we are tions. In fact, the Senate did pass legis- mon for a court, when presented with proceeding under regular order today, lation, which the President signed. Ac- different cases involving related issues, it is only because this unanimous con- cording to the Constitution—each to withhold ruling on any one case sent agreement was locked in before House—not the President determines until all of the related issues are re- the President demonstrated his mon- whether that House is in session. The solved. Therefore, the Moore order re- archy mentality by making those ap- Senate said we were in session. The flects a pragmatic decision to wait pointments. I am not going to hold this President recognized that fact by sign- until both cases could be resolved. nominee accountable for the out- ing legislation passed during the ses- I agree with Senator SESSIONS that rageous actions of the President. sion. this is about the duty of a judge to be However, as this is a matter of con- Article I, Section 5 also states, ‘‘Nei- faithful to the law and to serve under cern to my Republican colleagues, as it ther House, shall, during the session of the law. However, I strongly disagree should be for all Senators, we must Congress, without the consent of the with Senator SESSIONS’ characteriza- consider how we will respond to the other, adjourn for more than 3 tion of Judge Gerrard as an activist President and restore a Constitutional days. . . .’’ The other body did not con- judge. Judge Gerrard has written 450 balance. Since the adoption of the sent to our recess for more than 3 days. opinions in his 15-plus years on the Ne- unanimous consent agreement gov- No concurrent resolution authorizing braska Supreme Court. The U.S. Su- erning the nomination before us, Presi- an adjournment was passed by both preme Court concluded in a previous dent Obama has upset the nominations chambers. Under the Constitution, we case that the U.S. Supreme Court and process. Article II, Section 2 of the could not recess for more than 3 days. the Nebraska Supreme Court have held Constitution provides for only two We did not do so. The President’s erro- in a related matter that the death pen- ways in which Presidents may appoint neous belief that he can determine alty is not cruel and unusual. Judge certain officers. whether the Senate was in session Gerrard would have no difficulty fol- First, it provides that the President would place us in the position of acting lowing that binding precedent. As a nominates, and by and with the advice unconstitutionally. If he is right, we matter of fact, he has. He has no per- and consent of the Senate, appoints recessed for more than 3 days without sonal beliefs that would prevent him various officers. Second, it permits the the consent of the other body. By from enforcing the death penalty. In President to make temporary appoint- claiming we were in recess, the Presi- fact, he has authored several opinions ments when a vacancy in one of those dent effectively dares us to say that we and voted to affirm the convictions and offices happens when the Senate is in failed to comply with our oath to ad- sentences of defendants who have actu- recess. On January 4, the President here to the Constitution. Yet, it is the ally been sentenced to death. made four appointments. They were President who made appointments Judge Gerrard believes the death purportedly based on the Recess Ap- without the advice and consent of the penalty is an acceptable form of pun- pointments Clause. He took this action Senate while the Senate was in session. ishment. He understands the signifi- even though the Senate was not in re- It is the President who has violated the cant difference between a judge on a cess. This action is of the utmost seri- Constitution. court of last resort interpreting State ousness to all Americans. Of course, the President does not court constitutional law and a Federal These appointments were blatantly admit that he violated the Constitu- district judge who follows U.S. Su- unconstitutional. They were not made tion. He has obtained a legal opinion preme Court precedent. with the advice and consent of the Sen- from the Office of Legal Counsel at his I reiterate for the record, Judge ate. And they were not made ‘‘during own Department of Justice. Gerrard is held in the highest regard by the recess of the Senate.’’ That opinion reached the incredible both the bench and the bar in Ne- Between the end of December and conclusion that the President could braska. He has earned an ‘‘AV’’ today, the Senate has been holding ses- make these appointments, notwith- Martindale-Hubbell rating from his sions every 3 days. It did so precisely standing our December and January colleagues, and the American Bar Asso- to prevent the President from making sessions. That opinion is entirely un- ciation has deemed him ‘‘unanimously recess appointments. It followed the convincing. For instance, to reach its well-qualified’’ to serve on the U.S. dis- same procedure as it had during the conclusion that the Senate was not trict court. term of President Bush. Honoring the available as a practical matter to give I thank