[Congressional Record Volume 159, Number 23 (Wednesday, February 13, 2013)]
[Senate]
[Pages S672-S675]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF WILLIAM J. KAYATTA, JR., TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE FIRST CIRCUIT

  The PRESIDING OFFICER (Mr. Heinrich). Under the previous order, the 
Senate will proceed to executive session and consider the following 
nomination, which the clerk will report.
  The bill clerk read the nomination of William J. Kayatta, Jr., of 
Maine, to be United States Circuit Judge for the First Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes of debate equally divided and controlled in the usual form.
  The Senator from Maine.
  Ms. COLLINS. Mr. President, I am delighted to rise in strong support 
of the confirmation of William Kayatta of Maine to serve on the U.S. 
Court of Appeals for the First Circuit.
  Mr. Kayatta was originally nominated to this position more than 1 
year ago. He was approved by the Judiciary Committee on a bipartisan 
vote last April. Unfortunately, despite his exceptional qualifications, 
his nomination was stalled by election-year politics. That is finally 
behind us, and I am pleased the President renominated Mr. Kayatta in 
January.
  I wish to thank the chairman of the Judiciary Committee, my colleague 
from Vermont Senator Leahy; the ranking member Senator Grassley; and, 
indeed, all the members of the Senate Judiciary Committee for acting 
promptly and positively in favor of Mr. Kayatta's renomination.
  Let me also express my gratitude to the two leaders, Senator Reid and 
Senator McConnell, for moving his nomination so quickly to the Senate 
floor.
  Mr. Kayatta is an attorney of exceptional intelligence, extensive 
experience, and demonstrated integrity. I cannot tell you how highly 
regarded he is in Maine's legal circles. In fact, if you ask virtually 
any attorney, judge, prosecutor, law professor or anyone involved in 
the legal profession in Maine, they will tell you the President could 
not have made a better choice than Bill Kayatta. He graduated magna cum 
laude from both Amherst College and Harvard University Law School, 
where he served as a member of the Law Review.
  After graduating from law school, Mr. Kayatta clerked for the chief 
judge of the U.S. Court of Appeals for the First Circuit, Frank Coffin. 
It is a wonderful symmetry that he now, assuming the confirmation goes 
well this afternoon, will be joining the court for which he clerked 
many years ago.
  In 1980, he joined the prestigious law firm of Pierce Atwood in 
Portland, ME, where over the subsequent 32 years Bill specialized in 
complex civil litigation at both the trial and appellate levels. Bill 
Kayatta has served as chairman of both the Maine Professional Ethics 
Commission, the Maine Board of Bar Examiners, and as president of the 
Maine Bar Association.
  In 2002, Mr. Kayatta was inducted into the American College of Trial 
Lawyers, and in 2010 he was elected by his peers to the college's board 
of regents.
  Mr. Kayatta has simultaneously maintained a very substantial pro bono 
practice. In the year 2010, he received the Maine Bar Foundation's 
Howard H. Dana Award for career-long pro bono service on behalf of low-
income Mainers.
  In 2011, the U.S. Supreme Court appointed him as a special master in 
Kansas v. Nebraska and Colorado, an original water rights case. That 
too is an indication of the Court's confidence in Mr. Kayatta's legal 
abilities.

[[Page S673]]

