[Congressional Record Volume 158, Number 161 (Thursday, December 13, 2012)]
[Senate]
[Pages S8011-S8016]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 ON THE CONFIRMATIONS OF LORNA SCHOFIELD TO THE UNITED STATES DISTRICT 
 COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND JUDGE FRANK GERACI TO 
 THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

  Mr. LEAHY. Madam President, today, the Senate will finally be allowed 
to vote on the nominations of Judge Frank Geraci to fill a judicial 
emergency vacancy on the U.S. District Court for the Western District 
of New York and Lorna Schofield to fill a vacancy on the U.S. District 
Court for the Southern District of New York. Both of these nominees 
were voted out of the Judiciary Committee virtually unanimously before 
the August recess and should have been confirmed months ago.
  By now, no one should be surprised that it has taken so long to have 
a simple up-or-down vote on two consensus nominees, even though one 
would fill a judicial emergency vacancy and the other would fill a 
vacancy on one of our Nation's busiest courts.
  There is an editorial in today's New York Times that explains the 
slow pace of confirmations, and I ask unanimous consent to have the 
editorial printed in the Record after my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. The editorial notes:

       A significant reason for the slowdown has been the partisan 
     opposition of Republicans to appeals court and even to trial 
     court nominations, even though almost none of the nominees 
     have backgrounds that raise ideological issues. The 
     Republicans have time and again used the filibuster, the 
     threat of filibuster, holds on nominations and other tactics 
     to confirmations.

  This is the new practice that Senate Republicans adopted when 
President

[[Page S8012]]

Obama was elected. They delay and obstruct judicial nominations for no 
good reason. There are currently 13 circuit and district court nominees 
still pending on the Senate Executive Calendar who were reported before 
the August recess and should all have been confirmed before the recess. 
Most are consensus nominees. All have the support of their home State 
Senators, including their home State Republican Senators.
  The Federal Bar Association wrote a letter earlier this week to 
Senate leaders that said:

       [W]e write to urge you to promptly schedule floor votes on 
     pending, noncontroversial United States circuit court 
     nominees and district court nominees who have cleared the 
     Judiciary Committee with strong bipartisan support and who 
     await a final up-or-down vote. The high number of existing 
     judicial vacancies--81, of which 35 constitute judicial 
     emergencies--underscores the need for prompt attention by the 
     Senate in fulfilling its Constitutional responsibilities.

  They are absolutely right. I ask unanimous consent that a copy of 
that letter be printed in the Record at the conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. LEAHY. We have a constitutional responsibility to advise and 
consent, and we must also help our courts uphold their constitutional 
responsibility to provide speedy justice.
  The judges whose confirmations Senate Republicans are delaying are 
not nominees they will oppose on the merits. They are by and large 
consensus nominees.
  Senate Republicans' obstruction on these important nominations is 
especially damaging at the end of the year. Starting in 2009, Senate 
Republicans broke from longstanding tradition and prevented votes on 
eight judicial nominees as the Senate adjourned at the end of the year. 
It took until September 2010 for the last of those nominees to have an 
up-or-down vote. Senate Republicans did the same thing--their new 
version of a pocket filibuster--to 19 nominees in both 2010 and 2011. 
This forces the Senate to waste time in the new year working on 
nominations that should have been confirmed the year before. This year 
it took until May to confirm the 19 left from last year. That is why we 
have confirmed only 23 nominees reported by the Judiciary Committee 
this year, and that is why we face this current backlog of 18 nominees 
and an additional 4 who had a hearing earlier this week and could also 
be considered and confirmed before adjournment.
  One of the nominations Senate Republicans are holding up is that of 
Judge Robert Bacharach to the Tenth Circuit, whom they filibustered 
earlier this year. Senator Coburn, one of his home State Senators, 
said: ``He has no opposition in the Senate . . .. There's no reason why 
he shouldn't be confirmed.'' His words apply to almost all the judicial 
nominees being delayed.
  When George W. Bush was President, Democrats cooperated in moving 
judicial nominees quickly through the committee and to a confirmation 
vote at the end of the year. I did so whether I was chairman or the 
ranking member. I have said that I am willing to do the same for the 
nominees who had their hearing yesterday and expedite committee 
consideration of their nominations so that they can be voted on this 
year. By way of example, in 2008 we confirmed five of President Bush's 
nominees just 3 days after their hearing. We have often been able to do 
this at the end of a Congress, and this year should be no exception--
especially given the high level of judicial vacancies plaguing our 
Federal courts.
  Yesterday, the Judiciary Committee had a hearing for four more of 
President Obama's outstanding, consensus judicial nominees. Senators 
from both sides of the aisle appeared to endorse nominees to vacancies 
in their home States. Representative Paul Ryan, the Republican 
candidate for Vice President, appeared to testify in favor of a nominee 
to fill a vacancy on the District Court for the District of Columbia. 
So did Representative Eleanor Holmes Norton. After Congressman Ryan's 
endorsement, the committee's ranking Republican member quipped that 
after hearing Congressman Ryan ``we could just vote you out right 
away.'' He is right. The Senate should confirm her and the others 
without delay. That is how we used to proceed as we approached the end 
of a Congress. We used to expedite confirmations of consensus nominees. 
Now Senate Republicans insist on stalling proceedings and slowing 
things down and carrying large numbers of them over into the next year 
and needlessly delaying them for months and months.
  I remind Senate Republicans that the Senate confirmed an Alabama 
nominee to the district court within 2 days of his vote by the 
Judiciary Committee just a couple of years ago. There have literally 
been hundreds of judicial confirmations within 14 days of our Judiciary 
Committee hearing, including more than 600 confirmed since World War II 
within just 1 week of their hearings. In contrast, obstruction by 
Senate Republicans has caused President Obama's district court nominees 
to wait an average of 102 days for a Senate vote after being reported 
by the Judiciary Committee. This destructive practice of delaying for 
no good reason must end.

