[Congressional Record Volume 158, Number 110 (Monday, July 23, 2012)]
[Senate]
[Pages S5244-S5248]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                       Aurora, Colorado Shootings

  Before we begin--and so many others have said this--it would be 
impossible to state the amount of horror and sadness felt by my wife 
Marcelle and me at the news of what happened in Colorado, and I was 
reminded again today as I saw the flags lowered to half staff on this 
Capitol Building. We think of the Capitol as being a bastion of 
democracy or the light that sort of shines for the rest of the world on 
what democracy is. Unfortunately, so much of the world has seen the 
acts of a madman. It is safe to say this is one thing that united every 
Senator of both parties here. Our hearts go out not only to those who 
have been injured, obviously to the families of those who have died, 
and to the people in that wonderful community, because it is impossible 
for any one of us here to know how long or how hard that will hold in 
their heart, the number of people who say, as we all do: We just went 
to a movie. Any one of us has done that. Our children go to movies, our 
grandchildren go to movies. You expect them to go, have a good time, 
and come back, and enjoy it. The thought of what they saw there is 
horrible.
  We have before us a Federal trial court nomination, that of Michael 
Shipp. This is a nomination that was voted on by the Senate Judiciary 
Committee more than three months ago and supported nearly unanimously 
by both Republican and Democratic Senators who have reviewed it. The 
only objection came as a protest vote from Senator Lee.
  Judge Michael Shipp has served as a U.S. Magistrate Judge in the 
District of New Jersey since 2007 and has presided over civil and 
criminal matters and issued over 100 opinions. He is the

[[Page S5245]]

