[Congressional Record Volume 159, Number 175 (Wednesday, December 11, 2013)]
[Senate]
[Pages S8711-S8717]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 NOMINATION OF ELIZABETH A. WOLFORD TO BE UNITED STATES DISTRICT JUDGE 
                      FOR THE DISTRICT OF NEW YORK

  The PRESIDING OFFICER. Pursuant to the provisions of S. Res. 15 of 
the 113th Congress, there will now be up to 2 hours of postcloture 
consideration of the nomination, equally divided in the usual form.
  The majority leader.
  Mr. REID. On behalf of the majority, I yield back 57 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Hampshire.


                         McCafferty Nomination

  Mrs. SHAHEEN. Madam President, I appreciate the 3 minutes to be on 
the floor in support of the nomination of

[[Page S8712]]

Landya McCafferty to the Federal district court for the District of New 
Hampshire. If confirmed, Landya will be the first woman to serve on the 
Federal bench in New Hampshire. But it is not Landya's gender that 
matters; it is her professional experience and her personal qualities 
that make her stand out. She has widespread bipartisan support 
throughout the New Hampshire legal community and she will make an 
excellent addition to the Federal district court in New Hampshire.
  She is currently the U.S. magistrate judge for the District of New 
Hampshire. Her Federal court experience includes clerking for two 
district court judges and at the First Circuit Court of Appeals. Landya 
has also prosecuted professional misconduct cases for the New Hampshire 
Supreme Court Attorney Discipline Office, served as an appellate and 
trial attorney in the highly regarded New Hampshire public defender 
program, and worked in private practice as a civil litigator.
  Landya is an innovator. As a magistrate judge, she has become a 
nationally recognized expert and teacher on how to use technology to 
achieve a more efficient and paperless workflow in the Federal court 
system.
  She was unanimously rated ``well qualified'' by the American Bar 
Association's Standing Committee on the Federal Judiciary--their 
highest rating.
  Landya is also active in the legal community outside the courtroom. 
For the past decade she has lectured at continuing legal education 
seminars on various topics, primarily on legal ethics, and has also 
presented guest lectures on legal ethics and civil procedure at the 
University of New Hampshire School of Law.
  I am pleased that this morning, after several months, we are finally 
going to get a chance to vote on Landya McCafferty, who is a well-
qualified, noncontroversial district court nominee. She has the support 
of Senator Ayotte, who also represents New Hampshire.
  I have no doubt Landya McCafferty will be an outstanding Federal 
district court judge, and I urge my colleagues to support her 
nomination when the vote comes up this morning.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mrs. FISCHER. Madam President, I rise to discuss the nomination of 
Elizabeth Wolford to be U.S. district judge for the District of New 
York.
  I am new here. I am just completing my first year in the Senate. But 
I believe this nomination gives us all an opportunity to discuss how 
government is or is not working in Washington, DC.
  I know when I travel the State of Nebraska--and I am back in the 
State most weekends and put on hundreds of miles; we are a big State, 
but as I travel the State of Nebraska, people always ask me: How are 
things going in Washington? How are you doing in Washington? I can't 
help but compare what we do in Nebraska to what we are doing now in 
Washington, DC, because in Nebraska we have a pretty unique system. We 
are unicameral, we have one house, we are nonpartisan, and we get 
things done.
  We have an agenda set up every day in the Nebraska legislature, and 
we follow that agenda. We have bills listed. We go through those bills, 
and, most importantly, we take votes. As a State senator in the State 
of Nebraska, I have an opportunity to rise and debate with my 
colleagues on the issues before us. I have the opportunity to sit at my 
desk in the chamber in the Nebraska capitol and write out an amendment, 
take it up to the desk, have it discussed, and then have it voted upon.
  I believe the Nebraska way is a good example for what we could do 
here in Washington because we have so many important issues before us 
that are not being debated. I am speaking basically to an empty Chamber 
right now. We aren't debating the big issues before this country. We 
are not acting upon the big issues that are before this country. We 
certainly are not voting on those issues.
  We have a system in the Senate where amendments are not accepted. 
That whole concept is very foreign to me, because, as I said, in 
Nebraska we are able to file amendments and we are able to have those 
amendments voted upon. We also respect the rights of the minority, for 
although we may be officially nonpartisan, we do belong to political 
parties. We have a right to express our views on an issue, to represent 
our constituents, and to express their concerns. Those rights are 
respected, they are valued, and they are upheld.
  I can tell my colleagues I had bills that were filibustered in the 
State, and those filibusters would last, in one case, 16 hours. But in 
the end, after those views of the minority were expressed, we took a 
vote on the issue. In Nebraska, we take up those issues. We defend the 
rights of our constituents to be heard, and that is what this body 
should do as well. We should honor the rights of all of our 
constituents and have their views be heard.
  Being from Nebraska, we don't have as many people as some of the 
other States. But within this body, every Senator is equal. Every 
citizen has equal representation. That is a principle, and that is a 
value that must be respected.

