[Congressional Record Volume 157, Number 170 (Tuesday, November 8, 2011)]
[Senate]
[Pages S7171-S7173]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF EVAN J. WALLACH TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                            FEDERAL CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The assistant editor of the Daily Digest read the nomination of Evan 
J. Wallach, of New York, to be United States Circuit Judge for the 
Federal Circuit.
  The PRESIDING OFFICER. Under the previous order, there is 15 minutes 
of debate equally divided and controlled between the Senator from 
Vermont and the Senator from Iowa, or their designees.
  The Senator from Maine.
  Ms. SNOWE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant editor of the Daily Digest proceeded to call the roll.
  Mr. GRASSLEY. I ask unanimous consent the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I thank the majority leader for pressing 
forward to secure a vote on another of the 25 judicial nominees ready 
for Senate consideration. I am disappointed that the Senate Republican 
leadership would only agree to vote on 1 of the 25 judicial nominees 
ready and waiting for final Senate action. All 25 of the nominees are 
qualified and have the support of their home state Senators, Republican 
and Democratic. Twenty-one of these judicial nominations were 
unanimously approved by the Judiciary Committee. Senate Democrats are 
prepared to have votes on all these important nominations. I know of no 
good reason why the Republican leadership is refusing to proceed on 24 
of the 25 nominations stalled before the Senate. At a time when the 
vacancy rate on Federal courts throughout the country remains near 10 
percent, the delay in taking up and confirming these consensus judicial 
nominees is inexcusable.
  I know that Senator Reid is especially pleased that the Senate has 
the opportunity for a final vote on the nomination of Judge Evan 
Wallach to fill a vacancy on the Federal Circuit. Judge Wallach is an 
experienced jurist with a distinguished record who has been serving on 
the U.S. Court of International Trade. He received the highest possible 
rating from the American Bar Association's Standing Committee on the 
Federal Judiciary, unanimously ``well qualified.''
  I am delighted that Judge Wallach's nomination has not been delayed 
as long as others. This nomination was reported by the Judiciary 
Committee on October 6. There is no good reason why all judicial 
nominations are not considered within a month of being reported, 
especially the consensus nominees reported unanimously by the Judiciary 
Committee. It is my hope that this timeline can be an example and set 
the standard for action on other nominations, as well. When the Senate 
approved the nomination of Judge Zipps of Arizona less than 1 month 
after it was reported by the committee, we showed that there is no need 
for additional delay. These needless delays perpetuate vacancies and 
deny the American people the judges needed in our courts to provide 
justice.
  What is disappointing is that the Senate Republican leadership has 
yet to agree to votes on the long-pending nominations of Judge Chris 
Droney of Connecticut to fill a judicial emergency vacancy on the 
Second Circuit, Morgan Christen to fill one of several judicial 
emergency vacancies on the Ninth Circuit, or Judge Adalberto Jordan to 
fill a judicial emergency vacancy on the Eleventh Circuit. The Droney 
nomination has been stalled for 3\1/2\ months despite there being no 
opposition. The Christen nomination has been pending a month longer 
than Judge Wallach's and was also reported unanimously. Judge Jordan's 
nomination is approaching 1 month on the Senate Executive Calendar 
despite his being a consensus nominee supported by both his Democratic 
and Republican home State Senators. Also pending is the nomination of 
Stephanie Thacker to fill a vacancy on the Fourth Circuit. All of these 
consensus circuit court nominations should be considered and approved 
without further delay. In addition, the Senate should give 
consideration to Caitlin Halligan's nomination. Her nomination to the 
DC Circuit was approved by the committee in March.
  Judge Wallach is only the seventh of President Obama's circuit court 
nominations the Senate has considered this year, compared to 12 at this 
point in President Bush's third year. We are not doing nearly as well 
despite five additional circuit court nominations on the Senate 
Calendar awaiting a vote. By this point in the third year of President 
Bush's administration, the Senate had confirmed 29 of his circuit court 
nominees. By comparison, the Senate has confirmed only 22 of President 
Obama's circuit court nominees. By this point in the Bush 
administration, vacancies had been reduced to 42. By comparison, today 
they stand at 83. By this point in President Bush's first 3 years, the 
Senate had confirmed 167 of his Federal circuit and district court 
nominees. So far in the 3 years of the Obama administration, that total 
is only 115.
  During President Bush's first 4 years, the Senate confirmed a total 
of 205 Federal circuit and district court judges. As of today, we would 
need another 90 confirmations over the next 12 months to match that 
total. That means a faster confirmation rate for the next 12 months 
than in any 12 months of the Obama administration to date. That would 
require Senate Republicans to abandon their delaying tactics. I hope 
they will. This is an area where the Senate must come together to 
address the serious judicial vacancies crisis on Federal courts around 
the country that has persisted for well over 2 years. We can and must 
do better for the millions of Americans being made to suffer by these 
unnecessary Senate delays.
  More than half of all Americans--over 162 million--live in districts 
or circuits that have a judicial vacancy that could be filled today if 
Senate Republicans just agreed to vote on the nominations now pending 
on the Senate calendar. As many as 24 States are served by Federal 
courts with vacancies that would be filled by these nominations. 
Millions of Americans across the country are harmed by delays in 
overburdened courts. The Republican leadership should explain why they 
will not consent to vote on the qualified, consensus candidates 
nominated to fill these extended judicial vacancies.
  Senator Grassley and I have worked together to ensure that each of 
the 25 nominations on the Senate Calendar was fully considered by the 
Judiciary