first African-American United States Magistrate Judge in that district. 
Prior to his appointment to the Federal bench, he worked for the Office 
of the Attorney General of New Jersey for five years, where he was 
Assistant Attorney General in charge of Consumer Protection from 2003 
to 2007 and Counsel to the Attorney General in 2007. From 1995 to 2003, 
Judge Shipp was an associate in the Newark office of the law firm 
Skadden, Arps. Upon graduation from law school, Judge Shipp clerked for 
Judge James Coleman on the New Jersey Supreme Court.
  Despite his outstanding qualifications and bipartisan support, Senate 
Republicans have delayed his confirmation vote for more than three 
months. Despite the fact that the Senate has finally been allowed to 
consider his nomination and that he will be confirmed overwhelmingly, 
Senate Republicans have again demonstrated their obstruction of 
judicial nominees. This is not a nominee on whom cloture should have 
been filed.
  They refused until today to agree to a vote on this nomination. That 
meant that the Majority Leader was required to file a cloture petition 
to put an end to their obstruction and partisan filibuster. While I am 
pleased we are holding a confirmation vote today, it should not have 
required that the Majority Leader file for cloture.
  This was the 29th time the Majority Leader had been forced to file 
for cloture to end a Republican filibuster and get an up-or-down vote 
for one of President Obama's judicial nominees. By comparison, during 
the entire eight years that President Bush was in office, cloture was 
filed in connection with 18 of his judicial nominees, most of whom were 
opposed on their merits as extreme ideologues.
  Senate Republicans used to insist that filibustering of judicial 
nominations was unconstitutional. The Constitution has not changed but 
as soon as President Obama was elected they reversed course and 
filibustered President Obama's very first judicial nomination. Judge 
David Hamilton of Indiana was a widely-respected 15-year veteran of the 
Federal bench nominated to the Seventh Circuit and was supported by 
Senator Dick Lugar, the longest-serving Republican in the Senate. They 
delayed his confirmation for five months. Senate Republicans then 
proceeded to obstruct and delay just about every circuit court nominee 
of this President, filibustering nine of them. They delayed 
confirmation of Judge Albert Diaz of North Carolina to the Fourth 
Circuit for 11 months. They delayed confirmation of Judge Jane Stranch 
of Tennessee to the Sixth Circuit for 10 months. They delayed 
confirmation of Judge Ray Lohier of New York to the Second Circuit for 
seven months. They delayed confirmation of Judge Scott Matheson of Utah 
to the Tenth Circuit and Judge James Wynn, Jr. of North Carolina to the 
Fourth Circuit for six months. They delayed confirmation of Judge Andre 
Davis of Maryland to the Fourth Circuit, Judge Henry Floyd of South 
Carolina to the Fourth Circuit, Judge Stephanie Thacker of West 
Virginia to the Fourth Circuit, and Judge Jacqueline Nguyen of 
California to the Ninth Circuit for five months. They delayed 
confirmation of Judge Adalberto Jordan of Florida to the Eleventh 
Circuit, Judge Beverly Martin of Georgia to the Eleventh Circuit, Judge 
Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of 
Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the 
Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third 
Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit, 
Judge Denny Chin of New York to the Second Circuit, and Judge Chris 
Droney of Connecticut to the Second Circuit for four months. They 
delayed confirmation of Judge Paul Watford of California to the Ninth 
Circuit, Judge Andrew Hurwitz of Arizona to the Ninth Circuit, Judge 
Morgan Christen of Alaska to the Ninth Circuit, Judge Stephen Higginson 
of Louisiana to the Fifth Circuit, Judge Gerard Lynch of New York to 
the Second Circuit, Judge Susan Carney of Connecticut to the Second 
Circuit, and Judge Kathleen O'Malley of Ohio to the Federal Circuit for 
three months.
  As a current report from the nonpartisan Congressional Research 
Service confirms, the median time circuit nominees have had to wait 
