[Congressional Record Volume 159, Number 71 (Monday, May 20, 2013)]
[Senate]
[Pages S3597-S3604]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Gun Violence
Mr. MURPHY. Madam President, it has now been almost 6 months since
the horrible shooting in my State of Connecticut at Sandy Hook
Elementary where 20 6- and 7-year-old children lost their lives, and
another 6 adults, who were protecting them, perished as well.
We all believed we were going to do something about it here on the
floor of the Senate. We thought we were going to come to our senses and
finally realize it is in part the laws of this Nation that allow for
this kind of senseless killing, whether it be in mass numbers in places
such as Sandy Hook or Aurora or Tucson or at the Sikh temple in the
State of the Presiding Officer or in just the everyday, average gun
violence that has become background noise to this Nation.
It is not just about bad people doing bad things; it is also about
the laws of this Nation that have allowed for this to happen because we
don't have background checks on every gun purchase so that criminals do
not get guns. We still allow for dangerous military-style weapons, such
as the AR-15 and 100-round drums of ammunition to be carried on the
streets of this country. We don't even have a Federal law saying it is
illegal to traffic in guns, taking them out of gun shows and gun stores
and then going out and selling them on the streets as straw purchasers
to people who shouldn't have bought them in the first place. We had 55
votes in the Senate to do something about that, but we didn't have 60
votes, which is the law of the land here these days.
I have promised to come down here every week and do something rather
simple, which is to tell the stories of the dozens of people who are
killed every single day by guns, because it is their stories that will
eventually move this place to action. I know this place has enough
empathy, enough compassion to not be so callous as to allow month after
month to go by and do nothing about the 4,243 people, as of today,
since Newtown who have died in this country at the hands of gun
violence.
Let me cite that number again. Since the massacre at Sandy Hook,
where 28 people died, including the gunman and his mother, 4,243 people
have died due to gun violence.
I want to spend the next couple of minutes before we get back to the
debate on these nominations telling the stories of a few of these
people.
On May 15, 2013, about a week ago, five different people were shot in
Detroit. Halfway through May and there have been 73 shootings in
Detroit, MI. Ten people have been killed, with 8 of the shooting
victims being 17 years old or younger.
On that day, May 15, five people were shot. A 24-year-old man opened
fire
[[Page S3598]]
after a pretty simple verbal altercation on the street. What happened,
apparently, was that one parent of one child told the other kids to go
home for some reason. Something had happened at their house. That youth
returned to the house with some of his family members, including the
24-year-old man who got so upset over this simple altercation about a
mom asking some kids to leave her house that he opened fire, killing
Allmeter Walls and wounding the others.
It was a pretty bloody 24-hour period in Detroit, where 12 people
were shot on that day from 6 a.m. on Wednesday until 6 a.m. on
Thursday. There were 73 shootings halfway through May in 1 city alone.
On May 15 as well, Newark police said that an 18-year-old high school
student, a senior, at Weequahic High School in Newark, NJ, was killed.
He had signed himself out of school because he wasn't feeling well, and
he was shot.
Councilman Ras Baraka, who is also the principal of another high
school, said: ``We are outgunned and outmanned here on the street.''
There are so many guns on the streets of Newark that principals and law
enforcement feel outgunned and outmanned.
Of the young student who was killed, one of his friends said: ``He
was a good kid. When he was little, we used to play pool and video
games around here.''
In Bridgeport, CT, just before sunrise on Mother's Day, police found
22-year-old Robert Rivera dead in his car from perhaps a dozen bullet
wounds. ``He was one in a million,'' a friend said. ``No one will ever
be like him.'' Chino was his nickname. He was a good kid. His friend
said, ``The good die young here.'' He was 22 years old and was killed
in a spray of bullets in his car in Bridgeport, CT.
These are the ones we don't hear that much about because they are in
the local papers. But we know there are also these mass killings as
well, and before I yield the floor, I want to talk about a handful of
victims from the State of the Presiding Officer who were killed at a
Sikh temple when someone walked in, in August 2012, and opened fire,
because people should know who these victims are as well. There are
victims of everyday gun violence, but we have had a string of mass
shootings in this country which will not end until we do something
about it.
Paramjit Kaur lived for her children. She spent 11 hours a day, 6
days a week in production at a medical devices firm in order to provide
for her children. She was praying inside the temple when she learned of
the active shooter outside the temple. Instead of being afraid, she
showed great courage, bowed down and prayed one last time before she
was shot.
Satwant Singh Kaleka was the founder and president of that Sikh
temple. He worked 18 hours a day at his family's gas station to provide
for his family. His hard work as a small businessman paid off and he
acquired eight stations by the end of his career. His attempts to
thwart the gunman with a small dull knife gave the group of women,
including his mother, a chance to escape.
Suveg Singh Khattra, a former dairy farmer in northern India, came to
the United States for a better life. He was a humble and loving man who
was a constant presence at the temple. He was a man of habit, waking
every morning at 4:30 a.m. to watch a live broadcast from India and
engage in readings from the holy book. He died at 84.
Prakash Singh was a pious man with a great sense of humor. He stayed
in the priest quarters in the temple, and was excited about the fact he
was about to get an apartment outside the temple. They were due to move
into their new home at the end of August, a few weeks after he was
killed.
Then the two brothers, Ranjit and Sita Singh. They were brothers and
Sikh priests who left their families behind to move to Oak Creek for a
better life. Ranjit was the more outgoing of the two. His
responsibility was to take care of every visitor who came through those
doors. But his younger brother Sita was just as fun loving and would
wake up every morning at 5 a.m. to read the Sikh holy book. His
specialty was to make sure everyone who walked into that temple had
enough to eat.
