[Congressional Record Volume 159, Number 74 (Thursday, May 23, 2013)]
[Senate]
[Pages S3809-S3816]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF SRIKANTH SRINIVASAN TO BE UNITED STATES CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA 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 legislative clerk read the nomination of Srikanth Srinivasan, of
Virginia, to be United States Circuit Judge for the District of
Columbia Circuit.
The PRESIDING OFFICER. Under the previous order, there will be 60
minutes of debate equally divided in the usual form.
The Senator from Tennessee.
Mr. ALEXANDER. Madam President, I will conclude for those who are
expecting to do that, but these are timely remarks.
So, Mr. Srinivasan, nominated on June 11, 2012--no hearing by the
Democratic majority and the executive committee, I wonder why;
nominated January 4 by President Obama this year again, no hearing
until April 10. If there is any delay there, it has no fault anywhere
on the Republican side. May 6, questions returned; no nominee is
considered by the committee until his questions come back; marked up
May 16 last week, 18 to 0, unanimous; came to the floor on Monday and
the Republican leader moved yesterday to ask unanimous consent that we
consider an up-or-down vote for Mr. Srinivasan when we return after a
week, which means he would have been fully considered then, to which
the majority leader put down a cloture motion.
Now he has removed the cloture motion but there was no need for the
cloture motion. The only suggestion may be he did it, he made it so it
would look as though there was some delay over here, but there is no
delay. Mr. Srinivasan has broad support. We are ready to vote for him
up or down. I think it is time we got away from this idea of
manufacturing a crisis about nominations when in fact we have made it
easier for any President to offer his nominations, and the majority
leader and Republican leader agreed at the beginning of this year when
we did that, that that was the end of the rule changes for the Congress
in this Congress.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. BURR. Madam President, I ask unanimous consent to speak for 5
minutes on the Feinstein amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BURR. Madam President, let me first say about the comments of
Senator Alexander, you see why he is a former university president, a
Governor, a Secretary of Education, a candidate for President, and now
some would call him a Senator. I think you would call him a statesman,
because he tries to lay it out in a way we can all understand it, with
facts and not hyperbole, and this is an opportunity for us on both
sides to step back from the brink and actually do the people's
business, to get something done, to solve big problems.
I came to the floor to talk on the Feinstein amendment, knowing it is
not up for an hour--and I will be very brief, to my colleague from
Virginia, because I know he wants to talk about judges--primarily
because there is some misinformation that has been stated. Let me recap
the tobacco industry in a very brief summary.
Tobacco, like many agricultural products, for years received a price
support system that the Federal Government, the Congress of the United
States, put in place. A number of years ago, Members of Congress said,
for obvious reasons, the Federal Government probably should not have a
price support on something we consider not to be best for people's
health. At that time farmers reluctantly listened to Members of
Congress who said the international market should be open to you and we
should do our best to make it unlimited, and we did. At that time we
eliminated the price support system.
Senator Feinstein came to the floor--I do not think she did this
intentionally--and she said it costs the American taxpayer $10 billion.
In fact, there was not one dime of American taxpayer money that went to
the tobacco buyer; 100 percent of the cost of the elimination of that
program was absorbed by the tobacco companies. So, yes, if the purchase
of a pack of cigarettes and the profit that goes to a tobacco company
and the $1.01 in Federal taxes they pay per pack of cigarettes is the
American taxpayer paying the price of the buyout, she is right. I am
not sure you can make that connection.
But I want to state for my colleagues: The Federal Treasury did not
pay $10 billion to buy out tobacco farmers. It was the companies, the
ones that understand they have to have a viable, abundant source of
product. Sixty percent of what we grow in the United States is shipped
for export. It does not go to the domestic market.
Let me say to my colleague, if the intention of this is to be
punitive to this product, for gosh sakes, come to the floor; change
your amendment; let's vote up or down as to whether tobacco is going to
be legal. If the purpose here is to suggest we are going to save
taxpayer money, let me suggest if you put every tobacco farmer out of
business--and this is the commodity that achieves, actually, our best
balance of trade in agricultural products--you would make a real long-
term mistake. The only thing this commodity, this agricultural
commodity, asks is let us participate in the Federal Crop Insurance
Program. Without that protection it is impossible for my neighbor, your
neighbor, the backbone of the community--a farmer--to go to a bank and
say: Can you lend me enough money to plant my crop this year? And if
Mother Nature is good and I work hard I am going to be able to sell
this product, I am going to be able to pay you back, and I am going to
be able to make a profit to feed my family. Without that assurance of a
safety net they would never get the bank to loan the money.
This is about availability of capital, this one cost. Why in the
world we would pick one commodity out of the entire agricultural
industry and say everybody else can participate in the crop insurance
program but you can't is insane.
Let me say to my colleague from California, Senator Feinstein, I
don't think this was intentional. I think she either got bad staff
information or she made a gaffe.
To my colleagues, let me encourage you, vote against this amendment.
Don't do this to a piece of the agricultural community that is
profitable, that works hard, but, more importantly, contributes a lot
to the backbone of this country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. KAINE. Madam President, I rise to support the nomination of
Srikanth Srinivasan to be judge for the U.S. Court of Appeals for the
D.C. Circuit. This matter will be before us for a vote later today. I
want to talk for a bit about Sri's significant qualifications. I am
going to discount the fact that he was born in Kansas and raised in
Kansas, as I was. I will not take that into account. I will discount
the fact he lives in Virginia as I do, and focus on other
qualifications because he has them by the boatload.
Sri has a wonderful background that equips him for this most
important judicial position, and this has been a position that has been
vacant since June of 2008. He was an undergraduate and then law degree
and then business degree, MBA at Stanford after he grew up in Lawrence,
KS. Like many law graduates, his next step was to work in a clerkship
with appellate judges. He
[[Page S3810]]
worked first for a wonderful Virginia jurist, Judge J. Harvie
Wilkinson, who was the chief judge of the Fourth Circuit Court of
Appeals headquartered in Richmond. Judge Wilkinson is well known as a
superb legal scholar and judge.