before a Senate vote has skyrocketed from 18 days for President Bush's 
nominees to 132 days for President Obama's. This is the result of 
Republican foot dragging and obstruction. In most cases, Senate 
Republicans are delaying and stalling for no good reason. How else do 
you explain the filibuster of the nomination of Judge Barbara Keenan of 
Virginia to the Fourth Circuit who was ultimately confirmed 99-0? And 
how else do you explain the needless stalling and obstruction of Judge 
Denny Chin of New York to the Second Circuit, who was filibustered for 
four months before he was confirmed 98-0?
  Three of the five circuit court judges finally confirmed this year 
after months of unnecessary delays and a filibuster should have been 
confirmed last year. The other two circuit court nominees confirmed 
this year were both subjected to stalling and a partisan filibuster by 
Senate Republicans. This was the case even though these circuit 
nominees had strong bipartisan support. We needed to overcome a 
filibuster to confirm Justice Andrew Hurwitz of Arizona to the Ninth 
Circuit despite the strong support of his home state Senators, 
Republicans Jon Kyl and John McCain. The Majority Leader had to file 
cloture to secure an up-or-down vote on Paul Watford of California to 
the Ninth Circuit despite his sterling credentials and bipartisan 
support. The year started with the Majority Leader having to file 
cloture to get an up-or-down vote on Judge Adalberto Jordan of Florida 
to the Eleventh Circuit even though he was strongly supported by his 
Republican home state Senator. Every single one of these nominees for 
whom the Majority Leader was forced to file cloture was rated 
unanimously well qualified by the nonpartisan ABA Standing Committee on 
the Federal Judiciary, the highest possible rating. And every one of 
them was nominated to fill a judicial emergency vacancy.
  In June, Senate Republicans confirmed that they shut down the 
confirmation process for qualified and consensus circuit court 
nominees. They are now filibustering Judge Patty Shwartz of New Jersey 
who is nominated to the Third Circuit and Richard Taranto who is 
nominated to the Federal Circuit. In addition, they are filibustering 
two circuit court nominees who have the support of both their home 
state Republican Senators: William Kayatta of Maine to the First 
Circuit and Judge Robert Bacharach of Oklahoma to the Tenth Circuit. 
This is almost unprecedented.
  During the past five presidential election years, Senate Democrats 
have never denied an up-or-down vote to any circuit court nominee of a 
Republican President who received bipartisan support in the Judiciary 
Committee. In fact, during the last 20 years, only four circuit 
nominees reported with bipartisan support have been denied an up-or-
down vote by the Senate and all four were nominated by President 
Clinton and blocked by Senate Republicans. While Senate Democrats have 
been willing to work with Republican presidents to confirm circuit 
court nominees with bipartisan support, Senate Republicans have 
repeatedly obstructed the nominees of Democratic presidents. In the 
previous five presidential election years, a total of 13 circuit court 
nominees have been confirmed after June 1. Not surprisingly, 12 of the 
13 were Republican nominees. Clearly, this is not tit-for-tat as some 
contend but, rather, a one-way street in favor of Republican 
presidents' nominees.
  This entire year, the Senate has yet to vote on a single circuit 
court nominee who was nominated by President Obama this year. Since 
1980, the only presidential election year in which there were no 
circuit nominees confirmed who was nominated that year was in 1996, 
when Senate Republicans shut down the process against President 
Clinton's circuit nominees.
  The nonpartisan Congressional Research Service has confirmed in its 
reports that judicial nominees continue to be confirmed in presidential 
election years--except it seems when there is a Democratic President. 
In five of the last eight presidential election years, the Senate has 
confirmed at least 22 circuit and district court nominees after May 31. 
The notable exceptions were during the last years of President 
Clinton's two terms in 1996 and 2000 when Senate Republicans would not