  Finally, Mr. Kayatta has earned the American Bar Association's 
highest rating: ``unanimously well-qualified,'' reflecting the ABA's 
assessment of his credentials, experience, and temperament.
  Mr. Kayatta's impressive background makes him eminently qualified for 
a seat on the First Circuit. His 30-plus years of real-world litigation 
experience would bring a valuable perspective to the court.
  The First Circuit has only six authorized judgeships, the fewest of 
any circuit. It acutely feels any vacancy that arises. The First 
Circuit has not been at full strength since January 1, 2012, when Judge 
Kermit Lipez took active senior status. Now the circuit's caseload must 
be distributed among just five judges who continue to do their best to 
provide the timely and measured justice for which the First Circuit has 
long been known.
  The State of Maine is very proud of its history of providing superb 
jurists to the Federal bench. I am confident William Kayatta will 
continue in that fine tradition, and I urge my colleagues to join me in 
voting for his confirmation, a vote that is long overdue but has 
finally arrived.
  Again, I wish to thank the chairman of the Judiciary Committee, the 
ranking member, and the two leaders, Senator Reid and Senator 
McConnell, for moving this important nomination to the Senate floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank the senior Senator from Maine for 
her kind words, and I would note both for William Kayatta and for the 
people of Maine she has fought long and hard for this nomination. She 
did last year and she has this year. I am glad we are going to be 
finally voting on it because every time I would meet her anywhere in 
the halls or anywhere else it would be: What about Kayatta? She knows 
he, of course, had my strong support, as did another New Englander, 
former Justice and now judge, David Souter. I am sorry it has taken so 
long.
  I look at a nominee like this, where the senior Senator from Maine, 
Ms. Collins, her former colleague, Senator Snowe, and now her current 
colleague, Senator King, have all supported this person from Maine. In 
the past, especially with somebody extraordinarily well qualified, as 
he is, a nomination like that would be out of the committee and off the 
floor within a week. We have to go back to those times.
  If we have a contentious nominee, if we have somebody who needs to be 
debated, let's debate them. But when we have a person strongly 
supported by their home State Senators and who has the advantage of 
being highly qualified by anybody's standards--Republican, Democrat, or 
anybody else--then they ought to get a vote.
  It makes no sense for Senate Republicans to have stalled nominations 
like that of William Kayatta, but this is their track record and their 
pattern over the last 4 years. Senate Republicans used to insist that 
the 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 7 
months. Senate Republicans then proceeded to obstruct and delay just 
about every circuit court nominee of this President, filibustering 10 
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 7 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 6 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 5 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 4 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 
3 months.
  The nonpartisan Congressional Research Service has reported that 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 obstruction.
  This obstruction is also why a damagingly high level of judicial 
vacancies has persisted for over 4 years. While such tactics are bad 
for the Senate, they are also bad for our Nation's overburdened courts. 
Persistent vacancies force fewer judges to take on growing caseloads, 
and make it harder for Americans to have access to justice. While they 
have delayed and obstructed, the number of judicial vacancies has 
remained historically high and it has become more difficult for our 
courts to provide speedy, quality justice for the American people. 
There are today 90 judicial vacancies across the country. By way of 
contrast, that is more than double the number of vacancies that existed 
at this point in the Bush administration. The 173 circuit and district 
judges that we have been able to confirm over the last 4 years fall 
more than 30 short of the total for President Bush's first term.
  Over the last 4 years, Senate Republicans have chosen to depart 
dramatically from Senate traditions in their efforts to delay and 
obstruct President Obama's judicial nominations. Until 2009, Senators 
who filibustered circuit court nominees generally had reasons to do so, 
and were willing to explain those reasons. When Senate Democrats 
filibustered President Bush's controversial circuit court nominees, it 
was over substantive concerns about the nominees' records and 
Republicans' disregard for the rights of Democratic Senators. On the 
other hand, Senate Republicans have filibustered and delayed nearly all 
of President Obama's circuit court nominees even when those nominees 
have the support of their Republican home State Senators.
  At the end of each calendar year, Senate Republicans now deliberately 
refuse to vote on several judicial nominees who could and should be 
confirmed in order to consume additional time the following year 
confirming these nominees. At the end of 2009, they left 10 nominations 
on the Executive Calendar without a vote. Two of those nominations were 
returned to the President, and it subsequently took 9 months for the 
Senate to take action on the other eight. This resulted in the lowest 
1-year confirmation total in at least 35 years. For the next 2 years, 
Senate Republicans left 19 nominations on the Senate executive calendar 
at the end of each year. It then took nearly half the following year 
for the Senate to confirm these nominees. Last year they insisted on 
leaving 11 judicial nominees without action and another four have had 
hearings but they refused to expedite their consideration. William 
Kayatta is one of those judicial nominees who should have been 
confirmed last year.
  Until 2009, when a judicial nominee had been reported by the 
Judiciary Committee with bipartisan support, they were generally 
confirmed quickly. Until 2009, we observed regular order, usually 
confirmed nominees promptly, and we cleared the Senate Executive 
Calendar before long recesses. Until 2009, if a nominee was 
filibustered, it was almost always because of a substantive issue with 
the nominee's

[[Page S674]]

record. We know what has happened since 2009. The median district 
nomination is stalled 4.3 times as long as it took to confirm them 
during the Bush administration, and the median circuit court nomination 
is stalled 7.3 times as long as it took to confirm them during the Bush 
administration. Nor has any other President's judicial nominees had to 
wait an average of over 100 days for a Senate vote after being reported 
by the Judiciary Committee.