[[Page S7172]]

Committee after a thorough but fair process, including completing our 
extensive questionnaire and questioning at a hearing. This White House 
has worked with the home state Senators, Republicans and Democrats, and 
each of the judicial nominees being delayed from a Senate vote is 
supported by both home State Senators. The FBI has conducted a thorough 
background review of each nominee. The ABA's Standing Committee on the 
Federal Judiciary has conducted a peer review of their professional 
qualifications. When the nominations are then reported unanimously by 
the Judiciary Committee, there is no reason for months and months of 
further delay before they can start serving the American people.
  No resort to percentages of nominees ``processed'' or ``positive 
action'' by the committee can excuse the lack of real progress by the 
Senate. In the past, we were able to confirm consensus nominees more 
promptly, often within days of being reported to the full Senate. They 
were not forced to languish for months. The American people should not 
have to wait weeks and months for the Senate to fulfill its 
constitutional duty and ensure the ability of our Federal courts to 
provide justice to Americans around the country.
  The American people need functioning Federal courts with judges, not 
vacancies. Though it is within the Senate's power to take significant 
steps to address this problem, refusal by Senate Republicans to consent 
to vote on consensus judicial nominations has kept judicial vacancies 
high for years. The number of judicial vacancies has been near or above 
90 for over 2\1/2\ years. A recent report by the nonpartisan 
Congressional Research Service found that these delays have resulted in 
the longest period of historically high vacancy rates on Federal 
district courts in the last 35 years. These needless delays do nothing 
to help solve this serious problem and are damaging to the Federal 
courts and the American people who depend on them.
  Mr. GRASSLEY. Mr. President, today the Senate will confirm Judge Evan 
Jonathan Wallach to be a U.S. circuit judge for the Federal Circuit. 
With this vote, we will have confirmed 54 article III judicial nominees 
during this Congress, and 18 in just over a month. In only eight 
sessions of Congress in the past 30 years has the Senate confirmed more 
judicial nominees.
  Our progress extends beyond the Senate floor and into the Judiciary 
Committee, where 88 percent of President Obama's judicial nominees have 
had their hearing. That is compared to only 76 percent of President 
Bush's nominees at a comparable point in his Presidency, in the 108th 
Congress. To date, 72 percent of the judicial nominations made by 
President Obama have been confirmed. Overall, we have made real 
progress on 85 percent of the judicial nominees submitted this 
Congress.
  Furthermore, these nominees have been processed in a very fair 
manner. Circuit nominees have had a hearing within 66 days after 
nomination, on average. President Bush's nominees were forced to wait 
247 days. The same can be said of President Obama's district court 
nominees, who had their hearings, on average, in just 79 days. 
President Bush's district court nominees waited 120 days, on average, 
for a hearing.
  President Obama's circuit and district nominees have been reported 
faster than those of President Bush--in fact, almost 35 percent faster. 
I would hope that my colleagues on the other side of the aisle would 
acknowledge this cooperation, and they sometimes do. But it is 
important to remind everyone that our duty as U.S. Senators is not to 
rubberstamp the President's nominees. We must carefully examine the 
records and qualifications of each nominee before us to determine if 
they are fit to serve the public for lifetime positions. I don't 
believe my constituents would expect any less.
  The fact that we are here, confirming the 54th article III judicial 
nominee, shows we have been performing our due diligence. However, we 
will continue to hold quality confirmed over quantity confirmed.
  I would like to say a few words about Judge Wallach.
  Judge Wallach presently serves as a judge of the U.S. Court of 
International Trade. He was appointed to that court by President 
Clinton in 1995, following confirmation by the Senate.
  I would note that the Federal Circuit, the court to which Judge 