After he completed that clerkship, he had the honor of being selected
to work as a clerk for Justice Sandra Day O'Connor, also a tremendous
honor for a young lawyer. I talked at length with Mr. Srinivasan and
heard about the fact that he learned a great deal from both of these
judges about judicial temperament and the importance of so many aspects
to be a good judge.
Sri had the expertise developed in private practice at one of
America's major firms, O'Melveny and Myers. O'Melveny and Myers has had
a very significant pro bono practice for years, headed by Bill Coleman,
who was a long-time official--one of the lawyers who worked on the
Brown v. Board of Education case in the 1950s. Sri eventually became
the leader of the appellate practice in O'Melveny and Myers, in that
capacity doing good work. He has been a teacher at Harvard Law School.
Probably most specific to the needs of the D.C. Circuit, Sri has had
a long career working in the Solicitor General's Office, the key legal
office of the United States, charged with representing the United
States on important matters before the Supreme Court and the Federal
appellate courts. He has worked two stints in the Solicitor General's
Office, having worked both under the Solicitor General's Office during
President Bush 43's tenure, and then again returning to work as the
principal deputy solicitor general under President Obama. In that
capacity he has had extensive arguments, more than 20 arguments before
the U.S. Supreme Court and numerous appellate court arguments in the
Federal appellate courts, including the D.C. Circuit Court for which he
is nominated.
Srikanth Srinivasan enjoys broad support. Numerous officials in the
Solicitor General's Office under both Democratic and Republican
administrations have weighed in on behalf of his candidacy. The ABA,
American Bar Association, which looks at candidates and scrutinizes
their qualifications, has given him the ``most qualified'' award, their
highest recommendation. He comes with significant support in this body
and others with whom he has practiced.
The area I probably spent most time with him on as I was interviewing
him was the whole notion of judicial temperament. These are important
positions, and under the Constitution we grant them to people for life.
You can have all the intellectual qualifications, but if you do not
have the life experience to enable you to understand situations and
pass judgment on matters important to people, and if you do not have
the temperament to work in a collegial body--circuit courts, as you
know, hear cases generally in panels of three and then occasionally
hear cases en banc, the entire list of the circuit court judges for the
D.C. Circuit would sit together--it is not enough to be a scholar; you
have to be a good listener, you have to be a good colleague. Srikanth
Srinivasan's career is a track record of his dedication and ambition,
but his temperament is a real tribute to his humility, to his ability
to listen not only to litigants but to other judges.
I think these credentials, both his formal credentials--his work
experience and temperament--would make him an excellent choice. For
that reason I am proud to stand up as one of his home State Senators. I
am proud to acknowledge the Judiciary Committee's unanimous vote on his
behalf and urge my colleagues today as we move to the vote to support
his nomination. None of us will be disappointed in his work as a D.C.
Circuit judge.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, I voted for this nominee out of
committee. I will vote for this nominee on the floor of the Senate. He
is well qualified for this position.
I come to the floor not to repeat what a lot of other people have
said about this nominee, but the process that was connected with
arranging the vote for today's vote. Basically I want to speak about
the needless shenanigans that have gone on before we get to this point
where we vote at 2 o'clock.
Today's nominee for the D.C. Circuit was voted out of committee 1
week ago, on May 16, a unanimous vote of 18 to 0. He was placed on the
Executive Calendar 3 days ago, on Monday, May 20. One day later, on May
21, the Republicans cleared this nominee to have an up-or-down vote
when we returned from the Memorial Day recess, but the majority leader
was not content to take yes for an answer. One day after this nominee
was placed on the Executive Calendar and after Republicans agreed to an
up-or-down vote, the majority leader chose to file cloture.
Why file cloture? Why would the majority leader do that on a nominee
whom the minority party, the Republicans, were ready and willing to
vote on, backed up by the fact that every Republican on the committee
voted for this nominee?
There is only one plausible answer: That is part of the majority's
attempt to create the appearance of obstruction where no obstruction
ever existed. It is pure nonsense. It is a transparent attempt to
manufacture a crisis, a crisis that does not exist. The fact of the
matter is there is no obstruction and particularly no obstruction on
this nominee, and the other side knew it before they filed cloture.
This morning in his opening remarks the majority leader tried to
argue he has had to file cloture 58 times. But what the majority leader
did this week illustrates precisely why that claim is completely
without merit.
What the Majority Leader did fits neatly into the Democratic
Majority's playbook.
First, file cloture for no apparent reason, none whatsoever. And then
immediately turn around and claim: See, look everybody, we had to file
cloture.
The fact is, we are confirming the President's nominee--all
nominees--at a near-record pace. After today, the Senate will have
confirmed 193 lower court nominees. We have defeated only two. That is
193 to 2, which in baseball terms is a .990 batting average. Anybody
would agree that is an outstanding record. Who could complain about 99
percent?
After today--this year alone, the first year of the President's
second term--the Senate will have confirmed 22 judicial nominees. Let's
compare that to the previous President's first year of his second
term--President Bush--when there was a Democratic Congress. In that
same period of time in 2005, the Senate had only confirmed four
nominees. So that is a record of 22--the first year of this President's
second term--compared to only 4 for the first year of President Bush's
second term.
If we were treating this President in the same way the Senate
Democrats treated President Bush in 2005, we would not be confirming
the 22nd nominee, we would be confirming only the 4th. So it should be
clear to everyone that these are needless shenanigans.
Anyway, based on that record, what can the Senate Democrats possibly
complain about? The bottom line is they can't complain--or they
shouldn't complain. That is not based upon rhetoric but based on the
record of 22 so far this year and 193 total confirmations for this
President versus 2 disapprovals.
