[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.
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