[Congressional Record Volume 159, Number 174 (Tuesday, December 10, 2013)]
[Senate]
[Pages S8583-S8584]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to resume consideration of the following
nomination, which the clerk will report.
The legislative clerk read the nomination of Patricia Ann Millett, of
Virginia, to be United States Circuit Judge for the District of
Columbia Circuit.
Mr. LEAHY. Mr. President, today, the Senate will finally have the
opportunity to vote on the confirmation of Patricia Millett to the U.S.
Court of Appeals for the DC Circuit. Over the course of her 25-year
legal career, Ms. Millett has risen through the ranks of government and
private practice to earn a place among the best appellate practitioners
in the country. She has argued 32 cases before the Supreme Court. She
worked in the Justice Department under both Republican and Democratic
administrations. She is unquestionably qualified and deserves to be
confirmed without further delay so she can get to work for the American
people.
Patricia Millett's career mirrors that of the last DC Circuit judge
to occupy the very seat to which she is nominated--that of John
Roberts, Jr. I voted for his confirmation to both the DC Circuit and
later to the Supreme Court. I knew at the time of those votes that I
would not agree with every decision he would make on the bench, but I
voted for him because of his temperament and his excellent reputation
as a lawyer. John Roberts was confirmed unanimously to the DC Circuit
on the day the Judiciary Committee completed consideration of his
nomination and reported it to the Senate--at a time when the caseload
of the DC Circuit by any measure was lower than it is today. If only
Senate Republicans had been willing to apply the same standard for Ms.
Millett. Instead, they decided to filibuster her nomination even though
they had promised to only filibuster nominations under ``extraordinary
circumstances''. If those Senators had been true to their word, I do
not believe we would have reached the tipping point on the use of the
filibuster.
By refusing to allow a vote for any existing vacancy on the DC
Circuit, Republicans took their determined obstruction to an
unprecedented level. As the senior most Senator serving today, I
approach changes to the tradition and history of the Senate with great
reluctance. I have always believed in the Senate's unique protection of
the minority party. I have 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 more than 310 million Americans would do the right thing.
Now that the Senate has changed its precedents to overcome the
escalating obstruction of some, I hope reasonable Republicans will join
us in restoring the Senate's ability to fulfill its constitutional
duties. I hope this will include a vote to confirm Patricia Millett to
the DC Circuit.
Ms. Millett is a nominee with unquestionable integrity and character.
She has engaged in significant community service and committed herself
to pro bono work. She helps the neediest among us, volunteering through
her church to prepare meals for the homeless and serving regularly as
an overnight monitor at a local shelter.
Through her legal work, Ms. Millett has earned broad bipartisan
support. This includes the support of Peter Keisler, Carter Phillips,
Kenneth Starr, Theodore Olson, and Paul Clement, and a bipartisan group
of 110 appellate practitioners, as well as 37 Deputy Solicitors General
and Assistants to the Solicitor General from both Republican and
Democratic administrations. She is supported by the national president
of the National Fraternal Order of Police, Chuck Canterbury, and many
others.
Patricia Millett's service to our Nation is not limited to her legal
career or her humanitarianism. She is part of our Nation's storied
military family, a family that we have called on repeatedly in the past
decade. Her husband is a retired Navy reservist, and as a military
spouse, Ms. Millett is part of our Nation's military fabric. She
understands personally what we ask of our servicemembers and their
families. At the height of Patricia Millett's legal career, her husband
received orders to deploy in support of Operation Iraqi Freedom. For
nearly a year, she balanced Supreme Court arguments and the demands of
being a single parent all while reassuring her children that their
father would return home safe.
But not only is Ms. Millett committed to her own military family, she
has helped to secure employment protections for members of our National
Guard and Reserve through her pro bono legal work. In a case decided by
the Supreme Court in 2011, Ms. Millett represented an Army Reservist
who was fired, in part, because some of his co-workers did not like his
military absences. The successful arguments that Ms. Millett helped
craft have made it easier for all members of our Reserve and National
Guard to protect their rights under the Uniformed Services Employment
and Reemployment Rights Act.
Patricia Millett embodies what we ask our military families to do on
behalf of their country. Military spouses juggle all the challenges
that every American family faces--but often with the added pressure of
deployments and extended separations. I want to thank all the military
spouses who are in the Senate gallery today and those watching on C-
SPAN who have worked tirelessly to support the nomination of ``one of
their own''. We should recognize, honor and support our military
families not just through words, but through meaningful action. A vote
to confirm Patricia Millett is that meaningful action.
