[Congressional Record Volume 158, Number 54 (Monday, April 16, 2012)]
[Senate]
[Pages S2305-S2313]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Tax Fairness

  Mr. TOOMEY. Mr. President, I rise this afternoon to speak against the 
so-called Buffett rule. This is a gimmick. It is a political gimmick. 
This is not a serious effort to deal with a ridiculously broken Tax 
Code. This is not a serious effort to deal with a completely broken 
budget. And, frankly, it is very disappointing to me that we are 
wasting time on this instead of dealing with both of those things.
  We have a Tax Code that is ridiculous, impossible to understand, 
counterproductive to economic growth, and that badly needs a complete 
overhaul that would simplify the Code, get rid of much unfairness, 
lower marginal rates, broaden the base, and encourage strong economic 
growth. Instead, we have this little gimmick because we don't have the 
political leadership to deal with the underlying real problem of a 
badly flawed Tax Code.
  Likewise on budget policy, this does nothing meaningful for our 
massive budget deficits that we have been running. In fact, this body 
chooses again for the third consecutive year not to even have a budget. 
It is unbelievable. Instead, we are going to waste time arguing about 
this political stunt.
  The President proposed a budget, at least. Unfortunately, it was not 
a serious budget, not a serious attempt to deal with the massive 
deficits we are running. It is the fourth consecutive year of trillion 
dollar deficits. Instead of dealing with that, we have this gimmick.
  Let's be clear. This is not a serious attempt to deal with tax reform 
or the budget. This so-called Buffett rule, this tax increase, would 
raise less than $5 billion a year. That amounts to about one-half of 1 
percent of the $1 trillion deficit the President has proposed that we 
run. In fact, it would cover about 2 days' worth of the deficits we are 
running for 2013.
  Here is a chart that illustrates the deficit we will have under the 
President's policies without the Buffett tax. Here is the deficit we 
will have if we pass the Buffett tax. If you can't tell the difference, 
it is because there is no meaningful difference.
  Folks, we ought to be dealing with the real tax reform that we need 
to encourage economic growth and help reduce this deficit. Instead, we 
are wasting time with this.
  Since we are not doing what we ought to do, why are we having this 
argument? Unfortunately, it looks as though it is an effort on two 
fronts. One is to simply engage in class warfare, generate envy and 
resentment, and try to use that for political gain. And, secondly, it 
is an effort to distract from the underlying mismanagement of economic 
policy and fiscal policy we have seen from this administration.
  I know what the claim is from the other side. We hear this is all 
about making sure the rich pay their fair share. I have to say I have a 
little trouble taking lectures on fairness from folks who think 
taxpayers ought to be made to put $500 million into a solar energy 
company that does not have a competitive product, which drives it into 
bankruptcy at the cost to the taxpayers, from the same folks who want 
to force taxpayers to continue subsidizing plug-in cars people don't 
want to buy. That kind of crony capitalism and distorting of our 
economy at the expense of taxpayers doesn't strike me as fairness, so I 
have a hard time taking a lecture on fairness from people who advocate 
those things.
  But let's look at this Tax Code. If we want to talk about fairness, 
that is fine. How about the fact that, according to the Joint Committee 
on Taxation, almost half of all Americans today pay no income tax at 
all or actually receive money through the income tax code? The other 
half pays all of the taxes. We are hearing from our friends

[[Page S2309]]

