[Congressional Record Volume 160, Number 73 (Wednesday, May 14, 2014)]
[Senate]
[Pages S2984-S2993]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            HIRE MORE HEROES ACT OF 2014--MOTION TO PROCEED

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to H.R. 3474, 
which the clerk will report.
  The assistant legislative clerk read as follows:

       Motion to proceed to Calendar No. 332, H.R. 3474, to amend 
     the Internal Revenue Code of 1986 to allow employers to 
     exempt employees with health coverage under TRICARE or the 
     Veterans Administration from being taken into account for 
     purposes of the employer mandate under the Patient Protection 
     and Affordable Care Act.

  The ACTING PRESIDENT pro tempore. The Republican whip.


                     Department of Veterans Affairs

  Mr. CORNYN. Mr. President, it pains me to say that almost every day 
brings a new story of reported scandals and a long list of failures and 
abuses within the Department of Veterans Affairs.
  The latest scandals are particularly painful to me because they 
emanate from Texas, and we have a proud tradition of being a State that 
contributes a large number of uniformed military members from our 
State--and, of course, we have a huge population of veterans, people 
who have worn the uniform of the United States proudly, sacrificed so 
much, and risked it all. But just like the scandals in Fort Collins, 
CO; Phoenix, AZ; Pittsburgh, PA; and in other cities, the ones in 
Austin, San Antonio, Harlingen, and Waco are evidence of a callous 
disregard for the health and well-being of America's heroes.
  The new information comes from a pair of whistleblowers. The first 
one, a VA scheduling clerk named Brian Turner, told the Austin 
American-Statesman that his supervisors at the VA facilities in Austin, 
San Antonio, and Waco were directing him to falsify appointment data in 
hopes of covering up the problem of long wait times.
  Meanwhile, the former associate chief of staff at the Harlingen VA 
Health Care Center, a man by the name of Dr. Richard Krugman, has gone 
public with a series of disturbing allegations, according to the 
Washington Examiner, which interviewed Dr. Krugman. Veterans seeking 
routine colonoscopies--cancer screening, in other words--at the 
Harlingen center were forced to endure extremely long wait times and, 
in some cases, they were denied those cancer screenings altogether. He 
said, as a result, up to ``15,000 patients [veterans all] who should 
have gotten colonoscopies either did not get them or were examined only 
after long and needless delays.''
  Dr. Krugman believes that some of these veterans actually died as a 
result of the lack of cancer screening and addressing their symptoms.
  He also told the Examiner that ``an office secretary deleted about 
1,800 orders for medical tests or other services to eliminate a backlog 
that threatened a certification inspection from an outside group.''
  Sadly, these allegations fit within a larger pattern of VA abuses. At 
VA clinics across the country, reports have been made that staffers and 
administrators have failed to provide veterans with reliable access to 
medical care and have fraudulently concealed long wait times. Given all 
these examples, they are not just an individual data point, but in 
connecting these data points it appears that the problems with the 
Veterans Administration are systemic.
  What we have is nothing less than a betrayal, a betrayal of our 
Nation's veterans, and a betrayal of the American people, all of whom 
deserve to know the truth about what their government is or is not 
doing to support our American heroes. Of course, we have heard in 
Phoenix that this betrayal has had tragic consequences, with an 
estimated up to 40 people dying after lingering on a secret waiting 
list--never receiving the treatment that they were entitled to.
  We still don't know exactly how many veterans have died or otherwise 
have suffered because of the VA's assorted failures and abuses, but we 
do know that it is disgraceful and unacceptable for even one veteran to 
needlessly die or suffer because of bureaucratic malfeasance. The 
evidence of such malfeasance is now growing, of course. The only 
questions are: How can we get our veterans the care and support they 
need in the fastest possible way; and what is the best way to restore 
genuine accountability and genuine safeguards within the VA system?
  Whenever I think about the ongoing VA scandals and the broader set of 
challenges facing America's veterans, I think of an annual tradition 
that we have in Texas. Every year on Memorial Day I host young Texans 
who are being sent off to their service academies. These are inspiring 
young men and women. Anyone who is feeling a little bit uncertain about 
our Nation's future needs to meet these young men and women who go to 
our service academies. They are the best of the best and are an 
inspiration to me.
  This is a wonderful event and easily one of the highlights of my 
year. Yet I can't think of how badly the VA is failing not only our 
current generation but tainting that promise of our commitment to the 
next generation of our military servicemembers and veterans. The 
generation that is now preparing to embark for places such as West 
Point, Annapolis, and Colorado Springs--these young people should be 
given not just a promise but an ironclad commitment that after serving 
our Nation with honor and courage they will get the support they have 
earned and they deserve.
  Anything less is just not acceptable.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.


                               EXPIRE Act

  Mr. WYDEN. Mr. President, the Senate is now debating the EXPIRE Act.
  This is bipartisan legislation. I again thank the distinguished 
Senator from Utah Mr. Hatch. He has been so constructive in trying to 
build a bipartisan piece of legislation, a bill that came out of the 
Senate Finance Committee several weeks ago with very substantial 
bipartisan support.
  It really is designed to deal with a number of tax provisions that 
are temporary in nature and it, in effect, extends those temporary tax 
provisions until the end of 2015. In consultation with the 
distinguished Senator from Utah, I thought it was important to call 
this bill the EXPIRE Act. It was important because this legislation 
actually does expire after 2 years.
  It, in effect, says--and I said--on my watch as chair of the Senate 
Finance Committee there will not be another extenders bill. It is not 
going to happen on my watch. This is it.
  In effect, by extending these important provisions now for one last 
time, the Congress can give itself and the Finance Committee--on a 
bipartisan basis--the space that is needed to take on the challenge of 
comprehensive tax reform.
  It is not going to be easy, but it is absolutely imperative for the 
future of the American economy. I know it can be done. I know we can 
get Senators of both political parties together and build a bipartisan 
tax reform plan. I know this because I have--and other Senators do as 
well--a fair amount of sweat equity in this cause.
  Our former colleague Senator Gregg of New Hampshire sat next to me on 
a sofa for more than 2 years to build what still is the only bipartisan 
Senate comprehensive tax reform bill in the last 30 years. With Senator 
Gregg's retirement, to their credit, Senator Coats and Senator Begich 
pitched in.
  So we know that there has already been a lot of bipartisan work on 
comprehensive tax reform and, suffice it to say, again building on this 
bipartisan lineage. My colleague from Utah, the senior Senator Mr. 
Hatch, and Ambassador Baucus and Chairman Camp in the other body, have 
also put in years of work and laid a strong foundation for tax reform.
  So once the Senate passes the EXPIRE Act, the job of the Finance 
Committee will be to focus in a kind of

