[Congressional Record Volume 159, Number 84 (Thursday, June 13, 2013)]
[Senate]
[Pages S4444-S4450]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF NITZA I. QUINONES ALEJANDRO TO BE UNITED STATES DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
______
NOMINATION OF JEFFREY L. SCHMEHL TO BE UNITED STATES DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nominations
which the clerk will report.
The assistant legislative clerk read the nominations of Nitza I.
Quinones Alejandro, of Pennsylvania, to be United States District Judge
for the Eastern District of Pennsylvania, and Jeffrey L. Schmehl, of
Pennsylvania, to be United States District Judge for the Eastern
District of Pennsylvania.
The PRESIDING OFFICER. Under the previous order, there will be 30
minutes of debate equally divided in the usual form.
The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I suggest the absence of a quorum, and I
ask unanimous consent that all time be allocated equally as previously
agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CASEY. 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the quorum call be rescinded.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. CASEY. Mr. President, I know we are going to be voting in a
matter of minutes on two judicial nominees for the Eastern District of
Pennsylvania, which is the eastern side of our State. Obviously, these
appointments are critically important to justice and critically
important to litigants who come before these courts, whether they are
civil or criminal matters.
These candidates go through an exhaustive review process. That is
probably an understatement. The process includes the nomination through
the White House under any administration and then the process continues
through the Senate. There are all kinds of reviews. So we are finally
to this point. It has been a very long road and we are grateful for
that.
One of the votes will be by voice potentially and one will be a
rollcall vote. I wish to speak about both candidates. I spoke about
them yesterday, but I will speak briefly this morning.
First of all, Judge Quinones, who has served in the city of
Philadelphia, has served on the common pleas court in the city of
Philadelphia since 1991, in what is known as the First Judicial
District of Pennsylvania, which is the trial court in the city of
Philadelphia. One can just imagine, in a big city such as Philadelphia,
all of the matters a judge such as Judge Quinones would deal with over
the course of more than two decades now, dealing with civil and
criminal cases, all kinds of difficult and complex matters that come
before a judge. In essence, she has been performing the same functions
as a county judge that she would on the Federal district court. So I
think she is more than prepared to take on this assignment.
In her case, this is also a great American story. Judge Quinones was
born in Puerto Rico, educated there, and came to the United States. As
I said, since 1991 she has been on the court of common pleas in
Philadelphia. Prior to that, she was an arbitrator for more than a
decade. She worked in the Department of Veterans Affairs. She worked in
the Department of Health and Human Services. She did a lot of work in
the 1970s for Community Legal Services of Philadelphia. So that speaks
to a broad range of experience and expertise dealing with litigants and
representing clients, which is so important in our system. She is
someone who takes on the responsibility to represent someone in court
so they may have their day in court, which is one of the foundational
principles of our government. Then, of course, she later served as a
judge, as I mentioned.
So it is not only a resume and a life story that speaks to experience
and knowledge and insight when it comes to dealing with complex matters
that come before the Federal courts, but it is also in a very personal
way a great American story. So I am particularly grateful that her
nomination is now coming to the Senate floor and that we will be able
to have a vote on her nomination today.
I have enjoyed working with Senator Toomey on both of these
nominations. Both of us represent a big and diverse State, one Democrat
and one Republican, working through this process together, these
judicial appointments.
We will be voting as well on a second judge in the Eastern District
of Pennsylvania: Judge Jeffrey Schmehl. I can say a lot of the same
things about his experience. Judge Schmehl is now and has been the
president judge of the Berks County Court of Common Pleas since 2007.
So for many years now he has been in the trenches, so to speak, or to
use an expression from the Bible, ``laboring the vineyards,'' dealing
with cases of complex issues. Berks County, just by way of geographic
orientation, is north of Philadelphia but on the eastern side of our
State. It is a big county. It is a county that has a lot of matters
that come before it that are particularly complex.
He has served, as I mentioned, as the president judge of the court of
common pleas, but then prior to that he was a judge on that same court
from 1998 to 2007. So these are long periods of time, in both
instances, for Judge Schmehl and Judge Quinones to serve on a court.
For those who know something about our judicial system and know a bit
about the difference between an appellate court, where we are dealing
with appeals and legal arguments, as opposed to a trial court, which is
where the action is in terms of litigants, trial judges have to preside
over a trial as well as deal with and rule on evidentiary matters. They
have to deal with witnesses and lawyers and all the complexities of a
trial. As we all know, when your case is on trial, it is the most
important case in the world.
So these judges have tremendous experience as trial judges, and we
are so grateful they are willing to put themselves forward not just to
be nominated and today confirmed as judges, as I am sure they will be,
but to put themselves forward for that kind of public service in a
difficult environment, where the scrutiny and the review and the long
road from nomination to confirmation can be very challenging.
So again I will pay tribute to the work Senator Toomey has done
working with us. He is on the floor, and I wish to thank him for that
good work. And obviously I thank the chairman of the Judiciary
Committee, Senator Leahy, who is on the floor as well. We appreciate
him working with our offices to move these nominations forward.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, does the other Senator from Pennsylvania
wish to say something?
Mr. TOOMEY. Mr. President, I would like to speak for several minutes,
principally about the two judicial nominees.
