[Congressional Record Volume 159, Number 167 (Thursday, November 21, 2013)]
[Senate]
[Pages S8428-S8431]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NATIONAL DEFENSE AUTHORIZATION ACT

  Mr. INHOFE. Madam President, it is my understanding we may have a 
vote this afternoon. I have often said the most important bill we pass 
every year--and we have passed every year for the last 52 years--is the 
National Defense Authorization Act.
  I would like to say this about the process we have gone through. I do 
not recall ever having worked with a chairman when I have been in the 
minority who has been so easy to work with as Chairman Levin has been 
on this Defense bill. It is one we all understand we have to do. It has 
to be a reality. A lot of what we do around here we can wait a month 
and do it. But on this we cannot, because right now we have men and 
women in the field. We have their paychecks. We have things that have 
to happen to keep this going as it has in the last few years.
  Maintenance and modernization are right now. If we were not able to 
pass this now, our research and development would no longer be able to 
be there in time to take care of the immediate needs we have.
  I am very upset about what has happened to our defense system. Under 
this administration, we have lost $487 billion in Defense--coming out 
of the hide of Defense. In addition, we are now looking at the 
sequester. I will only say this, perhaps for the last time: Why should 
our defense system, which is only accountable for 18 percent of the 
budget, be responsible for 50 percent of the cuts? It is because this 
administration is determined that is what is going to happen to the 
military.
  So now we have people such as General Odierno, Commanding General of 
the U.S. Army, who said:

       . . . lowest readiness levels I have seen within our Army 
     since I have been serving for the last 37 years. Only two 
     brigades are ready for combat.

  Admiral Greenert, the CNO of the Navy:

       . . . because of the fiscal limitations and the situation 
     we are in, we do not have another strike group trained and 
     ready to respond on short notice in case of contingency. We 
     are tapped out.

  Admiral Winnefeld is the No. 2 guy in the military system. He is the 
Vice Chairman of the Joint Chiefs of Staff. He said:

       There could be, for the first time in my career, instances 
     where we may be asked to respond to a crisis and we have to 
     say we cannot.

  I have given a lot of talks on the floor about how serious things are 
right now.
  Put the readiness chart up there.
  I would only comment to this. A lot of people think there is an 
easier answer for this, and that we can, through efficiencies in the 
Pentagon, take care of these problems. A lot of work needs to be done. 
My junior Senator certainly is going to be concentrating on that, on 
the efficiencies. However, if all

[[Page S8429]]

of the efficiencies were granted, that is only the blue line on this 
chart. This chart talks about sequestration, if nothing changes, what 
is going to happen to our military. We have that.
  The next one up there, the next larger, is force structure. We are 
talking about how many brigades, how many boots on the ground, how many 
ships, what it is going to look like.
  The next one up there is modernization. Modernization is a very small 
line. Here is the big one over here. That is our ability to fight a 
war. That is our readiness.
  If you look down here at the bottom at fiscal years 2014 and 2015, 
you can see all of that is going to be gutted in the first 2 years if 
we do not make a change in it. I tried to do that. I have an amendment. 
I still have an amendment that is out there that could correct that 
situation. I think it is important for people to understand that the 
readiness is going to be hurt more. This is after $487 billion has been 
cut from our defense system.
  General Amos, the Commandant of the Marine Corps, who testified under 
oath, said:

       We will have fewer forces arriving, less-trained, arriving 
     late in the fight. This would delay the buildup of combat 
     power, allow the enemy more time to build its defenses, and 
     would likely prolong combat operations. Altogether, this is a 
     formula for American casualties.