  I am sorry to say I believe we are at a point where that principle, 
that value is no longer respected within the U.S. Senate.
  I see my colleague from Nebraska is in the Chamber, Madam President. 
I ask unanimous consent that the Senator from Nebraska and I be able to 
enter into a colloquy.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FISCHER. Thank you, Madam President.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. JOHANNS. Madam President, I appreciate the opportunity to enter 
into this colloquy with my colleague from Nebraska.
  We have a rather unique experience. For 6 years I was the Governor of 
Nebraska, and when Senator Fischer was elected to the unicameral, I was 
actually coming to Washington to be the Secretary of Agriculture, so we 
did not work together. But we both worked in the same system.
  I would like to get a legislative perspective about how the Nebraska 
unicameral works. I saw it from the Governor's office, but, of course, 
I was not on the floor every day. That is not typically what a Governor 
would do--to go to the floor every day. But Nebraska is a pretty 
Republican State. I think we all recognize that. We know that. It is a 
nonpartisan unicameral. So not only is it a one-house system, but the 
senators do not run as Republicans or Democrats. They run on a 
nonpartisan ticket.
  I would also say that our voter registration in Nebraska is public 
record. So, of course, the media, when we would run for office, would 
always look up how we were registered or they would ask us. I do not 
remember a time--maybe there was a time, but I do not remember a time--
when Democrats had the majority in the unicameral by their voter 
registration.
  I would like the Senator from Nebraska to explain how the majority 
party, Republicans, worked with the minority party in terms of 
committee assignments, how they would work with the minority party in 
terms of chairs. Would a member of the minority ever get a chance to be 
a chair of a committee? How does that work? And I would like the 
Senator to talk a little bit, if she would, about how this system works 
on a day-to-day basis in terms of the relationship between the majority 
and the minority. Maybe it will be instructive today.
  Mrs. FISCHER. Madam President, I am so very fortunate to have Senator 
Johanns as the senior Senator from Nebraska. He has a wealth of 
experience as a former Governor, as a former Secretary of Agriculture, 
and as a U.S. Senator. So he has definitely been a mentor to me. I 
believe, perhaps, Nebraska can mentor the Senate through the trying 
times we are facing right now.
  As Senator Johanns said, we are nonpartisan. We do not caucus. We do 
not have majority or minority leaders because we are nonpartisan. So we 
do not have that leadership structure in our State that we have here in 
the Senate.
  In the State of Nebraska, if you want to be part of leadership, you 
stand on the first day of a legislative session, and you have to 
nominate yourself and run for that position. So you would nominate 
yourself for speaker and then we do a secret ballot. It is 25 votes, 
and you would be speaker because there are

[[Page S8713]]

