[Congressional Record Volume 159, Number 26 (Monday, February 25, 2013)]
[Senate]
[Pages S803-S805]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF ROBERT E. BACHARACH TO BE UNITED STATES CIRCUIT JUDGE FOR
THE TENTH CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nomination,
which the clerk will report.
The assistant bill clerk read the nomination of Robert E. Bacharach,
of Oklahoma, to be United States Circuit Judge for the Tenth 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 Vermont.
Mr. LEAHY. This week, the country is facing indiscriminate across-
the-board cuts from sequestration if Congress does not come to an
agreement. The automatic cuts that will otherwise occur are in the tens
of billions of dollars at a time when our economy is finally recovering
but remains fragile. Among those who will have to endure these cuts are
the overburdened Federal courts that are already suffering from
longstanding vacancies that number almost 90. Budgetary cuts will mean
more difficulty for the American people to get speedy justice from our
Federal justice system.
According to the sequestration report released by the Office of
Management and Budget, the sequestration would lead to a $555 million
reduction for our Federal courts. Despite their higher caseloads and
the needs of the American people, the courts' funding will be capped at
a level last utilized 6 years ago. This could result in elimination of
nearly one third of the courts' staff, as many as 6,300 employees, or
month-long furloughs system wide. The sequester will result in cuts
that will force courts to hear fewer cases and hear them more slowly.
Court proceedings will be delayed. Some 30,000 civil cases have already
been pending for more than 3 years and this will only exacerbate the
problems of delay. Sequestration cuts could even result in the
suspension of civil jury trials in some courts. And consider that if
probation and pretrial services offices are affected, that can mean
that defendants in pretrial release and those convicted but not in
prison may not be properly supervised.
Sequestration is bad for the courts, bad for the economy and bad for
the American people.
Today, after an unprecedented filibuster, Senate Republicans will
finally allow a vote on the nomination of Robert Bacharach to the U.S.
Court of Appeals for the Tenth Circuit. Judge Bacharach should be a
consensus nominee. He received the ABA Standing Committee on the
Federal Judiciary's highest possible rating of well qualified. He was
reported by the Judiciary Committee by voice vote last year and, again,
this year. Despite his experience, qualifications and bipartisan
support, he was filibustered by Senate Republicans since July last
year.
The filibuster of his nomination, which was supported by the Oklahoma
Senators who had previously supported the nomination and who will
likely reverse themselves again and support confirmation today, was the
ne plus ultra of an unprecedented campaign of obstruction Senate
Republicans have waged against President Obama's judicial nominees.
That obstruction has spread to executive nominees, as well, including
the nomination of Chuck Hagel, a recent Republican Senator from
Nebraska whose nomination to serve as Secretary of Defense was
filibustered earlier this month.
Judge Bacharach is the kind of nominee who every Senator should
support. Over his 13-year career as a U.S. Magistrate Judge in the
Western District of Oklahoma, he has handled nearly 3,000 civil and
criminal matters, presided over 400 judicial settlement conferences,
and issued more than 1,600 reports and recommendations. As an attorney
in private practice, he tried 10 cases to verdict, argued two cases
before the Tenth Circuit Court of Appeals, and briefed scores of other
cases to the Tenth Circuit and the Oklahoma Supreme Court.
Judge Bacharach's judicial colleagues in the Western District of
Oklahoma stand strongly behind his nomination. Vicki Miles-LaGrange,
Chief Judge of the U.S. District Court for the Western District of
Oklahoma, has said of Judge Bacharach:
He is an outstanding jurist and my colleagues and I
enthusiastically and wholeheartedly recommend him for the
Tenth Circuit position. . . . We knew that we were lucky to
have Bob as a Magistrate Judge, and he's been remarkable in
this position for over 12 years. He is an absolutely great
Magistrate Judge. His research and writing are excellent, his
temperament is superb, his preparation is top-notch, and he
is a wonderful colleague to all of the judges and in general
to the entire court family. . . . All of the other judges and
I--Republicans and Democrats alike--enthusiastically and
wholeheartedly recommend Judge Bob Bacharach for the Tenth
Circuit position. All of us believe very strongly that Judge
Bacharach would be a superb choice for the position.