  It gets back to that orange line up there. The orange line is when 
you do that, you have to accept a greater risk. That means American 
lives. I have already given that speech.
  Right now we are getting close to the time when we are going to be 
actually casting a vote. I think I have kind of good news. Hopefully it 
is good news. I made a statement yesterday that the problem the 
Republicans have is they have not been able to get amendments in. We 
have gone through this in years past, and always something has broken 
loose where we are able to have amendments. Well, up until yesterday, 
the Republicans had 81 amendments that we wanted to be considered. 
Frankly, that is not all that uncontrollable. That could have been 
done. We could have still gotten through that this week. But as it is 
right now--the good news is, I said yesterday on the floor that I was 
going to come in and try to work all night long, and the staff has done 
this, to come up with 25 amendments and say: If we, the Republicans, 
can have 25 amendments to be considered, they can be voted down, but 
just to be considered on the floor, that we would be receptive to 
having the results.
  Here is the interesting thing about it. We have heard a lot of people 
talking about, well, why is it all of a sudden this has to be done in 5 
days? Yet we have been sitting around here for 3 months when we could 
have been considering it.
  I would like to suggest, if you look at this, this is every year how 
many days it has taken for consideration. It is always more than what 
we have for the rest of this week. I only say that, because in spite of 
that, we still have a way of doing it.
  For those who might think that the recorded votes we are requesting--
it is not going to be that many votes. We are asking for 25 on the 
Republican side. Democrats have 25. That is 50. But if you look at 
years past--for example, last year we had total amendments offered of 
106, but only 34 were voice voted, only 8 required a recorded vote.
  I can go back to all of the rest of the years that are on this chart. 
But the bottom line is this: What I am asking for today is 25 for the 
Republicans, 25 for the Democrats. Of those, not more than 15 to 20 
would require votes. We could do that in 1 day. So it can be done. We 
could finish this and still give Republicans the opportunity to have 
their votes.
  What I have here is a list of the 25 amendments we are asking for. 
Again, I am not even for all 25 of them, but they should all be 
considered one way or another. This probably would end up requiring 
maybe at the most 10 votes. So I am offering these amendments and 
telling the majority--by the way, I have already talked about what a 
great relationship I have had during this consideration as the ranking 
member of Armed Services with the chairman Carl Levin. So I am offering 
to Carl Levin and to the Democrats, the majority in the Senate and the 
majority on the committee, these 25 amendments. All we are asking for 
is for those 25 to be considered. We can do this bill right, the way we 
have done it for 52 years. We can have a bill. We can have it by the 
end of this week. So I am offering that.
  I also announced yesterday that in the event I can come up with a 
total number of 25 that our caucus would agree with, that if we could 
do that and we were refused, when the time comes I will vote against 
going to the bill. Now I think that very likely could happen this 
afternoon. However, if they accept them, I am committing right here on 
the floor that I will be in full support and I will vote for it. I want 
people to understand, in the unlikely event that the majority does not 
accept these--the consideration of these 25 votes, I will be voting 
against cloture on the bill when that vote comes up.
  I yield the floor.
  The PRESIDING OFFICER (Ms. WARREN). The Senator from Vermont.
  Mr. LEAHY. Madam President, I am not on the Armed Services Committee, 
although I was 38 years ago. But I would think that if there are any 
two people in this body who could work out a program to get the votes 
set up and voted on it is the distinguished senior Senator from 
Michigan and the distinguished senior Senator from Oklahoma. I would 
hope and encourage my colleagues on both sides of the aisle to listen 
to the Democratic and Republican leaders of this Committee, because I 
think they can probably work it out.
  There has been a lot of discussion about the major rules change that 
occurred here today. In my capacity as President pro tempore, I was 
presiding during that time and did not get a chance to speak. I want to 
say a few things.
  In the four decades I have served here, I have been here with both 
Democratic majorities and Republican majorities, through both 
Republican and Democratic administrations. We have had moments of 
crisis when I worried that our political differences outweighed the 
Senate's common responsibility. Yet we were always able to steer our 
way out of trouble. Majorities of both parties have come and gone, but 
I have never lost faith in our ability to see ourselves through the 
divisions and come together to do what is best for the Nation.
  I have always believed in the Senate's unique protection of the 
minority party, even when Democrats held a majority in the Senate. When 
the minority has stood in the way of progress, I have defended their 
rights and held to my belief that the best traditions of the Senate 
would win out, that the 100 of us who stand in the shoes of over 310 
million Americans would do the right thing. That is why I have always 
looked skeptically at efforts to change the Senate rules.
  But in the past 5 years it has been discouraging. Ever since 
President Obama was elected, Senate Republicans have changed the 
tradition of the Senate, with escalating obstruction of nominations. 
They crossed the line from the use of the Senate rules to abuse of the 
Senate rules. In fact, the same abuse recently, and needlessly, shut 
down our government at a cost of billions of dollars to the taxpayers 
and billions of dollars to the private sector. I think it is a real 
threat to the independent, judicial branch of government.
  As chairman of the Judiciary Committee, I am worried that the 
Republican obstruction is damaging our ability to fulfill the Senate's 
unique constitutional responsibility of advice and consent to ensure 
that the judicial branch has the judges it needs to do its job.
  Republicans have used these unprecedented filibusters--and they are 
unprecedented--more than at any time that I have served here. They have 
obstructed President Obama from appointing to the Federal bench even 
nominations that were supported by Republican Senators from the State 
from where the nominee came. They have forced cloture to end 
filibusters on 34 nominees, far more than we ever saw during President 
Bush's 8 years in office. Almost all of these nominees were, by any 
standard, noncontroversial and ultimately were confirmed 
overwhelmingly. In fact, Republican