Mr. LEAHY. I just want to make sure I have time prior to the vote at
noon. How long does the Senator from Pennsylvania wish to speak?
Mr. TOOMEY. I think I could wrap this up in less than 10 minutes.
Mr. LEAHY. OK. Then, Mr. President, I simply ask unanimous consent
that there be 4 minutes for the Senator from Vermont at the conclusion
of the comments of the Senator from Pennsylvania.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Because these nominees are from his State, I will step
aside and let the Senator go forward.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. TOOMEY. Mr. President, I thank the chairman of the Judiciary
Committee.
I do want to speak principally about the two nominees from
Pennsylvania, both of whom I strongly support, and I am delighted they
are going to get their votes today. But before I do that, I do want to
put just a little bit of context on judicial nominations and
confirmations as a general matter because I think it is important that
we understand this.
[[Page S4445]]
In my own experience in the 2\1/2\ years I have been in the Senate, I
know I have voted to confirm the vast majority of judicial nominees
whom President Obama has proposed for us. In fact, since President
Obama became President, the Senate has confirmed 193 district court
nominees and blocked 2. That is a confirmation rate of about 99
percent. In the last Congress, the 112th Congress confirmed more judges
than any Congress in 20 years. So by any reasonable measure, we are
confirming judges at a terrific rate. Republicans are cooperating and
confirming the nominees of a Democratic President, and this is as it
should be when the nominees are competent, as they have been.
So President Obama is enjoying a rate of confirmation of judges that
is far greater than the rate President Bush, for instance, enjoyed or
most other previous recent Presidents, which is part of the reason why
I am concerned when I hear persistent rumors that the majority leader
is considering invoking the nuclear option and breaking the rules so he
can change the rules as to how nominees get confirmed. I do not
understand why there is a problem that would require this. If he were
to do this, this would be in direct contradiction to a commitment he
made to all of us very publicly that he would not do this. So I really
hope that Senator Reid will keep his word and that he will not break
the rules in order to change the rules.
He stated very clearly in January of 2011 that--I will quote Senator
Reid:
I agree that the proper way to change Senate rules is
through the procedures established in those rules, and I will
oppose any effort in this Congress or the next to change the
Senate's rules other than through the regular order.
I would remind my colleagues that earlier this year Republicans went
along with a rule change about which I had real reservations. I
personally could not support it, but most Republicans did. It changed
the rules, forfeiting some of the power we have as a minority, granting
the majority greater flexibility to go to a bill without assuring us we
would be able to offer the amendments we would like. We granted that to
the majority in part because we got another explicit commitment that
there would be no nuclear rule change if we made that agreement. Well,
we did, at least as a party and as a body.
So, again, I certainly hope Senator Reid will honor the promise he
made that was part of that understanding, where he said in January of
this year, in an exchange with Senator McConnell--Senator Reid said:
Any other resolutions related to Senate procedure would be
subject to a regular order process including consideration by
the Rules Committee.
I would add, that means a 67-vote majority in the Senate because that
is the way you change the rules in accordance with the rules.
Sarah Murnaghan
Having said that, I want to also make a brief mention of some
terrific news we got in Pennsylvania; that is, the opportunity for a
little girl named Sarah Murnaghan to have a lung transplant she had
been waiting for. I have spoken about this on the Senate floor. A
Federal judge in the Eastern District of Pennsylvania issued a
temporary restraining order forbidding a rule that was keeping her off
the transplant list to be a potential recipient of a donor lung
transplant. Fortunately, by virtue of that restraining order, she was
able to go on the list and receive the lung transplant. She had an
emergency surgery just yesterday that seems to have gone very well, and
we are all delighted for that and wishing for her speedy and full
recovery.
Having said that, as I indicated to the chairman, I wanted to come
down principally to say how pleased I am that we are going to vote
today and I believe confirm both Judge Jeffrey Schmehl and Judge Nitza
Quinones, who are two nominees for the Eastern District of
Pennsylvania. Both are eminently qualified, terrific individuals who
come highly recommended.
I commend Senator Casey. He and I have worked together since I have
been here. He has been terrific to work with. We have looked to
identify some of the most capable and talented people. I would like to
mention a couple of the things I know Senator Casey mentioned.
Judge Schmehl is a terrific guy. He is the president judge of the
Berks County Court of Common Pleas. His candidacy was approved by a
voice vote in the Senate Judiciary Committee. He is a graduate of
Dickinson College. He has his J.D. from the University of Toledo School
of Law. He has served as a public defender. He has served in private
practice. After 9 years at a law firm, he was elected to the Berks
County Court of Common Pleas, where his colleagues made him the
president judge. He is a very bright individual. He has a keen
intellect, a great judicial temperament. He has done a great job on the
Berks County court, and he will make a great Federal judge. I hope my
colleagues will support his candidacy.
Nitza Quinones is a native of Puerto Rico. She is a graduate of the
University of Puerto Rico School of Business Administration. At the
University of Puerto Rico, she got her J.D. She has demonstrated a
terrific commitment to the legal community and beyond that in
Philadelphia. She has been very active mentoring young people--law
students in particular--and is a great advocate of civic education for
high school students. She has served on the Philadelphia Court of
Common Pleas since 1991, presiding over a very large number of very
diverse cases. She has extensive experience in the courtroom. She has
demonstrated her ability, her commitment, her judicial temperament.
