[Congressional Record Volume 158, Number 54 (Monday, April 16, 2012)]
[Senate]
[Pages S2308-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.
____________________