[[Page S8430]]

obstruction has left the Federal judiciary with 90 or more vacancies 
during the past 5 years.
  Take for example the Republican filibuster of a judicial nominee to 
the Tenth Circuit, Robert Bacharach last year, despite the support of 
the Republican Senators from Oklahoma. This marked a new and damaging 
milestone. Never before had the Senate filibustered and refused to vote 
on a judicial nominee with such strong bipartisan support, and who was 
voted out of the Judiciary Committee with virtually unanimous support. 
Republicans continued to block Senate action on the Bacharach 
nomination through the end of last Congress and forced his nomination 
to be returned without action to the President. There is no good 
reason--none--why Robert Bacharach was not confirmed to serve the 
people of Oklahoma and the Tenth Circuit as a Federal judge last year. 
He was finally confirmed this year unanimously.
  Republicans last year also filibustered William Kayatta, another 
consensus circuit nominee who had the support of both Republican home 
State Senators. Like Judge Bacharach, Mr. Kayatta received the ABA 
Standing Committee on the Federal judiciary's highest possible rating 
and had strong bipartisan support and unimpeachable credentials. The 
same also applies to Richard Taranto, whose nomination was returned to 
the President at the end of last year after Republicans blocked action 
on his nomination to a vacancy on the Federal Circuit for more than 
eight months, despite no opposition in the Senate and despite the 
support of both Paul Clement and the late Robert Bork. Neither of these 
nominees faced any real opposition. Yet Republicans stalled both of 
them through the end of last Congress and forced their nomination to be 
returned without action to the President. They were both confirmed this 
year with overwhelming bipartisan support.
  Senate Republicans used to insist that the filibustering of judicial 
nominations was unconstitutional. The Constitution has not changed, but 
as soon as President Obama took office Republicans reversed course. It 
struck me, because the very first--the very first--nominee to the 
Federal bench that President Obama sent here was filibustered. Judge 
Hamilton of Indiana was a widely-respected 15-year veteran of the 
Federal bench nominated to the Seventh Circuit. President Obama reached 
out to the longest-serving Republican in the Senate, Senator Dick 
Lugar, to select a nominee he supported. Yet, Senate Republicans 
filibustered his nomination, requiring a cloture vote before his 
nomination could be confirmed after a delay of seven months.
  It is almost a case of saying: Okay, Mr. President, you think you got 
elected? We are going to show you who is boss. We are going to treat 
you differently than all of the Presidents before you.
  This has never been done before, to filibuster the President's very 
first nominee. Somehow this President is going to be told he is 
different than other Presidents.
  Senate Republicans have obstructed and delayed nearly every circuit 
court nominee of this President, filibustering 14 of them. They abused 
the Senate's practices and procedures to delay confirmation of Judge 
Albert Diaz of North Carolina to the Fourth Circuit for 11 months, 
before he was confirmed by voice vote. They delayed confirmation of 
Judge Jane Stranch of Tennessee to the Sixth Circuit for 10 months 
before she was confirmed 71 to 21. Senate Republicans used procedural 
tactics to delay for months the Senate confirmation of nominations with 
the strong support of Republican home State Senators--including Judge 
Scott Matheson of Utah to the Tenth Circuit; Judge James Wynn, Jr. of 
North Carolina to the Fourth Circuit; Judge Henry Floyd of South 
Carolina to the Fourth Circuit; Judge Adalberto Jordan of Florida to 
the Eleventh Circuit; Judge Beverly Martin of Georgia to the Eleventh 
Circuit; Judge Mary Murguia of Arizona to the Ninth Circuit; Judge 
Bernice Donald of Tennessee to the Sixth Circuit; Judge Thomas Vanaskie 
of Pennsylvania to the Third Circuit; Judge Andrew Hurwitz of Arizona 
to the Ninth Circuit; Judge Morgan Christen of Alaska to the Ninth 
Circuit; and Judge Stephen Higginson of Louisiana to the Fifth Circuit.
  The results are clear and devastating. The nonpartisan Congressional 
