[Congressional Record Volume 159, Number 175 (Wednesday, December 11, 2013)]
[Senate]
[Pages S8661-S8667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



          Fallen Firefighters Assistance Tax Clarification Act

  Mr. SCHUMER. Mr. President, I rise to speak about a particular 
incident that occurred in Webster, NY, a beautiful town near the City 
of Rochester.
  On Christmas Eve, 2012, nearly 1 year ago today, the 125-member West 
Webster Volunteer Firemen's Association--a volunteer fire department 
east of Rochester, NY--faced an unimaginable tragedy when four of their 
brave members were wounded, two fatally, when they responded to a fire 
but instead faced an ambush of unspeakable proportions.
  While many families across our Nation were waking up last Christmas 
Eve morning to finish preparing Christmas dinner, shopping, wrapping 
presents, picking up the family from the airport, four Webster families 
were instead confronting a heart-wrenching tragedy.
  The call of a house on fire came into the West Webster Fire 
Department at 5:30 a.m. on December 24, and although it was a cold 
snowy morning, still dark before the Sun rose, everyday heroes from the 
West Webster Fire Department courageously did what they volunteered to 
do on behalf of their neighbors and on behalf of their hometowns. They, 
similar to millions of brave volunteer firefighters throughout our 
country and throughout its history, left their homes and their families 
in safety to put out a fire that always creates danger.
  This routine call turned into a tragedy which shocked the community, 
people throughout the country, and even people throughout the world.
  Firefighter Joseph Hofstetter, a 14-year volunteer for West Webster 
Fire Department, arrived first on the scene. Firefighter Theodore 
Scardino arrived soon after with LT Mike Chiapperini in a pumper truck, 
followed by 19-year-old firefighter Tomasz Kaczowka driving the 
department's SUV.
  What they did not know was that the fire was intentionally set by the 
home's owner in order to lure these innocent firefighters into a 
senseless sniper ambush. The sniper was hiding behind a berm amid the 
chaos of the fire and began shooting at the responding firefighters.
  The firefighters were confused at first to hear popping sounds and 
thought it might be from the fire but LT Mike Chiapperini, who was also 
a Webster police officer, knew better and shouted to his fellow 
volunteers to take cover, but unfortunately it was too late.
  Firefighter Hofstetter was shot in the pelvis while trying to alert 
dispatchers on the radio to the situation.
  Ted Scardino was shot in the shoulder, and 5 minutes later he was 
shot again in the leg. The 16-year volunteer lay there while bleeding 
for over an hour, enduring the December cold while sustaining second-
degree burns on his head as the fire now spread to consume six other 
neighboring homes.
  Lieutenant Chiapperini and Firefighter Kaczowka both died in the 
ambush.
  As news of this horrific, senseless Christmas Eve tragedy spread, 
well-meaning people from across the Rochester and Finger Lakes area, 
across New York State, across the Nation and the world reached out to 
the West Webster Volunteer Firemen's Association to offer support and 
prayers.
  Thousands of incredibly generous people flooded the department with 
countless financial contributions to support the volunteer department, 
to support the four firefighters--and in the case of Lieutenant 
Chiapperini and Firefighter Kaczowka, to support the families they had 
left behind.
  Not realizing that collecting and distributing the funds to the 
families would jeopardize the association's tax-exempt status with the 
IRS, the association accepted donations from generous people all around 
the Nation wanting to help the four families who suffered the most on 
that day.
  They collected these donations for the victims, for their families, 
and they want to give these donations to