only 49 of us. Then we go through the committees, and we have 14 
standing committees. So as chair of the transportation and 
telecommunications committee, I had to stand on the floor of the 
legislature and nominate myself, which is hard to do, but you nominate 
yourself, and then your colleagues, your peers, decide who the chairman 
will be.
  We had Republicans and Democrats who were committee chairs. In fact, 
this past year in the legislature, even though officially there is a 
majority of Republicans, many of our chairmen--in fact, I think it was 
the majority--were Democrats because you are rewarded for the hard work 
you do, for your integrity, for your honesty, for being willing to 
listen to all sides and work with everyone to reach consensus.
  So it is a unique system, it works for our State, and it is that 
ability to work with each other to try and build those coalitions so 
you can get your 25 votes on an issue, on a bill that you have, that 
makes us so very special with regard to other States and also with 
regard to the U.S. Senate, because we do work together.
  The coalitions change. The coalitions change depending on the issue. 
You can find allies all across the spectrum--from more liberal members 
to more conservative members. If you have a good idea that is going to 
benefit the people of the State, your peers are willing to come forward 
and work with you.
  I know Senator Johanns as Governor had to draw up budgets and send 
those budgets, then, to the legislature and have our appropriations 
committee go through that process dealing with his agency heads. Then 
the appropriations committee would bring that package to the floor. 
Here again, we would debate it. I do not know if the legislature always 
agreed with Senator Johanns during his time as Governor, but perhaps he 
could give us some insight into how we came together on budgets and 
were able to work through that as well.
  Mr. JOHANNS. Madam President, I would love to be able to stand here 
today and say to my colleague from Nebraska that every time I submitted 
something to the legislature they loved it, blessed it, and passed it. 
But that did not happen. There was a give-and-take process that would 
occur. The budget is actually a perfect example. Like this system, the 
Governor of Nebraska gets the first shot. The Governor, soon after the 
legislature would go into session in January of each year, would submit 
a budget. We have a long session. It is a 90-day session 1 year, and 
then next year it is followed by a 60-day session. In the 90-day 
session we would do the full budget exercise. Typically, in the 60-day 
session we would do the fine tuning. It was a biennial budget that 
would be passed.
  I quickly learned if I was going to have any success, whether it was 
the budget or any other initiative, I had to reach out on an individual 
basis and convince each senator of the merits of my idea I was 
proposing. This was not a situation where I had the ability to go to 
the majority leader and say: Get your people in line. Crush the 
minority and pass my budget. That would never happen in Nebraska. It 
would not happen with the majority--typically that would be Republican 
in Nebraska--and it would not happen with the minority, which is 
typically Democratic in Nebraska.

  I always said as Governor that most days the one thing that the 
unicameral could almost unanimously agree upon is that they were mad 
about something when it came to the Governor. But the reality is we 
worked through these things. There was give-and-take. There were things 
that I wanted that I did not get. There were things that I did want 
that they would have to give in and compromise on. It never failed, we 
would pass a budget by the end of the legislative session.
  I have said many times looking back on my time as Governor that at 
the start of the legislative session--the 90-day session--there was one 
thing I could guarantee to Nebraskans. That was that by the end of the 
session a budget would be passed. The second thing I could guarantee 
is, without gimmicks, that budget would balance. We had a simple 
philosophy. We would not spend money that we did not have. No. 3, I 
could promise Nebraskans that we would not borrow money to make that 
budget balance because, you see, in Nebraska we are limited by our 
constitution. We are only allowed to borrow $100,000, which I am sure 
when the constitution was written many, many decades ago that was a 
very handsome sum of money. Today it does not get you very far. So at 
the end of day we had to balance the budget.
  Some of my greatest allies as Governor were Democrats. Some people 
who fought me the hardest on certain issues were Republicans. But we 
had to work through that.
  I would ask my colleague from Nebraska, does she ever remember a time 
in the 8 years she was a Nebraska senator where she was in a meeting 
where her Republican colleagues said to her: Let's figure out a way to 
silence the minority and get our way on every vote because we have the 
majority. We could win every vote if we do that. Let's figure out a way 
to break the rules so we can change the rules so this minority means 
nothing anymore in this legislative body when it comes to these issues.
  I ask my colleague from Nebraska, did that ever happen?
  Mrs. FISCHER. Madam President, the people of Nebraska would never 
stand for that to happen in our State. As I said, we are very proud of 
our unicameral system and how we are able to work together. Of course, 
we know who is a Republican and who is a Democrat in the Nebraska 
legislature. But as I said, we are able to cross that aisle, which does 
not exist in Nebraska, by the way. We do not sit separate from each 
other. We are able to reach out and work together. We have this system 
that is so open and so transparent. We work with the Governor--or 
perhaps in Senator Johanns' case not work with the Governor--on the 
issues. But we are able to have that dialog with our chief executive. 
We are able to have that dialog with each other.
  We have a committee process where every bill that is introduced has a 
public hearing. Any person can walk into the hearing room and come 
forward and testify before a legislative committee in the State of 
Nebraska. Senators then have the opportunity to ask questions to be 
able to gain more information, not just from people who are invited to 
come and sit on a panel before a legislative hearing but from citizens 
who step forward and are willing to take that time away from their 
jobs, their families. Some may have to travel a great distance since we 
are a very big State in order to get to the capital to be at a hearing 
and express their views. I believe in most cases--at least in my 
experience--every individual who would come before a legislative 
hearing in the State of Nebraska was treated with respect, whether they 
agreed with a majority of the members on the committee or they had a 
disagreement.
  It is a respect for those views that are different from your own that 
I believe is so very valuable as a legislator, to be able to hear, to 
be able to question.
  That is why it truly saddens me that we are seeing a rules change 
here in the Senate, where I believe the views of the minority will no 
longer be considered.
  It has been my experience here so far that I have been able to have 
meetings with nominees, nominees who are coming before the committees 
that I sit on to be confirmed. They come to my office. I am able to ask 
them questions. I am able to express to them the concerns I have heard 
from the people in my State and hopefully get answers from them. It 
does give us an opportunity to establish a relationship where we are 
going to be able to work together in the future but, more importantly, 
it gives me the opportunity, as the Senator from Nebraska who happens 
to be in the minority, to have that chance to question the nominee for 
Commerce Secretary. With the rules change, now that requires 51 votes, 
and even as a committee member, those nominees do not even have to come 
and introduce themselves to me.
  That is not fair. It is not fair to the people of my State because 
every State citizen needs to be represented here in the Senate. That is 
what is so very--or what used to be so very special about this body.
  You look through history--I know Senator Johanns is a great student 
of history--you look through history and you read about the debates 
that happened on the Senate floor. I remember