[[Page S2985]]

laser-like fashion on a bipartisan plan that is going to give all 
Americans the opportunity to get ahead.
  I want to emphasize that. If I were to sum up my philosophy about tax 
reform, I want everybody in America to have the opportunity to get 
ahead--all our small businesses, all our Americans who are trying to 
deal with an extraordinarily challenging economy.
  Frankly, that would be my first choice, to be out here working on 
comprehensive tax reform. But it was clear to me, with Chairman Baucus 
going to China as our Ambassador, that it wasn't going to be possible 
in a few short months to pass comprehensive tax reform.
  I made the judgment--I will share it with the Senate again today, and 
I brought it up yesterday--that the failure to act on these temporary 
provisions, which are what the EXPIRE Act is all about, would cause 
further unnecessary, really gratuitous harm to American workers, to our 
small businesses, to our ability to compete in tough global markets. 
The EXPIRE Act is all about preventing a tax increase. We would clearly 
have a tax increase absent the EXPIRE Act, and it would be in areas of 
the economy that would be particularly damaging.
  For example, it would really be a tax on innovation because right at 
the center of these temporary provisions--provisions that under this 
bill will last only until the end of 2015, and then they will expire--
they are not just meant to expire, they actually expire at the end of 
2015. But if we don't take action to ensure that innovation has an 
opportunity to flourish, what will happen is we will, in effect, have a 
tax on those very jobs that are most important for our middle class--to 
grow wages, to encourage the kind of economic multiplier that is so 
good for our economy. So we ought to pass the EXPIRE Act so as not to 
have a tax increase on innovation.
  We ought to pass the EXPIRE Act to not make it tougher for a company 
to hire a veteran, which I think is also hugely important. I will talk 
about it in a couple of minutes in further detail.
  Another one that I know a lot of Senators are going to hear about 
this week is what would happen--absent this bill--to millions of 
Americans who are underwater on their mortgages. These are hardworking 
middle Americans who now are deeply underwater. Their lenders are 
willing to work out arrangements to lower their debt in a number of 
instances. But absent this bill, instead of getting their heads above 
water, what we will see is a tax increase on those homeowners that 
really drives them back down and increasingly sinking under all of this 
debt. Absent this bill, middle class people would be paying a tax on 
phantom income. I mean, they are not really getting any net income. 
When their lender works with them to relieve their debt, they surely 
shouldn't have to pay a hefty new tax. This bill does that.
  This is National Small Business Week, and this legislation in 
particular goes to great lengths to make it attractive for small 
businesses and particularly for small businesses that would like to 
hire new workers.
  Today we know there are nearly 10 million Americans out of work, and 
they are looking for jobs. The unemployment rate in my home State is 
6.9 percent, which is well above the national average.
  I think we would all agree that our highest priority should be to 
help people find jobs, and the EXPIRE Act is an opportunity to do that, 
particularly with respect to what it does for our small businesses.
  Let me outline a few of those provisions--again, temporary in 
nature--so that we can do even more on a permanent basis for growing 
our economy and making it attractive for our small businesses to hire 
new workers.
  In the EXPIRE Act is the Work Opportunity Tax Credit, which 
encourages employers to recruit, hire, and retain individuals who often 
have had trouble finding jobs. The EXPIRE Act extends and expands this 
legislation in a few key ways so that the credit can help small 
businesses hire an even greater number of struggling Americans.
  First, it would do more to help the long-term unemployed find work. 
These are those hard-hit Americans who are deeply at risk of falling 
between the cracks.
  Second, the new approach will preserve the credit for veterans 
returning from overseas whom we have seen packing--literally packing--
job fairs in cities across the country in search of work. Picture that. 
The veterans who have worn the uniform of the United States and served 
all of us so admirably come back and can't find work, and they are 
coming out in throngs to these job fairs around the country. This bill 
will help them.
  Small businesses that employee military reservists also currently get 
a wage credit when their employees get called to Active Duty. Not only 
will the EXPIRE Act increase that credit, it will open the credit to 
employers of all sizes to improve job security for even more 
reservists.
  I mentioned the research and development credit, which of course 
encourages innovation in firms of all sizes. For many of them, having a 
strong research and development credit is simply imperative, but the 
reality is the current credit isn't doing all it might do to help small 
businesses, and complicated rules that are buried in the Tax Code may 
erase any benefits they see. The EXPIRE Act will change that in several 
key ways. To start, it will expand the pool of small businesses that 
benefit. It will also allow startups to use the research and 
development credit to help pay their employees' salaries, and it will 
build a bridge to tax reform so Congress can do more work to improve 
the credit further and make it permanent.
  The research and development credit is critically important to the 
future of innovation in our country. Apropos again of the bipartisan 
theme we have taken in the Finance Committee, with the support of the 
ranking minority member, the distinguished Senator from Utah, there has 
been some very good work done by the Senator from Kansas, Mr. Roberts, 
and Senator Schumer. I wish to commend them for their efforts to 
spotlight the need to do more to reconfigure the research and 
development credit to help small businesses.
  The reality of course is what is the common thread between so many of 
our most successful companies--Intel and Apple, Amazon and Microsoft, 
and a host of others. They all started as innovative small businesses 
with their eyes trained on developing the future. The EXPIRE Act is a 
step toward a stronger, permanent research and development credit that 
will help even more entrepreneurs in our country grow their best ideas 
into successful businesses.
  In the meantime, we all know small businesses in my home State of 
Oregon and across the country still suffer from the recession. They 
feel the effects of sluggish growth pretty much like everyone else. In 
a stronger economy, healthy small businesses might have decided to turn 
higher profits into investments aimed at expansion. The research and 
development credit--particularly the improved research and development 
credit--is going to help a lot of Americans, but we do want to place a 
special focus on our small businesses because helping them to make 
capital investments in new machinery, vehicles or computers is 
absolutely critical.
  Again, the EXPIRE Act steps in to begin to address that effort in a 
thoughtful manner. The legislation allows small businesses to expense 
up to $500,000 of equipment costs right away, and it indexes that 
dollar amount to inflation so it grows in the future. It is what I 
think a number of Members know as section 179 expensing. If the 
Congress were to fail to pass the EXPIRE Act, that limit would fall 
from one-half million dollars to just $25,000.
  The legislation also continues to simplify recordkeeping--all of the 
redtape we have heard small businesses, concerned about section 179, 
talk with us about. The legislation continues to simplify those 
procedures so small businesses can focus on their own growth instead of 
redtape.
  A lot of small businesses have property that has lost value over 
time. Those small businesses can claim a deduction to compensate for 
it. The EXPIRE Act extends a key provision that allows small businesses 
to expense up to half the cost of that property upfront in the first 
year rather than spreading it out over a longer period.
  Both of these tax incentives, section 179 expensing and bonus 
depreciation,