Yet, as it happens, she will be the first Latino judge on the Eastern
District of Pennsylvania court.
I think it is terrific that we are able to vote today to confirm both
of these judges. I look forward to continuing to work with Senator
Casey to fill the remaining vacancies across Pennsylvania. I thank
Chairman Leahy for his work in advancing these nominees. I urge my
colleagues to support their confirmation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I appreciate the words of both Senators
from Pennsylvania. I would note there are currently three nominations
pending for vacancies in the Eastern District of Pennsylvania. All
three have the bipartisan support of their home State Senators. All
three were reported unanimously by the Judiciary Committee 3 months
ago. Yet Senate Republicans are permitting votes on only two of them.
They are forcing Judge Luis Restrepo to continue to wait for a vote
even though he would fill a seat that has been vacant for 4 years.
I mention this because we talk about how things move during this
President's tenure as compared to that of his predecessor. At the end
of President Bush's second term, I was chairman of the Judiciary
Committee and I expedited confirmations of three of his nominees to
this same court--three, not just allowing two to go through, as my
friends on the other side of the aisle are today--and not having to
wait for months and months. Those three were confirmed by voice vote.
So you know how long it took, we had reported them out of the Judiciary
Committee the day before. They were confirmed along with 7 other
district court nominees for a total of 10 that day. We got them out of
committee and voted them by voice vote. But now we have seven judicial
nominees on the calendar, and Republicans are only allowing us to vote
on two of them.
This is just the latest example of Senate Republicans insisting that
President Obama play by a different set of rules than they had for
President Bush. It was perfectly fine to expedite President Bush's
three nominees to the Eastern District of Pennsylvania and to confirm
them all on the same day, along with seven others. We had Democratic
control of the Senate, and we moved them that way. But now with
President Obama they refuse to proceed with the seven nominees who are
pending on the Calendar. They will not even proceed with the three
judicial nominees needed in the Eastern District of Pennsylvania.
So let's not talk about how Presidents are treated. I am not sure
what it is that is different about President Obama, but his nominees
get delayed, delayed, and delayed, unlike--and I use Pennsylvania as an
example--where we vote out three, unanimously, of President Bush's
nominees on one day and confirm them by voice vote the next day, along
with seven others. Here they are refusing to proceed with the seven
[[Page S4446]]
nominees on the Calendar. They will not even proceed with all three of
the judicial nominees for the Eastern District of Pennsylvania. There
are currently seven vacancies on that court--seven. The Eastern
District of Pennsylvania needs judges.
Like the two nominees we will be permitted to vote on today, Judge
Restrepo has the support of his Republican home State Senator as well
as every single Republican member of the Judiciary Committee. So let's
not make him and the people of Pennsylvania wait.
Frankly, there is no good reason Nitza Quinones Alejandro and Jeffrey
Schmehl should have waited this long for a vote. There is no good
reason why, when half of President Bush's consensus district nominees
waited 18 days or fewer after being sent to the Senate by the Judiciary
Committee during his first term, these consensus nominees should have
had to wait almost 100 days. This contributes to the unprecedented
delays and obstruction of President Obama's consensus judicial
nominees.
I read comments last week by Judge James Brady of the Middle District
of Louisiana expressing concern about what has happened to the judicial
confirmation process. Shelly Dick was confirmed this year to that court
after months of delay, and the Advocate article noted the ``strain the
empty judgeship had on a district overburdened with cases.'' Judge
Brady was quoted saying of the confirmation process: ``It's just crazy,
and we need to do something about that.'' I could not agree more. Judge
Brady added that the delays in the process are ``driving away a lot of
really good folks that would make excellent judges because they're
saying, `I don't need to go through that process and be in limbo for
18, 20, 24 months.' That's something I'm very, very concerned about.''
We should all share that concern, especially Senators who are looking
for district nominees to recommend to the President. I ask that this
article, entitled ``Nomination Delays Hurting Courts, Federal Judge
Says,'' be printed in the Record at the conclusion of my statement.
The recent assertion by Senate Republicans that 99 percent of
President Obama's nominees have been confirmed is just not accurate. He
has nominated 237 individuals to be circuit or district judges, and 193
have been confirmed. That is 81 percent. By way of comparison, at the
same point in President Bush's second term, June 13 of his fifth year
in office, President Bush had nominated four fewer people, but had seen
214 of them confirmed, or 92 percent. That is an apples to apples
comparison, and it demonstrates the undeniable fact that the Senate has
confirmed a lower number and lower percentage of President Obama's
nominees than President Bush's nominees at the same time in their
presidencies.
I noted at the end of last year while Senate Republicans were
insisting on delaying confirmations of 15 judicial nominees that could
and should have taken place then, and that we would not likely be
allowed to complete work on them until May. That was precisely the
Republican plan. So when Senate Republicans now seek to claim credit
for their confirmations in President Obama's second term, they are
falsely inflating the confirmation statistics. The truth is that only
seven confirmations have taken place this year that are not
attributable to those nominations they held over from last year and
that could and should have taken place last year. To return to the
baseball analogy, 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. Nor would a fair calculation of hits or home runs allow a
player to credit those that occurred in one game or season to the next
because it would make his stats look better.