[[Page S8714]]

earlier this year when we were all in the Old Senate Chamber and we got 
to experience that feeling of being open and honest with our 
colleagues, without the cameras going, and truly being able to air some 
grievances. I thought that was helpful. It was a very moving experience 
for me as a new Senator to be there. But I think perhaps the Senator 
would agree with me that we have lost that spirit of the Old Senate 
Chamber and of the Senate Chamber in which we are standing.
  Mr. JOHANNS. Madam President, I remember that night well. It occurred 
just some months ago. The nuclear option was being threatened. Many had 
worked very hard to avoid that.
  Keep in mind that the nuclear option was not just discovered this 
year or last year; Senators have known of the nuclear option for a long 
time. We have been down this road before when Republicans were in the 
majority. Fortunately and wisely, they backed off. A group of I think 
14 Senators got together and said: You know, we have to figure out a 
way to deal with this. And they did. They got a lot of criticism. I 
remember that. I remember the criticism was that they caved in, they 
gave in, they compromised, and that they should not have compromised 
and all of the things that you hear. But at the end of the day, 
leadership backed off of doing exactly what happened here right before 
Thanksgiving.
  Well, that night we went into the Old Senate Chamber. Anybody who has 
ever visited that room, you walk in and you feel the history of that 
place immediately. Some of the great Senators in our Nation's history 
have spent time in that room arguing for the great causes of the day. 
It is a remarkable place. The doors were closed. There was no staff in 
the room. There was no media in the room. There were no cameras 
recording everything we were saying. This was a meeting of the Senators 
who were there to try to figure out whether there was a way forward.
  I will not talk about the specifics of who said what to whom on this, 
that, and the other, but I will tell you about the atmosphere. I felt 
the atmosphere was extremely tense and uncomfortable, especially at the 
start of the meeting. We were really hopelessly divided on the issues 
we were facing. But the conversation began. People started making 
points on all sides of these issues.
  In the context of that meeting and some things that had happened 
previously, a picture started to come together. The picture was that we 
had agreed as Senators--most of us, not all of us; some had 
disagreement with what we were doing--that there were certain executive 
branch appointees that, if there was no objection from any Senator, 
could move forward through the process really unimpeded. If a single 
Senator had an objection and said: Wait a second, I have had a dealing 
with this person, or whatever, that is very problematic, well then they 
have to go through the whole process. But we set aside hundreds of 
executive branch appointees. We said: Look, there is no good reason to 
force them through this process when there is no objection. Democrats, 
Republicans, and Independents shook hands on that, and that became the 
way we operate today.
  Another piece of the context was that there was discussion about some 
things we could do with the rules. At this very lengthy night meeting, 
like gentlemen and gentlewomen, we shook hands and we had a way 
forward. It took a while to develop it. It took a while after the 
meeting to flesh it out. There was give-and-take. Some were concerned 
that it did not embody what we agreed upon. I personally thought we 
gave too much on our side, but at the end of the day I thought it made 
sense as a way forward to avoid the nuclear option. We reached an 
agreement. As I said, we shook hands. That put the issue to bed.
  As I would talk to my colleagues on the other side of the aisle, we 
would say to each other: You know, that was a good meeting. It has only 
happened twice since I have been here--once on the START treaty and 
once on this. We congratulated each other for finding that way forward.
  But then we started to hear just a couple of weeks ago that the 
agreement was not holding, not because either side had violated it but 
because all of a sudden the majority, led by Senator Reid, decided they 