Research Service has reported that the median time circuit nominees had 
to wait before a Senate vote has skyrocketed from 18 days for President 
Bush's nominees during his first term in office to 132 days for 
President Obama's nominees during his first term in office. This is the 
result of Republican obstruction and abuse of Senate rules. In most 
cases, Senate Republicans have delayed and stalled without explanation. 
How do you explain the filibuster of the nomination of Judge Barbara 
Keenan of Virginia to the Fourth Circuit who was ultimately confirmed 
99 to 0? And how else do you explain the needless obstruction of Judge 
Denny Chin of New York to the Second Circuit, who was filibustered for 
four months before he was confirmed 98 to 0?
  In 2012, Senate Republicans refused to consent to a vote on a single 
circuit court nominee until the majority leader filed cloture, even for 
nominees with home State Republican support like Adalberto Jordan of 
Florida--strongly supported by Senator Rubio--and Andrew Hurwitz of 
Arizona, strongly supported by Senator Kyl. They blocked the Senate 
from voting on a single circuit court nominee nominated by President 
Obama last year. Since 1980, the only other Presidential election year 
in which there were no circuit nominees confirmed who was nominated 
that same year was in 1996, when Senate Republicans shut down the 
process against President Clinton's circuit nominees.
  In the 8 years George W. Bush served as President, only five of his 
district court nominees received any opposition on the floor. That was 
over 8 years. In just 5 years, 42 of President Obama's district court 
nominees have faced opposition. The majority leader had to file cloture 
on 20 of them. Federal district court judges are the trial court judges 
who hear cases from litigants across the country and preside over 
Federal criminal trials, applying the law to facts and helping settle 
legal disputes. They handle the vast majority of the caseload of the 
Federal courts and are critical to making sure our courts remain 
available to provide a fair hearing for all Americans. Nominations to 
fill these critical positions, whether made by a Democratic or 
Republican President, have always been considered with deference to the 
home State Senators who know the nominees and their States best, and 
have been confirmed quickly with that support. Never before in the 
Senate's history have we seen district court nominees blocked for 
months and opposed for no good reason. Many are needlessly stalled and 
then confirmed virtually unanimously with no explanation for the 
obstruction. Senate Republicans have politicized even these 
traditionally non-partisan positions.
  As chairman of the Judiciary Committee I have always acted fairly and 
consistently whether the President has been a Democrat or a Republican. 
I have not filibustered nominees with bipartisan support. I have 
steadfastly protected the rights of the minority and I have done so 
despite criticism from Democrats. I have only proceeded with judicial 
nominations supported by both home State Senators. I will put my record 
of consistent fairness up against that of any chairman and never acted 
as some Republican chairmen have acted in blatantly disregarding 
evenhanded practices to ram through the ideological nominations of 
President George W. Bush.
  Regrettably, the answer to my fairness and to my commitment to 
protecting the rights of the minority has been unprecedented and 
meritless obstruction. Even though President Obama has nominated 
qualified, mainstream lawyers, Republicans in the Senate have done away 
with regular order, imposing unnecessary and damaging delays. Until 
2009, judicial nominees reported by the Judiciary Committee with 
bipartisan support were generally confirmed quickly. That has changed, 
with district nominations taking over four times longer and circuit 
court nominees over seven times longer than it took to confirm them 
during the Bush administration. Until 2009, we observed regular order 
and usually confirmed four to six nominees per week, and we cleared the 
Senate Executive Calendar before long recesses. Since then, Senate 
Republicans have refused to clear the calendar and slowed us down to a 
snail's pace. Until 2009, if a nominee was filibustered, it

