[Congressional Record Volume 156, Number 57 (Wednesday, April 21, 2010)]
[Senate]
[Pages S2498-S2510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THOMAS I. VANASKIE TO BE UNITED STATES CIRCUIT JUDGE FOR THE THIRD
CIRCUIT
The ACTING PRESIDENT pro tempore. The clerk will report the next
nomination.
The legislative clerk read the nomination of Thomas I. Vanaskie, of
Pennsylvania, to be United States Circuit Judge for the Third Circuit.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be 3 hours of debate on this nomination. Who yields time?
The Senator from Vermont.
Mr. LEAHY. Mr. President, the Senate just devoted more than 3 hours
to the nomination of Chris Schroeder. I am glad that after many months
the Senate has finally been allowed to act on that nomination and
gratified that he received a bipartisan confirmation vote. After months
of delay no Republican came to the Senate to speak in opposition to the
nomination in the 3 hours that Republicans insisted be set aside to
debate it. Senator Kaufman spoke in favor; I spoke in favor. Not a
single opponent came to debate. That wasted more of the Senate's time
when we should be considering other matters. We could be debating Wall
Street reform, patent reform, or clearing the way for some of the other
100 Presidential nominations being stalled. We should have been.
With respect to the President's judicial nominees, we are well behind
the pace I set as chairman when the Senate was considering President
Bush's nominees during the second year of his Presidency. By this date
in President Bush's second year, the Senate, with a Democratic
majority, had moved ahead to confirm 45 of his Federal circuit and
district court judges. So far during President Obama's Presidency,
Senate Republicans have only allowed votes on 18 of his Federal circuit
and district court nominations. During the first 2 years of President
Bush's Presidency we moved forward to confirm 100 of his judicial
nominees. Republican obstruction of President Obama's nominations makes
it unlikely that the Senate will reach 50 such confirmations. Last year
they allowed only 12 Federal circuit and district court nominees to be
confirmed, the lowest number in more than 50 years.
Today, thanks to the perseverance of the majority leader and the
Senators from Pennsylvania, we will consider and I hope confirm the
19th of President Obama's Federal circuit and district court nominees,
Judge Thomas Vanaskie. It has been more than 4 months since Judge
Thomas Vanaskie's nomination to fill a judicial emergency on the U.S.
Court of Appeals for the Third Circuit was reported favorably by the
Judiciary Committee with strong bipartisan support. His nomination has
the support of both of his home State Senators, Senator Specter and
Senator Casey. He has more than 15 years of Federal judicial experience
having served as a district court judge in Pennsylvania since 1994. The
American Bar Association Standing Committee on the Federal Judiciary
has unanimously rated him well qualified to serve as a circuit judge on
third circuit. His nomination is not controversial. Yet, it has taken
months to get consent from the other side for an up-or-down vote on
Judge Vanaskie's nomination and that did not occur until the majority
leader was forced to file cloture to end the stalling. Judge Vanaskie
is one of the 25 judicial nominees still being stalled from final
Senate consideration.
I appreciate the significant steps taken by the majority leader to
address the crisis created by Senate Republican obstruction of the
Senate's advice and consent responsibilities. Their refusal to promptly
consider even the most noncontroversial nominations is a dramatic
departure from the Senate's traditional practice of prompt and routine
consideration of noncontroversial nominees. The majority leader's
decision to file cloture was an unfortunate but necessary step,
resulting from Senate Republicans' refusal month after month to join
agreements to consider, debate and vote on this nomination. Those
practices have obstructed Senate action and led to the backlog of
almost 100 nominations pending before the Senate, awaiting final
action. These are all nominations favorably reported by the committees
of jurisdiction. Most are nominations that were reported without
opposition or with a small minority of negative votes. Regrettably,
this has been an ongoing Republican strategy and practice during
President Obama's Presidency.
The vote on the confirmation of Judge Vanaskie's nomination is the
first vote on judicial nominations that the Senate will hold in 5
weeks. Despite the dozens of judicial nominations ready for Senate
consideration, none has been allowed to move forward for over a month
to fill longstanding vacancies in the Federal courts. Of the 25 pending
judicial nominations, 18 were reported from the Senate Judiciary
Committee without any Republican Senator voting against. I have been
urging the Senate Republican leadership for months to allow votes on
these noncontroversial nominations and to enter into time agreements to
debate the others. We need to clear the backlog of nominations and move
forward.
I am pleased that the Senate tomorrow will consider another judicial
nomination, that of Judge Denny Chin to the Second Circuit Court of
Appeals. His nomination was reported by the Judiciary Committee
unanimously, but it has also been stalled from Senate consideration for
more than 4 months. Senate Republicans should lift their secret holds
and also allow votes on the remaining 23 judicial nominations currently
pending final action by the Senate. If we are allowed to act on the
judicial nominations reported favorably by the Senate Judiciary
Committee but on which Senate Republicans are preventing Senate action,
we will more than double the number of judicial nominations confirmed
by the Senate this Congress, and bring the number of confirmations in
line with the number we confirmed at this point during President Bush's
first two years in office.
Judicial vacancies have skyrocketed to over 100, more than 40 of
which have been designated ``judicial emergencies.'' Caseloads and
backlogs continue to grow while vacancies are left open longer and
longer. On this date in President Bush's first term, not only had the
Senate confirmed 45 Federal district and circuit court judges but there
were just seven judicial nominations on the calendar. All seven were
confirmed within 9 days. By the end of this month, which is nine days
from now, we should clear the backlog that Republican obstruction has
created and vote on the judicial nominations stalled on the Senate
Executive Calendar.
By this date during President Bush's first term, circuit court
nominations had waited less than a week, on average, before being voted
on and confirmed. By contrast, currently stalled by Senate Republicans
are circuit court nominees reported by the Judiciary Committee 5 months
ago, in November of last year. The seven circuit court nominees the
Senate has been allowed to consider so far have waited an average of
124 days after being reported before being allowed to be considered and
confirmed.
Judge Vanaskie was born and raised in Shamokin, PA. He is one of
seven children raised by two working parents. He graduated magna cum
laude from Lycoming College in 1975 and cum
[[Page S2499]]
laude from Dickinson School of Law in 1978, where he was an editor of
the law review. After law school, he spent 2 years as a law clerk to
the Honorable William J. Nealon, then Chief Judge of the United States
District Court for the Middle District of Pennsylvania. Prior to
joining the Federal bench, Judge Vanaskie spent 14 years in private
practice.
In 1994, Judge Vanaskie was confirmed by voice vote to serve as a
United States District Court Judge for the Middle District of
Pennsylvania. He served as the Chief Judge of the Middle District from
1999 to 2006, and has sat by designation with the Third Circuit Court
of Appeals on several occasions. He has also served as cochair of the
Third Circuit Library Resources Task Force and as a member of the Board
of Directors of the Federal Judges Association. He is presently the
chair of the Third Circuit Judicial Council's Information Technology
Committee. His work in the area of technology in the courtroom has won
him widespread admiration and appreciation.
I congratulate Judge Vanaskie and his family on what I expect will be
strong bipartisan vote in favor of his confirmation to serve on the
Third Circuit. It is long overdue.
The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
Nominees Jim Wynn and Al Diaz
Mrs. HAGAN. Mr. President, there are two judicial nominees on the
calendar from North Carolina who I believe would be confirmed by this
body overwhelmingly. Judges Jim Wynn and Al Diaz, nominees for the
Fourth Circuit Court of Appeals, were both approved by the Senate
Judiciary Committee in January. Judge Diaz had the vote of every single
member of the committee, and just one Senator opposed Judge Wynn.
The reality of this situation, though, is that North Carolina has
been waiting for one of these judges since 1994. That is 1994. Since
then, there has been only one judge from North Carolina on the 15-judge
panel of the Fourth Circuit Court of Appeals, even though North
Carolina is the largest and fastest growing of the five States in the
Fourth Circuit. Partisan bickering has continually blocked qualified
North Carolinians from confirmation since the court's establishment
back in 1891.
But in consultation with both me and Senator Burr, the President has
appointed two highly qualified, experienced, and fairminded North
Carolina judges: Al Diaz and Jim Wynn. Judge Diaz, of Charlotte, a
Business Court judge, handles extremely complex business cases. Before
that, he was a State superior court judge. Judge Wynn, of Cary, is a
19-year veteran of the North Carolina Court of Appeals and formerly
served on the North Carolina Supreme Court. The American Bar
Association has given them both its highest possible rating. They both
have served our country in the military. They have the support of
Democrats and Republicans, including my North Carolina Senate
colleague, Senator Richard Burr. They have no real opposition that I am
aware of.
Finally, we have not one but two qualified and bipartisan choices to
serve North Carolina and our country on the Fourth Circuit. I am
hopeful that we are close to confirming these two outstanding nominees
for the Fourth Circuit. I will continue working with my colleagues to
ensure they are confirmed as swiftly as possible.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is
recognized.
Mr. CASEY. Mr. President, I rise today to speak about the nomination
we are considering in the next few hours, which is the nomination of
Judge Thomas I. Vanaskie.
I can't tell you how proud I am to talk about his nomination. I have
known him for a long time. I think it goes without saying that--and I
join a lot of people who have spoken about him already and know him--I
strongly support his nomination and confirmation for a seat on the
United States Court of Appeals for the Third Circuit. Tom Vanaskie is a
legal scholar, he is fair minded, and he has unquestioned integrity and
ability. He is an experienced Federal judge since his appointment in
1994. On top of all that, he is a decent, compassionate man.
The Standing Committee on the Federal Judiciary of the American Bar
Association has unanimously rated Judge Vanaskie well qualified to
serve as a judge on the United States Court of Appeals for the Third
Circuit.
Judge Vanaskie's biography highlights both his scholarly and
professional accomplishments and the highest esteem in which he is held
by his colleagues in the legal profession. He graduated magna cum laude
from Lycoming College in Williamsport, PA, where he was also an
honorable mention all-American football player, a first-team academic
all-American, and he was the college's outstanding male student
athlete, and the recipient of the highest award given to a graduating
student.
