[Congressional Record Volume 158, Number 9 (Monday, January 23, 2012)]
[Senate]
[Pages S16-S27]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JOHN M. GERRARD TO BE UNITED STATES DISTRICT JUDGE FOR 
                        THE DISTRICT OF NEBRASKA

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of John M. 
Gerrard, of Nebraska, to be United States District Judge for the 
District of Nebraska.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 90 minutes for debate, with 60 minutes divided in the usual 
form and 30 minutes under the control of the Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask that I be notified after 12 
minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, by all accounts, Judge Gerrard of the 
Nebraska Supreme Court is a good man with a good family and many 
friends, and he has done a pretty good job over the years--maybe a good 
job over the years--as a capable practicing jurist now on the Supreme 
Court of Nebraska.
  I will vote against that nomination, reluctantly. I really do not 
want to in one sense, but his nomination raises an important issue 
about the duty of a judge to be faithful to the law and to commit to 
serve under the law and under the Constitution, as the oath of a 
Federal judge requires. In other words, as a judge you are a servant to 
the law.
  You honor the law. You venerate the law. You follow the law whether 
or not you like it, whether or not you think it is a good idea, whether 
or not had you been at the Constitutional Convention in the 1700s, you 
would have voted for that phrase or not voted for that phrase or 
whether if you had been in the House or the Senate you would have 
worked to change the Constitution or change the law of the State of 
Nebraska. Those are matters that are outside the province of a judge. 
If judges choose to be involved in policy-setting, then they ought to 
invest themselves in the policy-setting branches, the legislative and 
executive branches.

[[Page S17]]

  So judges are, as Justice Roberts said so wonderfully, ``neutral 
umpires.'' They do not take sides in the game; they enforce the rules 
of the game. How those rules have been written and established and what 
motivation caused the Congress to pass them is not the critical issue. 
So there is a very troubling matter to me which reveals an activist 
tendency in this judge, and it was the case of State v. Moore.
  The case of State v. Moore in Nebraska is very significant because it 
raises quite clearly these very issues. In the Moore case, Judge 
Gerrard took an active role as one of the members of the court. Mr. 
Moore had been on death row since 1980. He had confessed to murdering 
two people. He had appealed to the Nebraska Supreme Court three times. 
Three times the Nebraska Supreme Court had denied his appeals. He had 
quit appealing. In fact, he filed a motion and said he did not desire 
any more appeals. His pleading said he no longer wished to challenge 
his sentence, and he was being set for an execution that by law he 
deserved.
  Judge Gerrard intervened on his own motion and stayed that execution 
even though no pleading had been filed. He did it on the basis that 
while Moore was set for electrocution, he was aware that another case 
that was coming up to the Supreme Court of Nebraska dealt with the 
constitutionality of the death by electrocution statute. Apparently the 
judge did not like the death by electrocution statute. But he stopped 
it. Technically, I am not sure that was correct. He was criticized by 
three members of the court, but he did that.
  Then the case came before the court, this other case, the Mata case. 
The judge then confronted the fundamental question of whether the 
utilization of electrocution was a constitutional matter.
  Now in Nebraska and in most States there are two types of 
constitutions: the U.S. Constitution and the Nebraska Constitution. As 
is often the case, the exact same words with regard to the death 
penalty are in the U.S. and Nebraska Constitutions: that the 
Constitution prohibits the carrying out of a death penalty by cruel or 
unusual means. ``Cruel and unusual'' actually is the phrase. So it must 
be cruel and it must be unusual to be unconstitutional, otherwise 
States can all carry out death penalties as they choose.
  In fact, at the time the Constitution was adopted, every colony, 
every State that formed our Union had a death penalty. The U.S. 
Government had a death penalty. There are multiple references in the 
U.S. Constitution to the imposition of a death penalty. It says, for 
example, that you cannot deny a person ``life'' without due process. It 
makes reference to ``capital crimes,'' which are death penalty crimes. 
There are several, multiple references to that. Implicit in the 
Constitution itself is a constitutional acceptance of the ability of 
the Congress or the State legislatures to impose a death penalty.
  The Constitution was in no way ever thought to be a document that 
would have prohibited all death penalty cases. But there became a 
movement in the middle of the last century and later that the death 
penalty was bad and that judges should overthrow it. Actually two 
judges on the Supreme Court opposed every death penalty case because 
they said it was cruel and unusual.
  That was not the Constitution. They were allowing their personal 
views about the wisdom, or lack of it, of the death penalty to 
influence their judicial decisionmaking. How can we say the 
Constitution prohibits the death penalty when it makes multiple 
references to the death penalty? Every State and the Federal Government 
have been utilizing the death penalty since the time the Republic was 
founded.
  So I am not debating the death penalty. I am not debating the death 
penalty. Good people can disagree. It ought to be brought up on the 
floor of this Congress, on the floor of the legislatures of Nebraska, 
Alabama, Texas, and New York, and they can decide whether they want to 
have one and how it will be carried out.
  The Constitution does say, however, that we cannot use cruel and 
unusual methods of carrying out the death penalty because they 
understood that. They did not want people to be drawn and quartered and 
chopped up and things like that--burned in fires. The accepted penalty 
at that time was firing squad and hanging, generally. That is what was 
approved in most States. We still have States--at least one State 
today--that allows firing squad. I think we still have some that have 
hanging. But most States have gone more and more to lethal injection, 
and a number, quite a number, still have electrocution.
  So the question of electrocution was brought up. The guy was 
defending a person who had been sentenced to die as a result of his 
crimes. They objected, saying electrocution was cruel and unusual in 
1890. In 1890 the Supreme Court ruled that it was not unconstitutional. 
Then again it was ruled in 1947 that electrocution was not cruel and 
unusual punishment. Since that time, up until recent years, most--I 
would say perhaps even a majority of States--used electrocution as 
being less painful and more consistent with our values than a firing 
squad or hanging. So it was seen as a reform, a better way to carry out 
the severe penalty of death.
  The Supreme Court of the United States has since repeatedly denied 
appeals to seek to raise again electrocution as being unconstitutional.
  This other case came up in Nebraska, State v. Mata. It squarely 
challenged the constitutionality of electrocution as a method of 
execution. Although he acknowledged the Nebraska Supreme Court had 
always held that electrocution was not cruel and unusual, Judge Gerrard 
asserted in the Moore case that ``a changing legal landscape raises 
questions regarding the continuing vitality of that conclusion.''
  I am not aware of anything in the landscape that would justify any 
change in that. I think 1 State in the United States out of 50 has held 
that electrocution is not appropriate. I don't know how it violates the 
cruel and unusual clause. I am not sure how they possibly so ruled, but 
they did. So it came up before this court. The Mata case came up before 
the court and, to sum it up, let me just say they concluded, contrary 
to the previous rulings of the Nebraska Supreme Court, contrary to the 
rulings of the U.S. Supreme Court, that electrocution amounts to a 
cruel and unusual punishment and eliminated and stayed the execution of 
two individuals, Mr. Mata and Mr. Moore.
  I guess what I will say is this: We all in this body have to make a 
decision about whether judges make errors--which they sometimes do--and 
then how serious those errors are and what those errors reflect about 
the ability of the judge to fulfill the oath they take. The oath, 
remember, is to serve under the Constitution, under the laws of the 
United States, and to do equal justice to the rich and the poor and to 
follow the law, in effect, whether you like it or not.
  I think this was not a little bitty matter. I think the people of the 
United States and judges on the Supreme Court of the United States have 
dealt with death penalty cases for some time, and the American people 
have been called upon on a number of occasions to eliminate death 
penalties in their States. A few have; most have not.
  Mr. President, 30 minutes has been set aside for me, correct?
  The ACTING PRESIDENT pro tempore. That is correct. The Senator has 
used just over 13 minutes.
  Mr. SESSIONS. I ask to be notified after 7 additional minutes.
  The ACTING PRESIDENT pro tempore. The Chair will notify the Senator.
  Mr. SESSIONS. Mr. President, it is not a little bitty matter. These 
matters have gone to the Supreme Court. Electrocution was passed by 
legislatures and voters for one reason. They thought it was a way to 
carry out a grim death penalty sentence in a way less painful than a 
firing squad and hanging. That is why they did that. It was not any 
more cruel and unusual but less cruel and unusual. Death is 
instantaneous, and it is an effective method and is consistent with our 
Constitution, as the Supreme Court held and as the Nebraska Supreme 
Court previously held.
  Here we are in this body and we have heard the debates. A lot of good 
people with very plausible arguments--I don't agree with them, but I 
respect them--

[[Page S18]]

say we should not have a death penalty. This is a debate we should have 
and talk about with the American citizens. It is not a matter for 
judges to effectively decide by altering the plain meaning and 
principles of the U.S. Constitution because they think it is not right. 
They are not legislators. This is a big issue around the country and 
people are tired of it. They say people are not happy with the judges 
and they don't understand the law. Well, they understand the death 
penalty. They have considered it. Their elected representatives have 
voted on it. It has been approved in most States. They expect their 
judges to carry out the law, unless it plainly violates the 
Constitution of their State or the Nation.
  I just suggest that I believe this decision was a product of an ill 
will or a bias against the death penalty, consistent with the effort of 
a lot of people working around the legal system every day. I was the 
attorney general of Alabama, chief prosecutor in the State. I was a 
U.S. attorney for 12 years. So I have wrestled with these issues. I 
know how the deal works. Everybody in the system understands what this 
is.
  For the Supreme Court of Nebraska to hold that electrocution violates 
the cruel and unusual clause of the Constitution of Nebraska or the 
Constitution of the United States--they said in this case, Nebraska, 
which has exactly the same language as the U.S. Constitution; for them 
to rule that way, I believe, is outside the bounds of what I am willing 
to accept. We have people saying the evolving standards of decency, 
evolving legal principles, and evolving national and international law 
says we ought to change. No, the American people rule and they elect 
their representatives and they pass laws; and judges have one 
obligation, which is to enforce the law, unless it is plainly contrary 
to the Constitution. My opinion, as someone who has been in the 
legislature and had to defend death penalties as the attorney general 
of the State of Alabama--my opinion is that declaring electrocution to 
be an unconstitutional method of imposing the death penalty steps out 
of objective, neutral judging and evidences a plain activist tendency 
to promote a result.