I was Chairman of the Judiciary Committee for 17 months during
President Bush's first term, so I know something about how President
Bush's nominees were treated. During those 17 months, 100 of them were
confirmed. In the 31 months that Republicans controlled the Senate
during President Bush's first term, 105 of his circuit and district
nominees were confirmed. That is, it took them almost twice as long to
make as much progress as I had as Chairman. Even when Senate Democrats
were in the minority, we worked with the Republicans to bring the
number of vacancies all the way down to 28. Vacancies have remained
near or above 80 for 4 years during the Obama presidency. In the last 4
years, Senate Republicans have never let vacancies get below 72. At
this point in the fifth year of the Bush presidency there were 44
vacancies. Today they remain almost double that amount. Despite Senate
Republicans who make self-congratulatory statements about ``progress''
this year, we are not even keeping up with attrition. Vacancies have
increased, not decreased, since the start of this year.
If President Obama's nominees were receiving the same treatment as
President Bush's, Judge Srinivasan would have been the 210th
confirmation, not the 193rd and vacancies would be far lower. The
nonpartisan Congressional Research Service has noted that it will
require 33 more district and circuit confirmations this year to match
President Bush's 5-year total. Even with the confirmations finally
concluded during the first 6 months of this year, Senate Republicans
have still not allowed President Obama to match the record of President
Bush's first term. Even with an extra 6 months, we are still a dozen
confirmations behind where we were at the end of 2004.
In addition to the obstruction of circuit and district nominees, I am
deeply concerned about the impact of sequestration on our Federal
courts. I continue to hear from judges and legal professionals around
the country who worry about the impact of these senseless budget cuts,
and I share their concern. A recent evaluation of sequestration
concluded: ``Its impact on the operation of the [F]ederal courts will
be devastating and longlasting.'' Sequestration will exacerbate the
delays our courts already face due to persistent understaffing, both
for civil and criminal cases. According to the Executive Summary of
``FY 2013 Sequestration Impacts on the Federal Judiciary,'' ``Delays in
cases will harm individuals, small businesses, and corporations,''
while the ``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.'' I ask that
the full summary be printed in the Record at the conclusion of my
statement.
Judge Nitza Quinones Alejandro has served as a judge on the Court of
Common Pleas for the First Judicial District of Pennsylvania since
1991. Prior to being a judge, Judge Quinones worked as a solo
practitioner, a staff attorney with the U.S. Department of Veterans
Affairs, an Attorney Advisor with the U.S. Department of Health and
Human Services' Bureau of Hearings and Appeals, and a staff attorney at
Community Legal Services, Inc. When confirmed, Judge Quinones will be
the first openly gay Latina judge to serve on the Federal bench. Judge
Quinones was also Pennsylvania's first Latina judge.
Judge Jeffrey Schmehl currently serves as the President Judge in
Berks County, where he has been an active member of the bench since
1997. Prior to becoming a judge, Judge Schmehl served in various
capacities in private practice, including as an associate and partner
at Rhoda, Stoudt & Bradley and as a solo practitioner at the Law
Offices of Jeffrey L. Schmehl, Esq. While working in private practice,
Judge Schmehl was also a Berks County Solicitor from 1989 to 1997. In
addition to his experience in private practice, Judge Schmehl has
served as an assistant district attorney and as an assistant public
defender for Berks County.
I want the Senate to make real progress on filling judicial vacancies
so that the American people have access to justice. Before the recess,
the minority leader asked during a floor debate when Gregory Phillips,
the Wyoming nominee to the Tenth Circuit, would receive a vote.
Majority Leader Reid said: OK, let's vote on him right now.
They said: Well, we are not ready.
I hope the American people were watching, because there should be no
ambiguity about this: The only reason the Senate is not voting today on
Judge Restrepo, Attorney General Phillips, or the other seven judicial
nominees pending on the Calendar is because of Republican refusal to
allow
[[Page S4447]]
such votes. They could be voted on today. We ought to do it. These
nominees deserve better, and the American people deserve better.
There being no objection, the material was ordered to be printed in
the Record, as follows:
FY 2013 Sequestration Impacts on the Federal Judiciary
Sequestration and the Federal Judiciary
On March 26, 2013, the President signed Public Law 113-6,
the Consolidated and Further Continuing Appropriations Act of
2013, which provides full-year FY 2013 funding for the
federal government, including the Judiciary. The bill leaves
in place the government-wide sequestration cuts mandated
under the Budget Control Act of 2011.
Sequestration reduces Judiciary funding overall by nearly
$350 million below the FY 2012 discretionary funding. The
impact of sequestration on the Judiciary is compounded by the
fact that the Judiciary has no control over its workload--the
courts must react to the cases which it receives from the
Executive Branch, individuals and businesses--overall, that
workload has not declined. In addition, unlike most Executive
Branch entities, the Judiciary has little flexibility to move
funds between appropriations accounts to lessen the effects
of sequestration. There are no lower-priority programs to
reduce to transfer to other accounts.
Impact of Sequestration on the Courts
Sequestration places unprecedented pressure on the federal
Judiciary's administration of justice. Its impact on the
operation of the federal courts will be devastating and
longlasting.
