[Congressional Record Volume 156, Number 17 (Thursday, February 4, 2010)]
[Senate]
[Pages S452-S456]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF M. PATRICIA SMITH TO BE SOLICITOR FOR THE DEPARTMENT OF 
                                 LABOR

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to resume consideration of the 
following nomination, which the clerk will report.
  The legislative clerk read the nomination of M. Patricia Smith, of 
New York, to be Solicitor for the Department of Labor.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 20 minutes of debate, equally divided and controlled between 
the Senator from Iowa, Mr. Harkin, and the Senator from Wyoming, Mr. 
Enzi, or their designees.
  Who yields time?
  The Senator from Wyoming.
  Mr. ENZI. Madam President, I rise, again, in opposition to the 
nomination of Patricia Smith to serve as the Solicitor of the Labor 
Department. As I noted on Monday, the Framers crafted a system of 
checks and balances to ensure that each government branch has a means 
to review the actions of other branches. In the Senate, one of those 
checks is our constitutional duty to provide advice and consent on 
executive branch nominations.
  The leader earlier talked about the amount of time it takes for 
cloture on people. It does take quite a while, but it is part of the 
process. I can tell you, when there is a hearing on a person, if there 
are 270 questions to start with and the other people in a similar 
position have a couple dozen questions, you know there is a little bit 
of a problem that could develop with that one person, depending on how 
they answer or don't answer the questions.
  This isn't something new. This isn't something that happened just 
this year. I was chairman of the HELP Committee for 2 years and then 
ranking member for 2 years. During that time, President Bush had an 
appointment as the FDA Commissioner that was stopped. We never even got 
him to the floor. We had an MSHA Director--I think it was the first 
MSHA Director--who worked in a mine. That was the mining safety person. 
We had a Surgeon General and others. Then the schedule was set up so 
there were no recesses so there couldn't be recess appointments. So 
this is an ongoing matter and both sides should take note of that and 
ask the person making the nominations to come up with reasonable 
nominations, not people who have an agenda already set out that will 
result in the kind of conflicts we have had on some of these 
nominations.
  This advice and consent is a responsibility I take seriously. 
Nominees before the Senate must be qualified and present their 
credentials to us completely and honestly. Senators have an obligation 
to confirm nominees who possess the strength of character and 
experience required for a position of public trust. I rarely oppose 
Presidential nominees and to date have supported over 50 nominees 
reviewed in the HELP Committee since the President was inaugurated. I 
believe the President is ultimately responsible for the conduct of his 
administration, so he has a right to select his team, up to a point.
  New York commissioner of labor Patricia Smith's long record of public 
service--which my colleagues in the majority have discussed in detail--
would ordinarily have made her a bipartisan choice to lead one of the 
most important offices in the U.S. Labor Department. Unfortunately, her 
misleading testimony to the HELP Committee has caused me to lose 
confidence in her nomination.
  I spoke on Monday about the specific factual inconsistencies, and on 
Tuesday I discussed a number of other concerns about Ms. Smith's agency 
and a program she created and implemented in New York. I have also 
posted a 41-page report detailing my concerns with Ms. Smith's 
nomination on the HELP Committee Web site.
  The report found that Ms. Smith misled the HELP Committee over the 
course of several months.
  That report may be found at http://help.senate.gov/imo/media/doc/
2010_02_011.pdf.

[[Page S453]]

  The majority acknowledges that there are factual inconsistencies 
between what Ms. Smith said before the HELP Committee and official 
documents from the State of New York. The suggestion that the rationale 
for these inconsistencies lies in the fact that Ms. Smith was busy 
running a large agency and cannot really be held accountable for this 
small program is simply not supported by the facts. Official documents 
show the following: Ms. Smith named the program. She personally met 
with the union organizer and community organizing advocates developing 
it with her subordinates in November 2008. She personally met with the 
five trade associations concerned about the program. She personally 
promoted the program in speeches, internally to her staff and to the 
media.
  Ms. Smith was involved in close to 100 communications about the 
program, either being referenced or as a sender or recipient. Moreover, 
she admits her program was the topic of numerous personal discussions 
she had with the New York Governor's Office:

