[Congressional Record Volume 158, Number 41 (Tuesday, March 13, 2012)]
[Senate]
[Pages S1590-S1591]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. ALEXANDER. Mr. President, I listened with great interest to the 
Senator from California. I thank her for her hard work on the 
Transportation bill and her work with Senator Inhofe. I listened 
especially to her comments that it would be good for us to work well 
together. It reminds me of our new Speaker of the House of 
Representatives in Tennessee, Beth Harwell. She does a pretty good job, 
and she often reminds her colleagues in the Tennessee Legislature that 
the first lesson they all learned in kindergarten is to work well 
together. That is a good lesson for us as well.
  I will take 4 or 5 minutes to simply talk about a development I think 
interferes with that. I came to the Senate floor with a group of 
Republicans and Democrats not long ago. We praised the majority leader, 
Senator Reid, and the Republican leader, Senator McConnell, for their 
working together to try to bring the appropriations bills to the floor. 
We said we are going to work together to help them do that because a 
majority leader cannot lead if we don't follow. We complimented them 
for the work on the Transportation bill, which hasn't been easy, but we 
are having a lot of votes today. We will offer our ideas and make 
votes.
  It was disappointing to me yesterday to see the majority leader 
announce that he had filed 17 cloture motions on district judges. I am 
here simply as one Senator to say respectfully to the majority leader 
that I hope he will reconsider and not do that. That is an 
unprecedented action. It has never happened like that before. In the 
history of the Senate, before 2011, a majority leader had filed cloture 
motions on district judges only three times.
  What has happened with district judges in the history of the Senate? 
They come up, get a vote, and there has never been a successful 
filibuster of a district judge because of a cloture vote. Let me 
emphasize that. There has never been a successful attempt to deny an 
up-or-down vote to a district judge by opposing cloture in the history 
of the Senate.
  That was proven again last year with a judge from Rhode Island, Judge 
McConnell, who many believed should not be a judge. There were enough 
Republicans did not take the opportunity to deny an up-or-down vote 
that he was confirmed even though many on this side didn't think he 
ought to be a judge. So we don't have a problem with filibustering 
district judges, and we have never had one with filibusters of district 
judges, at least given the present composition of the Senate.
  What is the issue? Senator Reid, the majority leader, said quite 
properly in his remarks yesterday that we have important work to do. We 
have a jobs bill coming from the House, a Postal Service that is in 
debt, and we have cybersecurity--we are having long briefings on that 
because of the threat.
  The leaders are working to bring the appropriations bills to the 
floor. We have only done that twice since 2000--all 12 of them. So this 
is a little disagreement we have between the majority leader and the 
Republican leader on the scheduling of votes on district judges. It is 
not a high constitutional matter. It is not even a high principle. It 
is not even a big disagreement. It is a little one. What has always 
happened is in the back and forth of scheduling, and they work it out. 
They have been working it out.

  In the first 2 years of the Obama administration, he nominated 78 
district judges, and 76 of those were confirmed--76 of 78 nominated in 
the first 2 years. He withdrew two. Last year, 61 more district judges 
were confirmed. What about 2012? The President has made a few 
nominations, but they haven't been considered yet by the Judiciary 
Committee. We do have 17 district court judgeships reported by the 
Judiciary Committee. They could be brought up by the majority leader. 
He has the right to do that. But of those 17, 6 of them have been 
reported by the Judiciary Committee for less than 30 days. They just 
got here. That leaves 11. How long have they been there? They came in 
October, November, and December of last year. Normally, they would have 
been included in the year-end clearing.
  Everybody knows what happened. The year-end clearing was thrown off 
track because the President threatened to make controversial recess 
appointments. Ultimately, the President decided to violate the Reid 
rule, which used pro-forma sessions every three days to break the 
Senate's recesses and block recess appointments. That was invented by 
the majority leader, Senator Reid. President Bush didn't like it, but 
he respected it. President Obama violated it, and it blew up the year-
end clearing of a number of nominees, including district judges.
  We have some district judges waiting to be confirmed, but we don't 
have many. We have a history of confirming 76 out of 78 nominated 
during the first 2 years of this President, and last year, confirming 
61. This year, of the 17 the majority leader filed the cloture motions 
on, 6 of them just got here. So that leaves 11. What do we do about 
that?
  The right thing to do is that the majority leader and the Republican 
leader should listen to what the Senator from California just said, 
listen to the Speaker of the House from Tennessee; that is, work well 
together rather than escalating this into a highly principled, big 
disagreement, and retire to one of their offices and sit down quietly, 
take a timeout and work this out. That is the way it has always been 
done.
  We are only talking about 11 judges. They have not been around that 
long--