[[Page S5246]]

allow confirmations to continue. The third exception was in 1988, at 
the end of President Reagan's presidency, but that was because 
vacancies were at 28. In comparison, vacancies at the end of the 
Clinton years stood at 75 at the end of 1996 and 67 at the end of 2000. 
Otherwise, it has been the rule rather than the exception. So, for 
example, according to CRS the Senate confirmed 32 nominees in 1980; 28 
in 1984; 31 in 1992; 28 in 2004 at the end of President George W. 
Bush's first term; and 22 after May 31 in 2008 at the end of President 
Bush's second term. So far this year only 7 judicial nominees have been 
allowed to be confirmed.
  It is ironic that certain Senate Republicans are now arguing in 
support of a distorted version of the Thurmond Rule, as if it had the 
force of law. After all, it is Senate Republicans who have repeatedly 
asserted that the Thurmond Rule does not exist. For example, on July 
14, 2008, the Senate Republican caucus held a hearing solely dedicated 
to arguing that the Thurmond Rule does not exist. At that hearing, the 
senior Senator from Kentucky stated: ``I think it's clear that there is 
no Thurmond Rule. And I think the facts demonstrate that.'' Similarly, 
the Senator from Iowa, my friend who is now serving as Ranking Member 
of the Judiciary Committee, stated that the Thurmond Rule was in his 
view ``plain bunk.'' He said: ``The reality is that the Senate has 
never stopped confirming judicial nominees during the last few months 
of a president's term.'' We did not in 2008 when we proceeded to 
confirm 22 nominees over the second half of that year. That Senate 
Republicans have objected to voting on the nomination of Judge Shipp is 
a distortion of the Thurmond rule and shows the depths to which they 
have gone.
  There is no good reason that the Senate should not vote on consensus 
nominees like Judge Shipp and more than a dozen other consensus 
judicial nominees to fill Federal trial court vacancies in Iowa, 
California, Utah, Connecticut, Maryland, Florida, Oklahoma, Michigan, 
New York and Pennsylvania. There is no good reason the Senate should 
not vote on the nominations of William Kayatta of Maine to the First 
Circuit, Judge Robert Bacharach of Oklahoma to the Tenth Circuit, 
Richard Taranto to the Federal Circuit and for that matter Judge Patty 
Shwartz of New Jersey to the Third Circuit, who is supported by New 
Jersey's Republican Governor. Each of these circuit court nominees has 
been rated unanimously well qualified by the nonpartisan ABA Standing 
Committee on the Federal Judiciary, the highest possible rating. These 
should not be controversial nominees. They are qualified and should be 
considered as consensus nominees and confirmed.
  Senate Republicans are blocking consent to vote on superbly qualified 
circuit court nominees with strong bipartisan support. This is a new 
and damaging application of the Thurmond rule.
  The fact that Republican stalling tactics have meant that circuit 
court nominees that should have been confirmed in the spring--like Bill 
Kayatta, Richard Taranto and Patty Shwartz--are still awaiting a vote 
is no excuse for not moving forward this month to confirm these circuit 
nominees.
  In an article dated July 16, 2012 entitled ``William Kayatta and the 
Needless Destruction of the Thurmond Rule,'' Andrew Cohen of the 
Atlantic states:

       In a more prudent and practical era in Senate history, 
     nominees like Kayatta would have been confirmed in days . . . 
     Now even slam-dunk candidates like Kayatta linger in the 
     wings waiting for Senate ``consent'' long after the body 
     already has definitively ``advised'' the executive branch of 
     how great it thinks the nominee would be as a judge. Can you 
     imagine the uproar if the Senate ever used its filibuster 
     power to block the deployment of troops already endorsed by 
     the Armed Services Committee? Now please tell me the material 
     difference here. Surely, the judiciary needs judges as much 
     as the army needs soldiers.