All perished at that Sikh temple. These things are going to happen
again. There is going to be another mass atrocity. And there will
continue to be these shootings in Detroit and Bridgeport and Newark if
we don't do something about it on this floor. I know we have important
business, whether it be the farm bill this week or our hopeful attempt
at passing immigration reform, but as soon as that is done, hopefully,
we will get to come back to this issue of gun violence, because if we
don't these everyday urban stories will mount and there will be another
mass shooting somewhere across this country.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON. Madam President, I would say to my colleague from
Connecticut: Amen.
And I would say to my colleague from Oregon: Thank you for your
courtesy in letting me go ahead, in light of the fact we have a Federal
judge coming up for a vote at 5:30.
I am very grateful to the Judiciary Committee--to both the Democrats
and the Republicans--in allowing us to vote, and I urgently implore we
confirm Judge Sheri Polster Chappell to the United States District
Court for the Middle District of Florida.
While I rise to speak in favor of Judge Chappell, I want to express
my concern for the growing partisanship that is dragging down our
efforts to fill these judicial vacancies across the Nation. In the past
we have had qualified consensus judicial nominees who would be
confirmed in weeks, if not in days. Unfortunately, even the judicial
nominees who have the support of both Senators from the State--and
sometimes, as is the case of Florida where we have the Republican
Senator, Senator Rubio, and myself, the Democratic Senator--we are
still finding the judges are being held up. We are experiencing waiting
months for an up-or-down vote only to then have them confirmed
overwhelmingly.
Mr. LEAHY. Will the Senator yield on that point?
Mr. NELSON. Of course, I yield to the distinguished chairman of the
committee.
Mr. LEAHY. I would say to my dear friend, the senior Senator from
Florida, I share his frustration. We put these judges through the
Senate Judiciary Committee often with a unanimous vote and then they
wait here months and months to get a vote on the floor. As the
distinguished Senator from Florida noted, that vote is then virtually
unanimous.
This effort where if somebody is nominated by President Obama they
must be blocked, even if it is somebody everyone supports, is totally
unfair to the President, it is completely unfair to the country, but it
is devastating to the judiciary because good men and women are not
going to be willing to take nominations or appointments to be a Federal
judge if they think they are going to wait month after month after
month or even a year before they go on the bench.
I appreciate the statement of the distinguished senior Senator from
Florida and I share his frustration.
Mr. NELSON. I thank the chairman of the Judiciary Committee. A good
example--this isn't even a Federal district judge, this is court of
appeals--we confirmed the judge 94 to 5, when we finally got a vote.
That was Judge Adalberto Jordan, the first Cuban-American-born judge,
from Miami, to serve on the U.S. court of appeals. The Eleventh Circuit
is one of the busiest circuits in the country. It encompasses the
Southeastern United States. He was unanimously reported out of the
Judiciary Committee, but he was blocked by a filibuster of judicial
nominees after 4 months of waiting on the Executive Calendar.
Obviously, with a vote of 94 to 5, he was eminently qualified. He was
not controversial. He had the support of Senator Rubio and myself, a
unanimous vote in the Judiciary Committee. Yet his nomination was
filibustered.
In addition, highly qualified district court judge nominees are
facing the same partisan delays. Obviously, these nominees ought to get
confirmed without the needless obstacles, facing potential cloture
motions, just to receive an up-or-down vote. I am told the majority
leader has had to file cloture on as many as 20 of the Federal district
[[Page S3599]]
court nominees since 2009. It is an indication that we are clearly
going in the wrong direction in this Senate.
I will give one other example. Here the judge we are about to
confirm--and before the chairman came in I thanked him profusely, and
the Republicans on the Judiciary Committee, for bringing Judge Chappell
up for a vote today. There is no controversy over Judge Chappell. She
has the support of Senator Rubio and myself. She was voted out of the
Judiciary Committee twice unanimously. It is a judicial vacancy
emergency declared in the Middle District of Florida.
She is waiting. Today is the 329th day.
She was originally nominated during the 112th Congress, but it has
taken 329 days to get us to this point today.
Judge Chappell earned her Bachelor of Arts degree at the University
of Wisconsin and her juris doctor at Nova Southeastern University.
Judge Chappell is serving as a United States Magistrate Judge for the
Middle District of Florida, where she has been since 2003.
Prior to which she served as a county court judge in the Twentieth
Judicial Circuit of Florida and she began her legal career as
prosecutor in Fort Myers. Judge Chappell has also been an active member
of the community. She has served on the Florida Prosecuting Attorneys
Association, the Domestic Violence Task Force, and the truancy board.
Judge Chappell is a true public servant and she will make a fine
district court judge.
As of May 20, 2013, according to the United States Administrative
Office of the Courts, there are 34 judicial emergency vacancies across
this Nation. Florida is home to four empty benches--two in the middle
district of Florida and two in the southern district of Florida. In
total there are 84 judicial vacancies waiting to be filled and 28
nominees stuck in the pipeline waiting for confirmation. These delays
in filling vacancies mean that courts are overburdened. It also means
that our citizens are seeing their day in court delayed.
The public is concerned as these delays are further exacerbating the
problem facing the courts. In fact, these delays are a scathing
indictment of the lack of cooperation and growing partisan nature of
process for confirming judicial nominations. These delays undermine the
public trust and are illustrative of the stranglehold that partisanship
has on Washington and on the rest of the country.
We cannot have that. It is time to confirm Judge Polster Chappell and
move with purpose on the rest of these nominations so we can get our
courts fully staffed and the judicial system working how it is supposed
to.
I again thank the Judiciary Committee for bringing up Judge Chappell,
but it cannot keep going on like this. I hope we are going to see some
reform and movement quickly.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Today the Senate will finally be allowed to vote on the
nominations of Judge Sheri Chappell and Judge Michael McShane. For
Judge Chappell in particular, this day is long overdue. She was
nominated almost a year ago, and was one of the 11 nominees who Senate
Republicans refused to vote on before the end of the last Congress.