Then he went to Dickinson School of Law in Pennsylvania, from which
he graduated cum laude in 1978, where Judge Vanaskie served as an
editor of the law review and received the M. Vashti Burr award, a
scholarship given by the faculty to the student deemed ``most
deserving.''
After graduating from law school, Judge Vanaskie served as a law
clerk for Judge William J. Nealon, chief judge at the time of the U.S.
District Court for the Middle District of Pennsylvania.
Judge Vanaskie practiced law for two highly regarded Pennsylvania law
firms before his appointment to the United States District Court for
the Middle District of Pennsylvania in 1994. He became the Middle
District's chief judge 5 years later, in 1999, and completed his 7-year
term in that capacity in 2006.
He was appointed by Chief Justice Rehnquist to the Information
Technology Committee of the Judicial Conference of the United States,
where he served as chairman for 3 years. He also participated in
several working groups at the Administrative Office of the U.S. Courts,
most recently on the Future of District CM/ECF Working Group, tasked
with determining the design and development of the next generation of
the Federal judiciary's electronic case filing program.
Finally, he is an adjunct professor at Dickinson School of Law and
has been active in civic and charitable endeavors in northeastern
Pennsylvania. Like me, he is a northeastern Pennsylvania native and
resident.
Just a few accolades about his service from a wide variety of people.
We could read a number of these. I will highlight a few: Lawyers who
have appeared before Judge Vanaskie have expressed tremendous respect
for his intellectual rigor and the disciplined attention he brings to
the matters before him.
One attorney, who tried over a dozen cases before Judge Vanaskie, has
described him as ``objective, fair, analytical, dispassionate,
extraordinarily careful, and very respectful of appellate authority.''
This same lawyer, the same practitioner, said he had not always agreed
with Judge Vanaskie's decisions, but he always felt his rulings
reflected what the judge considered to be the most appropriate result
and the result that he was obligated to impose under the law.
A U.S. district court judge, William J. Nealon, for whom he clerked,
described him as follows:
Superbly qualified. He's outstanding, he's brilliant, he's
objective, and he's tireless.
Judge Vanaskie recognizes that for many citizens, his decisions will
be the final word on their claims before the court. He treats people
with respect and honors their right to be heard. His deep understanding
of and respect for the rule of law will serve him well in ruling on
cases and authoring opinions that will be influential in the Third
Circuit Court of Appeals and beyond.
For all these reasons and many others, I am proud to stand in support
of Judge Vanaskie and urge his confirmation today.
With that, I ask unanimous consent that all quorum calls during the
controlled time on the Vanaskie nomination be equally divided.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
Mr. CASEY. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. CASEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
[[Page S2500]]
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. CASEY. Mr. President, I ask unanimous consent that I be permitted
to speak as in morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Financial Regulatory Reform
Mr. CASEY. Mr. President, I rise today to talk about a major issue
that will be before the Senate very shortly, and which we have spent
some time on in the Agriculture, Nutrition and Forestry Committee over
many weeks and days, but most recently today in a markup. I will talk
about that in a couple moments.
It is time that the Senate, in the next couple of days and weeks,
focuses on passing comprehensive reform measures that will put an end
to Wall Street's reckless endangerment of our economic system. For too
long--in fact, for many years now--we have allowed this system to be in
place, where high-risk deals were cut on Wall Street. Some people made
a lot of money, but our economy went into the ditch because of it.
It wasn't always like that. For decades following the Great
Depression, we enjoyed a financial system that worked--worked for
American families and small businesses. It is pretty simple when you
think about it, and it has been successful at the same time. Local
banks, operating in communities across the Nation, took deposits and
made loans for homes, cars, or businesses. People knew their bankers
and their bankers knew them. Each party was invested in the success of
the other. During this time, our economy thrived. It experienced
prolonged growth and innovation. These benefits were felt across the
board by people across our economy and our country.
Let's contrast that period of growth and shared prosperity with what
has happened in the last few years, and even over the last 30 years.
This most recent period can be characterized by the massive growth of
the financial sector.
In 1978, commercial banks held $1.2 trillion in assets, equivalent to
53 percent of gross domestic product. By the end of 2007, that same
measurement, what commercial banks held in assets, had grown to $11.8
trillion or 84 percent of gross domestic product. So the percentage
went from 53 to 84, and the number went from $1.2 trillion to $11.8
trillion in assets. Unlike the preceding period, this growth was not
spread across the real economy to households and businesses. Instead,
it was explicitly shifted away from families and communities and
concentrated on Wall Street.
The impact of this concentration has been acute. People used to rely
on local institutions, but they now face a financial service
marketplace dominated by a few banks with retail outposts sprinkled
across the country.
Instead of supporting small businesses, little league teams, or
families, as did their local predecessors, these megabanks gather
deposits from Main Street and then slice and dice them and leverage
them to the hilt and use the hard-earned wages and savings of Americans
to make a handful of people very rich.
Make no mistake about it, the megabanks profited tremendously from
this new model. Over the last 30 years, profits and compensation in the
banking industry have skyrocketed. From 1948 to 1979, the average
compensation in the banking sector was more or less the same as any
other job in the private sector. Today, bankers earn, on average, two
times what other private sector employees take home.
Simply stated, American families and small businesses are no longer
the customer in this broken system. Instead, these institutions
function to make wealth for themselves and their stockholders.
A clear example of this can be found in recent news stories detailing
the record profits of these megabanks--record profits in a time of
historically high unemployment and a bad economy. These profits were
not made through savvy lending to their customers. In fact, in the case
of JPMorgan Chase, Citigroup, and Bank of America--three of our largest
megabanks--they have cut lending through a key Small Business
Administration lending program by between 85 and 90 percent from 1 year
to the next.
These multibillion dollar profits have been made through high-risk
trading operations with money deposited by families and businesses. The
banks are expecting people in our communities to shoulder all of the
risk, while getting none of the upside.
Something has to give in this situation. These megabanks, these big
companies, are entitled to make profits, but we will no longer allow
them to continue to use the federally insured deposits of working
people as capital for their money-making schemes. We need commonsense
rules that separate conventional commercial banking operations from
high-risk financial gambles.
In no area is this need for reform more apparent than in the so-
called derivatives market. A derivative is a high-risk bet that the
value of another financial instrument, or commodity, or other product
will go up or down. It is a bet. For years, Wall Street fought and won
the battle to keep derivatives unregulated. In this highly unregulated
market, Wall Street could place bets on bets, without backing them up.
Therefore, when the underlying weakness of assets became apparent, the
derivatives market went bust--along with it, the Wall Street banks
playing in the market, causing the need for the massive bailout of
these institutions.
To prevent another catastrophe, we need a strong regulation of the
derivatives market. Today, the Senate committee of which I am a member,
the Committee on Agriculture, Nutrition and Forestry, had a markup
session. What we are talking about is members of the committee talking
on amendments and then voting for final passage of the bill out of
committee. That is a markup. We had that markup session today on the
Wall Street Transparency and Accountability Act of 2010.
I applaud our chairwoman, Senator Lincoln, for her work on putting
forth a bill that cracks down on the reckless activities of Wall
Street. I also commend her and other members of the committee for
reporting it out of committee so we can incorporate it into the Banking
Committee bill we will be considering on the floor soon.
The Wall Street Transparency and Accountability Act of 2010 will add
those two important words to our financial system, both transparency
and accountability. In particular, it will impose it on the derivatives
market, No. 1, by requiring that derivative transactions--most of
them--be cleared through a central clearinghouse; second, require real-
time reporting, similar to a stock exchange, of the transactions that
parties are entering into.
Besides a more transparent market, the most important provision in
this bill is the requirement that commercial banks that have FDIC-
insured accounts can no longer trade on the derivatives market. This
provision will force commercial banks to refocus on what should be
their No. 1 priority--the customer--instead of just profits and their
own stockholders.
Our current financial system is broken and no longer works for
families and small businesses. When I travel across the Commonwealth of
Pennsylvania, I often hear about the financial difficulties people are
experiencing. We have close to record-high unemployment, 582,000 people
out of work. A lot of people lost their jobs or their homes or both,
and, in so many ways, their hopes and their dreams. Then they read in
the paper every day it seems about record profits of these big
megabanks.
They think: What about me and my family? Why can't I get a loan? They
will ask people like me: Why is the interest rate being raised on my
credit card? Questions such as these have persisted for so long now.
Did we not bail out these megabanks on Wall Street already so they can
continue to lend money to people like me or their customers? Those are
the questions I get.
The answers to each of these questions are the same. These
institutions have failed the American people. It is that simple. By
extension, they have helped to collapse our economy. Thank goodness we
are starting to turn, seeing some job growth in our economy. But we
need financial institutions that focus on the needs of our families and
our small businesses once again.
Senator Lincoln's bill is a step in the right direction. We are not
there yet. With that bill and with the work we will do on the Banking
Committee bill,
[[Page S2501]]
we can begin to restore not only transparency and accountability and
sunlight, but I believe we can restore some measure of confidence in
our financial system and make it work better for real people, for
families, and for small businesses and also to strengthen our economy.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Merkley). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DODD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Financial Regulatory Reform
Mr. DODD. Mr. President, I wish to take a few minutes this afternoon,
if I may, to discuss further the efforts in financial regulatory
reform.
I would be remiss if I did not note the contribution of the Presiding
Officer to this effort. I thank him personally once again. He is a
member of the Banking Committee and has expressed strong interest in
this legislation and various parts of it, and I thank him for it.