Throughout the careful and deliberate process in which Judge
Bacharach has been thoroughly vetted, considered, and voted on by the
Judiciary Committee, I have not heard a single negative word about him.
There is no Senator who opposed his nomination on the merits. He was
praised extensively by his home State Senators. Senator Inhofe has said
of him:
I believe Judge Bacharach would continue the strong service
Oklahomans have provided the Tenth Circuit. Throughout his
career and education, he's distinguished himself. In 2007,
the Oklahoma City Journal Record profiled Judge Bacharach as
an example of leadership in law, where he simply stated that
as a future goal he intends to improve. Always working to
improve has defined Judge Bacharach. . . . [H]is colleagues
have characterized his service as remarkable, demonstrating
superb judicial temperament, and a real asset to the Western
District court family and legal community.
Senator Coburn said:
Judge Bacharach is well qualified for this position and has
received widespread praise and hearty recommendations from
Oklahomans, including members of academia and fellow members
of the bar. . . . I believe that Judge Bacharach will uphold
the highest standards and reflect the best in our American
judicial tradition by coming to the bench as a well-regarded
member of the community. At a time when our country seems as
divided as ever, it is important that citizens respect
members of the judiciary and are confident they will
faithfully and impartially apply the law. . . . I believe
Judge Bacharach would be an excellent addition to the Tenth
Circuit.
Unfortunately, along with 42 other Senate Republicans, Senator Inhofe
and Senator Coburn filibustered Judge Bacharach since last July. The
people of Oklahoma, Colorado, Kansas, New Mexico, Utah and Wyoming have
been needlessly denied his service as a Tenth Circuit judge for 7
months. Republican Senators in Oklahoma, Kansas, Utah and Wyoming could
have prevented the filibuster but went along with the obstruction that
served no good purpose and established another damaging precedent:
Judge Bacharach is the first circuit court nominee to be filibustered
who had received bipartisan support before the Judiciary Committee.
Senator Coburn was quoted last year admitting: ``There's no reason why
he shouldn't be confirmed.'' There was none other than the obstruction
of Senate Republicans.
Their partisan obstruction was wrong, and it is damaging to our
Nation's courts and the American people. 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 Republicans' partisan obstruction.
This obstruction has contributed to the damagingly high level of
judicial vacancies that has persisted for over 4 years. Persistent
vacancies force fewer judges to take on growing caseloads, and make it
harder for Americans to have access to speedy justice. While Senate
Republicans delayed and obstructed, the number of judicial vacancies
remained historically high and it has become more difficult for our
courts to provide speedy, quality justice for the American people.
There are today 89 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 circuit and district
judges that we have been able to confirm over the last four 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
[[Page S804]]
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 most extreme circuit
court nominees, it was over substantive concerns about the nominees'
records and Republicans' disregard for the rights of Democratic
Senators as they unfairly short-circuited the process of consideration
over and over again. 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 and their rights have been fully protected in a
fair consideration process.
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 record. We know what has happened since 2009. The average
district court nominee is stalled 4.3 times longer and the average
circuit court nominee is stalled 7.3 times as long as it took to
confirm them during the Bush administration. No 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 in 4 years 50 percent more
nominees than had cloture filed during President Bush's eight years in
office. Almost all of these 30 nominations were noncontroversial and
were ultimately confirmed overwhelmingly. Fewer than 80 percent of
President Obama's judicial nominees have been confirmed compared to
almost 90 percent of President George W. Bush's nominees at this point
in their Presidencies.
The record is clear: Senate Republicans have engaged in an
unprecedented effort to obstruct President Obama's judicial
nominations. 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 longstanding judicial
vacancies, Senate Republicans have continued their unwarranted
obstruction of judicial confirmations. In the case of Judge Bacharach,
there was not even a pretense of any substantive concern--Senate
Republicans just decided to shut down the confirmation process and
contorted the ``Thurmond rule.''
