[Congressional Record Volume 159, Number 154 (Thursday, October 31, 2013)]
[Senate]
[Pages S7706-S7708]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA
Cloture Motion
The PRESIDING OFFICER (Ms. Baldwin). Under the previous order, the
clerk will report the motion to invoke cloture.
Cloture Motion
We, the undersigned Senators, in accordance with the provisions of
rule XXII of the Standing Rules of the Senate, hereby move to bring to
a close debate on the nomination of Patricia Ann Millett, of Virginia,
to be United States Circuit Judge for the District of Columbia.
Harry Reid, Patrick J. Leahy, Richard J. Durbin, Johb D.
Rockefeller IV, Benjamin L. Cardin, Jon Tester, Sheldon
Whitehouse, Mark R. Warner, Patty Murray, Mazie K.
Hirono, Angus S. King, Jr. Barbara Boxer, Jeanne
Shaheen, Robert Menendez, Bill Nelson, Debbie Stabenow,
Richard Blumenthal
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, I ask unanimous consent that there be 2
minutes of debate equally divided in the usual format.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Patricia Millett is unquestionably qualified to be the
next judge on the DC Circuit. The Senate will soon vote to end debate
on her nomination and I hope that the rank partisanship that shut down
our Government earlier this month will not be on display again with
this upcoming vote. I hope the moderates who prided themselves in
finding a solution to the shutdown will agree that Ms. Millett is an
extraordinary nominee who should not be filibustered.
Over the last few weeks, I have heard those who want to filibuster
Ms. Millett make some unfounded claims to justify their partisan
agenda. First they asserted that the President is
[[Page S7707]]
somehow packing the court by nominating judges to vacant seats. No
student of history can honestly say that nominating candidates to
existing vacancies is court-packing.
Next, they claimed that because the last of President Bush's nominees
to this court was not confirmed, Ms. Millett should be filibustered as
payback. These partisans fail to note that by the time Peter Keisler
was nominated, four of President Bush's nominees to the DC Circuit had
been confirmed. Only one of President Obama's nominees to this court
has been confirmed and another has been filibustered.
Mr. Keisler was nominated to the 11th seat on the DC Circuit--and
would have marked the fifth time a President Bush nominee was confirmed
the court and the second time a Bush nominee was confirmed to be the
11th judge on the court. At that time, Democrats noted the hypocrisy of
Republicans pushing to confirm a second judge to the 11th seat on the
DC Circuit after they had blocked Merrick Garland's nomination in 1996
to be the 11th judge. Judge Garland's nomination was held up until
another judge retired and he was confirmed to be the 10th judge on the
court. Patricia Millett, however, is nominated to be the 9th judge.
Those who are determined to filibuster this highly qualified nominee
should at least get their facts straight.
For all the discussion about the DC Circuit's caseload, you would
think that it had the lowest caseload of any circuit court in the
country. But you would be wrong. The circuit court with the lowest
caseload is actually the Tenth Circuit Court of Appeals, which as of
June 30, 2013, has 1,341 total pending appeals and 134 pending appeals
per active judge. In contrast, the DC Circuit has 1,479 total pending
appeals and 185 pending appeals per active judge.
Despite the lower caseload on the Tenth Circuit, the Senate has
continued to confirm nominees to that court without any complaints from
Republicans about the workload. Just this past year, we confirmed
Robert Bacharach of Oklahoma to be the ninth judge on the Tenth Circuit
and Gregory Phillips of Wyoming to be the tenth judge on the Tenth
Circuit. We also recently held a hearing for Carolyn McHugh of Utah to
be the eleventh judge on the Circuit. And in the next few weeks, we
will hold a hearing for Nancy Moritz of Kansas to be the twelfth judge
on the Tenth Circuit. If Ms. McHugh and Ms. Moritz are both confirmed,
the Tenth Circuit will be at full strength with 12 active judges.
Again, in all the hearings and votes we have had for these Tenth
Circuit nominees, I cannot recall a single instance where Republican
senators questioned the need for judges on that court.