wanted to revisit this whole issue. I felt we had put the nuclear 
option in a lockbox, locked it up, and thrown away the key. I felt we 
had come to an agreement as a Senate that the damage to our Nation and 
its citizens in employing the nuclear option was too great a price to 
pay. That is what I came out of that meeting believing. That is what I 
continued to believe as I talked to my colleagues on the Democratic 
side of the aisle.
  So what happened? If the agreement was not violated, if people were 
living by the agreement and a whole host of nominees had gone through 
the process, some of whom I did not like a bit but they got the votes 
necessary--they were confirmed, they had gone through the process. So 
what was different about a couple of weeks ago versus when we walked 
out of that meeting that evening? Well, I would ask my colleague's 
thought on that, but I think I know what that was about. I am going to 
continue to talk about this in the days ahead as we talk about this 
nuclear option and what it is doing to our country.
  What happened is this: ObamaCare started to roll out. I remember the 
day ObamaCare passed. As I said last night, I was sitting in a chair 
right in front of Senator Fischer. It was my first couple of years here 
in the Senate. What happened before Thanksgiving in the breaking of the 
rules to change the rules reminded me exactly of what happened with 
ObamaCare. The Democrats had the votes. It was a very unusual time in 
our Nation's history. They had 60 Senators and they had the majority in 
the House and they had the Presidency. Under the rules, they could stop 
debate and pass anything they wanted to pass. That Christmas Eve day, I 
remember feeling, as a member of the minority, I was told to sit down 
and shut up because my viewpoint on ObamaCare meant nothing. What 
mattered that day was raw, sheer political power. They had the 60 
votes. I sat there during the rollcall vote. I heard every Democrat 
vote for one of the worst pieces of policy ever passed by this body. I 
felt that day as though I was told to sit down and shut up.
  Then a couple of weeks ago, when ObamaCare was literally melting down 
before our eyes, people were being thrown off their insurance plan, 
they were beginning to realize what the cost of this was going to be, 
and they were beginning to realize that the promise that ``if you like 
your plan, you can keep your plan, period'' was a political gimmick. It 
was a lie. They were being thrown off their plans, and they could not 
even get on the Web site. All of a sudden, our colleagues on the other 
side of the aisle began to realize their jobs were at stake. Their 
numbers were crashing. All of a sudden, after we shook hands like 
gentlemen and gentlewomen after a very tense meeting and we implemented 
what people agreed would be implemented, we came back to revisit the 
nuclear option.
  I would like to offer one additional thought about what this means. 
The rules of the Senate have been changed on occasion. It is not 
something we do very often around here, but on occasion they have been 
changed. The rules contemplate a way to change the rules: Two-thirds of 
the Senators have to agree to the rules change.
  How did this come about? Let me explain that. The majority leader 
asked for a ruling of the Chair. Basically, the ruling got to the 
question of how many votes it takes to confirm somebody. That ruling 
was properly decided. The majority leader announced: I want to appeal 
that ruling.
  That ruling was, in fact, appealed. How does one successfully appeal 
a ruling of the Chair with the majority vote, and that is exactly what 
happened. The Democrats fell in line, and I had the same feeling that 
day before Thanksgiving that I had on that Christmas Eve Day when 
ObamaCare was passed. The feeling I had, as a Member of the minority, 
was that every single Member sitting in those chairs, the majority, the 
Democrats, were saying to my colleagues and me: Sit down and shut up.
  I said last night that I have a tremendous amount of respect for a 
man who served here for many years with great distinction, admired by 
everybody. I got to know him a little bit as he had not passed when I 
came to the Senate. Senator Robert Byrd was probably the finest 
historian of the Senate,