  I agree. We have outstanding nominees with the support of both 
Republican home State senators. Yet, we cannot vote on these nominees 
because Senate Republicans want to place politics over the needs of the 
American people.
  The Los Angeles Times recently published an editorial entitled 
``Reject the `Thurmond Rule' '' which concluded ``the administration of 
justice shouldn't be held hostage to partisan politics even in an 
election year.''
  I ask unanimous consent that copies of the July 12 and 16 articles be 
printed in the Record at the conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is ordered.
  (See exhibit 1.)
  Mr. LEAHY. As both Chairman and Ranking Member of the Judiciary 
Committee during the last several years, I have worked with Senate 
Republicans to consider judicial nominees well into presidential 
election years, I have made earnest efforts to make the confirmation 
process more transparent and fair, I have ensured that the President 
consults with home state Senators before submitting a nominee, and I 
have opened up the blue slip process to prevent abuses while continuing 
to respect it.
  In the last two presidential election years, we were able to bring 
the number of judicial vacancies down to the lowest levels in the past 
20 years. In 2004 at end of President Bush's first term, vacancies were 
reduced to 28 not the 77 we have today. In 2008, in the last year of 
President Bush's second term, we again worked to fill vacancies and got 
them down to 34, less than half of what they are today. In 2004, 25 
nominees were confirmed between June and the presidential election, and 
in 2008, 22 nominees were confirmed between June and the presidential 
election.
  In 2004, a Presidential election year, the Senate confirmed five 
circuit court nominees of a Republican President that had been reported 
by the Committee that year. This year we have confirmed only two 
circuit court nominees that have been reported by the Committee this 
year, and both were filibustered. By this date in 2004 the Senate had 
already confirmed 32 of President Bush's circuit court nominees, and we 
confirmed another three that year for a total of 35 circuit court 
nominees in his first term. So far, the Senate has only been allowed to 
consider and confirm 30 of President Obama's circuit court nominees 
five fewer, 17 percent fewer while higher numbers of vacancies remain, 
and yet the Senate Republican leadership wants to artificially shut 
down nominations for no good reason.
  As Chairman of this Committee, I have also assiduously protected the 
rights of the minority in the judicial nomination process. I have only 
proceeded with judicial nominations supported by both home state 
Senators. That has meant that we are not able to proceed on current 
nominees from Arizona, Georgia, Nevada and Louisiana. I even stopped 
proceedings on a circuit court nominee from Kansas when the Kansas 
Republican Senators reversed themselves and withdrew their support for 
the nominee. Nor did I accede to the Majority Leader's request to push 
a Nevada nominee through Committee who did not have the blue slip of 
the state's Republican Senator. In stark contrast, it was Senate 
Republicans and the Republican chairman who blatantly disregarded 
Senate Judiciary procedure by proceeding with nominations despite the 
objection of both home state Senators. And I have been consistent. I 
hold hearings at the same pace and under the same procedures whether 
the President nominating is a Democrat or a Republican. Others cannot 
say that. So those have been my rules respect for minority rights, 
transparency, deference to home state Senators, consistent application 
of policies and practices, and allowing for confirmations well into 
presidential election years for nominees with bipartisan support.
  Personal attacks on me do nothing to help the American people who are 
seeking justice in our Federal courts. I am willing to defend my record 
but that is beside the point. The harm to the American people is what 
matters. What the American people and the overburdened Federal courts 
need are qualified judges to administer justice in our Federal courts, 
not the perpetuation of extended, numerous vacancies.
  The judicial vacancy rate remains almost twice what it was at this 
point in the first term of President Bush. I wish Senate Republicans 
would think more about our responsibilities to the American people than 
some warped sense of partisan score settling. Vacancies have been near 
or above 80 for three years. Nearly one out of every 11 Federal courts 
is currently vacant. Their shutting down confirmations for consensus