my colleague, Senator Constitution and the desire of the Sen- advice and consent, it relies on such JOHANNS from Nebraska, for his sup- ate President Bush declined to make unpersuasive material as statements port and his comments which I think recess appointments during these peri- from individual Senators. were also very supportive, clearly sup- ods. But President Obama chose to The text of the Constitution is clear. portive, of Judge Gerrard and the deci- make recess appointments despite the It allows no room for the Department sions. Clearly, he is not an activist existence of these Senate sessions. to interpret it in any so-called ‘‘prac- judge. In addition to being unconstitu- tical’’ way that departs from its terms. I yield the floor. tional, these so-called recess appoint- The Justice Department also mis- RECESS APPOINTMENTS ments break a longstanding tradition. applied a Judiciary Committee report Mr. GRASSLEY. Mr. President, just They represent an attempted presi- from 1905 on the subject of recess ap- over a month ago, on December 17, the dential power grab against this body. pointments. That report said that a Senate entered into a unanimous con- A President has not attempted to Senate ‘‘recess’’ occurs when ‘‘the Sen- sent agreement to consider the nomi- make a recess appointment when Con- ate is not sitting in regular or extraor- nation of John M. Gerrard, of Ne- gress has not been in recess for more dinary session as a branch of the Con- braska, to be United States District than 3 days in many decades. In fact, gress, or in extraordinary session for Judge for the District of Nebraska. We for decades, the Senate has been in re- the discharge of executive functions;

VerDate Mar 15 2010 04:30 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G23JA6.022 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE January 23, 2012 CONGRESSIONAL RECORD — SENATE S25 when its Members owe no duty of at- pressly prohibit, the danger arises that That opinion, and her total deviation tendance; when its Chamber is empty; his advisers will feel pressure to say from the statements she made during when, because of its absence, it can not that the Constitution does not stand in her confirmation process, show ex- receive communications from the the way. At that point, a President is treme disrespect for the institution of President or participate as a body in no longer a constitutional figure with the Senate and the constitutional sepa- making appointments.’’ limited powers as the founders in- ration of powers. I gave the President Obviously, that report does not sup- tended. Quite the contrary, the Presi- and Ms. Seitz the benefit of the doubt port the Department of Justice. During dent looks more and more like a king in voting to confirm her nomination. these days, the Senate was sitting in that the Constitution was designed to However, after reading this misguided session. It could discharge executive replace. and dangerous legal opinion, I am sorry functions. The Chamber was not This OLC opinion reflects the the Senate confirmed her. It’s likely to empty. It could receive communica- changes that have occurred in the rela- be the last confirmation she ever expe- tions. It could participate as a body in tionship between the Justice Depart- riences. making appointments. In fact, it sat in ment and the President on the question The Constitution outlines various regular session and passed legislation. of presidential power. Formerly, the powers that are divided among the dif- There is nothing in the 1905 report Justice Department gave legal advice ferent branches of our Federal govern- that justifies the President sub- to the President based on an objective ment. Some of these powers are vested stituting his judgment for the Senate’s reading of texts and judicial opinions. in only one branch, such as granting regarding whether the Senate is in ses- It was not an offshoot of the White pardons or conducting impeachment sion. In any event, a Senate Judiciary House Counsel’s office. proceedings. Other powers are shared, Committee report from 1905 does not This more objective view of the lim- such as passing and signing or vetoing govern the United States Senate; in its of Presidential power also provided bills. The appointment power is a 2012. The Senate; as constituted today; a level of protection for individual lib- shared power between the President and the Congress. When one party decides its rules and proceedings. erty, the principle at the core of our turns a shared power into a unilateral The Department is on shaky legal constitutional separation of powers. power, the fabric of the Constitution is ground when it claims that ‘‘whether The President might refuse to accept itself violated, and a response is called the House has consented to the Sen- the advice. He might choose to fire the for. ate’s adjournment of more than 3 days officer who gave him advice with which In Federalist 51, Madison wrote that does not determine the Senate’s prac- he disagreed. He could seek to appoint the separation of powers is more than a tical availability during a period of pro a new officer who would provide the ad- philosophical construct. He wrote that forma sessions and thus does not deter- vice he preferred. But he risked paying the ‘‘separate and distinct exercise of mine the existence of a ‘Recess’ under a political price for doing so. An offi- the different powers of government’’ is the Recess Appointments Clause.’’ cial who thought that loyalty to the ‘‘essential to the preservation of lib- There is no basis—none—for treating Constitution exceeded his loyalty to erty.’’ the same pro forma sessions differently the President could refuse to comply, The Framers of the Constitution for the purposes of the 2 clauses. The at great personal risk. That is what El- wrote a document that originally con- Department simply cannot have it both liot Richardson did during the Satur- tained no Bill of Rights. They believed ways. day Night Massacre of the Watergate that liberty would best be protected by The Justice Department’s opinion era. preventing government from harming contains other equally preposterous ar- During the Reagan Administration, liberty in the first place. That was the guments. For instance, the opinion OLC issued opinions that concluded reason for the separation of powers. claims that the Administration’s prior that the President lacked the power to They designed a working separation of statements to the Supreme Court— undertake certain acts to implement powers through checks and balances to through former Solicitor General Elena some of his preferred policies. The ensure a limited government that pro- Kagan—that recess appointments can President did not undertake those uni- tected individual rights. Madison be made only if the Senate is in recess lateral actions. wrote, ‘‘Ambition must be made to for more than 3 days are somehow dis- President Obama originally sub- counteract ambition. The interest of tinguishable from its current opinion, mitted a nominee for OLC that was the man must be connected with the or that the pocket veto cases do not wholly objectionable. The Senate had constitutional rights of the place.’’ apply. good reason to believe that she would That is what the Framers intended in Or even if they did, the ‘‘fundamental not interpret the law without regard to a case such as this. When the President rights’’ of individuals that the courts ideology. We refused to confirm her. unconstitutionally usurped the power described in those cases include the The President ultimately withdrew of the Senate, the Senate’s ambition right of the President to make recess her nomination and nominated instead would check the President’s. In this appointments. Virginia Seitz. We asked important way, the Constitution is preserved. The There was a time when Presidents be- questions at her confirmation hearing power of the government is limited. lieved that they could take action only and thorough questions for the record. And the liberties of the people are pro- when the law gave them the power to Ms. Seitz responded that OLC should tected. But the Framers did not antici- do so. They obtained advice from the adhere to its prior decisions in accord- pate the modern Presidency. It took Justice Department on the question ance with the doctrine of stare decisis. Justice Jackson’s famous concurrence whether there was legal authority to And she stated that if the administra- in the Youngstown case to address justify the action they wished to take. tion contemplated taking action that presidential powers in today’s world. But Theodore Roosevelt started to she believed was unconstitutional, she When the Judiciary Committee held its change the way Presidents viewed would not stand idly by. Relying on confirmation hearings on President power. He believed that the President those assurances, the Senate confirmed Bush’s Supreme Court nominations, could do anything so long as the Con- Ms. Seitz. my friends on the other side of the stitution did not explicitly preclude Ms. Seitz is the author of this wholly aisle posed many questions about the him from acting. When he used that erroneous opinion that takes an un- Jackson concurrence. That opinion theory to create wildlife refuges precedented view of the Recess Ap- sheds light on these so-called recess ap- against a rapidly expanding industrial pointments Clause. And I suppose it is pointments. base, there was no objection. But a literally true that Ms. Seitz did not For instance, President Obama ar- dangerous precedent was set. When he stand idly by when the administration gued in a nationally televised rally claimed that he could make recess ap- took unconstitutional action: rather, that his actions were justified because pointments during a ‘‘constructive re- she actively became a lackey for the ‘‘[e]very day that Richard [Cordray] cess’’ of the Senate, the Senate re- administration. She wrote a poorly waited to be confirmed . . . was an- jected this view in that 1905 report. reasoned opinion that placed loyalty to other day when millions of Americans When a President thinks he can do the President over loyalty to the rule were left unprotected.... And I refuse anything the Constitution does not ex- of law. to take ‘no’ for an answer.’’