[[Page S8715]]

maybe ever. He would come to the floor and talk about the beautiful 
history of the Senate, this institution, and the sacred rights of every 
single Senator to come to the floor, argue, make their point, and offer 
an amendment.
  Under the rules, the amendment doesn't even have to be germane to get 
a vote on it.
  This beautiful institution worked for over 200 years under that rule, 
under that philosophy. Unbelievable.
  It worked through wars, it worked through the 1918 flu pandemic. It 
worked through attacks on our Nation, 9/11, and Pearl Harbor.
  Somehow, some way, great men and women came into this Chamber and 
figured out a way to make this body work until 2 weeks ago, when by 
sheer political force the majority pulled out of Pandora's box the 
nuclear option.
  I ask my colleague from Nebraska to offer her thoughts as a new 
Member. I look forward, as the senior Senator from Nebraska, to 
watching the junior Senator from Nebraska.
  I am not running again. What impact is this going to have? How does 
the Senator implement the desires, wishes, and dreams of Nebraskans who 
elected the Senator and sent her to Washington under circumstances such 
as this?
  Does the Senator worry that what is going to happen will not just 
stop; that it will be Supreme Court appointments at some point and it 
will be legislative activity. I wish to hear those thoughts.
  Mrs. FISCHER. In watching the Senate before I arrived and in studying 
the Senate throughout history, the beauty of this body has been the 
individual rights of every single Senator.
  With the change we have seen, I believe those rights are diminished, 
which translates into the people who live in States that are 
represented by the minority will not be heard in this body.
  I have been surprised, I have been shocked, and I have been hurt by 
comments from the majority, where I am referred to as an 
obstructionist, where my colleagues on this side of the aisle are 
referred to as extremists, anarchists.
  I don't even know how to respond to the question of the Senator 
because nothing could be further from the truth. How I view this body 
is as one that should have an agenda. We should have Members on the 
floor participating in debates on bills following an agenda and taking 
votes, but we don't see that.
  Instead, we see the two of us and our friend and colleague, the 
Presiding Officer, speaking to an empty Chamber, speaking to the TV 
cameras. That is not the way the Senate is supposed to operate. We are 
supposed to be doing the people's work.
  I say to the Senator I don't know what we are obstructing, because as 
a member of the Armed Services Committee, we passed the National 
Defense Authorization Act out of committee in May. We passed that out 
of committee in May. We could have taken it up in June. We could have 
taken it up in July, September, and October. Instead, we seem to be in 
this crisis management mode in one of the greatest bodies in the world. 
That makes no sense.
  I am ready to do the work, but until these bills appear on the 
agenda, how do we do the work? Why do we wait until we have a few days 
left in the year to take on what I believe is our most sacred 
responsibility, the defense of this country, our national security, our 
military men and women, our veterans.
  The committee passed out a great bill in a bipartisan vote. It has 
passed in the Senate for the past 50 or 51 years. Yet we are against a 
time limit that was manufactured.
  As I said, the bill came out in May. Why wasn't it on the agenda? Why 
can't we have amendments to it--very important amendments.
  I happen to have a good amendment with Senator Claire McCaskill, a 
Democrat from Missouri, and Senator Kelly Ayotte, a Republican from New 
Hampshire, that we believe makes the provisions in our committee bill 
dealing with sexual assault even better, even stronger, that will 
protect victims. We are not allowed to have that amendment.
  Again, that is a foreign concept to me, as a Senator, not being 
allowed to have an amendment on a bill that should have been brought up 
on the floor months ago so we could have had a debate on this truly No. 
1 priority of our country. Instead we have crisis management.

