[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.

                          ____________________