[Congressional Record Volume 159, Number 73 (Wednesday, May 22, 2013)]
[Senate]
[Pages S3704-S3706]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


             UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR

  Mr. McCONNELL. Again, I remind my colleagues that we confirmed 19 
judges this year. We will have 21 judges confirmed by the end of this 
week.
  Therefore, bearing that in mind, I ask unanimous consent that the 
cloture motion filed on Calendar No. 95 be vitiated and the Senate 
proceed to the consideration of this nomination at a time on Tuesday, 
June 4, to be determined by the majority leader after consultation with 
the Republican leader; further, I ask that there be 1 hour of debate on 
the nomination equally divided in the usual form; that at the 
expiration or yielding back of that time, the Senate proceed to vote on 
the confirmation of the nomination with no intervening action or 
debate.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. REID. I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  The majority leader.
  Mr. REID. Mr. President, this good man, Sri Srinivasan, was first 
nominated in June of 2012. He is a brilliant man. He is an honors 
graduate from Stanford Law School.
  Justice Roberts left that court in 2005. We have been trying to fill 
spots on that court for all of these many years--6 or 7 years. The DC 
Circuit is the court that some say is more important than the Supreme 
Court. No judge has been confirmed in the DC Circuit since 2006. It is 
an 11-member court established by law, so to have a 7-member court is 
unfair.
  We have had one woman, for example, Caitlin Halligan, a highly 
qualified nominee, who has been filibustered twice by the Republicans. 
She was nominated to fill the seat of Justice Roberts.
  The man we are talking about today has been nominated to a seat that 
has been vacant for 5 years. The four seats were vacated in 2005, 2008 
and have senior status by two other judges in the last year or two. His 
nomination has pending for 345 days. That is by far the longest wait of 
any of the judicial nominations currently awaiting confirmation by the 
full Senate.
  My friend the Republican leader talks about Bush's second term and 
how he didn't get many nominations. He didn't get many nominations at 
that time because we approved so many in the first term. It is just the 
opposite with President Obama. Eighteen Bush circuit court nominees 
were confirmed within 7 days or less after being reported by the 
committee.
  A Republican-controlled Senate filed cloture on three circuit court 
judges--including some real controversial ones, such as, William Pryor 
and Janice Rogers Brown. Cloture was filed in less than 1 week.
  There has been a stall going on in the Senate for years. It doesn't 
take a mathematician to figure it out. We are being held up on 
nominations and legislation.
  President Obama has been trying to have the people he wants as part 
of his team for 4\1/2\ years. There are multiple vacancies in this 
court. It has been reported out unanimously by the committee.
  There is all of this stalling and waiting so that maybe they will be 
able to render another couple of opinions over the next couple weeks 
and thwart the law which says there should be 11 people on the court. 
But to pack the court with what has been determined the number of 
people who should be on that court? Is it right to have a total of six 
members of the Circuit Court? Is it packing the court because we want 
to fill the court as it is called for in the Constitution? No. We 
should vote on the nomination of this young man today so he can go to 
work and help fill one of the four vacancies that has been long 
standing in that court for 5 or 6 or 7 years.

