[Congressional Record Volume 158, Number 36 (Tuesday, March 6, 2012)]
[Senate]
[Pages S1410-S1413]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF MARY ELIZABETH PHILLIPS TO BE UNITED STATES DISTRICT 
               JUDGE FOR THE WESTERN DISTRICT OF MISSOURI

                                 ______
                                 

 NOMINATION OF THOMAS OWEN RICE TO BE UNITED STATES DISTRICT JUDGE FOR 
                   THE EASTERN DISTRICT OF WASHINGTON

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations, 
which the clerk will report.
  The legislative clerk read the nominations of Mary Elizabeth 
Phillips, of Missouri, to be United States District Judge for the 
Western District of Missouri, and Thomas Owen Rice, of Washington, to 
be United States District

[[Page S1411]]

Judge for the Eastern District of Washington.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes for debate equally divided in the usual form.
  Mr. LEAHY. Mr. President, today the Senate will vote on the 
confirmation of two highly qualified, consensus nominees to the Federal 
bench: Mary Elizabeth Phillips to the U.S. District Court for the 
Western District of Missouri and Thomas Owen Rice to the U.S. District 
Court for the Eastern District of Washington. I thank the majority 
leader for pressing for these votes. These are nominees who were 
reported unanimously by the Senate Judiciary Committee last October, 
almost 5 months ago. They are both supported by their home State 
Senators, Democrats and Republicans, as are all of the judicial 
nominations of this President been who have been voted on by the Senate 
Judiciary Committee.
  Last month the majority leader had to file cloture petitions to end a 
4-month and 2-day filibuster of the confirmation of Judge Adalberto 
Jordan of Florida and to end the 5 month filibuster of the nomination 
of Jesse Furman, a former counselor to Attorney General Mukasey. The 
majority leader should not have had to file cloture petitions for the 
Senate to vote on these outstanding judicial nominees. Senate 
Republicans have filibustered nine of President Obama's judicial 
nominations despite the fact that he has reached out to both Republican 
and Democratic home State Senators and nominated qualified, 
ideologically moderate men and women to fill vacancies on our Federal 
courts.
  From the start of President Obama's term, Republican Senators have 
applied a double standard to this President's nominees. Last week, at a 
meeting of the Judiciary Committee, the Senator from Utah conceded that 
a ``new standard'' is being applied to President Obama's nominations. 
Senate Republicans have chosen to depart dramatically from the long 
tradition of deference on district court nominees to the home State 
Senators. Instead, an unprecedented number of President Obama's highly 
qualified district court nominees have been targeted for opposition and 
obstruction.
  The nominations the Senate considers today did not receive a single 
negative vote in the Judiciary Committee. Still, they have been stalled 
from confirmation for almost 5 months. It is good that Senate 
Republicans are finally allowing them to be considered. But we need to 
do much more. These are only 2 of the 14 remaining judicial nominations 
voted on by the Judiciary Committee last year that have been stalled by 
Senate Republicans for months. They all should have been considered and 
confirmed last December. President Obama's nominees are being treated 
differently than those of any President, Democratic or Republican, 
before him.
  Of those 14 judicial nominations still on the calendar from last 
year, none are the kind of divisive ideological nominees that should 
lead to the kinds of delay we have seen, let alone filibusters. 
President Obama should be praised by Republicans and Democrats for 
making consensus picks like his two nominations to fill vacancies on 
Federal Circuit courts, Stephanie Dawn Thacker of West Virginia, 
nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of 
California, nominated to fill one of the many judicial emergency 
vacancies on the Ninth Circuit. Ms. Thacker, an experienced litigator 
and prosecutor, has the strong support of her home State Senators, 