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the victims and their families. It defies reason that they would be 
unable to do so now because of a technicality in the Tax Code.
  Just as we did after 9/11, and again after a similar fire department 
tragedy in California in 2006, it is our obligation to make sure the 
West Webster Volunteer Firemen's Association can now disburse to these 
families the contributions that their neighbors and unknown, countless, 
generous others wanted them to have.
  As it is, the disbursement of these funds has been delayed for months 
and now almost 1 year. That is why I am asking the Senate to proceed 
with consideration of the Fallen Firefighters Assistance Tax 
Clarification Act.
  This proposal merely clarifies--as we did after 9/11 and again after 
the California tragedy in 2006--that the West Webster Volunteer Fire 
Department will not lose its status as a nonprofit association by 
distributing the donations to these firefighters and their families.
  As we again enter the Christmas season and approach the 1-year 
anniversary of this tragedy, now is the time to make this right.
  We need to do it on behalf of the families of the fallen and the 
injured. The family of 43-year-old LT Mike Chiapperini includes his 
wife Kim, his 19-year-old son Nick, and his daughters, 4-year-old Kacie 
and 3-year-old Kylie.
  Known to many as Chip, Lieutenant Chiapperini was a West Webster Fire 
Department volunteer firefighter for 25 years. He was past chief of the 
West Webster Fire Department and adviser for its Fire Explorer Post. He 
also served with distinction for 19 years as a police officer with the 
Webster Police Department and rose through the ranks as a dispatcher, 
police officer, investigator, sergeant, and lieutenant. In short, he 
committed his entire life to public service for the town of Webster.
  Likewise, 19-year-old firefighter Tomasz Kaczowka left behind his 
parents Janina and Marian Kaczowka, along with his older twin brothers 
and a large extended family. Firefighter Kaczowka was selflessly 
devoted to his family and his community. In fact, he was not even 
supposed to be on duty that Christmas Eve but elected to make the shift 
so that older department members could be home with their families that 
day.
  The surviving firefighters, Ted Scardino and Joseph Hofstetter, have 
had to endure long rehabilitations for their injuries and their 
families have had to deal with life's ordinary challenges and day-to-
day expenses as Ted and Joseph recover and move forward with their 
lives.
  The fact is, ordinary Americans, moved by the heroic sacrifice of 
these volunteer firefighters, have offered their generous support. They 
have intended their contributions to help these families in the wake of 
the tragedy and in recognition of the service of these brave 
firefighters.
  These were volunteer firefighters--volunteers. I know many of my 
colleagues on both sides of the aisle are well acquainted with the 
volunteer fire service. Many may even have a membership in a volunteer 
fire company themselves.
  You all know men and women just like the members of West Webster. 
They are the epitome of the American spirit.
  The French observer de Tocqueville was taken by that spirit when he 
visited America and the Rochester area in 1831 and thought voluntarism 
was one of the things that set America apart from the rest of the 
world. That was true then. It is still true today.
  These heroes do not ask for anything. They just want to protect their 
neighbors and their community. It is just plain wrong that they would 
lose their not-for-profit status simply for being a passthrough to 
convey donations to these families after an unspeakable tragedy.
  In that same spirit, I had hoped to request unanimous consent this 
evening to move forward with the consideration of this legislation. Who 
could object? Who could object? However, I understand that some of my 
colleagues on the other side of the aisle object to me making the 
request at this time. Therefore, I will withhold that request this 
evening and sincerely hope my colleagues will think about this 
overnight and allow us to proceed with consideration tomorrow. It is, 
indeed, the right thing to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I appreciate the comments of my colleague 
from New York. He has been a tireless champion for the terrific, 
dedicated, self-sacrificing firefighters of New York City.
  Tonight we are on the floor addressing the question of whether we 
should confirm Cornelia Pillard as a candidate for the DC Circuit 
Court. She is a law scholar with a long track record of public service. 
She served twice in the Justice Department and successfully defended 
the Family and Medical Leave Act, a crucial piece of legislation for 
working families. She now teaches law at Georgetown University, one of 
the top law schools in the Nation.
  The truth is, she is an extremely well-qualified nominee who will be 
an excellent addition to the DC Circuit Court. She has personally 
argued and briefed Supreme Court cases brought or defended by 
government lawyers from Republican administrations, and Republican-
appointed Justices have often authored majority opinions in her favor.
  She is currently the codirector of the Supreme Court Institute at 
Georgetown Law, where she personally assists lawyers preparing for the 
Supreme Court on a pro bono, first-come basis, without regard to which 
side they represent.
  In fact, Professor Pillard chaired the American Bar Association 
Reading Committee that reviewed Samuel Alito's writings during his 
nomination process for the Supreme Court. Her committee's assessment 
led the ABA to give Justice Alito their highest rating of ``well-
qualified.''
  Professor Pillard's unbiased approach to the law has won the respect 
of her colleagues in law and in government, including former Department 
of Justice officials in Republican administrations who have endorsed 
her nomination to the DC Circuit.
  In short, Professor Pillard is a fairminded, highly accomplished 
litigator, with an outstanding reputation for public service.
  Then why are we here now, after midnight, carrying on this debate? To 
get to the root of that question, we have to examine the dysfunction 
that is present in the Senate.
  Virtually all Americans know Congress is not working well. Virtually 
all Americans know the Senate is broken. I saw a poll that said 92 
percent of Americans believe Congress is dysfunctional, and I wondered: 
What is wrong with the other 8 percent? They must not be paying 
attention. Because what we have experienced in the Senate is a 
continuous campaign of obstruction and paralysis of the normal 
proceedings.
  There was a time when we had a Senate that had a core principle, 
which was up-or-down votes, with rare exception--up-or-down votes, with 
rare exception. That was the tradition of the Senate. That tradition 
was rooted in the courtesy--the courtesy--of hearing out every Senator 
who wished to share their opinion on a topic before the Senate would 
make a decision.
  Maybe that was something easier to do when there were only 26 Members 
of the Senate. We now have 100 Members of the Senate. So maybe it takes 
a while to hear the opinions of every Member, but still that courtesy 
has been honored through the years. But the counterpart to that is that 
folks knew in the end the Senate, with very rare exception, would get 
to a simple majority vote. The entire structure of our Constitution and 
the vision of our Founders was that this body would make decisions with 
a simple majority vote.
  Recall, if you will, that the Founders put into the Constitution 
special occasions for a supermajority. Those special occasions were 
things such as overriding a Presidential veto. Those special occasions 
were things such as reviewing a treaty. But they envisioned a simple 
majority vote for the legislature because they felt the majority 
decision most of the time would be a better direction to go than the 
minority opinion. That is the principle of democracy. The direction 
that most Senators believe is the correct direction is the basis for 
going forward.
  This principle has been completely lost in the last few years. A 
small