  From 1980 until this year, when a lameduck session followed a 
Presidential election, every single judicial nominee reported with 
bipartisan Judiciary Committee support has been confirmed. According to 
the nonpartisan Congressional Research Service, no consensus nominee 
reported prior to the August recess has ever been denied a vote--before 
now. That is something Senate Democrats have not done in any lameduck 
session, whether after a Presidential or midterm election.
  Senate Democrats allowed votes on 20 of President George W. Bush's 
judicial nominees, inc1uding 3 circuit court nominees, in the lameduck 
session after the elections in 2002. I remember, I was the chairman of 
the Judiciary Committee who moved forward with those votes, including 
of a very controversial circuit court nominee. The Senate proceeded to 
confirm judicial nominees in lameduck sessions after the elections in 
2004 and 2006. In 2006 that included confirming another circuit court 
nominee. We proceeded to confirm 19 judicial nominees in the lameduck 
session after the elections in 2010, including 5 circuit court 
nominees. The reason that I am not listing confirmations for the 
lameduck session at the end of 2008 is because that year we had 
proceeded to confirm the last 10 judicial nominees approved by the 
Judiciary Committee in September and long before the lameduck session.
  That is our history and recent precedent. Those across the aisle who 
contend that judicial confirmations votes during lameduck sessions do 
not take place are wrong. It is past time for votes on the 4 circuit 
nominees and the other 13 district court nominees still pending on the 
Executive Calendar. We should expedite confirmations for the four 
consensus nominees who had their hearing yesterday. Let's do our jobs 
so that all Americans can have access to justice.
  Lorna Schofield is nominated to serve on the U.S. District Court for 
the Southern District of New York. She has served as a Federal 
prosecutor and since 1988 has worked at the law firm Debevoise & 
Plimpton LLP, where she was a partner for two decades and where she 
currently serves as of counsel. She serves as chair of the litigation 
section of the ABA, where she has actively promoted pro bono 
activities, including programs for children's rights and litigation 
assistance for military personnel. The ABA Standing Committee on the 
Federal Judiciary unanimously gave her its highest possible rating of 
``well qualified.''
  Judge Frank Geraci is nominated to fill a judicial emergency vacancy 
on the U.S. District Court for the Western District of New York. Since 
1999 Judge Geraci has served as a Monroe County Court judge, and since 
2005 he has also served as an acting supreme court justice on the New 
York State trial court. Judge Geraci has presided over 555 civil 
proceedings that have gone to judgment. He has also served as both a 
State and Federal prosecutor.
  Both of these nominations have the support of both their home State 
Senators. They were voted on by the Judiciary Committee 5 months ago 
and stalled unnecessarily since then for no good reason.
  If we are willing to follow Senate precedent and to protect 
Americans' access to justice, we should vote on the nominees being 
delayed. Many are nominees whose nominations have been pending for many 
months, and many of

[[Page S8013]]

them would fill judicial emergency vacancies. I see no reason why the 
Senate should not confirm them before the end of the year. We should 
allow these nominees to get to work on behalf of the American people.