  Unless there is an agreement, we will have a cloture vote at the end 
of tomorrow, and if they want to use their 30 hours, which they are 
entitled to do under the arrangement we made at the beginning of this 
year, they can use the 30 hours. But we are going to get this young man 
confirmed. It is the right thing to do and we are going to get him 
confirmed as soon as possible. Having waited 345 days, I think he 
deserves it.
  The ACTING PRESIDENT pro tempore. The Republican leader.
  Mr. McCONNELL. Mr. President, the first time this nominee, who was 
reported out of committee unanimously, appeared on the Executive 
Calendar was 2 days ago. President Obama waited years before making any 
nominations to the DC Circuit. Then he made just one--Caitlin 
Halligan--and this is his second nominee to that court.
  More broadly, the issue is, How has the Senate been treating 
President Obama? We have confirmed a total of 190 Obama judicial 
nominations. We have defeated two. That is 190 to 2. There are 70 
percent of the Federal judicial seats without any nominees--70 percent 
of the vacancies without any nominees.
  Look, this is a manufactured crisis. The core point here, I would say 
to my friend the majority leader: We have a good relationship. We work 
together every day. But the majority leader gave his word to the Senate 
that we would determine what the rules are for this Congress. A number 
of my Members felt it was settled. We voted for resolutions and some 
rules changes at the beginning of the year based upon the majority 
leader's word. It is important for his word to mean something, not just 
to his Members but to ours.
  Statistically, it is not true. The math can't be denied. It is simply 
not true that we have been mistreating the President in any way with 
regard to the confirmation process. With regard to the way the Senate 
itself is working, the majority leader has been actually quite 
complimentary, and I give him credit for helping us to get back to 
normal here, to have a regular process on bills. WRDA is a good example 
of where we were calling up amendments. Many of them we are getting on 
without even a motion to proceed, based upon the majority leader's 
representation we are going to have votes and, by golly, we have been 
having votes and, amazingly enough, Senators like that. They are not 
marginalized by a process under which they don't get to participate. So 
I think we have made an enormous amount of progress. I wish to make 
sure the majority leader intends to keep his word, so we can continue 
to have the kind of collegial, constructive atmosphere we have had this 
year in the Senate throughout the balance of this Congress.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. We have to work together here, but it is mutual work, it is 
not all on one side. It is not my word versus somebody else's word.
  In 2005, we had a knockdown, drag-out battle here. My friend the 
Republican leader, along with others, gave speeches on the Senate floor 
that the process regarding judges wasn't moving along quickly enough. 
As a result of that crisis, in an effort to resolve the matter, we 
agreed to put some people on the bench we have regretted since then, 
including Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh, 
but we agreed to that and they are on the court now. We need a balance.
  My friend has focused on judicial nominations. We have been doing 
better there. But other nominations, not so. We can talk about all the 
rights of the minority and all that. The President of the United 
States, whether it is George Bush or President Obama or Jeb Bush or 
Hillary Clinton, whoever it might be, deserves the right to have the 
people they want to work there and not be held up for months and months 
to fill some of these minor posts. I could run through a list of names 
that were held up and have been held up for a long time.
  My friend the Republican leader said during the squabble we had 
previously how he agreed with the fact we should change the rules. I am 
not saying we are going to change the rules, but I am saying we have to 
do a better job than what is going on around here. This is no threat. 
We need to look at the facts. Look at the facts.
  We are going to continue working to try to work through this morass 
we have here. But let's not focus only on the judiciary. We have a lot 
of problems with regular nominations. We haven't talked about 
legislation. We are doing a little better on that, but a perfect 
example of that is what is going on with the budget. People begged 
around here, yelled and screamed and fought, for regular order. They 
get it and then they don't want it.
  I am convinced we need to move forward. I think one of the things we 
should do with something that has been reported out of the committee 18

[[Page S3705]]

to nothing, and there have been vacancies for 6 or 7 years, is we 
should do that immediately, not wait for a couple of weeks to do it. If 
somebody cares about this good man, his record is available. They can 
read it in 10 minutes.
  I am sorry I had to object to my friend's unanimous consent request, 
but it was easy to do because the request is simply wrong.
  The ACTING PRESIDENT pro tempore. The Republican leader.
  Mr. McCONNELL. Mr. President, let me thank my friend the majority 
leader for confirming that he intends to keep his word.
  With regard to judicial nominations, the facts are not irrelevant. Of 
the 33 nominations in the Senate we have acted on this year--this 
calendar year--cloture has been required on three: Brennan, Hagel, and 
Halligan, and cloture was not invoked on only one. We have confirmed 33 
boards--actually judges, agencies--33 nominations confirmed this year. 
Cloture was required on only three, and cloture was not invoked on only 
one.
  My only point to my friend the majority leader is, the math is hard 
to dispute. We have made a major effort here to move the Senate back in 
the direction that I know the majority leader and I agree on, the way 
the Senate ought to operate. We have made major progress. I think that 
progress needs to be recognized. My friend the majority leader said it 
on various occasions this year in connection with bills we have 
processed in a fair and open way with plenty of amendments and an 
opportunity for everybody to be involved. So let's tone down the 
rhetoric.
  I want to say again I appreciate the majority leader's commitment to 
keep his word. It is important around here. It has a lot to do with how 
we go forward. I think the conversation this morning has been 
constructive, and I thank him. I am sorry he feels we can't wait 10 
days to do this nominee, particularly since there are circuit judges, I 
believe, and maybe district judges as well, already on the calendar. 
The way we have been trying to do it around here that I thought the 
majority leader agreed with is we would take them up in the order they 
came out and appeared on the calendar. I know, for example, there is a 
judge from Wyoming that Senators from Wyoming in my party are for, and 
they are asking me why this particular nominee was jumped over, over 
their nominee, because we have been sequencing these, I believe, have 
we not, as they come out.