At a time when judicial vacancies have again risen to almost 90, we
must do more for our overburdened courts. It is past time for the
partisan obstruction to end. We have a long way to go. After 4 years of
delay and obstruction, we remain far behind the pace of confirmations
we set during President Bush's administration, and there remain far too
many judicial vacancies that make it harder for Americans to have their
day in court. During President Bush's entire second term, the 4 years
from 2004 through 2008, vacancies never exceeded 60. Since President
Obama's first full month in office, and as far into the future as we
can see, there have never been fewer than 60 vacancies, and for much of
that time many, many more. The Senate must do much more to fill these
vacancies and make real progress.
The Senate today will finally vote on the nomination of Robert
Bacharach. He has served as a U.S. Magistrate Judge on the United
States District Court for the Western District of Oklahoma since 1999.
Previously, from 1987 to 1999, he was in private practice at the
Oklahoma City law firm of Crowe & Dunlevy, P.C. From 1985 to 1987, he
served as a law clerk to Judge William J. Holloway, Jr. of the U.S.
Court of Appeals for the Tenth Circuit, the same court to which he has
been nominated. Judge Bacharach was twice reported by the Judiciary
Committee by voice vote--last June and again this month.
The Judiciary Committee has been working to vet, consider, and report
nominees, and just before the recess we reported another dozen circuit
and district nominees, all of whom had to be renominated from last
year. The longest pending of these nominations is that of Caitlin
Halligan, who the President first nominated to the D.C. Circuit back in
2010. At that time, there were already two vacancies on that court, a
number which has now doubled to four. The purported justification for
the partisan Republican filibuster of the Halligan nomination was that
the circuit did not need another judge. The circuit is now more than
one-third vacant and needs several, including Caitlin Halligan. I urge
that the Senate act quickly on long-pending nominations. Further delay
does not serve the interests of the American people. Hardworking
Americans deserve better.
Mr. GRASSLEY. Mr. President, I rise today in support of Robert E.
Bacharach, nominated to be United States Circuit Judge for the Tenth
Circuit. Mr. Bacharach's nomination was pending before the Senate last
year. In accordance with Senate custom and practice, the nomination was
placed on hold, along with other circuit judge nominations, pending the
outcome of the 2012 Presidential election. Unfortunately, the
nomination was subjected to some unnecessary political theater when a
cloture motion was filed and defeated last July.
It is well-known that the practice and tradition of the Senate is to
stop confirming circuit judge nominees in the closing months of a
Presidential election year. One has to go back 20 years to find a
Presidential election year when the Senate approved a circuit court
judge in the latter part of the year. Of course, the rationale has been
that whoever wins that election should be the one to pick these
lifetime nominees who will run our judiciary system.
A Congressional Research Service report on this subject stated:
The Senator who most frequently has asserted the existence
of a Thurmond rule has been the current chairman of the
Judiciary Committee.
The CRS report noted that on March 7, 2008, the chairman recalled:
When President Reagan was running for President and Senator
Thurmond, then in the Republican minority as ranking member
of the Judiciary Committee, instituted a policy to stall
President Carter's nominations. That policy, known as the
``Thurmond Rule,'' was put in when the Republicans were in
the minority. It is a rule that we still follow, and it will
take effect very soon here.
Again, this was in March of that Presidential election year, not June
or July. So that rule was very carefully laid out March 7, 2008--that
they didn't intend to approve any more nominees after that point.
CRS went on to note the strong support the majority leader has
expressed for the so-called Thurmond rule. According to CRS:
Senator Harry Reid, the Senate majority leader, has
expressed agreement with Senator Leahy about the existence of
a Thurmond rule. In April 10, 2008, floor remarks, Senator
Reid said, In a Presidential election year, it is always very
tough for judges. That is the way it has been for a long
time, and that is why we have the Thurmond rule and other
such rules.
Five days later, the Majority Leader said:
You know, there is a Thurmond doctrine that says: After
June, we will have to take a real close look at judges in a
Presidential election year.
These quotes indicate not only the expectation, but in fact a support
for slowing down and cutting off the confirmation of judges in a
Presidential election year.
Even setting aside the so-called Leahy-Thurmond rule, by any
objective measure, President Obama has been treated fairly.
For example, with regard to the total number of confirmations, we
confirmed 171 district and circuit nominations during President Obama's
first term. We also confirmed two Supreme Court nominations during
President Obama's first term. When Supreme Court nominations are
pending in the committee, all other work on nominations is put on hold.