                               Exhibit 1

                       [From the New York Times]

                    Judges Needed for Federal Courts

       There has been a severe breakdown in the process for 
     appointing federal judges. At the start of the Reagan years, 
     it took, on average, a month for candidates for appellate and 
     trial courts to go from nomination to confirmation. In the 
     first Obama term, it has taken, on average, more than seven 
     months.
       Seventy-seven judgeships, 9 percent of the federal bench 
     (not counting the Supreme Court), are vacant; 19 more seats 
     are expected to open up soon. The lack of judges is more 
     acute if one considers the growing caseload. The Judicial 
     Conference, the courts' policy-making body, has recommended 
     expanding the bench by 88 additional judgeships.
       President Obama must make fully staffing the federal courts 
     an important part of his second-term agenda--starting with 
     the immediate Senate confirmation of the 18 nominees approved 
     by the Senate Judiciary Committee.
       A significant reason for the slowdown has been the partisan 
     opposition of Republicans to appeals court and even to trial 
     court nominations, even though almost none of the nominees 
     have backgrounds that raise ideological issues. The 
     Republicans have time and again used the filibuster, the 
     threat of filibuster, holds on nominations and other tactics 
     to block confirmations.
       The Democratic majority, led by Senator Harry Reid, can 
     speed up the process by limiting use of the filibuster. He 
     can do so by pushing for a simple majority vote at the start 
     of the January session to alter Senate rules so that every 
     judicial and executive-branch nominee is assured an up-or-
     down vote within 90 days. Without that change, many judicial 
     nominations will founder.
       Even if that rule change is made, the process of 
     identifying, vetting and approving judicial candidates will 
     need greater attention. Senators, who by custom recommend to 
     the president candidates for federal trial judgeships in 
     their states, should put in place more effective steps for 
     making timely recommendations (like setting up merit 
     selection committees) and making a choice within a reasonable 
     period, like within 60 days of an opening.
       The White House and the Justice Department, meanwhile, need 
     to commit more resources to keeping up with those 
     recommendations, to verify and nominate candidates for 
     confirmation within, say, 60 days of receiving names. And the 
     administration must be similarly prompt in identifying and 
     nominating appeals-court candidates.
       In a critically important court like the United States 
     Court of Appeals for the District of Columbia Circuit, three 
     unfilled vacancies and a fourth expected this winter, out of 
     11 judgeships, hobble the court's ability to make expeditious 
     rulings in significant cases about regulation of the 
     environment, financial markets and other social and economic 
     matters. Many statutes channel review of such cases to the 
     federal courts in the District of Columbia for their 
     expertise about administrative law and for geographic 
     convenience.
       The circuit court is a stark example of the broken 
     appointment process and the harm caused by the Senate's 
     inability to do its job.
       Mr. Obama and the Senate should also look to broaden the 
     diversity of the judges they appoint. In his first term, Mr. 
     Obama commendably named a higher share of women (44 percent) 
     and a higher share of minorities (37 percent) than any 
     president before him.
       Most of the appointees were already judges, prosecutors or 
     private lawyers, with few public defenders or public-interest 
     lawyers from outside government. Expanding the breadth of 
     experience would help ensure that federal courts have jurists 
     who have some real-life understanding of the myriad issues 
     that come before them.
       The Constitution requires the president, with the Senate's 
     advice and consent, to fill federal judgeships. That duty has 
     been terribly neglected and needs to be an absolute priority 
     in the coming year.
                                  ____