Today I wish to talk about aspects of the bill. I have been talking
about this bill on the floor over the last several days, issues such as
too big to fail, which we aggressively address in our legislation. I
talked about the efforts that have been made to try to forge a
comprehensive bill, a strong bill. We have involved, we have invited
virtually everyone interested to participate in the product. I am proud
to say many did offer their ideas and thoughts as we tried to develop a
proposal that was not only strong and broad based but attracted, again,
a strong group of our colleagues, both Democrats and Republicans, to
this effort.
Over the days, we have spent a lot of time discussing the impact of
Wall Street reform on large financial firms, big banks, investment
banks, nonbanks, corporate executives, Federal regulators, and other
power players in the financial sector--that has been the subject of a
great deal of attention--and the complicated subject matters of
derivatives--how they work, how they apply--shadow economies, black
pools, systemic risk--all this language and discussion that sometimes
can leave the average citizen feeling as though we are talking in a
foreign language about these matters.
The question they ask is: How does this affect me? I am glad you are
going to try to clean this up, but what is happening with all of this
that has some positive impact on my life as a taxpayer, as a working
American? I would like to know what is being done to see to it that my
interests are going to be considered as you are trying to resolve all
of these larger questions that somehow seem very distant to my concerns
every day.
Today I wish to take a few minutes to talk about the impact of this
legislation on millions and millions of our fellow citizens who are not
financial wizards--and would be the first to tell you so--they are not
big wigs on Wall Street, major players in large banks and financial
institutions. They are people just trying to build a nest egg for their
families, invest in their futures, maybe take a loan out to buy an
automobile, a home, send a child to college because that child has done
everything they have asked them to do over the years and now wants to
go on to that educational opportunity and needs the resources to do so.
The stories are myriad. There are many. The demands are obviously
clear. Unfortunately, as we know and many Americans found out the hard
way over the last few years, our current financial system leaves
consumers too often vulnerable to being deceived into purchasing risky
products, if not outright ripped off by greedy Wall Street firms and
others. After all, at the heart of the financial crisis that has cost
our Nation so dearly were the subprime mortgages sold by unscrupulous
lenders to Americans who did not understand their terms and who never,
ever could have afforded them, and the lenders knew it. They knew going
into it. Yet they lured them into those arrangements, with great damage
done to individuals and to the economy as a whole.
Wall Street's unquenchable thirst for profits and utter disregard for
ordinary consumers led to a pattern of greed and recklessness that darn
near led to creating a complete collapse of our financial markets and
our economy. Millions of Americans lost their jobs, around 8.5 million.
Seven million homes have gone into foreclosure, many lost forever.
Retirement earnings, as I have said over and over, evaporated in some
cases almost instantaneously as a result of the collapse of our
economy. Maybe more important than all of that--as hard as it is if you
lost your home, your job, your health care--is they lost their faith
and sense of optimism and confidence in our financial system in this
country, that loss of confidence, that loss of optimism, that loss of
belief that while you may make a bad bet on a stock, the system was
sound and fair. It would treat you fairly, and you were not going to
get hurt because we had a good system in place. That confidence, that
faith has been lost. That may be more important than everything else I
have mentioned in terms of the future strength of our economy and our
country.
To add insult to injury, those same Americans then saw those same
firms collecting billion-dollar bailouts at the expense of the
taxpayer--and paying million-dollar bonuses to the same executives
whose bad decisions put us in the mess in the first place and who would
have been out of a job had the bailout not occurred.
The bailout allowed those financial institutions to survive and their
expression of gratitude was to write themselves a huge bonus check and
being able to do so only because in this Chamber we voted 75 to 24 to
stabilize our financial system--a decision I believe was the right one.
I think we made the right call in doing it, as difficult as it was. But
at the end of all that, major executives in these companies then
rewarded themselves as the head of these institutions because we--
mostly the taxpayers, by the way--came up with the resources to make it
possible for those institutions to survive.
So the American people are angry and with good reason. But they are
also wondering: Who is looking out for us? Whose job is it to make sure
this doesn't happen again? While our current system pays lip service to
consumer protection, those responsibilities are divided among some
seven different regulators for whom consumer protection is just an
afterthought, in too many cases, to their primary safety and soundness
missions that they are responsible for as well. The result is,
regulators put the interests of banks and large financial institutions,
in too many cases, before the interests of the consumers who rely on
those institutions for their long-term economic security.
If this sounds like a recipe for failure, that is because it is.
Assistant Secretary of the Treasury Michael Barr testified before our
Banking Committee not long ago, and he said:
Today's consumer protection regime just experienced massive
failure. It could not stem a plague of abusive and
unaffordable mortgages and exploitative credit cards despite
clear warning signs. It cost millions of responsible
consumers their homes, their savings, and their dignity. And
it contributed to the near collapse of our financial system.
We did not have just a financial crisis, we had a consumer
crisis.
That massive failure could happen again. Today, we are in no
different position than we were in 2007, 2008, and 2009. Nothing has
changed. Yet we are on the brink of creating change that could make a
difference in this very area. So today those massive failures are still
lurking out there, and the same consumers who lost their homes, lost
their jobs, lost their retirement, lost their health care are in no
different position should another crisis happen tonight or tomorrow. It
is exactly the same system, exactly the same structure, exactly the
same so-called regulators out there charged with protecting consumers
from the kinds of problems that led us to the difficulties we are in
today. Again, the financial products and practices being devised on
Wall Street, even as we speak, will make it even more difficult in many
ways. Are they safe? Are they exploitative? We have no idea, and
neither do the American people because no one is looking out for them
at this juncture.
Our legislation answers the question of who is looking out for
ordinary Americans when they interact with our
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financial systems. The bill we will present to our colleagues in just a
matter of hours in this Chamber creates an independent Consumer
Financial Protection Bureau, a watchdog with bark and with bite. This
new bureau will not have any job more important than helping American
consumers make smart financial decisions--because protecting,
educating, and empowering American consumers will be their only job.
This bureau will have an independent Director, appointed by the
President and confirmed by the Senate. It will have a dedicated and
independent budget paid by the Federal Reserve Board. It will be
empowered to write consumer protection rules governing any institution,
whether it is a bank or a payday lender that offers consumer financial
services or products. It will have a new Office of Financial Literacy
to ensure that consumers are able to understand the products and
services they are being offered and a national toll-free consumer
complaint line so, for the first time, Americans have somewhere to go
when they need to report a problem.
When I talk to people back in my home State, they understand it is
their responsibility to make smart decisions about their family
finances, and nothing in our bill suggests otherwise. That is the first
line of defense, so we all bear responsibility to learn more, to pay
attention, and to understand the financial arrangements we are getting
into. I am not saying anything different. Unlike Wall Street, they are
not looking to shirk that responsibility. They welcome that
responsibility, but they would like to understand it better. What they
need is clear, accurate information so they can make those good
decisions and a cop on the beat to stop abusive practices when they
occur. That is what our legislation, which will soon be before this
body, does.
Our legislation finally puts consumers in control of their financial
lives by requiring large financial institutions and credit card
companies to tell them what they are selling in plain English so the
purchaser doesn't need a master's in business administration to
understand. It will finally put an end to the practices that have
become almost standard operating procedure--skyrocketing credit card
interest rates, the explosion of overdraft fees, predatory lending by
mortgage firms, and more.
This Congress has taken steps to address these abusive practices,
passing the Credit CARD Act, which was authored by the members of our
committee--again, I thank the Presiding Officer for having been a part
of that--and forcing large banks to change their overdraft fee
policies.
But credit card companies continue to look for ways around the new
rules, and history shows them to be pretty good at getting away with it
as well.
Between 1997 and 2007--in that decade--credit card companies engaged
a wide variety of, frankly, unethical practices--from so-called double-
cycle billing and universal default to retroactive and arbitrary
interest rate hikes. In that entire decade--a decade in which literally
millions of our fellow citizens were overcharged or outright ripped off
by these banks--there were just nine formal enforcement actions taken
by the seven regulators in our national government. Let me repeat that.
In that entire decade--when nearly every single citizen in this country
could talk about one horror story after another, where rates were
increased, fees were enlarged, and every gimmick and trick was used to
squeeze every last nickel out of a consumer's pocketbook--there were
only nine formal enforcement actions taken by the regulators at the
national level.
There are stories similar to the one I heard from Mario Livieri of
Branford, CT. Mario is a 75-year-old retired homebuilder who
accidentally overdrew his account by $2. I am not making this up. Mario
is 75 years old and a small business contractor. He overdrew his
account by $2 and was charged $35. The bank took several days to notify
him that the account was overdrawn. In the meantime, of course,
additional minor purchases yielded three additional $35 fees, for a
total of $140, which Mario Livieri was charged because he was $2
overdrawn in his banking account.
Unfortunately, that story by this individual in my State can be
repeated millions of times all across the country. A $2 mistake made by
a conscientious individual, and one that he was unaware of until
notified later, and every subsequent purchase he made brought an
additional $35 fee until he had a bill--before he discovered the
mistake--of $140 because of being $2 overdrawn. That used to go on all
the time, and in too many cases it still does. When Mario protested,
the bank waived one of the four $35 charges, but they told him there
was nothing he could do to fight the fees because the practice was
perfectly legal.
Then there are the auto dealers that have been shown to take
advantage of military servicemembers, the shady payday lenders that
prey on minority communities, and a wide range of malicious actors who
look to take advantage of American consumers. This bill that will be
before this body, which passed out of our committee, puts an end to
those abuses, and that is why it is supported by the Military
Coalition, civil rights groups, consumer rights groups, and more. It is
also why it is opposed by large financial institutions whose business
strategies are based too often on taking advantage of their very own
customers.
Let me take a moment to put an end to some of the malarkey we have
been hearing from the Wall Street crowd. The large banks are paying for
ads now claiming that this legislation will impose new restrictions on
dentists and butchers and other Main Street merchants. That is not
true. You and I know this. But that kind of falsehood that goes out
across the country is exactly the kind of propaganda they are
determined to engage in to undermine this legislation.