Of course, because the record is so good, the other side needs to
manufacture a crisis, and that is why the other side filed cloture on
this nomination just 1 day after it appeared on the Executive Calendar.
Yesterday, when the majority leader was pressed on why he chose to
file cloture 1 single day after his nomination appeared on the
Executive Calendar, he pointed to the fact that the nominee was first
nominated in the year 2012. But apparently the majority leader was
unaware that the chairman of the Judiciary Committee made no effort to
schedule a hearing on this nominee until late last year.
Apparently, the majority leader was unaware that by January of this
year, we learned the nominee was potentially involved in the quid pro
quo that Mr. Perez--the President's nominee for Labor Secretary--
orchestrated between the Department of Justice and the city of St.
Paul.
I spoke on this issue last week regarding the deal Mr. Perez struck,
where he agreed the Department would decline two False Claims Act cases
in exchange for the city of St. Paul withdrawing a case from the
Supreme
[[Page S3811]]
Court. I am not going to go into those details again, but that is a
very serious issue. The Department--and as it turns out Mr. Perez in
particular--bartered away a case worth about $200 million of taxpayers'
money to come back into the Federal Treasury under the False Claims
Act. To have that case withdrawn is a pretty serious matter.
As it turns out, the nominee before us today happened to be the
lawyer in the Solicitor General's Office who handled the case Mr. Perez
desperately wanted withdrawn from the Supreme Court.
So, as would be expected, any Member of the Senate--particularly
those who have the responsibility in the minority--needed to know what
the nominee knew about the quid pro quo and what Mr. Perez told the
committee about that deal.
We needed the documents about this issue, and we needed to speak with
the witnesses involved, but the Department was desperate to keep those
documents from Congress. They were desperate to keep the witnesses from
being involved and interviewed.
The bottom line is that the Department of Justice dragged its feet
for months. If the Department of Justice had turned over those
documents and made witnesses available way back when we asked for them,
the hearing for this nominee could have been one of the first we had
this year. Instead, the Department of Justice chose to try their best
to keep Congress from getting to the bottom of that quid pro quo, and,
frankly, Mr. Perez's involvement in that matter.
If the majority wishes to complain about the nominee having his
hearing in April rather than February, they should pick up the phone
and call those in charge at the Department of Justice and ask: Why
didn't you give Congress the information they needed?
It wasn't the Senate Republicans who withheld the documents, it was
the Department of Justice. It wasn't Senate Republicans who held up the
nominee's hearing, it was the Department of Justice.
The bottom line is that the Senate is processing the President's
nominees exceptionally fairly. I will not repeat those statistics
because I have already gone through them in this speech and in previous
speeches.
This President is being treated much more fairly than Senate
Democrats treated President Bush in 2005.
The fact is this: Filing cloture on this nominee--who will probably
pass unanimously--was nothing but a transparent attempt to create the
appearance of obstruction.
As I said, I intend to support this nominee, just as I did in
committee, and I encourage my colleagues to support the nomination as
well.
But as we move forward on these nominees, I wish we could stop these
needless shenanigans. I wish the other side would stop shedding those
crocodile tears. The statistics of approval by this Senate of judicial
nominees, which is 193 to 2, is no justification for any crocodile
tears whatsoever.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. COONS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Madam President, today this body will have the chance to
vote on the nomination of the highly qualified Sri Srinivasan for the
D.C. Circuit Court of Appeals.
I am a member of the Judiciary Committee and have had the honor and
privilege of chairing Mr. Srinivasan's confirmation hearing. I can say,
without question, he has the background, skills and, perhaps most
importantly, the temperament to serve as a circuit court judge.
He is one of the single most qualified judicial nominees I have seen
in my years in this body, and he deserves better than the games which
have been played with his confirmation. He already has bipartisan
support. Now let's work together and give him a strong bipartisan vote.
The Constitution of the United States gives the Senate the
responsibility to advise and consent to the President's nominations for
important posts, such as the bench of the D.C. Circuit Court of
Appeals. It is certainly our responsibility to review and vet
candidates--nominees--who come over from the President. We should not
simply serve as a rubberstamp but neither should we be a firewall,
unreasonably blocking qualified nominees from service at the highest
levels of our government.
Our Nation's courts should be above politics. When the President
submits a highly qualified candidate of good character and sound legal
mind, as that of Mr. Srinivasan, then absent exceptional circumstances
that candidate should be entitled to a rollcall vote.
Up to this point in President Obama's administration--nearly 1,600
days--the Senate has failed to live up to its responsibility and to
confirm any nominee to the D.C. Circuit Court of Appeals. The D.C.
Circuit Court of Appeals is often called the second most important
court in the Nation.
Similar to the Supreme Court, the D.C. Court of Appeals handles cases
that impact Americans all over the country and from all walks of life.
It regularly hears cases that range very broadly from terrorism and
detention to the scope of Federal agency power. Yet today it is
critically understaffed. The D.C. Circuit Court of Appeals has not seen
a nominee confirmed since President George W. Bush's fourth nominee to
that court was confirmed in 2006--7 years ago.
Republicans in this Chamber filibustered President Obama's nominee,
Caitlin Halligan, until she ultimately--after hundreds and hundreds of
days of waiting across several Congresses--gave up and withdrew. Her
opponents said the caseload at the D.C. Circuit was too low and that it
did not deserve another judge.
Such concerns about caseload did not prevent the Republican-led
Senate from confirming two nominees to the 10th seat on the D.C.
Circuit and one to the 11th. Mr. Srinivasan is not nominated for the
10th or 11th seat on the D.C. Circuit but for the 8th.
We need to confirm Mr. Srinivasan and we need to act quickly on the
President's next nominee for that court and the one after that.
I believe we have a chance to start fresh with Mr. Srinivasan, who
would serve equally well and ably on the D.C. Circuit Court of Appeals,
as might Ms. Halligan.