[[Page S8431]]

was almost always because of a substantive issue with the nominee's 
record. We know what has happened since 2009--Republicans have required 
cloture to consider even those nominees later confirmed unanimously.
  This obstruction was not merely a product of extreme partisanship in 
a Presidential election year--it has been a constant and across the 
board practice since President Obama took office. At the end of each 
calendar year, Senate Republicans have deliberately refused to vote on 
several judicial nominees just to take up more time the following year. 
At the end of 2009 Republicans denied 10 nominations pending on the 
Executive Calendar a vote. The following year, it took 9 months for the 
Senate to take action on 8 of them. At the end of 2010 and 2011, Senate 
Republicans left 19 nominations on the Senate Executive Calendar, 
taking up nearly half the following year for the Senate to confirm 
them. Last year they blocked 11 judicial nominees from votes, and 
refused to expedite consideration of others who already had hearings.
  The effects of this obstruction have been clear. When the Senate 
adjourned last year, Senate Republicans had blocked more than 40 of 
President Obama's circuit and district nominees from being confirmed in 
his first term. That obstruction has led to a damagingly high level of 
judicial vacancies persisting for over four years.
  This year, Senate Republicans reached a new depth of pure 
partisanship. They have decided to shut down the confirmation process 
altogether for an entire court--the U.S. Court of Appeals for the DC 
Circuit, even though there are three vacancies on that court. Senate 
Republicans attempt to justify their opposition to filling any of the 
three vacancies on the DC Circuit with an argument that the court's 
caseload does not warrant the appointments.
  We all know that this ploy is a transparent attempt to prevent a 
Democratic President from appointing judges to this important court. We 
all know what has happened here in the DC Circuit. In 2003, the Senate 
unanimously confirmed John Roberts by voice vote as the 9th judge on 
the DC Circuit at a time when the caseload was lower than it is today. 
He was confirmed unanimously. No Democrat, no Republican opposed him. 
Not a single Senate Republican raised any concerns about whether the 
caseload warranted his confirmation and during the Bush administration 
they voted to confirm four judges to the DC Circuit--giving the court a 
total of 11 judges in active service.
  Today there are only eight judges on the court; yet, when Patricia 
Millett was nominated to that exact same seat by President Obama, a 
woman with just as strong qualifications as John Roberts--they both had 
great qualifications--she was filibustered. Some say we should not call 
that a double standard. Well, I am not sure what else one might call 
it. We also should not be comparing the DC Circuit's caseload with that 
of other circuits, as Republicans have recently done. The DC Circuit is 
often understood to be the second most important court in the land 
because of the complex administrative law cases that it handles. The 
court reviews complicated decisions and rulemakings 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, 2001. Comparing the DC Circuit's caseload to other 
circuits is a false comparison, and those who are attempting to make 
this comparison are not being fully forthcoming with the American 
public. Years ago, one of the senior most Republican Senators on the 
Judiciary Committee said this:

       [C]omparing workloads in the DC Circuit to that of other 
     circuits is, to a large extent, a pointless exercise. There 
     is little dispute that the DC Circuit's docket is, by far, 
     the most complex and time consuming in the Nation.

  Now, however, that same Senator has engaged in the precise pointless 
exercise he once railed against.
  This is an unprecedented level of obstruction. I have seen 
substantive arguments mounted against judicial nominees, but I have 
never seen a full blockade against every single nominee to a particular 
court, regardless of the individual's qualifications. Republicans 
attempted to take this type of hardline stance with certain executive 
positions last year and earlier this year, when they refused to allow a 
vote for any nominee to the Consumer Financial Protection Bureau and 
the National Labor Relations Board. Rather than representing 
substantive opposition to these individual nominees, this obstruction 
was a partisan attempt to sabotage and eviscerate these agencies which 
protect consumers and American workers. I have heard some call this 
tactic ``nullification.'' It is as if the Republicans have decided that 
the President did not actually win the election in 2008, and was not 
re-elected in 2012.
  Senate Republicans backed off this radical and unprecedented hardline 
stance on executive nominees earlier this year, but they have shown no 
signs of doing the same with the DC Circuit. And it is not for lack of 
qualified nominees. This year, Senate Republicans filibustered the 
nominations of three exceptionally qualified women: Caitlin Halligan, 
Patricia Millett and Nina Pillard. Earlier this week Republicans 
filibustered another stellar nominee to this court, Judge Robert 
Wilkins.
  I am a lawyer. I have tried cases in Federal courts. I have argued 
cases in Federal courts of appeal. I always went into those courts 
knowing I could look at that Federal judge and say: It doesn't make any 
difference whether I am a Democrat or a Republican, whether I represent 
the plaintiff or the defendant; this is an impartial court.
  If we play political games with our Federal judiciary, how long are 
the American people going to trust the impartiality of our Federal 
courts? At what point do these games start making people think maybe 
this is not an independent judiciary? If that day comes, the United 
States will have given up one of its greatest strengths.
  Let's go back to voting on judges based on their merit--and not on 
whether they were nominated by a Democratic President or a Republican 
President. Let's stop holding President Obama to a different standard 
than any President before him--certainly no President since I have been 
in the Senate, and I began with President Gerald Ford.
  This obstruction is not just bad for the Senate, it is also a 
disaster for our Nation's overburdened courts. Persistent vacancies 
force fewer judges to take on growing caseloads, and make it harder for 
Americans to have access to justice. While they have delayed and 
obstructed, the number of judicial vacancies has remained historically 
high and it has become more difficult for our courts to provide speedy, 
quality justice for the American people. In short, as a result of 
Republican obstruction of nominees, the Senate has failed to do its job 
for the courts and for the American people, and failed to live up to 
its constitutional responsibilities. That is why the Senate today was 
faced with what to do to overcome this abuse and what action to take to 
restore this body's ability to fulfill its constitutional duties and do 
its work for the American people.

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