[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.
____________________