[[Page S5247]]

and qualified judicial nominees is not helping the overburdened courts 
who cannot administer justice in an expedient fashion. It is not 
helping owners of small businesses.
  Last week, after his nomination was reported with near unanimous 
voice vote by the Judiciary Committee approximately three months ago, 
the Senate was finally able to confirm Judge Kevin McNulty to the 
District of New Jersey. Despite vacancies still remaining near or above 
80, Senate Republicans continue to obstruct and stall nominees on the 
Senate floor for no good reason. We could easily have confirmed both 
Judges Shipp and McNulty together three months ago. It is this type of 
across-the-board obstruction of judicial nominees by Senate Republicans 
that has contributed to the judicial vacancy crisis in our Federal 
courts.
  Last week, I spoke about the novel excuses that some Senate 
Republicans have concocted for refusing to allow for votes on nominees. 
One excuse was that having confirmed two Supreme Court justices, the 
Senate cannot be expected to reach the 205 number of confirmations in 
President Bush's first term. Work on two Supreme Court nominations did 
not stop the Senate from working to confirm 200 of President Clinton's 
circuit and district nominees in his first term. Similarly, there were 
two Supreme Court confirmations in President George H.W. Bush's term, 
and that did not prevent Senate Democrats who were in the Senate 
majority from confirming 192 of his circuit and district nominees, 
including 66 in the election year of 1992 alone.
  Last week we heard another self-serving misconception of more recent 
history from the Republican side of the aisle. They claimed that 
Democrats were responsible for growing judicial vacancies in 2008. The 
charge was as follows: ``[A]t the beginning of 2008 there were 43 
vacancies. So the practice for Democrats who controlled the Senate 
during that last year of President Bush's term was to allow vacancies 
to increase by more than 37 percent.'' In fact, what we did in 2008 was 
to reduce vacancies back down to 34 in October 2008 when the Senate 
recessed for the year. The increase in vacancies after October and 
through the remainder of 2008 was not because Senate Democrats were 
obstructing Senate votes on qualified judicial nominees with bipartisan 
support as Senate Republicans are today. In November and December 2008 
the Senate met on a few days only to address the financial crisis. 
There were no nominations pending on the Calendar after the election in 
2008. Their charge is fallacious. Judicial vacancies have not been as 
low as 34 or 43 or even the 55 that they stood at when President Obama 
took office for years. Due to Republican obstruction, President Obama 
will be the first President in 20 years to complete his first term with 
more judicial vacancies than when he took office.
  Last week Senate Republicans also contended that they have no 
responsibility for the lack of progress in 2009. In fact, that year 
ended with 10 judicial confirmations stalled by Senate Republicans. The 
obstructionist tactics they employed from the outset of the Obama 
administration had led to the lowest number of judicial confirmations 
in more than 50 years. Only 12 of President Obama's judicial 
nominations to Federal circuit and district courts were confirmed that 
whole year. The 12 were less than half of what we achieved during 
President Bush's first tumultuous year. In the second half of 2001, a 
Democratic Senate majority proceeded to confirm 28 judges. Despite the 
fact that President Obama began nominating judicial nominees two months 
earlier than President Bush, Senate Republicans delayed and obstructed 
them to yield an historic low in confirmations. Republicans refused to 
agree to the consideration of qualified, noncontroversial nominees for 
weeks and months. And as the Senate recessed in December, only three of 
the available 13 judicial nominations on the Senate Executive Calendar 
were allowed to be considered.
  By contrast, in December 2001, the first year of President Bush's 
administration, Senate Democrats proceeded to confirm 10 of his 
judicial nominees. At the end of the Senate's 2001 session, only four 
judicial nominations were left on the Senate Executive Calendar, all of 
which were confirmed soon after the Senate returned in 2002. By 
contrast, it took until May 2011, a year and a half later, to complete 
action on the judicial nominees who should have been confirmed in 
December 2009 but had to be renominated. Although noncontroversial, 
several were further delayed by filibusters before being confirmed 
unanimously. The lack of Senate action on those 10 judicial nominees in 
2009 was attributable to Senate Republicans and no one else. Despite 
the fact that President Obama reached across the aisle to consult with 
Republican Senators, he was rewarded with obstruction from the outset 
of his administration. While President Obama moved beyond the judicial 
nominations battles of the past and reached out to work with 
Republicans and make mainstream nominations, Senate Republicans 
continued their tactics of delay.
  For Senate Republicans to claim that ``only 13 [sic] judges were 
confirmed during President Obama's first year'' because of ``decisions 
made by the Senate Democratic leadership'' and that it was ``the choice 
of Democrats'' and ``not because of anything the Republican minority 
could do'' is ludicrous. Senate Democrats had cleared for confirmation 
the other 10 judicial nominees stalled by Republicans in 2009. Their 
assertion ignores the facts and the truth. Just as they cannot escape 
responsibility for their unwillingness to move forward with the 21 
judicial nominees ready for a final up-or down vote now before the end 
of this year, they cannot escape responsibility for what they did in 
2009.
  Senate Republicans choose to offer weak excuses and blame everyone 
but themselves for the delays and obstruction in which they have 
excelled. Their sense of being justified by some view of tit-for-tat is 
distorted and should be beside the point while vacancies remain so high 
that the American people and our courts are overburdened. The way 
Senate Democrats helped reduce vacancies was not by limiting 
confirmations to one nominee per week, as Senate Republicans have. In 
September 2008, with Democrats in the majority, the Senate confirmed 10 
of President Bush's nominees in a single day, all by voice vote. There 
were 10 consensus nominees pending on the Senate floor, and we 
confirmed all of them in minutes. Likewise, in 2002, Senate Democrats 
joined in confirming 18 of President Bush's nominees in a single day, 
again by voice vote. I wish Senate Republicans would duplicate that 
precedent and help clear the logjam of judicial nominees dating back to 
March who are still awaiting up-or-down votes.
  While I am pleased that we will confirm Judge Shipp today, I wish 
that Senate Republicans would help us confirm the 20 additional 
judicial nominees who can be confirmed right now. Then we could make 
real progress in giving our courts the judges they need to provide 
justice for the American people, just as we did in 1992, 2004 and 2008.
  After today's vote, I hope Senate Republicans will reconsider their 
ill-conceived partisan strategy and work with us to meet the needs of 
the American people. With more than 75 judicial vacancies still 
burdening the American people and our Federal courts, there is no 
justification for not proceeding to confirm the judicial nominees 
reported with bipartisan support by the Judiciary Committee this year.
  Each day that Senate Republicans refuse because of their political 
agenda to confirm these qualified judicial nominees who have been 
reviewed and voted on by the Judiciary Committee is another day that a 
judge could have been working to administer justice. Every week lost is 
another in which injured plaintiffs are having to wait to recover the 
costs of medical expenses, lost wages, or other damages from 
wrongdoing. Every month is another drag on the economy as small 
business owners have to wait to have their contract disputes resolved. 
Hardworking and hard-pressed Americans should not have to wait years to 
have their cases decided. Just as it is with the economy and with jobs, 
the American people do not want to hear excuses about why Republicans 
in Congress will not help them. So let us do more to help the American 
people.