To mitigate the impact of sequestration on employees, the
courts have slashed non-salary budgets (training, information
technology, supplies and equipment), which is possible for
one fiscal year, but cannot be sustained into future years.
Even with these reductions, on a national level, up to 1,000
court employees could be laid off, or thousands of employees
could face furloughs before the end of the year. These
staffing losses will come on top of the nearly 2,200
probation officers and clerks office staff the courts have
already lost since the end of July 2011.
Cuts in staffing will result in the slower processing of
civil and bankruptcy cases. Delays in cases will harm
individuals, small businesses, and corporations.
Sequestration has also reduced funding for probation and
pretrial officer staffing throughout the courts, which means
less deterrence, detection, and response to possible resumed
criminal activity by federal defendants and offenders in the
community. In addition, law enforcement funding to support
GPS and other electronic monitoring of potentially dangerous
defendants and offenders has been cut 20%. 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.
Security systems and equipment in our Court Security
program have been cut 25% and court security officers' hours
have been reduced. These reductions come at a time of
heightened security resulting from the prosecutor murders in
Texas and the Boston bombings. A high level of security of
judges, prosecutors, defense counsel, jurors and litigants
entering our courthouses must be maintained.
Impact of Sequestration on Representation of Indigent Offenders
For Defender Services, incorporating enacted
appropriations, offset by sequestration, results in a $51
million shortfall in funding below minimum requirements. This
program has no flexibility to absorb such large cuts. It is
almost totally comprised of compensation to federal
defenders, rent, case related expenses (expert witnesses,
interpreters, etc.), and payments to private panel attorneys.
The only way to absorb the $51 million shortfall is to reduce
staffing or defer payments to private panel attorneys.
The Executive Committee examined all aspects of the
account, scrubbed expenses where possible, and approved a
spending plan that will result in federal defender offices
having to cut staff and furlough employees an average of
approximately 15 days. The approved spending plan will also
halt payments to private panel attorneys for the last 15
business days of the fiscal year. This will shift these
expenses to FY 2014, which were not considered as part of the
Judiciary's FY 2014 budget request to Congress, and add to FY
2014 appropriation requirements.
The uncertainty of the availability of federal defender
attorneys 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.
Since all non-case related expenses in this account have
already been reduced, the only solution to avoiding these
impacts is for Congress to provide additional funds.
Supplemental Appropriations
The Judiciary transmitted to the Office of Management and
Budget and the Congress an FY 2013 emergency supplemental
request that seeks $72.9 million to mitigate the devastating
impact of sequestration on defender services, probation and
pretrial services offices, court staffing, and court
security. The request includes $31.5 million for the Courts'
Salaries and Expenses account, and $41.4 million for the
Defender Services account.
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 FY 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 and substance abuse and mental health
treatment services for defendants awaiting trial and
offenders released from prison.
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.
$8.7 million is needed to avoid further staffing cuts and
furloughs in federal defender organizations during the fourth
quarter of FY 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.
$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.
Executive branch agencies with criminal justice
responsibilities have had the flexibility and resources to
address their FY 2013 post-sequestration requirements. As a
result, these agencies--which directly impact the workload of
the Judiciary--have been able to avoid furloughs. The
Judiciary has no such flexibility and instead must ask
Congress to approve a supplemental appropriation.
Cost Containment in the Judiciary
Cost containment is not new to the Judiciary. In 2004, as a
result of an unexpected shortfall in funding, the Judicial
Conference endorsed a cost containment strategy that called
for examining more than 50 court operations for reducing
expenses. Since then, the Judiciary has focused on three that
have the greatest potential for significant long-term
savings: rent, personnel expenses, and information
technology. To date, the Judiciary has cut costs by $1.1
billion.
The Judiciary's approach to cost containment is to
continuously challenge our ways of doing business and to
identify, wherever possible, ways to economize even further.
This can be a painful process as we are often proposing
changes to long established Judiciary customs and practices
and we sometimes face opposition from within. But we are
committed to doing everything we can to conserve resources
and be good stewards of the taxpayers' money.
While cost containment has been helpful during the last
several years of flat budgets, it will not come close to
offsetting the major reductions we face from sequestration.
____
Nomination Delays Hurting Courts, Federal Judge Says
(By Jim Mustian, Advocate staff writer)
Long delays drive away nominees
U.S. District Judge James J. Brady spoke out Monday against
the increasingly glacial pace of judicial nominations,
calling on U.S. Senate leaders to ``come to their senses''
and recognize the toll a vacant bench has on the court
system.
``It's just crazy, and we need to do something about
that,'' said Brady, who sits in the Middle District of
Louisiana in Baton Rouge. ``What's happening, in my mind, is
we're driving away a lot of really good folks that would make
excellent judges because they're saying, `I don't need to go
through that process and be in limbo for 18, 20, 24 months.'
That's something I'm very, very concerned about.''
Brady's remarks, made to more than two dozen people
attending a Catholic Community Radio luncheon, came less than
a month after Baton Rouge attorney Shelly Dick was confirmed
as the Middle District's first female federal judge more than
a year after being nominated by President Barack Obama.
Dick's nomination was initially blocked by U.S. Sen. David
Vitter, who had been holding out hope that Obama would lose
to Republican presidential nominee Mitt Romney. Vitter, R-
La., who said at the time he wanted to ``let the people
speak,'' later withdrew his block and backed Dick's
confirmation after Obama won re-election months later.