  So here we have a nominee we all agree on for a court that is not 
overloaded with work--a nomination only recently made and recently 
confirmed--and the only dispute here seems to be over whether we do it 
this week or a week from now. Thus, my friend, that is why I call this 
a manufactured crisis. There is no crisis here. We are not arguing over 
this nominee. We like him. So the majority leader can make us have a 
cloture vote this week and we can skip over the judges who have been 
waiting who came out of committee and are on the calendar if he so 
chooses; there are some advantages to being the majority leader. But 
goodness gracious, we have enough arguments here over things we 
disagree on, and it sounds to me as though we are having an argument 
over something we agree on.
  So I hope we can tone down the rhetoric and continue the good way we 
have been operating this year. We have big, controversial issues coming 
our way. Let's don't make being a Senator and functioning in the Senate 
any more difficult than it is anyway, because we have big differences 
about the future of the country. But let's have those debates in a 
collegial way and not manufacture crises that don't exist.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, everyone knows that numbers--we can show 
anything we want with numbers. The fact is there has been slow-walking 
done on the President's nominations, and we can look at how they do 
that. It has been interesting. It is a new way of doing things around 
here. A nominee comes up and what the committee does is submit hundreds 
and hundreds of questions. One of our nominees got 1,000 questions in 
writing the person had to respond to. That has never happened before. 
We have all of these ways of stalling.
  I know the Senators from Wyoming want to vote on and have spoken to 
me about Gregory Alan Phillips to be a circuit court judge for the 10th 
Circuit. Let's do it right now. Let's do him today. The Wyoming 
Senators shouldn't have to wait.
  That is why I ask unanimous consent that we do--I am sorry. I like 
him, but the man on whom we are going to invoke cloture graduated law 
school with my son. He is a fine man, but I am not the only one who 
messes up his name. He was a basketball player in Kansas. He said his 
parents came to all of his games and they cringed every time his name 
was pronounced because it is a hard name to pronounce.
  I ask unanimous consent that at a time to be determined by me, the 
Senate proceed to executive session to consider Calendar No. 95, 
Srikanth Srinivasan; that there be 1 hour of debate equally divided in 
the usual form; that upon the use or yielding back of that time the 
Senate proceed to vote without intervening action or debate on the 
nomination; the motion to reconsider be considered made and laid upon 
the table, with no intervening action or debate; that no further 
motions be in order to the nomination; that any statements related to 
the nomination be printed in the Record; and that President Obama be 
immediately notified of the Senate's action and the Senate then resume 
legislative session.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object, again, I 
think what we are witnessing here is a manufactured crisis. We are 
doing four judges this week--this very week--four judges. There are 
five others on the calendar before the nominee the majority leader has 
been trying to get us to process this week. I think it is a better 
policy to continue to set votes that the facts show are in a timely 
way.
  Why are we doing this? We are not having a problem confirming judges. 
I don't understand. Why are we doing this? It doesn't make any sense. 
We have big issues coming our way on immigration, for example, that are 
going to be very controversial. Members on both sides have been making 
every effort to tone down the rhetoric, to get us in the proper place 
to deal with a very difficult and contentious piece of legislation.
  Why are we doing this? What is the point? All of these judges are 
going to be approved in a relatively short period of time in an orderly 
process we have been working on all year that has produced four times 
as many judicial confirmations for President Obama in his second term 
as President Bush had at this point in his first term when we had a 
Republican Senate.
  This is an unprecedented, rapid pace for confirmations. So I would 
say to my friend, why are we doing this? I am going to object, but I 
would like to know what the point is. What is the problem?
  Mr. REID. Mr. President, I will be happy to respond to what the 
problem is.
  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Senator Leahy said yesterday:

       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 [court] nominees was 5 times 
     longer than for President Bush's. President Obama's circuit 
     [court] 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.

  So 14 days compared to 130.5. Things are going along really well? I 
do not think so.
  On with what Senator Leahy said:

       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.

  So that is why we are doing this. There is no reason to wait 10 days 
or 2 weeks for this good man to fill a seat on a court that has been 
waiting for people to get on the court for 7 years. We have a majority 
in that court that