that that is not enough; they need to pay still more.
  My second chart will illustrate the point that according to the CBO, 
if we look at all Federal taxes, the middle quintile, the middle 20 
percent of wage earners in America, pays about 14 percent as an average 
tax when you combine all the kinds of Federal taxes that are paid. The 
top 1 percent pays 30 percent. So it is more than twice as high--29.5, 
actually.
  If we look at just the income tax, the disparity is even bigger. If 
we look at the income tax alone, the middle quintile, the middle class, 
the middle 20 percent, when it comes to income tax alone on average 
pays about 3.3 percent as an effective average income tax rate. The top 
1 percent pays 19 percent; that is, on average, almost 6 times as high.
  The fact is we have a very progressive tax system, not just by the 
historical measures of our own previous tax systems, but look 
everywhere else in the world. In fact, the United States, according to 
the OECD, has the most progressive tax system in the industrialized 
world.
  This is a chart that measures progressivity. Greater progressivity is 
in this direction; less is in this direction. As you can see, this 
ranking shows all the countries around the world that have less 
progressivity than the United States, which means that higher income 
Americans pay a greater share of income taxes and taxes generally than 
in any other country in the world. But again, we are told this is not 
enough.
  Clearly there is something else going on here, and here is what 
concerns me the most. The real consequence of this so-called Buffett 
rule, this tax increase, are that it is meant to be a tax on investment 
returns. It is a tax on capital gains and dividends. It is a tax that 
would upend decades of established law with respect to the 
differentiation we have put in place with respect to dividend income 
versus wage income. And it disregards the very sound reasons why we 
have created that distinction, one of which is that investment returns 
are taxed multiple times.
  We don't hear so much about that during this debate from my friends 
who are advocates for this new tax increase. But the fact is, first of 
all, it is only aftertax income that can be invested in the first 
place. So someone had to pay taxes on their earnings, and then after 
they have spent what they need to for their cost of living and if they 
have managed to save something which they then invest, they have 
already paid tax on that. Now the investment they have made--and let's 
say this is an investment in a corporate stock. Let's keep in mind that 
that corporation has to pay tax before they have an opportunity to 
provide a return on the investment that is made. And as it happens, in 
the United States, our corporations pay the highest corporate tax in 
the entire industrialized world, 35 percent.