These rules we have crafted apply only to firms engaged in offering
consumer financial services or products, not the butcher, not the
laundromat, and not the dentist. An entity must be engaged in financial
services or products. Just because your butcher lets you keep a tab or
your dentist offers a payment plan doesn't mean these new rules apply.
Moreover, this legislation doesn't seek to strangle innovation in the
financial sector. Quite the opposite. That innovation is part of what
keeps America prosperous. We are not dictating what products can be
offered any more than the Consumer Product Safety Commission directs
what toymakers can invent. But just as the Consumer Product Safety
Commission watches out for toys that could hurt children, the
independent Consumer Financial Protection Bureau will watch out for
products that will hurt someone's finances so customers and consumers
can make smart decisions.
The large financial institutions have tried to push this notion that
this legislation creates an enormous burden on small community banks.
Let me address that. How nice of them to look out for their
competitors, the ones they have been trying to drum out of business for
decades. But the fact is, the small community banks with $10 billion or
less in assets will not see any regulatory changes. They will not be
charged any fees or assessments. They will follow the same rules they
follow today. Even better, these small community banks will be able to
operate on a level playing field without the unfair competition from
the underregulated or unregulated shadow banks that don't operate with
any rules whatsoever.
So this legislation has many important objectives, from ending
taxpayer bailouts to establishing an early warning system so future
financial crises can be nipped in the bud before they threaten our
entire economic system. But for millions of Americans who don't pay
much attention to what goes on, on Wall Street, except when they have
to write a check to bail out the firms that live there, perhaps nothing
in this bill will impact their lives more directly than the new
independent Consumer Financial Protection Bureau. Finally, there will
be a cop on the beat watching out for them.
The safety and soundness of our financial institutions are critically
important. I am not arguing against that at all. But that is not the
only consideration. As this real estate bubble was building up, we were
told over and over that the system was safe and sound. Why? Because
people were making money. It was growing in profits. What we failed to
look at and understand
[[Page S2503]]
was it may have been safe and sound from that narrow perspective, but
for the consumers who were relying on these financial institutions for
their economic security, it was anything but safe and sound. With the
establishment of this bureau, for the first time in the history of our
country, we are saying that financial products ought to be no different
than any other product consumers buy. There ought to be a place where
someone can go when they have been deceived or defrauded in the use of
these financial products.
If your lawnmower breaks or your car malfunctions, we get all sorts
of reports, as recently seen with recalls of products because they are
unsafe for a consumer to use. Why shouldn't that also exist if someone
is out there purchasing a financial product that could put them in
great danger--in fact, bankrupt them and ruin their life because they
have been deceived and drawn into a financial arrangement because it
was a quick profit-making operation for the lender, but it put the
consumer at great risk--and ultimately causes, as we have seen in
millions of cases, the ultimate financial ruin of individuals,
families, and businesses. Thus, we have established a parity between
physical products you may buy and financial products you may engage in.
Finally, Americans will be able to rely on clear and accurate
information about their family finances. They will know that someone
will be looking out for them. There is no better way to restore faith
against the loss of homes, the loss of jobs, the loss of retirement--
all of which have occurred--and perhaps the greatest tragedy of all
being the loss of faith in our financial system. We need to restore
that. The absence of that will not make this get better. Every single
other thing we do will not achieve its goal if Americans don't have
confidence in our financial systems--the faith that it is there, it is
safe; that they can be secure in the knowledge that when they deposit a
hard-earned paycheck, when they buy an insurance policy, when they buy
a stock, when they engage in financial activity, the structure, the
system there is not unfair. It is not out there to deceive them, to
defraud them, to take advantage of them, but to see to it they are
protected. That is our goal in this bill.
My hope is that my colleagues will allow us to get to this debate. If
you have objections or ideas, let's have that full-throated debate that
has been the history of this Chamber on important matters that have
come before us in the past. We ought not be denied that opportunity
again on this bill.
But I wanted to take a moment to talk about the consumer protection
efforts on this legislation, and I again compliment my colleague in the
chair, the Presiding Officer, because he has been a champion in our
short service together on this committee on the very issues I have
addressed today, and I thank him for his commitment and passion for
these issues.
I yield the floor, and I see my colleague and friend from Arizona, so
I will not note the absence of a quorum.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, before I begin talking about this bill
specifically, I wish to compliment Chairman Dodd for the hard work he
has put into this matter. I believe it is important for us to reach a
bipartisan consensus, and many of the things we just discussed are
matters on which we can reach a consensus. That is the goal of
Republicans.
I am concerned that there has been some politicization of this issue
by many on the other side and, frankly, some in the administration. I
know, for example, that Senator Chambliss, a Republican, and Senator
Lincoln, a Democrat, worked very closely together and had virtually, I
am told, reached an agreement on the derivative issue as it pertains to
the jurisdiction of their Agriculture Committee, only to be told by the
White House that was not acceptable and that Chairman Lincoln needed to
go back and redo it the way they wanted it done. As a result, the bill
was passed out of the Agriculture Committee on an almost partisan line.
The same thing was true of the legislation that came out of the Banking
Committee.
While Chairman Dodd is here, let me make this point. He suggested
this morning that there are Republicans who support this bill, he
knows, but that they are being told by Republican leadership that they
can't support it. I want to make it clear that our leadership does not
operate that way. One reason I know that is because I am one of our
leadership. Our members of the Republican caucus think for themselves.
We came to a conclusion unanimously in the Republican conference that
the partisan bill that came out of the Banking Committee--and it was
partisan; it was written by Democrats, not Republicans, and it was
passed on a party-line vote--that bill was not the way to move forward.
It was partisan, it was flawed and, among other things, it would
provide for perpetual bailouts and therefore didn't achieve the first
goal of the legislation, which was to finally end the taxpayer
bailouts.
So all 41 of us wrote to the leader and said we will not vote to
proceed to that bill because it is a partisan bill. It would be better
if we could work together in a bipartisan way to bring a bill to the
floor of the Senate that represented not just Republican ideas but a
combination of Democratic and Republican ideas that had been negotiated
by the members of the Banking Committee, members of the Agriculture
Committee, and others. That would ordinarily be the way we would take
up a bill here on the Senate floor.
Having said that, I am still confident, based upon what Senator
Shelby and other Republicans on the Banking Committee have said, that
it is possible to reach a bipartisan consensus. I know Chairman Dodd
and Senator Shelby have been working hard every day on various aspects
of the bill to try to reach a conclusion.
The second point I wish to make is that one should not describe the
bill that passed out of the Banking Committee as the end of the story,
as a successful bill that is going to solve all of these problems. I do
not think it will. It does not end taxpayer bailouts, for example, and
at a minimum, it seems to me it ought to do that. So in just a few
minutes here, I would like to describe some of the things that I think
the bill should address and that I hope are being addressed in the
bipartisan negotiations.
I am sure it is obvious that it is very difficult--once a bill comes
to the floor and you have a chairman and leader supporting the bill,
with 59 Senators on their side of the aisle, it is very hard to amend
that bill. That is one reason Republicans would like to see a bill
brought to the floor that already has bipartisan consensus, and then,
yes, we can work our will on the bill and maybe amend it, maybe not,
but at least we know it is not going to be a purely partisan
proposition.
There has been much attention paid to the $50 billion fund that is
created by this bill. While it is true that the financial institutions,
of course, pay the money, supply the money that goes into that fund, we
all know where the money eventually is paid--the costs are passed on to
the consumers. But that is not the real problem because there are other
funds, such as the FDIC fund, for example, which the banks obviously
pass on to their consumers in order to have an ability to take care of
their expenses to creditors should they not be able to do so.
But what this bill does is not just create this $50 billion fund but
also continuing government obligations beyond that. It provides not an
orderly bankruptcy type of procedure for the resolution of a failed
company but, rather, an ad hoc procedure determined by bureaucrats who
are not accountable to anybody and who can apply pretty much any rule
they want to the winding down of the institution.
What does that do? Today--and frankly, it has been this way for two
centuries--we have a series of laws that dictate what happens in the
event of the failure of a company. Primarily, these are our bankruptcy
laws. You know in advance what happens. If you are a company that
cannot make it and you go bankrupt, there are two basic ways you can
file bankruptcy, one in which you totally liquidate, the other in which
you reorganize. In those two situations, the law provides for what
happens to your creditors.
By definition, bankruptcy means you cannot pay all your debts. So who
gets paid and who doesn't and how much and in what order--all of that
is resolved by the bankruptcy laws and by
[[Page S2504]]
the laws built up as precedent applied in the bankruptcy courts. That
is why you know--when you either lend money to an institution or you
invest in it in equity investments, you have an idea of where you
stand, where your loan or equity investment stands in the order of
priority should the entity fail. For example, a secured creditor would
be very high on the list. Security means you have something to fall
back on to take from the company if they can't pay their debt to you.
As a result, you can lend the money at a lower rate because you don't
have to account for that risk when you lend the money. It is a good way
for companies to borrow money. Granted, they have to have something
that backs it up. Sometimes it is even the personal guarantee of the
CEO of the company. But you get a pretty cheap loan if you do that
because the lender knows he or she or it is going to get its money
back. By the same token, if you need money pretty badly and don't have
any more security, you might ask people to invest in your company or to
borrow money on an unsecured basis. Well, you are going to get charged
a higher rate of interest on that because there is more risk to the
investor or to the lender. But in every case, they know where they
stand in the event you can't make it or you fold.
What this bill does is substitute an unknown, untested process for
the tried-and-true rules of bankruptcy. Nobody is suggesting there
could not be some modification of the bankruptcy process or rules that
might govern these particular institutions. They are unique
institutions in some respects, and to the extent the rules should be
tailored in order to fit these circumstances, they could be. But that
is not what is done in this legislation. Instead, new entities are
created and bureaucrats are allowed to decide when a company could
destabilize the markets and therefore decide what to do about it. Their
range of options is essentially unlimited. The bottom line is that
taxpayers could end up being on the hook for the bailout. That is true
with the FDIC, it is true with the Fed, and this legislation has
specific language in it that provides for that.