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group of Senators decided they should replace the constitutional 
principle of a simple majority with a supermajority, that virtually 
every action would be subject to a requirement to have 60 votes to 
close debate rather than the constitutional 51.
  This has been applied in ways American citizens cannot even imagine. 
Let's take motions to proceed. A motion to proceed simply says it is 
time to take up this bill. Let's vote yes or no on taking up this bill. 
That is the motion to proceed.
  But in recent times the minority has said: You know what. We can use 
this motion to proceed as an opportunity to paralyze the Senate. We can 
object to having that simple majority vote, and then we can deny--there 
being this supermajority to close debate--even if we have nothing to 
say, and we can simply waste the Senate's time on debating whether to 
debate.
  I have argued for a long time that this abuse must end. It is time to 
get rid of the filibuster on this motion to proceed. But nonetheless we 
have it and my colleagues in this permanent campaign to paralyze the 
Senate have chosen to exercise this filibuster, if you will, this 
supermajority requirement, simply on a motion to debate an issue as 
opposed to actually being in debate.
  Let's take conference committees. It was extraordinarily rare for 
conference committees--the formation of them--to be subject to a 
supermajority in the history of the Senate. Conference committees were 
very common in the seventies and eighties. I was first here as an 
intern in 1976 with Senator Hatfield, here on Capitol Hill working for 
Congress in the 1980s.
  If one Chamber of Congress and the other Chamber had both passed a 
bill, well then automatically you had a conference committee meet and 
resolve the differences. That is just common sense. Why would you delay 
that for a second? But when I came to the Senate in 2009 as a Senator, 
I was mystified to discover that conference committees were not being 
held. So I inquired why that was. The answer was that the minority had 
decided to use the filibuster, the supermajority, on establishing a 
conference committee; in other words, block the House and Senate from 
even talking to each other to resolve differences between two houses.
  That drove the debate out of the public realm, in a public room with 
a TV camera, into private discussions as negotiators tried to resolve 
and develop a common version of the bill. There too I proposed that we 
need to get rid of this filibuster on conference committees. It is 
disrespectful of the most valuable commodity of this body; that is, 
time; that is, time is wasted on filibusters on whether to start a 
discussion with the House when both the House and Senate have passed a 
version of the bill.
  Then, of course, we have the ongoing campaign of subjecting virtually 
every nomination to a supermajority. In fact, in the history of 
America, in the entire history, before President Obama, only three 
times was there a filibuster of a district court nominee. But in the 
time President Obama has been in office, we have had 20 filibusters of 
district court nominees. Only 3 in our history until President Obama is 
President and then 20 filibusters when he became President until now--
20 out of 23.
  That is just a pure deliberate campaign of paralysis and obstruction, 
undermining the contribution of this body, its responsibility as a 
legislative body. It is not only judicial nominees, it is executive 
nominees as well. In our entire history as a nation, 168 nominations 
have been filibustered--168 in our entire history--82 of them have been 
nominations by President Obama; 82 nominees just in the 5 years 
President Obama has been in office out of the 168 in our entire 
history. So we see, whether we are looking at motions to proceed or 
conference committees or judicial nominees or executive nominees, a 
campaign of deliberate paralysis and obstruction rather than a 
dedication to serving our Nation as the Constitution requires.
  Indeed, some have justified this ongoing paralysis. Some of my 
colleagues have said: But remember, President Washington said the 
Senate should be a cooling saucer. That concept is that you have a cup 
of hot tea, and it is too hot to drink, you pour it into a saucer, it 
cools and then it is just right.
  President Washington would never recognize this strategy of 
obstruction and paralysis as legitimate under the U.S. Constitution. 
Indeed, there were elements designed to make this body deliberative. 
But there is a difference between deliberation and the destruction of 
the legislative process. There is a difference between a cooling 
saucer, thoughtful deliberation, and a deep freeze.
  But certain Members of this body have decided they did not come here 
to fulfill the constitutional vision of the Senate as a deliberative 
body, they instead have come to paralyze the function of this body, to 
obstruct this body.
  So there we see it in the filibuster of the conference committees, in 
the filibuster of the motions to proceed, in the filibuster of the 
executive branch nominees, filibuster of the judicial nominees, and, of 
course, the filibuster of legislation that has reached extraordinary 
levels never seen in the history of our Nation.
  Just a little while ago one of my colleagues chose to quote Alexander 
Hamilton in defense of this strategy of paralysis. I would encourage my 
colleague to actually read more of Alexander Hamilton because he 
actually directly addressed this question of filibusters and the 
potential to obstruct the will of the majority.
  What did Alexander Hamilton say? He said: The real operation of the 
filibuster ``is to embarrass the administration, to destroy the energy 
of government, and to substitute the pleasure, caprice or artifices of 
a significant, insignificant, turbulent or corrupt junta, to the 
regular deliberations and decisions of a respectable majority.
  He went on to say: When the majority must conform to the views of the 
minority, the consequence is ``tedious delays, continual negotiation 
and intrigue, contemptible compromises of the public good.''
  That is a pretty good description of what Americans see happening in 
this Chamber as a result of the deliberate campaign of paralysis and 
obstruction: tedious delays, continual intrigue, contemptible 
compromises of the public good.
  Many in this Chamber have tried to reason and convey to Members that 
we should return to the tradition of the Senate, up-or-down votes with 
rare exception. In 2005 it was the Democrats in the minority and it was 
the Republicans who were in the majority. At that time the Democrats 
decided to filibuster a series of judicial nominees. So this was 
certainly a tactic employed by both Democrats and Republicans.
  Our Republican friends who were in the majority said: That is not 
acceptable. They said: That is not consistent with the philosophy of 
up-or-down votes with rare exception. They said that is not consistent 
with the power vested in the Constitution and the President to be able 
to place forward his nominees for consideration under the advice and 
consent clause of the Constitution.
  Our Republican colleagues were persuasive. The Democrats in the 
minority agreed not to filibuster judges except under rare exceptions, 
exceptions of extraordinary flaws of character and experience. Then the 
clock turned. We came to 2009. Now we have a Democratic President and 
Democratic majority. The deal that was cut in 2005, agreed to by both 
sides, that there would be only rare filibusters based on exceptional 
flaws of character or experience disappeared. It disappeared 
completely. The new minority did not honor the deal that had been 
negotiated in 2005.
  So come January 2011, there was a debate on this floor about trying 
to again restore the traditional understanding, up-or-down votes with 
rare exception. There was a deal made. It did not last but a few weeks. 
Then there was another attempt in January 2013. On this occasion, there 
was a promise made on the floor of the Senate. The minority leader came 
to the floor and said: The Republicans will return to the norms and 
traditions of the Senate regarding nominations.
  What are those norms and traditions? Those norms and traditions are a 
simple majority vote with rare exception. Within weeks, that promise 
was completely shattered. The first ever filibuster in U.S. history of 
a Defense nominee, ironically a former colleague from the Republican 
side of the aisle.
  Then we had 43 Senators write a letter and say they would not allow 
anyone to be confirmed for the position as