VerDate Mar 15 2010 04:30 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\A23JA6.017 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE S26 CONGRESSIONAL RECORD — SENATE January 23, 2012 Justice Jackson anticipated these recess appointments but who stand idly Mr. GRASSLEY. Mr. President, John hyperbolic statements. He wrote: ‘‘The by as President Obama makes recess M. Gerrard is nominated to be United tendency is strong to emphasize the appointments without a recess? States District Judge for the District transient results upon policies.... I remind my colleagues of my experi- of Nebraska. Judge Gerrard received and lose sight of enduring con- ences as chairman or ranking member his B.S. degree from Nebraska Wes- sequences upon the balanced power of the Finance Committee. I refused to leyan University in 1975 and his J.D. structure of our Republic.’’ President process nominees to positions that from Pacific McGeorge School of Law Obama has definitely let transient pol- passed through that committee to in 1981. icy goals overtake the Constitution. whom President Bush gave recess ap- He began his legal career in private His argument is that the end justifies pointments. That is how I used the au- practice as an associate for the Ne- the means. thority that I had to protect the rights braska law firm of Jewell, Otte, Gatz, His argument is that he can say no to of the Senate. Collins & Domina. A year later, Judge the Constitution. Or, in essence, that I do not believe we should let the Gerrard joined in a new law firm where the Constitution does not apply to him. powers vested in the elected represent- he conducted primarily a general liti- But the Constitution demands that the atives of the American people slip gation practice. In 1990, Judge Gerrard means justify the ends, and that adher- through our fingers because we place and two partners formed a new law of- ence to established procedure is the partisan interests above the Constitu- fice. For the next 5 years, before being best protection for liberty. A monarch tion. I have shown how the Framers appointed to the bench, he engaged in or a king could say no to the Constitu- understood that supposedly expedient an active trial practice and adminis- tion. But under our Constitution, the departures from the Constitution trative law/school law practice. President may not. It is the Constitu- risked individual liberty. The constitu- In 1995, then-Governor Nelson ap- tion, and not the President, that re- tional text in this situation is clear. It pointed Judge Gerrard to the Nebraska fuses to take no for an answer. must be upheld. We must take appro- Supreme Court. He has been retained Justice Jackson was also aware that priate action to see that it is done. (by election) in 1998, 2004, and 2010. He the modern President’s actions ‘‘over- Nor should we wait for the courts. has written roughly 480 opinions, 450 of shadow any others [and] that, almost Although the NLRB appointments which are published. The opinions alone, he fills the public eye and ear.’’ are already the subject of litigation, we cover a variety of legal issues, includ- By virtue of his influence on public should take action ourselves rather ing homicide appeals, tort issues, and opinion, he wrote, the President ‘‘ex- than rely on others. The stakes are too evidentiary disputes. While serving on erts a leverage upon those who are sup- high. On the other hand, even the OLC the State’s highest court, Judge posed to check and balance his power opinion recognizes, as it must, the liti- Gerrard has served on a number of which often cancels their effective- gation risk to the President. committees, including those focusing ness.’’ For more than 200 years, Presidents on issues pertaining to gender, race Some people believe that President have made very expansive claims of and the judicial system. Obama challenged the Senate for par- power under the Recess Appointments The American Bar Association tisan purposes. But Justice Jackson Clause. The President and the Senate Standing Committee on the Federal understood the true partisan dynamic have worked out differences to form a Judiciary has rated Judge Gerrard with that is now playing out. He recognized working government. a unanimous ‘‘Well Qualified’’ rating. that the President’s powers are polit- Now, the Obama administration Mr. President, I suggest the absence ical as well as legal. Many presidential seeks to upend these precedents and of a quorum. powers derive from his position as head that working relationship. It may well The PRESIDING OFFICER. The of a political party. Jackson wrote: find, as did the Bush administration, clerk will call the roll. ‘‘Party loyalties and interests some- that when overbroad claims of presi- The assistant legislative clerk pro- times more binding than law, extend dential power find their way to court, ceeded to call the roll. his effective control into branches of that not only does the President lose, Mr. GRASSLEY. Mr. President, I ask government other than his own, and he but that expansive arguments of presi- unanimous consent that the order for often may win, as a political leader, dential power that had long been a part the quorum call be rescinded. what he cannot command under the of the public discourse can no longer be The PRESIDING OFFICER. Without Constitution.’’ Finally, he concluded, made. objection, it is so ordered. ‘‘[O]nly Congress itself can prevent Although I believe that this ironic Mr. GRASSLEY. Mr. President, I ask power from slipping through its fin- result will ultimately occur here as for the yeas and nays. The PRESIDING OFFICER. Is there a gers.’’ well, the Senate must defend its con- Outside these walls, in the reception stitutional role on its own, as intended sufficient second? There appears to be a sufficient sec- room, are portraits of great Senators of by the framers of the Constitution that ond. we all swore an oath to uphold. the past. The original portraits were The yeas and nays were ordered. Mr. KYL. Mr. President, important selected by a committee that was head- Mr. CONRAD. Mr. President, I yield questions have been raised about Judge ed by then Senator John F. Kennedy. back all time on our side. They included such figures as Webster, Gerrard’s willingness to follow estab- The PRESIDING OFFICER. All time Clay, Calhoun, LaFollette, and Taft. lished precedent in a reasoned way in has expired. Yes, these Senators were partisans. death-penalty cases. Too often, the The question is, Will the Senate ad- But they were selected because of the Senate has confirmed nominees who vise and consent to the nomination of role they played in maintaining the are hostile to the death penalty, and John M. Gerrard, of Nebraska, to be unique institution that is the Senate in who then abuse their authority and United States District Judge for the our constitutional system. In par- twist the law to block the execution of District of Nebraska? ticular, they protected the Senate and legally sound capital sentences that The yeas and nays have been ordered. the country from the excessive claims have been entered by State courts. In The clerk will call the roll. of presidential power that were made his December 15, 2011, written response The assistant legislative clerk called by the chief executives of their time. to questions posed to him by Senator the roll. Where are such Members today? SESSIONS, however, Judge Gerrard as- Mr. DURBIN. I announce that the Where is a member of the President’s sured the Senate that he ‘‘would have Senator from North Carolina (Mrs. party today who is like a more recent no difficulty’’ in following ‘‘binding HAGAN), the Senator from New Jersey Senate institutionalist—Robert C. precedent’’ in capital cases, and that (Mr. LAUTENBERG), the Senator from Byrd? He defended the powers of the he has ‘‘no personal beliefs that would Connecticut (Mr. LIEBERMAN), the Sen- Senate when Presidents overreached— prevent [him] from enforcing the death ator from Maryland (Ms. MIKULSKI), even Presidents of his own party. penalty.’’ I take Judge Gerrard at his and the Senator from Vermont (Mr. Where are the Members who recognized word and thus will vote in favor of con- SANDERS) are necessarily absent. that our sessions every 3 days rightly firming his nomination to be a United Mr. KYL. The following Senators are prevented President Bush from making States district judge. necessarily absent: the Senator from

VerDate Mar 15 2010 02:38 Jan 24, 2012 Jkt 019060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\A23JA6.020 S23JAPT1 rfrederick on DSK6SPTVN1PROD with SENATE January 23, 2012 CONGRESSIONAL RECORD — SENATE S27 Georgia (Mr. CHAMBLISS), the Senator ask the assistant leader something, I yield the floor. from South Carolina (Mr. GRAHAM), the and this is a matter of accommodation. The PRESIDING OFFICER. The Sen- Senator from Utah (Mr. HATCH), the We have two speakers on the Repub- ator from Oregon is recognized. Senator from North Dakota (Mr. lican side and two on the Democratic Mr. WYDEN. Mr. President, Senator HOEVEN), and the Senator from Illinois side. Would he be amenable to entering DURBIN speaks for every Member of the (Mr. KIRK). into an order to lock in the order and Senate. Senator KIRK is such a decent, Further, if present and voting, the go back and forth? caring, and thoughtful man, and all of Senator from Utah (Mr. HATCH) would Mr. DURBIN. I have no objection. us enjoy working with him in the Sen- have voted ‘‘yea.’’ May I have some suggestion about the ate on various kinds of bills. Godspeed, The PRESIDING OFFICER (Mr. time for each? Senators WYDEN and Senator KIRK, for a healthy recovery. MANCHIN). Are there any other Sen- MORAN want to speak. We are thinking of you tonight and you ators in the Chamber desiring to vote? Mr. WYDEN. Mr. President, I think are in our prayers. I am very glad the The result was announced—yeas 74, that is a reasonable request. Senator senior Senator from Illinois has re- nays 16, as follows: MORAN and I, who have teamed up on flected the concerns of everybody from Internet policy, wish to speak for a few [Rollcall Vote No. 1 Ex.] his home State tonight. minutes, if we could follow each other. f YEAS—74 We plan to be brief. The Senator from Akaka Durbin Merkley Illinois will be brief. Is that accept- THE INTERNET Alexander Enzi Moran Ayotte Feinstein Murkowski able? Mr. WYDEN. Mr. President, I want to Barrasso Franken Murray Mr. CORNYN. I ask whether the Sen- take a few minutes with Senator Baucus Gillibrand Nelson (NE) ator from Illinois would agree that fol- MORAN tonight to reflect on the events Begich Grassley Nelson (FL) lowing his comments I be recognized Bennet of the last few days with respect