Mr. Srinivasan has a razor-sharp legal mind. He served in the
Solicitor General's Office for both Republican and Democratic
administrations and has earned the bipartisan support of his
colleagues. Twelve former Solicitors General and Principal Deputy
Solicitors General wrote a letter supporting his nomination--6
Democrats and 6 Republicans.
The letter, which is signed by conservative legal luminaries such as
Paul Clement and Ted Olson, notes that Mr. Srinivasan is ``one of the
best appellate lawyers in the country.'' They commented further in the
letter and said that he has an ``unsurpassed'' work ethic and is
``extremely well prepared to take on the intellectual rigors of serving
as a judge on the D.C. Circuit.''
My point is a simple one: Sri is a capable and, in fact, highly
accomplished attorney, with the character and demeanor to serve
admirably on this bench, which has sat without a nominee from the Obama
administration for the entire time our current President has served.
Sri Srinivasan has earned bipartisan support. Today, let's give him a
bipartisan vote.
I thank the Chair.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. COONS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Madam President, I ask unanimous consent that any time
during quorum calls leading up to the vote be charged equally to both
sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Thank you, Madam President.
I yield the floor and suggest the absence of a quorum.
[[Page S3812]]
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER (Mr. Heinrich). The Senator from Kansas.
Mr. MORAN. 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. MORAN. Mr. President, I certainly recognize that providing advice
and consent of Presidential nominees is one of our most important
responsibilities as Members of the Senate, and it is a responsibility
that I expect and believe all of us take very seriously.
On a number of occasions, I have had the opportunity to meet Sri
Srinivasan, whom President Obama has now nominated to fill a vacancy on
the U.S. Court of Appeals for the District of Columbia Circuit. I have
found Sri to be a highly qualified candidate who has a distinguished
career in the private sector and in the Department of Justice of both
Republican and Democratic administrations, for President Bush and
President Obama. I announced my support for his confirmation in advance
of the Judiciary Committee realizing the same circumstance I realized,
which is that we have a very highly qualified individual of integrity
who has been nominated by the President. Of course, the Judiciary
Committee unanimously supported that nomination to confirm him.
Sri is a fellow Kansan and is one of our State's most accomplished
legal minds. He was born in India and moved with his parents to
Lawrence, KS, where he graduated valedictorian from Lawrence High
School in 1985. As do most Kansans, he enjoyed basketball and at one
point in time was a guard on the high school basketball team playing
alongside one of our State's most famous athletes, Danny Manning.
After high school, he went to Stanford University, earning a
bachelor's degree, an MBA, and a law degree.
Sri served as a clerk for the U.S. Supreme Court and served with
Justice Sandra Day O'Connor and later worked in the Solicitor General's
Office under President George W. Bush. He became the Principal Deputy
Solicitor General in 2011.
Sri has argued more than two dozen cases before the U.S. Supreme
Court, and his nomination is supported by 12 former Solicitors General
and Principal Deputy Solicitors General evenly split among political
parties.
If confirmed today, Sri would become the first South Asian to serve
on a Federal circuit court.
I wish to indicate to my colleagues how proud Kansans are of Sri and
his success, his accomplishments, and I am pleased to support his
nomination. He is one of our Nation's leading appellate lawyers, and I
believe he will serve our Nation well on the U.S. Circuit Court of
Appeals for the D.C. Circuit.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. LEE. Mr. President, the U.S. Court of Appeals for the D.C.
Circuit has primary responsibility to review administrative actions
taken by countless Federal departments and agencies. The court's
decisions--including its recent invalidation of President Obama's
unconstitutional ``recess'' appointments--often have significant
political implications. As a result, this body--the Senate--has a
longstanding practice and tradition of scrutinizing nominees to the
D.C. Circuit very carefully. When evaluating those nominees, we have
also carefully considered the need for additional judges on that court.
In July 2006 President Bush nominated an eminently qualified
individual, Peter Keisler, to fill a seat on the D.C. Circuit. I know
Peter Keisler. Peter Keisler is among the very finest attorneys I have
ever worked with. In fact, most who know him would agree he is among
the very finest attorneys in the entire country. He is one who happened
to have enjoyed bipartisan support throughout the legal profession at
the time of his nomination. Nevertheless, Democratic Senators blocked
Mr. Keisler's nomination, and his nomination simply languished in the
Judiciary Committee.
At the time a number of my Democratic colleagues signed a letter
arguing that a nominee to the D.C. Circuit ``should under no
circumstances be considered--much less confirmed--before we first
address the very need for that judgeship.'' Those Senators argued that
the D.C. Circuit's modest caseload simply did not justify the
confirmation of any additional judge to that court.
More than 6 years have elapsed from that moment, but the D.C.
Circuit's caseload remains just as minimal as it was back then. The
court's caseload has actually decreased since the time Democrats
blocked Mr. Keisler. The total number of appeals filed is down over 13
percent, and the total number of appeals pending is down over 10
percent. With just 359 pending appeals per panel, the D.C. Circuit's
average workload is less than half of other Federal appellate courts.
Some have sought to make much of the fact that since 2006 two of the
court's judges have taken senior status, leaving only seven active
judges on the D.C. Circuit. But the court's caseload has declined so
much in recent years that even filings per active, nonsenior, sitting
judge are roughly the same as they were back then.
Of course, this doesn't account for the six senior judges on the D.C.
Circuit who continue to hear appeals and author opinions. Their
contributions are such that the actual work for each active, nonsenior
judge has declined and the caseload burden for the D.C. Circuit judges
is less than it was when the Democrats blocked Mr. Keisler on the basis
of declining caseload in the D.C. Circuit. Indeed, the average filings
per panel--perhaps the truest measure of actual workload per judge--is
down almost 6 percent since the time Democrats blocked Mr. Keisler. And
those who work at the court suggest that in reality, the workload isn't
any different today than it was back at the time the Democrats blocked
Mr. Keisler's nomination to that court.