  I don't know about the Senator from Nebraska, but I don't respond 
well to crisis management. I like to have time to make wise decisions, 
to have major discussions, to gather information, to represent our 
constituents, to represent the American people.
  The American people demand more. They demand us to be better. I can't 
even imagine what folks think when they know we are speaking to an 
empty Chamber, when we should be talking about the big issues of the 
day, when we should be talking about the National Defense Authorization 
Act, when we should be talking about sexual assault in the military, 
when we should be talking about how are we going to make sure our 
military men and women have the resources they need to keep them safe 
so they can return to their families and return to their families 
whole.
  We should be talking about Iran. We should be talking about Benghazi, 
but we are not because we are not allowed to have that legislation 
before us.
  As a new Senator, I can tell the Senator I am very frustrated. I know 
when the Senator is back in the State he hears, as I do, that the 
people of Nebraska are frustrated as well. I believe they reflect the 
views of the people of this country. They expect more from us. They 
expect us to be better. They expect us to do our job.
  How can we do our job when we are not allowed to vote on legislation 
that addresses the truly pressing issues of our day?
  I say to my colleagues on the other side of the aisle, yes, I am 
frustrated. I am upset. I am angry that I am not able to represent the 
people of my State by taking a vote, by taking a vote on amendments 
that all Senators feel are important as well. It is not only 
Republicans offering amendments that don't get heard, it is Democrats 
as well.
  I would imagine the Presiding Officer is very frustrated. This has to 
change. I don't know how long it has been going on, but we can change 
this. We can change this by having an agenda that works, an agenda that 
brings bills up by a leader who is going to have an open amendment 
process.
  Instead of us coming to the floor and addressing a camera, we need to 
be able to debate each other and have our voices heard because we are 
representing those voices back home. They expect that.
  We need to do this. Maybe I am naive, but I think we can do it. I 
think we can still come together and be able to work together. 
Sometimes we hear the terms ``obstructionist,'' ``extremist,'' and 
``anarchist.'' Enough of that.
  It is not only Republicans who are demanding their rights and who are 
exercising their rights. I know we have Democratic colleagues who have 
put holds on nominations. They are not obstructionist. They are not 
extremist. They are exercising their rights as Members of the Senate. 
They are exercising their rights to have questions from their 
constituents answered.
  I will defend their rights to put holds on nominations until they get 
those questions answered.
  We don't always hear about that though. We don't hear that it is all 
of us in the Senate who have that duty to make sure we can have our 
constituents' concerns answered; so we can have a project in our State 
that is being held up for one reason or another addressed; so we can 
bring forward a question--from our Governor or our State or our State 
legislature--that an agency has not addressed in a timely manner, and 
where we as Senators can push a little harder to get an answer from a 
nominee or an agency. That is checks and balances. That is a balanced 
government. That is transparency. That is accountability.
  It is not allowing the executive branch to get everything they want. 
None of us gets everything we want.
  Senator Johanns made the comment that as Governor it is give and 
take. As a State senator I can tell you I had to compromise on bills 
that I thought were great the way I had them drafted, but you need to 
compromise with your colleagues, with the Governor, and with the 
President, in order to truly represent all the people in this country.
  I am sorry to say this country is polarized. This country is 
polarized and

[[Page S8716]]