       Beginning in the late fall of 2008, I also discussed the 
     pilot on numerous occasions with Jeff Mans, the Deputy 
     Secretary to the Governor for Labor and Financial Regulation. 
     I have no written notes from the conversations and can not 
     tell you on what days the discussions took place as I speak 
     with Mr. Mans at least three times a week and there was never 
     a conversation specifically devoted to the pilot. The purpose 
     of the conversations was to apprise him of the Labor 
     Department's ideas for the pilot and to get the approval of 
     the Governor's office. . . . I had a telephone conversation 
     with the Assistant Counsel David Weinstein of the Governor's 
     counsel's office, and Deputy Secretary Mans, on February 4th. 
     I answered questions about how the program operated.

  I have heard the suggestion from the other side of the aisle that 
because the program does not appear illegal or immoral, Ms. Smith 
should get a pass for her factual inconsistencies. However, the 
question of whether Wage and Hour Watch was ethical or legal is 
irrelevant to whether Ms. Smith's testimony was inaccurate or 
misleading.
  The majority also argues there was a possible breakdown between Ms. 
Smith and her deputy that caused the misleading testimony. Ms. Smith, 
however, has worked with her deputy for more than five years. Moreover, 
if confirmed, Ms. Smith would be in charge of legal compliance for a 
Department whose budget projects spending ten times what she oversees 
in New York--$104.5 billion in 2010. Leaving aside the extensive 
documentation showing she was heavily involved in this program, I ask 
my colleagues: why would we consider expanding her responsibility 
tenfold when she has been unable to oversee her subordinates 
effectively in New York?
  In August, I noted my concerns to President Obama, and offered my 
assistance in ensuring a qualified replacement would be confirmed 
quickly. I also joined nine Republican HELP Committee members in urging 
Chairman Harkin to refrain from approving this nominee in committee and 
made the same offer of assistance in ensuring a qualified replacement 
is given a swift review and confirmation. I was forced to insist on a 
full debate on her nomination, which advanced on a party-line vote this 
past Monday.
  It is clear that Ms. Smith's statements misled the committee. It is 
also apparent that each inconsistent statement in effect downplayed 
concerns held by Republican members. Most disturbing, however, is that 
her written committee responses suggest Ms. Smith knew her testimony 
was misleading as early as July 2009 but did not correct the problem 
until contacted by a. majority staff in September--more than 2 months 
later.
  I strongly believe that confirming someone as a head legal officer 
for a Cabinet agency under these circumstances sends the wrong message 
to the American people and the career staff she will oversee. I am also 
particularly disappointed that such a controversial nominee is being 
forced through before newly elected Senator Scott Brown is sworn in. 
These sorts of actions may be part of the reason public confidence in 
Congress and the government is so low.
  I urge my colleagues to oppose this nomination.
  I yield the floor and reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa is 
recognized.
  Mr. HARKIN. Madam President, I have listened again to my friend, and 
he is my friend. We worked together on a lot of issues, and we will 
continue to work together on issues. I have listened to Senator Enzi's 
comments, and I was thinking, is there anything new here? We have heard 
all this before, on and on and again. No matter how many times you 
repeat it, it just doesn't seem to hold much water.
  I grant Ms. Smith made two mistakes in her testimony, two mistakes 
when she appeared before the committee--which she corrected. One of 
those had to do with the origins of the program. When she was asked 
about this, she thought at that time that the program really had kind 
of originated among her staff. What she found out was that some of her 
staff had been talking to outside groups about this. The idea seemed to 
come from just a meeting of different people, but both within her 
agency and outside, so Ms. Smith corrected that. That is hardly a cause 
for her not assuming this position. Again, why would she want to 
mislead the committee on that when there was nothing wrong with it? So 
the idea came from an outside group--so what? It doesn't make any 
difference. She was just trying to answer honestly where she thought 
the idea had originated within her agency. So, again, she corrected 
that, as we let people do.
  The second one had to do with the expansion of the program. I read 
the testimony, I read the record more than once on that. She has 
answered that in writing back. It was a question by Senator Burr about 
whether she had plans for expansion, something like that. She said no 
to that.
  What she meant to say--and when she reread it, she answered in 
writing--she had not authorized an expansion of the program. Yes, she 
had discussions with her staff and maybe others about, if the pilot 
program actually worked and was successful, yes, they would plan to 
expand it. But they had to get the pilot program through first to see 
what went wrong, what went right, does it need to be changed, does it 
need to be modified before there can be an expansion. So, again, she 
corrected the record on that, saying she had not authorized an 
expansion of the program at that point.
  Again, there were two minor mistakes corrected in writing. That is 
hardly a cause for denying her this position. As I pointed out 
yesterday, we correct the Record all the time around here when we speak 
on the Senate floor because maybe I made a mistake in what I really 
wanted to say, I didn't say it correctly. I probably should not say 
this, but sometimes reporters don't kind of get the nuance of what we 
wanted to say, perhaps, and how we wanted say it. So we correct the 
Record all the time. It is done all the time around here between what 
you say and what you read in the Congressional Record because human 
beings make mistakes. So, again, hardly a cause for denying Patricia 
Smith this position.
  Again, I daresay I have not heard anyone question her qualifications. 
She is eminently well qualified for this position. As I said the day 
before yesterday--and I put in the Record a number of letters from 
business groups in New York supporting her, saying she was fair and 
judicious, worked with them. She has run the department of labor in New 
York--I think an $11 billion agency with about 4,000 employees. No one 
has ever questioned her ability to run that agency.
  We have heard: Well, if she didn't know what was going on with this 
little $4,000 pilot project, then she can't run an agency. You know, 
again, we always delegate to staff--especially if you have large stuff 
and you are running big things--about little things like that that they 
can do.
  Again, I heard my friend say she knew about this program. Of course 
she knew about the program, she knew about the pilot program. Frankly, 
I think she was kind of excited about the program to see whether it 
would work and if it was a legitimate, good program that would work to 
help inform people of their rights under the law. Surely, my friend is 
not saying that is something that should not be done--help people, 
inform them of their rights, or to report violations of the law. 
Surely, no one is saying no one, if they see a violation of the law, 
should