Much like Mr. Keisler, the D.C. Circuit nominee before us today, Mr.
Srinivasan, is exceptionally qualified, and I am pleased to say he
enjoys broad bipartisan support from throughout the legal profession.
Unlike what the Democrats did to Mr. Keisler, I will vote to confirm
Mr. Srinivasan. I do not believe in partisan retribution and hope that,
moving forward, the Senate--whether controlled by Democrats or
Republicans at any moment in the future--will rise above such past
differences and disputes.
The D.C. Circuit is one area in which we share common ground. Both
Democrats and Republicans have argued repeatedly that the D.C. Circuit
has too many authorized judgeships. Indeed, while other Federal circuit
courts throughout the country struggle to keep up with rising
caseloads, in each of the last several years the D.C. Circuit has
canceled regularly scheduled argument dates due to a lack of pending
cases.
For these reasons I am an original cosponsor of S. 699, the Court
Efficiency Act, which was introduced last month. The bill does not
directly impact today's nominee, but it will reallocate unneeded
judgeships from the D.C. Circuit to other Federal appellate courts
where caseloads are many times higher than that of the D.C. Circuit.
Especially after we have confirmed Mr. Srinivasan, I hope Members on
both sides of the aisle will join me in ensuring that these unnecessary
D.C. Circuit judgeships are reallocated to courts that need those judge
slots.
I certainly hope neither the White House nor my Democratic colleagues
will instead decide to play politics and seek--without any legitimate
justification--to pack the D.C. Circuit with unneeded judges simply in
order to advance a partisan agenda.
Now, importantly, it was stated earlier in debate that we should stop
``playing games'' with this nomination. We agree. In fact, we could not
agree more. Unfortunately, the only game played was by the majority
leader in manufacturing a false impression by filing cloture one day
after the nominee was listed on the Executive Calendar and after Senate
Republicans agreed to a vote.
It has also been suggested that Senate Republicans have somehow
refused to fill this seat or any other on the D.C. Circuit since 2006.
Apparently, this is representative of a memory lapse or perhaps they
want to rewrite history.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, what is the parliamentary situation?
[[Page S3813]]
The PRESIDING OFFICER. The nomination of Srikanth Srinivasan to the
D.C. Circuit Court.
Mr. LEAHY. Thank you, Mr. President.
I am glad to hear what my friend from Utah said about voting for this
nominee because this is the second time this year the majority leader
had to file cloture on one of President Obama's well-qualified nominees
to the D.C. Circuit. Sri Srinivasan is not a nominee who should require
cloture, and I am glad he is not going to now that cooler heads have
prevailed, but neither was Caitlin Halligan. Caitlin Halligan is a
woman who is extraordinarily well qualified and amongst the most
qualified judicial nominees I have seen from any administration. It was
shameful that Senate Republicans blocked an up or down vote on her
nomination with multiple filibusters and procedural objections that
required her to be nominated five times over the last three years.
Had she received an up or down vote, I am certain she would have been
confirmed and been an outstanding judge on the United States Court of
Appeals for the District of Columbia. Instead, all Senate Republicans
but one supported the filibuster and refused to vote up or down on this
woman, who is highly-qualified and would have filled a needed judgeship
on the D.C. Circuit. Senate Republicans attacked her for legal advocacy
on behalf of her client, the State of New York. It is wrong to
attribute the legal positions a lawyer takes when advocating for a
client with what that person would do as an impartial judge. That is
not the American tradition. That is not what Republicans insisted was
the standard for nominees of Republican Presidents but that is what
they did to derail the nomination of Caitlin Halligan.
Also disconcerting were the comments by Republicans after their
filibuster in which they gloated about payback. That, too, is wrong. It
does our Nation and our Federal Judiciary no good when they place their
desire to engage in tit-for-tat over the needs of the American people.
I rejected that approach while moving to confirm 100 of President
Bush's judicial nominees in just 17 months in 2001 and 2002.
Like Caitlin Halligan, Sri Srinivasan has had an exemplary legal
career and has the support of legal professionals from across the
political spectrum. Born in Chandigarh, India, he grew up in Lawrence,
KS, and earned his B.A., with honors and distinction, from Stanford
University. He also earned his M.B.A. from the Stanford Graduate School
of Business along with his J.D., with distinction, from Stanford Law
School, where he was inducted to the Order of the Coif. At Stanford Law
School, Sri Srinivasan served as the Note Editor of the Stanford Law
Review. After completing law school, he clerked for Judge J. Harvie
Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit and
for Justice Sandra Day O'Connor on the U.S. Supreme Court.
Sri Srinivasan has experience in private practice, where he served as
a partner and chaired the Appellate Practice at O'Melveny & Myers LLP.
He has also served in the Office of the Solicitor General during both
the Bush and Obama administrations, where he is currently the Principal
Deputy Solicitor General. He has argued more than 25 cases before the
U.S. Supreme Court and several cases before the U.S. Courts of Appeal.
The ABA Standing Committee on the Federal Judiciary unanimously rated
him ``well qualified'' to serve on the D.C. Circuit, its highest
rating. The Judiciary Committee reported him a week ago by a unanimous
18-to-0 vote. That means every single Republican on the committee who
had a chance to review the nominee's record and to ask him questions
supported him.
He was first nominated almost 1 year ago--a longer wait than any
other current judicial nomination. His Committee hearing was delayed by
4 months from when I first planned on holding it, at the request of the
Republicans. Sri Srinivasan has waited long enough, and, given his
unanimous support in Committee, there was no reason to delay his
confirmation. The Senate confirmed 18 of President Bush's circuit
nominees within a week of being reported by the Judiciary Committee,
while not a single one of President Obama's circuit nominees has
received a floor vote within a week of being reported. Senate Democrats
even allowed a vote on a controversial Fourth Circuit nominee within
just 5 days of being reported. By that standard, there is no reason not
to vote now on Sri Srinivasan. When confirmed, he will be the first
Asian American in history to serve on the D.C. Circuit, and the first
South Asian American to serve as a Federal circuit judge.