  I think it is compounded by the fact that the judge went out of his 
way, contrary to other judges' wishes on the court, to lead an effort 
to stay one execution until they could take up this case and then to 
rule over the Chief Judge's dissent that it was indeed 
unconstitutional.
  Mr. Moore remains now, since 1980, even today, still on death row. 
People are unhappy about that. They rightly think the law is not 
working and that there is too much politics in it, and people are 
undermining duly enacted law. There was no question of this defendant's 
guilt. He murdered two people and he confessed to it.
  That is the way I feel about this. I can see a lot of other people 
saying Judge Gerrard is a good man, a smart lawyer, and he will do a 
good job on the bench--and I hope he does--but I am not voting for 
judges, as I have said before, who will not establish that they are 
willing to follow the law even if they don't like it. Particularly, I 
am very reluctant to support judges who, I believe, in this most 
controversial area where much debate has occurred, in one form or 
another, take extraordinary, unlawful steps in my view, to undermine 
the death penalty because they don't like it.
  You say: Somebody else said that may have been a mistake, but it is 
not disqualifying. I respect other people's opinions. I am not calling 
on other people to reject Judge Gerrard. As I said, by all accounts, he 
is a good man. I am saying I don't feel comfortable voting for someone 
based on a legal issue such as this that I personally dealt with over 
the years. I would not oppose him if he personally opposes the death 
penalty. That is fine. But as a judge he is required to carry it out in 
an effective way. We have had far too much obstruction of the death 
penalty, and I hope we will see an end to it and get judges on the 
bench who will follow the law.
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska is 
recognized.
  Mr. JOHANNS. Mr. President, I ask if the Senator from Alabama will 
yield me 3 minutes to speak on Judge Gerrard.
  Mr. SESSIONS. I will. I appreciate my colleague's interest in this 
matter. I believe there is considerable time left on the other side. He 
can certainly have that on my time.
  The ACTING PRESIDENT pro tempore. There is about 10 minutes.
  Mr. SESSIONS. Mr. President, I yield what time I have to the Senator 
from Nebraska.
  Mr. JOHANNS. Mr. President, I thank the Senator from Alabama for 
yielding the time. One thing I wish to say, to start out with, is that 
the Senator from Alabama and I would almost always agree about judicial 
appointments. It is a very unusual situation that we would be in any 
kind of disagreement. Many times I come to the floor and seek out the 
Senator from Alabama and ask his thoughts on things or to tell me more 
about a nominee. I am here this afternoon with great respect for the 
Senator from Alabama and his views of judicial nominees.
  I have very strong feelings, though, about Justice Gerrard. I have 
had an opportunity to watch this man on the Nebraska Supreme Court for 
many years. In my view--and I doubt there would be many who would 
disagree with this--judges, especially Federal judges, should follow 
the law and not their own inclinations or personal preferences or their 
own personal feelings on a matter or controversy before them. I think 
we need to examine this issue very carefully.
  There has been some suggestion that Justice Gerrard might seek to 
craft his own preferred outcomes instead of following the law. I wish 
to respond to that. The concerns, of course, relate to a case out of 
Nebraska, State of Nebraska v. Moore.
  In that case, Justice Gerrard ordered a stay of a death warrant 
pending the outcome of another case the Nebraska Supreme Court was 
considering. At issue in the second case was whether the death penalty 
by electrocution, as provided by Nebraska statute, was consistent with 
the Nebraska Constitution. Because the defendant in Moore was scheduled 
to die by electrocution, Justice Gerrard stayed the warrant pending the 
court's decision in that second case. In the majority opinion in Moore, 
Justice Gerrard noted that the court was using its inherent authority 
to stay the warrant.
  If I might, let me take a moment to explain what Justice Gerrard was 
saying there.
  Some have concluded that what he was saying was he was calling on 
some nebulous, indistinct legal authority merely to cloak his own 
wishes. But I would suggest respectfully that Justice Gerrard has fully 
and very satisfactorily explained exactly what he meant by the specific 
choice of those words. He was, in fact, carefully using authorities 
granted to him by Nebraska law. As the judge explained in a letter, 
Nebraska law provides that the Nebraska Supreme Court is directly 
responsible for issuing the order of execution of prisoners sentenced 
to death. So when Judge Gerrard used his inherent authority to stay the 
execution at issue in Moore, he was using authority granted by Nebraska 
statute to order the execution in the first place. In other words, the 
Nebraska Supreme Court, by Nebraska law, has the power to issue the 
order and then deal with that order in the future.
  This is what Judge Gerrard said in his letter in a series of 
questions that were posed to him relative to his nomination for the 
U.S. district court:

       The ``inherent authority'' referred to in the Moore order 
     was only the court's inherent authority to control the 
     implementation of its own orders, just as any court, at any 
     level, can control its own orders.

  I should note also that Judge Gerrard makes plain that he considers 
the death penalty to be the law of the land, one that he must uphold.
  On the question of whether the death penalty is constitutional, 
Justice Gerrard writes:

       I am aware of no authority, nor any persuasive evidence, 
     supporting the conclusion that the death penalty itself is 
     unconstitutional. Our court has concluded in multiple cases 
     that the death penalty itself is constitutional, and I have 
     joined in (and authored many) of those decisions.

  Mr. President, as I have indicated in my remarks in support of this 
nominee, I do believe Judge Gerrard will base his decisions on the 
evidence before him and the applicable law. I have

[[Page S19]]