[[Page S1591]]

less than 5 months. We all know why they were delayed a little bit. The 
President can take just as much responsibility as anybody. In testimony 
this week, the Attorney General acknowledged the issue of the recess 
appointments made on January 4 is a serious constitutional issue that 
needs to be decided by the courts. While that is being done, we have 
not tried to stop the action of the Senate, even though we regard it as 
a great offense to the checks and balances and the separation of 
powers.
  I respectfully suggest it is not a good time for the majority leader 
to take a small disagreement and escalate it into a big one, 
jeopardizing our ability to deal with big issues on jobs, 
cybersecurity, the Postal Service, and others. It would not reflect 
well on the 23 candidates running for the Democratic Senate seats this 
year or on the 11 Republicans running for Senate seats this year, and 
it would not reflect well on the President.
  The American people want to see us get results. Why should we give 
them one more reason to suspect that just because we can't agree on 
little issues, we are unable to agree on the big issues? I know the job 
of the majority leader is a tough job, and there is a good deal of back 
and forth every day. The majority leader has been on both sides of this 
issue. I suspect if he and the Republican leader were to sit down and 
look over the actual numbers and realize it is just 11 judges--we 
confirmed 2 last week--they could schedule the others and we could 
spend our time, starting tomorrow, not picking a fight with one another 
on the small disagreements, but on jobs, debt, the Postal Service, 
cybersecurity, and the big issues the American people would like us to 
deal with.
  I ask unanimous consent that some documentation about the progress of 
district judge nominations of the 111th and 112th Congress be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 The Progress of District Court Nominations Submitted to the Senate in 
                     the 111th and 112th Congresses


                             111th Congress

       Of the 78 District Court Nominees made by President Obama 
     during 2009 and 2010, 76 were eventually confirmed. That's 
     97%. 44 were confirmed in 2009 and 2010. 32 were resubmitted 
     to the Senate and confirmed in 2011. One was withdrawn by the 
     President and another was never resubmitted after being 
     returned to the President.


                             112th Congress

       99 nominations have been sent to the Senate by President 
     Obama to date in the 112th Congress (2011 and 2012). 61 have 
     been confirmed. 17 have been reported by the Judiciary 
     Committee and await floor action: David Nuffer (UT)--October 
     2011; Gina Groh (WV)--October 2011, Susie Morgan (LA)--
     November 2011, Kristine Baker (AR)--November 2011, Michael 
     Fitzgerald (CA)--November 2011, Ronnie Abrams (NY)--November 
     2011, Rudolph Contreras (DC)--November 2011, Miranda Du 
     (NV)--November 2011, Gregg Costa (TX)--December 2011, David 
     Guaderrama (TX)--December 201, Brian Wimes (MO)--December 
     2011, George Russell (MD)--February 2012, John Lee (IL)--
     February 2012, John Tharp (IL)--February 2012, Mary Lewis 
     (SC)--March 2012, Jeffrey Helmick (OH)--March 2012, Timothy 
     Hillman (MA)--March 2012. 2 have had Committee hearings and 
     are waiting for mark-ups. 3 have Committee hearings 
     scheduled. 10 have had no Committee action taken on their 
     nominations. 5 were returned to the President (under Rule 31) 
     and not resubmitted. 1 was withdrawn by the President.

  Mr. ALEXANDER. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Manchin). Without objection, it is so 
ordered.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that I be 
permitted to speak for up to 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________