There are those who say: Why don't we just get rid of this $50
billion fund, and then the problem will go away. No, that problem
doesn't go away unless you correct the other language as well.
I will not try to substitute my judgment for that of others who say
we need a $50 billion fund. I will say this: Creating that fund makes
it more likely than less that risks will be taken and that therefore
there will be instability in the market. I also suspect that those who
have an implicit guarantee from the fund are more likely to receive
credit, for example, at a lower rate because there is much of an
assurance on the part of the lender or the equity investor that they
will get their money back. So there are some downsides to having this
fund.
But those aside, if you want to do away with the fund, OK. If you
want to keep the fund, OK. But what you should not do is provide that
beyond that, the taxpayers are on the hook. Here is the problem. Lehman
Brothers, I am told, had well over $600 billion in liabilities, and a
$50 billion fund does not go a long way toward resolving a $600 billion
liability. In the case of Fannie Mae and Freddie Mac, which are not
even dealt with in this legislation even though they were the prime
causes of the problem--and by the way, that is a deficiency in the law
that needs to be corrected. I hope these negotiations will provide
something in that regard. But they have now created--it is about $6.3
trillion in obligations. Guess who is on the hook for those
obligations. Congress never passed a law that said the taxpayers were
going to be on the hook, but that is exactly the result of the actions
taken by the bureaucrats who decide these matters now.
I do not want to create a perpetual situation where not Congress, not
the courts, but bureaucrats--by the way, I do not use that term
pejoratively. ``Government officials''--let's use that term. Unelected
government officials, to whom we give the power, simply decide who gets
bailed out, when, under what circumstances, who gets paid back, who
doesn't get paid back, and how much it is going to cost the taxpayers.
That, in essence, is what is provided for in this legislation.
So when folks say this is a bill we need to support because it ends
too big to fail, that is wrong because it doesn't end too big to fail
and taxpayers are still on the hook.
If those things are fixed, then my criticisms in this respect go
away. But we have not heard from these negotiations that is being done.
So I told my colleagues: Don't come to the floor and say this is a
great bill, it solves all these problems, it ends too big to fail, and
there is nothing wrong with it. There are some things wrong with it
that need to be fixed. Let's do those things. I assume, on a bipartisan
basis, if you just ask the abstract question of every 100 of the
Senators, do you think we ought to end too big to fail, the answer
would be yes. Ask our constituents--yes. Then we can get down to the
nitty-gritty.
What about the language in the bill that says the FDIC ``will
guarantee the obligations of banks'' under certain circumstances? That
is language that has to be carefully either defined, limited, crabbed,
or eliminated, or we are going to have taxpayers continuing to be on
the hook for these obligations.
As I said, we haven't done anything to Fannie and Freddie in the
legislation, and that is going to continue to mean a continuing
taxpayer obligation as well.
As I said before, too, those firms, the ones deemed too big to fail,
have an advantage over the smaller banks, the community banks. My
colleague just mentioned those a moment ago. We just met with the
community bank representatives in Arizona, and they fear this kind of
provision will make them uncompetitive vis-a-vis the big boys. As a
result, what we will eventually end up with is a few really big banks
and maybe some that aren't, in kind of a medium-size operation, and
almost all of the smaller banks having to go out of business because of
this anticompetitiveness that will result from the legislation.
One of the other ways in which what I have been talking about occurs
is through section 113, the so-called Financial Stability Oversight
Council. This is one of the entities that allow for these backdoor
bailouts. It gives the Federal Reserve the authority to prop up any
nonbank company that the council, this new council, deems to be a
potential threat to systemic stability in our economy. This is a board
based in Washington. It decides which institutions get special
treatment. It gives these bureaucrats tremendous latitude to pick
winners and losers, again resulting in a competitive advantage and
disadvantage. What determines whether a nonbank is a threat to
stability? What are the criteria? Among other possible considerations,
``any other factors that the council deems appropriate.'' That is
pretty much an open book--``any other factors that the council deems
appropriate.'' I would think, if Congress is going to try to legislate
in this very complex and difficult area, we would try to give pretty
specific direction to the Federal authorities, to whom we give great
power, as to how we want it exercised, and I don't think this meets the
test--``any other factors that the council deems appropriate.'' Take
that out of the bill. Let's have a bipartisan negotiation to do that.
If somebody can demonstrate to me why that would have to be left in,
then great, but these are the kinds of things that lead me to the
conclusion that, no, we should not agree to consider the bill that came
out of the Banking Committee on a purely partisan basis because there
are problems in it.
Today, the Wall Street Journal says:
The Dodd bill allows too much discretion to federal
regulators to determine which firms to regulate and how,
which firms to rescue or close down, and which creditors to
reward and how. . . .
Exactly what I was just saying. It goes on to conclude:
The Dodd bill also extends the FDIC's resolution authority
(subject to other executive approval) beyond deposit-taking
institutions to any financial company deemed to be
systemically important. And it gives the FDIC the discretion
to discriminate among creditors as it judges who gets paid
what as part of a resolution. . . .Recall how the White House
exploited its authority under TARP to trash Chrysler's
creditors and give unions a better deal.
Now, that is not the only section. Section 1155 of the bill is
entitled ``Emergency Financial Stabilization.'' This is another way in
which the bill
[[Page S2505]]
guarantees bailouts and puts them into the law and leaves the taxpayers
on the hook.
Under this section, the FDIC would be allowed to create a new program
of unlimited size to guarantee the obligation of depositories and
holding companies with depositories.
What does this mean since there is no requirement that a company that
receives, guarantees, and defaults on its obligations be taken into an
FDIC receivership, bankruptcy, or resolution? The FDIC and Treasury can
prop up whatever company they choose. This authority can be exercised
without congressional approval.
It is one of the reasons I have said I think there needs to be some
element of bankruptcy or other process prior to the instigation of this
particular kind of authority. We cannot say this bill ends taxpayer
bailouts as long as we have all of those sections in it.
Finally, there is much said about consumer protection. Does anybody
know anybody who does not favor consumer protection? I think we all do.
There are questions about how to intelligently do it. We can create a
lot more cost to consumers if we make the regulations so costly and
inefficient that they end up paying more money than they would have
otherwise. That is, I fear, what can happen here. It happened with the
credit card legislation we passed. I think it is predicted that it can
happen here as well.
It could easily happen with businesses we do not even intend to
cover. I know I have heard from dental offices and car dealerships.
When we think about Wall Street bailouts, we do not think about our
next-door neighbor who sells cars, or maybe our neighbor who is a
dentist. But if they have an installment plan where it takes 4 months--
where you can get up to 4 months to pay your bill to them, boom, you
can be covered by provisions here. Then all of the consumer protections
apply and so on.
Let's be careful that in an effort to make sure Wall Street handles
its affairs properly that we do not impose conditions on Main Street,
the folks we would like to see thrive, particularly in times of
recession, in a way that would end up either causing them more expenses
or, at worst, even making them uncompetitive with these so-called
bigger guys.
Restraining credit is a big way to do this, requiring that they have
to apply capital not to building their businesses but to somehow
backing up their credit issuance, even though that is not the main part
of their business.
Just quoting briefly from the New York Post:
New restrictions on credit . . . are likely to cost our
economy tens of thousands of jobs a year.
And:
Reductions in credit--
Which would result here--
means declines in job creation. Many small business start-ups
use home equity debt or credit cards as their source of
funding.
There is not a lot of home equity debt to be had these days. A lot of
our homes are not mortgageable at the present time, so credit cards are
maxed out and so on. Well, that is a difficult way to do it. But we
have to make sure if small businesses are doing this that the credit
flows are not stopped because of provisions of this bill.
In an op-ed in the New York Post today, Mark Calabria pointed out:
The bursting of the housing bubble largely eliminated the
first option.
That is the mortgaging of your home to get additional credit.
Now Washington is trying its best to kill the second.
That is the credit card provision.
[The Dodd bill's] proposed ``consumer protections'' would
reach beyond credit cards and restrict the availability of
all forms of credit, while raising costs.
Now, nobody intends this result. I do not think anybody in this body
wants to impose additional costs, especially on smaller businesses or
on startup businesses. It is simply an inevitable result of a policy
that is written too broadly. We need to be careful how we do it. We
need to ensure we do not write it so broadly that friends we want to
protect are not adversely impacted.
They have been coming to my office. Folks you never dream of who
would be covered by this act are coming in and saying: Here is how this
bill could affect me. Please make sure it does not.
All I urge my colleagues on the other side of the aisle to do is,
take these concerns on board--they are not partisan concerns--and make
sure when these negotiations figure out how to amend the bill, that we
take into consideration the things we are raising. They are not
partisan concerns. They are concerns of everyday Americans, and we owe
it to our constituents to think these things through and, if need be,
change the bill.
I am sure even Senator Dodd would say the bill is not perfect. If
there are things we need to see changed in it, then let's do that.
The last point has to do with another element of consumer protection.
A lot of folks do business in more than one State. In fact, some of the
larger companies do business in all States, and it is cost efficient
for them if there is one rule, if there is one regulator, so that they
do not have to, for example, figure out what every single State
requires in terms of different consumer protections or notice or
whatever it might be, and then have to comply with all 50 States, some
of which may be contradictory, as well as a Federal regulator.
So up to now we have pretty much had a Federal regime that has
preempted the State jurisdiction in some of these areas. Well, as I
understand it, the legislation does away with a significant component
of that and would allow the State regulators to impose individual
requirements on these companies that are doing business throughout the
United States. So we could have the anomalous situation where we have
lots of different requirements.
Some of you have seen ads on TV. It says: Call now to get your $29.95
knife. If you call right now, you will get another one thrown in for
free. Then the last 10 seconds of the ad has some guy reading in very
fast language: Offer not valid in New Mexico, New York, Arizona,
Tennessee, Oregon, and so on and so on. You cannot even follow what he
is saying. But the reality is, there are a lot of different
requirements.