                               Exhibit 2

                                           Federal Bar Association
                                 Arlington, VA, December 11, 2012.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     Washington, DC
       Dear Majority Leader Reid and Minority Leader McConnell: As 
     the lame duck session continues, we write to urge you to 
     promptly schedule floor votes on pending, noncontroversial 
     United States circuit court nominees and district court 
     nominees who have cleared the Judiciary Committee with strong 
     bipartisan support and who await a final up-or-down vote. The 
     high number of existing judicial vacancies--81, of which 35 
     constitute judicial emergencies--underscores the need for 
     prompt attention by the Senate in fulfilling its 
     Constitutional responsibilities.
       We also strongly encourage cooperation among Senators to 
     avoid undue procedural delays that slow the judicial 
     confirmation process and compound the vacancy crisis.
       Thank you for your past efforts and for your consideration 
     of our views on this important issue.
           Sincerely,
     Karen Silberman,
       Executive Director.
     West Allen,
       Chair, Government Relations Committee.

  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Madam President, I rise in support of each of these 
judges, both fine citizens of New York. First, I will speak about Judge 
Geraci.
  I rise in strong support of an outstanding nominee for the Federal 
bench in the Western District of New York, Judge Frank Paul Geraci, 
Jr., to the Federal district court in the Western District of our 
State, which serves two large metropolitan areas, Rochester and 
Buffalo. These cities are large, vibrant centers of the commercial and 
legal communities of our State. In fact, each metropolitan area has a 
population of over 1 million residents.
  Judge Geraci has been an important and respected part of this 
community for his entire life. Born in Rochester, he graduated from 
McQuaid Jesuit High School. He left New York long enough to earn both 
his undergraduate and law degrees from the University of Dayton in 
Ohio, staying within the Jesuit fold, I might add, by attending that 
institution. He returned to Rochester and immediately leapt into public 
service, working for 5 years in the Monroe County District Attorney's 
Office and rising to become chief of the Special Investigations Bureau. 
Judge Geraci then contributed another 4 years of distinguished service 
to Rochester as an assistant U.S. attorney in the Western District. In 
1988, he left and founded his own law firm.
  I was particularly impressed, as I got to know Judge Geraci, by the 
fact that while he was in private practice, he also served as a 
mediator and expert in alternative dispute resolution. I have come to 
believe, as a Senator from a State with among the heaviest caseloads in 
the country, that an important part of managing a docket is getting 
parties to talk to each other before they are staring at an imminent 
trial date.
  It is likely that few nominees know this truth better than Judge 
Geraci. Over and above his dispute resolution experience, he has been a 
judge in the city of Rochester, in Monroe County, and on the bench of 
the New York State Supreme Court for 20 years.
  I have served on the Senate Judiciary Committee for my entire time in 
the Senate--since 1998--and I served on the House Judiciary Committee 
for 18 years before that.
  Rarely, if ever, have I encountered a candidate who so perfectly 
combines judicial experience, judicious temperament, and complete 
dedication to his community as Judge Geraci.
  Taken together, the breadth and depth of his professional experience 
in both the State and Federal system, civil and criminal, make him a 
perfect fit for the Federal bench in Rochester. But Judge Geraci's 
sterling qualifications do not stop there. His dedication to his 
community, it is no exaggeration to say, is legendary. When you mention 
his name, people say: Of course, what a great and obvious choice.
  Monroe County is small enough that members of the bar all know him 
but large enough that many lawyers, like Judge Geraci, do have the 
opportunity to have varied and deep experience. Judge Geraci has worked 
for the bar and bench on issues such as criminal case management and 
jury diversification. He has served on boards and governing bodies of 
diocese Catholic schools. He even has conducted court tours, coached 
girls' basketball, and served as the president of the local Little 
League.
  Judge Geraci has earned the admiration of the people of western New 
York and, in turn, they deserve no less than an accomplished lawyer of 
his intelligence and magnanimity to serve on the Federal bench. I thank 
the Presiding Officer for the opportunity to discuss such a fine man.
  I will conclude with one final observation. The seat for which Judge 
Geraci is about to be confirmed has been vacant since March of 2009, 
making it a judicial emergency vacancy. His is one of 13 remaining 
judicial