They delayed her confirmation even though she had the support of every
single Republican on the Judiciary Committee, and the bipartisan
support of her home state Senators, Senator Nelson and Senator Rubio.
They delayed her confirmation even though she is nominated to fill a
judicial emergency vacancy that has been vacant for over 400 days. When
I say that President Obama's qualified, consensus nominees have faced
unprecedented levels of delay and obstruction, this is precisely what I
have been talking about.
Even the Wall Street Journal has taken notice. In an article last
week, Gerald Seib wrote that the obstruction even of consensus district
court nominees is an example of ``the Senate's inability to pull out of
partisan ruts and get beyond an epidemic of filibusters.'' While only a
few years ago Senate Republicans insisted that filibusters of judicial
nominees were unconstitutional, or that they should be reserved for
``extraordinary circumstances,'' this article notes that they ``decided
in recent years that it is acceptable to mount filibusters not only in
exceptional cases but to stop even the most routine business.'' I ask
unanimous consent that this article be printed in the Record at the
conclusion of my statement.
Senate Republicans claim that they have blocked only two of President
Obama's nominees, but they are not being fair in that characterization.
They blocked nominees like Robert Chatigny and Louis Butler by refusing
to allow the Senate to vote on them. They blocked nominees like
Victoria Nourse, Arvo Mikkanen, and Elissa Cadish by refusing to return
blue slips. They even blocked Steve Six by rescinding the blue slips
after the nominee had already had a hearing. This reminds me of the way
they pocket filibustered dozens of President Clinton's nominees. While
as Chairman I have protected the rights of home State Senators, that
right does not extend to allowing them to shirk responsibility for it.
In all, President Obama has had a significantly lower percentage of his
circuit and district nominees confirmed at this point in his time in
office than President Bush did at the same point in his presidency.
Senate Republicans who take such pride in the number of nominees
being confirmed this year ignore how many, like Judge Chappell, were
needlessly delayed from confirmation last year and what they have done
during the last 4 years. That is why even after the 17 confirmations
this year, we remain nearly 20 confirmations behind the pace we set for
President Bush's circuit and district nominees, and vacancies remain
nearly twice as high as they were at this point during President Bush's
second term. For all their self-congratulatory statements they cannot
refute the following: We are not even keeping up with attrition.
Vacancies have increased, not decreased, since the start of this year.
President Obama's judicial nominees have faced unprecedented delays and
obstruction by Senate Republicans. We have yet to finish the work that
could and should have been completed last year. There are still a dozen
judicial nominees being denied confirmation.
A recent report by the nonpartisan Congressional Research Service
compares the whole of President Obama's first term to the whole of
President Bush's first term, and the contrast could not be more clear.
The median Senate floor wait time for President Obama's district
nominees was 5 times longer than for President Bush's. President
Obama's circuit nominees faced even longer delays, and their median
wait time was 7.3 times longer than for President Bush's circuit
nominees. The comparison is even worse if we look just at nominees who
were reported and confirmed unanimously. President Bush's unanimously
confirmed circuit nominees had a median wait time of just 14 days.
Compare that to the 130.5 days for President Obama's unanimous
nominees. That is more than 9 times longer. Even the nonpartisan CRS
calls this a ``notable change.'' There is no good reason for such
unprecedented delays, but those are the facts.
The confirmations in the last few months do not change the reality of
what has happened over the last four years. If a baseball player goes
0-for-9, and then gets a hit, we do not say he is an all-star because
he is batting 1.000 in his last at bat. We recognize that he is just 1-
for-10, and not a very good hitter.
So while I welcome the confirmations this year, I note both that 13
of the 17 could and should have been confirmed last year and that there
are another dozen nominees pending before the Senate, including two who
also could have been confirmed last year. We can and must do more for
Americans who look to our courts for justice. They deserve better than
long delays and empty courtrooms. With 10 percent of our Federal bench
vacant, and a backlog of nominees on the Senate Executive Calendar, it
is clear that the Senate is not doing what it should on nominations.
It is also ridiculous to complain that the Senate does not have
nominees when Mark Barnett, Claire Kelly, Sheri Chappell, Michael
McShane, Nitza Quinones Alejandro, Luis Restrepo, Jeffrey Schmehl,
Kenneth Gonzales, Gregory Phillips, Sri Srinivasan, Ray Chen, and
Jennifer Dorsey are awaiting confirmation.
In addition, Senate Republicans need to take responsibility for not
working
[[Page S3600]]
with the President to fill vacancies. It is disingenuous of Republican
Senators not to work with President Obama to pick nominees and then
blame the President for the lack of nominees. I was interested to hear
one Senate Republican argue that if Senators do not get recommendations
in ``expeditiously enough,'' the President ``has the prerogative to
nominate someone and then we have the responsibility to act on it.''
Before President Obama had made a single judicial nomination, all
Senate Republicans sent him a letter threatening to filibuster his
nominees if he did not consult Republican home state Senators. So the
recent statement was either a complete reversal in position, or baiting
a trap to then block any nominees the President sends to us.
Some Republican Senators have been willing to work with the President
to find nominees in their States. We recently received nominations for
district court vacancies in Alabama and Tennessee, and I hope to
schedule those nominees for hearings soon. In Pennsylvania, the
Republican Senator is now working with Senator Casey to find nominees
that they both support. In fact, three such nominees are pending before
the Senate now, and they would fill three of the six current vacancies
in the Eastern District of Pennsylvania. The nominees have been pending
before the Senate for over 2 months after being reported unanimously,
and I hope Senate Republicans will allow us to complete action on them
before the Memorial Day recess.
I remain deeply concerned about the impact of sequestration on our
Federal courts and our legal system. After 4 years in which Senate
Republicans have forced our courts to operate shorthanded, with 10
percent or more of judgeships vacant, these harsh spending cuts are the
last thing we should be doing. I continue to hear from judges and other
members of the legal community about the damage of sequestration.