Some have also cited the DC Circuit's six senior judges as a reason
to filibuster Patricia Millett's nomination. Of course, the Tenth
Circuit has 10 senior judges, and yet, we never hear this cited as a
reason for not confirming nominees to existing vacancies in the Tenth
Circuit. I hope the Senators from Oklahoma, Wyoming, Utah, and Kansas
will hold Patricia Millett to the same standard that the circuit
nominees from their home state were held to or which they expect to be
held to.
Today's Washington Post editorial calls for Patricia Millett to be
confirmed and concludes that Republicans ``shouldn't insist on altering
the size of a court only when it's a Democratic president's turn to
pick judges or filibuster highly qualified nominees on that pretext.''
I ask unanimous consent that the editorial be printed in the Record.
Patricia Millett is an outstanding nominee who deserves to be treated
on her merits. No argument has been lodged against her that would rise
to the level of an extraordinary circumstance. If the Republican caucus
finds that despite her stellar legal reputation and commitment to her
country that somehow a filibuster is warranted, I believe this body
will need to consider anew whether a rules change should be in order.
That is not a change that I want to see happen but if Republican
Senators are going to hold nominations hostage without consideration of
their individual merit, drastic measures may be warranted. I hope it
does not come to that. I hope that the same Senators who stepped
forward to broker compromise when Republicans shut down the Government,
will decide here to put politics aside and vote on the merits of this
exceptional nominee. I also hope the same Senators who have said
judicial nominees should not be filibustered barring extraordinary
circumstances will stay true to their word.
Ten years ago John Roberts, President Bush's nominee received a voice
vote by the Senate. Today President Obama's nominee to that same seat,
Patricia Millett, is being filibustered. What has changed in 10 years?
The caseload of that court under any measure has remained constant or
gone up slightly in the past 10 years so that is just a partisan
pretext.
Let us treat this extraordinary nominee based on her qualifications.
Patricia Millett has honorably served this Nation for so many years and
we are better off for it. I urge my fellow Senators to vote for
cloture. Do not filibuster this brilliant lawyer, this military spouse,
this exceptional nominee.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Oct. 30, 2013]
Stripping a Court as a Political Ploy
It would have been hard for President Obama to nominate a
less controversial person to join the U. S. Court of Appeals
for the District of Columbia Circuit, the second-most-
important court in the land. So why are a lot of Republicans
probably going to vote against moving forward with Patricia
Millett's nomination on Thursday?
Ms. Millett is one of three people the president picked to
fill three open slots on the court, a high-profile perch in
the judiciary that reviews weighty matters such as regulation
of Wall Street and the environment. A lawyer who has
extensive experience arguing cases before the Supreme Court,
she has gold-plated bipartisan credentials, having served in
the Justice Department under the presidencies of Bill Clinton
and George W. Bush. A raft of legal luminaries has endorsed
her, including conservative former solicitors general Ted
Olson, Paul Clement and Kenneth Starr. Even conservative GOP
senators admit she is well-qualified.
But instead of being judged on her merits, Ms. Millett may
well end up a victim of a GOP campaign against allowing any
more of Mr. Obama's nominees onto the D.C. Circuit. Though
Republicans pushed to fill its 11 seats when George W. Bush
was president, they now argue that it doesn't need more than
its current eight judges, and that Mr. Obama is trying to
``pack'' the court. Some have backed a bill from Sen. Charles
E. Grassley (R-Iowa) that would strip the court of its
vacancies rather than consider the president's duly appointed
picks to fill them. A war of dueling numbers on the D.C.
Circuit's workload has ensued. Republicans insist that it
doesn't take as many cases as other appeals courts do.
Democrats respond that the D.C. Circuit must consider more
complex cases than others.
But the answer doesn't matter. Even if Republicans are
right, they shouldn't insist on altering the size of a court
only when it's a Democratic president's turn to pick judges
or filibuster highly qualified nominees on that pretext.
These moves are transparently self-serving, and would
encourage similar behavior by Democrats against Republican
presidents.
The recent history of the confirmation process is a steady
descent into unreasonable partisanship; if acted upon, the
Republicans' position would be another step down. It might
also provoke another unnecessary battle over Senate rules,
which could reshape the chamber in ways both parties would
regret.