[[Page S2986]]

are powerful tools to encourage investment. They are lifelines for 
small businesses looking to grow, and the EXPIRE Act protects them 
also.
  Next, I would like to touch on the energy sector, which I know the 
distinguished presiding officer has a great interest in. Obviously, 
small energy businesses play a major role in the future of the American 
economy, building a lower carbon future, and the EXPIRE Act is going to 
protect the incentives those businesses rely on to grow.
  I will start briefly with the production tax credit. The wind energy 
industry, which benefits from the production tax credit, supports more 
than 50,000 jobs. Many wind companies are small, and they require lots 
of capital and planning to bring them to market. Their story 
illustrates what is important to end the cycle of stop-and-go tax 
policies that make our Tax Code, again, needlessly--as some would say, 
almost insanely--complicated and uncertain. Growth in wind energy has 
leveled off over the last 2 years, largely because of the expiration 
and late renewal of provisions such as the production tax credit.
  The EXPIRE Act also extends provisions to encourage the provision of 
other alternative renewable fuels--fuels such as biodiesel, cellulosic 
ethanol, liquefied natural gas, and liquefied hydrogen. There are small 
businesses across the country that stand to gain if the EXPIRE Act is 
passed, and there are incentives to create jobs in those areas, but our 
country is going to lose out if the Senate fails to act.
  Our small businesses ought to be able to plan for the future, to 
chart a course, in effect, from youth through maturity. Stop-and-go tax 
policies only make that more difficult. Even when well-intentioned, 
productive tax incentives go into the code, allowing them to expire 
over and over undermines their effectiveness and the ability of our 
businesses to have the certainty needed to grow for the long term. Our 
taxpayers, small businesses included--and we recognize them especially 
this week--deserve predictability and certainty.
  The EXPIRE Act is called the EXPIRE Act for a reason. It is going to 
end after 2 years. I have heard my colleagues on the other side of the 
aisle over the last day make a number of very thoughtful comments about 
the need for comprehensive tax reform, and I wish to tell my 
colleagues, particularly on the other side of the aisle, that with 
respect to the need for comprehensive tax reform, they pretty much have 
me at hello. We are going to get this extender bill passed, and then it 
is my intent to work very closely with Senator Hatch, the distinguished 
ranking member on the Finance Committee, and all of our colleagues to 
start putting together a strategy for a comprehensive tax reform plan 
to pass this Congress.

  I will say on the floor that I think there is a real opportunity now 
to break the gridlock on tax reform. If we look, in effect, from this 
day, essentially May of 2014, until certainly the middle of 2015, there 
is an ideal opportunity, an ideal window for Democrats and Republicans 
in the Senate to build a bipartisan coalition to pass that into law--
comprehensive tax reform--and to work with our colleagues on the other 
side of the Capitol who have similar interests. I know that because I 
have talked to a number of them in recent months.
  I want colleagues on both sides of the aisle to know we are going to 
focus on getting these extenders passed now. Speed is important because 
the longer we wait, the more we damage, for example, our ability to 
create those innovation jobs because, in effect, we are going to have a 
tax increase on innovation, making it harder to hire veterans and the 
tax hike middle-class people would get, in effect, because they are 
underwater on their mortgages and they got a break from their lender. 
We have to get that done. It is my intent to use every single day as we 
go forward with that effort to make sure the extenders pass and pass 
quickly, then move on to comprehensive bipartisan tax reform. I know we 
can do it.
  He is not here today, but my colleague Mr. Coats, the senior Senator 
from Indiana, has done very good work--stepped in when Senator Gregg 
retired--and has more than met me halfway. I particularly want to 
commend Senator Begich, who has been part of our bipartisan coalition 
and who has had very thoughtful ideas, particularly on protecting the 
middle-class small business incentives for savings. He is a small 
businessperson himself.
  I have been out here probably 20 minutes or so, and I haven't said 
anything that isn't about Democrats and Republicans coming together, 
coming together first to pass the extender legislation and then to use 
every single day over essentially the next year and a half--that window 
until the summer of 2015--to put together a bipartisan plan that can 
help grow the economy.
  I will close with this. After the bipartisan effort in 1986, where a 
big group of progressive Democrats and conservative Republicans came 
together, our country created 6.2 million new jobs over the next 2 
years. Nobody can claim every one of those jobs was due to tax reform; 
that simply would be stretching things, but clearly it helped. The 
business people I talk to now in Oregon and others who come to 
Washington say they very much want the same certainty and 
predictability that was seen in 1986, in terms of being able to make 
those investments to grow their businesses and particularly hire more 
middle-class Americans at good wages. That is what we are going to be 
all about. We are going to pursue it in a bipartisan way. Let us pass 
the EXPIRE Act and move on to address the question of bipartisan 
comprehensive tax reform.
  As I leave the floor--I touched on it while he wasn't here--I am 
particularly pleased about the Roberts-Schumer addition to help more 
small businesses be part of those innovation jobs for the future 
because what Senator Roberts and Senator Schumer did is to take that 
credit and do more to move it toward an approach that will help those 
small businesses, the ones starting in garages and all across the 
country where individuals are betting on the future and taking the 
risks. It is going to be easier for them because of the good work done 
by Senator Roberts and Senator Schumer. It is another reason for 
colleagues to vote for the EXPIRE Act.
  With that, I yield the floor.
  The PRESIDING OFFICER (Ms. Heitkamp). The Senator from New York.