[[Page S8014]]

nominations on the calendars, 11 of whom have received bipartisan 
support in the Judiciary Committee. I hope we can continue to move 
these other nominees.
  I thank the Chair.
  (Mr. Franken assumed the chair.)
  Mr. SCHUMER. Now, Mr. President, I have a second nominee to speak 
about. We are voting at 2:15, as I understand it, so there is plenty of 
time to wax on the fine qualifications of both of these new additions 
to the bench.
  I am extremely pleased to rise today in enthusiastic support of the 
nomination of Lorna Schofield to the Federal bench in the Southern 
District of New York at the other end of our State.
  I have had the privilege to recommend a number of truly outstanding 
nominees to become judges in New York--in fact, 15 nominees--and Ms. 
Schofield is among the best. She is the embodiment of three qualities I 
search for in judicial nominee candidates: excellence--they should be 
legally excellent, no hacks; moderation--they should not be too far 
right or too far left because then they want to turn the law to their 
own purpose rather than interpret it; and diversity--I try to bring 
diversity in every way to the bench in terms of race, gender, sexual 
orientation, and religion because that is for the good of America.
  First, her excellence. Her professional resume puts her right at top 
of her field. She went to Indiana University for her undergraduate 
studies and then came to New York to study law at one of the Nation's 
best law schools, NYU Law School, where she graduated as one of the top 
15 students in her class. She went on to serve the public as an 
assistant U.S. attorney in the Southern District of New York and then 
to join a top law firm, Debevoise & Plimpton. She has been there for 25 
years.
  Ms. Schofield has a wealth of practical experience, having 
represented and advised all manner of clients in the ``real world'' of 
New York City--businesses large and small and individuals. As a true 
generalist, she has tried a wide variety of cases, and her professional 
accomplishments and accolades are numerous, including serving as the 
head of the litigation section--the largest section--of the American 
Bar Association. She was, in fact, a pioneer in this position as the 
first Asian American to hold this prestigious post.
  Second, on the point of moderation, when I met Ms. Schofield, I was 
struck by the fact that she has one singular agenda: preservation of 
the rule of law. Indeed, her professional work has been devoted to the 
general improvement of the practice of law and to zealously 
representing her clients in the best and most ethical traditions of the 
profession. Evidence of her moderation can be found in the support she 
has across the political spectrum. Both Democrats and Republicans have 
called me to tell me what a great judge she would make. She has done 
everything from teaching trial advocacy to performing pro bono work for 
the Women's Prison Association.
  Finally, diversity. I like to have diversity on the bench. Ms. 
Schofield's personal background and life experience will help broaden 
the perspective of the Federal bench. Most notably, if confirmed, she 
will become the first Filipino judge, man or woman, to sit on the 
Federal bench. So the great nation of the Philippines, which 
contributes so many immigrants and then citizens to our country, can be 
very proud that Ms. Schofield has risen to this high post once she is 
confirmed.
  In conclusion, I believe she will make a terrific judge, and I look 
forward to her confirmation today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, can you tell me how much time is remaining 
on this side?
  The PRESIDING OFFICER. Fifteen minutes.
  Mr. CORNYN. I thank the Presiding Officer.