[[Page S805]]
The last time the Senate confirmed two Supreme Court nominees was
during President Bush's second term, and during that term the Senate
confirmed a total of only 119 district and circuit court nominees.
Let me put it another way. Under similar circumstances when Supreme
Court nominees were considered--the Senate confirmed 52 more district
and circuit nominees for President Obama than for President Bush.
During the 2008 Presidential election year, the Senate confirmed a
total of 28 judges--24 district and 4 circuit. During the 2012
Presidential election year the Senate greatly exceeded those numbers,
having confirmed a total of 49 judges--44 district and 5 circuit. In
fact, President Obama's confirmations during the 2012 election year
exceed the previous five Presidential election years.
Furthermore, President Obama has the highest percentage of circuit
confirmations over the past four Presidential terms. With regard to
district confirmations, President Obama had more during the 112th
Congress that in any of the previous eight Congresses, going back to
1994.
So those who say that this President is being treated differently
either fail to recognize history or want to ignore the facts, or both.
With regard to today's nomination, I would like to say a few words
about the nominee. I expect he will be approved and congratulate him on
his confirmation.
Judge Bacharach graduated from University of Oklahoma with a B.A. in
1981 and earned his J.D. from the Washington University School of Law
in 1985. Upon graduation, Judge Bacharach served as a law clerk from
1985 to 1987 to the Honorable William J. Holloway, Jr. on the U.S.
Court of Appeals for the Tenth Circuit. After completion of his
clerkship, he was hired as an associate at Crowe & Dunlevy, where he
became a shareholder in 1994. He remained at the firm until becoming a
U.S. magistrate judge in 1999. At Crowe & Dunlevy, he primarily
practiced in commercial litigation, focusing on antitrust and franchise
litigation. He also handled a considerable number of cases involving
the Employee Retirement Income Security Act, ERISA, from 1996 to 1998.
From 1997 to 1999, Judge Bacharach served as an adjunct professor of
law at the University Of Oklahoma School Of Law. During this period, he
was a coinstructor for a class titled ``Civil Pretrial Litigation.''
In 1999, the U.S. district judges for the Western District of
Oklahoma appointed Judge Bacharach to be a U.S. magistrate judge. As a
magistrate judge, he manages all aspects of the pretrial process in
civil and criminal cases: conducting evidentiary hearings, ruling on
nondispositive motions, making reports and recommendations regarding
dispositive motions, and issuing criminal complaints, search warrants,
and arrest warrants.
Mr. LEAHY. Mr. President, I suggest the absence of a quorum. If there
is time remaining, I ask the time be equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, we yield back the remaining time on the
nomination.
The PRESIDING OFFICER. All debate time has expired.
Mrs. BOXER. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Robert E. Bacharach, of Oklahoma, to be United States Circuit Judge
for the Tenth Circuit?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin), the
Senator from New Jersey (Mr. Lautenberg), and the Senator from Colorado
(Mr. Udall) are necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Georgia (Mr. Chambliss), the Senator from Idaho (Mr.
Crapo), the Senator from Wisconsin (Mr. Johnson), and the Senator from
Kentucky (Mr. Paul).
The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 93, nays 0, as follows:
[Rollcall Vote No. 22 Ex.]
YEAS--93
Alexander
Ayotte
Baldwin
Barrasso
Baucus
Begich
Bennet
Blumenthal
Blunt
Boozman
Boxer
Brown
Burr
Cantwell
Cardin
Carper
Casey
Coats
Coburn
Cochran
Collins
Coons
Corker
Cornyn
Cowan
Cruz
Donnelly
Durbin
Enzi
Feinstein
Fischer
Flake
Franken
Gillibrand
Graham
Grassley
Hagan
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johanns
Johnson (SD)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Nelson
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schatz
Schumer
Scott
Sessions
Shaheen
Shelby
Stabenow
Tester
Thune
Toomey
Udall (NM)
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NOT VOTING--7
Chambliss
Crapo
Harkin
Johnson (WI)
Lautenberg
Paul
Udall (CO)
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table, and the
President will be immediately notified of the Senate's action.
____________________