The Judicial Conference, whose presiding officer is Chief Justice
Roberts, wrote last week to request emergency funding for fiscal 2013
in order to ``address critical needs resulting from sequestration
cuts.'' These indiscriminate cuts have left our Federal judiciary
``confronting an unprecedented fiscal crisis that could seriously
compromise the Constitutional mission of the United States courts.''
Members of the bar have written in support of this request, stating
that ``budget cuts have forced diminished court staffing, court
closures, compromised security, and lengthy trial delays.'' They
rightly note that ``it is people's lives that are adversely changed''
by these unnecessary cuts. I ask unanimous consent that both letters be
printed in the Record at the conclusion of my statement. I hope
Senators read these letters and take these concerns seriously, and that
we can come together to meet our responsibilities to our coequal branch
and to the 310 million Americans we all serve.
Judge Sheri Polster Chappell is nominated to a judicial emergency
vacancy on the U.S. District Court for the Middle District of Florida,
where she has been serving since 2003 as a Federal Magistrate Judge.
Prior to her appointment to the Federal bench, she worked as a Lee
County Court Judge, as an Assistant State Attorney in the Twentieth
Judicial Circuit of Florida, where she was the first female county
office head, and as an instructor at the Southwest Florida Criminal
Justice Academy. Judge Chappell was reported unanimously last year and
again 2 months ago. The Middle District of Florida has a second
judicial emergency vacancy, and it is unfortunate that the Senate is
not being allowed to consider the nominee to that seat, as well. Judge
Brian Davis received unanimously the ABA Standing Committee on the
Federal Judiciary's highest rating of ``well qualified,'' and was
reported favorably almost 1 year ago.
Judge Michael McShane is nominated to a judicial emergency vacancy on
the U.S. District Court for the District of Oregon. Currently a Circuit
Court Judge on the Multnomah County Circuit Court, Judge McShane has
served as a State court judge for over 15 years. He previously served
as a Circuit Judge Pro Tem on the Multnomah County Circuit Court. Prior
to becoming a judge, Judge McShane spent his entire 9-year legal career
as a trial attorney in the Metropolitan Public Defender's Office in
Portland, OR. Judge McShane has the support of his home State Senators,
Senator Wyden and Senator Merkley, and was reported unanimously by the
Judiciary Committee over 2 months ago.
Senate Republicans have a long way to go to match the record of
cooperation on consensus nominees that Senate Democrats established
during the Bush administration. After today's votes, 10 more judicial
nominees remain pending, and all but one were reported unanimously. All
Senate Democrats are ready to vote on each of them to allow them to get
to work for the American people. We can make real progress for our
Federal courts and the American people if Senate Republicans are
willing to join us.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, May 14, 2013]
Open Judgeships Show D.C. Dysfunction
(By Gerald F. Seib)
Jill Pryor of Georgia and Rosemary Marquez of Arizona
aren't exactly household names, but they share a distinction
with national importance: Both have been waiting exactly 689
days for the Senate to act on their nominations to become
federal judges.
Yet they aren't even the most extreme examples of
Washington's inability to perform one of its most basic
functions, filling the federal judiciary across the land. All
told, 85 federal judgeships sit vacant, meaning some 10% of
the federal judiciary is empty--and this at a time when those
who run the court system think there actually should be new
judicial posts created because of an escalating workload.
Openings on two of the nation's most important federal
appeals courts--the Ninth Circuit in the West and the D.C.
Circuit in Washington--have been unfilled since 2005.
There is no current nominee for either seat, not since
President Barack Obama's choice for the D.C. slot gave up in
frustration after Republican filibusters put her nomination
in limbo for 2\1/2\ years.
The Obama administration must shoulder some blame for this
predicament. It has been slower than its predecessors to vet
and nominate judicial candidates.
But the lion's share of the blame lies with the Senate, a
body that's becoming an embarrassment to itself and that
increasingly infects the rest of government with its
paralysis.
Traditionally, the first step in the process of picking
federal judicial nominees is for senators to recommend to the
White House candidates to fill vacancies in their home
states; the process slows when home-state senators of
different parties can't agree.
Senators then can quietly decline to endorse a nominee, or
put an unpublicized ``hold'' on nominees they disapprove of,
or can stop a nomination by simply threatening a filibuster.
In today's partisan environment, all those tactics are at
work.
``There always was a bit of back and forth between the
parties on nominations generally, and judicial nominations
specifically,'' says Caroline Fredrickson, a former Senate
aide and now president of the American Constitution Society,
a left-leaning organization that tracks judicial nominations.
``But it's become so extreme that I think we are in a
completely different situation now.''
This problem persists even though the Senate has confirmed
more than a dozen judges in the past couple of months. That
progress has served mostly to keep the number of vacancies
below 100; judges still aren't being confirmed fast enough to
keep up with the rate of attrition as older judges retire.
In recent days, more attention has been devoted to the
Senate's unwillingness to confirm Obama administration
nominations for senior executive-branch positions, including
Thomas Perez as labor secretary and Gina McCarthy as
Environmental Protection Agency administrator. Republican
senators have buried the nominees with written questions and
refused to show up for committee votes on them.
Yet the backlog of judicial vacancies is a more long-
standing problem and a better illustration of the Senate's
inability to pull out of partisan ruts and get beyond an
epidemic of filibusters.
Both parties know that, while cabinet secretaries come and
go, federal judges stay on the scene for years, even decades.
So the party out of power is reluctant to let a president
fill the judiciary with nominees of his political persuasion,
if leaving the positions unfilled creates at least the chance
that the opposition party will be able to put a judge of its
liking into place a few years hence.
This political temptation wouldn't matter so much if
senators hadn't also decided in recent years that it is
acceptable to mount filibusters not only in exceptional cases
but to stop even the most routine business.
Thus, the country now is in the bizarre position of having
a chief justice, John Roberts, on the Supreme Court for
almost eight years--while his previous position on the D.C.