Senators Rockefeller and Manchin. Judge Nguyen, whose family fled to 
the United States in 1975 after the fall of South Vietnam, was 
confirmed unanimously to the district court in 2009 and would become 
the first Asian Pacific American woman to serve on a U.S. court of 
appeals. Both were reported unanimously by the Judiciary Committee last 
year, and both should be considered and confirmed by the Senate without 
additional damaging delays.
  With 1 out of nearly every 10 Federal judgeships vacant, the Senate 
should be acting on all of the judicial nominations approved by the 
Senate Judiciary Committee but that Republican objections are stalling 
from final action. Regrettably, delay and obstruction have stalled 
action on President Obama's judicial nominees since the beginning of 
his administration. After the first year of President Obama's first 
term, only 12 Federal circuit and district court judges were confirmed, 
the lowest total in 50 years. Senate Republicans allowed the Senate to 
confirm only 48 circuit and district court nominations the next year. 
That set a modern record for fewest judicial nominations confirmed 
during a President's first 2 years in office, the lowest in 35 years. 
As a result, judicial vacancies rose again over 110 and stayed around 
90 for the longest period of historically high vacancies in 35 years. 
This is in stark contrast to the 100 confirmations that I oversaw 
during the last 17 months of President Bush's first 2 years in office. 
That action led to a significant reduction in judicial vacancies.
  The truth is that the actions of Senate Republicans in stalling 
judicial nominations during President Obama's administration has led to 
what the Congressional Research Service documented as the longest 
period of historically high judicial vacancy rates in modern times. At 
the end of President Obama's second year and again at the end of last 
year, Senate Republicans opted to obstruct final confirmation votes on 
consensus judicial nominees for no good reason. 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. 
This year the Senate started with 19 judicial nominees pending on the 
Senate's calendar, all but 1 of them reported with significant 
bipartisan support, and 16 of them unanimously. To date, the Senate has 
only been allowed to work its way through five. This means that it 
could again be summer before the Senate is allowed to work its way 
through the judicial nominees who could, and should, have been 
confirmed the year before.
  The result of the Senate Republicans' obstruction is that the ability 
of our Federal courts to provide justice to Americans around the 
country is compromised. Millions of Americans, who are in overburdened 
districts and circuits, experience unnecessary delays in having their 
cases resolved. One hundred and thirty million Americans live in 
districts or circuits that have a judicial vacancy that could be filled 
today if Senate Republicans would just agree to vote on the nominations 
now pending on the Senate calendar. It is wrong to delay votes on these 
qualified, consensus judicial nominees.
  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 hard-working Americans who turn to 
their courts for justice to suffer unnecessary delays. When an injured 
plaintiff sues to help cover the cost of his or her medical expenses, 
that plaintiff should not have to wait 3 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.
  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. Unfortunately, the unprecedented obstruction 
of consensus judicial nominations by Senate Republicans who 
dramatically departed from the Senate's longstanding tradition of 
regularly considering consensus, noncontroversial nominations, marked a 
new chapter in what Chief Justice Roberts calls the ``persistent 
problem'' of 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 not have refused consent for the Senate to consider 
these consensus judicial nominees. The obstruction 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 were past these partisan tactics. I am disappointed that, after 
working for more than a decade to restore transparency and fairness to 
the process of considering