had an opportunity to watch him do that for years and years. That is 
what he will do. He will base his decisions on the evidence before him 
and the applicable law and nothing else. Furthermore, he has earned the 
respect and support of Nebraskans, who three times voted to return him 
to the bench. I believe he is well qualified to serve our Nation in the 
Federal courts as a district judge. Justice Gerrard's nomination 
deserves our support, and I again urge my colleagues to support him 
today.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I wish to compliment the Senator from 
Nebraska for his comments. I totally agree with him.
  As last year drew to a close, I spoke about the Senate's lost 
opportunity to take long overdue steps to address the serious vacancies 
crisis on Federal courts throughout the country. With nearly one out of 
every 10 Federal judgeships vacant, the Senate should not have 
adjourned with 21 judicial nominations on the calendar and stalled from 
having a vote. Regrettably, Senate Republicans chose to end last year 
using the same obstructionist tactic that they used the year before. 
They continue to delay final confirmation votes on consensus judicial 
nominees for no good reason. Such delaying tactics are a disservice to 
the American people and prevent the Senate from doing its 
constitutional duty and ensuring the ability of our Federal courts to 
provide justice to Americans around the country.
  The result of the Senate Republicans' inaction is that the people of 
New York, California, West Virginia, Florida, Nebraska, Missouri, 
Washington, Utah, the District of Columbia, Nevada, Louisiana, and 
Texas are without the judges they need. The result is that judicial 
emergency vacancies in Florida, Utah, California, Nevada and Texas 
remain unfilled. Last year it took us until June to make up the ground 
we lost when Senate Republicans refused to complete action on judicial 
nominees at the end of 2010. The Senate starts this year with 19 
judicial nominees awaiting final Senate action, all but one of them 
reported with significant bipartisan support, 16 of them unanimously. 
They should have been confirmed last year.
  By repeating its obstruction and refusing to consent to votes on 
consensus nominees before the end of the year, Senate Republicans have 
again ratcheted up the partisanship in connection with filling judicial 
vacancies. While once Republican Senators threatened to blow up the 
Senate to force votes on a handful of President Bush's most extreme 
ideological picks, Senate Republicans now stall and block even 
President Obama's mainstream, consensus nominees across the board. 
Those they delayed are the kind of qualified, consensus nominees who in 
the past would have been considered and confirmed by the Senate within 
days of being reported with the support of their home state Senators 
and the support of both Democrats and Republican on the Senate 
Judiciary Committee.
  Last year, final consideration of qualified, consensus judicial 
nominees took months because Senate Republicans refused to consent to 
confirmation votes. They took this to a new extreme by ending the year 
by refusing to hold votes on any judicial nominees. Meanwhile, the 
millions of Americans who are served by the Federal courts in those 
districts and circuits whose vacancies could be filled with qualified, 
consensus nominees are left with overburdened courts and unnecessary 
delays in having their cases determined.
  I thank the Majority Leader for arranging for final consideration of 
Justice John Gerrard's nomination. Since 1995, Justice Gerrard has 
served on the Supreme Court of Nebraska, and his nomination received 
the highest possible rating from the ABA's Standing Committee on the 
Federal Judiciary, unanimously ``well qualified.'' He received a near-
unanimous vote before the Senate Judiciary Committee back in mid-
October last year and has had the support of his home state Senators, a 
Democrat and a Republican, from the outset. Recently, the senior 
Senator from Nebraska announced that this will be his last year in the 
Senate. I have always enjoyed working with Senator Nelson. He has 
worked hard and represented the people of his state well. He has been 
diligent with respect to judicial nominations for vacancies in Nebraska 
and tirelessly pressed to fill vacancies there to ensure that cases 
before the Federal courts in Nebraska were not needlessly delayed. I am 
sorry that confirmation of this judicial nomination, one he has so 
strongly supported, has been needlessly delayed more than three months 
while the Federal trial court for the District of Nebraska remains 
overburdened.
  More than half of all Americans 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 that have been voted 
out of the Senate Judiciary Committee and have been awaiting a final 
confirmation vote by the Senate since last year. It is wrong to delay 
votes on these qualified, consensus judicial nominees. The Senate 
should be helping to fill these numerous, extended judicial vacancies, 
not delaying final action for no good reason.
  Our courts need qualified Federal judges not vacancies, if they are 
to reduce the excessive wait times that burden litigants seeking their 
day in court. It is unacceptable for hardworking Americans who are 
seeking their day in Federal court to suffer unnecessary delays. When 
an injured plaintiff sues to help cover the cost of medical expenses, 
that plaintiff should not have to wait for three years before a judge 
hears the case. When two small business owners disagree over a 
contract, they should not have to wait years for a court to resolve 
their dispute. With one in 10 Federal judgeships currently vacant, the 
Senate should have come together to address the serious judicial 
vacancies crisis on Federal courts around the country.
  Professor Carl Tobias makes the point in his column at the end of 
last year entitled, ``Judicial Openings Erode U.S. Justice System.'' He 
correctly observed: ``The Senate recessed without considering any of 
the 21 nominees, 16 of whom the Committee unanimously reported, on its 
calendar because Republicans refused to debate and vote on them.'' He 
goes on to describe some of the slowdown tactics Senate Republicans 
have employed and concludes: ``Most problematic has been Republican 
refusal to vote on uncontroversial nominees.'' I ask consent that a 
copy of Professor Tobias' column be included at the conclusion of my 
statement.
  In his 2010 Year-End Report on the Federal Judiciary, Chief Justice 
Roberts rightly called attention to the problem of overburdened courts 
across the country. Indeed, the workload in our Federal trial courts 
has increased 5 percent during President Obama's term in office and 22 
percent over the last 10 years. Senate Republicans have shown no 
interest in adding the judgeships that the Judicial Conference, Chief 
Justice Rehnquist and Chief Justice Roberts have requested. To the 
contrary, they have been stalling needed Federal judges and keeping 
judicial vacancies at historically high levels for unprecedented 
lengths of time. Unfortunately, the unprecedented obstruction of 
consensus judicial nominations by Senate Republicans continues. They 
have dramatically departed from the Senate's longstanding tradition of 
regularly considering consensus, noncontroversial nominations. Their 
obstruction marks a new, dark chapter in what Chief Justice Roberts had 
called the ``persistent problem of judicial vacancies in critically 
overworked districts.''
  Chief Justice Rehnquist had chastised Senate Republicans for their 
stalling tactics on judicial nominees during the Clinton 
administration. In his 2001 Year-End Report on the Federal Judiciary, 
Chief Justice Rehnquist reiterated his critical comments from 1997 and 
1998 when Senate Republicans were responsible for stalling scores of 
qualified, needed judicial appointments. By the next year, Senate 
Democrats had completed confirmations of 100 of President Bush's 
nominees and reduced judicial vacancies throughout the country to 60. 
By the end of the third year of the Bush administration, the Chief 
Justice reported that he was pleased by the progress being made filling 
vacancies and focused his attention on seeking to raise judicial 
salaries. With respect to judicial vacancies, he

[[Page S20]]

noted that the Federal trial courts had only 27 vacancies.
  Regrettably, that progress is not being replicated despite President 
Obama's efforts to work with home state Republican Senators and to 
nominate qualified, mainstream candidates. A New York Times editorial 
from January 4, 2011, properly noted that Senate Republicans' ``refusal 
to give prompt consideration to noncontroversial nominees'' in 2010 was 
a ``terrible precedent.'' Regrettably, Senate Republicans continued 
that tactic through 2011. They replicated the blockade of consensus 
judicial nominees they had conducted at the end of 2010 by again 
blocking consensus nominees across the board at the end of 2011. At the 
end of 2010, they blocked 17 judicial nominees who should have been 
confirmed in 2010 but had to be carried over for months before finally 
being acted upon by the Senate. In 2011, Senate Republicans ended the 
year needlessly stalling another 19 judicial nominees, including 18 who 
were by any measure consensus nominees, who should have been confirmed.
  Their partisan tactics are at odds with the professed concern about 
caseloads that Republican Senators contended justified their filibuster 
of Caitlin Halligan and prevented a vote on her nomination to the D.C. 
Circuit. The Washington Times' banner headline last December 7th 
correctly proclaimed that with the Senate Republican filibuster of that 
nomination ``GOP Ends Truce on Judicial Hopefuls.'' Of course, if 
caseloads were really what mattered to Senate Republicans, they would 
not have blocked the Senate from voting to confirm consensus nominees 
to fill judicial emergency vacancies around the country.
  If caseloads were really what mattered to Senate Republicans, they 
would have consented to consider the nomination of Judge Adalberto 
Jordan of Florida, which was reported unanimously last October, to fill 
a judicial emergency vacancy on the Eleventh Circuit. If they were 
really concerned with caseloads, they would have consented to move 
forward to confirm Judge Jacqueline Nguyen of California, a well-
qualified nominee to fill a judicial emergency vacancy on the Ninth 
Circuit, the busiest Federal appeals court in the country. Judge Nguyen 
is nominated to fill the judicial emergency vacancy that remains after 
another Republican filibuster, that against the nomination of Goodwin 
Liu, now a Supreme Court Justice in California. If they cared about 
caseloads, they should also have consented to votes on the nominations 
of Michael Fitzgerald to the Central District of California, David 
Nuffer to the District of Utah, Miranda Du to the District of Nevada, 
Gregg Costa to the Southern District of Texas, and David Guaderrama to 
the Western District of Texas, all nominations to fill judicial 
emergency vacancies in our Federal trial courts.
  If Republican Senators were concerned about ensuring that our courts 
have the judges they need to administer justice for the American 
people, they would not have refused consent for the Senate to consider 
qualified, consensus judicial nominees. Republicans' consent is what 
was needed to vote to fill these judicial vacancies and support the 
Federal judiciary, to help them deal with what Chief Justice Roberts 
calls ``demanding dockets'' and to further public confidence in the 
integrity and responsiveness of our Federal justice system. Instead, 
Senate Republicans' refusal to confirm 18 qualified, consensus judicial 
nominees before adjourning last year, reminds me of the Republican 
pocket filibusters that blocked more than 60 of President Clinton's 
judicial nominations from Senate consideration.
  When I became Chairman in 2001 and made the Committee blue slip 
process public for the first time and worked to confirm 100 judicial 
nominees of a conservative Republican President in 17 months, I hoped 
we had gotten past these partisan tactics. I am disappointed after 
working for more than a decade to restore transparency and fairness to 
the process of considering judicial nominations that Senate Republicans 
are again using partisan holds to block progress at filling judicial 
vacancies.
  If Republican Senators were concerned about ensuring that our courts 
have the judges they need to administer justice for the American 
people, they would do what Democrats did during President Bush's first 
term. During President Bush's first term we reduced the number of 
judicial vacancies by almost 75 percent. When I became Chairman in the 
summer of 2001, there were 110 vacancies. By the time Americans went to 
the polls in November 2004 there were only 28 vacancies. Despite 2004 
being an election year, we were able to reduce vacancies to the lowest 
level in the last 20 years.
  In November of 2008, when I was Chairman with a Republican president, 
we again reduced judicial vacancies to only 37. I was willing to 
accommodate Senate Republicans and held expedited hearings and votes on 
judicial nominations, even as late as September 2008. By working 
together, even in an election year, we were able to reduce the number 
of judicial vacancies.
  It is wrong to dismiss the delays resulting from the Senate 
Republicans' obstruction as merely tit for tat. This is a new and 
damaging tactic Senate Republicans have devised. They are stalling 
action on noncontroversial nominees and have been doing so for the last 
three years. Meanwhile, millions of Americans across the country who 
are harmed by delays in overburdened courts bear the cost of this 
obstruction.
  I had hoped and urged that such damaging obstruction not be repeated. 
I had urged that before the Senate adjourned last year at least the 18 
judicial nominees voted on by the Judiciary Committee who are by any 
measure consensus nominees be confirmed. With vacancies continuing at 
harmfully high levels, the American people and our Federal courts 
cannot afford these unnecessary and damaging delays. So while I am 
pleased to see John Gerrard's nomination voted on today, there remain 
another 17 qualified, consensus judicial nominees still being stalled 
from last year.
  For the last two years in a row, Republicans have rejected the 
Senate's traditional, longstanding practice of taking final action on 
consensus nominations before the end of the Senate session. Senate 
Democrats consented to consider all of the consensus nominations at the 
end of President Reagan's third year in office and President George 
H.W. Bush's third year in office, when no judicial nominations were 
left pending on the Senate Executive Calendar. That is also what the 
Senate did at the end of the 1995 session, President Clinton's third 
year in office, when only a single nomination was left pending on the 
Senate calendar.
  That is also what we did at the end of President George W. Bush's 
third year. Although some judicial nominations were left pending, they 
were among the most controversial, extreme and ideological of President 
Bush's nominees. They had previously been debated extensively by the 
Senate. The standard then was that noncontroversial judicial nominees 
reported by the Judiciary Committee were confirmed by the Senate before 
the end of the year. That is the standard we should have followed in 
2010 and 2011, but Senate Republicans would not. They set a new and 
destructive standard to hold up qualified, consensus judicial nominees 
for no good reason.
  The Senate remains far behind where we should be in considering 
President Obama's judicial nominations. Three years into his first 
term, the Senate has confirmed a lower percentage of President Obama's 
judicial nominees than those of any President in the last 35 years. The 
Senate has confirmed just over 70 percent of President Obama's circuit 
and district nominees, with more than one in four not confirmed. In 
stark contrast, the Senate confirmed nearly 87 percent of President 
George W. Bush's nominees, nearly nine out of every 10 nominees he sent 
to the Senate over two terms. That was a higher percentage of judicial 
nominees confirmed than President Clinton achieved and is far higher 
percentage than for President Obama's nominees, most of whom are 
mainstream, consensus choices.
  We remain well behind the pace set by the Senate during President 
Bush's first term. By the end of his first term, the Senate had 
confirmed 205 district and circuit nominees. At the beginning of his 
fourth year in office, the Senate had lowered judicial vacancies to 46 
and already confirmed 168 of his judicial nominees. In contrast, the 
Senate