So what we would like to try to do is have things be as uniform as
possible to keep the costs down because the greater the costs, the more
the cost to the consumer. Unfortunately, as I said, however, this bill
creates a patchwork of regulatory regimes that expand the number of
regulators by 50 in certain areas. As a result, it is going to be much
more difficult to comply with and much more costly.
If we believe we understand what is necessary in consumer
protections, then let's provide for it. If we think we do not, that we
need to leave this to a lot of other regulators, then let's not try to
make the rules ourselves. Just let them do it. But we should not do
both.
In addition to that, the chairman talked about safety and soundness.
This is a technical term that essentially has regulators requiring
banks and other financial institutions to carry a certain amount of
reserves so that if people want their money back out of the bank, the
bank has enough money to give to them. No bank believes every day 100
percent of its deposits are going to be called back by its depositors.
But they have to have a certain percentage of those funds on deposit so
if you go and say: I want my money out of the bank, they have enough
money to give it to you or, if they have loans go bad, they have enough
to carry those loans, and so on. That is what the safety and soundness
requirements of the regulators do. It is a good thing.
Those same people can also provide for consumer protections, and say:
Look, we know the bank needs to reserve a certain amount of money, and
we also know, consistent with that, they need to ensure the protection
of their consumers in a certain way.
What is difficult is when we separate these two functions, as this
legislation does, so we have one group saying to the bank here is what
you have to do for safety and soundness purposes, and we have another
totally independent group saying, we do not care anything about that,
but here is what you have to do for consumer protection.
We can end up with duplicative, overlapping, costly, and sometimes
even inconsistent requirements, all of which make it more difficult for
these institutions to give a cheaper product, a better loan, a credit
card with a lower interest rate, or whatever it may be.
I just urge my colleagues, everyone is for consumer protection.
Everyone is
[[Page S2506]]
for safety and soundness. Let's try to do this in a way that does not
impose such great burdens, especially on the smaller folks, that they
are not able to be competitive and provide their consumers, about whom,
after all, we should be mostly concerned, with the cheapest product
that is backed by the safety and soundness of the institutions.
Incidentally, on this last point, some who are a little more cynical
have said: Well, maybe this is being done for a more nefarious purpose.
If every single attorney general in the country can go out and hire
trial lawyers on a special contract to bring class action lawsuits
because of a violation of State laws, then we have a brandnew cause of
action for the trial lawyers to do even better than they have done in
the past.
I am not going to suggest that is the motivation, but I am going to
suggest that I see nothing in the bill that will prevent that. As long
as that is a potential, then, Katey, bar the door.
So, again, there are many things in this legislation that are not
partisan in terms of we all want to protect the same folks. But there
are questions that have been raised that need to be dealt with. I think
it would be far better to take the time, to have Republicans and
Democrats sitting down and going through all of these issues carefully,
writing up a bill on which they can agree, bring that bill to the floor
so the rest of us can then look at it, and hopefully we would all say:
Gee, that is a lot better product than we thought.
It is not exactly as I would have done it. It looks like there are
some compromises in there, but after all, that is what the process is
when we have little more than half of the body of one party and less
than half of the other party. That is how we get things done.
I can assure you this and assure my colleagues on the other side,
Republicans want to work with our Democratic friends to get a good bill
that all of us can support and that will be good for our country.
I think if we can work in good faith toward that end, we will be much
happier with the result than if it is the result of a partisan or a
near-partisan vote in this body and likewise in the House of
Representatives.
I thank my colleagues for their patience and am happy to yield the
floor.
The PRESIDING OFFICER (Mr. Franken.) The Senator from Ohio is
recognized.
Mr. BROWN of Ohio. Mr. President, I ask unanimous consent to engage
in a colloquy with Senator Kaufman for up to 30 minutes as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWN of Ohio. I want to believe what I just heard. I do. I
believe the genuineness and the sincerity of the words from my
colleague from Arizona. I also, though--and I agree with him there are
things we need to fix in this bill. There always are. And we can work
to improve it.
I met only 2 hours ago a dozen manufacturers from Ohio--mostly metal-
working companies, stamping, bending metal, all of that--who came to
see me to talk about credit. Their frustration with the banking system
and Wall Street is pretty deep and pretty intense. Anger, frustration--
I will not speak for them, to be sure. But it is pretty clear that Wall
Street has not served them well and has not served this country well.
As I said, I know we need to fix some things about this bill. A guy
years ago told me: Don't tell me what you believe. Show me what you do;
I will tell you what you believe.
When I listen to leadership on the other side, especially to our
colleague from Kentucky, I really do watch what he does, not just what
he says. I know he says this bill does not work because it will mean
more bailouts. That is battle tested, focus group tested, poll tested.
That is the right thing to say you are against the bill.
But more than that, I watch what he does, and I watch what
Republicans have done on this bill. Back in December 100 bank lobbyists
met with Republican leadership in the House to talk about how to defeat
any kind of Wall Street reform.
Earlier this month, Senator McConnell and Senator Cornyn--Senator
McConnell, the Republican leader; Senator Cornyn is head of the Senate
Republican Campaign Committee--went to New York and met with 25 hedge
fund and other Wall Street executives to figure out how to defeat the
bill and to do what--you know, what you would expect. The best way to
beat this bill is elect more Republicans. We need help. All of that.
So when I hear them talk about bipartisan, that they want a
bipartisan bill, what they really mean, and I know Senator Kaufman and
I have talked about this--what they really mean is, we want Wall Street
to come to the table and help us write the bill. That is what is
bipartisan, in the same way that ``bipartisan'' in the health care bill
of the last year was, we want to invite the insurance companies to the
table and have them help write the bill.
The public wants bipartisan. They want us to work together. They want
us to cooperate. We do that in a lot of things. But on a big bill like
this, the public does not want bipartisan if it means: Let's get Wall
Street and the five biggest banks in the country to write this bill and
then we can all be happy and let's get along and let's have legislation
that way.
Then I hear over and over, Senator McConnell, you know, kind of
getting a little bit--the leader gets a little upset when he talks
about this bill. It is a little bit like when you throw a rock at a
pack of dogs, the dog that yelps is the one you hit.
That is kind of what is going on here.
(The remarks of Mr. Brown and Mr. Kaufman pertaining to the
introduction of S. 3241 are located in today's Record under
``Statements on Introduced Bills and Joint Resolutions.'')
Mr. BROWN of Ohio. Mr. President, I yield the floor and suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I have sought recognition to vigorously,
enthusiastically support the nomination of U.S. district court judge
Thomas I. Vanaskie for the Court of Appeals for the Third Circuit.
Judge Vanaskie is someone known to me personally for the better part
of two, perhaps even three decades as a practicing lawyer in
Pennsylvania, as a judge on the Middle District Court. I had the
privilege of recommending him, originally, for the district court
during the Clinton administration. I have had the privilege of joining
with Senator Casey in recommending him to President Obama for the Court
of Appeals for the Third Circuit.
Judge Vanaskie has a spectacular record. He is a graduate of Lycoming
College, in 1975, with a BA degree, magna cum laude; Dickinson Law
School in 1978, cum laude. He was a law clerk to Judge William Nealon
from 1978 through 1980. For those who know Judge Nealon, he is a
masterful judge, a paragon, a great person to learn from. Judge
Vanaskie was in private practice in Scranton from 1980 to 1994. He was
confirmed to the U.S. District Court for the Middle District of
Pennsylvania on February 10, 1994.
Judge Vanaskie has been awaiting confirmation for some time now. He
has had his hearing. He was reported out of the Judiciary Committee by
a vote of 16 to 3. He is an outstanding jurist.
During the course of the discussions on the Judiciary Committee,
where I have served during all of my tenure in the Senate, there was
nothing really said in any way which was substantive in opposition. The
contention was raised that he has cited foreign law, the law of other
countries, but that is in keeping with the decisions of the Supreme
Court in the United States, which has cited foreign legal precedents--
not that they are binding. They are not the U.S. Constitution. They are
not decisions in the U.S. Federal judicial system. But they have been
recognized by the Supreme Court as worthy of some consideration.
It is regrettable that Judge Vanaskie has been caught up in the
partisan battle in the Senate. This is a part of a broader picture of
gridlock in the Congress of the United States, as we have seen the
popularity and approval rating of Members of the House and Senate fall
precipitously because of what America is seeing going on in this body
[[Page S2507]]
and across the Rotunda in the House of Representatives. We see a
stimulus package where there is very little willingness on the part of
people on the other side of the aisle to negotiate with people on this
side of the aisle. We have seen a health care package enacted into law
without a single vote in the Senate. In the House of Representatives,
176 Republicans said no and 1 said yes. On reconciliation, all 177 said
no; all 41 in the Senate said no.
There has been a point reached where there is really an issue of
whether there can be governance at all with an obstructive minority
standing fast. We have seen a slight break in ranks when the issue came
up on the vacation for the payroll tax. One Republican stood up and
voted with Democrats. That led a few others to join. And on
unemployment compensation, again, one Republican took the lead, and a
few others joined. I think it is realistic to conclude that it is the
pressure from back home. There are some on the other side of the aisle
who may sensibly calculate--I do not fault them for the calculation--
but they have to have some flexibility if they want to return to this
body.
We have had concerns on Wall Street which are overwhelming with what
has gone on in the economy: the precipitous great recession, which has
engulfed America and has engulfed the world. And for a lengthy period
of time, there has been resistance to any real negotiation by the other
side of the aisle.
Finally, within the last day or two, there has been some willingness
to consider legislation on the Wall Street issue, but I think that has
come about as a result of public pressure. It is, simply stated,
impolitic to be against reforming Wall Street, considering what has
gone on.