Circuit Court of Appeals has sat empty for the entire time.
This problem has been building for years. A recent study by
the nonpartisan Congressional Research Service shows that
even
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noncontroversial judicial appointments--those that ultimately
got bipartisan support and easily passed the Senate--are
having to wait longer for confirmation across the past four
presidencies of both parties.
As Republicans note, Democrats set the stage for today's
problems by filibustering George W. Bush's judicial nominees.
Now the problem has grown worse in the Obama years, as
Republicans turn the tables and bottle up Democratic
nominations.
The study found that 35.7% of George W. Bush's
noncontroversial circuit-court nominees had to wait more than
200 days for confirmation--up from 22.2% for Bill Clinton.
During the Obama presidency, that percentage has soared to
63.6%. No Obama circuit-court nominee has been confirmed in
less than 100 days.
What's more, previously only more-sensitive appeals-court
nominations were filibustered; now it's also less-sensitive
district-court nominations.
It has been clear for a while that Washington has trouble
getting big things done. Judicial vacancies show it doesn't
do the smaller ones so well either.
____
dri,
Chicago, IL, May 16, 2013.
Senator Patrick Leahy,
Chairman Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Dear Chairman Leahy: The operations of the federal
judiciary are essential to maintaining the rule of law in
this country, the foundation for much of our economic life.
This lies in peril now as budget cuts have forced diminished
court staffing, court closures, compromised security, and
lengthy trial delays. This, of course, means that justice is
delayed. Since criminal trials must take priority, already
lengthy delays in civil trials become even longer. Perhaps
thousands of businesses will not survive the abeyance of
lengthy uncertainty over the outcome of litigation. We talk
of the effect on justice, we talk of the effect on businesses
but, at bottom, it is people's lives that are adversely
changed.
The U.S. Judicial Conference and the Administrative Office
of the U.S. Courts have petitioned for emergency funding of
$73 million that would replace only a small portion of the
$350 million in cuts forced upon them by sequestration. The
22,000 members of DRI--The Voice of the Defense Bar with one
voice wholeheartedly support their petition and urge that you
take whatever action is necessary to realize its fulfillment.
DRI will remain at the disposal of Congressional and White
House leaders to provide any expertise or support needed to
move funding forward.
Sincerely,
Mary Massaron Ross,
DRI President.
____
Judicial Conference
of the United States,
Washington, DC, May 14, 2013.
Hon. Sylvia Mathews Burwell,
Director, Office of Management and Budget, 17th Street NW,
Washington, DC.
Dear Director Burwell: We write on behalf of the Judicial
Conference of the United States to inform the Administration
of the Judiciary's decision to seek $72.9 million in fiscal
year 2013 emergency supplemental appropriations to address
critical needs resulting from sequestration cuts. The
supplemental request includes $31.5 million for the Courts
Salaries and Expenses account, and $41.4 million for the
Defender Services account. In accordance with 31 U.S.C. 1107,
we respectfully request that the President transmit the
Judiciary's supplemental requirements to Congress promptly
and without change. A detailed summary of this supplemental
request is included in Enclosure 1. A funding table and the
proposed legislative language are included in Enclosure 2.
Final enacted appropriations for fiscal year 2013, after
sequestration cuts are applied, reduce Judiciary funding
overall by nearly $350 million below fiscal year 2012
discretionary appropriations. Emergency measures have been
implemented throughout the federal court system to address
the drastically reduced funding levels under sequestration,
but the federal courts do not have the flexibility to absorb
such a large cut. The impacts of sequestration are compounded
by the fact that 100 percent of the cuts must be absorbed
with only six months remaining in the fiscal year. Unlike
some Executive Branch entities, the Judiciary has little
flexibility to move funds between appropriation accounts to
lessen the effects of sequestration. There are no lower-
priority programs to reduce in order to transfer funds to
other Judiciary accounts.
Section 251(b)(2)(A) of the Balanced Budget and Emergency
Deficit Control Act of 1985 allows for statutory spending
caps to be exceeded under certain conditions, including if
Congress and the President designate funding as an emergency
requirement. The Judiciary is confronting an unprecedented
fiscal crisis that could seriously compromise the
Constitutional mission of the United States courts. We
believe our supplemental request meets the threshold for
receiving an emergency designation.
The Judiciary's emergency actions to date do not constitute
a solution to the budget crisis facing the federal courts as
a result of sequestration. Instead, these actions represent a
conscientious effort to mitigate the adverse impact of
sequestration on court operations in an attempt to ensure
continued access to justice for the citizens of this country.
However, sequestration cuts have created an unprecedented
financial crisis that is impacting all facets of federal
court operations.
Finally, we note that Executive Branch agencies with
criminal justice responsibilities have had the flexibility
and resources to address their fiscal year 2013 sequestration
cuts. As a result, these agencies--which directly impact the
workload of the Judiciary--have been able to avoid furloughs.
While the Judiciary has the authority to transfer funds
between appropriation accounts, it does not have the
available funding flexibility needed to do so. Instead, we
must ask Congress to approve a supplemental appropriation.
Please feel free to contact us if you have any questions
regarding this supplemental appropriations request.
Sincerely,
Julia S. Gibbons,
Chair, Judicial Conference, Committee on the Budget.
Thomas F. Hogan,
Secretary, Judicial Conference of the U.S.