[[Page S21]]

has confirmed only 124 of President Obama's district and circuit 
nominees, leaving judicial vacancies at more than 80. The vacancy rate 
remains nearly double what it had been reduced to by this point in the 
Bush administration.
  Senate Republicans have returned to the strategy of across-the-board 
delays and obstruction of the President's judicial nominations, again 
leading to persistently high judicial vacancies. In 2009, the Senate 
was allowed to confirm only 12 Federal circuit and district court 
judges, the lowest total in 50 years. In 2010, the Senate was allowed 
to confirm 48 Federal circuit and district judges. That has led to the 
lowest confirmation total for the first two years of a new presidency 
in 35 years. As a result, judicial vacancies rose again over 110 and 
stayed at about 90 for the longest period of historically high 
vacancies in 35 years.
  Last year, we worked hard to overcome filibusters and delays and 
improve the number of confirmations. They included 17 confirmations 
that should have taken place in 2010 but were delayed. That resulted in 
only 47 judicial nomination confirmations from hearings conducted last 
year. Even including the 17 confirmations in last year's total that 
should not have been delayed from the previous year, the total lags far 
behind the total in President Bush's second year in office when the 
Senate Democratic majority confirmed 72 Federal circuit and district 
court judges. It was lower than the total in President Bush's third 
year in office, when Senate Democrats worked with the Senate Republican 
majority to confirm 68 Federal judges. And it was lower than the 66 
Federal judges the Senate Democratic majority confirmed in the last 
year of President George H.W. Bush's presidency during a presidential 
election year.
  The Senate starts this year with 18 qualified, consensus judicial 
nominations that should have been confirmed last year. Senate action on 
those 18 qualified, consensus judicial nominations would have gone a 
long way to helping resolve the longstanding judicial vacancies that 
are delaying justice for so many Americans in our Federal courts across 
the country. I urge Senate Republicans to abandon these destructive 
practices and join with us to confirm the qualified, consensus judicial 
nominations they have stalled. This cycle of unnecessary delays must 
end.
  Mr. President, I ask to proceed in morning business to speak about an 
important effort to help the American economic recovery and preserve 
American jobs.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                         PROTECT IP ACT, S. 968

  Mr. President, rogue websites, primarily based overseas, are stealing 
American property, harming American consumers, hurting the American 
economic recovery and costing us American jobs. Stealing and 
counterfeiting are wrong. They are harmful. The Institute for Policy 
Innovation estimates that copyright infringement alone costs more than 
$50 billion a year, and the sale of counterfeits online is estimated to 
be several times more costly. The AFL-CIO estimates that hundreds of 
thousands of jobs are lost to these forms of theft.
  And this is not just an economic and jobs problem for Americans. This 
is a consumer safety issue. According to a study released earlier this 
year, a couple dozen websites selling counterfeit prescription drugs 
had more than 141,000 visits per day, on average. Counterfeit 
medication, brake linings and other products threaten Americans' 
safety. These are serious concerns. These are the concerns I have kept 
in mind over the last several years as I have worked with Senators on 
both sides of the aisle to help resolve these serious problems.
  I admire and respect the marvelous advances of technology and, in 
particular, those represented by the Internet. I have promoted its 
democratizing impact around the world. I have fought to keep the 
Internet free and open, as it has become the incredible force that it 
is today. I have promoted its potential for access in rural areas, for 
distance learning, for increasing points of view and allowing all 
voices to be heard and as a means for small start ups and firms in 
Vermont and elsewhere to market quality products. Nor is this a 
newfound interest or passing fancy. I started and chaired a Judiciary 
Committee panel two decades ago on technology and the law and was a 
founder of the bipartisan, bicameral congressional Internet Caucus. 
Yesterday, The Washington Post got it right in its editorial entitled 
``Freedom on the Internet'':

       A free and viable Internet is essential to nurturing and 
     sustaining the kinds of revolutionary innovations that have 
     touched every aspect of modern life. But freedom and 
     lawlessness are not synonymous. The Constitution does not 
     protect the right to steal, and that is true whether it is in 
     a bricks-and-mortar store or online.''
  Last week, a Wall Street Journal editorial was like-minded, noting:

       The Internet has been a tremendous engine for commercial 
     and democratic exchange, but that makes it all the more 
     important to police the abusers who hijack its architecture.
       . . . Without rights that protect the creativity and 
     innovation that bring fresh ideas and products to market, 
     there will be far fewer ideas and products to steal.''

  Two years ago, I announced a bipartisan effort to target the worst-
of-the-worst of the foreign rogue websites that profited from piracy, 
stealing and counterfeiting, while also ensuring that we protect the 
Internet. I have been working since that time to do just that. In 2010, 
the bill that Senator Hatch and I introduced was reported unanimously 
by the Senate Judiciary Committee.

  I took seriously the views of all concerned. I reached out to the 
administration. We incorporated revised definitions suggested by 
Senator Wyden. We held additional hearings to which we invited Google 
and Yahoo!. And we redrafted the legislative measure and reintroduced 
it as The Preventing Real Online Threats to Economic Creativity and 
Theft of Intellectual Property Act, more commonly known as the PROTECT 
IP Act. Senator Grassley joined as an original cosponsor. I continued 
to work with all who showed interest. The measure was reported 
unanimously from the Judiciary Committee in May 2011, and 40 Senators 
from both sides of the aisle have cosponsored it. It is rare that 
editorial boards with divergent viewpoints such as The Wall Street 
Journal and The Washington Post agree on a problem and legislative 
approach. As I have already noted, this problem of foreign rogue 
websites engaging in piracy, theft and counterfeiting is one such time. 
I ask that copies of the recent editorials from The Washington Post and 
The Wall Street Journal be included in the Record at the conclusion of 
my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEAHY. Few issues unite the United States Chamber of Commerce and 
the AFL-CIO; the National Association of Manufacturers and the 
Teamsters; the cable industry and the broadcast industry. By targeting 
the worst-of-the-worst and protecting the integrity of the Internet, we 
have been able to create a broad ranging coalition of support of the 
PROTECT IP Act. Along with law enforcement groups, more than 400 
companies, associations, and unions have come together to support this 
targeted, bipartisan legislation to combat foreign rogue websites.
  Protecting American intellectual property and the American jobs that 
depend on it is important. Last year we were able to reform our patent 
laws to unleash American innovators and help boost our economic 
recovery. Now we need to confront the threat to our economic recovery 
posed by Internet piracy.
  As I have demonstrated throughout my service in the Senate and again 
during the last two years, I have remained flexible in terms of the 
legislative language in order to best meet our goals of stemming the 
criminality when protecting legitimate activities and guarding against 
doing anything to undercut innovation or fetter free discussion. I have 
urged those with concerns to come forward and to work with us. We 
adjusted the very definitions in the bill to narrow them as Senator 
Wyden had suggested. I announced two weeks ago that I took seriously 
the concerns about the domain name system provisions and would fix it 
as part of a manager's amendment when the bill was considered by the 
Senate.

