[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.

                          ____________________