  We have got a terrible corporate Tax Code that needs to be reformed 
in many ways. One of them is to lower this top marginal rate, but right 
now it is 35 percent. And what the proponents of this rule are saying 
is that after a corporation pays that 35 percent tax on whatever income 
they can earn, and when they then choose to dividend some of that 
remaining aftertax income to the people who own that company, they want 
those owners to pay yet another tax that is even higher than we pay 
now.
  We have a chart here that illustrates what the net effect of this is. 
Given that we have a 35-percent top corporate tax rate, and if we were 
to adopt this proposal to impose this 30-percent minimum tax, for an 
individual who has dividend income, first the company in which they 
invest pays a tax. Not all companies pay the 35-percent rate, but that 
is the top rate and it is in effect on many companies. Well, if the 
company has to pay 35 percent of a given $100 of income, they are left 
with $65 in corporate aftertax income. If that company then decides 
that the people who own it ought to get a dividend reflecting their 
ownership on that $65 that is available to be paid out as a dividend to 
investors, the proponents of the Buffett rule would have those 
investors pay another 30 percent. That is $19.50, leaving the investors 
with $45.50 out of the $100 of income. In other words, the government 
takes the lion's share of the income from this investment.
  The net effect of that, of course, is that it diminishes the 
incentive to make these investments in the first place. It makes other 
countries more attractive places to invest capital, to invest in a 
business to try to generate a return.
  There is another aspect that is disturbing about this which is, if 
you ask me, it is very reminiscent of the alternative minimum tax. We 
tried that once. In 1969, Congress decided there were some people who 
weren't paying enough in tax, and they said we are going to target a 
handful. Literally, it was 15 people--not 155,000 but 155 people who 
were subject to the alternative minimum tax, which was this confession 
of the absurdity of the Tax Code in the first place. Right? Junk the 
entire existing Tax Code and have yet a second parallel Code that will 
apply to just those rich 155 people. Well, guess what. Today that 
applies to tens of millions of Americans, and every year Congress has 
to do a temporary fix because it wasn't intended to do that.
  I would suggest if we go down this road, we are going to find that 
this tax--which we are told today would only apply to millionaires and 
billionaires, well, pretty soon the hard cold reality of the fact that 
it doesn't generate any revenue to speak of if you apply it just to 
millionaires and billionaires, means it is going to be expanded to the 
middle class and far more people, very much to our detriment.
  Finally, let me say that it is a bad idea to confiscate the capital 
which is the lifeblood of an economy. This next chart illustrates the 
critical role that investment plays in economic growth and in job 
creation.
  A couple of squiggly lines. But one thing you notice if you take a 
quick look is there is an inverse relationship here. When the black 
line goes up, the red line is going down. The black line is investment 
as a percentage of our economy. And when investment climbs--the red 
line is unemployment--you see, unemployment goes down. This is very 
well understood. It is capital invested in the economy that creates 
growth and creates jobs. What this rule would do is it would impose a 
new layer of additionally higher taxes on that very lifeblood of our 
economy.
  It is capital also that drives wages higher. We should never forget 
that fact. It is capital that allows the hunter-gatherer to have a hoe 
and become a farmer. It is capital that allows the farmer with a hoe to 
cast aside the hoe and drive a tractor and become far more productive. 
It is capital that allows the laborer who is digging with the shovel to 
put aside the shovel and drive a backhoe. And as I think everybody 
understands or should understand, the farmer who is using a tractor is 
producing more and has a higher income than the poor guy who is using a 
hoe. And the guy who is operating a backhoe has far more income and is 
far more productive than the guy who is using a shovel. It is capital 
that makes that possible.
  There is a metaphor I like about this, and I am not sure who to 
credit it to, but certainly I didn't invent it. I may not do it 
justice, but the gist of it is this:
  The comparison to the economy is that of a fruit tree.
  A farmer who has a fruit tree cultivates that tree so it will produce 
fruit, and the fruit is the income the farmer earns from the work he 
puts into cultivating that tree.
  If the government comes along and takes some of the fruit as a tax, 
as long as it doesn't take too much it still makes sense for the farmer 
to cultivate that tree so he can have that aftertax income. And as long 
as the government only takes a portion of the fruit, then the 
government is not diminishing the ability of the tree to produce that 
fruit.
  But if the government comes along and says in addition to taking a 
whole lot of the fruit, we want to saw off a branch because we want 
some firewood, that is a whole different matter. Because whatever you 
think of how many of those apples or whatever portion of that fruit you 
wish to take from the farmer, once you start cutting at the tree you 
are diminishing the ability of the tree to produce income for the good 
of the farmer and for society.
  That is what happens when we restrict capital, and I am afraid this 
is the path we would be going down if we

[[Page S2310]]

adopt this. This is bad economic policy. We already have the most 
progressive Tax Code in the world, and very progressive by our own 
historical standards.
  For the sake of job growth, economic growth, and in the hopes that we 
will instead have a meaningful discussion about budget policy and tax 
reform, I urge my colleagues to vote no today on the cloture motion on 
the Buffett rule.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, 1 year ago last month our Nation lost 
an esteemed public servant and an outstanding human being, Judge M. 
Blane Michael, who served on the U.S. Court of Appeals for the Fourth 
Circuit for a number of years.
  With his passing, we were therefore left with a great void not only 
on the Federal judiciary but also in the hearts of his family and his 
many friends. So it is with a profound sense of obligation to the 
people of West Virginia and America that I set out to find a nominee to 
fill his vacancy. My duty to provide advice and consent took on, to me, 
additional significance.