the Senate is polarized. If we could show some leadership here--if we 
can take on these hard issues, make tough decisions, and make hard 
choices--then we would be good examples to our country and we would 
have a brighter future. We need to show some leadership. We were 
elected to make these hard choices for the American people so that we 
can go forward.
  With that, Mr. President, I yield the floor so that my colleague has 
time to address issues before us.
  The PRESIDING OFFICER (Mr. Booker). The Senator from Nebraska.
  Mr. JOHANNS. I thank my colleague for being with me for this 
colloquy. I appreciate so much the legislative experience Senator 
Fischer brings to this body. It is very extensive. She was regarded as 
the leader in the Nebraska unicameral and chaired an extremely 
important committee. She would be too modest to point this out, but at 
the time when our road system needed funding, she figured out a way not 
only to identify funding--and not by raising taxes but by better 
efficiency and better management, and it was a significant amount of 
funding--but she then built the coalitions necessary to actually get 
that passed. Back home, today, that is getting rave reviews. So I thank 
her for that because I drive on those roads and I know she does too.
  My colleague mentioned the Defense bill, and nothing could be a 
better example of what we are dealing with here. This bill came out of 
the Armed Services Committee, which has a reputation for being one of 
the most bipartisan committees in the whole Senate system. It is not 
about Republicans and Democrats on that committee, for a whole host of 
reasons. One is there is just great leadership on that committee, and 
there has been great leadership in the past, but the focus is on the 
national defense of our United States and our allies.
  For 50-some years we have passed a Defense authorization bill. It is 
one of the things, even when nothing else could get done, that we would 
get done. The hallmark of that is that it is a very open process. The 
bill comes out of committee--this one came out in May--and the 
amendment process starts, and we might go days working our way through 
that bill. It is very normal. It is very much a part of the process. At 
the end of it, typically that bill is passed with very strong 
bipartisan support.
  What has happened that we would get a bill in May that has bipartisan 
support in this committee, it comes out of the committee ready for 
floor action, and we can't get to that bill except right before the 
holidays? We all know who controls the floor. Democrats control the 
floor. They are in the majority. The majority leader, through the 
election by Democrats, controls the floor. So it feels to me as though 
we are saying to our United States military: You are not important 
enough that we would give you 2 or 3 weeks in June or July, September 
or October to work through this huge package of spending. In fact, we 
are going to relegate you to the last hours before the Christmas break. 
Then the majority leader is going to say to those of us in the 
minority: By the way, I will pick your amendments. I think some of 
these amendments are pretty tough amendments for my people to vote on, 
so I will pick the amendments.
  So what has happened to the right of every individual Senator to come 
to the floor of the Senate and offer their idea on a piece of 
legislation or, for that matter, any other important issue facing our 
United States?
  This is like sending a message to the military from the Democrat 
majority that says: Look, you are important enough to get a few hours 
before we break, and we all go back and enjoy a big ham dinner for 
Christmas, and we open our presents while you are off fighting in 
Afghanistan or wherever you have been ordered to serve.
  I don't think that is right. There isn't any reason why this bill 
can't get done. It has been done for 50-some years. What is so tough 
about it? There isn't any reason why this bill can't get called up in 
the summer. There isn't any reason why we can't deal with this bill in 
June. It came out of committee in May. There isn't any reason why we 
can't use these months leading up to now--the end of the year--to pass 
this bill.
  There are few guarantees in the Senate these days, but one guarantee 
I can make is that if you allow this Defense authorization bill to go 
through the regular process, allow Senators to offer their amendments, 
come to the floor, debate their amendments, and pass or not pass those 
amendments, at the end of the day that bill will pass.
  Instead, what has happened is the bill is put on the floor right 
before a holiday break and the majority leader says: I will decide 
whose amendments are going to get heard. I will be the one picking the 
amendments, and we have to get this done. If you don't agree with the 
way I want to do things around here, then you are an obstructionist, 
you are an anarchist.
  Wait a second. I should have a say about that bill. It authorizes 
billions and billions of dollars. I should be able to go home to 
Nebraskans and say that I gave my best effort with an amendment that I 
supported or sponsored or whatever, and at the end of the day I won or 
I lost. After all, that is what they elected me to do.
  It is not just what happened with the nuclear option, it is the way 
this Senate is being operated by those who are in the majority--
Democrats. Never in the history of this institution has a leader filled 
the amendment tree, which is a fancy Washington way of saying I'm 
taking away the amendments from the minority, more times far and away 
than any other majority leader. When he does that, when he takes away 
the right to amend, he silences the minority because we don't control 
what comes to the floor. We are not in the majority. We don't control 
when a bill is going to be heard. We are not in the majority. So the 
only thing we can do as a minority is offer an amendment and plead our 
case.
  Senator Fischer mentioned a perfect example of the point I am trying 
to make. She says that she and others, on a bipartisan basis, have an 
amendment on sexual assaults, which we know is a very serious problem. 
Now, some might find this surprising, but I want her amendment to go 
further. I don't think it goes far enough. I don't think she would mind 
me saying that. I signed on to an amendment offered by Senator 
Gillibrand. I was one of the early ones to sign on. It is a bipartisan 
amendment, and it has over 50 cosponsors. That is the amendment I want.
  I think this is an important issue. I see these young men and women 
come to my office, and they are proud as proud can be. They have just 
signed up or they want to go to the military academy, and it breaks my 
heart to think they may be subjected to sexual assault in the military. 
I believe we can't be tough enough. I believe we can't work hard enough 
to create an atmosphere that is so inhospitable to the sexual offender 
that they would never think of being in the military. I want to go as 
far as we can and I want to argue that point. I believe there will be 
Nebraskans that will agree with me and perhaps disagree with me. Why 
shouldn't we have that bill on the floor?
  The PRESIDING OFFICER. All postcloture time has expired.
  The question is, Will the Senate advise and consent to the nomination 
of Elizabeth A. Wolford, of New York, to be United States District 
Judge for the Western District of New York?
  Mr. JOHANNS. 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 bill clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Illinois (Mr. Kirk).
  The result was announced--yeas 70, nays 29, as follows:

                      [Rollcall Vote No. 260 Ex.]

                                YEAS--70

     Ayotte
     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Coburn
     Collins
     Coons
     Corker
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey

[[Page S8717]]


     McCaskill
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--29

     Alexander
     Barrasso
     Blunt
     Boozman
     Chambliss
     Coats
     Cochran
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     McCain
     McConnell
     Paul
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Toomey
     Vitter

                             NOT VOTING--1

       
     Kirk
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The nomination is confirmed.

                          ____________________