____
Summary of Judiciary Fiscal Year 2013 Emergency Supplemental Request
COURTS SALARIES AND EXPENSES
The Courts Salaries and Expenses account funds the bulk of
federal court operations including the operations of the
appellate, district, and bankruptcy courts, and probation and
pretrial services offices. This account was cut $239 million
below fiscal year 2012 levels under sequestration. Given the
decentralized nature of the federal court system, individual
courts will decide how to absorb the majority of cuts
required by sequestration. To mitigate the impact of
sequestration on employees, the courts have slashed non-
salary budgets but even with these reductions, on a national
level, up to 1,000 court employees could be laid off over the
remainder of the fiscal year and thousands of employees face
furloughs. These staffing losses will come on top of the
nearly 2,200 probation and pretrial services officers and
clerks' office staff the courts have already lost since the
end of July 2011, a 10 percent loss of staff. Cuts to clerks'
office staffing will result in the slower processing of civil
and bankruptcy cases which will impact individuals, small
businesses, and corporations seeking to resolve disputes in
the federal courts.
Sequestration cuts will also impact public safety. Our
probation and pretrial services officers are federal law
enforcement officers that supervise defendants awaiting trial
and offenders on post-conviction release. Cuts to officer
staffing levels mean less deterrence, detection, and response
to possible resumed criminal activity by federal defendants
and offenders in the community. In addition, funding to
support GPS and other electronic monitoring of potentially
dangerous defendants and offenders has been cut 20 percent.
Equivalent cuts to funding for drug testing, substance abuse
and mental health treatment of federal defendants and
offenders have also been made, increasing further the risk to
public safety.
Of the $31.5 million in fiscal year 2013 supplemental
funding requested for Courts Salaries and Expenses, $18.5
million will be used to avoid further staffing cuts and
furloughs in clerks of court and probation and pretrial
services offices during the fourth quarter of fiscal year
2013. This funding will save the jobs of approximately 500
court employees and avoid 14,400 planned furlough days for
3,300 court employees. The remaining $13.0 million will
restore half of the sequestration cuts to drug testing,
substance abuse, and mental health treatment services for
defendants awaiting trial and offenders released from prison.
Timely diagnosis and treatment of drug and mental health
conditions is critical to defendants/offenders successfully
completing their terms of release and ensuring community
safety.
DEFENDER SERVICES
The Judiciary's Defender Services program provides
financially eligible federal defendants with defense counsel
and related services that, under the Sixth Amendment and the
Criminal Justice Act, the government must fund in order to
prosecute cases. Program costs are essentially comprised of
compensation to federal defender organization (FDO) staff,
payments to private ``panel'' attorneys, case related
expenses (expert witnesses, interpreters, investigations,
etc.), space rent, and other fixed costs. Consequently, the
primary options for absorbing the $52 million sequestration
cut are reducing FDO staffing levels and/or deferring
payments to private panel attorneys. Reducing FDO staff
results in appointments being shifted to panel attorneys thus
increasing those costs, and deferring panel attorney payments
into fiscal year 2014 only adds to fiscal year 2014
appropriations requirements. Absent supplemental funding, the
Judiciary will need to suspend payments to private panel
attorneys for the last 15 business days (3 weeks) of the
fiscal year, and FDOs will need to further reduce costs
through staffing cuts and by furloughing employees for a
national average of approximately 15 days for the remainder
of the fiscal year.
[[Page S3602]]
We are aware that the U.S. Department of Justice is not
furloughing staff so we anticipate the pace at which criminal
cases requiring appointment of defense counsel will continue
unabated, while resources in the Defender Services program
are diminishing. Between October 2012 and April 2013, FDOs
downsized by 113 employees and other employees were
furloughed. Further FDO cuts and the anticipated suspension
of panel attorney payments will create the real possibility
that panel attorneys may decline to accept Criminal Justice
Act appointments in cases that otherwise would have been
represented by FDOs. Delays in the cases moving forward may
result in violations of constitutional and statutory speedy
trial mandates resulting in criminal cases being dismissed.
Of the $41.4 million in supplemental funding requested for
Defender Services, $27.7 million is required to avoid
deferring payments to private attorneys for the last 15
business days (3 weeks) of the fiscal year. To address
staffing losses, $8.7 million is needed to avoid further
staffing cuts and furloughs in FDOs during the fourth quarter
of fiscal year 2013. This funding will save the jobs of
approximately 50 employees and avoid 9,600 planned furlough
days for 1,700 FDO employees. The remaining $5.0 million is
for projected defense representation and related expert costs
for high-threat trials, including high-threat cases in New
York and Boston that, absent sequestration, the Defender
Services program would have been able to absorb without the
need for supplemental funding.
____
FEDERAL JUDICIARY--FY 2013 SUPPLEMENTAL APPROPRIATIONS REQUEST
[$000]
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2012 FY 2013
-----------------------------------------------------------------------------------------------
Appropriation Account FY 2012 FY 2013 Full FY 2013 FY 2013 FY 2013 FY 2013
Enacted Year CR (P.L. Sequestration Available Supplemental Revised
Approp. 113-6) \1\ Cut \2\ Appropriation Request Appropriation
--------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. Supreme Court:
Salaries & Expenses................................. 74,819 74,684 (3,653) 71,030 -- 71,030
Care of Building and Grounds........................ 8,159 8,143 (410) 7,732 -- 7,732
U.S. Court of Appeals for the Federal Circuit........... 32,511 32,462 (1,509) 30,953 -- 30,953
U.S. Court of International Trade....................... 21,447 21,405 (992) 20,412 -- 20,412
Courts of Appeals, District Courts & OtherJudicial
Services (CADCOJS):
Salaries & Expenses.................................