  In West Virginia, we are fortunate to have many talented and worthy 
lawyers who are capable of serving--and willing to serve--on the 
Federal bench.
  But the nominee before the Senate today, Stephanie Dawn Thacker, 
completely stood out to me--and (in turn) to President Obama--as 
someone who is uniquely qualified to carry on in her own way, Judge 
Michael's legacy of independence, humility, and intellectual honesty as 
a Federal judge.
  There is no question that Stephanie Thacker has reached the heights 
of the legal profession, both as an award-winning public servant and as 
an esteemed lawyer in private practice.
  Her rise is all the more impressive because of the challenges she 
overcame The circumstances of Stephanie Thacker's early life were not 
easy. Her home town, Hamlin, WV, is in one of the poorest counties in 
the nation--a place where nothing is taken for granted and where every 
success is hard-earned.
  Stephanie credits a supportive family and community, and the 
influence of two strong women who assumed her ability to achieve 
against the odds.
  While still in the crib, Stephanie's mother and grandmother told her 
every day that she would go to college, and then in college they told 
her she would succeed in law school. They instilled in her the value of 
education and a strong sense of public service and duty to her country, 
which we fulfill again today.
  Ms. Thacker heeded their advice, graduating magna cum laude from 
Marshall University and second in her class from the West Virginia 
University College of Law, where she was an editor of the Law Review.
  Over the next 21 years her passion and respect for the law, along 
with her drive to seek justice for her clients, resulted in an 
illustrious career. Ms. Thacker's reputation is as a compassionate yet 
tough attorney who makes thoughtful, very well-researched, and 
therefore confident arguments that are always based on the law and 
facts of her cases.
  These skills and character are evident in her 12 years of service as 
a federal prosecutor, where she rose to be Principal Deputy Chief of 
the Department of Justice's Child Exploitation and Obscenity Section. 
Among her accomplishments are prosecuting the first federal Violence 
Against Women Act case and helping to develop the nationwide Innocence 
Lost initiative to combat child sex trafficking, which to date has led 
to the rescue of more than 1,600 children and the conviction of more 
than 700 sex offenders.
  She co-authored the Federal Child Support Prosecution handbook, 
worked reviewing and amending West Virginia's domestic violence laws, 
prosecuting notorious child sex offender Dwight York, and training 
national and international law enforcement officials on the prosecution 
of child exploitation crimes.
  This body of work has rightfully earned her bipartisan praise over 
the years from United States Senators, FBI Director Mueller and former 
Attorney Generals Gonzales and Ashcroft, who awarded her the 
Distinguished Service Award, which is among the Department's highest 
commendations.
  These accomplishments are illustrative of the experience and 
qualifications that Stephanie Thacker offers in service to the U.S. 
Court of Appeals for the Fourth Circuit.
  She has the courage to make tough decisions, and will not back down 
from a challenge.
  She has the superior intellect necessary to analyze the complex legal 
issues that come before the Federal appeals courts. She will look at 
every case with a fair and open mind and will issue opinions that are 
guided by our Constitutional principles and always grounded in the law 
and she will never forget her solemn duty to uphold fairness and 
justice for everyone, regardless of social status or economic means.
  In conclusion, it is with great optimism, pride, and a renewed spirit 
that I look to the future, knowing that this important appellate 
vacancy will be filled with such a qualified nominee as Stephanie Dawn 
Thacker.
  I yield the Floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. MANCHIN. Mr. President, I rise today first of all to thank the 
senior Senator, my friend Senator Rockefeller, for nominating such a 
qualified jurist upon the passing of our dear friend, Judge Blane 
Michael.
  Stephanie Dawn Thacker is a native of Hamlin, WV. We are awaiting her 
confirmation this afternoon with a vote which I know will be in the 
affirmative. It is my privilege and my honor to speak on her behalf 
also.
  Stephanie Thacker's impressive background and extensive list of 
accomplishments in both the public and private sectors make her an 
exceptional judge for the 4th Circuit. She is renowned in our state for 
her mastery of the law and of the courtroom, and I have no doubt that 
she will make a highly successful federal judge.
  Ms. Thacker has dedicated much of her career to fighting some of the 
worst offenses in our society. As a trial attorney, Deputy Chief of 
Litigation, and Principal Deputy Chief, she spent several years 
prosecuting cases, as you have heard, on Child Exploitation and 
Obscenity at the Department of Justice. Her outstanding work and 
leadership earned her a number of honors at the Department of Justice, 
including four ``Meritorious'' Awards and two ``Special Achievement'' 
awards.
  Her impressive performance in prosecuting the case of United States 
v. Dwight York earned her the Attorney General's ``Distinguished 
Service'' award, one of the Department's highest honors. She was also a 
recipient of the Assistant Attorney General's awards for ``Special 
Initiative'' and ``Outstanding Victim and Witness Service.''
  Prior to her service at the Department of Justice, Ms. Thacker worked 
with the U.S. Attorney's Office for the Southern District of West 
Virginia, where she prosecuted a wide variety of criminal cases, 
including money laundering and fraud. While at the U.S. Attorney's 
Office, Ms. Thacker participated on the trial team prosecuting United 
States v. Bailey, the first case ever brought under the Violence 
Against Women Act.
  Since 2006, Ms. Thacker has been a partner at the law firm of Guthrie 
& Thomas in Charleston, West Virginia. There, she has concentrated on 
cases involving product liability, environmental and toxic torts, 
complex commercial defense, and criminal defense.
  Ms. Thacker was a model student in both her undergraduate and legal 
studies. She earned her Bachelor's degree in Business Administration, 
magna cum laude, from Marshall University, and her J.D., Order of the 
Coif, from West Virginia University College of Law. While at West 
Virginia University she was a recipient of the Robert L. Griffin 
Memorial Scholarship and Editor of West Virginia Law Review's Coal 
Issue. She has also recently been named ``Outstanding Female Attorney'' 
by WVU Law's Women's Caucus.
  Ms. Thacker's wide-ranging expertise in civil and criminal matters, 
her impressive track record in the courtroom as both a prosecutor and a 
defense attorney, and her outstanding academic accomplishments will 
make her a first-rate addition to the 4th Circuit. I am proud to call 
her a fellow West Virginian and I am pleased that she will finally be 
confirmed.