[[Page S5248]]

                               Exhibit 1

                 [From theatlantic.com, July 16, 2012]

   William Kayatta and the Needless Destruction of the Thurmond Rule

                           (By Andrew Cohen)


Why do Republican leaders still play along with an informal Senate rule 
  that prevents up-or-down votes on even those judges who have strong 
                          Republican support?

       Meet William Kayatta, another one of America's earnest, 
     capable judges-in-waiting. Widely respected in his home state 
     of Maine, nominated by President Obama in January to fill a 
     vacancy on the 1st U.S. Circuit Court of Appeals, eagerly 
     endorsed by both of Maine's Republican senators, passed for 
     confirmation to the Senate floor by an easy voice vote in the 
     Senate Judiciary Committee, Kayatta's nomination instead has 
     become yet another victim of the Senate GOP's suicidal 
     tendencies.
       The litigants of the 1st Circuit need Kayatta. There are no 
     serious arguments against him. Yet the Republican leadership 
     in the Senate has blocked a vote on the merits of his 
     nomination in obedience to the so-called ``Thurmond Rule,'' 
     an informal practice as self-destructive as was its namesake. 
     The Thurmond Rule is typically invoked by the opposition 
     party in a presidential election year to preclude substantive 
     votes on federal judicial appointments within six months of 
     Election Day. It is the Senate's version of a sit-down 
     strike.
       In April, just after the Judiciary Committee favorably 
     passed along Kayatta's nomination to the Senate floor for 
     confirmation, Maine's junior senator, Susan Collins, had 
     wonderful things to say about the nominee:
       Bill is an attorney of exceptional intelligence, extensive 
     experience, and demonstrated integrity, who is very highly 
     respected in the Maine legal community. Bill's impressive 
     background makes him eminently qualified for a seat on the 
     First Circuit. His thirty-plus years of real world litigation 
     experience would bring a much-needed perspective to the 
     court. Maine has a long proud history of supplying superb 
     jurists to the federal bench. I know that, if confirmed, Mr. 
     Kayatta will continue in that tradition. I urge the full 
     Senate to approve his nomination as soon as possible.
       And how did her fellow Republicans respond to her request? 
     They blew her off. There has been no vote on Kayatta's 
     nomination and none is scheduled. Instead, last month, Sen. 
     Mitch McConnell, the Senate Minority Leader, invoked the 
     ``Thurmond rule'' to block floor consideration of 
     appointment--as well as up-or-down votes on the rest of 
     President Obama's federal appellate nominees (This in turn, 
     initially prompted Sen. Collins to blame the Obama 
     Administration for going too slow in nominating Kayatta in 
     the first place.)
       In theory, the Thurmond Rule is something official 
     Washington defends as the price of divided government. In 
     reality, it's another outrageous example of how the Senate 
     has re-written the Constitution by filibuster. In practice, 
     in the Kayatta case and many more, the Thurmond rule is the 
     antithesis of good governance. Your Senate today perpetuates 
     a frivolous rule which, for the most cynical political 
     reasons, blocks qualified people from serving their nation. 
     It's not misfeasance. It's malfeasance.
       Just because Strom Thurmond was willing to jump the Senate 
     off the bridge doesn't mean that today's Senate Republican 
     leaders had to do likewise.
       In a more prudent and practical era in Senate history, 
     nominees like Kayatta would have been confirmed in days. 
     Fifty years ago, for example, when another bright Democratic 
     appointee with strong Republican support came to the Senate 
     seeking a judgeship, the Judiciary Committee took all of 11 
     minutes before it endorsed him. Byron ``Whizzer'' White then 
     served the next 31 years as an associate justice of the 
     United States Supreme Court. That's wholly unthinkable 
     today--even with lower federal court nominees.
       Now even slam-dunk candidates like Kayatta linger in the 
     wings waiting for Senate ``consent'' long after the body 
     already has definitively ``advised'' the executive branch of 
     how great it thinks the nominee would be as a judge. Can you 
     imagine the uproar if the Senate ever used its filibuster 
     power to block the deployment of troops already endorsed by 
     the Armed Services Committee? Now please tell me the material 
     difference here. Surely, the judiciary needs judges as much 
     as the army needs soldiers.
       There are currently 76 judicial vacancies around the 
     country. There are 31 districts and circuits designated as 
     ``judicial emergencies'' because vacancies there have 
     lingered so long. In the 10th Circuit, what's happening to 
     Kayatta is happening to Robert Bacharach, who has the support 
     of Oklahoma's two Republican senators. The Senate also is 
     blocking Richard Taranto from a Federal Circuit spot even 
     though he breezed through the Judiciary Committee and has 
     been endorsed by Robert Bork and Paul Clement. The same goes 
     for Patty Shwartz in the 3rd Circuit.
       This is unacceptable on every level. When we talk about 
     ``false equivalence'' in modern politics the business of 
     these judges should be the lede. These nominations require no 
     great policy choices on the part of Congress. They don't come 
     with thousands of pages of ambiguous legalese disguised as 
     the language of a federal statute. There is no room for spin. 
     These nominees are either qualified, or they aren't, and when 
     they sail out of the Judiciary Committee with voice votes no 
     one can plausibly say they aren't qualified.
       And yet here we are. It would be convenient to blame Strom 
     Thurmond, one of the most divisive politicians of the 20th 
     century, for one of the Senate's most divisive rules. But 
     Thurmond is long gone. And there was never anything about his 
     rule that demanded it be followed, session after session, 
     under both Democratic and Republican control. Just because 
     Strom Thurmond was willing to jump the Senate off the bridge, 
     in other words, doesn't mean that today's Senate Republican 
     leaders had to do likewise. But they have.
       America has trouble enough today without a senseless Senate 
     rule that blocks highly skilled, highly competent public 
     servants from joining government. The nation's litigants in 
     federal court, burdened by judicial vacancies, already are 
     waiting long enough to have their corporate disputes decided. 
     This isn't gridlock. This is destruction. ``I think it's 
     stupid'' to block good judges from confirmation, Sen. Tom 
     Coburn said earlier this year. For once, he is right. And 
     Sen. Collins? Even she's come around. ``I have urged my 
     colleagues on both sides of the aisle to give Bill the direct 
     vote by the full Senate that he deserves,'' she said late 
     last month. Amen to that.
                                  ____