But, regrettably, even after their unwarranted filibuster of Caitlin
Halligan, and even after their efforts to delay Sri Srinivasan's
confirmation, Senate Republicans are expanding their efforts through a
``wholesale filibuster'' of nominations to the D.C. Circuit by
introducing a legislative proposal to strip three judgeships from the
D.C. Circuit.
I am almost tempted to suggest they amend their bill to make it
effective whenever the next Republican President is elected. I say that
to point out they had no concerns with supporting President Bush's four
Senate-confirmed nominees to the D.C. Circuit. They did this even
though for the previous President--a Democrat--they said we had too
many judges there. But as soon as a Republican came in they suddenly
found the need and did confirm four judges to the D.C. Circuit. Those
nominees filled the very vacancies for the 9th, 10th, and even the 11th
judgeship on the court that Senate Republicans are demanding be
eliminated now that President Obama has been reelected by the American
people. In other words, filling those seats was okay with a Republican
President but not okay with a Democratic President. The target of this
legislation seems apparent when its sponsors emphasize that it is
designed to take effect immediately and acknowledge that
``[h]istorically, legislation introduced in the Senate altering the
number of judgeships has most often postponed enactment until the
beginning of the next President's term'' but that their legislation
``does not do this.'' It is just another one of their concerted efforts
to block this President from appointing judges to the D.C. Circuit.
In support of this effort, Senate Republicans are citing a
subcommittee hearing they held back in 1995 on the D.C. Circuit's
caseload in an attempt to eliminate the 12th seat during President
Clinton's tenure. They are fond of citing the testimony of Judge
Laurence Silberman, a Reagan appointee, that he felt the 12th seat was
not necessary. What Senate Republicans do not mention is that Judge
Silberman believed that 11 judgeships was the proper number on that
Circuit, and that the notion that the D.C. Circuit should have only
nine judges was ``quite farfetched.'' I would echo those comments, and
note that it is beyond farfetched that the same Senate Republicans who
cite Judge Silberman's view on the 12th seat are ignoring the rest of
his statement and seeking to reduce the court to eight seats. In fact,
we have already acted to eliminate the 12th seat from the D.C. Circuit.
What Senate Republicans are now proposing during this President's
tenure is the elimination of the 11th, 10th, and 9th seats, as well.
In its April 5, 2013 letter, the Judicial Conference of the United
States, chaired by Chief Justice John Roberts, sent us recommendations
``based on our current caseload needs.'' They did not recommend
stripping judgeships from the D.C. Circuit but state that they should
continue at 11. Four are currently vacant. According to the
Administrative Office of U.S. Courts, the caseload per active judge for
the D.C. Circuit has actually increased by 50 percent since 2005, when
the Senate confirmed President Bush's nominee to fill the 11th seat on
the D.C. Circuit. When the Senate confirmed Thomas Griffith--President
Bush's nominee to the 11th seat in 2005--the confirmation resulted in
there being approximately 119 pending cases per active D.C. Circuit
judge. There are currently 188 pending cases for each active judge on
the D.C. Circuit, more than 50 percent higher.
This falls into a larger pattern that we have seen from Senate
Republicans over the past 20 years. While they had no problem adding a
12th seat to the D.C. Circuit in 1984, and voting for President Reagan
and President George H.W. Bush's nominees for that seat, they suddenly
``realized'' in 1995, when a Democrat served as President, that the
court did not need that judge. When Judge Merrick Garland was finally
confirmed in 1997, many Senate
[[Page S3814]]
Republicans voted against him, because they had decided that the 11th
seat was also unnecessary. Senate Republicans then refused to act on
President Clinton's final two nominees to the D.C. Circuit, one of whom
now serves on the Supreme Court.
In 2002, during the George W. Bush administration, the D.C. Circuit's
caseload had dropped to its lowest level in the last 20 years. During
that Republican administration, Senate Republicans had no problem
voting to confirm President Bush's nominees to the 9th, 10th, and 11th
seats. These are the same seats they wish to eliminate now that Barack
Obama is President, even though the court's current caseload is
consistent with the average over the past 10 years. Maybe they are
suggesting people work harder and more effectively if there is a
Democrat in the White House than a Republican, but I suspect they may
have a different motive. Even on its own terms, it is apparent this has
nothing to do with caseload; it has everything to do with who is
President.
Contrary to what Senate Republicans are arguing, the D.C. Circuit
does not even have the lowest caseload in the country. The circuit with
the lowest number of pending appeals per active judge is currently the
Eighth Circuit, to which the Senate recently confirmed a nominee from
Iowa, supported by the ranking Republican on the Senate Judiciary
Committee. I do not recall seeing any bills from Senate Republicans to
eliminate that seat.
So I think it depends more on politics than on judicial independence,
and that is not a path to follow. The Federal courts have been too
politicized as it is. There have been more filibusters and more
blocking of judicial nominations by President Obama, than of
nominations by any President of either party in the past. It makes me
wonder, what is different about this President from all these other
Presidents that he is given such a more difficult time--even the
blocking, the filibustering of judges supported by home State
Republican Senators.
This kind of political falderal with our Federal judiciary has come
at a price. The Federal judiciary is losing the perception of
independence it had before because it is being seen as being
politically manipulated, even though virtually every Federal judge I
have met--almost every Federal judge I have met--nominated by either a
Republican or a Democratic President has shown independence.
The public gets a view otherwise, especially when they see a number
of judicial vacancies where nominations have been made and even
nominees who get through the Judiciary Committee unanimously or
virtually unanimously then have to wait for months and months, even a
year, to finally get a vote, and then only after we have either had a
cloture vote or a threat of a cloture vote.