                            the buffett rule

  Mr. MANCHIN. Mr. President, I had the enormous privilege to spend the

[[Page S2311]]

last 2 weeks traveling around my great State to hear from the people of 
West Virginia.
  It is always so refreshing to get a dose of commonsense from people 
who are working hard every day to balance their family budget, put food 
on the table and give their kids a better life.
  And I can tell you that the people of West Virginia are so frustrated 
and losing confidence in this government, especially when it comes to 
our broken tax system.
  Whether it was in Beckley, Ravenswood or Wheeling, I heard the same 
thing from the people of my great State.
  We just don't understand why hardworking, middle income people are 
paying a much higher tax rate than some of the wealthiest people in 
this country. Take our coal miners, who go to the mine every single day 
to make a living for themselves, for their families, but who are paying 
a higher tax rate than some people making a million dollars a year. 
Where I come from, that's not fair. Where I come from, that doesn't 
make any sense.
  Where I come from, that means our system needs to be fixed--in a 
real, responsible and fiscally sound way that reduces our debt.
  Now, let me be clear: I am not begrudging anyone who's worked hard, 
who has taken a risk or who has done well. But we have to have a solid 
country under us to achieve those goals. And we need to put fairness 
back in the tax system to get this country on solid ground again. And 
if we want a fair system, that means that there should not be 
privileges that allow the very wealthy to pay a lower rate than 
hardworking, middle class Americans.
  Right now, the average person does not have those opportunities or 
privileges. But when people believe the American Dream is in reach, 
they will all pull harder.
  Today I rise to speak about my support for the Buffett Rule, which 
would take a small step toward fixing this unfair system and paying 
down this country's nearly $16 trillion debt.
  A lot of people here believe that this bill will fail because of 
politics on a mostly party line vote. That is a shame because the only 
line we should vote is the American line.
  For a year-and-a-half, I have been coming to the Senate floor to urge 
my colleagues to put party and politics aside and vote for the good of 
the next generation, whether it is a Democratic idea or a Republican 
idea.
  But even though this vote on the Buffett Rule might fail today on 
party lines, we cannot give up--we have to find a way to come together 
for the next generation.
  I have said before that the Buffett Rule alone does not address the 
full scope of the problem. All it does is nibble around the edges of 
our broken tax code. We still have too many corporations that can take 
advantage of too many loopholes, credits and exemptions. We are pushing 
$16 trillion dollars in debt and we are still spending more than a 
trillion dollars more than we take in every year. That does not make 
sense.
  We have to fix the whole thing so that we can start reducing our 
deficit, paying down our debt and putting our fiscal house back in 
order for the next generation.
  To do that, we have a plan with bipartisan support--the Bowles-
Simpson framework, which would reduce loopholes, exemptions and credits 
across the board, lower tax rates and get everyone to pay their fair 
share. Just as importantly, it would cut spending and start paying down 
our debt.
  I can't tell you how important that is to the people of West 
Virginia, the taxpayers in every single income bracket who don't trust 
the government to spend their tax dollars wisely.
  Just like all Americans have the responsibility to pay their fair 
share, Washington has the responsibility to show the people of this 
country--no matter how much money they make--that we are using their 
tax dollars wisely and effectively--just as we did in West Virginia.
  That is why I believe we must--and I will continue to fight--to cut 
back on our spending. We have to eliminate the $125 billion dollars 
that we spent in waste, fraud and abuse last year alone. And most 
importantly, we have to pay down the nearly $16 trillion dollar debt 