[[Page S1412]]

judicial nominations, we see the Senate Republicans again using 
obstruction to block progress at filling judicial vacancies.
  I wish that the Republican Senators who came to the Senate and the 
Senate Judiciary Committee in 2003 and decried what they characterized 
as a broken judicial confirmation process would acknowledge the 100 
confirmations in 17 months that we accomplished in 2001 and 2002 when 
President Bush was not consulting closely with home State Senators and, 
instead, insisted on sending the Senate ideological nominees. I have 
done my part to fix and to improve the process.
  By contrast, those Republicans who deemed filibusters 
unconstitutional and demanded up-or-down votes for every judicial 
nominee just a few years ago have now filibustered nine of President 
Obama's judicial nominees. What happened to their principle that a 
partisan minority should not be allowed to frustrate the will of the 
majority? They used to say that judicial nominees ``should not be 
required to serve an indefinite period of time in the stocks as targets 
for these special interest groups that attack them on a regular 
basis.'' Now these same Republican Senators obstruct votes on 
qualified, consensus nominees and allow reputations to be savaged 
without good cause.
  In 2005, the so-called Gang of 14 adopted a standard for filibusters 
that require ``exceptional circumstances.'' That standard was abandoned 
by Republicans who filibustered the nomination of Caitlin Halligan last 
year. The Washington Times' banner headline on December 7, 2011, noted 
what had long been apparent to me: ``GOP Ends Truce on Judicial 
Hopefuls.''
  It is wrong to dismiss the delays resulting from the Senate 
Republicans' obstruction as merely political tit for tat. These are new 
and damaging tactics that Senate Republicans have devised. The standard 
had been 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 did not. Senate Republicans set a new and 
destructive standard to hold up qualified, consensus judicial nominees 
for no good reason. A New York Times editorial from January 4, 2011, 
refers to Senate Republicans' ``refusal to give prompt consideration to 
noncontroversial nominees'' a ``terrible precedent.'' In a column last 
week, the president of the American Bar Association reiterated the call 
for a ``sustained, concerted and bipartisan effort'' to ``make 
meaningful progress toward filling vacancies on the federal bench.
  While consensus judicial nominations are stalled without a final vote 
by the Senate, millions of Americans across the country are being 
harmed by delays. The American people and our Federal courts cannot 
afford these unnecessary and damaging delays. As the ABA president 
noted last week:

       Backlogs mean justice delayed in cases involving protection 
     of individual rights, advancement of business interests, 
     compensation of injured victims and enforcement of federal 
     laws.
       Longstanding vacancies on courts with staggering caseloads 
     impede access to the courts. They create strains that, if not 
     eased, threaten to reduce the quality of our justice system. 
     They erode confidence in the courts' ability to uphold 
     constitutional rights and render fair and timely decisions.
       Delay at the federal courts puts people's lives on hold 
     while they wait for their cases to be resolved. Businesses 
     face uncertainty and costly holdups, preventing them from 
     investing and creating jobs. In sum, judicial vacancies kill 
     jobs.
       Justice delayed, as the famous maxim goes, is justice 
     denied. It's bad for business, it's unfair to individuals, 
     and it slows government enforcement actions, which ultimately 
     costs taxpayers money.