As I have said, I was Chairman of the Senate Judiciary Committee for
17 months at the beginning of President George Bush's term, and we put
through 100 of his nominees. Now, in the other 30 months of his first
term, with Republicans in charge, they did better. They put through
105. My point being, of course, that we actually moved his judges
faster even than Republicans did when they were in the majority. But
now the willingness to cooperate demonstrated there has broken down.
Now the rules that worked for a Republican President, we are told,
cannot apply for a Democratic President--especially this President.
Moreover, the unique character of the D.C. Circuit's caseload means
that it is misleading to compare its caseload to that of the other
Circuits as part of this effort to eliminate its judgeships. The D.C.
Circuit Court of Appeals is often considered ``the second most
important court in the land'' because of its special jurisdiction and
because of the important and complex cases that it decides. 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 make incredible demands on the time of the judges
serving on this Court. It is misleading to cite statistics or contend
that hardworking judges have a light or easy workload. All cases are
not the same and many of the hardest, most complex and most time-
consuming cases in the Nation end up at the D.C. Circuit.
Former Chief Judge Harry Edwards has said:
[R]eview of large, multi-party, difficult administrative
appeals is the staple of judicial work in the D.C. Circuit.
This alone distinguishes the work of the D.C. Circuit from
the work of other Circuits; it also explains why it is
impossible to compare the work of the D.C. Circuit with other
Circuits by simply referring to raw data on case filings.
Former Chief Judge Patricia Wald has written:
The D.C. Circuit hears the most complex, time-consuming,
labyrinthine disputes over regulations with the greatest
impact on ordinary Americans' lives: clean air and water
regulations, nuclear plant safety, health-care reform issues,
insider trading and more. These cases can require thousands
of hours of preparation by the judges, often consuming days
of argument, involving hundreds of parties and interveners,
and necessitating dozens of briefs and thousands of pages of
record--all of which culminates in lengthy, technically
intricate legal opinions . . . The nature of the D.C.
Circuit's caseload is what sets it apart from other courts.
Judge Laurence Silberman has said: ``I very much agree . . . as to
the unique nature of the D.C. Circuit's caseload, and therefore do not
believe a direct comparison to the other circuits is called for.''
And Chief Justice Roberts, who formerly served on the D.C. Circuit,
has noted that ``about two-thirds of the cases before the D.C. Circuit
involve the federal government in some civil capacity, while that
figure is less than twenty-five percent nationwide,'' and that less
time-consuming ``prisoner petitions which make up a notable portion of
the docket nation-wide on other courts of appeals--are a less
significant part of its work.'' He also described the ``D.C. Circuit's
unique character, as a court with special responsibility to review
legal challenges to the conduct of the national government.''
The arguments now being made by Senate Republicans to eliminate three
seats on the D.C. Circuit are not based on the reality of that court's
caseload. Even if we do make these misleading comparisons to other
circuits, the arguments ultimately do not withstand scrutiny since
other circuits have caseloads that are lower than the D.C. Circuit's.
And most do not have the complexity of the cases that come to the D.C.
Circuit. So the D.C. Circuit's need for judges will not be met by Sri
Srinivasan alone. We must work hard to fill the three additional
vacancies currently on that court so the D.C. Circuit can have its full
complement of judges to decide some of the most important cases to the
American people.
Some have called the D.C. Circuit a court second only to the Supreme
Court in its importance. Let's not politicize it. Let's not say here is
this rule that applies to a Republican President, and we want an
entirely different one with a Democratic President. That does not do
the court any good, it does not do the country any good, and it
actually is beneath this great body, the U.S. Senate.
Sri Srinivasan is a superbly-qualified, consensus nominee. I am glad
the Republican filibuster has come to an end and the Senate is being
permitted to vote on this nomination. I will, again, vote in favor of
confirmation.
Mr. President, I understand we have a vote scheduled for 2 o'clock.
The PRESIDING OFFICER. The Senator is correct.
Ms. KLOBUCHAR. Mr. President, I come to the floor today in support of
the nomination of Sri Srinivasan to the D.C. Circuit Court.
Mr. Srinivasan is an exemplary nominee to the Federal bench, and I am
here to encourage my colleagues to confirm him without delay.
Sri Srinivasan is currently the Principal Deputy Solicitor General at
the Department of Justice and was previously a partner at the law firm
of O'Melveny & Myers LLP.
Born in India, Mr. Srinivasan grew up in Lawrence, KS, and earned his
B.A., with honors and distinction, his M.B.A, and his J.D., Order of
the Coif, all from Stanford University. After completing law school,
Mr. Srinivasan served as a clerk on the U.S. Court of Appeals for the
Fourth Circuit, and then for Justice Sandra Day O'Connor on the U.S.
Supreme Court.
Mr. Srinivasan has extensive Federal appellate court experience
representing pro bono clients, private sector clients, and, in his
current post, the U.S. government.
[[Page S3815]]
Over the course of his 17-year legal career, Mr. Srinivasan has
argued an impressive 24 cases before the U.S. Supreme Court and 9 cases
in the Federal courts of appeal. His arguments before the Supreme Court
include a wide range of subject matters ranging from the First
Amendment, criminal procedure, and foreign sovereign immunity to
banking, immigration, and Native American law.
If confirmed, Mr. Srinivasan will be the first Asian American in
history to serve on the D.C. Circuit, and the first South Asian
American to serve as a Federal circuit judge, which is a very
significant milestone.
The non-partisan American Bar Association committee that reviews
every Federal judicial nominee gave Mr. Srinivasan its highest possible
rating. And a group of solicitors general and principal deputy
solicitors general of the United States wrote a letter saying that
``Sri has first-rate intellect, an open-minded approach to the law, a
strong work ethic, and an unimpeachable character.''
In addition to his professional accomplishments, Mr. Srinivasan has
dedicated substantial time to teaching, mentoring and pro bono
representation.