hole that has been dug for the next generation.
  The Buffett Rule would take a small step to show the American people 
that we are trying to correct those problems and--most importantly--put 
some basic fairness back into our tax system.
  Even though this vote might fail, in West Virginia we will continue 
to work hard. We will continue to pay our taxes. And we will continue 
to fight to make sure that when our coal miners send in their taxes, 
that people who bring in a million dollars a year aren't getting away 
with paying less.
  The future of this country depends on those of us here in Washington 
working together to restore confidence in this great nation because 
when people believe that everyone is paying their fair share, they are 
all willing to pull their load a little harder. And if people start 
believing in this country again, there's no stopping us.
  I yield the floor.
  Mr. GRASSLEY. Mr. President, again we are moving forward under the 
regular order and procedures of the Senate. This year we have been in 
session for about 37 days, including today. During that time we will 
have confirmed 15 judges. That is an average of better than one 
confirmation for every 2\1/2\ days we have been in session. With the 
confirmations today, the Senate will have confirmed nearly 75 percent 
of President Obama's article III judicial nominations.
  Despite this progress, we still hear complaints about the judicial 
vacancy rate. We are filling those vacancies. But again, I would remind 
my colleagues that of the 82 current vacancies, 50 have no nominee. 
That is over 60 percent of vacancies with no nominee.
  Another complaint we hear, which is a distortion of the record, is 
the so-called delay in confirming nominees. Those who raise this 
complaint only focus on the time a nominee is reported out of committee 
until confirmation. But the confirmation process is more than just 
Senate floor action.
  For those who may not be familiar with the confirmation process, let 
me review. Once a nomination is received, the committee takes an 
appropriate amount of time to review the nominee's Senate questionnaire 
and background and review written materials. The Committee holds a 
hearing on judicial nominees and then holds the record open for 
additional written questions. Of course there is debate on the 
nomination in committee, then the nomination is reported to the floor. 
All of this takes time. Every step is important. Not all nominees make 
it through each step.
  The average time for this process for President Bush's circuit judge 
nominees was 350 days. That means it took, on average, nearly 12 months 
from the time a nomination was received in the Senate until final 
confirmation.
  For President Obama's circuit nominees the average time from 
nomination to confirmation is 243 days. That means President Obama's 
circuit nominees are being confirmed faster than those of President 
Bush. So to those who ask What's different about this President? I 
would respond that one thing that is different is that this President's 
circuit nominees are being treated much more fairly than President 
Bush's nominees were treated.
  As I stated, not all nominees make it through every step of the 
process. In the case of our nominee today, she completed that process 
in about 220 days, below the average for President Obama and much 
quicker than the average for President Bush. She will likely be 
confirmed and take her place on the Court of Appeals for the fourth 
circuit.
  This was not the outcome for many of President Bush's nominees to the 
fourth circuit. Let me review just a few of the highlights from those 
failed nominations.
  I wonder if my colleagues remember William Haynes, President Bush's 
nominee to sit on the fourth circuit. In the 108th Congress, my 
Democratic colleagues held up his nomination for 638 days on the Senate 
calendar alone before it was returned to the President. All in all, he 
put his life on hold for 1,173 days and never received an up-or-down 
vote.
  Later, at a point during the 110th Congress, the fourth circuit had a 
vacancy rate of 33 percent and desperately required judges. The 
President