[[Page S454]]

not report it. But that is what this Wage Watch was supposed to do.
  She made it clear in her statement of January 2009--in her statement, 
not staff's statement but her statement and her e-mail to her 
subordinates--that this was not an investigative arm, they were not 
replacing staff, this was merely an informational group, and also to 
see if there were any violations of law, to report it. Surely, no one 
can say that is not a legitimate function of volunteer groups.
  Again, we are here to vote on final passage of the nomination of 
Patricia Smith for Solicitor of the Department of Labor. I am glad we 
can finally bring this to a close. It has gone on too long. We have 
been considering it on the floor since Monday, postcloture. In all that 
time, there has been very little by way of debate. We have only had two 
Republican Members come to this floor to speak and explain why they 
oppose this critical nomination.
  There is nothing new about Patricia Smith that we have learned since 
Monday. Indeed, nothing has emerged that we didn't know when we voted 
her out of committee back in September. We know she is well qualified, 
extremely. Everyone acknowledges this. She has an impressive record of 
accomplishments at the New York Department of Labor. She is strongly 
supported by local leaders and even the local business community. 
Again, this, too, is undisputed. And as I said, she corrected in 
writing these two errors she made when she testified before the HELP 
Committee last year.
  In the 4 months that have passed since the Republicans first 
threatened to filibuster her nomination, we have not learned one new 
piece of information that can change anyone's mind about whether she is 
a qualified candidate to serve as Solicitor of Labor. All the last 4 
months of delay has achieved is to keep her out her job and hamper the 
Department of Labor's ability to perform its important function.
  That is not what this process is supposed to be about. This 
government cannot function if we, as Senators entrusted with the 
important power to advise and consent on Presidential nominations, 
abuse that power--I repeat, abuse that power by using extraordinary 
procedural tactics to block the nominations of qualified people. The 
filibuster, as I understand it, was supposed to be reserved for extreme 
cases when there are critical public policy issues at stake, where the 
country may be divided on them. It is not supposed to be a routine 
delay tactic for every nominee the minority party disagrees with or 
that one person--not the entire group but one person--disagrees with.
  The American people are getting fed up, and they should be. We cannot 
even get routine business conducted around here anymore. American 
families are sitting around the kitchen table worried about a lot of 
things--about their health care, about their kids' education, and more 
than anything, about their jobs--if they don't have one, about when 
they are going to get one, and if they have one, can they keep it. How 
they are going to pay their bills if they become unemployed? We can't 
help them, we can't help the families of America by spending day after 
day of time here in quorum calls, with the lights on, the electricity 
running, people here, and we do nothing, we just sit here because the 
Republican side has engaged in a filibuster. Playing these procedural 
games does not advance our country one bit.
  We can, however, help our families by attacking the jobs problem with 
every weapon in our arsenal, and that includes a fully staffed and 
strong Department of Labor. While I am sorry it has come to this, this 
long filibuster and all these days wasted, I am glad this process has 
come to an end. It is time to vote so we can let Patricia Smith get to 
work, so we can get back to the business here of helping our families 
across America.
  I yield the floor.
  Mr. ENZI. Madam President, what is the time situation?
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming has 2 
minutes 40 seconds. The Senator from Iowa has 34 seconds.
  Mr. ENZI. Madam President, this argument about using the filibuster--
I have to say that both sides have used the same cloture techniques. I 