              [From the Los Angeles Times, July 12, 2012]

                      Reject the ``Thurmond Rule''


  Senate Minority Leader Mitch McConnell invokes the legacy of Strom 
Thurmond to hold up judicial confirmations--It's bad for judges and bad 
                              for justice

       The late Strom Thurmond is best known for his 48 years in 
     the U.S. Senate representing South Carolina, his 
     segregationist candidacy for the presidency in 1948 and the 
     fact that even though he was a longtime opponent of racial 
     equality, he fathered a child with a black teenage 
     housekeeper. But Thurmond also lent his name to the so-called 
     Thurmond Rule, according to which Senate action on judicial 
     confirmations is supposed to stop several months before a 
     presidential election.
       The rule--actually a custom that sometimes has been honored 
     in the breach--goes back to 1968, when Thurmond and other 
     Republicans held up action on President Johnson's nomination 
     of Abe Fortas to be chief justice of the United States. 
     Fortas withdrew in the face of a filibuster, and President 
     Nixon, the Republican victor in the 1968 election, was able 
     to choose a successor to the retiring Earl Warren. In 
     subsequent years, senators of both parties have cited the 
     Thurmond/Fortas episode as a precedent for not acting on 
     judicial nominations close to an election.
       Even in the case of a Supreme Court appointment, the 
     Thurmond Rule violates the spirit of the Constitution, which 
     doesn't distinguish between nominations made earlier or later 
     in a president's term. It is less defensible still in 
     connection with nominations to lower courts. Yet Senate 
     Minority Leader Mitch McConnell (R-Ky.) told colleagues last 
     month that he was immediately invoking the rule to end 
     nominations to the U.S. Court of Appeals, and would block 
     confirmation votes on nominees to federal district courts 
     after September.
       Such delays are a disservice to the nominees and to an 
     overburdened federal judiciary. At present there are 12 
     vacancies on federal appeals courts, 63 on district courts 
     and two on the U.S. Court of International Trade. The Obama 
     administration, although it has been slow to fill vacancies, 
     currently is proposing seven candidates for the appeals court 
     and 28 for the district courts. The Senate should hold up-or-
     down votes on these nominations and any others put forward in 
     the near future.
       Apart from the Thurmond Rule, the timely confirmation of 
     judicial nominees has long been frustrated by petty 
     partisanship. Democrats and Republicans share the blame. The 
     most recent logjam was broken in March when Republicans 
     agreed to timely votes on 14 nominations.
       Obviously Republicans hope that Barack Obama is a lame-duck 
     president, but even lame-ducks are entitled to expeditious 
     consideration of their nominations. And the administration of 
     justice shouldn't be held hostage to partisan politics even 
     in an election year.

  Mr. President, I see the distinguished senior Senator from New Jersey 
on the floor. If he seeks the floor, I will yield to him; otherwise, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LAUTENBERG. 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. LAUTENBERG. Mr. President, I thank the chairman of the Judiciary 
Committee who always has things of relevance to talk to us about and he 
has done that again today and we thank the chairman.