[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be rescinded.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.
____________________