                            THE FISCAL CLIFF

  Mr. CORNYN. Mr. President, it has become disturbingly clear that 
President Obama does not mind whether or not we drive off the fiscal 
cliff. Just last week his own Treasury Secretary, Secretary Geithner, 
said the White House was ``absolutely'' prepared to go off the cliff 
unless Republicans agree to raise marginal tax rates. In other words, 
during a period of high unemployment--the highest since the Great 
Depression--the President is willing to risk another recession in order 
to increase taxes on small businesses and the people we depend upon to 
create jobs.
  How much revenue will the President's tax hike generate? Well, by 
raising the top two rates, it would produce only about $68 billion in 
2013. I say ``only'' because in relationship to the gap between how 
much money the Federal Government is spending and how much money this 
would generate, it is relatively small. If we factor in the various 
stimulus tax expenditures the President wants to extend, the net 
revenue falls below $55 billion.
  Again, President Obama is so desperate to secure this revenue that he 
is willing to risk another recession. Meanwhile, he is asking for more 
stimulus spending, along with the authority to raise the debt ceiling 
whenever he chooses. His idea of compromise appears to me to be pretty 
simple: Republicans should give him everything he wants in return for a 
meaningless promise that the White House will somehow, someday get 
around to reforming and preserving Social Security and Medicare. I ask, 
is that really a balanced approach? Well, I think the answer is self-
evident. Of course it is not.
  Until the President supports real reforms to preserve and protect 
Medicare and Social Security--something he himself has acknowledged is 
on an unsustainable fiscal path--until he is willing to come up with 
real ways to rein in Federal spending, where right now we are spending 
46 cents out of every $1 in borrowed money, the Federal Government is, 
until he comes up with a plan on both of those issues--reining in 
spending and reforming Medicare and Social Security to preserve them 
for future generations--he is not offering a serious plan for long-term 
deficit reduction.
  After all, we have a $1.1 trillion annual deficit. I know we have 
become a little bit numb to the numbers we have been using. We used to 
talk about $1 million being a lot of money. Then there was $1 billion. 
Now there is $1 trillion. Someone said, tongue in cheek: Don't tell the 
Federal Government what comes after a trillion because we will end up 
spending it.
  If you have a deficit of $1.1 trillion a year, as we did in 2012, 
then raising taxes by $68 billion or $55 billion does not get you very 
far. In fact, it would fund the Federal Government for about a week--1 
week. That tax increase would also damage economic growth, upon which 
we depend in order to create jobs, to bring down the unemployment rate, 
and to put the 20 million-plus people who are either unemployed or 
underemployed back to work.
  Here are some numbers the President does not talk about:
  On top of our $16 trillion national debt, we have more than $100 
trillion in unfunded liabilities. Those are promises we have made to 
future generations that Medicare and Social Security will be there for 
them, even though there is not money to pay for those liabilities.
  The Federal Government is already spending about $220 billion a year 
on interest payments alone. Under President Obama's latest budget 
proposal, the annual cost of servicing our debt would reach $804 
billion in 2022--an amount greater than total U.S. defense spending in 
2012. We all know that interest rates are also at historic lows because 
of the action of the Federal Reserve. If they were to return to their 
historic norms--the 4- and 5-percent range--you can easily see how our 
debt would spin out of control and there would be very little room to 
spend money either on safety-net programs or on national security.
  One more point. The President often says his tax increases would 
merely restore the top tax rates that prevailed when Bill Clinton was 
in the White House. But that is demonstrably false. Thanks to new taxes 
under ObamaCare, including the new 3.8-percent surtax on investment 
income, the top rates would be significantly higher than they were 
under the Clinton administration. And, of course, you are not just 
talking about Federal taxes. People all around the country have to pay 
State, local, and Federal taxes, many of whom would end up paying the 
majority of their paycheck in taxes.

[[Page S8015]]