think if you check with the Bush nominees, we usually withdrew those 
and put someone else in. Of course, that had something to do with the 
relative size of the majorities.
  But the problem here is with how the program was run. We keep talking 
about whether it was legal. It probably was legal, but there are some 
things done there that I don't think the average person wants done to 
them. The Wage and Hour program was to recruit and train union 
organizers and public interest groups to go into businesses with 
compliance literature and interview employees to discover violations of 
the wage and hour law. It was expanded to include OSHA.
  The State of New York gives participants materials to disseminate and 
official cards identifying them and their group as part of a program 
for when they enter businesses and speak with the employers and 
employees. As part of this process, union and community organizers were 
directed to gather personal telephone numbers, vehicle license plates 
and home addresses of business owners, as well as details about the 
employees working there. Labor organizers and community activists were 
allowed to use this information for their own organizing activities. 
State identification cards were provided to the individuals, but the 
State conducted no background check on those they trained and provided 
identification cards. Is that the kind of program we would expect Ms. 
Smith to federalize if she became a Solicitor?
  A deep concern to me is how Ms. Smith described the decision not to 
conduct vetting or background checks for the Wage and Hour Watch 
participants who could collect this personal information. When 
questioned about it, she explained there is no formal vetting process 
for the New York State Department of Labor to partner with an entity. 
They did not consider the possibility of background checks on the 
groups, but ultimately rejected the idea after inquiring as to why the 
Neighborhood Watch groups were subjected to background checks. The 
department was informed that the groups participating in this more 
sensitive crime prevention partnership are not subject to a check. But 
there is a major difference in the way they work. The National 
Sheriff's Association Neighborhood Watch Program, unlike the Wage and 
Hour, is purely an observe and report program. Calling the police about 
suspicious activity in a public area is different than investigating 
the wages and hours of individual employees and recording their 
personal contact information.
  So for these reasons, and the ones I have given on previous 
occasions, and that Senator Isakson has given and members of the 
committee have expressed, I urge my colleagues to oppose the 
nomination.
  I yield the floor and the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. HARKIN. Let me put one thing to rest here. No one on Wage Watch 
was authorized to enter any business unless the business owner agreed 
to that. The only exception is if the public was allowed. Sure, they 
could go into a department store or a restaurant or someplace such as 
that where the general public went. But they could not go into any 
business without the business owner's permission, and they could do 
nothing other than what the general public can do right now.
  We need more people doing what these volunteers were doing and making 
sure that people's rights are respected.
  Mr. LEAHY. Madam President, today, the Senate will finally have an 
up-or-down vote on the nomination of Patricia Smith to be Solicitor 
General for the Department of Labor. Earlier this week the Senate voted 
to invoke cloture and end the 15th filibuster of President Obama's 
nominations to fill important posts in the executive branch and the 
judiciary. That number does not include the many others who have been 
denied up or down votes in the Senate by the anonymous obstruction of 
Republicans refusing to agree to time agreements to consider even 
noncontroversial nominees.
  Every single Republican Senator who voted on Monday voted against 
cloture and to keep filibustering this well-qualified nominee. Every 
single Republican voted to obstruct the Senate from doing the business 
of the American