Brady did not refer specifically to the delays in Dick's
confirmation, but he alluded to the strain the empty
judgeship had on a district overburdened with cases. Dick
already has been assigned nearly a third of the district's
877 pending civil cases, Brady said.
The federal Middle District of Louisiana includes the
parishes of East Baton Rouge, West Baton Rouge, East
Feliciana, West Feliciana, Pointe Coupee, Iberville,
Ascension, Livingston and St. Helena.
``Getting a third judge has been a real relief for us,''
Brady said. ``It helps people get their cases decided much
more promptly and, I think, in a much better fashion.''
Delays in judicial nominations due to political differences
have become increasingly common in recent years. During
Obama's first term, the average wait time from nomination to
confirmation was more than six months for nominees to circuit
and district court judgeships, according to a recent report
by the Congressional Research Service.
[[Page S4448]]
``It's gotten to be now that it's almost like you're going
to paint a big bullseye on anyone who's nominated as a
federal judge,'' said Brady, whose own confirmation in 2000
took a little less than a year.
Then-President Bill Clinton nominated Brady for the
judgeship.
Brady suggested that concerns over district court nominees
are often overblown, noting he and his colleagues adhere to
parameters set forth by the higher circuit courts and U.S.
Supreme Court.
``I don't care if you're a Democratic appointee or a
Republican appointee, you're going to follow those laws, the
precedents that those courts have set,'' Brady said. ``I
don't know of anyone that deliberately goes out and tries to
rule against those precedents.''
Brady's remarks were unusual for a federal judge but were
prompted by the ``unusual times'' gripping the federal
courts, said Carl W. Tobias, a University of Richmond law
professor who is an expert on judicial nominations.
``An increasing number of judges and other people are very
concerned about the (nomination) process and how long it
takes to move people through it,'' Tobias said. ``You have
Exhibit A with Shelly Dick right there in Baton Rouge.''
Tobias said he was glad to hear of Brady speaking publicly
about the issue.
``I think it's important for people to understand what's
going on, and nobody knows better than the judges,'' he said.
``They have to live with it.''
Mr. LEAHY. I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I urge my colleagues to vote for the
nominees who are before the Senate today.
At this point in President Obama's term, when we get done with these
two today, we will have approved 195 of the President's judicial
appointments, and we have only disapproved 2. That is a 99-plus percent
voting record.
It would help if the President would speed up getting his nominees to
the Senate. There are 81 vacancies now. The President has only
submitted 29. That means there are 52 vacancies that could be filled by
the White House that the Senate would have an opportunity to work on as
well.
So far this year, the Senate has confirmed 22 lower court nominees.
Today, after these nominees are confirmed, we will have confirmed more
than twice the number of district and circuit judges that were
confirmed at this point in President Bush's second term. In fact, we
will have confirmed more lower-court nominees than were confirmed in
the entire first year of President Bush's second term.
Think about that--I will repeat it. In the 5 months of this
President's second term while we have been in session, we have
confirmed more district and circuit judges than were confirmed in the
entire first year of President Bush's second term.
The bottom line is that the Senate is processing the President's
nominees exceptionally fairly. He is being treated much more fairly
than Senate Democrats treated President Bush in 2005.
So I just wanted to set the record straight before we vote on these
nominees. I expect they will both be confirmed and I congratulate them
on their confirmations.
Judge Quinones received her B.B.A. from the University of Puerto Rico
in 1972 and her J.D. from the University of Puerto Rico School of Law
in 1975. Upon graduation, she worked as a staff attorney with Community
Legal Services in Philadelphia, where she focused on strictly civil and
administrative matters, appearing predominately in family court and
before administrative judges.
From 1977 to 1979, Judge Quinones wrote opinions in support of
decisions rendered by an Administrative Judge at the Department of
Health & Human Services. From 1979 to 1991, she was a staff attorney at
the Department of Veterans Affairs, VA, where her practice involved the
interpretation and application of the VA's administrative rules and
regulations. During this time, she also appeared in State court and
administrative agencies to represent the VA before the Equal Employment
Opportunity Commission and Merit Systems Protection Board.
Additionally, from 1980 to 1991, Quinones worked as an arbitrator for
the Arbitration Center at the Philadelphia Court of Common Pleas,
designed to dispose of small civil cases. In 1991, Judge Quinones left
the VA and established a solo practice. During this time she
represented a criminal defendant and sat as an arbitrator in insurance
matters.
As a practicing attorney, Judge Quinones appeared in court with
occasional frequency. She estimates that over the course of her pre-
judicial career, she tried 20 cases in family court, 300 commitment
hearings before a Mental Health officer, pursuant to her work at the
VA, and 600 administrative hearings.
In 1990, Judge Quinones was nominated by then Governor Robert Casey
to a judgeship on the Court of Common Pleas for the First Judicial
District of Pennsylvania, a court of general jurisdiction. She was
confirmed, but also engaged in a judicial election, and secured the
first of three 10-year terms in 1992. She won the later terms in
November 2001 and 2011.