Direct.......................................... 5,015,000 5,015,955 (239,114) 4,776,841 31,500 4,808,341
Vaccine Injury Fund............................. 5,000 4,990 .............. 4,990 -- 4,990
-----------------------------------------------------------------------------------------------
Total....................................... 5,020,000 5,020,945 (239,114) 4,781,831 31,500 4,813,331
Defender Services................................... 1,031,000 1,037,920 (51,865) 986,055 41,400 1,027,455
Fees of Jurors & Commissioners...................... 51,908 51,804 (2,611) 49,193 -- 49,193
Court Security...................................... 500,000 499,000 (25,153) 473,847 -- 473,847
-----------------------------------------------------------------------------------------------
Subtotal, CADCOJS............................... 6,602,908 6,609,670 (318,744) 6,290,926 72,900 6,363,826
Administrative Office................................... 82,909 82,743 (4,171) 78,572 -- 78,572
Federal Judicial Center................................. 27,000 26,946 (1,358) 25,588 -- 25,588
Judicial Retirement Funds (mandatory)................... 103,768 125,464 -- 125,464 -- 125,464
U.S. Sentencing Commission.............................. 16,500 16,467 (830) 15,637 -- 15,637
-----------------------------------------------------------------------------------------------
Total, The Judiciary........................ 6,970,021 6,997,983 (331,668) 6,666,314 72,900 6,739,214
Sequestration to Judiciary Fees......................... .............. .............. (13,974)
---------------------------------------------------------------
Total Judiciary Sequestration........................... .............. .............. (345,642)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Reflects Judiciary appropriations included in the FY 2013 full year CR (P.L. 113-6) as well as the reduction associated with the 0.2 percent across-
the-board rescission.
\2\ Reflects sequestration cuts calculated by the Office of Management and Budget on March 1, 2013.
Federal Judiciary FY 2013 Supplemental Appropriations Request
COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES
SALARIES AND EXPENSES
Bill Language
For an additional amount for `Courts of Appeals, District
Courts, and Other Judicial Services, Salaries and Expenses,'
$31,500,000, for emergency expenses of the courts for the
fiscal year ending September 30, 2013, including amounts
necessary to minimize staffing reductions and furloughs, and
for drug testing, drug treatment, and mental health treatment
services of offenders and defendants in the probation and
pretrial services program. Provided, That the amount provided
herein is designated by the Congress as an emergency
requirement pursuant to section 251(b)(2)(A) of the Balanced
Budget and Emergency Deficit Control Act of 1985, as amended.
Justification
$18.5 million will be used to avoid further staffing cuts
and furloughs in clerks of court and probation and pretrial
services offices during the fourth quarter of fiscal year
2013. This funding will save the jobs of approximately 500
court employees and avoid 14,400 planned furlough days for
3,300 court employees.
$13.0 million will restore half of the sequestration cuts
to drug testing, substance abuse, and mental health treatment
services for defendants awaiting trial and offenders released
from prison. Timely diagnosis and treatment of drug and
mental health conditions is critical to defendants/offenders
successfully completing their terms of release and ensuring
community safety.
DEFENDER SERVICES
Bill Language
For an additional amount for `Courts of Appeals, District
Courts, and Other Judicial Services, Defender Services,'
$41,400,000, for emergency expenses related to the
representation of defendants under the Criminal Justice Act
for the fiscal year ending September 30, 2013, including
amounts necessary to minimize staffing reductions and
furloughs in federal defender organizations, for the
compensation and reimbursement of panel attorneys and
experts, and for representation costs associated with high-
threat trials. Provided, That the amount provided herein is
designated by the Congress as an emergency requirement
pursuant to section 251(b)(2)(A) of the Balanced Budget and
Emergency Deficit Control Act of 1985, as amended.
Justification
$27.7 million is required to avoid deferring payments to
private attorneys representing indigent defendants under the
Criminal Justice Act for the last 15 business days (3 weeks)
of the fiscal year. Without additional funding, sequestration
cuts will necessitate that these expenses shift to fiscal
year 2014. These costs were not included in the Judiciary's
fiscal year 2014 budget request to Congress.
$8.7 million will avoid further staffing cuts through
layoffs, buyouts and early outs, and furloughs in federal
defender organizations during the fourth quarter of fiscal
year 2013. This funding will save the jobs of approximately
50 employees and avoid 9,600 planned furlough days for 1,700
federal defender organization employees.
The remaining $5.0 million is for projected defense
representation and related expert costs for high-threat
trials, including high-threat cases in New York and Boston
that, absent sequestration, the Defender Services program
would have been able to absorb without the need for
supplemental funding.
Mr. LEAHY. I yield to my distinguished colleague.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Madam President, I rise to speak to the nomination of
Michael McShane to serve on the U.S. district court of Eugene. Judge
McShane is an exceptionally qualified nominee and will make a terrific
addition to the Federal bench in Oregon. Over his entire career, Judge
McShane has demonstrated a tremendous commitment to the law, to public
service, and to our State.
He came to Oregon 30 years ago to serve communities through the
Jesuit Volunteer Corps. The Jesuit Volunteer Corps, known as JVC, is
folks, often graduating from college, who dedicate 1 year of direct
service to the poor, simple living, and spiritual community. They work
in locations such as food banks and local church programs, to work with
at-risk youth and work of this nature. They work directly to help make
the world a better place and do so in an exceptional manner. Anyone who
comes out of college and dedicates 1 year to such an effort certainly
starts in a very sound place.
Since that time, Judge McShane has remained deeply dedicated both to
Oregon and to serving those in our society most in need. After
graduating from Lewis & Clark Law School, Judge McShane went to work as
a public defender in Portland. For more than 10
[[Page S3603]]
years, he represented those who otherwise would have no voice in our
legal system. After his time as a public defender, he went to work on
the circuit court, first as a judge pro tem and then simply as a judge.
In the approximately 15 years he served on the circuit court, Judge
McShane has developed an excellent reputation for fairness,
thoroughness, and accuracy.
He also continued to serve in the community as a foster parent and
adjunct law professor at Lewis & Clark College. In one letter of
support I received, a member of the Portland law community summed up
his nomination by saying:
What stands out to me is that Judge McShane lives and
conducts his personal life with the same integrity, honor,
compassion and diligence as he displays as a judge.
Judge McShane will make an excellent addition to the U.S. district
court. I urge my colleagues present tonight to join in support for his
nomination.
I yield the floor.