It would be my hope these cracks in the die would lead to some
substantial shift in position so we could return to the bipartisanship
which was present in this body when I was elected in 1980. At that
time, we had Mac Mathias of Maryland, who was willing to cross the
aisle, and Mark Hatfield of Oregon similarly and John Danforth of
Missouri, Lowell Weicker of Connecticut and Bob Stafford of Vermont and
John Heinz of Pennsylvania and John Chafee of Rhode Island and Bill
Cohen of Maine, so that when we had the so-called Wednesday club, it
was full. That has dwindled so that the moderates can meet in a
telephone booth today. We ought to go back to the days of just a little
bipartisanship.
We had an enormous problem in 2005 when the shoe was on the other
foot and the filibustering was being done on this side of the aisle.
Fortunately, we were able to work through that problem. There was a
flirtation with the so-called nuclear constitutional option, which
would have changed the rules on filibuster. We preserved the procedure
of the Senate, the tradition of the Senate, to be the ``saucer which
cools the tea'' as the expression was used during the colonial days. I
think it is very important to maintain that tradition and that
procedure. It was the coolness of the Senate which saved the
independence of the Federal judiciary and the impeachment proceeding of
Supreme Court Justice Chase of 1805 and preserved the independence of
the Presidency and the acquittal on the impeachment proceeding of
Andrew Johnson, when a controversy arose with the claim being made that
there had to be congressional or senatorial approval to fire a
Secretary of War, and he barricaded himself in the office. President
Johnson refused to seek Senate consent to fire the Secretary of War.
Articles of Impeachment were filed and he was saved by the vote of the
Senator from Kansas. Growing up in Kansas, there was great pride in the
State about that courageous Senator who stood and later was defeated.
Maybe that--I would not make any predictions of the cost of standing
up.
So it is important to maintain the traditions of this body, but we
have to do it in the context of capacity to govern. Supreme Court
Justice Jackson, in a somewhat different context, said the Constitution
is not a suicide pact. Whatever rules we have are not substitutes for
our capacity to govern.
We have seen this pattern illustrated by the nomination of Barbara
Keenan of Virginia for the Fourth Circuit. Judge Keenan's nomination
was stalled for 4 months, and after the time-consuming process of
cloture, her nomination was approved 99 to nothing. Well, if she can be
approved 99 to nothing, why require the filing of cloture? Why tie up
this Senate for the better part of 2 days?
May the Record show that the distinguished Presiding Officer, the
junior Senator from Minnesota, is nodding in agreement with my
statements. That is a procedure we lawyers use to perfect the Record.
But that has been the policy--tying up this body, going to cloture, the
delay, and then overwhelming confirmations; not all unanimous but very
substantial, and I predict that is what will happen with Judge Vanaskie
when the roll is called a little later this afternoon.
One additional note. These proceedings take a very heavy toll on the
nominee. Judge Vanaskie is a man devoted to public service. When he was
practicing law in Scranton, his paycheck was a great deal bigger than
when he became a Federal judge. When he comes into the process of the
nominating procedure and he is questioned and his writings are impugned
because he follows the Supreme Court of the United States, it is a jolt
and it is hard on the Vanaskie family and it is hard on the community.
I have had many calls from the people in Judge Vanaskie's community
saying: What is going on in the Senate? What is going on? What is
happening? Repeated calls. Finally, I decided to write a column for the
Scranton Times Tribune, explaining what happens in the Senate as to why
the delay has occurred.
So I am glad to see this brought to a close. I hope we will move the
appointments of the President. Consideration is being given to limiting
the filibuster, not having it apply to members of the administration.
We all concede, as a governmental doctrine, the President ought to have
the right to name his own team but maintaining the filibuster for
judicial nominations where we are talking about lifetime appointments.
But this is a good and true man and he has been subjected to a process
which is fundamentally unfair. I am glad to see it brought to an end
this afternoon.
I ask unanimous consent that the copy of the article which I wrote
for the Scranton Times Tribune, dated February 26, 2010, be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Scanton Times Tribune, Feb. 26, 2010]
GOP Delaying Vanaskie Appointment
(By Arlen Specter)
Republican inaction on nominations is paralyzing the work
of the Senate and putting the government's ability to
confront the nation's challenges at risk.
We have seen much obstructionism by the minority in this
Congress, but nothing compares to the gridlock on
nominations. During President Obama's first year, 46
executive nominees waited at least three months to be
confirmed, 45 waited at least four months, and nine took six
months or longer. Inaction on these qualified nominees, many
in defense-related and national security posts, is
unacceptable.
This applies to nominations for federal judgeships, many to
important or long-vacant jurisdictions. Currently, 14
judicial nominees, who have been approved--in many cases
unanimously--by the Senate Judiciary Committee are awaiting
confirmation in the face of Republican objections, many of
them specious or just plain outlandish. It is time to put
partisan politics aside and work to fill these positions as
quickly as possible.
Take the case of Judge Thomas I. Vanaskie, nominated by
President Obama last August to the U.S. Circuit Court of
Appeals for the Third Circuit. The Senate Judiciary Committee
voted 16-3 in support of his nomination on Dec. 3. More than
two months later the nomination still awaits confirmation.
Judge Vanaskie's appointment, like so many of this
administration's, has been stalled by political posturing.
The near certainty of his eventual confirmation only adds to
the charade. When Senate Majority Leader Harry Reid recently
called for a vote on a long-delayed circuit court nomination,
the Republicans voted to confirm unanimously. One
legitimately wonders whether partisanship is not the only
explanation for the delay.
The Senate can force a vote by resorting to the time-
consuming step known as cloture, which takes up two days of
the Senate's time. If cloture were to be invoked in each of
the 67 currently pending nominations that have been approved
by committee, it would take most of the year to deal with
nominations. This is an intolerable imposition on the
Senate's time and business.
Judge Vanaskie is eminently qualified to serve on the Third
Circuit, as evidenced by
[[Page S2508]]
his 16-year record on the U.S. District Court for the Middle
District of Pennsylvania and the overwhelming bipartisan
support he received from the Senate Judiciary Committee. He
has built a reputation for consistency and judicial
restraint, backed by a first-class legal mind and even
temperament.
Republican objections to his nomination are specious. One
criticism--that Judge Vanaskie inappropriately cites foreign
law precedents--was ably explained in his testimony before
the Judiciary Committee that he was following Supreme Court
decisions when it relied upon foreign sources in Lawrence v.
Texas and Roper v. Simmons. In Lawrence, the Supreme Court
majority cited the European Court of Human Rights in a
decision overruling its own prior precedent on the
criminalizing of consensual gay sex. In Roper, the court
cited international law to support a ruling striking down the
death penalty when applied to individuals who committed
murder before they were 18. In short, Judge Vanaskie was
merely following the Supreme Court's lead. Following
precedent is mandatory, not grounds for rejecting his
elevation to the Third Circuit.
There is no reason to further delay the nomination of this
highly qualified jurist to the Third Circuit Court of
Appeals. The Senate should carry out its constitutional
duties promptly and promote this eminently qualified judge.
Mr. SPECTER. I thank the Chair and yield the floor and I suggest the
absence of a quorum.
The PRESIDING OFFICER (Mr. Burris). The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I ask unanimous consent that the vote on
confirmation of the nomination of Judge Thomas Vanaskie occur at 5:30
p.m. today, with the time until then divided as previously ordered and
the remaining provisions of the order governing consideration of this
nomination still in effect.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. In the absence of any Senator seeking recognition, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Pryor). Without objection, it is so
ordered.
Mr. SESSIONS. Mr. President, I briefly wish to share a few thoughts
about Judge Thomas Vanaskie, who has been nominated for the Third
Circuit Court of Appeals--a very important position. He currently
serves on the U.S. District Court for the Middle District of
Pennsylvania. I do intend to support his nomination, giving deference
to the President, but I would just like to share a thought or two about
his testimony before the Judiciary Committee.
Judge Vanaskie testified he believed American courts should not use
foreign law in interpreting the Constitution, but he did believe the
Supreme Court properly used foreign law in cases such as Lawrence v.
Texas, and I think that is a bit contradictory. He also testified that
the Supreme Court properly used foreign law in Roper v. Simmons, where
the Court concluded that the Constitution, because of ``evolving
standards of decency,'' would now prohibit States from imposing the
death penalty on juveniles who commit murder. I think that is a
legitimate public policy issue to discuss, but the question is, Does
the Constitution say a State is not able to decide at what age people
are executed?
Judge Vanaskie said, at another point, that foreign law was relevant
to determining fundamental constitutional rights. Well, our
Constitution is the one we have, and judges, if they are faithful to
their oath, will enforce our Constitution--the one we have. It is
difficult for me to comprehend how somebody could conclude that a legal
action in the European Union would provide illumination to a judge on
how to interpret our Constitution and what the Founders meant and the
plain meaning of its words.
So I think this is a bad philosophy, and it evidences a detachment of
the judiciary from the limited role they are given. We have limited
powers, the President has limited powers, and the courts have limited
powers. Courts are not empowered to reinterpret our laws and our
Constitution based on some better idea they think they may find in
France. They are not. This is not a little bitty matter. It is a trend
that is occurring in our courts, and I am disappointed that several of
the President's nominees seem to be seduced by these ideas, including
speeches made by Justice Sotomayor where she talked about how she
favored Justice Ginsburg's views about that.
So I wish to give this judge the benefit of the doubt. He did say he
didn't follow this doctrine to the full extent of it, and I will give
him the benefit of the doubt. But also, some of his statements indicate
that he may yet be seduced by this idea. He had difficulty articulating
any limit on the commerce clause. The commerce clause says Congress can
regulate commerce. Does that mean everything? Does regulating commerce
mean you can reach down into Oklahoma and tell an individual farmer:
You have to have insurance? That raises a serious question of
constitutional power, and does that impact interstate commerce? Well,
you could theoretically conjure up a way that it could, but I want to
know that a judge understands there is some limit to the amount of
reach the Federal Government can have.
