[Congressional Record Volume 158, Number 114 (Monday, July 30, 2012)]
[Senate]
[Pages S5642-S5651]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Robert E. Bacharach, of Oklahoma, to be United States Circuit 
     Judge for the 10th Circuit.
         Harry Reid, Patrick J. Leahy, Thomas R. Carper, Tom 
           Udall, Robert Menendez, Kirsten E. Gillibrand, Dianne 
           Feinstein, Kent Conrad, Christopher A. Coons, Herb 
           Kohl, Amy Klobuchar, Jack Reed, Ron Wyden, Richard J. 
           Durbin, Jeff Merkley, Richard Blumenthal, Sherrod 
           Brown.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Robert E. Bacharach, of Oklahoma, to be United States 
Circuit Judge for the Tenth Circuit, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. COBURN (when his name was called). Present.

[[Page S5651]]

  Mr. HATCH (when his name was called). Present.
  Mr. INHOFE (when his named was called). Present.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from New Hampshire (Ms. Ayotte), the Senator from South Carolina (Mr. 
DeMint), the Senator from South Carolina (Mr. Graham), the Senator from 
Illinois (Mr. Kirk), the Senator from Utah (Mr. Lee), the Senator from 
Arizona (Mr. McCain), and the Senator from Alaska (Ms. Murkowski).
  The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 56, nays 34, as follows:

                      [Rollcall Vote No. 186 Ex.]

                                YEAS--56

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--34

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Cochran
     Corker
     Cornyn
     Crapo
     Enzi
     Grassley
     Heller
     Hoeven
     Hutchison
     Isakson
     Johanns
     Johnson (WI)
     Kyl
     Lugar
     McConnell
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                        ANSWERED ``PRESENT''--3

     Coburn
     Hatch
     Inhofe

                             NOT VOTING--7

     Ayotte
     DeMint
     Graham
     Kirk
     Lee
     McCain
     Murkowski
  The PRESIDING OFFICER. On this vote, the yeas are 56, the nays are 
34, 3 Senators responded ``present.'' Three-fifths of the Senators duly 
chosen and sworn not having voted in the affirmative, the motion is 
rejected.
  Mr. COBURN. We just disallowed one of the best candidates for the 
appellate court in my 8 years since I have been in the Senate. 
Magistrate Judge Bob Bacharach is a stellar individual rated ``very 
highly qualified'' by the American Bar Association. What has happened 
is we are in the position today because of games that are being played, 
political games.
  Let me just put into the Record what is going on. There are three 
judges ahead of Bob Bacharach in line. We have had a Leahy-Thurmond 
rule for some 20 years. I have been quoted saying I think it is a 
stupid rule. But the background is that protecting the prerogative of 
the Senate is one of the most important things the majority leader can 
do.
  What we have seen happen with the lack of agreement this last holiday 
season over the moving forward of judges and their approval was the 
unconstitutional usurpation of power by the President of the United 
States in the appointment, during our pro forma sessions, of four 
individuals, one to CFPB and three to the NLRB.
  Quite frankly, if we look at what Madison wrote in Federalist 51:

       The great security against a gradual concentration of the 
     several powers in the same branch of government consists in 
     giving to those who administer each branch the necessary 
     constitutional means and personal motives to resist 
     encroachment of the others. Ambition must made to counteract 
     ambition. The interest of the man must be connected with the 
     constitutional rights of the place.

  So started the saga in January of this past year, where the reaction 
of my colleagues on my side of the aisle was to shut down, in response 
to the President's move, all circuit court confirmations.
  I stood in my caucus and fought that. I thought it was the wrong 
action then. I still think it would have been the wrong action. But I 
convinced my caucus not to go that direction. To do that, I agreed I 
would consent to the Leahy-Thurmond rule in this election cycle. But I 
hope this is the last election cycle we use the Leahy-Thurmond rule.
  Because on the other side of the constitutional issues is that a duly 
elected President does have the right to have their nominees 
considered, whether I agree with them or not. To prove this, that this 
was a stunt rather than anything other than that, and Bob Bacharach 
becomes the pawn in that, is that we had an agreement on judges. Then 
we had cloture filed on fourteen district court judges, of which there 
was no real controversy.
  All of those district court judges, after that cloture was filed on 
them and then withdrawn, have henceforth been approved. To the American 
public, the game is politics and not policy for our country. To me, it 
saddens me. It frustrates me that we are at this state because it is 
not a whole lot different than what we see in the playground at a 
kindergarten.
  The person who most has spoken in favor of the Leahy-Thurmond rule is 
the chairman of the Judiciary Committee. Yet we find this impasse 
today. So what we ought to all do, every Member of the Senate and the 
Judiciary Committee during the break after this election, is work 
together to try to resolve this so this does not happen to any other 
President and does not do damage to the Senate and the integrity of the 
Senate and the game on judges. The President gets elected, with their 
home State Senators, they make a selection. We should not use the 
filibuster, unless a judge is highly questionable or biased in their 
viewpoint.
  I regret that we are in this position. I think this was just a vote 
to delay Bob Bacharach's eventual confirmation. If President Obama wins 
the election, I fully expect Judge Bob Bacharach will be approved. If 
he does not win the election, I plan on standing and fighting for this 
judge for this same position under a Republican President because he is 
exactly what we want on a court, someone who is right down the middle 
in terms of what the law means, what the Constitution means. He has 
stellar intellectual capabilities, and he has the qualities we all 
would want, both from the right and the left, as a fair decider of the 
facts. That is what we want in judges. He will make an ideal appellate 
judge, regardless of his political affiliation.
  If we cannot get there then what that says is the partisan politics 
of today, as everybody outside Washington recognizes, is killing our 
country.

                          ____________________