Wallach is nominated, is the appellate court for the Court of 
International Trade. In addition to international trade, the court 
hears cases on patents, trademarks, government contracts, certain money 
claims against the U.S. Government, veterans' benefits, and public 
safety officers' benefits claims. Of particular interest to me, this 
court has exclusive jurisdiction over cases related to Federal 
personnel matters. That includes exclusive jurisdiction over appeals 
from the Merit Systems Protection Board, MSPB, which hears 
whistleblower cases under the Whistleblower Protection Act.
  Evan Wallach received a bachelor of arts from the University of 
Arizona in 1973, his juris doctorate from University of California 
Boalt Hall School of Law in 1976, and his bachelor of laws from the 
University of Cambridge in 1981.
  Judge Wallach began his legal career as an associate attorney with 
Lionel Sawyer & Collins where he eventually made partner. Over time, 
the emphasis of his practice became media law. He also defended libel 
actions and represented newspapers on day to day issues, including 
employee grievances, collection actions, and copyright protection.
  While he remained with Lionel Sawyer & Collins, he took several 
leaves of absences. From 1987 to 1988, Judge Wallach worked as a 
general counsel and public policy adviser to Senator Harry Reid. He 
also served as a judge advocate for the Nevada Army National Guard from 
1989 to 1995. In 1991, Judge Wallach was called up to active duty to 
serve as an attorney in the Office of the Judge Advocate General of the 
Army-International Affairs Division during the first gulf war.
  The American Bar Association Standing Committee on the Federal 
Judiciary has rated Judge Wallach with a unanimous ``Well Qualified'' 
rating.
  Mr. REID. Mr. President, Judge Evan Wallach has been my friend for a 
very long time.
  I have known him since he was a lawyer in Nevada. He worked at Lionel 
Sawyer & Collins for almost 2 decades.
  He is a good man and a good jurist, and I believe he is a wonderful 
nominee for the U.S. Court of Appeals for the Federal Circuit.
  He is also a scholar. Judge Wallach graduated from the University of 
Arizona and then got his law degree from UC Berkeley. But one law 
degree wasn't enough, so he went on to get another degree at the 
renowned University of Cambridge Law School in England.
  Now he passes on that great wealth of knowledge to others. Since 
1997, he has served as an adjunct law professor, teaching the law of 
war and other courses at Brooklyn Law School, New York Law School and 
several other worthy institutions.
  Judge Wallach is also a patriot with a long history of serving his 
country in our armed forces.
  He and his two older brothers volunteered to serve in Vietnam, and 
Judge Wallach was awarded the Bronze Star.
  But his service to his country didn't end there. My friend served in 
the Nevada Army National Guard from 1989 until 1995 as an attorney-
advisor.
  During the Gulf War, in 1991, he took a leave of absence from his law 
practice--where he was a partner--to serve as an active-duty attorney-
advisor. He served in the Office of the Judge Advocate General of the 
Army at the Pentagon.
  He has also served as a Circuit Court judge in the 2nd, 3rd and 9th 
Circuits, and as a District Court judge in Nevada, New York and the 
District of Columbia. He even heard a patent case in Nevada and he 
wrote hundreds of opinions as a judge for the U.S. Court of 
International Trade.
  Judge Evan Wallach served his country bravely at war. I know he will 
serve it well once again as a judge on the U.S. Court of Appeals for 
the Federal Circuit.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that all time be 
yielded back.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the nomination 
of

[[Page S7173]]

Evan Jonathan Wallach, of New York, to be United States Circuit Judge 
for the Federal Circuit?
  Mr. GRASSLEY. I ask for the yeas and nays.
  Is there a sufficient second? There appears to be.
  The clerk will call the roll.
  The assistant editor of the Daily Digest called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Alabama (Mr. Sessions).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 199 Ex.]

                                YEAS--99

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--1

       
     Sessions
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________