[[Page S3706]]

is wreaking havoc with the country. For the first time in 230 years, 
they rule the President cannot make a recess appointment. So, yes, 
there is a crisis, and we need to do something about it. One way to 
resolve part of it is to get this good man on the court now.
  The ACTING PRESIDENT pro tempore. The Republican leader.
  Mr. McCONNELL. Mr. President, I gather, listening to the majority 
leader, the whole purpose is to stack the court. So the real issue, I 
guess, is he disagrees with the rulings on the DC Circuit.
  Look, we have been voting to confirm judges we know we will not 
prefer the outcome of their decisions. But it sounds to me like the 
majority leader has finally kind of fessed up to what the real problem 
is. The reason it needs to be done this week versus next week is 
because he does not like what the DC Circuit is doing. So it does not 
have anything to do with caseload or anything else. In fact, what is 
unprecedented is confirming a DC Circuit court judge 2 days after he 
has been on the calendar--2 days. Goodness. What is the difference 
between now and next week? I find it impossible to understand.
  In fact, I do not understand why we are having this whole discussion 
this morning. We have plenty of things to debate around here and plenty 
of things we disagree upon. We have had an orderly process. This 
Congress has done well: 19 judges compared to 4 for President Bush at 
this point.
  If there is still a consent request pending, I object.
  The ACTING PRESIDENT pro tempore. Objection is heard.
  Mr. McCONNELL. I think the majority leader and I ought to sit down 
like we normally do and figure this out and eliminate a manufactured 
crisis and go forward.
  The ACTING PRESIDENT pro tempore. The majority leader
  Mr. REID. Mr. President, in school we studied a lot of things. But 
one of the things I cannot forget is George Orwell's ``1984.'' It was 
an interesting book because in that book he talked about people coming 
to a time when whatever they said was factually just the opposite.
  Here is where we are now. It has been legislatively determined the DC 
Circuit should have 11 members. My friend says we are stacking the 
court? There are four vacancies. Stacking the court by having eight 
there instead of seven? That math is not very good.
  My friend also keeps talking about that the DC Circuit does not have 
anything to do. The DC Circuit is now more than one-third vacant with 
four judicial vacancies. Mr. Srinivasan is nominated to the eighth seat 
on the DC Circuit. Three still remain empty.
  And, yes, we are. The country is concerned about the decisions coming 
out of that court. The DC Circuit Court of Appeals is considered by 
some the most important court in the land. But by virtually everybody, 
it is ``the second most important court in the land'' because of the 
complex nature of the cases they handle. The court reviews complicated 
decisions and rulemaking of many Federal agencies and in recent years 
has handled some of the most important terrorism and enemy combatant 
and detention cases since the attacks of September 11. These cases are 
very complex in nature, requiring additional time for consideration.
  Congress took action to address these concerns about their caseload 
by decreasing the number of judgeships in 2008 from 12 to 11. Congress 
has set the number of judgeships needed by the court at 11. The court 
should not be understaffed by one-third.
  In reality, according to the Administrative Office of U.S. Courts, 
the caseload per active judge has increased by 50 percent since 2005, 
when the Senate confirmed President Bush's nominee to fill the 11th 
seat on the DC Circuit.
  So Senate Republicans willingly confirmed President Bush's nominees 
to the 9th, 10th, and 11th seats on the DC Circuit. We did not think 
they were stacking it. I did not particularly like some of the people 
they put on there, but it was not stacking it. That is what the 
legislation called for.
  This good man is President Obama's second nominee to the DC Circuit 
to fill the eighth seat, and they filibustered Halligan twice.
  So this is a situation that needs to be resolved quickly. We cannot 
have the second, or first, most important court in the land one-third 
vacant. We are stacking the court with one person? I think not.
  So we can stay here longer, but I have made my point. One thing I 
have to say to my friend, although we have gotten into a few of these 
little conversations before on the Senate floor, I will wind up getting 
the last word.
  The ACTING PRESIDENT pro tempore. The Republican leader.
  Mr. McCONNELL. Yes, I know the majority leader will always have the 
last word. That is the advantage of being in the majority and not the 
minority. I think it has been actually a good discussion this morning. 
I think we have demonstrated there is no real problem. We have 
confirmed the President's nominees both for the judiciary and for the 
executive branch in a very timely fashion, and we will continue to 
process these judges in consultation with the majority leader as they 
come along.

  The ACTING PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, the only thing I would say is, what about 
the judge from Wyoming? Why don't we do that today? Could there be a 
more Republican State in the country than Wyoming? Maybe. I do not 
know. Maybe Idaho is vying for No. 1. But I am willing to approve this 
judge today. Why don't we vote on him today?
  Well, if you want to go ahead and have us invoke cloture on this 
other guy, we will do that, but I am willing to vote on the Wyoming guy 
today.
  Mr. McCONNELL. Since the majority leader always reminds me he has the 
last word, I am hesitant to speak again. But we will continue to 
process these judges in an orderly fashion, as we have all year long, 
and, hopefully, he and I can discuss this further off the floor and 
find a way forward.
  Mr. REID. I do not want anyone thinking I am not keeping my word. I 
was not going to say anything, but I thought I said I would get the 
last word.
  So Senator McConnell can say something now, and I will not get the 
last word.

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