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Director of the Consumer Federal Protection Bureau, certainly 
inconsistent with up-or-down votes with rare exception for issues of 
character.
  Then there was another big effort in July of 2013, just earlier this 
year. We all got together in the Old Senate Chamber and we shared our 
frustrations and our views. Again, the promise was put forward: We will 
stop filibustering except under rare circumstances related to character 
or qualifications.
  Well, that was terrific.
  We had confirmation of the person who was awaiting to be Director of 
the Environmental Protection Agency, Gina McCarthy. We had confirmation 
of the person who had been waiting for a very long time as the nominee 
of the Labor Department, Tom Perez. We had the confirmation of the 
folks who had been waiting to be confirmed to the National Labor 
Relations Board. In fact, I think that was the first time we had all 
five members Senate confirmed in 10 years.
  We had the Director of the Consumer Financial Protection Bureau, 
Richard Cordray was finally confirmed. Shortly thereafter, we had 
Samantha Powers confirmed to the United Nations, and so forth. The norm 
was restored but only for a couple of weeks.
  Then came the nomination of Mel Watt to head the Federal Housing 
Finance Agency. Suddenly the commitment for up-or-down votes 
disappeared. Then we had a whole new strategy on the judiciary. This 
strategy had never been experienced in U.S. history. It was: No matter 
whom President Obama nominates for the DC Circuit Court, we are going 
to block that nominee because we only want to leave in place the 
nominees that were put in place by President Bush.
  That is in direct contravention of the vision of the Constitution 
where each President as elected has the power to nominate. This Chamber 
is a check. It gets to vote up or down and decide whether they should 
be in office. But this was a deliberate strategy to pack the Court, to 
say that when a President of my party is in power, there will be up-or-
down votes, as was insisted in 2005 when the tables were turned, but 
when the President is of the other party, we are going to have a 
perpetual campaign and we are going to block up-or-down votes.
  Let's picture down the road and the new President is a Republican 
President. Is there truly any Member here who would say, from the 
Republican side, that when the Republican President is in place, they 
were still going to believe they should not fill vacancies on key 
courts around this country?
  It is too bad this campaign of paralysis has been allowed to go on so 
long. We should have acted long before to fulfil our responsibility to 
have a deliberative body because that is what legislation is. It is 
doing enormous damage to the United States of America. First, because 
of the paralysis, we are not doing the work we should be on 
legislation. We are not addressing the big issues facing America. There 
are all kinds of job creation bills that have not been able to get to 
this floor because they have not been able to get through the gauntlet 
of paralyzing filibusters that have been laid down.
  Americans actually want to work. Americans want to have living-wage 
jobs. They expect us to act, to make that happen, not to paralyze this 
institution so it is unable to do so. Indeed, in addition, we are 
damaging the view of the United States around the world because it used 
to be the world looked to the United States and said: Look how well 
their Congress works. They had this Great Depression. They took on and 
fixed all kinds of flaws in their financial system. They established 
insurance for bank accounts so there would not be runs on the banks. 
They replaced a flawed mortgage strategy, which involved callable 
balloon mortgages, with noncallable fully amortizing mortgages so we 
did not create a series of dominoes.
  They took and created organizations, the Securities and Exchange 
Commission, to oversee stock markets so folks could have faith, invest 
in stocks, and put their capital in knowing there was a very good 
chance that capital would be well utilized because there were 
accounting standards and qualifications that block predatory practices 
on Wall Street.
  The world saw the U.S. respond to World War II and convert our 
economy through enormous amounts of legislation in a single year to 
apply it to the war effort and take on the big challenge of defeating 
the Nazis.
  Then the world saw America use its legislative power to build the 
largest middle class the world has ever seen. Those living wage jobs, 
every one of them means a foundation for a family. If we want to talk 
family values, then fight to have this body, this Senate, work on 
legislation that creates living-wage jobs. Quit paralyzing the Senate.
  Then we have, of course, the fact of this new strategy in these 
recent months, a deliberate attack on the balance of powers. The 
Constitution envisioned three branches in balance. It has no hint of 
any kind that a minority of one branch should be able to undermine the 
operation of the other two branches. Some colleagues have seized upon a 
strategy of trying to undermine the integrity of our judiciary. Some 
colleagues have seized on a strategy of trying to undermine the 
capability of the elected executive branch, the President and his 
executive branch.
  Read your history--balance of powers, not the ability of the minority 
or one branch to undermine the success of the other two branches. We 
need these three branches each doing their assigned roles.
  We are at this point after this long set of strategies of paralysis, 
on motions to proceed, on legislation, on conference committees, on 
executive branch nominees, on judicial nominees. We have taken the 
first step toward restoring the function of the Senate, and we have 
said we should return to the notion of up-and-down votes as envisioned 
under advise and consent. This is as envisioned by Alexander Hamilton 
and the other Founders who railed against the notion that a minority 
would be able to block the will of a majority in the Chamber.
  We have done that with nominations. In a continuation of a strategy 
of paralysis, we are here tonight rather than having voted much earlier 
in the day. Instead of working on legislation that would create jobs, 
we are standing here through a series of nominations as the minority 
insists on wasting the valuable commodity of time in this Chamber.
  I hope my colleagues who are intent upon creating this huge imbalance 
between the branches will reconsider, that they will decide they want 
to see this Chamber become what it was when I was first here in the 
1970s and when I worked for Congress in the 1980s, a great deliberative 
body. What it was when we took on the Great Depression, what it was 
when we took on World War II, what it was when we built the great 
middle class, this is what the United States wants to see. May we make 
it so.
  Thank you, Mr. President.
  Mr. LEAHY. Mr. President, tonight we will vote on the nomination of 
Nina Pillard to the U.S. Court of Appeals for the DC Circuit. On 
Tuesday, we were finally able to invoke cloture on her nomination, 
after it had been unjustifiably filibustered by Senate Republicans for 
nearly 3 months after being favorably voted out of the Senate Judiciary 
Committee. The DC Circuit is often considered to be the second most 
important court in the Nation and should be operating at full strength. 
We are finally taking another step towards making this Court operate at 
full strength for the American people.
  Nina Pillard is an accomplished litigator whose work includes 9 
Supreme Court oral arguments, and briefs in more than 25 Supreme Court 
cases. She drafted the Federal Government's brief in United States v. 
Virginia, which after a 7 to 1 decision by the Supreme Court made 
history by opening the Virginia Military Institute's doors to female 
students and expanded educational opportunity for women across the 
country. Since then, hundreds of women have had the opportunity to 
attend VMI and go on to serve our country.
  She has not only stood up for equal opportunities for women, but for 
men as well. In Nevada v. Hibbs, Ms. Pillard successfully represented a 
male employee of the State of Nevada who was fired when he tried to 
take unpaid leave under the Family Medical Leave Act to care for his 
sick wife. In a 6 to 3 opinion authored by then-Chief Justice William 
Rehnquist, the Supreme Court ruled for her client, recognizing