  Senate Republicans have also forced the majority leader to file 
cloture on 30 nominees, which is already more than 50 percent more 
nominees than had cloture filed during President Bush's 8 years in 
office. Almost all of these 30 nominations were noncontroversial and 
were ultimately confirmed overwhelmingly. Barely 80 percent of 
President Obama's judicial nominees were confirmed during his first 4 
years compared to almost 90 percent of President George W. Bush's first 
term nominees.
  While this is not even close to a full account of the precedents 
broken in the last 4 years, the record is clear: Senate Republicans 
have engaged in an unprecedented effort to obstruct President Obama's 
judicial nominations. Pretending it has not taken place is an insult to 
the American people. The American people know better. Chief Justice 
Roberts, in his year-end Report on the Federal Judiciary in 2010 
pointed to the ``[P]ersistent problem [that] has developed in the 
process of filling judicial vacancies . . . This has created acute 
difficulties for some judicial districts. Sitting judges in those 
districts have been burdened with extraordinary caseloads . . . There 
remains, however, an urgent need for the political branches to find a 
long-term solution to this recurring problem.'' Despite bipartisan 
calls to address the judicial vacancy crisis, Senate Republicans have 
continued their obstruction of judicial confirmations.
  Today, the Senate is finally being allowed to vote on one of the 
nominees held over from last year. Judicial vacancies right now stand 
at 90. And I mention that because during President Bush's entire second 
term--the 4 years from 2004 through 2008--the vacancies never exceeded 
60. I worked very hard to keep the vacancies down, but since President 
Obama's first full month in office, as far as we can see, there have 
never been fewer than 60 vacancies, and for much of that time many, 
many more. This is a prescription for overburdened courts and a Federal 
justice system that does not serve the interests of the American 
people. It means people who come to our courts looking for impartial 
justice can't get it because there are no judges.
  This is hurting the integrity of the judicial system. I hear this 
from judges nominated by Republican Presidents and those nominated by 
Democratic Presidents. They say these delays politicize the courts and 
destroy the impartiality the Federal courts have to have.
  I commend President Obama for nominating such a diverse group of 
qualified judges. In his first 4 years, President Obama has appointed 
as many women judges as President Bush did during his entire 8 years in 
office. In just 4 years, President Obama has also nominated more 
African Americans, more Asian Americans, and more openly gay Americans 
than his predecessor did in 8 years. Americans can be proud of 
President Obama's efforts to increase diversity in the Federal 
judiciary and to ensure that it better reflects all Americans.
  I hope that this year and over the coming 4 years, Senate Republicans 
will end their misguided and harmful obstruction and work with us in a 
bipartisan manner to do what is right for the country. President Obama 
has nominated qualified, mainstream lawyers, and the Senate should 
consider them in regular order, without unnecessary delays. That is 
what we had done for as long as I have served in the Senate, whether 
the nominations came from a Democratic or a Republican president. We 
should work together to restore and uphold the best traditions of the 
Senate.
  Last Thursday, the Senate Judiciary Committee reported three judicial 
nominees, William Kayatta, Robert Bacharach, and Richard Taranto. They 
are all superbly qualified, consensus nominees. All have received the 
highest possible rating of unanimously well qualified from the ABA's 
Standing Committee on the Federal Judiciary, and with last Thursday's 
Judiciary Committee votes, all have twice now received overwhelming, 
bipartisan support from members of the Judiciary Committee from both 
sides of the aisle. All have something else in common too: Their 
nominations were stalled before the Senate for at least 7 months last 
year without a vote. That is why they each had to be re-nominated by 
the President this year.
  This is sadly typical of how Senate Republicans have treated 
President Obama's consensus judicial nominees. Even nominees who are 
supported by Republican home state Senators and by all the Republican 
members of the Judiciary Committee are stalled for months for no good 
reason. They are delaying votes on all nominees, including nominees 
they support. This is unprecedented.
  For example, Senator Coburn said that ``[Judge Bacharach] has no 
opposition in the Senate. . . . There's no reason why he shouldn't be 
confirmed.'' That was before Senator Coburn joined a filibuster against 
voting on his nomination last year. Last year's filibuster of the 
Bacharach nomination was the first time in the history of the Senate 
that a circuit nominee reported with bipartisan support had been 
successfully filibustered. When I say unprecedented, I mean 
unprecedented.
  I am glad that William Kayatta is finally getting a vote. The nominee 
spent the entirety of his 32-year legal career in private practice in 
the Portland, ME, law firm Pierce Atwood LLP, where he is currently a 
partner. Over his career, he has personally argued over three dozen 
appeals, including two before the United States Supreme Court. He 
graduated magna cum laude from Harvard Law School, where he served on 
the Harvard Law Review. Upon graduation, he clerked for Chief Judge 
Frank Coffin on the U.S. Court of Appeals for the First Circuit, the 
court to which he is nominated.
  William Kayatta has held a prominent leadership role in numerous 
professional organizations, including serving as the lead investigator 
for the American Bar Association Standing Committee of the Federal 
Judiciary during its review of Justice Kagan's nomination to the 
Supreme Court. He was also appointed by the U.S. Supreme Court to serve 
as Special Master in an interstate dispute, where he was charged with 
managing proceedings and submitting a report and recommendation to the 
Court. The ABA's Standing Committee on the Federal Judiciary 
unanimously rated Mr. Kayatta well qualified to serve on the First 
Circuit, its highest possible rating.