[[Page S22]]

  I regret that the Senate will not be proceeding this week to debate 
the legislation, and any proposed amendments. I thank the Majority 
Leader for seeking to schedule that debate on this serious economic 
threat. I understand that when the Republican leader recently objected 
and Republican Senators who had cosponsored and long supported this 
effort jumped ship, he was faced with a difficult decision. My hope is 
that after a brief delay, we will, together, confront this problem. 
Everyone says they want to stop the Internet piracy. Everyone says that 
they recognize that stealing and counterfeiting are criminal and 
serious matters. This is the opportunity for those who want changes in 
the bill to come forward, join with us and work with us. This is the 
time to suggest improvements that will better achieve our goals. The 
PROTECT IP Act is a measure that has been years in the making, and 
which has been twice reported unanimously by the Senate Judiciary 
Committee to better enforce American intellectual property rights and 
protect American consumers. It has been awaiting Senate action since 
last May. Today the rogue foreign websites based in Russia that are 
stealing Americans' property are delighted to continue their operations 
and counterfeiting sweatshops in China are the beneficiaries of Senate 
delay. People need to understand that the PROTECT IP Act would only 
affect websites that have been judged by a federal court to have no 
significant use other than engaging in theft whether through stolen 
content or the selling of counterfeits. It is narrowly targeted at the 
worst-of-the-worst. Websites that have some infringing content on their 
sites but have uses other than profiting from infringement are not 
covered by the legislation. Websites like Wikipedia and YouTube that 
have obvious and significant uses are among those that would not be 
subject to the provisions of the bill. That Wikipedia and some other 
websites decided to ``go dark'' on January 18 was their choice, self 
imposed and was not caused by the legislation and could not be.
  It was disappointing that sites linked to descriptions of this 
legislation that were misleading and one-sided. The Internet should be 
a place for discussion, for all to be heard and for different points of 
view to be expressed. That is how truth emerges and democracy is 
served. Last week, however, many were subjected to false and incendiary 
charges and sloganeering designed to inflame emotions. I am concerned 
that while critics of this legislation engage in hyperbole about what 
the bill plainly does not do, organized crime elements in Russia, in 
China, and elsewhere who do nothing but peddle in counterfeit products 
and stolen American content are laughing at their good fortune that 
congressional action is being delayed.
  Nothing in PROTECT IP can be used to cut off access to a blog. 
Nothing in PROTECT IP can be used to shut off access to sites like 
YouTube, Twitter, Facebook or eBay. Nothing in PROTECT IP requires 
anyone to monitor their networks. Nothing in PROTECT IP criminalizes 
links to other websites. Nothing in PROTECT IP imposes liability on 
anyone. Nothing in PROTECT IP can be required without a court order, 
first, and without providing the full due process of our Federal court 
system to the defendants before a final judgment is rendered. I also 
note that the guarantees of due process provided in the PROTECT IP Act 
are those likewise provided every defendant in every Federal court 
proceeding in the United States, no less. The PROTECT IP Act requires 
notice to the defendant. If the plaintiff seeks an injunction, the 
court must apply Federal Rule of Civil Procedure 65, which is the 
standard for all courts in determining whether to issue an injunction, 
including whether to issue the injunction as a temporary restraining 
order for a limited period of time. When stealing of copyrights are 
involved, such court orders can be made if, upon a factual showing, a 
court finds that serious harm would otherwise occur and it is in the 
public interest to do so while the case is more fully considered.
  The PROTECT IP Act is directed at the foreign websites that are the 
worst-of-the-worst thieves of American intellectual property and 
operate from outside the United States and the jurisdiction of our 
courts. These website operators prey on American consumers, steal from 
our creators and economy, but are currently beyond the jurisdiction of 
U.S. courts.
  The Obama administrative officials were right in a recent post saying 
``existing tools are not strong enough to root out the worst online 
pirates beyond our borders.'' They called on Congress ``to pass sound 
legislation this year that provides prosecutors and rights-holders new 
legal tools to combat online piracy originating beyond U.S. borders 
while staying true to the principles outlined. . . . We should never 
let criminals hide behind a hollow embrace of legitimate American 
values.'' That is what we are trying to do with the PROTECT IP Act.
  What the PROTECT IP Act does is provide tools to prevent websites 
operated overseas that do nothing but traffic in infringing material or 
counterfeits from continuing to profit from piracy with impunity. The 
Internet needs to be free, but not a lawless marketplace for stolen 
commerce and not a haven for criminal activities.
  In the flash of interest surrounding this bill last week, those who 
were forgotten were the millions of individual artists, the creators 
and the companies in Vermont and elsewhere who work hard every day only 
to find their works available online for free, without their consent. 
There are factory workers whose wages are cut or jobs are lost when 
low-quality counterfeit goods are sold in place of the real thing they 
worked so diligently to produce. There are men and women of our 
National Guard and military who put their lives on the line for all of 
us every day, and for whom a counterfeit part can literally be a matter 
of life and death. There are the seniors who are struggling to be able 
to afford medications and order from what appears to them to be a 
reputable site, only to find that a foreign website has sent them an 
untested counterfeit drug that will not control their blood pressure or 
diabetes or heart problem.
  At the end of the day, this debate boils down to a simple question. 
Should Americans and American companies profit from what they produce 
and be able to provide American jobs, or do we want to continue to let 
thieves operating overseas steal that property and sell it to 
unsuspecting American consumers? I hope that in the coming days the 
Senate will focus on stopping that theft that is undercutting our 
economic recovery. I remain committed to confronting this problem. And 
I appreciate the efforts of Senator Kyl, Senator Alexander and others 
who want to continue to work in a thoughtful manner with all interested 
parties to find an effective solution to eliminate online theft by 
foreign rogue websites. I thank those Senators who called me in Vermont 
and back here this past week when I got back to Washington to offer 
their help--Senators on both sides of the aisle. It means a lot.
  I know the senior Senator from Nebraska is waiting to speak about the 
judicial nominee from his State. I will say what I said to him 
privately because I know this is his last year in the Senate. I have 
always enjoyed working with him. He has worked hard. He has represented 
the people of his State well. He has been very honest in his dealings 
with me. He has been diligent with respect to judicial nominations for 
vacancies in Nebraska. He has tirelessly pressed to fill vacancies 
there to ensure cases before the Federal court are not needlessly 
delayed. He did that to protect everybody in Nebraska, Republicans and 
Democrats, to make sure the courts are open for them.
  I am sorry the confirmation of Justice Gerrard, one he so strongly 
supported, has been so needlessly delayed for more than 3 months, but I 
say to the people of Nebraska they are very fortunate to have been 
represented by the senior Senator from Nebraska, my friend Ben Nelson, 
who has been there fighting for them. He fought for the people of 
Nebraska every day from the day he took the oath of office. This may be 
his last year here, but based on past performance I think it is safe to 
say he will fight for Nebraska right up until the moment that 
adjournment bell sounds.
  Mr. President, I ask unanimous consent a January 19 article from the 
Wall Street Journal and a January 22 article from the Washington Post 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S23]]

             [From the Wall Street Journal, Jan. 19, 2012]