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that the law protects both men and women in their caregiving roles 
within the family.
  She has also worked at the Department of Justice as the Deputy 
Assistant Attorney General in the Office of Legal Counsel, an office 
that advises on the most complex constitutional issues facing the 
executive branch. And prior to that, Ms. Pillard litigated numerous 
civil rights cases as an assistant counsel at the NAACP Legal Defense & 
Educational Fund. At Georgetown Law, Ms. Pillard teaches advanced 
courses on constitutional law and civil procedure, and co-directs the 
law school's Supreme Court Institute. She has earned the American Bar 
Association's highest possible ranking--Unanimously Well Qualified--to 
serve as a Federal appellate judge on the DC Circuit.
  Today, however, I have heard some unfortunate and unfair attacks on 
this fine woman. I have heard comments that she would be ``the most 
left wing judge'' in U.S. history; that she has extreme views on 
abortion and religious liberty; and that she would ``rubber stamp'' the 
most radical legislative and regulatory proposals. One might expect 
these outrageous accusations to come from right wing fringe groups, but 
to hear some of these outlandish accusations on the Senate floor is 
unfortunate.
  So let me clear the record. Nina Pillard is one of the finest 
nominees we have had before this body. On the issue of abortion, 
Republicans have cherry picked quotes and taken them out of context to 
try to paint her as someone she is not. The truth is that taken as a 
whole, her writings have focused on bridging the gap between pro-life 
and pro-choice advocates by ``finding common ground for ways to reduce 
reliance on abortion.''
  More importantly, I cannot ignore the double standard of certain 
Senators on the issue of abortion. In 2002, the Senate unanimously 
confirmed President Bush's nomination of Michael McConnell to the Tenth 
Circuit by voice vote. Professor McConnell argued that Roe v. Wade was 
wrongly decided and urged the Supreme Court to overturn it. He 
applauded a Federal judge for refusing to convict anti-abortion 
protestors, even though they had clearly violated the law, because of 
his sympathetic reading of the defendants' motives.
  Similarly, in 2002, the Senate confirmed William Pryor to the 
Eleventh Circuit, even though he called Roe v. Wade the ``worst 
abomination in the history of constitutional law.'' Another President 
Bush nominee, J. Leon Holmes, was confirmed to the Federal district 
court in Arkansas, even though he had argued that abortion should be 
banned even in case of rape because pregnancy from rape is as uncommon 
as ``snowfall in Miami.'' He had also written that wives should be 
submissive to their husbands. He was not filibustered. He was 
confirmed.
  Each of these judicial nominees stated under oath in testimony before 
the Senate Judiciary Committee that they could set aside their personal 
beliefs and would interpret the law consistent with the Constitution 
and Supreme Court precedent. They were confirmed. Nina Pillard 
testified under the same oath that, ``A judge's opinions and views 
should have no role in interpreting the Constitution.'' Are we to 
believe that only judicial nominees who do not support a woman's access 
to abortion services are able to set aside their personal views to be 
fair and impartial judges? I cannot help but notice the glaring double 
standard that is imposed on Nina Pillard.
  On the issue of religious liberty, Senate Republicans continue to 
misrepresent comments Ms. Pillard made about the possible outcome of a 
Supreme Court case to suggest she is hostile to religious freedom. In a 
2011 briefing to educate the press on legal issues in Hosanna Tabor v. 
EEOC, she described the issue in the case, identified what was 
difficult about it, and offered a prediction of how the Court might 
resolve it. Her prediction turned out to be wrong.
  If Senators, who have also sworn to uphold the Constitution, were 
held accountable every time they incorrectly predicted the outcome of a 
Supreme Court case, I am not sure how many of us would be left. 
Ultimately, she has testified that if confirmed she would uphold the 
Supreme Court's precedent on the issue.
  The suggestion that Ms. Pillard will be ``the most left-wing judge in 