                           Order of Procedure

  Mr. SCHUMER. I ask unanimous consent that the Republicans control the 
time from 3 until 3:45 and the majority control the time from 3:45 
until 4:30 p.m.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Madam President, first let me thank my colleague from 
Oregon, our new shining chairman of the Finance Committee, who is doing 
such a great job. He is trying, in his own inimitable way--almost 
always successful way--to weave together ideas of Democrats and 
Republicans to create a bipartisan solution, first on the issue of 
extenders--and that will be the big test case, and he knows it--and 
second on tax reform in general. If we can't pass these tax extenders 
in a bipartisan way, it will not bode well for tax reform. I am 
hopeful, with the initial signs and the overwhelming vote yesterday, we 
can get that vote done.
  As the Senator mentioned, it has many ideas from different parts of 
the country--ideas from Democrats, ideas from Republicans, ideas, as he 
was kind enough to mention, that we worked on together, such as the 
proposal Senator Roberts and I put together under the guidance of 
Senator Coons, who was the originator of the idea.
  I thank my friend from Arizona. I know he has some important words to 
speak in the next few minutes and has let me go now. I appreciate that 
very much. I know everyone looks forward to hearing from him.


                              Immigration

  It is apropos my colleague from Arizona is on the floor because we 
worked together for so long and hard--at least in the Senate--
successfully on this issue of immigration. So I rise today to continue 
a conversation I started 2 weeks ago about the House's incomprehensible 
refusal to do anything to try to fix our broken immigration system.
  I remind everyone it has now been 320 days since the Senate passed a 
strong bipartisan bill that would secure our borders, hold employers 
accountable for hiring illegal workers, grow our economy, and provide a 
chance for people currently here illegally to get right

[[Page S2987]]

with the law and earn legal status. During all that time the House has 
failed to do anything to fix our broken immigration system.
  To be clear, the problem is not that there is a difference of opinion 
between a House bill and a Senate bill on immigration that cannot be 
reconciled. The problem is that House Republicans have completely 
abdicated their responsibility to address the important issue of fixing 
our broken immigration system. Again, the problem isn't that the House 
has passed immigration laws that the Senate disagrees with; the problem 
is that the House won't put any immigration bills up for a vote no 
matter what is in those bills.
  Two weeks ago I stated on the floor that the reason the House has 
done nothing on immigration is because House Republicans have handed 
the gavel of leadership on immigration to far-right extremists, such as 
Congressman Steve King. Not only has this point not been refuted by 
anyone in the Republican Party, it has actually been confirmed in 
various news sources that have come out since the speech.
  For instance, just 2 days ago Speaker Boehner was quoted as saying:

       I do believe the vast majority of our members do want to 
     deal with this, they want to deal with it openly, honestly 
     and fairly.

  Speaker Boehner is making clear that these folks are part of a ``vote 
no, pray yes'' caucus. But he said immigration hasn't been scheduled 
for a vote because ``there are some members of our party who just don't 
want to deal with this. It's no secret.''
  Now, even by Steve King's analysis, 20 to 25 Members of the House 
Republican side would vote for the Senate's immigration bill. That 
number is clearly an underestimation of support in the House for the 
Senate bill, but it shows that even according to Steven King, if the 
Senate bill were brought up for a vote, it would pass. King added that 
about 100 to 150 Republican Members of the House could possibly vote 
yes on an immigration bill if it were presented for a vote.
  Given this broad support for immigration reform that supposedly 
exists in the House, I would say to Speaker Boehner and the Republican 
House leadership: What are you waiting for? If you want to pass 
immigration reform, and you say the vast majority of your Members want 
to pass immigration reform, schedule immigration reform for a vote. It 
doesn't have to be our bill, although I think that is a good 
bipartisan, down-the-middle--not too liberal, not too conservative--
approach. But don't do our bill. Do another bill. Come up with your own 
ideas. That is fine with us.
  But the problem is that the House Republican leadership is still too 
afraid of what Steve King calls the ``50 to 70 Republicans who would 
fight to the last drop of blood against any immigration bill.''
  It is time for the House Republican leadership to decide whether they 
stand with the majority of the American people and the supposed 
majority of their conference or whether they are really going to let 
Steve King continue to dictate the policy of the Republican Party on 
immigration.
  Just to be clear, right now Steve King is winning. Just last week he 
said:

       If I had the power, the authority to kill everything 
     immigration-wise that comes through the House, if they 
     actually handed me the keys to the kingdom, and if I actually 
     had the gavel that controls the immigration issue, that would 
     be nice.

  Well, who among us can say he has not been handed the gavel on 
immigration policy when nothing is being done on immigration--just as 
he said he would do if he were indeed handed the gavel?
  What has the House actually done on immigration these past 2 years? 
Nothing. Look it up. This is what Steve King wants--he wants the House 
to do nothing. He is winning and America is losing.
  I am not the only one who is frustrated with this inexplicable 
inaction. Just this week Tom Donohue, president of the U.S. Chamber of 
Commerce, said:

       If the Republicans don't do it, they shouldn't bother to 
     run a candidate in 2016.

  He added that ``failure to act is not an option'' and that ``we're 
absolutely crazy if we don't take advantage of having passed an 
immigration bill out of the Senate.''
  I don't always agree with the president of the U.S. Chamber of 
Commerce, but he is right. Not only is this inaction damaging the 
Republican Party politically, it is also inflicting needless damage to 
our economy. Our GDP could be growing by over 3 percent by passing this 
bill--more than any Republican tax cut or Democratic spending proposal. 
But Steve King says no and Speaker Boehner abandons ship.
  Mario Diaz-Balart, another Republican working to pass immigration 
reform, said that Republicans need a deadline to get moving on 
immigration reform and that if no action was taken by the August 
recess, the Republican brand would be damaged with Latino voters for 
years to come.
  Has Speaker Boehner said: Fine, we will schedule a vote before August 
recess? No, he has not. There is no sign that anything will ever be 
done on immigration reform. Even with the very small, microscopic 
measure known as the ENLIST Act, which would let certain immigrant 
youth earn legal status by joining the military, the House has refused 
to consider this so far as part of the Defense authorization bill.

