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Patrick L.
Democrat VT

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  • Executive Session

    by Senator Patrick J. Leahy

    Posted on 2013-03-11

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    LEAHY. Mr. President, I ask unanimous consent that the time be divided in such a way that the vote occur at 5:30.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    Mr. LEAHY. Last week, Senate Republicans were given an opportunity to end their partisan and wrongheaded filibuster of Caitlin Halligan to the D.C. Circuit. Instead, they voted against the Federal judiciary, the administration of justice, and the needs of the American people. The Republican filibuster has lasted for over 2 years, in which Senate Republicans have refused to vote up or down on this highly qualified woman to fill a needed judgeship on the D.C. Circuit. No one can honestly question whether she has the legal ability, judgment, character, ethics, and temperament to serve on the court. The smearing of her distinguished record of service is deeply disappointing.

    [[Page S1281]] Narrow, special interest groups have misrepresented her as a partisan or ideological crusader. She is not. Senate Republicans attacked Caitlin Halligan's advocacy on behalf of her client, the State of New York, with which they disagree. It is wrong and dangerous to attribute the legal positions a lawyer takes when advocating for a client with what that person would do as an impartial judge. That is wrong and not the American tradition. That is not what Republicans insisted was the standard for nominees of Republican Presidents.

    In a March 10 article entitled ``As Obama, Senate Collide, Courts Caught Short,'' The Boston Globe reported over the weekend about the stranglehold Senate Republicans have placed on nominations to fill vacancies on the D.C. Circuit. The Court is now more than one third vacant with 4 vacancies among its 11 authorized judgeships, in what the Globe noted is ``the worst vacancy rate in its history and higher than any other federal circuit court nationwide.'' The article further notes that the Republican filibuster of Caitlin Halligan is representative of what the Republicans have done to obstruct President Obama's nominees the last 4 years. It says: In what is a growing problem infecting the nation's federal courts--both small and large, from San Francisco to Allentown, Pa.--judges are taking far longer to gain approval from the Senate. It's the result of a decline in decorum among senators, the willingness of the Republican minority to use tactics that were previously off-limits, and an overall rise in partisanship. The result is that Washington gridlock is resulting in docket gridlock across the country, with courts not getting the judges they need as a result of dysfunction in the Senate.

    I agree and I hope that Senate Republicans will stop their obstruction of the President's judicial nominees.

    Similarly, in a March 8 article in the New York Times, author Carl Hulse noted that the changes made to filibusters earlier this year: . . . have done little so far this session to curb filibusters, as evidenced by the vote on Ms. Halligan and the politically charged obstacles raised to confirmation votes on Mr. Brennan and Chuck Hagel, a former Republican senator who found himself on the receiving end of a Republican filibuster before winning confirmation as secretary of defense.

    Senate Republicans continue to abuse the nominations process by refusing to give up-or-down votes to nominees. I ask unanimous consent to have this article printed in the Record at the conclusion of my statement.

    Also disconcerting were the comments and tweets by Republicans after their filibuster in which they gloated about payback. That, too, is wrong. It does our Nation and our Federal Judiciary no good when they place their desire to engage in tit-for-tat over the needs of the American people. I rejected that approach while moving to confirm 100 of President Bush's judicial nominees in just 17 months in 2001 and 2002. Indeed, the filibuster of the nomination of Miguel Estrada was different. It was to obtain access to information about his work and whether he acted ideologically as his supervisor at the Office of Solicitor General had alleged. Had we gotten access to those materials, there would have been a vote on the Estrada nomination. Republican Senators now demand access to all sorts of materials while filibustering for the first time in our history the Secretary of Defense and the Deputy Attorney General of the United States, as well as the nominee to head the CIA and judicial nominees. They cannot do that and still complain about the Estrada nomination. Nor was there any information missing in connection with the Halligan nomination. As the debate showed, the opposition was fictitious.

    Today the Senate will finally consider another circuit court nomination that has been needlessly stalled for 1 year. During the year that Richard Taranto's nomination has been pending, two more vacancies have opened up on the Federal Circuit. This judicial vacancy, now one of multiple vacancies on that court, has been left open for almost 3 years, for no good reason.

    There is simply no reason for the year-long delay of Richard Taranto. During the year since he was reported without controversy by the Judiciary Committee, I do not know of a single Senator who has come to the floor to express any reservations about this nomination on the merits. After nearly 4 years when judicial vacancies have remained near or above 80, hardworking Americans seeking justice deserve better.

    Today, the Senate will vote on the nomination of Richard Taranto to the Court of Appeals for the Federal Circuit. He is currently a name partner at the Washington D.C. law firm Farr & Taranto, where he has spent the majority of his professional career. He previously served as Assistant to the Solicitor General and as a law clerk for Justice Sandra Day O'Connor for the U.S. Supreme Court, Judge Robert Bork for the U.S. Court of Appeals for the D.C. Circuit, and Judge Abraham Sofaer on the U.S. District Court for the Southern District of New York. He is a distinguished litigator, who has filed nearly 230 Supreme Court briefs in his career, and who has argued before that court 19 times. He has also argued 20 cases before the Federal Circuit, the court to which he has been nominated. He was unanimously rated ``well qualified'' by the ABA Standing Committee on the Federal Judiciary, its highest rating. Richard Taranto was reported by the Judiciary Committee without controversy in March 2012 and, again, last month.