  The Senate remains far behind where we should be in considering 
President Obama's judicial nominations. The Senate had 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 9 out of every 10 nominees he sent to the Senate over two terms.
  The Senate remains well behind the pace set during President Bush's 
first term. By the end of President Bush's first term, the Senate had 
confirmed 205 district and circuit nominees. To date now in the fourth 
year of President Obama's first term, the Senate has confirmed only 129 
district and circuit nominees. By this date in 2004, the Senate had 
confirmed 170 district and circuit nominees. Today the total is more 
than 40 confirmations shy of the mark.
  Another way to think about this is that during President Bush's first 
term, the Senate confirmed the 130th nominee to our circuit and 
district courts in early June of his third year in office. Here we are, 
approaching the spring of President Obama's fourth year, nearly 9 
months later, and we are just reaching that milestone--9 months later. 
It has taken us far too long to reach this point. That is why the 
judicial vacancy rate remains nearly double what it was at this point 
in the Bush administration.
  Today we can finally confirm these two highly qualified, consensus 
nominees. Mary Elizabeth Phillips has been nominated to the U.S. 
District Court for the Western District of Missouri. Ms. Phillips is 
the first woman to serve as the U.S. attorney for the Western District 
of Missouri. Her nomination has the bipartisan support of both of her 
home State Senators, Democratic Senator Claire McCaskill and Republican 
Senator Roy Blunt. Ms. Phillips previously worked in private practice 
and as a local prosecutor Jackson County, MO. The ABA's Standing 
Committee on the Federal Judiciary unanimously rated her ``well 
qualified'' to serve on the U.S District Court, its highest possible 
rating.
  Thomas Owen Rice has been nominated to the U.S. District Court for 
the Eastern District of Washington. Currently the first assistant U.S. 
attorney in the Eastern District of Washington, Mr. Rice has spent his 
entire career in public service as a Federal prosecutor, including as 
chief of the Criminal Division in the Eastern District of Washington. 
Both of Washington's Senators Senators Murray and Cantwell--support Mr. 
Rice's nomination. Both of these nominations were reported by the 
Judiciary Committee by voice vote with no dissent nearly 5 months ago 
in October 2011.
  I thank the majority leader for his efforts to break through the 
Republicans' obstructionist tactics. Last Tuesday, several other 
Democratic Senators also came before the Senate to talk about the need 
for more action to fill the judicial vacancies that have remained 
historically high for far too long. I thank Senators Durbin, Schumer, 
Feinstein, Coons, Cardin, and Klobuchar for their involvement and their 
thoughtful statements.
  Last Thursday, we had a discussion before the Judiciary Committee, as 
well. I commended Senator Coburn for the statement he made at that time 
in which he called upon Senators to step back and return to the 
practice of moving forward on consensus nominees and that we need to 
build bridges instead of burn them.
  It is important that we confirm these two nominees so they can serve 
the people of Missouri and Washington, but we need to do much more. The 
Senate needs to proceed without delay to consider all 20 of the 
judicial nominees currently before it and to promptly consider those 
being sent to the Senate by the Judiciary Committee. That is how we can 
fulfill our responsibilities to the American people. That is how we can 
begin to restore the American's people's confidence in this 
institution.
  Mr. BINGAMAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. 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. DURBIN. Mr. President, I yield back any pending time on the first 
nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent that there be 2 
minutes of debate between the two votes equally divided and controlled 
between the two leaders or their designees.

[[Page S1413]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Mary Elizabeth Phillips, of Missouri, to be United States District 
Court Judge for the Western District of Missouri.
  The yeas and nays are ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) is 
necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Illinois (Mr. Kirk) and the Senator from Nevada (Mr. Heller).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 2, as follows:

                       [Rollcall Vote No. 26 Ex.]

                                YEAS--95

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

                                NAYS--2

     DeMint
     Lee
       

                             NOT VOTING--3

     Begich
     Heller
     Kirk
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate, equally divided, prior to a vote on the Rice 
nomination.
  The Senator from Washington is recognized.
  Ms. CANTWELL. Mr. President, I rise to support the nomination of 
Thomas Rice to the U.S. District Court for the Eastern District of 
Washington. He is one of our State's rising legal stars and has left 
his mark defending the community in which he was born. For nearly 25 
years he served in the U.S. Attorney's Office in eastern Washington, 
and in that time he successfully prosecuted a variety of criminal cases 
to protect our eastern Washington communities. He has wide support from 
his peers and numerous accolades.
  I hope my colleagues will support his nomination, making Gonzaga 
University, his alma mater, Spokane, and the State of Washington proud 
of his nomination.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is, Will the Senate advise and consent to the nomination of Thomas Owen 
Rice, of Washington, to be United States District Judge for the Eastern 
District of Washington?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) is 
necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Illinois (Mr. Kirk) and the Senator from Nevada (Mr. Heller).
  The PRESIDING OFFICER (Mr. Franken). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 93, nays 4, as follows:

                       [Rollcall Vote No. 27 Ex.]

                                YEAS--93

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

                                NAYS--4

     Chambliss
     DeMint
     Isakson
     Lee

                             NOT VOTING--3

     Begich
     Heller
     Kirk
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table. The President 
will immediately be notified of the Senate's action, and the Senate 
will resume legislative session.
  The Senator from New Jersey.

                          ____________________