  Republicans keep trying to place the blame on the President, saying 
he can't be entrusted to enforce any laws. We believe that is a phony 
excuse, but if that is really their problem, let's pass a bill now and 
delay implementation until 2017. I would support that. And then we 
would have no President Obama enforcing any of these laws. Let's call 
their bluff. Is it Obama? Is he the problem? Then pass a bill where he 
can't enforce any of these laws. We can come to a reluctant agreement 
on that. If Republicans can't agree to pass a bill that goes into 
effect after the President's term, then we know that mistrust of the 
President is nothing but a straw man.
  Let's be honest about what is happening right now. Republicans are 
currently doing nothing on immigration reform because they don't want 
to rock the boat with primaries happening in Georgia, Pennsylvania, 
Kentucky, Virginia, and other key States that are occurring between now 
and early June. But we can't keep having broken families living under a 
broken system forever without any idea of when Congress might act to 
finally provide badly needed reform.
  So today I wish to be clear on what our window is for the House to 
pass immigration reform. It is the window between early June and the 
August recess. So today I am saying to Speaker Boehner, Leader Cantor, 
and other Republican leaders who refuse to schedule a vote on 
immigration reform during this window between early June and the August 
recess, it will not pass until 2017 at the earliest. I believe it will 
then pass in 2017 after Republicans take a shellacking in the 
Presidential and congressional elections. But in the meantime, if 
immigration reform is not passed during this window, Republicans will 
have to admit that Steve King controls the Republican Party platform on 
immigration. If nothing happens during this window, it will be clear 
that this occurred because Steve King calls the shots and he has won 
the immigration debate among the House Republicans. Whatever their 
supposed excuse for inaction, inaction is consent to Steve King's point 
of view.
  Where are the leaders in the House--the Republican Party--with the 
courage to stand up to Steve King and the far right and say: Enough is 
enough. We will not let our party be hijacked by extremists whose 
xenophobia causes them to prefer maintaining a broken system over 
achieving a tough, fair, and practical long-term solution.
  Make no mistake about it. Immigration reform will pass either this 
year with bipartisan support and a bipartisan imprint or it will pass 
in a future year with only Democratic support and Democratic imprint 
because Democrats will control Congress and the White House simply 
because Republicans have failed to pass immigration reform.
  In the meantime, the President would be more than justified in acting 
anytime after recess begins to make whatever changes he feels necessary 
to make our immigration system work better for those unfairly burdened 
by our broken laws. If House Republicans refuse to act, it is incumbent 
on all of us to look at all the areas where we can act administratively 
to fix our broken system.

[[Page S2988]]

  I hope immigration reform passes this year.
  I see my two colleagues from Arizona who worked so long and hard and 
courageously and pulled the bill further away from what many Democrats 
might want, but they knew that America and their State of Arizona 
demanded a solution. Let's rally to their side. Let's rally to the side 
of all Americans, a majority of Democrats, Independents, and 
Republicans, all of whom want comprehensive immigration reform.
  I hope immigration reform passes this year because our broken 
families, our economy, and our country so badly need it. Let's hope the 
House finally stops talking and starts acting.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.


                              Nominations

  Mr. McCAIN. Madam President, I thank the Senator from New York for 
his 5-minute speech.
  I am pleased to join today with my friend and colleague Senator Flake 
to express support for this diverse and historic slate of nominees to 
the U.S. District Court for the District of Arizona.
  Between today and tomorrow, the Senate will hopefully vote to confirm 
six judges to the Federal court in Arizona, and I urge my colleagues to 
join me in supporting these nominees.
  I am very pleased to have worked with my colleague Senator Flake. 
Together we have put together a group of people who have devoted their 
time and effort in our State, who represent the best and the brightest 
legal minds and judicial experience in our State on a bipartisan basis, 
and we acted, very frankly, on the unanimous recommendation of this 
group of outstanding citizens of Arizona who put forth these 
recommendations.
  I am very proud that some of these nominees are indeed historic, 
including the fact that one of the nominees, Diane Humetewa, has an 
impressive legal background ranging from work as a prosecutor and 
appellate court judge to the Hopi nation. She served the U.S. attorney 
for the District of Arizona. And hers is a historic nomination. If 
confirmed, Diane Humetewa will be the first Native American woman to 
ever serve on the Federal bench, and we are very proud of her and the 
other five.
  The Federal district court of Arizona has been under tremendous 
strain these past few years, and the confirmation of these six judges 
will be a great relief to an overburdened court, one which is 
consistently ranked as one of the top 10 busiest in the country. Of the 
13 authorized judgeships for this court, 6 are currently vacant. This, 
together with the large caseload, led the District of Arizona to 
declare a judicial emergency in 2011. This has created an untenable 
situation for the court in Arizona, and the confirmation of these 
nominees is critical to ensure that the administration of justice is 
timely and fair for the people of Arizona.
  The slate of nominees before the Senate, as I mentioned earlier, is 
the product of consensus, cooperation, and careful deliberation, 
selected with the help of a nonpartisan judiciary evaluation 
commission. They saw overwhelming support in the Judiciary Committee 
here in the Senate, and the brief descriptions that follow only begin 
to capture the breadth of these nominees' experiences and the depth of 
their commitment to our legal system.
  Judge Steven Logan has already proved to be an asset to the district 
court in Arizona, where he currently serves as a magistrate judge. That 
experience, together with his work as an immigration judge and military 
trial judge, makes him uniquely qualified to serve as an article III 
judge.
  John Tuchi currently serves as chief assistant to the U.S. attorney 
and has the qualifications to be a district judge based in part on his 
dedication to public service, extensive trial experience, and practice 
before Federal courts.
  Judge Douglas Rayes, also nominated for the Phoenix Division, 
currently serves as a Maricopa County superior court judge, where he 
has presided over thousands of cases in family law, criminal law, and 
complex litigation. Together with 18 years in private practice, Judge 
Rayes' experience and insight will be valuable to the Federal court.