the history'' is simply outlandish hyperbole, as demonstrated by the 
bipartisan support she has received. Viet Dinh, the former Assistant 
Attorney General for the Office of Legal Policy under President George 
W. Bush, wrote in a letter of support for her nomination that ``Based 
on our long and varied professional experience together, I know that 
Professor Pillard is exceptionally bright, a patient and unbiased 
listener, and a lawyer of great judgment and unquestioned integrity. . 
. Nina has always been fair, reasonable, and sensible in her judgments. 
. . She is a fair-minded thinker with enormous respect for the law and 
for the limited, and essential, role of the federal appellate judge--
qualities that make her well prepared to take on the work of a D.C. 
Federal Judge.''
  Former FBI Director and Chief Judge of the Western District of Texas 
William Sessions has written that her ``rare combination of experience, 
both defending and advising government officials, and representing 
individuals seeking to vindicate their rights, would be especially 
valuable in informing her responsibilities as a judge.''
  Nina Pillard has also received letters of support from 30 former 
members of the U.S. Armed Forces, including 8 retired generals; 25 
former Federal prosecutors and other law enforcement officials; 40 
Supreme Court practitioners, including Laurence Tribe and Carter 
Phillips, among many others.
  Despite having filled nearly half of law school classrooms for the 
last 20 years, women are grossly underrepresented on our Federal 
courts. We need women on the Federal bench. A vote to end this 
filibuster is a vote to break yet another barrier and move in the 
historic direction of having our Federal appellate courts more 
accurately reflect the gender balance of the country.
  I commend President Obama on his nominations of highly qualified 
women like Nina Pillard, Patricia Millett, Elena Kagan and Sonia 
Sotomayor. In each of these women, the Senate has had the opportunity 
to vote to confirm women practicing at the pinnacle of the legal 
profession. Once the Senate confirmed Justice Kagan, the highest court 
in the land had more women than ever before serving on its bench. With 
the confirmation and appointment of Nina Pillard, the same will be true 
for what many consider to be the second highest court in the land, the 
DC Circuit because she will be the fifth active female judge on the 
court. Never before have five women jurists actively served on that 
court at one time. I look forward to that moment and to further 
increasing the diversity of our Federal bench.
  I urge my colleagues to vote to confirm this outstanding nominee. 
This Nation would be better off for Nina Pillard serving as a judge on 
the DC Circuit.
  Today, the Senate will also vote on the nominations of Elizabeth A. 
Wolford, of New York, to be U.S. District Judge for the Western 
District of New York; Landya B. McCafferty, of New Hampshire, to be 
U.S. District Judge for the District of New Hampshire; Brian Morris, of 
Montana, to be U.S. District Judge for the District of Montana; and 
Susan P. Watters, of Montana, to be U.S. District Judge for the 
District of Montana.
  Senate Republicans have continued to abuse the filibuster and 
required cloture to confirm all four of these noncontroversial district 
court nominees. All four of these nominees were reported unanimously by 
voice vote from the Senate Judiciary Committee. They all have the 
support of their home State senators. With the filibuster of these four 
district court nominees, Senate Republicans have now filibustered 24 of 
President Obama's district court nominees. Not a single district court 
nominee was filibustered under President Bush's 8 years in office. I 
hope Senate Republicans come around so that we can work together to 
meet the needs of our Federal judiciary so that the American people can 
have the justice system they deserve.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. SCOTT. To change the rules our friends on the left had to break 
the rules. We are here tonight because the Obama administration and our 
friends on the left needed a distraction by invoking the nuclear option 
leading up to the vote on Nina Pillard of the DC Circuit. They are 
attempting to quiet a disaster of their own making.