  While it is good that William Kayatta will finally receive a vote 
today, it is also well past time for the Senate to vote on Robert 
Bacharach and Richard Taranto. Perpetuating these vacancies on the 
Tenth and Federal Circuits, and preventing Judge Bacharach and Mr. 
Taranto from getting to work on behalf of the American people, does not 
benefit anyone. The Judiciary Committee has again done its work to vet, 
consider, and vote on these nominations. It is time that the other two 
circuit nominees who were renominated and considered again by the 
Judiciary Committee and again reported to the Senate, be given an up-
or-down vote.
  The Senate could confirm all three nominees this week. In June 2005, 
the Senate confirmed four circuit court nominees of a Republican 
President in just 2 days, including highly controversial nominees such 
as Janice Rogers Brown to the D.C. Circuit and William Pryor to the 
Eleventh Circuit. In July 2006, the Senate confirmed Bobby Shepherd to 
the Eighth Circuit, Neil Gorsuch and Jerome Holmes of the Tenth Circuit 
within 1 week. There is ample recent precedent for confirming Judge 
Bacharach and Richard Taranto without further delay. Neither is 
controversial.
  William Kayatta is strongly supported by both of Maine's Senators, 
Republican Senator Susan Collins and Independent Senator Angus King. 
When George W. Bush was President, Senate Democrats worked quickly to 
hold votes on consensus circuit nominees. According to the nonpartisan 
Congressional Research Service, half of President Bush's circuit 
nominees received a confirmation vote within just 18 days of being 
reported by the Judiciary Committee. Not a single one of

[[Page S675]]

President Obama's circuit nominees has received a vote so quickly. In 
fact, the median wait time for President Obama's circuit nominees is 
more than seven times that for President Bush's circuit nominees.
  This continued obstruction is one of the reasons we remain so far 
behind the pace set during President Bush's time in office. By February 
of President Bush's fifth year, the Senate had confirmed 205 of his 
circuit and district nominees, and judicial vacancies stood at 40. In 
contrast, just 173 of President Obama's circuit and district nominees 
have been confirmed, and the vacancy rate has risen again to 90, or 
more than 10 percent of the Federal bench. Judicial vacancies are 
nearly back at historically high levels.
  Perpetuating these vacancies on the Tenth and Federal Circuits, and 
preventing Judge Bacharach and Richard Taranto from getting to work on 
behalf of the American people, does not benefit anyone. The Judiciary 
Committee has again done its work to vet, consider, and vote on these 
nominations. It is time for the Senate to act to confirm them.
  I will speak more on nominations as we go along, but I do want to 
congratulate not only the senior Senator from Maine but also Senator 
King and the people of Maine, and the people of the First Circuit. The 
circuit needs to have its vacancies filled, and I am glad we have such 
a good person.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, I yield back all time on both sides.
  The PRESIDING OFFICER. Hearing no objection, it is so ordered.
  All time having been yielded back, the question is, Will the Senate 
advise and consent to the nomination of William J. Kayatta, Jr., of 
Maine, to be U.S. circuit judge for the First Circuit?
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second. The clerk will call the roll.
  The bill clerk called the roll.
  The result was announced--yeas 88, nays 12, as follows:

                       [Rollcall Vote No. 20 Ex.]

                                YEAS--88

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Baucus
     Begich
     Bennet
     Blumenthal
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cowan
     Crapo
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Fischer
     Flake
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Manchin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--12

     Blunt
     Boozman
     Coburn
     Inhofe
     McConnell
     Paul
     Risch
     Rubio
     Scott
     Sessions
     Shelby
     Vitter
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________