  Rosemary Marquez has worked as a public defender and prosecutor as 
well as in private practice. Her extensive experience working in border 
districts and her Hispanic heritage will be invaluable assets to the 
Federal court.
  Lastly, Judge James Soto, whose experience includes running a private 
practice that covered a broad array of commercial, civil, and criminal 
cases and service on the Santa Cruz County Superior Court, together 
with an understanding of issues important to border communities, have 
prepared him to serve ably as a district judge in Tucson.
  Each of these nominees has shown commitment to justice, public 
service, and the people of Arizona. Each also has demonstrated the 
judicial temperament and professional demeanor necessary to serve in 
this capacity with integrity. I urge my colleagues to support these 
nominees--the three we are voting on today and hopefully the three who 
will be voted on tomorrow morning--by voting yes for cloture and for 
final confirmation.
  I again wish to thank all those individuals who were a part of the 
commission that came up with these recommendations. I wish to thank my 
friend and colleague Senator Flake, also a member of the Judiciary 
Committee, for the important role he played in bringing these nominees 
before the Senate. I am confident they will serve the State of Arizona 
with honor and distinction. I would also point out that some of these 
nominees may not be of the same party as Senator Flake and me and there 
may not be specific agreements on every issue and position that these 
nominees have taken, but I am confident of their ability to serve this 
Nation and the people of Arizona.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. FLAKE. I thank the senior Senator from Arizona Mr. McCain for the 
work he has done to bring this panel forward with six judges to be 
confirmed this week. That is a big deal, a big deal for any State, and 
for a State such as Arizona that has had such a shortage for so long, 
this is particularly important. I just want to say a few words about 
the three judges we will vote on after I speak: Judge Steven Logan, 
John Tuchi, and Diane Humetewa.
  Judge Logan has a distinguished record in the military, where he 
earned a Bronze Star among many other honors. In discussing his 
military service at his nomination hearing, one of his statements stuck 
out because it exemplifies his dedication for the rule of law and his 
fitness to be a district judge. He said:

       The rule of law in the United States is very, very 
     important. I have seen what happens in a country, two 
     countries in particular--

  He is referring to Iran and Afghanistan--

     when there is no rule of law that is active.

  Judge Logan will bring this important perspective to the bench, as 
well as insights he has gained as an assistant U.S. attorney, both in 
Minnesota and in Arizona. He is familiar with immigration issues as 
well, which provide the bulk of the cases he will be looking at as a 
district court judge.
  Mr. Tuchi has a long career as a prosecutor, having served the bulk 
of his career in the Arizona U.S. attorney's office from 1998 until 
now. He is presently serving as chief assistant U.S. attorney, where he 
oversees civil and criminal personnel operations. In 2009 he served as 
interim U.S. attorney for several months. He began his legal career as 
a judicial clerk in the Ninth Circuit, and I think he is going to make 
a stellar district court judge as well.
  Ms. Humetewa, similar to Judge Logan, has served as both a prosecutor 
and a judge, serving in the Arizona U.S. attorney's office as an 
assistant U.S. attorney and then as a Senate-confirmed U.S. attorney 
for Arizona from 2007 to 2009. She was also acting chief prosecutor for 
the Hopi Tribe and appellate court judge for the tribe. As Senator 
McCain noted earlier, she will be the first Native American woman to 
serve on the Federal bench. I know her varied experience as a judge and 
prosecutor will serve her well in this capacity.
  Let me just say what a thrill it was to be on the Judiciary Committee 
and have all six of these prospective judges come with their families 
and talk about their experience and how it would relate to their new 
role if they were to be confirmed. It was great to

[[Page S2989]]

be there to see Diane Humetewa and family and note that on the 
reservation there were many other family members watching that hearing 
being streamed and being proud that the first female Native American 
would be on the Federal bench. What a great occasion, what a great 
event to witness, and it speaks well for not only her qualifications 
but the qualifications of the others as well.
  We look forward in the coming days--hopefully tomorrow--to vote on 
Judge Rayes as well as Rosemary Marquez. Senator McCain mentioned Judge 
Soto. I have had the honor of getting to know Judge Soto and his family 
a bit. He served 13 years on the County of Santa Cruz's Superior Court 
and is currently a presiding judge. The comment in the confirmation 
hearing that came up is that the people of Santa Cruz County are going 
to be sad to lose him as a judge; he has been great there, and he will 
be a great district court judge.
  I am so happy to go through this process. This is my first time, 
being relatively new to this position, of nominating judges and going 
through the confirmation process. It was a pleasure working with 
Senator McCain and with the White House and the President in bringing 
these nominations forward.
  I urge my colleagues to vote both for cloture and for final 
confirmation of these three judges today and hopefully the other three 
tomorrow or later. I appreciate the President making these nominations. 
Arizona has waited a long time to fill these judgeships and we are 
pleased to do so this week.
  I yield the floor, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll. The legislative 
clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. WICKER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              A New Normal

  Mr. WICKER. Madam President, I sorrowfully rise this morning to take 
note of the sad state to which this great deliberative body has fallen, 
and I do so reluctantly because I must specifically criticize the 
majority leader of the U.S. Senate for bringing this body to what many 
historians observe is a new low in terms of our ability to move 
legislation and our ability to have open debate and open amendments in 
the Senate.
  We see what has become a new normal in the Senate. Earlier this week 
a bipartisan and popular piece of legislation on energy efficiency was 
derailed by the majority leader's resistance to the open amendment 
process. Certainly, it is not only members of my party, it is not only 
persons on my side of the aisle who have concluded this. There was a 
very scathing opinion piece on the editorial page of the Wall Street 
Journal this morning entitled ``Harry Reid's Senate Blockade.''
  I ask unanimous consent to have this opinion piece printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Harry Reid's Senate Blockade