[[Page S455]]

people. Wasn't it just a few years ago that Republicans were demanding 
up or down votes for nominees, and contending that filibusters of 
nominations were unconstitutional? Not a single Republican voted for 
cloture and to stop the filibuster of this nomination.
  The obstruction and delay does not stop there. Since 60 Members of 
the Senate voted to invoke cloture and bring the debate to a close, 
Republican Senators have insisted on delaying the vote for several 
additional days. This afternoon, that up-or-down vote finally takes 
place.
  After the Senate is finally able to consider the Smith nomination, we 
will then have the opportunity to end the filibuster of another 
nomination, that of Martha Johnson to head the General Services 
Administration, GSA. Her nomination has been stalled on the Senate 
Executive Calendar since June 8 due to the opposition of a single 
Republican Senator over a dispute with GSA about plans for a Federal 
building in his home State. The will of the Senate and the needs of the 
American people are held hostage by a single Senator.
  Overall, as of this morning, there were more than 75 judicial and 
executive nominees pending on the Senate Executive calendar, many being 
held up for purely political purposes.
  Yesterday, at the Democratic Policy Committee's issue retreat, I 
asked President Obama if he will continue to work hard to send names to 
the Senate as quickly as possible and to commit to work with us, both 
Republicans and Democrats, to get these nominees confirmed. So far 
since taking office, the President has reached across the aisle working 
with Republicans and Democrats to identify well-qualified nominations. 
Yet even these nominations are delayed or obstructed. The President 
responded by stating:

       Well, this is going to be a priority. Look, it's not just 
     judges, unfortunately, Pat, it's also all our federal 
     appointees. We've got a huge backlog of folks who are 
     unanimously viewed as well qualified; nobody has a specific 
     objection to them, but end up having a hold on them because 
     of some completely unrelated piece of business.
       On the judges front, we had a judge for the--coming out of 
     Indiana, Judge Hamilton, who everybody said was outstanding--
     Evan Bayh, Democrat; Dick Lugar, Republican; all recommended. 
     How long did it take us? Six months, six, seven months for 
     somebody who was supported by the Democratic and Republican 
     senator from that state. And you can multiply that across the 
     board. So we have to start highlighting the fact that this is 
     not how we should be doing business.

                           *   *   *   *   *

       Let's have a fight about real stuff. Don't hold this woman 
     hostage. If you have an objection about my health care 
     policies, then let's debate the health care policies. But 
     don't suddenly end up having a GSA administrator who is stuck 
     in limbo somewhere because you don't like something else that 
     we're doing, because that doesn't serve the American people.