[[Page S8666]]

  Please note that this is a court that will hear the ACA disputes. It 
was easy enough for them to paint a rosy picture of life after 
ObamaCare. For 3 years they did it, and they did their best to do so, 
but words could only go so far and no speech will help the failed 
implementation of the monster they have created.
  Health care premiums for the average American family have already 
gone up by $2,500 since ObamaCare has become law. I wish to say that 
one more time. The average premium that an American family will have to 
face and then pay is $2,500.
  As costs continue to rise for middle-class Americans, the median 
household income has dropped by more than $3,600 under President Obama. 
If we take $2,500 and add in the drop of income of $3,600, the 
difference for the average American household under President Obama's 
watch is significant. That doesn't even take into consideration the 
skyrocketing costs and the increasing deductibles under ObamaCare.
  According to the Wall Street Journal, the average individual 
deductible for what is called a Bronze plan on the exchange, the 
lowest-priced coverage is a $5,000 average deductible. This is 42 
percent higher than the average deductible today of $3,589 one would 
currently purchase in 2013.
  Tell me how this helps those in need. How does this help the most 
vulnerable in our society? The answer is simple. It doesn't.
  We are here because Democrats need a break from having this pointed 
out to them again and again as newspapers, magazines, and TV stations 
have been doing for the last several weeks.
  In South Carolina we have about 4.7 million people and 600,000 or 
700,000 folks do not have health insurance coverage. Think about that. 
There are 4.7 million South Carolinians, of which about 700,000 today 
do not have health insurance.
  Under ObamaCare, we would hope that the number would go down, not up, 
that it would go down from 700,000 to 600,000 or 500,000 or 400,000. 
Over 430,000 of the 700,000 people are eligible for ObamaCare. The 
number is not going down. The number is going up because 150,000 South 
Carolinians have received cancellation notices.
  Let us frame that a little bit. We have 700,000 uninsured, of which 
430,000 are eligible for ObamaCare. Instead of seeing the number of 
uninsured go from 700,000 down to 600,000 or 500,000 or 400,000, we 
have seen the number go up because 150,000 people have received 
cancellation notices--150,000 South Carolinians have received 
cancellation notices.
  Someone would obviously ask the question: How many folks have signed 
up for ObamaCare in South Carolina?
  If 430,000 South Carolinians are eligible to sign up, we ought to 
answer the question of how many have signed up.
  As of late November, only 600 South Carolinians have successfully 
signed up for ObamaCare. This means that under the implementation 
process of what some consider the solution to America's woes on health 
insurance, only 600 South Carolinians have been able to successfully 
sign up for ObamaCare, even though 430,000 are eligible and 700,00 do 
not have insurance. Only 600 of them have been able to sign up for 
ObamaCare.
  When we think about those numbers, it reminds me of the challenges we 
face with going through the process of seeing the DC Circuit Court 
stacked to hear the disputes.
  Part of the challenge we see is that ObamaCare hasn't worked, so 
stacking the court seems that it is the most likely option for our 
friends on the left.
  When we started out having these conversations about ObamaCare, we 
started a conversation about those who are uninsured. I think every 
American in our country wants to see greater access to health 
insurance.
  The vast majority of Americans do not want to see the government take 
it over, and now we understand why. In 2009--not 1999, but 2009--we had 
estimated for the unaffordable care act around $900 billion. In 2011 
they came back and said: Wait, wait, I need to take another look at 
this.
  The estimate came back at $1.8 trillion. In 2009, it was $900 billion 
and in 2011 the number had already increased to $1.8 trillion or a 100-
percent increase in the estimated cost of the Affordable Care Act.
  Only 2 more years later we could see that the number could perhaps 
eclipse $3 trillion. All we are talking about is the up-front pricetag, 
the price of ObamaCare on the front. We haven't delved into the actual 
cost of ObamaCare because those estimates say that on the back end of 
the Affordable Care Act we are going to see a $7 trillion increase or 
addition to our debt.
  We started in 2009 with $900 billion; in 2011, $1.8 trillion; in 
2013, perhaps over $3 trillion, adding $7 trillion to the deficit. That 
is not the whole picture.
  Families in South Carolina still have to struggle with finding access 
to affordable health care, and ObamaCare is not simply providing the 
access. We see families such as the Hucks, the everyday American 
family. Mr. Hucks loves his family. He is in Greenville, SC. He loves 
his family. He spends 12 to 14 hours a day working as a financial 
adviser in South Carolina.
  Mr. Hucks, unfortunately, faces the challenge of buying health 
insurance through ObamaCare. As he went through the process of trying 
to figure out what would happen--certainly he liked his coverage, but, 
of course, he can't keep it, period. He can't keep it. He cannot keep 
his coverage.
  As I was talking to Jason Hucks in Greenville 2 weeks ago, Jason 
currently has a Blue Cross Blue Shield high-deductible plan. Remember 
the word ``deductible'' because we will come back and have a 
conversation about deductibles. He has a high-deductible plan that 
covers him, his wife, and their two cute little boys.
  Instead of having a conversation between Mr. and Mrs. Hucks about 
planning for the college education of those two fine young men, they 
are having instead a conversation about whether they can afford the 
health care coverage.
  What has happened? Let us take a look. Their current plan was a 
$10,000 deductible that cost them over $415 a month.
  To stay on the Blue Cross Blue Shield plan under ObamaCare, Mr. Hucks 
and his family would have to pay nearly $1,000 a month--$895--almost 
$1,000 a month, more than doubling the premium. They will see their 
deductible increase by 150 percent.
  A deductible that was $10,000 is pretty high, significantly high. It 
will go to $25,000 for this young family of four. That doesn't seem 
right to me; it doesn't seem fair.
  We believe in fairness. For those who are most vulnerable, having 
access to $25,000 before their health insurance company is able to 
start paying is quite a high price to pay. Digging into your savings 
account for $25,000--because ObamaCare takes their $10,000 deductible, 
and not the $15,000, not the $20,000, but the $25,000--is simply not 
fair. This is not how we treat the most vulnerable in our society, by 
seeing their deductible go up by 150 percent. I simply don't 
understand. It is just wrong. It is not right.