                       Brake the Internet Pirates

       Wikipedia and many other websites are shutting down today 
     to oppose a proposal in Congress on foreign Internet piracy, 
     and the White House is seconding the protest. The covert 
     lobbying war between Silicon Valley and most other companies 
     in the business of intellectual property is now in the open, 
     and this fight could define--or reinvent--copyright in the 
     digital era.
       Everyone agrees, or at least claims to agree, that the 
     illegal sale of copyrighted and trademarked products has 
     become a world-wide, multibillion-dollar industry and a 
     legitimate and growing economic problem. This isn't college 
     kids swapping MP3s, as in the 1990s. Rather, rogue websites 
     set up shop overseas and sell U.S. consumers bootleg movies, 
     TV shows, software, video games, books and music, as well as 
     pharmaceuticals, cosmetics, fashion, jewelry and more.
       Often consumers think they're buying copies or streams from 
     legitimate retail enterprises, sometimes not. Either way, the 
     technical term for this is theft.
       The tech industry says it wants to stop such crimes, but it 
     also calls any tangible effort to do so censorship that would 
     ``break the Internet.'' Wikipedia has never blacked itself 
     out before on any other political issue, nor have websites 
     like Mozilla or the social news aggregator Reddit. How's that 
     for irony: Companies supposedly devoted to the free flow of 
     information are gagging themselves, and the only practical 
     effect will be to enable fraudsters. They've taken no 
     comparable action against, say, Chinese repression.
       Meanwhile, the White House let it be known over the weekend 
     in a blog post--how fitting--that it won't support 
     legislation that ``reduces freedom of expression'' or damages 
     ``the dynamic, innovative global Internet,'' as if this 
     describes the reality of Internet theft. President Obama has 
     finally found a regulation he doesn't like, which must mean 
     that the campaign contributions of Google and the Stanford 
     alumni club are paying dividends.
       The House bill known as the Stop Online Piracy Act, or 
     SOPA, and its Senate counterpart are far more modest than 
     this cyber tantrum suggests. By our reading they would create 
     new tools to target the worst-of-the-worst black markets. The 
     notion that a SOPA dragnet will catch a stray Facebook post 
     or Twitter link is false.
       Under the Digital Millenium Copyright Act of 1998, U.S. 
     prosecutors and rights-holders can and do obtain warrants to 
     shut down rogue websites and confiscate their domain names 
     under asset-seizure laws. Such powers stop at the water's 
     edge, however. SOPA is meant to target the international 
     pirates that are currently beyond the reach of U.S. law.
       The bill would allow the Attorney General to sue infringers 
     and requires the Justice Department to prove in court that a 
     foreign site is dedicated to the wholesale violation of 
     copyright under the same standards that apply to domestic 
     sites. In rare circumstances private plaintiffs can also sue 
     for remedies, not for damages, and their legal tools are far 
     more limited than the AG's.
       If any such case succeeds after due process under federal 
     civil procedure, SOPA requires third parties to make it 
     harder to traffic in stolen online content. Search engines 
     would be required to screen out links, just as they remove 
     domestic piracy or child pornography sites from their 
     indexes. Credit card and other online financial service 
     companies couldn't complete transactions.
       (Obligatory housekeeping: We at the Journal are in the 
     intellectual property business, and our parent company, News 
     Corp., supports the bills as do most other media content 
     companies.)
       Moreover, SOPA is already in its 3.0 version to address the 
     major objections. Compromises have narrowed several vague and 
     overly broad provisions. The bill's drafters also removed a 
     feature requiring Internet service providers to filter the 
     domain name system for thieves--which would have meant 
     basically removing them from the Internet's phone book to 
     deny consumer access. But the anti-SOPA activists don't care 
     about these crucial details.
       The e-vangelists seem to believe that anybody is entitled 
     to access to any content at any time at no cost--open source. 
     Their real ideological objection is to the concept of 
     copyright itself, and they oppose any legal regime that 
     values original creative work. The offline analogue is Occupy 
     Wall Street.
       Information and content may want to be free, or not, but 
     that's for their owners to decide, not Movie2k.to or 
     LibraryPirate.me or MusicMP3.ru. The Founders recognized the 
     economic benefits of intellectual property, which is why the 
     Constitution tells Congress to ``promote the Progress of 
     Science and useful Arts by securing for limited Times to 
     Authors and Inventors the exclusive Right to their respective 
     Writings and Discoveries'' (Article I, Section 8).
       The Internet has been a tremendous engine for commercial 
     and democratic exchange, but that makes it all the more 
     important to police the abusers who hijack its architecture. 
     SOPA merely adapts the current avenues of legal recourse for 
     infringement and counterfeiting to new realities. Without 
     rights that protect the creativity and innovation that bring 
     fresh ideas and products to market, there will be far fewer 
     ideas and products to steal.
                                  ____


               [From the Washington Post, Jan. 22, 2012]

         Megaupload Shows Online Copyright Protection Is Needed

                          (By Editorial Board)

       By most measures, the Web site Megaupload was a 21st-
     century success story, with 50 million daily visitors and 
     $175 million in profits. According to the Obama 
     administration, it was also an ``international organized 
     crime enterprise.''
       In an indictment last week, the Justice Department accused 
     the company and several of its principals of conspiracy, 
     racketeering and vast violations of copyright law. The loss 
     to copyright owners of movies, television programs, 
     entertainment software and other content: some $500 million. 
     The government calls this the largest criminal copyright case 
     in the nation's history.
       Megaupload maintained servers in the United States and 
     relied on U.S.-registered domain names, allowing U.S. 
     prosecutors to tap domestic laws to shutter the business. But 
     what if the Web site had been run using only foreign-based 
     servers and foreign-registered domain names? U.S. law 
     enforcers would have had a difficult if not impossible time 
     stopping the alleged wrongdoing.
       That reality, of course, is what gave rise to the Protect 
     IP Act (PIPA) and its House counterpart, the Stop Online 
     Piracy Act (SOPA), which proposed to give the Justice 
     Department and copyright owners the legal reach and muscle to 
     thwart overseas theft of American intellectual property. SOPA 
     was fatally flawed, with vague provisions that could have 
     made legitimate Web sites vulnerable to sanctions. PIPA was 
     more measured, allowing action against a site only if a 
     federal judge concluded it was ``dedicated to'' profiting 
     from the unauthorized peddling of others' work.
       Still, Internet giants such as Google railed against the 
     bills, arguing they sanctioned government censorship and 
     threatened the viability and security of the Internet. The 
     protests culminated last week in a remarkable, largely 
     unprecedented protest during which sites such as Wikipedia 
     temporarily went dark. Millions of individuals--many of them 
     armed with distorted descriptions of the bills--phoned, e-
     mailed and used social networks to demand that they be 
     quashed.
       Whether it was democracy in action or spinelessness by 
     cowed lawmakers, the campaign worked. House and Senate 
     leaders said they would pull back the bills for further 
     consideration. While a temporary breather may be helpful, 
     lawmakers should not abandon the quest to curb the 
     multibillion-dollar problem that is overseas online piracy.
       Some opponents will fight any regulation of the Internet. 
     This should not be acceptable. A free and viable Internet is 
     essential to nurturing and sustaining the kinds of 
     revolutionary innovations that have touched every aspect of 
     modern life. But freedom and lawlessness are not synonymous. 
     The Constitution does not protect the right to steal, and 
     that is true whether it is in a bricks-and-mortar store or 
     online.

  The PRESIDING OFFICER (Mr. Coons). The Senator from Nebraska.
  Mr. NELSON of Nebraska. I thank my colleague, the esteemed chair, for 
such kind remarks. I wish they were universally believed by all. This 
is the kind of introduction my father would have enjoyed but my mother 
would have believed. I appreciate so very much his kind comments.
  The Nebraska Supreme Court temporarily stayed the execution of one 
prisoner, a Carey Dean Moore, because a full evidentiary record was 
before it in another immediately pending case, State v. Mata, which was 
referred to by my friend and colleague from Alabama, Senator Sessions. 
That case challenged the constitutionality of electrocution as a method 
of execution. It did not challenge, it did not deal with, and was not 
associated with whether or not to have a death penalty. It was not 
challenging the death penalty but the methodology of a death penalty.
  The court had to determine whether a prisoner should be executed 
depending on whether that question was soon answered. The temporary 
stay was issued and the other case decided as a matter of State 
constitutional law. The court, by a vote of 6 to 1, determined that 
execution as a method--and I emphasize ``a method'' of electrocution--
violated prohibitions against cruel and unusual punishment, which is 
the purview of the court to make that determination where there is a 
question of dealing with the Constitution.
  The court was clear that the death penalty remained valid in 
Nebraska. No writ of certiorari had been taken. The Nebraska 
Legislature changed the method of execution to lethal injection, and 
the execution of Moore, Mata, and others will be carried out 
accordingly.
  As a matter of fact, the court has set a date of execution for a 
prisoner to be executed on March 6. This same court set dates of 
execution while I was Governor on three occasions, and they were 
carried out. Judge Gerrard was a

[[Page S24]]

member of the court at that time and had no objections to the 
executions. It is the methodology that the court dealt with.
  It is important to recognize that in the Moore case the issue was not 
whether the death penalty itself was constitutional; it was whether a 
particular means of execution was constitutional. Those are completely 
different questions.
  Senator Sessions claims that Judge Gerrard stayed the defendant's 
execution in the light of ``a changing legal landscape.'' However, it 
is not uncommon for a court, when presented with different cases 
involving related issues, to withhold ruling on any one case until all 
of the related issues are resolved. Therefore, the Moore order reflects 
a pragmatic decision to wait until both cases could be resolved.
  I agree with Senator Sessions that this is about the duty of a judge 
to be faithful to the law and to serve under the law. However, I 
strongly disagree with Senator Sessions' characterization of Judge 
Gerrard as an activist judge. Judge Gerrard has written 450 opinions in 
his 15-plus years on the Nebraska Supreme Court. The U.S. Supreme Court 
concluded in a previous case that the U.S. Supreme Court and the 
Nebraska Supreme Court have held in a related matter that the death 
penalty is not cruel and unusual. Judge Gerrard would have no 
difficulty following that binding precedent. As a matter of fact, he 
has. He has no personal beliefs that would prevent him from enforcing 
the death penalty. In fact, he has authored several opinions and voted 
to affirm the convictions and sentences of defendants who have actually 
been sentenced to death.
  Judge Gerrard believes the death penalty is an acceptable form of 
punishment. He understands the significant difference between a judge 
on a court of last resort interpreting State court constitutional law 
and a Federal district judge who follows U.S. Supreme Court precedent.
  I reiterate for the record, Judge Gerrard is held in the highest 
regard by both the bench and the bar in Nebraska. He has earned an 
``AV'' Martindale-Hubbell rating from his colleagues, and the American 
Bar Association has deemed him ``unanimously well-qualified'' to serve 
on the U.S. district court.
  I thank my colleague, Senator Johanns from Nebraska, for his support 
and his comments which I think were also very supportive, clearly 
supportive, of Judge Gerrard and the decisions. Clearly, he is not an 
activist judge.
  I yield the floor.