  I could not agree more with President Obama. This should not be the 
way the Senate acts. Unfortunately, we have seen the repeated use of 
filibusters, and delay and obstruction have become the new norm for the 
Republicans in the Senate. We have seen unprecedented obstruction by 
Senate Republicans on issue after issue--over 100 filibusters last year 
alone, which has affected 70 percent of all Senate action. Instead of 
time agreements and the will of the majority, the Senate is faced with 
a requirement to find 60 Senators to overcome a filibuster on issue 
after issue. Those who just a short time ago said that a majority vote 
is all that should be needed to confirm a nomination, and that 
filibusters of nominations are unconstitutional, have reversed 
themselves and now employ any delaying tactic they can.
  The Republican practice of making supermajorities the new standard to 
proceed to consider many noncontroversial and well-qualified 
nominations for important posts in the executive branch, and to fill 
vacancies on the Federal courts, is having a debilitating effect. 
Despite the fact that President Obama began sending judicial nominees 
to the Senate 2 months earlier than President Bush, last year's total 
was the fewest judicial nominees confirmed in the first year of a 
Presidency since 1953, a year in which President Eisenhower only made 
nine nominations all year, all of which were confirmed. The number of 
confirmations was even below the 17 the Senate Republican majority 
allowed to be confirmed in the 1996 session. The Senate could have 
considered and confirmed another 10 judicial nominees that had all been 
reported by the Senate Judiciary Committee. Only 12 of President 
Obama's judicial nominations to Federal circuit and district courts 
were confirmed all last year, less than half of what we achieved during 
the second half of President Bush's first tumultuous year.
  We have confirmed only two more judicial nominees so far this year. 
Republicans have objected to consideration of the nomination of Joseph 
Greenaway of New Jersey to the Third Circuit, a nomination reported 
unanimously from the Senate Judiciary Committee last October. His would 
be the next judicial nomination to consider and confirm, but Senate 
Republicans object.
  Even after years of Republican pocket filibusters that blocked more 
than 60 of President Clinton's judicial nominees, Democrats did not 
practice this kind of obstruction and delay in considering President 
Bush's nominations. We worked hard to reverse the Republican 
obstructionism. In the second half of 2001, the Democratic majority in 
the Senate proceeded to confirm 28 judges. By this date during 
President Bush's first term, the Senate had confirmed 31 circuit and 
district court nominations compared to only 14 during President Obama's 
first two years. In the second year of President Bush's first term, the 
Democratic majority proceeded to confirm 72 judicial nominations, and 
helped reduce the vacancies left by Republican obstructionism from over 
110 to 59 by the end of 2002. Overall, in the 17 months that I chaired 
the Senate Judiciary Committee during President Bush's first term, the 
Senate confirmed 100 of his judicial nominees.
  We continued to be fair and continued working to reduce judicial 
vacancies even during President Bush's last year in office. With 
Democrats again in the majority, we reduced judicial vacancies to as 
low as 34, even though it was a Presidential election year. When 
President Bush left office, we had reduced vacancies in nine of the 13 
Federal circuits.
  The Republican Senate minority has resumed its strategy to put 
partisan politics ahead of the needs of the American people for courts 
that can provide justice. Last year was worse than the 1996 session 
when they allowed confirmation of only 17 judicial nominees. The years 
of demands from Republican Senators for up-or-down votes for every 
nominee apparently only applied to those nominated by a Republican 
president.
  As matters stand today, judicial vacancies have spiked again as they 
did due to Republican obstruction in the 1990s, and are again being 
left unfilled. We started 2010 with the highest number of vacancies on 
article III courts since 1994, when the vacancies created by the last 
comprehensive judgeship bill were still being filled. While it has been 
nearly 20 years since we enacted a Federal judgeship bill, judicial 
vacancies are nearing record levels, with 102 current vacancies and 
another 21 already announced. If we had proceeded on the judgeship bill 
recommended by the Judicial Conference to address the growing burden on 
our Federal judiciary, as we did in 1984 and 1990, in order to provide 
the resources the courts need, current vacancies would stand over 160 
today. That is the true measure of how far behind we have fallen. 
Justice should not be delayed or denied to any American because of 
overburdened courts and the lack of Federal judges. The rule of law 
demands more. The American people deserve better.
  Among the nominees ready for Senate approval are nine Federal 
judicial nominees reported by the Senate Judiciary Committee. Two would 
fill vacancies on the Third Circuit, three would fill vacancies on the 
Fourth Circuit, and there are nominees to fill vacancies on the First, 
Second and Sixth Circuits, as well as a district court nominee to 
Wisconsin. The delay in considering them is also part of this effort to 
delay and obstruct. Judge Greenaway, about whom Senators Lautenberg and 
Menendez spoke again this week, was reported by unanimous consent back 
in October, four months ago. Nobody has come forward to explain why his 
nomination is being stalled. He is a good judge. Senator Sessions 
praised him at his confirmation hearing. Judge Greenaway is one