       The U.S. Senate failed to advance another piece of popular 
     bipartisan legislation late Monday, and the reason tells the 
     real story of Washington gridlock in the current Congress. To 
     wit, Harry Reid has essentially shut down the Senate as a 
     place to debate and vote on policy.
       The Majority Leader's strategy was once again on display as 
     the Senate failed to get the 60 votes to move a popular 
     energy efficiency bill co-sponsored by New Hampshire Democrat 
     Jeanne Shaheen and Ohio Republican Rob Portman. Mr. Reid 
     blamed the defeat on Republican partisanship. But the impasse 
     really came down to Mr. Reid's blockade against amendments 
     that might prove politically difficult for Democrats.
       The Nevadan used parliamentary tricks to block energy-
     related amendments to an energy bill. This blockade is now 
     standard procedure as he's refused to allow a vote on all but 
     nine GOP amendments since last July. Mr. Reid is worried that 
     some of these amendments might pass with support from 
     Democrats, thus embarrassing a White House that opposes them.
       In the case of Portman-Shaheen, Republicans had prepared 
     amendments to speed up exports of liquefied natural gas; to 
     object to a new national carbon tax; to rein in the 
     Environmental Protection Agency's war on coal plants; and to 
     authorize the Keystone XL pipeline. A majority of the public 
     supports these positions and many Democrats from right-
     leaning or energy-producing states claim to do the same. The 
     bill against the EPA's coal-plant rules is co-sponsored by 
     West Virginia Democrat Joe Manchin.
       Yet the White House and Mr. Reid's dominant liberal wing 
     won't take the chance that a bipartisan coalition might pass 
     these amendments, most of which the House has passed or soon 
     would. President Obama would thus face a veto decision that 
     would expose internal Democratic divisions. So Mr. Reid shut 
     down the amendment process. Republicans then responded by 
     refusing to provide the 60 votes necessary to clear a 
     filibuster and vote on the underlying bill.
       It's important to understand how much Mr. Reid's tactics 
     have changed the Senate. Not too long ago it was understood 
     that any Senator could get a floor vote if he wanted it. The 
     minority party, often Democrats, used this right of amendment 
     to sponsor votes that would sometimes put the majority on the 
     spot. It's called politics, rightly understood. This meant 
     the Senate debated national priorities and worked its 
     bipartisan will. Harry Reid's Senate has become a deliberate 
     obstacle to democratic accountability.
       And speaking of accountability, every supposedly pro-energy 
     Democrat supported Mr. Reid in his amendment blockade. That 
     includes Louisiana Senator Mary Landrieu, who is running TV 
     ads back home attacking the Obama Administration energy 
     policies that Mr. Reid is protecting from bipartisan majority 
     rejection. She still claims to support a vote on the Keystone 
     XL pipeline, and she blamed Republicans for not going along 
     with Mr. Reid's vague assurance that he would allow a stand-
     alone vote on Keystone later this month.
       But why not force the vote now? If Ms. Landrieu really had 
     Keystone as a top priority, as she claims, she'd have joined 
     Republicans in demanding an immediate amendment to a bill 
     that she knows the White House is reluctant to veto. And 
     she'd have insisted that Mr. Reid allow a 50-vote threshold 
     for passage, rather than Mr. Reid's 60-vote supermajority.
       Ms. Landrieu instead is playing Mr. Reid's double game, 
     demanding a Keystone vote even as she undermines its passage. 
     She is running for election by boasting about her clout as 
     the new Chairman of the Senate Energy Committee, but she is 
     so ineffectual that she can't get her own party to allow a 
     vote on what she claims is one of her top priorities.
       The lesson for voters is simple: If they want anything 
     meaningful done in the last two years of the Obama 
     Administration, they will have to elect a Republican Senate.

  Mr. WICKER. I will quote at length from the Wall Street Journal this 
morning, because in mentioning this popular piece of legislation, the 
editorial gets right to the point. It says:

     . . . the reason [the bill failed this week] tells the real 
     story of Washington gridlock in the current Congress. To wit, 
     Harry Reid has essentially shut down the Senate as a place to 
     debate and vote on policy.

  I absolutely agree. Additionally, the editorial says:

       The Majority Leader's strategy was once again on display as 
     the Senate failed to get the 60 votes to move the popular 
     energy efficiency bill co-sponsored by New Hampshire Democrat 
     Jeanne Shaheen and Ohio Republican Rob Portman. Mr. Reid 
     blamed it on Republican partisanship. But the impasse really 
     came down to Mr. Reid's blockade against amendments that 
     might prove politically difficult for Democrats.

  Once again, the majority leader has made it clear he doesn't intend 
to let the Senate work its will on amendments. Instead, the new normal 
is that the majority leader comes to the floor and says: If the bill is 
worded as I think it should be, if we can come to an agreement with how 
it should be written, I will bring it to the floor and we can vote it 
up or down. But this idea of amendments, that is unacceptable to the 
majority leader, and it is a complete departure from the way this 
Senate has operated for decades and decades on important pieces of 
legislation.
  I would point out that in the Civil Rights Act of 1964, one of the 
major accomplishments of the Congress in the 20th century, there were 
115 amendments called up during its consideration. The leadership 
didn't know how those votes would turn out. They had probably done a 
whip count and they had a decent idea, but the idea was the Senate was 
going to be allowed to vote up or down with the light shining on the 
process and the American people seeing how their elected Senators felt 
on that issue. There were 115 amendments called up during the 
consideration of the Civil Rights Act in 1964. The Panama Canal Treaty 
of 1978 was another major piece of deliberative work that was done by 
the Senate. There was a total of 89 amendments offered to the Panama 
Canal Treaty. Those amendments were called up and debated in the clear 
light of day. Votes were held and the American people

[[Page S2990]]

found out how their elected representatives in the Senate felt about 
those amendments. This week and for the last 52 weeks that has not been 
the case with the majority leader currently in power in the Senate.

  The Wall Street Journal goes on to say that the majority leader

     . . . used parliamentary tricks to block energy-related 
     amendments to an energy bill. This blockade is now standard 
     procedure as he's refused to allow a vote on all but nine GOP 
     amendments since last July. Mr. Reid is worried that some of 
     these amendments might pass with support from Democrats, thus 
     embarrassing a White House that opposes them.