[[Page S2312]]

did his duty and submitted four nominations. Unfortunately, all of them 
were needlessly delayed.
  Judge Robert Conrad was nominated to a seat on the fourth circuit 
which had been designated as a judicial emergency, Both home State 
Senators supported his nomination. Furthermore, he had received 
unanimous support from the Senate on two prior occasions--first when he 
was confirmed to be a United States Attorney and again when he was 
confirmed by voice vote to be a United States District Judge for the 
Western District of North Carolina. The American Bar Association's 
Standing Committee on the Federal Judiciary unanimously gave him a 
rating of well qualified.
  Judge Conrad met every standard to be considered a well qualified, 
noncontroversial, consensus nominee. Yet, his nomination stalled. He 
was nominated on July 17, 2007. Despite his extensive qualifications, a 
hearing was never scheduled. On October 2, 2007 Senators Burr and Dole 
sent a letter to the chairman asking for a hearing for Judge Conrad. On 
April 15, 2008 they sent a second letter to the chairman requesting a 
hearing for Judge Conrad.
  Their request was never granted. After waiting 585 days for a hearing 
that never came, Judge Conrad's nomination was returned on January 2, 
2009.
  Steve Matthews was another nominee to the fourth circuit, nominated 
on September 6, 2007. He was a graduate of Yale Law School and had a 
distinguished career in private practice in South Carolina. He also had 
the support of his home State Senators. On April 15, 2008 Senators 
Graham and DeMint sent a letter to the chairman asking for a hearing 
for Mr. Matthews. Despite his qualifications, Mr. Matthews waited 485 
days for a hearing that never came. His nomination was returned on 
January 2, 2009.
  Rod Rosenstein was nominated to a fourth circuit seat designated as a 
judicial emergency on November 15, 2007. The American Bar Association's 
Standing Committee on the Federal Judiciary unanimously rated him well 
qualified. Previously, in 2005 he had been confirmed by a 
noncontroversial voice vote as U.S. Attorney for Maryland. Prior to his 
service as U.S. Attorney, he held several positions in the Departm6nt 
of Justice under both Republican and Democratic administrations.
  On June 24, 2008 Senator Specter, the ranking Republican Member, sent 
a letter to Mr. Rosenstein's home State Senators pointing out that the 
seat to which Mr. Rosenstein had been nominated had been vacant since 
August 2000--at the time nearly 8 years. He requested they return their 
blue slips on his nomination. That request was declined, reportedly 
because the nominee lacked ties to Maryland and was doing too good of a 
job as the U.S. Attorney for Maryland. I find that rationale somewhat 
perplexing, if not inconsistent.
  Nevertheless, despite his stellar qualifications, Mr. Rosenstein 
waited 414 days for a hearing that never came. His nomination was 
returned on January 2, 2009.
  Judge Glen Conrad was another failed nomination to the fourth 
circuit. Nominated on May 8, 2008 he had the support of his home State 
Senators, one a Republican, the other a Democrat. Judge Conrad had 
previously been supported by the full Senate when he was confirmed to 
be a United States District Judge for the Western District of Virginia 
by a unanimous, bipartisan vote of 89 0 in September 2003. Despite his 
extensive qualifications, Judge Glen Conrad waited 240 days for a 
hearing that never came. His nomination was returned on January 2, 
2009.
  What was the reaction to this Democratic obstruction to President 
Bush's fourth circuit nominees? A December 2007 Washington Post 
editorial lamented the dire straits of the fourth circuit writing: 
``[T]he Senate should act in good faith to fill vacancies--not as a 
favor to the president but out of respect for the residents, 
businesses, defendants and victims of crime in the region the 4th 
Circuit covers. Two nominees--Mr. Conrad and Steve A. Matthews--should 
receive confirmation hearings as soon as possible.''
  In 2008, another Washington Post editorial stated that ``blocking Mr. 
Rosenstein's confirmation hearing . . . would elevate ideology and ego 
above substance and merit, and it would unfairly penalize a man who 
people on both sides of this question agree is well qualified for a 