If Republicans are genuinely concerned that the D.C.
Circuit has too many slots allotted to it, the fair way to
trim it down would be to limit future presidents from filling
seats that come open in the next presidential term and
thereafter. In the meantime, President Obama's picks deserve
the same fair treatment and respect as any others. Under that
standard, Ms. Millett should fly through confirmation on
Thursday.
Mr. LEAHY. I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, I want to illustrate why this seat
doesn't need to be filled. These are the other circuits. The average of
those other circuits is 383 caseloads. The DC Circuit has 149, so
workload doesn't demand it.
Secondly, we are in a situation where this administration has said:
``If Congress won't, I will.'' He is going to do it by executive order.
This is a court that can rule for or against the executive orders of
this administration. We need to maintain checks and balances of the
government.
Also, each one of these seats costs $1 million, and not just for 1
year, but every year for the rest of the life of those judges who are
serving full time. I ask that my colleagues vote against this cloture
motion.
Mr. LEAHY. Madam President, I ask unanimous consent that there be 2
more minutes equally divided.
[[Page S7708]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I am sure the Senator is concerned about
costs. Yet, the same Senators blocking Patricia Millett's confirmation
were not concerned when an unnecessary shutdown of the government cost
the taxpayers billions of dollars.
I also note that under President Bush, there were 11 judges on the DC
Circuit Court of Appeals with a lower caseload. Now there are 8 judges
with a higher caseload. The numbers are the numbers.
President Obama is being treated differently than President Bush was.
Patricia Millett is being treated differently than John Roberts was. It
is not fair, it is not an extraordinary circumstance, and there is no
justification for it.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. What that doesn't take into consideration is that there
are six senior status judges on this court. Chief Judge Garland told us
that their workload is the equivalent of 3\1/4\ judges. So presently
there are enough judges to go around and that would equal 11\1/4\
judges. There are 8 judges there now plus the 3\1/4\ that have senior
status. There are plenty of reasons not to fill any more seats on this
court.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Patricia Ann Millett, of Virginia, to be United States
Circuit Judge for the District of Columbia Circuit, shall be brought to
a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CHAMBLISS (when his name was called). ``Present.''
Mr. HATCH (when his name was called). ``Present.''
Mr. ISAKSON (when his name was called). ``Present.''
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer)
is necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Oklahoma (Mr. Inhofe), the Senator from Texas (Mr. Cruz),
and the Senator from Wyoming (Mr. Enzi).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 55, nays 38, as follows:
[Rollcall Vote No. 227 Ex.]
YEAS--55
Baldwin
Baucus
Begich
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Landrieu
Leahy
Levin
Manchin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murphy
Murray
Nelson
Pryor
Reed
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--38
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Coats
Coburn
Cochran
Corker
Cornyn
Crapo
Fischer
Flake
Graham
Grassley
Heller
Hoeven
Johanns
Johnson (WI)
Kirk
Lee
McCain
McConnell
Moran
Paul
Portman
Reid
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
ANSWERED ``PRESENT'' --3
Chambliss
Hatch
Isakson
NOT VOTING--4
Boxer
Cruz
Enzi
Inhofe
The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are
38, and three Senators responded ``Present.'' Three-fifths of the
Senators duly chosen and sworn not having voted in the affirmative, the
motion is not agreed to.
The majority leader.
Mr. REID. Madam President, I enter a motion to reconsider the vote by
which cloture was not invoked on the nomination of Ms. Millet.
The PRESIDING OFFICER. The motion is entered.
Vote Explanation
Mrs. BOXER. Madam President, I was unable to attend the
rollcall vote on the motion to invoke cloture on the nomination of
Patricia Ann Millett, of Virginia, to be U.S. Circuit Judge for the
District of Columbia Circuit. Had I been present, I would have voted
``yea.''
Mr. REID. Madam President, I ask unanimous consent that the Senate
recess until 2 p.m., and that at 2 p.m. the Senate proceed to a period
of morning business for debate only until 6 p.m. with Senators
permitted to speak for up to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________