Judge Quinones has experience in both criminal and civil divisions,
has presided over both jury and nonjury trials, and has supervised
nearly every step in the trial process. Judge Quinones has presided
over approximately 1,500 criminal trials and 300 civil trials.
The American Bar Association's Standing Committee on the Federal
Judiciary gave her a Majority ``Qualified'' and Minority ``Not
Qualified'' rating.
Judge Schmehl received his B.A. from Dickinson College in 1977 and
his J.D. from University of Toledo School of Law in 1980. Early in his
career, he focused on criminal law, first as an Assistant Public
Defender, then as an Assistant District Attorney. In these capacities,
he tried all types of criminal cases, from DUI to murder. During his
time as Assistant District Attorney, Judge Schmehl also had his own
private civil practice, handling wills, estates, real estate matters,
workers' compensation cases, and unemployment compensation cases.
In 1986, Judge Schmehl left private practice and the District
Attorney's office to join the private law firm Rhoda, Stoudt, &
Bradley. There he worked on insurance defense work and plaintiffs'
personal injury cases. As a practicing attorney, he has tried
approximately 200 cases to verdict, judgment, or final decision,
serving as sole counsel or chief counsel in almost all of them.
In 1997, Judge Schmehl was nominated by both the Democratic and
Republican parties for a judicial position in the Berks County Court of
Common Pleas and later elected to the bench. In 2007, he was appointed
to a 5-year term as President Judge in the same court and remains there
today. Judge Schmehl has presided over approximately 180 cases that
have gone to verdict.
The American Bar Association's Standing Committee on the Federal
Judiciary gave him a majority ``Well Qualified'' and minority
``Qualified'' rating.
I also am going to take a couple minutes to discuss something I would
have discussed in the Judiciary Committee meeting this morning, but
because of our vote I was not able to do it.
First, I want to talk about the nominations hearing we had earlier
this week on B. Todd Jones.
There is an open investigation in the Office of Special Counsel
regarding very troubling allegations that Mr. Jones retaliated against
a whistleblower in the U.S. Attorney's Office.
He is now up for confirmation for the Bureau of Alcohol, Tobacco, and
Firearms.
Mr. President, how much time remains until the vote?
The PRESIDING OFFICER. The Senator has 3 minutes remaining.
Mr. GRASSLEY. Last week Carolyn Lerner, the special counsel who leads
the office, wrote us a letter explaining the status of the matter. She
wrote that the parties had agreed to participate in mediation. She also
wrote, ``If mediation is unsuccessful, the case would return to the
Office of Special Counsel's Investigation Prosecution Division for
further investigation.''
On Monday, she wrote us another letter confirming that the case was
still open. We were told the reason we had to move forward with the
hearing was because an April letter from the Office of Special Counsel
was made public. The justification for holding the hearing was since
that issue was made public, the nominee should have had an opportunity
to respond at the hearing.
But, of course, there was nothing confidential in the Office of
Special
[[Page S4449]]
Counsel's letter. I am not about to hide this issue from the public. It
is relevant to our inquiry as to the qualifications of the nominee.
Moving forward under these circumstances is not consistent with past
committee practices. Of course, there are sensible reasons for that
committee practice.
First, none of us knows what the results of that investigation might
be. How are we supposed to make an assessment of the matter while it is
still open? Second, how are we supposed to ask the nominee about the
results of the investigation when the investigation has not been
completed? And, third, how are we supposed to ask the nominee about an
open investigation when the nominee will claim he cannot talk about it
for that exact reason?
I would also note that an assistant U.S. attorney who filed the
complaint against Mr. Jones gave his consent on Monday for the Office
of Special Counsel to provide the complaint to the committee. I must
say the allegations in the complaint are extremely troubling. So I
began my questions by asking Mr. Jones about these allegations.
Here is what he had to say:
Because those complaints are confidential as a matter of
law I have not seen the substance of the complaints nor can I
comment on what they are. I have learned more from your
statement today--
meaning, from this Senator,
than what I knew before I came here this morning about the
nature and substance in the complaints.
In other words, Mr. Jones said he could not answer questions about
the Office of Special Counsel investigation because it remains open.
This is precisely why it is imprudent to move forward with a hearing in
this way. At his hearing, I followed up with another question to Mr.
Jones, had he ever taken adverse personnel action? He responded:
I'm not familiar with the OSC complaint. I'm at somewhat of
a disadvantage with the facts. I can say that the privacy act
considerations do fit into the picture.
As another followup, I asked him how we were supposed to ask about
the complaint if he would not answer it. Here is what Mr. Jones said:
Well, quite frankly, Senator, I'm at a disadvantage with
the facts. There is a process in place. I have not seen the
OSC complaints.
So we have a problem.
So again, even though there is an open investigation, we were told we
were going forward with the hearing so that Mr. Jones had an
opportunity to answer the allegations. But whenever he was asked about
it, he said he could not answer our questions because he had not seen
the Complaint.
So, my point about the hearing being premature was overwhelmingly
proven.
I also want to make a few comments about Tony West, nominated to be
the Associate Attorney General. He is currently the Acting-Associate
Attorney General and has generally done a good job. However, I remain
concerned about his time serving as the Assistant Attorney General for
the Civil Division.