Mr. GRASSLEY. Mr. President, before we vote on the nominees today, I
want to update my colleagues on where we stand with judicial
confirmations. After tonight, the Senate will have confirmed 190
district and circuit nominees; we have defeated two. That's 190-2;
which is a .990 batting average. That is an outstanding record. Who can
complain about achieving 99 percent?
So far this year, the Senate has confirmed 17 nominees. Today, if
Judge Chappell and Judge McShane are confirmed, we confirm the
eighteenth and nineteenth nominees. At this stage in President Bush's
second term, only 4 were confirmed. That is a record of 19 to 4.
This President is being treated exceptionally fairly.
The President has recently submitted a few new nominations. I know I
have been reminding him that we can't do anything about vacancies
without him first sending up nominees.
But again, even with the recent nominations, 58 of 82 nominations
still have no nominee. And for judicial emergencies, only 6 of 32
vacancies have a nominee.
So I just wanted to set the record straight before we vote on these
nominees. I expect they will both be confirmed tonight and I
congratulate them on their confirmations.
Judge Chappell received her B.A. from the University of Wisconsin--
Madison in 1984 and her J.D. from Nova Southeastern University Law
School in 1987. Upon graduation, Judge Chappell became an assistant
State Attorney in the Fort Myers Misdemeanor Division. In 1988, she
began prosecuting felony cases including crimes against children,
drugs, property crimes, and crimes against persons. In 1991, she was
promoted to office head of the Hendry and Glades County office where
she prosecuted cases and supervised the attorneys, secretaries, and
investigators. From 1993 until 1998, she acted as the supervisor of the
Fort Myers Circuit Court Trial Division where she served as chair of
the hiring committee and created a training course for new assistant
state attorneys. From 1998 to 2000, Judge Chappell served as the office
head of the Charlotte County office.
In 2000, Judge Chappell was appointed by then-Governor Jeb Bush as a
Lee County Court judge for the Twentieth Judicial Circuit. In 2002, she
was elected to serve a 6-year term for this position. There, she had
jurisdiction over misdemeanor cases and civil disputes involving
$15,000 or less. She resigned in 2003 due to her selection as a United
States magistrate judge for the Middle District of Florida. There she
handles criminal and civil dockets.
According to her questionnaire, Judge Chappell has presided over
approximately 519 cases that have gone to verdict or judgment.
The American Bar Association's Standing Committee on the Federal
Judiciary gave her a Unanimous ``Qualified'' rating.
Judge McShane received his B.A. from Gonzaga University in 1983 and
his J.D. from Northwestern School of Law at Lewis and Clark College in
1988. For the first 9 years of his law career, Judge McShane worked as
a public defender in Portland, OR, representing indigent clients facing
criminal prosecution, the majority accused of felonies. During this
time, he held the positions of Senior Felony Attorney and Misdemeanor
Supervisor. According to his questionnaire, as a practicing attorney,
Judge McShane tried over 500 trials to verdict.
In 1997, Judge McShane was appointed as a Multnomah County Circuit
Court judge pro tem by then-Chief Justice of the Oregon Supreme Court,
Wallace Carson. He presided over misdemeanor trials, criminal
arraignments, traffic matters, stalking protective orders, probation
hearings, small claims, and forcible entry and detainer matters.
In 2001, Judge McShane was appointed to the Multnomah County Circuit
Court by then-Governor John A. Kitzhaber. In 2002, he was elected to
the position and re-elected in 2008. He served as a trial judge with
general jurisdiction and presided over criminal and civil matters. In
2012, he was assigned to the family law bench. According to his
questionnaire, Judge McShane has presided over thousands of cases, of
which approximately 1,600 cases went to verdict.
The American Bar Association's Standing Committee on the Federal
Judiciary gave him a Majority ``Qualified'' and Minority ``Well
Qualified'' rating.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cowan). The clerk will call the roll.
The assistant legislative 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. JOHANNS. Mr. President, we yield all time on our side.
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the nomination of Sheri Polster
Chappell, of Florida, to be United States District Judge for the Middle
District of Florida?
Mr. JOHANNS. 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 assistant bill clerk called the roll.
The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in
the Chamber desiring to vote?
Mr. DURBIN. I announce that the Senator from North Dakota (Ms.
Heitkamp), the Senator from Louisiana (Ms. Landrieu), the Senator from
New Jersey (Mr. Lautenberg), and the Senator from Arkansas (Mr. Pryor)
are necessarily absent.
I further announce that, if present and voting, the Senator from
Louisiana (Ms. Landrieu) would each vote ``yea.''
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Tennessee (Mr. Alexander), the Senator from North Dakota
(Mr. Hoeven), the Senator from Kentucky (Mr. Paul), the Senator from
South Carolina (Mr. Scott), the Senator from Louisiana (Mr. Vitter),
and the Senator from Mississippi (Mr. Wicker).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea'' and the Senator from South Carolina
(Mr. Scott) would have voted ``yea.''
The result was announced--yeas 90, nays 0, as follows:
[Rollcall Vote No. 128 Ex.]
YEAS--90
Ayotte
Baldwin
Barrasso
Baucus
Begich
Bennet
Blumenthal
Blunt
Boozman
Boxer
Brown
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Coons
Corker
Cornyn
Cowan
Crapo
Cruz
Donnelly
Durbin
Enzi
Feinstein
Fischer
Flake
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heinrich
Heller
Hirono
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kaine
King
Kirk
Klobuchar
Leahy
Lee
Levin
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Nelson
Portman
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schatz
Schumer
Sessions
Shaheen
Shelby
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
[[Page S3604]]
NOT VOTING--10
Alexander
Heitkamp
Hoeven
Landrieu
Lautenberg
Paul
Pryor
Scott
Vitter
Wicker
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the nomination of Michael J.
McShane, of Oregon, to be United States District Judge for the District
of Oregon?
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 be immediately notified of the Senate's action.
____________________