Today the Senate finally has the opportunity to vote for the
confirmation of Patricia Millett. I urge my fellow Senators to join me
in supporting this outstanding nominee.
Mr. HATCH. Mr. President, over the past few months, here on the
Senate floor, in the Judiciary Committee, and in op-eds in national
publications, I have explained why the pending nominees to the U.S.
Court of Appeals for the DC Circuit should not be confirmed. Neither
those facts nor the conclusion they compel have changed and
[[Page S8584]]
so I will vote against confirming the nominee before us.
The majority changed more than 200 years of Senate practice, taking
away one of the few tools the minority has to participate in either the
confirmation or legislative process. On nothing more than a party line
vote, the majority deployed a premeditated parliamentary maneuver to
prohibit the very filibusters that majority Senators once used.
Getting these three individuals on this particular court at this
particular time is apparently so important that the majority is willing
to change the very nature of this institution to do it. I believe the
reason is the majority's belief that, as DC Circuit judges, these
nominees will reliably support actions by the executive branch agencies
that are driving much of President Obama's political agenda.
Democrats enthusiastically embraced the filibuster when they used it
to block Republican nominees to positions in both the executive and
judicial branches. They used the filibuster to defeat nominees to be
Assistant Secretary of Defense, Undersecretary of Agriculture, and U.N.
Ambassador. They used the filibuster to defeat nominees to the Fifth
Circuit, the Sixth Circuit, and the Ninth Circuit. They filibustered
Miguel Estrada's nomination a record seven times to keep him off the DC
Circuit. Three-quarters of all votes for judicial nominee filibusters
in American history have been cast by Democrats. The majority leader
alone voted to filibuster Republican judicial nominees no less than 26
times.
That was then, this is now. Simply turning on a political dime and
opposing today what Democrats used so aggressively just a few years ago
would be bad enough. But this radical institutional change is being
justified by patently false claims. The majority leader claims as proof
of ``unprecedented obstruction'' that there have been 168 nominee
filibusters in American history, half of them during the Obama
administration.
It turns out, Mr. President, that the majority leader is not even
counting filibusters at all. He is counting cloture motions, which are
nothing but requests to end debate on a matter pending before the
Senate. A filibuster occurs only when that request to end debate is
denied, when an attempt to end debate fails. Only 52 cloture votes on
executive or judicial nominations have ever failed in American history,
and only 19 nominees on whom cloture was filed were not confirmed.
Looking at the Obama administration, only 14 cloture votes on
nominations have failed and only six nominees have so far not been
confirmed.
During the Obama administration, a much lower percentage of cloture
motions on nominations have resulted in cloture votes, a much higher
percentage of those cloture votes have passed, and a much higher
percentage of nominees on whom cloture was filed have been confirmed.
By what I have called filibuster fraud, the majority ends up claiming
that confirmed nominees were obstructed and that ending debate is a
filibuster. The truth is the opposite of what the majority claimed as
the justification for ending nominee filibusters.
I regret that the President and the majority here in the Senate
deliberately set up this political confrontation. I have explained in
detail before how the DC Circuit's current level of eight active and
six senior judges is sufficient to handle its caseload, which has been
declining for years, while other circuits need more judges. I likely
could support the nominee before us today had she been nominated to a
seat that needed to be filled on a court that needed more judges.
Using false claims to justify radically changing the confirmation
process in order to stack a court with judges who will rubberstamp the
President's political agenda is wrong in so many ways. I hope there is
time to undo the damage.
The PRESIDING OFFICER. Under the previous order, the question is,
Will the Senate advise and consent to the nomination of Patricia Ann
Millett, of Virginia, to be United States Circuit Judge for the
District of Columbia Circuit?
Mr. McCONNELL. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Coons) is
necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Mississippi (Mr. Cochran), the Senator from Texas (Mr.
Cruz), the Senator from Wisconsin (Mr. Johnson), the Senator from
Illinois (Mr. Kirk), and the Senator from Louisiana (Mr. Vitter).
Further, if present and voting, the Senator from Wisconsin (Mr.
Johnson) would have voted ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 56, nays 38, as follows:
[Rollcall Vote No. 247 Ex.]
YEAS--56
Baldwin
Baucus
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Collins
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
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NAYS--38
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Corker
Cornyn
Crapo
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Lee
McCain
McConnell
Moran
Paul
Portman
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Wicker
NOT VOTING--6
Cochran
Coons
Cruz
Johnson (WI)
Kirk
Vitter
The nomination was confirmed.
The PRESIDING OFFICER. The majority leader.
____________________