He was involved in the quid pro quo deal between the Department and
the City of St. Paul, Minnesota that was orchestrated by Assistant
Attorney General Tom Perez. That quid pro quo involved the Department
agreeing to decline two False Claims Act cases pending against the City
of St. Paul in exchange for the City dropping a case pending before the
Supreme Court.
Perhaps the most concerning part to me is that Mr. West essentially
let Tom Perez take control of the Civil Division and cut this deal
which hurt the whistleblower, Frederick Newell, leaving him to fight
his case all alone. This is not how I expect the Department to treat
good faith whistleblowers.
On top of all that, I believe it is contrary to the assurances that I
was given by Mr. West that he would protect whistleblowers and
vigorously enforce the False Claims Act when we held his confirmation
hearing in 2009. If this nominee is ultimately confirmed, I sincerely
hope he does not let politics within the Department control, instead of
supporting good faith whistleblowers who stick their necks out.
I also wanted to address the nomination of Ms. Caproni, to be a
District Judge. I have concerns over the fact that I made a request to
the FBI over 6 years ago, asking for documents regarding exigent
letters. In March 2007, Chairman Leahy and I requested copies of
unclassified emails related to the use of National Security Letters
issued by the FBI.
I only received a few of these emails, and they were heavily
redacted, so in 2008 I asked for the rest. Ms. Caproni, was general
counsel of the FBI at the time and told me that the documents I was
waiting for were on her desk, awaiting her review.
Well, it is now 2013 and as of her hearing, I had never received
these documents.
I asked Ms. Caproni about this in her hearing and she had no specific
recollection of this request. So, I asked her again in writing. This
led to a set of FOIA documents being produced, which are a poor
substitute for properly answering a committee request. It also raises
further questions as to why it took 6 years and why Ms. Caproni told me
years ago that she was working on responding to our request.
I have followed up with the FBI with specific requests regarding Ms.
Caproni's involvement in the matter. Therefore, while I did not hold
Ms. Caproni's nomination in committee, I reserve my right to do so on
the Senate floor.
Concerning S. 394, the metal theft bill that we reported out this
morning, I appreciate the changes that the sponsors made at my request
to the criminal portion of the bill. The nature of the offense is
clarified, and limited to the federal interest of critical
infrastructure.
The bill also now requires criminal intent as an element of the
proposed offense. The negligence standard in the bill has been
eliminated.
However, I still have a number of concerns with this bill. The
reality is that theft is already illegal everywhere in the country.
So is receipt of stolen goods. That raises questions about the
necessity of a new federal offense.
The civil provisions are also duplicative of many State laws. The
regulatory elements of this bill apply to any transaction in specified
metal products exceeding $100. In my opinion, $100 seems to be a very
low threshold.
We should not impose federal obligations unless the transaction is of
a significant amount.
States can enforce their own laws if they have enacted a lower
threshold.
Some of the recordkeeping requirements are of questionable value. For
instance, the recipient must record the license plate number and make
of the car used to deliver the metal.
Although the sponsors agreed to reduce the maximum amount, the dealer
still faces up to a $5,000 penalty if he knowingly commits a paperwork
violation, unless it is minor. This is true even if the metal is not
stolen. That strikes me as excessive.
And the sponsors declined to accept the changes that I sought in the
civil provision, especially as enforced by the state attorneys general.
Those provisions effectively allow a private right of action, even a
class action, to enforce these paperwork violations at up to $5,000 per
violation.
Not only can federal authorities enforce the bill's civil
authorities, but so can the States. If metal theft continues, then that
diffuse authority undermines the ability of citizens to hold
accountable the responsible level of government.
This would allow the States to bring these cases in friendly State
courts and expand the number of cases by outsourcing them to private
lawyers paid under contingency fees.
This leads to more enforcement than would occur if these cases had to
compete for attention with other priorities that state attorneys
general would bring.
Excessive government can derive not only from broad laws, but from
overzealous enforcement. The bill sponsors rejected my request that
suits by the State AGs be filed only in federal court, and that any
federal actions would supersede them.
There should be transparency and accountability for these lawsuits
that are brought under authority of federal law.
I had amendments to discuss in markup, but will not do that here.
However, when the full Senate takes up the bill, I will not be able to
support it in its current form. I hope to work with the sponsors to
address the concerns I have with this bill.
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the nomination of Nitza I.
Quinones Alejandro, of Pennsylvania, to be United States District Judge
for the Eastern District of Pennsylvania?
[[Page S4450]]
The nomination was confirmed.
The PRESIDING OFFICER (Ms. Baldwin). Under the previous order, the
question is, Will the Senate advise and consent to the nomination of
Jeffrey L. Schmehl, of Pennsylvania, to be United States District Judge
for the Eastern District of Pennsylvania?
Mr. LEAHY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 100, nays 0, as follows:
[Rollcall Vote No. 149 Ex.]
YEAS--100
Alexander
Ayotte
Baldwin
Barrasso
Baucus
Begich
Bennet
Blumenthal
Blunt
Boozman
Boxer
Brown
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Chiesa
Coats
Coburn
Cochran
Collins
Coons
Corker
Cornyn
Cowan
Crapo
Cruz
Donnelly
Durbin
Enzi
Feinstein
Fischer
Flake
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
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motions to
reconsider are made and laid on the table, and the President will be
immediately notified of the Senate's action.
____________________