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Timothy K.
Democrat VA

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  • Drug Quality and Security Act—Motion to Proceed—Continued

    by Senator Tim Kaine

    Posted on 2013-11-07

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    KAINE. Madam President, I thank my colleagues, the Senators from Minnesota and Hawaii, for joining me on the floor. This is a matter I feel very strongly about, and I do wish to offer a few words to basically just raise the question of whether there is a double standard for appointment of women to this particular court, the DC Circuit.



    Before I tackle that question, I will say one thing knowing that I am speaking to a law professor. I am concerned more broadly about what I consider sort of a pattern of nullification. If there is a law we don't like and we can't get it overturned, there seems to be efforts to defund it or even shut down government--or, in this case, what I would call the decapitation strategy: If you don't like the National Labor Relations Board, just don't appoint people to run the business or the [[Page S7916]] Bureau of Alcohol, Tobacco, and Firearms or, in this case, the DC Circuit.

    The DC Circuit has an allotted number of judicial positions. This isn't something the President chooses. Congress sets it on the advice of the judicial conference. The judicial conference has not suggested the number should be shrunk. There are 11 judges and 3 are currently vacant. The strategy of blocking appointments is sort of a nullification of law, which I think is troubling. But let me get to the question of what I consider to be a double standard that is blocking some wonderful candidates from going onto this court.

    My legal practice for 17 years was in the civil rights area. In the civil rights area, there is a legal notion called the pretext. When something bad happens--you don't get an apartment, you don't get a job, you don't get your bank loan or your homeowners insurance policy--and if a reason is asserted for that, but the reason just falls apart, it is completely illogical, it is not borne by the facts, that is called a pretext. I worry in this instance there are a couple of pretexts going on because the instances that have been cited by my colleagues--the filibustering of Caitlin Halligan, the filibustering of Patty Millett, and now the filibustering of Nina Pillard--rely on two pretexts. Why are these candidates--Caitlin Halligan, who practiced before the U.S. Supreme Court, was the Solicitor General for the State of New York and did such a good job, why block her? Why block Patty Millett, who worked in the Solicitor General's Office under both administrations, supported by Solicitor Generals of both administrations? Why block Nina Pillard? Nina Pillard was the appellate attorney before the U.S. Supreme Court to argue for the need to admit women students to the Virginia Military Institute in my State, which they have done and it is working very well. One of Nina Pillard's supporters was the superintendent of VMI who was being sued. The promise of America will never be fulfilled as long as justice is denied to even one among us. Josiah Bunting has come forward and said Nina Pillard would be a great circuit justice.

    So what is the reason being asserted to block these three women? The reason asserted is there is not enough of a workload on this court. I think it is clear the asserted lack of workload is a pretext. It is nonexistent. It is a phantom argument which gets brought up whenever we want to but then abandoned whenever we want to. My evidence for that is pretty clear.

    There are two circuit courts--the Eighth and the Tenth Circuit--which have lower caseloads per judge than the DC Circuit, but we have been approving nominees for that circuit this year without raising any question about workload. So we will put folks on the Eighth and Tenth Circuits, even though they have a lower workload and no one complains and the other side doesn't raise that. I asked Members: Why are you raising that here when you weren't raising it on other courts, and they said it is because the DC Circuit is the second highest court in the land. It is a more important court. The phrase used by someone to me: It has more juice. Members on the DC Circuit might be on the Supreme Court. So workload isn't the issue on the other courts. It is just an issue of this court apparently because the court is so important.

    Let's now drill down on what has happened just this year. The Presiding Officer and I are freshmen. We came in on January 3, 2013. We came in with the pending nomination of Caitlin Halligan for the court-- supremely qualified, bipartisan support in the legal profession for her. She was filibustered, and one of the principle asserted reasons was there is not enough workload on the court. So she couldn't even get an up-or-down vote.

    Within 2 months we had another nominee--a superbly qualified nominee whom I introduced before the Judiciary Committee, Sri Srinivasan, and we approved him in the Senate 97 to 0. He is a male. No one raised one question or mentioned the workload on the DC Circuit Court. We had just turned down Caitlin Halligan--because you don't get an up-or-down vote because there is not enough workload--but within 2 months, a 97-to-0 vote we confirmed. I want to make clear, Judge Srinivasan is very qualified to be on this court. But the workload rationale just disappeared.

    But it didn't go away because as soon as Patty Millett is nominated-- as was indicated, not only a superb appellate attorney who has argued more cases before the Supreme Court than all but a handful of women in the history of this country, who has argued cases before the DC Circuit, where we hope she will sit, and other circuits as well. As soon as Patty Millet was nominated, the workload issue pops back up: The court doesn't have enough workload. Now Nina Pillard is being told she is going to be blocked also because the court doesn't have enough workload.

    I assert that this workload issue is a complete pretext. It is not raised about other courts and it is not raised about other nominees. Even this year it hasn't been raised. But it has been raised with respect to three superbly qualified women: Caitlin Halligan, Patty Millett, and Nina Pillard. I have only been here 11 months. I don't know all the previous history. But as I watch, women candidates are being treated differently on this court. This second highest court in the land, this court which has juice from which people may go to the Supreme Court, the women candidates are being treated differently. They are being blocked by concerns about workload which are not being applied in an evenhanded way.

    The last thing I will say is another bit of evidence which I think is fair to put on the table in this question of whether there is a double standard for women. During the Presidency of President Obama, there has also been the nomination of two women to be on the U.S. Supreme Court. These were debates we followed. These two women--Justices Sotomayor and Kagan, enormously qualified, with bipartisan support from bar associations and others. Justice Sotomayor, when her vote was finally held here, more than 75 percent of the Senators in the minority party voted against her confirmation on the Supreme Court. Elena Kagan, when she was up for nomination, 88 percent of the members of the minority party voted against her confirmation to be on the Supreme Court.

    We could look at courts that aren't the two highest in the land and see there have been more appointments of women judges--and that is a good thing and I hope there are more still. But when you get to the DC Circuit and the Supreme Court, it seems there is a double standard. It seems this phantom workload issue gets raised when it suits one side and then immediately dropped a couple months later, only to be raised again to block women candidates. I think that is a very serious concern.

    Congress set the law that there are 11 judges on this court. The President is trying to comply with the mandate of Congress in putting well-qualified women before this body. We should debate their qualifications. If folks have concerns about those, let's have that debate. But we shouldn't block them from being considered and assert reasons that don't stand the light of day.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Minnesota.

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