                          recess appointments

  Mr. GRASSLEY. Mr. President, just over a month ago, on December 17, 
the Senate entered into a unanimous consent agreement to consider the 
nomination of John M. Gerrard, of Nebraska, to be United States 
District Judge for the District of Nebraska. We are proceeding with 
this nomination, which I will support, despite the President's actions 
on recess appointments. During the last session we acted responsibly in 
considering the President's nominees. Even the Majority Leader 
acknowledged this. He stated, ``We have done a good job on nominations 
the last couple of months. Actually, in the last 3 months, we have 
accomplished quite a bit.''
  I will have more to say about the recess appointments. But with 
regard to this nomination I hope my colleagues understand that even 
though we are proceeding under regular order today, it is only because 
this unanimous consent agreement was locked in before the President 
demonstrated his monarchy mentality by making those appointments. I am 
not going to hold this nominee accountable for the outrageous actions 
of the President.
  However, as this is a matter of concern to my Republican colleagues, 
as it should be for all Senators, we must consider how we will respond 
to the President and restore a Constitutional balance. Since the 
adoption of the unanimous consent agreement governing the nomination 
before us, President Obama has upset the nominations process. Article 
II, Section 2 of the Constitution provides for only two ways in which 
Presidents may appoint certain officers.
  First, it provides that the President nominates, and by and with the 
advice and consent of the Senate, appoints various officers. Second, it 
permits the President to make temporary appointments when a vacancy in 
one of those offices happens when the Senate is in recess. On January 
4, the President made four appointments. They were purportedly based on 
the Recess Appointments Clause. He took this action even though the 
Senate was not in recess. This action is of the utmost seriousness to 
all Americans.
  These appointments were blatantly unconstitutional. They were not 
made with the advice and consent of the Senate. And they were not made 
``during the recess of the Senate.''
  Between the end of December and today, the Senate has been holding 
sessions every 3 days. It did so precisely to prevent the President 
from making recess appointments. It followed the same procedure as it 
had during the term of President Bush. Honoring the Constitution and 
the desire of the Senate President Bush declined to make recess 
appointments during these periods. But President Obama chose to make 
recess appointments despite the existence of these Senate sessions.
  In addition to being unconstitutional, these so-called recess 
appointments break a longstanding tradition. They represent an 
attempted presidential power grab against this body.
  A President has not attempted to make a recess appointment when 
Congress has not been in recess for more than 3 days in many decades. 
In fact, for decades, the Senate has been in recess at least 10 days 
before the President has invoked this power.
  Other parts of the Constitution beyond Article II, Section 2 show 
that these purported appointments are invalid. Article I, Section 5 
provides, ``Each House may determine the Rules of its Proceedings. . . 
.''
  In December and January, we provided that we would be in session 
every 3 days. The Senate was open and provided the opportunity to 
conduct business. That business included passing legislation and 
confirming nominations. In fact, the Senate did pass legislation, which 
the President signed. According to the Constitution--each House--not 
the President determines whether that House is in session. The Senate 
said we were in session. The President recognized that fact by signing 
legislation passed during the session.
  Article I, Section 5 also states, ``Neither House, shall, during the 
session of Congress, without the consent of the other, adjourn for more 
than 3 days. . . .'' The other body did not consent to our recess for 
more than 3 days. No concurrent resolution authorizing an adjournment 
was passed by both chambers. Under the Constitution, we could not 
recess for more than 3 days. We did not do so. The President's 
erroneous belief that he can determine whether the Senate was in 
session would place us in the position of acting unconstitutionally. If 
he is right, we recessed for more than 3 days without the consent of 
the other body. By claiming we were in recess, the President 
effectively dares us to say that we failed to comply with our oath to 
adhere to the Constitution. Yet, it is the President who made 
appointments without the advice and consent of the Senate while the 
Senate was in session. It is the President who has violated the 
Constitution.
  Of course, the President does not admit that he violated the 
Constitution. He has obtained a legal opinion from the Office of Legal 
Counsel at his own Department of Justice.
  That opinion reached the incredible conclusion that the President 
could make these appointments, notwithstanding our December and January 
sessions. That opinion is entirely unconvincing. For instance, to reach 
its conclusion that the Senate was not available as a practical matter 
to give advice and consent, it relies on such unpersuasive material as 
statements from individual Senators.
  The text of the Constitution is clear. It allows no room for the 
Department to interpret it in any so-called ``practical'' way that 
departs from its terms.
  The Justice Department also misapplied a Judiciary Committee report 
from 1905 on the subject of recess appointments. That report said that 
a Senate ``recess'' occurs when ``the Senate is not sitting in regular 
or extraordinary session as a branch of the Congress, or in 
extraordinary session for the discharge of executive functions;

[[Page S25]]

when its Members owe no duty of attendance; when its Chamber is empty; 
when, because of its absence, it can not receive communications from 
the President or participate as a body in making appointments.''
  Obviously, that report does not support the Department of Justice. 
During these days, the Senate was sitting in session. It could 
discharge executive functions. The Chamber was not empty. It could 
receive communications. It could participate as a body in making 
appointments. In fact, it sat in regular session and passed 
legislation.
  There is nothing in the 1905 report that justifies the President 
substituting his judgment for the Senate's regarding whether the Senate 
is in session. In any event, a Senate Judiciary Committee report from 
1905 does not govern the United States Senate; in 2012. The Senate; as 
constituted today; decides its rules and proceedings.
  The Department is on shaky legal ground when it claims that ``whether 
the House has consented to the Senate's adjournment of more than 3 days 
does not determine the Senate's practical availability during a period 
of pro forma sessions and thus does not determine the existence of a 
`Recess' under the Recess Appointments Clause.''
  There is no basis--none--for treating the same pro forma sessions 
differently for the purposes of the 2 clauses. The Department simply 
cannot have it both ways.
  The Justice Department's opinion contains other equally preposterous 
arguments. For instance, the opinion claims that the Administration's 
prior statements to the Supreme Court--through former Solicitor General 
Elena Kagan--that recess appointments can be made only if the Senate is 
in recess for more than 3 days are somehow distinguishable from its 
current opinion, or that the pocket veto cases do not apply.
  Or even if they did, the ``fundamental rights'' of individuals that 
the courts described in those cases include the right of the President 
to make recess appointments.
  There was a time when Presidents believed that they could take action 
only when the law gave them the power to do so. They obtained advice 
from the Justice Department on the question whether there was legal 
authority to justify the action they wished to take. But Theodore 
Roosevelt started to change the way Presidents viewed power. He 
believed that the President could do anything so long as the 
Constitution did not explicitly preclude him from acting. When he used 
that theory to create wildlife refuges against a rapidly expanding 
industrial base, there was no objection. But a dangerous precedent was 
set. When he claimed that he could make recess appointments during a 
``constructive recess'' of the Senate, the Senate rejected this view in 
that 1905 report.
  When a President thinks he can do anything the Constitution does not 
expressly prohibit, the danger arises that his advisers will feel 
pressure to say that the Constitution does not stand in the way. At 
that point, a President is no longer a constitutional figure with 
limited powers as the founders intended. Quite the contrary, the 
President looks more and more like a king that the Constitution was 
designed to replace.
  This OLC opinion reflects the changes that have occurred in the 
relationship between the Justice Department and the President on the 
question of presidential power. Formerly, the Justice Department gave 
legal advice to the President based on an objective reading of texts 
and judicial opinions. It was not an offshoot of the White House 
Counsel's office.
  This more objective view of the limits of Presidential power also 
provided a level of protection for individual liberty, the principle at 
the core of our constitutional separation of powers. The President 
might refuse to accept the advice. He might choose to fire the officer 
who gave him advice with which he disagreed. He could seek to appoint a 
new officer who would provide the advice he preferred. But he risked 
paying a political price for doing so. An official who thought that 
loyalty to the Constitution exceeded his loyalty to the President could 
refuse to comply, at great personal risk. That is what Elliot 
Richardson did during the Saturday Night Massacre of the Watergate era.
  During the Reagan Administration, OLC issued opinions that concluded 
that the President lacked the power to undertake certain acts to 
implement some of his preferred policies. The President did not 
undertake those unilateral actions.
  President Obama originally submitted a nominee for OLC that was 
wholly objectionable. The Senate had good reason to believe that she 
would not interpret the law without regard to ideology. We refused to 
confirm her.
  The President ultimately withdrew her nomination and nominated 
instead Virginia Seitz. We asked important questions at her 
confirmation hearing and thorough questions for the record.
  Ms. Seitz responded that OLC should adhere to its prior decisions in 
accordance with the doctrine of stare decisis. And she stated that if 
the administration contemplated taking action that she believed was 
unconstitutional, she would not stand idly by. Relying on those 
assurances, the Senate confirmed Ms. Seitz.
  Ms. Seitz is the author of this wholly erroneous opinion that takes 
an unprecedented view of the Recess Appointments Clause. And I suppose 
it is literally true that Ms. Seitz did not stand idly by when the 
administration took unconstitutional action: rather, she actively 
became a lackey for the administration. She wrote a poorly reasoned 
opinion that placed loyalty to the President over loyalty to the rule 
of law.
  That opinion, and her total deviation from the statements she made 
during her confirmation process, show extreme disrespect for the 
institution of the Senate and the constitutional separation of powers. 
I gave the President and Ms. Seitz the benefit of the doubt in voting 
to confirm her nomination. However, after reading this misguided and 
dangerous legal opinion, I am sorry the Senate confirmed her. It's 
likely to be the last confirmation she ever experiences.
  The Constitution outlines various powers that are divided among the 
different branches of our Federal government. Some of these powers are 
vested in only one branch, such as granting pardons or conducting 
impeachment proceedings. Other powers are shared, such as passing and 
signing or vetoing bills. The appointment power is a shared power 
between the President and the Congress. When one party turns a shared 
power into a unilateral power, the fabric of the Constitution is itself 
violated, and a response is called for.
  In Federalist 51, Madison wrote that the separation of powers is more 
than a philosophical construct. He wrote that the ``separate and 
distinct exercise of the different powers of government'' is 
``essential to the preservation of liberty.''
  The Framers of the Constitution wrote a document that originally 
contained no Bill of Rights. They believed that liberty would best be 
protected by preventing government from harming liberty in the first 
place. That was the reason for the separation of powers. They designed 
a working separation of powers through checks and balances to ensure a 
limited government that protected individual rights. Madison wrote, 
``Ambition must be made to counteract ambition. The interest of the man 
must be connected with the constitutional rights of the place.''
  That is what the Framers intended in a case such as this. When the 
President unconstitutionally usurped the power of the Senate, the 
Senate's ambition would check the President's. In this way, the 
Constitution is preserved. The power of the government is limited. And 
the liberties of the people are protected. But the Framers did not 
anticipate the modern Presidency. It took Justice Jackson's famous 
concurrence in the Youngstown case to address presidential powers in 
today's world. When the Judiciary Committee held its confirmation 
hearings on President Bush's Supreme Court nominations, my friends on 
the other side of the aisle posed many questions about the Jackson 
concurrence. That opinion sheds light on these so-called recess 
appointments.