[[Page S456]]

of the many outstanding judicial nominations reported by the Senate 
Judiciary Committee that remain stalled on the Senate Executive 
Calendar. They should have been confirmed last year and would have but 
for Republican objection. When considered, they will be confirmed but 
not before being needlessly delayed for months.
  They insisted on debate on the nomination of Judge Gerard Lynch, who 
was confirmed with more than 90 votes. Republicans insisted on hours of 
debate for the nomination of Judge Andre Davis, who was confirmed with 
more than 70 votes. Senate Republicans unsuccessfully filibustered the 
nomination of Judge David Hamilton last November, having delayed its 
consideration for months. For at least 2 additional months, Judge 
Beverly Martin's nomination was stalled because Republicans would not 
agree to consider it before January 20. Judge Martin had the strong 
support of both of her home State Republican Senators, Senator 
Chambliss and Senator Isakson, and the highest possible rating from the 
American Bar Association's Standing Committee on the Federal Judiciary. 
Still, Republicans delayed her consideration.
  None of the nine Federal circuit and district court nominations 
pending as of this morning on the Senate Executive Calendar should be 
controversial. Six were reported by the Senate Judiciary Committee 
without a single dissenting vote. One had 1 negative vote, one had 3 
negatives votes and the nominee from Tennessee supported by Senator 
Alexander had 4 negatives votes but 15 in favor, including three 
Republicans. We have wasted weeks and months having to seek time 
agreements in order to consider nominations that were reported by the 
Senate Judiciary Committee unanimously and who are then confirmed 
unanimously by the Senate once they were finally allowed to be 
considered. That obstruction and delay continues.
  The American people deserve better. The cost will be felt by ordinary 
Americans seeking justice in our overburdened Federal courts. President 
Obama has reached across the aisle and worked with Republican Senators, 
including Senators Lugar, Martinez, Shelby, Sessions, Thune, Alexander, 
Burr, Chambliss and Isakson. I wish Senator Republicans and the Senate 
Republican leadership would reconsider their tactics of obstruction and 
delay and work with us and with the President.
  The Republican minority must believe that this partisan playbook of 
obstruction will reap political benefit for them and damage to the 
President. But the people who pay the price for this political 
calculation are the American people who depend on the government being 
able to do its job. I hope that Republican Senators will rethink their 
political strategy and return to the Senate's tradition of promptly 
considering noncontroversial nominations so that we can work together 
to regain the trust of the American people.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
question is, Will the Senate advise and consent to the nomination of M. 
Patricia Smith, of New York, to be Solicitor for the Department of 
Labor?
  Mr. HARKIN. I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Ohio (Mr. Voinovich), the Senator from Texas (Mrs. Hutchison), and 
the Senator from Utah (Mr. Bennett).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 60, nays 37, as follows:

                       [Rollcall Vote No. 18 Ex.]

                                YEAS--60

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--37

     Alexander
     Barrasso
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Wicker

                             NOT VOTING--3

     Bennett
     Hutchison
     Voinovich
  The nomination was confirmed.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
motion to reconsider is considered made and laid upon the table.
  The President will be immediately notified of the Senate's action.

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