We have had a number of people complaining about the process of
confirmation and judges languishing before the Senate. In particular,
my friend, Senator Whitehouse, noted the nominations of Judge James
Wynn and Judge Albert Diaz to the Fourth Circuit. Senator Whitehouse
hasn't been here but since 2006, so maybe he isn't familiar with some
of the procedures that have gone on before. Wynn and Diaz's nominations
have been pending in the Senate for only 167 days. That is half the
time--half the time--that President Bush's circuit court nominees
waited--350 days.
In fact, four of President Bush's nominees to the Fourth Circuit
never received any hearing, and they were highly qualified nominees.
Those nominees--Mr. Steve Matthews, Chief Judge Robert Conrad, Judge
Glen Conrad, and former Maryland U.S. attorney Rod Rosenstein were well
qualified and had the bipartisan support of their home State Senators.
Yet they were blocked steadfastly from ever moving forward. President
Bush nominated Steve Matthews in September of 2007 to the same seat on
the Fourth Circuit for which Judge Diaz has now been nominated and
expects to be confirmed--and will be confirmed, I am sure.
For Senators to be whining about how long it takes Judge Diaz to move
along, in a fairly steadfast way, in light of what was done to Mr.
Matthews, is a bit much to me, I just have to tell you. We all know
this is a robust body. We don't mind speaking our minds. But Mr.
Matthews had the support of his home State Senators and received an ABA
rating of ``qualified.'' He was a graduate of Yale Law School, had a
distinguished career in private practice, and he waited 485 days for a
hearing and never got one. So his nomination was returned and expired
in January of 2009.
Another of President Bush's nominees, Chief Judge Robert Conrad, was
nominated to the seat for which Judge Wynn is now nominated. He had the
support of his home State Senators, received an ABA rating of unanimous
``well-qualified,'' which is the highest rating. Judge Conrad met
Chairman Leahy's standard for a noncontroversial consensus nominee. He
had received bipartisan approval by the committee when he was confirmed
by a voice vote to be U.S. attorney and later district court judge for
the District of North Carolina. He was then chief judge. Senators Burr
and Dole sent letters in support of that confirmation. Yet he was
blocked.
I know he can make decisions because, if I am not mistaken, I used to
say he was the point guard for the University of North Carolina
basketball team. I think that was incorrect. I think he was point guard
for Clemson. Regardless, anybody who can play a point guard in the ACC
can make decisions. He was chosen out of all the prosecutors in America
by Attorney General Janet Reno to conduct a very sensitive
investigation of President Clinton, when he was accused of some
[[Page S2509]]
wrongdoing. He conducted that and concluded no charges ought to be
brought. This was a highly qualified person. Yet he was blocked.
My time is up, but I know every nominee is not brought up immediately
or when some people would want to call up the nomination. It requires
unanimous consent to bring up a nominee, to immediately get a vote, and
unanimous consent isn't always given, so it does slow down people. I do
believe we ought not to unnecessarily delay persons, but I would want
to say that the alacrity by which President Obama's nominations are
moving far surpasses anything like the difficulties that President
Bush's nominees had. I have been here, I have seen it, and I know that
to be a fact.
I hope we can create a climate where judges have a reasonable time on
the calendar, that they have hearings in the Judiciary Committee, that
there is opportunity to raise objections, when they are made, and the
nominee comes to the floor and eventually can be brought up for a final
confirmation vote. That would be my request.
I see it is time for the vote, and so I yield the floor.
Mr. LEAHY. Mr. President, the Senate just devoted almost 3 hours to
the nomination of Thomas Vanaskie. Senate Republicans demanded this
extended time for debate. I thank Senator Specter and Senator Casey for
their statements. The Senators from Pennsylvania know Judge Vanaskie
best, and strongly support him.
I was glad to see Chairman Dodd, Senator Brown of Ohio and Senator
Kaufman come to use some of the time to talk about Wall Street reform.
That is what we should be working on. Wall Street reform, patent
reform, and other matters that are important to the American people are
what we should be debating. I was glad to see that time not wasted in
another extended quorum call because those who demanded this time to
debate the nomination did not use it.
I was glad to hear Senator Hagan talk about the two North Carolina
nominees to the Fourth Circuit. They are among the 25 judicial nominees
that Republicans have objected to considering even though they were
voted out of the Judiciary Committee unanimously or nearly so.
With respect to the President's judicial nominees, as I have said, we
are well behind the pace I set as chairman when the Senate was
considering President Bush's nominees during the second year of his
presidency. By this date in President Bush's second year, the Senate
with a Democratic majority, had moved ahead to confirm 45 of his
Federal circuit and district court judges. So far during President
Obama's Presidency, Senate Republicans have allowed votes on only 18 of
his Federal circuit and district court nominations. During the first 2
years of President Bush's Presidency we moved forward to confirm 100 of
his judicial nominees. Republican obstruction of President Obama's
nominations makes it unlikely that the Senate will reach 50 such
confirmations. Last year they allowed only 12 Federal circuit and
district court nominees to be confirmed, the lowest number in more than
50 years.
Today, thanks to the perseverance of the majority leader and the
Senators from Pennsylvania, we will consider and confirm only the 19th
of President Obama's Federal circuit and district court nominees. I
have already noted Judge Vanaskie's qualifications. There is no dispute
that he is well qualified. Indeed, the only concern his opponents have
raised is their fixation that no Federal judge be aware of foreign law.
As Senator Specter has explained, the matter on which Judge Vanaskie is
criticized was a case involving an international treaty. To those whose
ideology clouds their judgment, I remind them that the Constitution of
the United States, our Constitution, expressly provides that the
judicial power of the United States extends to cases arising under the
Constitution, laws of the United States ``and Treaties.'' Treaties are
international by their nature. How treaties are interpreted by other
courts in other jurisdictions is relevant. In fact, Justice Scalia
observed, when writing for the unanimous Court in Zicherman v. Korean
Air Lines Co., 516 U.S. 217, 226 (1996):
Because a treaty ratified by the United States is not only
the law of the land, see U.S. Const., Art. II, Sec. 2, but
also an agreement among sovereign powers, we have
traditionally considered as aids to its interpretation the
negotiating and drafting history (travaux preparatoires) and
postratification understanding of the contracting parties.
I appreciate the significant steps taken by the majority leader to
address the crisis created by Senate Republican obstruction of the
Senate's advice and consent responsibilities. Their refusal to promptly
to consider nominations is a dramatic departure from the Senate's
traditional practice of prompt and routine consideration of
noncontroversial nominees. The majority leader was required to file
five cloture motions to break through the logjam. I, again, urge the
Senate Republican leadership to reverse its course and its
obstructionist practices. Those practices have obstructed Senate action
and led to the backlog of almost 100 nominations pending before the
Senate awaiting final action. These are all nominations favorably
reported by the committees of jurisdiction. Most are nominations that
were reported without opposition or with a small minority of negative
votes. Regrettably, this has been an ongoing Republican strategy and
practice during President Obama's Presidency. I hope it will now,
finally, be abandoned and we will be allowed to make progress after
weeks and months of delay.
The vote on the confirmation of Judge Vanaksie's nomination is the
first vote on judicial nominations that the Senate will hold in 5
weeks. Despite the dozens of judicial nominations ready for Senate
consideration, none has been allowed to move forward for over a month.
These are nominations to fill longstanding vacancies in the Federal
courts. Of the 25 pending judicial nominations, 18 were reported from
the Senate Judiciary Committee without any Republican Senator voting
against. I have been urging the Senate Republican leadership for months
to allow votes on these noncontroversial nominations and to enter into
time agreements to debate the others. We need to clear the backlog of
nominations and move forward.
Judicial vacancies have skyrocketed to over 100, more than 40 of
which have been designated ``judicial emergencies.'' Caseloads and
backlogs continue to grow while vacancies are left open longer and
longer. On this date in President Bush's first term, not only had the
Senate confirmed 45 Federal district and circuit court judges, but
there were just seven judicial nominations on the calendar. All seven
were confirmed within 9 days. By the end of this month, which is 9 days
from now, we should clear the backlog that Republican obstruction has
created and vote on the judicial nominations stalled on the Senate
Executive Calendar.
By this date during President Bush's first term, circuit court
nominations had waited less than a week, on average, before being voted
on and confirmed. By contrast, currently stalled by Senate Republicans
are circuit court nominees reported by the Judiciary Committee as long
ago as five months, in November of last year. The seven circuit court
nominees the Senate has been allowed to consider so far have waited an
average of 124 days after being reported before being allowed to be
considered and confirmed.
I congratulate Judge Vanaskie and his family on what I expect will be
strong bipartisan vote in favor of his confirmation to serve on the
Third Circuit. His confirmation is long overdue.
The PRESIDING OFFICER (Mr. Franken). Under the previous order, the
question is, Will the Senate advise and consent to the nomination of
Thomas I. Vanaskie, of Pennsylvania, to be United States Circuit Judge
for the Third Circuit.
Mr. CASEY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd)
was necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Utah (Mr. Bennett) and the Senator from Nebraska (Mr. Johanns).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
[[Page S2510]]
The result was announced--yeas 77, nays 20, as follows:
[Rollcall Vote No. 122 Ex.]
YEAS--77
Akaka
Alexander
Baucus
Bayh
Begich
Bennet
Bingaman
Bond
Boxer
Brown (MA)
Brown (OH)
Burris
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Corker
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Graham
Gregg
Hagan
Harkin
Hatch
Inouye
Johnson
Kaufman
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
LeMieux
Levin
Lieberman
Lincoln
Lugar
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Vitter
Voinovich
Warner
Webb
Whitehouse
Wyden
NAYS--20
Barrasso
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Grassley
Hutchison
Inhofe
Isakson
Risch
Roberts
Thune
Wicker
NOT VOTING--3
Bennett
Byrd
Johanns
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table, and the
President will be immediately notified of the Senate's action.
____________________