  Even if they were willing to switch companies, he would still see his 
rates rise almost 75 percent and his deductible would still rise from 
$10,000 to $12,000. No wonder they are trying to stack the DC courts. 
We see here a young family not planning for a 529 plan, not planning to 
send their kids to Clinton University or the University of South 
Carolina, but instead they are planning on tightening their belts 
because they have to have a budget that plans for not a $10,000 
deductible but a $12,000 deductible, with a 20-percent increase in the 
deductible and a 75-percent increase in the cost. This is the effect of 
the Affordable Care Act. It becomes unaffordable for the average 
American family.
  As for a plan with copays, Mr. Hucks says flatly that he can't afford 
to have a conversation about copays because a plan with a copay would 
skyrocket his premiums from $415 or so to as high as $1,200 or $1,500 a 
month. So instead of being able to go see a doctor and have a 
conversation and pay a 20-percent copay, instead of having the 
opportunity to do what many of us have been doing for the last decade-
plus--pay a $15 or $20 or $25 or $30 copay when you go see your 
doctor--he has to first satisfy a deductible of not $15,000 but now a 
$25,000 deductible. This is higher than $15,000. This is wrong. It is 
not right.
  Mr. Hucks' family is an example of how it is not just premiums that 
are

[[Page S8667]]

rising but deductibles are going through the roof. This is painful for 
a family who should be planning for college but instead is planning to 
spend more money on their health care because the Affordable Care Act 
is so unaffordable.
  The New York Times recently quoted someone faced with this problem as 
saying the deductibles were so high--$4,000 to $6,000 a year--that it 
very much defeats the purpose of having insurance. I wonder why we say 
that. Well, think about it for a minute or two. Think about a family 
who has a $4,000 deductible. What does that mean to the average family, 
where Americans are spending over 100 percent of their income? What 
that means to the average family is they have to figure out how to pay 
$4,000 for visiting their doctors, getting their x rays, and having 
everything done at the doctor's office, getting their blood work done, 
before they can satisfy that $4,000 deductible and their health 
insurance plan starts paying. Under ObamaCare, one would think that 
number would go down, but it doesn't. It goes up. As a matter of fact, 
it goes up quickly in the first year of ObamaCare. It goes from an 
average out-of-pocket expense of $63.50 to over $12,000--not $4,000, 
not $5,000, not $6,000 but over $12,000 in out-of-pocket expenses.
  So I am looking forward to the day we have a serious conversation 
about a free market solution that would reduce the cost of health 
insurance and at the exact same time create greater access for the 
average person in America to afford a free market health insurance 
policy. That is where we need to go. That is where the conversation 
should be. Instead of having that conversation, we are having a 
conversation about deductibles jumping $5,000, out-of-pocket expenses 
going up significantly. And I should have said that when you combine 
the out-of-pocket expenses and the deductibles, the out-of-pocket total 
for a year is the $12,000. The average deductible is a little over 
$5,000.
  We are talking about a significant taking from the average American 
family--taking their money out of their pockets in the form of 
deductibles, taking money out of their pockets in the form of copays. 
And God forbid they actually go outside of the network. In many of 
these plans, we are talking about zero coverage out of network for 
ambulatory care. A family would bear 100 percent of the cost. So don't 
travel to the wrong place with the wrong plan at the wrong time. You 
will find yourself stuck without benefits because, unfortunately, the 
ACA isn't affordable for most Americans. I find that sad.
  We think we are having a conversation about nominees here today, and 
we think we are having a conversation about nominees because President 
Obama has somehow, some way been treated differently than President 
Bush and other folks. But the facts are simply inconsistent with the 
reality of the alternate universe that has been created by the left.
  The PRESIDING OFFICER. All postcloture time has expired.
  The majority leader.
  Mr. REID. Mr. President, we are going to have a confirmation vote on 
Cornelia Pillard. That will be the first vote. Then we are going to 
have--I don't believe there will be a need for a rollcall vote on the 
quorum. I think there will be enough Senators here that the Chair will 
be able to see clearly there are 51 Senators here. Then we will have a 
cloture on Executive Calendar No. 378, Chai Rachel Feldblum of the 
District of Columbia to be a member of the Equal Employment Opportunity 
Commission. Then, Mr. President, the next vote will be tomorrow morning 
at 9 a.m. This morning, yes; I am sorry.
  We are going to do everything we can to finish our schedule before 
Christmas, but it is going to be pushing it. We will do our best. But 
this session doesn't end until the end of the year, so we are going to 
continue working until we get our work done. I am not going to yield 
back all of our time on all of our nominations. We are going to do 
those piece by piece.
  I hope the body has been able to understand what a waste of time this 
has been, but we are going to confirm these nominations, and that is a 
step in the right direction.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Cornelia T.L. Pillard, of the District of 
Columbia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  Mr. COATS. 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 assistant bill clerk called the roll.
  The PRESIDING OFFICER (Ms. Baldwin). Are there any other Senators in 
the Chamber desiring to vote?
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Carper) is 
necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. 
Coburn), the Senator from Illinois (Mr. Kirk), and the Senator from 
Kansas (Mr. Moran).
  The result was announced--yeas 51, nays 44, as follows:

                      [Rollcall Vote No. 256 Ex.]

                                YEAS--51

     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Casey
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--44

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Coats
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     Cruz
     Donnelly
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     Manchin
     McCain
     McConnell
     Murkowski
     Paul
     Portman
     Pryor
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--5

     Carper
     Chambliss
     Coburn
     Kirk
     Moran
  The nomination was confirmed.

                          ____________________