to the Harkin Portman for 10 minutes, and then go back and Bingaman Heller Pryor Internet legislation. I want to begin by Blumenthal Hutchison Reed (RI) forth. thanking Majority Leader HARRY REID Blunt Inouye Reid (NV) Mr. DURBIN. Mr. President, here is for reopening the debate on Boxer Johanns Roberts what I suggest to the Senator from Brown (MA) Johnson (SD) anticounterfeiting and copyright pro- Rockefeller Brown (OH) Kerry Texas. Senator WYDEN and Senator Schumer tection legislation. In pulling the Pro- Burr Klobuchar MORAN already asked for time. I only tect IP Act from the floor, Leader REID Cantwell Kohl Shaheen ask for 3 minutes to speak about Sen- Cardin Kyl Snowe has given the Senate an opportunity to ator KIRK, and then I will turn it over Carper Landrieu Stabenow get this policy right. The Senate now Casey Leahy Tester to them. I will not speak at length. has the opportunity to consult all of Thune Coats Levin After they have spoken—can the Sen- the stakeholders, including the mil- Cochran Lugar Udall (CO) Udall (NM) ator suggest a time? lions of Internet users who were heard Collins Manchin Mr. WYDEN. Five or 10 minutes each. Conrad McCain Warner last week. The Senate has the oppor- Coons McCaskill Webb We will be brief. tunity to ensure that those exercising Corker McConnell Whitehouse Mr. DURBIN. And then we will go their first amendment rights through Crapo Menendez Wyden back to the Senator’s side. Is that fair? the Internet, those offering innovative NAYS—16 Mr. CORNYN. Yes. Mr. DURBIN. I ask unanimous con- products and services, and those look- Boozman Johnson (WI) Shelby ing for new mediums for sharing and Coburn Lee Toomey sent that that be the order. Cornyn Paul Vitter The PRESIDING OFFICER. Without expression, have their voices heard. DeMint Risch Wicker objection, it is so ordered. I also express my appreciation to Inhofe Rubio Senator MORAN. He is an impassioned f Isakson Sessions advocate for job creation and innova- NOT VOTING—10 SENATOR MARK KIRK tion on the Net—the first on the other Chambliss Hoeven Mikulski Mr. DURBIN. Mr. President, we have side of the aisle to join me in this Graham Kirk Sanders been gone for 6 weeks or so. It is great cause. My colleague, Senator CANT- Hagan Lautenberg to see our colleagues back here. A lot WELL from Washington State, who is as Hatch Lieberman of things have been exchanged about knowledgeable as anybody in public The nomination was confirmed. what we did back home during the service about technology, and Senator The PRESIDING OFFICER. Under break, but the focal point of most con- RAND PAUL, who is a champion of the the previous order, the motion to re- versations on the floor this evening has Internet as a place where those who consider is considered made and laid been, rightfully, about my colleague, look at the Net as a marketplace of upon the table, and the President will Senator MARK KIRK. Most everybody ideas, stand together and approach pol- be immediately notified of the Senate’s knows now he suffered a stroke over icy in an innovative way. action. the weekend, and he underwent surgery Last week, tens of millions of Ameri- f in Chicago at Northeastern Hospital cans empowered by the Internet ef- fected political change here in Wash- LEGISLATIVE SESSION last night. All that I know about this comes ington. The Congress was on a trajec- The PRESIDING OFFICER. Under from a press conference his surgeon tory to pass legislation that would the previous order, the Senate will re- gave in Chicago today. We want to change the Internet as we know it. It sume legislative session. make it clear to MARK that he is in our would reshape the Internet in a way, in The Senator from Illinois is recog- thoughts and prayers, as is his family. my view, that would have been harmful nized. We all feel, to a person, that he will to our economy, our democracy, and f make a strong recovery. He is young our national security interests. and in good condition. He prides him- When Americans learned about all MORNING BUSINESS self on his service in the Naval Reserve this, they said no. The Internet enables Mr. DURBIN. Mr. President, I ask and stays fit to serve our country in people from all walks of life to learn unanimous consent that the Senate that capacity, as well as in the Senate. about the legislation and then take proceed to a period of morning busi- He has a tough, steep hill ahead of him, collective action to urge their rep- ness, with Senators permitted to speak but he is up to the task. resentatives in Washington to stop it. therein for up to 10 minutes each. If encouragement from a Democrat, So everybody asked, come Wednes- The PRESIDING OFFICER. Without as well as many Republicans, is what is day, what would happen? In fact, the objection, it is so ordered. needed, he has that. I want to let him American people stopped this legisla- f know, if the word is passed along to tion. Their voices counted more than him in his recovery, that his colleagues all the political lobbying, more than ORDER OF PROCEDURE in the Senate are focusing on his quick all of the advertising, more than all of Mr. CORNYN. Mr. President, reserv- recovery and are anxious for him to re- the phone calls that were made by the ing the right to object, can I kindly turn. heads and the executives of the movie

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