    The Senate will also be voting this evening on the nomination of Andrew Gordon to the U.S. District Court for the District of Nevada. He is currently a partner at the law firm McDonald Carano Wilson LLP in Las Vegas, Nevada where he has practiced since 1994. Andrew Gordon has the bipartisan support of his home State Senators and he was reported by the Judiciary Committee 1 month ago. There are two additional nominees currently being stalled in Committee that would fill vacancies on the Federal court in Nevada but Senator Heller is objecting to their nominations. After his obstruction of one of the nominees for more than a year, that nominee finally asked that her nomination be withdrawn. She was a very good nominee and the people of Nevada will be worse off for not having her serve on that court.

    These are only 2 of the 20 judicial nominations currently ready for Senate consideration and confirmation. Both of these nominees should have been considered and confirmed last year. All of the 20 nominees now ready for final action had to be renominated this year after being returned at the end of the last Congress. The Senate should act swiftly to let these nominees get to work on behalf of the American people.

    There being no objection, the material was ordered to be printed in the Record, as follows: [From the Caucus, The Politics and Government Blog, the New York Times, Mar. 8, 2013] Democrats Cry Foul Over Wednesday's Other Filibuster (By Carl Hulse) Senator Rand Paul may have staged a Senate-shaking filibuster Wednesday, but his was actually only the second most significant Republican filibuster of the day.

    In a vote just before Mr. Paul, the junior senator from Kentucky, tried to blockade the nomination of John Brennan as director of central intelligence over drone policy, the Senate failed to end debate on the nomination of Caitlin J. Halligan of New York to a seat on the federal appeals court for the District of Columbia.

    The filibuster of Ms. Halligan didn't blow up on Twitter the way Mr. Paul's impressive 12-hour stand did. But of the two, it was the one that could renew a feud over rules governing filibusters and how the Senate handles high-level judicial nominations--an issue that has torn the chamber for years.

    Democrats are already in discussions on how to respond to the Halligan filibuster. They believe Republicans are dead set against confirming qualified Obama administration nominees to the United States Court of Appeals for the District of Columbia Circuit. They accuse Republicans of exaggerating their objections to Ms. Halligan to justify a filibuster under a 2005 agreement that short-circuited the last partisan showdown over filling judicial vacancies.

    That deal, crafted by the famous Gang of 14, put its signatories on record as saying they would not block confirmation votes on appeals court judges without ``extraordinary circumstances'' as determined by each individual. While only members of the gang signed it, it became informal Senate policy and defused a crisis that had Republicans threatening to execute the ``nuclear option'' and bar filibusters against judicial nominees by a simple majority vote instead of with the 67 votes historically needed to change Senate rules.

    It also led to President George W. Bush winning three appointments to the appeals court often considered a feeder to the Supreme Court, giving conservatives an advantage on the influential panel, which hears [[Page S1282]] many federal-powers cases. In its current makeup, the court consists of four judges appointed by Republican presidents and three appointed by President Bill Clinton, with four vacancies--the most ever on that court.

    In filibustering Ms. Halligan, several Republicans cited extraordinary circumstances arising from her earlier work as the solicitor general for the State of New York, particularly on a case against gun manufacturers.

    ``Ms. Halligan advanced the novel legal theory that gun manufacturers, wholesalers and retailers contributed to a `public nuisance' of illegal handguns in the state,'' said Senator Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, accusing her of judicial activism. ``Therefore, she argued, gun manufacturers should be liable for the criminal conduct of third parties.'' Democrats cried foul. The real reason she was blocked, they say, is that Republicans do not want to see the balance of power on the D.C. appeals court shifted. They say that Ms. Halligan was acting in her official capacity representing the State of New York, not as a jurist, and that Republicans have abandoned the extraordinary circumstances test engineered by the Gang of 14.

    ``If you go back to that history of what occurred back then, there is a real question of whether they have broken the deal now,'' said Senator Tom Udall, Democrat of New Mexico. ``This is a key circuit for the country. What they are doing is not allowing these consensus candidate judges to get votes.'' Mr. Udall has been among a group of relatively newer members of the Senate clamoring for significant changes in the rules governing filibusters. One demand is that senators act more like Mr. Paul, and take the floor to make their case when they are trying to block a vote. In January, working to avoid a divisive fight, Senator Harry Reid, the Nevada Democrat and majority leader, and Senator Mitch McConnell of Kentucky, the Republican leader, struck a deal making some modest changes in filibuster rules.

    But those changes have done little so far this session to curb filibusters, as evidenced by the vote on Ms. Halligan and the politically charged obstacles raised to confirmation votes on Mr. Brennan and Chuck Hagel, a former Republican senator who found himself on the receiving end of a Republican filibuster before winning confirmation as secretary of defense. The filibuster is alive and well in the Senate and, as Mr. Paul showed, may even be enjoying resurgence as grand theater.

    Democrats say that despite what they see as clear provocation, they are in no hurry to change the new rules after just two months in place. They say they are more inclined to explore new ways to confront Republicans over the vacancies.

    Mr. Udall says one option might be for the president to make multiple nominations, in effect daring Republicans to find ways to cite extraordinary circumstances in multiple instances.

    ``Rather than putting just one up, we should put before the Senate all four and expose what is happening here,'' said Mr. Udall, who acknowledged that Senate Democrats would need White House cooperation.

    ``We need to design a strategy to counter the Republicans, and we are going to need the president,'' he said.

    The fight will take time to unfold. Democrats say they will wait to see how Republicans respond to future appeals court nominees. But a series of filibusters against what they view as acceptable nominees could quickly bring to a head the push for a change in Senate rules.

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