  Here is the reality: Tax cuts did not create our fiscal problems, so 
it is axiomatic that tax increases will not solve our fiscal problems 
alone. We can and we should reform our Tax Code so that it helps 
promote stronger growth and higher revenues. The President's own 
bipartisan fiscal commission, Simpson-Bowles, made a proposal to do 
just that when it comes to corporate taxes. But ultimately the only way 
to prevent fiscal Armageddon is through major reforms of Medicare and 
Social Security and reining in Federal spending.
  As we debate various strategies for avoiding the fiscal cliff, it is 
important for us to remember that our actions--or inactions--will have 
real-world consequences for millions of Americans. Many folks here in 
Washington seem too casual about the possibility of a massive tax hike 
and what that would do to our economy. Indeed, some of my Democratic 
colleagues apparently think they could quickly undo all of the tax 
increases that would fall on middle-class workers. In reality, it would 
not be that simple. Just ask any small business owner trying to meet 
payroll and plan for the future.
  Everyone knows, as I said to start with, we are experiencing the 
weakest economic recovery since World War II and the longest period of 
high unemployment since the Great Depression. If you ask me, this is 
the worst possible moment for a huge tax hike--something the President 
himself acknowledged when he agreed to extend the so-called Bush tax 
cuts in 2010 when the economy was growing slower than it is today.
  Too many of my colleagues across the aisle seem to be comfortable 
with threatening the possibility of a recession by driving off the 
fiscal cliff only to extract more revenue for the Federal Government--
by the way, not revenue necessarily used to pay down the debt or to 
sustain and preserve our programs such as Medicare and Medicaid, but to 
expand spending even further. I hope cooler heads will prevail.
  One final thought. When I talk to people all across the country, who 
tell me they are watching us here in Washington to see what we are 
going to do, it is the uncertainty that is freezing them into place and 
preventing them from starting new businesses, growing existing 
businesses, or making investments that will help grow the economy.
  The saddest part about this is how manufactured this crisis really 
is. All of these decisions were kicked off until after the election 
into this so-called lameduck session, and this crisis, this fiscal 
cliff crisis, was manufactured, as I say. We should have tackled these 
challenges a long time ago to give American families and American 
businesses the certainty they need in order to plan for the future. 
Instead, we have created a highly volatile situation in which everyone 
is preparing for the worst. It is hurting investment. It is hurting job 
creation. Above all, it is hurting millions of Americans who are still 
unemployed or working part time. And it is completely and totally 
unnecessary.
  Whatever the outcome of these negotiations, I hope we will all 
resolve to never let this happen again.
  Mr. President, I yield the floor.
  Mr. DURBIN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. There are 7 minutes, 20 seconds remaining.
  Mr. DURBIN. Mr. President, I would like to respond very briefly to my 
colleagues from Texas. The fiscal crisis was not manufactured, it was 
enacted--enacted into law, a law passed with the support of both 
political parties in the hopes that we would never, ever reach this 
day. We can still avoid it, and we should. I hope cooler heads will 
prevail and we will reach some bipartisan agreement because I think all 
of us agree it would be a negative impact on our economy if we, in 
fact, go over the cliff. I sincerely hope there will be a good-faith 
effort on both sides. But this fiscal cliff was created by law passed 
by Democratic and Republican leaders and sent to the President.
  So this is clearly something we envisioned as the last straw. Let's 
hope it is one that we will avoid.
  Mr. CORNYN. I am a little confused. I do not know whether the 
distinguished majority whip is talking about the expiring tax 
provisions on December 31 as being manufactured or a bipartisan 
agreement or--what part of this did we have a chance to vote on and 
create in a bipartisan fashion?
  Mr. DURBIN. It was a bipartisan vote on the Budget Control Act, which 
spelled out how we would reach this terrible moment if the 
supercommittee failed. I sincerely hope we never reach this moment, 
that there is a good-faith effort by both parties to avoid it.
  Mr. CORNYN. If the Senator would yield for one last question, my 
understanding is that the fiscal cliff is going to be caused by the 
expiring provisions of various tax provisions that have been in place 
for 12 years, the so-called Bush tax cuts that expired 2 years ago that 
were extended on a bipartisan basis in a negotiation with our friends 
across the aisle. That is what I am referring to as the fiscal cliff.
  I do understand, and the Senator is correct, we also have the second 
body blow to the economy that is going to be in combination with these 
tax increases, $1.2 trillion in cuts that, as I understand it, is the 
sequester, which is what the Senator is referring to.
  Mr. DURBIN. I would call the Senator's attention to our vote on 
August 2 when he and I both voted for the Budget Control Act. The vote 
was 74 to 26, with a substantial number of Senators from both sides of 
the aisle, that brought us to this moment in the negotiations. We all 
hoped we would never reach this moment. We can still avoid it.
  I yield the floor and yield back all remaining time.
  Mr. CORNYN. We yield back.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Lorna G. Schofield, of New York, to be 
U.S. District Judge for the Southern District of New York?
  Mr. THUNE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Hawaii (Mr. Inouye), and the Senator from New Jersey 
(Mr. Lautenberg) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from North Dakota (Mr. Hoeven), the Senator from Oklahoma (Mr. Inhofe), 
the Senator from Illinois (Mr. Kirk), the Senator from Arizona (Mr. 
McCain), the Senator from Kansas (Mr. Moran), and the Senator from 
Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 91, nays 0, as follows:

                      [Rollcall Vote No. 228 Ex.]

                                YEAS--91

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Brown (MA)
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hutchison
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     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

                             NOT VOTING--9

     Boxer
     Hoeven
     Inhofe
     Inouye
     Kirk
     Lautenberg
     McCain
     Moran
     Vitter
  The nomination was confirmed.


              Vote on Nomination of Frank Paul Geraci, Jr.

  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Frank Paul Geraci, Jr., of New York, to be 
United States District Judge for the Western District of New York?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President will

[[Page S8016]]

be immediately notified of the Senate's action.

                          ____________________