  For instance, President Obama argued in a nationally televised rally 
that his actions were justified because ``[e]very day that Richard 
[Cordray] waited to be confirmed . . . was another day when millions of 
Americans were left unprotected. . . . And I refuse to take `no' for an 
answer.''

[[Page S26]]

  Justice Jackson anticipated these hyperbolic statements. He wrote: 
``The tendency is strong to emphasize the transient results upon 
policies. . . . and lose sight of enduring consequences upon the 
balanced power structure of our Republic.'' President Obama has 
definitely let transient policy goals overtake the Constitution. His 
argument is that the end justifies the means.
  His argument is that he can say no to the Constitution. Or, in 
essence, that the Constitution does not apply to him. But the 
Constitution demands that the means justify the ends, and that 
adherence to established procedure is the best protection for liberty. 
A monarch or a king could say no to the Constitution. But under our 
Constitution, the President may not. It is the Constitution, and not 
the President, that refuses to take no for an answer.
  Justice Jackson was also aware that the modern President's actions 
``overshadow any others [and] that, almost alone, he fills the public 
eye and ear.'' By virtue of his influence on public opinion, he wrote, 
the President ``exerts a leverage upon those who are supposed to check 
and balance his power which often cancels their effectiveness.''
  Some people believe that President Obama challenged the Senate for 
partisan purposes. But Justice Jackson understood the true partisan 
dynamic that is now playing out. He recognized that the President's 
powers are political as well as legal. Many presidential powers derive 
from his position as head of a political party. Jackson wrote: ``Party 
loyalties and interests sometimes more binding than law, extend his 
effective control into branches of government other than his own, and 
he often may win, as a political leader, what he cannot command under 
the Constitution.'' Finally, he concluded, ``[O]nly Congress itself can 
prevent power from slipping through its fingers.''

  Outside these walls, in the reception room, are portraits of great 
Senators of the past. The original portraits were selected by a 
committee that was headed by then Senator John F. Kennedy. They 
included such figures as Webster, Clay, Calhoun, LaFollette, and Taft. 
Yes, these Senators were partisans. But they were selected because of 
the role they played in maintaining the unique institution that is the 
Senate in our constitutional system. In particular, they protected the 
Senate and the country from the excessive claims of presidential power 
that were made by the chief executives of their time. Where are such 
Members today?
  Where is a member of the President's party today who is like a more 
recent Senate institutionalist--Robert C. Byrd? He defended the powers 
of the Senate when Presidents overreached--even Presidents of his own 
party. Where are the Members who recognized that our sessions every 3 
days rightly prevented President Bush from making recess appointments 
but who stand idly by as President Obama makes recess appointments 
without a recess?
  I remind my colleagues of my experiences as chairman or ranking 
member of the Finance Committee. I refused to process nominees to 
positions that passed through that committee to whom President Bush 
gave recess appointments. That is how I used the authority that I had 
to protect the rights of the Senate.
  I do not believe we should let the powers vested in the elected 
representatives of the American people slip through our fingers because 
we place partisan interests above the Constitution. I have shown how 
the Framers understood that supposedly expedient departures from the 
Constitution risked individual liberty. The constitutional text in this 
situation is clear. It must be upheld. We must take appropriate action 
to see that it is done.
  Nor should we wait for the courts.
  Although the NLRB appointments are already the subject of litigation, 
we should take action ourselves rather than rely on others. The stakes 
are too high. On the other hand, even the OLC opinion recognizes, as it 
must, the litigation risk to the President.
  For more than 200 years, Presidents have made very expansive claims 
of power under the Recess Appointments Clause. The President and the 
Senate have worked out differences to form a working government.
  Now, the Obama administration seeks to upend these precedents and 
that working relationship. It may well find, as did the Bush 
administration, that when overbroad claims of presidential power find 
their way to court, that not only does the President lose, but that 
expansive arguments of presidential power that had long been a part of 
the public discourse can no longer be made.
  Although I believe that this ironic result will ultimately occur here 
as well, the Senate must defend its constitutional role on its own, as 
intended by the framers of the Constitution that we all swore an oath 
to uphold.
  Mr. KYL. Mr. President, important questions have been raised about 
Judge Gerrard's willingness to follow established precedent in a 
reasoned way in death-penalty cases. Too often, the Senate has 
confirmed nominees who are hostile to the death penalty, and who then 
abuse their authority and twist the law to block the execution of 
legally sound capital sentences that have been entered by State courts. 
In his December 15, 2011, written response to questions posed to him by 
Senator Sessions, however, Judge Gerrard assured the Senate that he 
``would have no difficulty'' in following ``binding precedent'' in 
capital cases, and that he has ``no personal beliefs that would prevent 
[him] from enforcing the death penalty.'' I take Judge Gerrard at his 
word and thus will vote in favor of confirming his nomination to be a 
United States district judge.
  Mr. GRASSLEY. Mr. President, John M. Gerrard is nominated to be 
United States District Judge for the District of Nebraska. Judge 
Gerrard received his B.S. degree from Nebraska Wesleyan University in 
1975 and his J.D. from Pacific McGeorge School of Law in 1981.
  He began his legal career in private practice as an associate for the 
Nebraska law firm of Jewell, Otte, Gatz, Collins & Domina. A year 
later, Judge Gerrard joined in a new law firm where he conducted 
primarily a general litigation practice. In 1990, Judge Gerrard and two 
partners formed a new law office. For the next 5 years, before being 
appointed to the bench, he engaged in an active trial practice and 
administrative law/school law practice.
  In 1995, then-Governor Nelson appointed Judge Gerrard to the Nebraska 
Supreme Court. He has been retained (by election) in 1998, 2004, and 
2010. He has written roughly 480 opinions, 450 of which are published. 
The opinions cover a variety of legal issues, including homicide 
appeals, tort issues, and evidentiary disputes. While serving on the 
State's highest court, Judge Gerrard has served on a number of 
committees, including those focusing on issues pertaining to gender, 
race and the judicial system.
  The American Bar Association Standing Committee on the Federal 
Judiciary has rated Judge Gerrard with a unanimous ``Well Qualified'' 
rating.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. 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 yeas and nays were ordered.
  Mr. CONRAD. Mr. President, I yield back all time on our side.
  The PRESIDING OFFICER. All time has expired.
  The question is, Will the Senate advise and consent to the nomination 
of John M. Gerrard, of Nebraska, to be United States District Judge for 
the District of Nebraska?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Carolina (Mrs. 
Hagan), the Senator from New Jersey (Mr. Lautenberg), the Senator from 
Connecticut (Mr. Lieberman), the Senator from Maryland (Ms. Mikulski), 
and the Senator from Vermont (Mr. Sanders) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from

[[Page S27]]

Georgia (Mr. Chambliss), the Senator from South Carolina (Mr. Graham), 
the Senator from Utah (Mr. Hatch), the Senator from North Dakota (Mr. 
Hoeven), and the Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Manchin). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 74, nays 16, as follows:

                       [Rollcall Vote No. 1 Ex.]

                                YEAS--74

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boxer
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Crapo
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Grassley
     Harkin
     Heller
     Hutchison
     Inouye
     Johanns
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed (RI)
     Reid (NV)
     Roberts
     Rockefeller
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--16

     Boozman
     Coburn
     Cornyn
     DeMint
     Inhofe
     Isakson
     Johnson (WI)
     Lee
     Paul
     Risch
     Rubio
     Sessions
     Shelby
     Toomey
     Vitter
     Wicker

                             NOT VOTING--10

     Chambliss
     Graham
     Hagan
     Hatch
     Hoeven
     Kirk
     Lautenberg
     Lieberman
     Mikulski
     Sanders
  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.

                          ____________________