judgeship.''
  I would note that the seat to which Mr. Rosenstein was nominated went 
vacant for over 9 years. When President Obama made his nomination to 
that vacancy, the nominee fared far better. He received a hearing a 
mere 27 days after his nomination and received a committee vote just 36 
days later.
  So today, as we confirm another of President Obama's nominees to the 
fourth circuit, I hope my colleagues understand, recognize, and 
acknowledge that President Obama's nominees are being treated in a fair 
manner.
  Stephanie Dawn Thacker is nominated to be United States Circuit Judge 
for the fourth circuit. She graduated with honors from West Virginia 
University College of Law in 1990 and received her B.A., magna cum 
laude, from Marshall University in 1987. Ms. Thacker began her legal 
career as an associate in the Pittsburgh office of Kirkpatrick & 
Lockhart, now K&L Gates. There she worked on complex commercial and 
asbestos defense litigation.
  In 1992, she worked for a brief period as an assistant attorney 
general in the Environmental Division of the Office of the West 
Virginia Attorney General. There she represented the State of West 
Virginia on environmental issues involving permitting and compliance. 
She then joined King, Allen & Betts--now Guthrie and Thomas--as an 
associate, where she worked from 1992 to 1994 on cases involving 
commercial litigation defense, white collar criminal defense, and legal 
malpractice and professional responsibility defense.
  In 1994, she joined the United States Attorney's Office for the 
Southern District of West Virginia as an assistant United States 
attorney in the General Criminal Division. As an assistant United 
States attorney, she prosecuted cases on a wide range of criminal 
matters including money laundering, fraud, firearms, and tax evasion 
matters. She eventually developed a niche in domestic violence, child 
support enforcement, and coal mine safety.
  In 1999, she became a trial attorney with the Department of Justice's 
Child Exploitation and Obscenity Section. She was promoted to deputy 
chief for litigation in 2002 andl principal deputy chief in 2004. As a 
trial attorney, she prosecuted cases around the country involving child 
pornography, child sexual exploitation, sex trafficking, and obscenity. 
As deputy chief and principal deputy chief, she was responsible for the 
management and professional development of the section trial attorneys.
  In 2006, she became a partner at Guthrie and Thomas--formerly King, 
Betts & Allen--where she previously worked basis as an associate. She 
has specialized in complex litigation, environmental and toxic tort 
litigation, representing large companies, as well as handling some 
criminal defense cases representing individuals.
  A substantial majority of the ABA Standing Committee on the Federal 
Judiciary gave her a rating of well qualified; a minority of that 
committee rated her as qualified.
  The PRESIDING OFFICER. Under the previous order, the question is on 
the nomination.
  Mr. ROCKEFELLER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Stephanie Dawn Thacker, of West Virginia, to be United States 
Circuit Judge for the Fourth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Akaka), the 
Senator from Colorado (Mr. Bennet), and the Senator from Connecticut 
(Mr. Lieberman) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Wyoming (Mr. Enzi), the Senator from Utah (Mr. Hatch), 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. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 91, nays 3, as follows:

[[Page S2313]]

                       [Rollcall Vote No. 64 Ex.]

                                YEAS--91

     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     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
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     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)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--3

     DeMint
     Lee
     Vitter

                             NOT VOTING--6

     Akaka
     Bennet
     Enzi
     Hatch
     Kirk
     Lieberman
  The nomination was confirmed.
  The PRESIDING OFFICER (Mrs. Hagan). Under the previous order, the 
motion to reconsider is made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________