His achievements as a public servant and a private attorney are
outstanding, and if confirmed, I have no doubt that he will serve as a
committed and distinguished member of the Federal bench.
Mr. Srinivasan has received considerable praise from all parts of the
legal community including former Supreme Court Justice Sandra Day
O'Connor.
In an interview with The New Yorker last year, Ms. O'Connor said she
remembers Sri, ``as a very skilled, intellectually gifted clerk.'' She
went on to say that Mr. Srinivasan deserves a smooth ride to
confirmation. She said, ``he's not anybody who's been politically
active, he's been very serious in his work habit, and people have had
an ample opportunity to see his work.''
With a strong vote of confidence from Sandra Day O'Connor, an
esteemed former Supreme Court Justice, Mr. Srinivasan has garnered the
one of greatest endorsements any nominee to the Federal bench can
receive in my view.
Not only is Mr. Srinivasan remarkably credentialed and widely
supported, he is nominated to serve on one of the most important courts
in the Nation, a court that currently has four of its eleven judgeships
vacant.
The D.C. Circuit is widely regarded as the second-most important
court in the United States, behind only the U.S. Supreme Court, because
of the complexity and significance of the cases it decides.
The court has significant responsibility in deciding cases regarding
the balance of powers of the branches of government and actions by
Federal agencies that affect our health, safety, and industry.
With the court's current vacancies, the D.C. Circuit caseload per
active judge has increased 50 percent from 2005, when the Senate
confirmed a nominee to fill the eleventh seat on the D.C. Circuit
bench.
Vacancies on this court should only be filled by the best and the
brightest legal minds in the country--those who have demonstrated the
most sophisticated legal and analytical skills, those who have
committed their careers to justice, and those who personify
professional excellence and impeccable character.
Based on his impressive qualifications and stature in the legal
community, it is clear that Mr. Srinivasan embodies those ideals. I
strongly support his nomination to the D.C. Circuit Court.
Mr. DURBIN. Mr. President, I rise to speak in support of the
nomination of Sri Srinivasan to serve on the D.C. Circuit Court of
Appeals.
There is no question that Mr. Srinivasan has the qualifications and
experience to be an outstanding Federal judge. He earned undergraduate,
business and law degrees from Stanford. He clerked for Supreme Court
Justice Sandra Day O'Connor. He worked at the prestigious law firm
O'Melveny & Myers where he chaired the firm's appellate practice group.
He has worked for nearly a decade in the United States' Solicitor
General's office, where he currently serves as the Principal Deputy
Solicitor General. He has argued 20 cases before the United States
Supreme Court and worked on many more briefs before that court.
Mr. Srinivasan has also been praised for his independence and his
integrity. He has worked for the Solicitor General's office under both
Democratic and Republican administrations. His nomination has been
strongly endorsed by former Democratic Solicitors General such as
Walter Dellinger, Seth Waxman and Neal Katyal, and by former Republican
Solicitors General such as Paul Clement, Ted Olson and Ken Starr.
Mr. Srinivasan was reported out of the Judiciary Committee in a
unanimous vote. Democrats and Republicans from across the ideological
spectrum came together to support his nomination.
I would also note that Mr. Srinivasan's nomination is a historic one.
Upon confirmation he will be the first Indian-American to serve on a
Federal circuit court. I am glad that the Senate is soon going to vote
on Mr. Srinivasan's nomination. This vote is coming not a moment too
soon.
The D.C. Circuit urgently needs the Senate to confirm judges to serve
on that court. Right now, there are only 7 active status judges on the
D.C. Circuit. There are supposed to be 11.
This vacancy situation is untenable. Retired D.C. Circuit Judge
Patricia Wald, who served as the chief judge of the Circuit for 5
years, recently wrote in the Washington Post that ``There is cause for
extreme concern that Congress is systematically denying the court the
human resources it needs to carry out its weighty mandates.''
In 2010 the President nominated another well-qualified attorney,
former New York solicitor general Caitlin Halligan, to serve on the
D.C. Circuit, but she was filibustered twice by Senate Republicans.
There were no legitimate questions about Ms. Halligan's
qualifications, her judgment, her temperament, or her ideology. She was
filibustered simply because some lobbying interests--mainly the gun
lobby--did not agree with positions she argued on behalf of her client.
She eventually withdrew her nomination.
It is truly unfortunate that Ms. Halligan's nomination was
filibustered to death. She deserved better. She would have served with
distinction on the Federal bench.
The Senate urgently needs to address the vacancy situation on the
D.C. Circuit. We can start by confirming Mr. Srinivasan. We should then
work to confirm other qualified nominees to fill vacancies in the D.C.
Circuit and across the Federal judiciary.
I urge my colleagues to vote in favor of Mr. Srinivasan's nomination.
I yield the floor.
Mr. LEAHY. Mr. President, I do not see anyone else seeking
recognition.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Heitkamp). Without objection, it is so
ordered.
Mr. LEAHY. Madam President, I yield back the remainder of my time and
ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Srikanth Srinivasan, of Virginia, to be United States Circuit Judge
for the District of Columbia Circuit?
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer)
and the Senator from New Jersey (Mr. Lautenberg) are necessarily
absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Arizona (Mr. Flake).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 97, nays 0, as follows:
[Rollcall Vote No. 136 Ex.]
YEAS--97
Alexander
Ayotte
Baldwin
Barrasso
Baucus
Begich
Bennet
Blumenthal
Blunt
[[Page S3816]]
Boozman
Brown
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Coons
Corker
Cornyn
Cowan
Crapo
Cruz
Donnelly
Durbin
Enzi
Feinstein
Fischer
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murphy
Murray
Nelson
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schatz
Schumer
Scott
Sessions
Shaheen
Shelby
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NOT VOTING--3
Boxer
Flake
Lautenberg
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.
____________________