  I wish to point out that during the time when Republicans--in this 
supposedly greatest deliberative body in the world--have been given 
nine amendments over the last year, Republicans, which hold the 
majority in the House of Representatives, have given their Democratic 
colleagues 125 minority votes. This is in a House which routinely shuts 
down debate, has a rules committee, and historically limits the number 
of amendments and the number of votes. Minority Members in the House 
have had 125 votes during that same time period. This Senate has 
allowed minority Members nine votes during that same period of time, 
and that is an outrage, which the Wall Street Journal continues to 
point out.
  The editorial goes on to say:

       In the case of Portman-Shaheen, Republicans had prepared 
     amendments to speed up exports of liquefied natural gas; to 
     object to a new national carbon tax; to rein in the 
     Environmental Protection Agency's war on coal plants; and to 
     authorize the Keystone XL Pipeline.

  I believe these amendments were good amendments. I would have voted 
for them. The case could be made on the other side of the aisle that 
they were bad policy. But make the case. Let elected Senators from 
North Dakota, Mississippi, and all across the United States of America 
be heard and vote the wishes of their particular constituencies on 
these issues. Instead, the majority shut down these amendments.
  The editorial goes on to say:

       Yet the White House and Mr. Reid's dominant liberal wing 
     won't take the chance that a bipartisan coalition might pass 
     these amendments, most of which the House has passed or soon 
     would. President Obama would thus face a veto decision that 
     would expose internal Democratic divisions. So Mr. Reid shut 
     down the amendment process.

  As I said, he has shut down the amendment process in every case 
except for nine lonely votes.
  The editorial goes on to say:

       It's important to understand how much Mr. Reid's tactics 
     have changed the Senate. Not too long ago it was understood 
     that any Senator could get a floor vote if he wanted it. The 
     minority party, often Democrats, used this right of amendment 
     to sponsor votes that would sometimes put the majority on the 
     spot. It's called politics, rightly understood. This meant 
     the Senate debated national priorities and worked its 
     bipartisan will. Harry Reid's Senate has become a deliberate 
     obstacle to democratic accountability.

  And sadly so, I might add.
  This Harry Reid gag rule is new to the Senate. We have had a number 
of distinguished majority leaders whose names will go down in history 
as the giants and statesmen of our time, and they did not resort to 
this gag rule. This is largely a Harry Reid invention.
  I will give the facts. Mr. Reid has used the gag rule to fill the 
amendment tree--which is a parliamentary term. He has used his gag rule 
to cut off amendments 85 times, more than twice the number of the 
previous six leaders combined, and these were Democrats and 
Republicans.
  Senator Dole invoked the procedural tactic only seven times. Senator 
Robert Byrd, a giant, a historian, and an expert in the use of Senate 
rules, invoked it only three times. Senator Mitchell of Maine invoked 
it 3 times; Senator Lott, 11 times; Senator Daschle, 1 time; and 
Senator Frist, 15 times. Yet time after time--some 85 times--this 
majority leader has decided that the Senate doesn't have a right--that 
the people of Mississippi and the people of North Dakota don't have a 
right--for their Senators to come up and offer an idea and let it rise 
or fall based on whether it is good policy or not. This is an outrage 
that the people of the United States need to understand.
  It seems past majority leaders, when entrusted with protecting this 
institution, recognized that the gag rule should be used sparingly. Its 
current abuse undermines the Senate's ability to address pressing 
national issues and to carry on the tradition of debate that has always 
defined this body. That really cannot be denied.
  Senator Robert Byrd, who I alluded to earlier, called the Senate 
``the last bastion of minority rights.'' That was true during 
Democratic majorities when Senator Byrd was the majority leader. Sadly, 
it is not the case any longer.
  The Wall Street Journal editorial--I would commend it to the 
attention of anyone within the sound of my voice--concludes this:

       The lesson for voters is simple: If they want anything 
     meaningful done in the last two years of the Obama 
     Administration, they will have to elect a Republican Senate.

  Those are the words of the Wall Street Journal and not my words.
  What has become of the Senate under this Harry Reid gag rule is 
unconscionable. It should be reversed and Senators of both parties 
should stand in resistance to the idea that we cannot offer amendments 
and have them debated as they have always been debated in the Senate.
  I yield the floor.
  Mr. LEAHY. Madam President, this week, we are voting to overcome 
Republican filibusters of seven highly qualified judicial nominees. 
Every single one of the nominees we will be voting on this week has 
been nominated to fill a judicial emergency vacancy. This means that 
the nonpartisan Administrative Office of the U.S. Courts has designated 
them as emergency vacancies due to high caseloads. We continue to seek 
consent from Republicans to vote on much needed judges to our Federal 
judiciary, and yet they continue to refuse. Republicans have objected 
to moving to a vote on every single judicial nominee this year. I can 
only hope that they will eventually come to see the error of their 
ways.
  Before proceeding with the qualifications of these judicial nominees, 
I would again like to clarify and address some questions regarding the 
nomination of David Barron. Mr. Barron has been nominated to fill a 
vacancy on the U.S. Court of Appeals for the First Circuit. There have 
been press accounts that have inaccurately stated what the 
administration has made available for Senators to review relevant to 
this nomination. As I said last week, the administration has made 
available unredacted copies of any memo issued by Mr. Barron regarding 
the potential use of lethal force against Anwar Al-Awlaki. This week, 
the administration has made clear that this material included all 
written legal advice by Mr. Barron regarding potential use of lethal 
force against U.S. citizens in counterterrorism operations. Senators 
therefore have had the opportunity to conduct their due diligence 
before voting on this nomination.
  In an Internet post titled ``Why Civil Libertarians and Drone Critics 
Should Support David Barron,'' Georgetown Law Professor David Cole--one 
of the foremost critics of the administration over its failure to 
publicly disclose legal material addressing the use of lethal force 
against U.S. citizens--has stated:

       It is a mistake to conflate the issues of the appointment 
     of David Barron and disclosure of the memos. Barron is a 
     highly qualified lawyer who I know personally to be 
     thoughtful, considerate, open-minded, and brilliant. His 
     confirmation would put in place a judge who will be 
     absolutely vigilant in his protection of civil liberties and 
     his insistence that executive power be constrained by the 
     rule of law. That long-term value should not be sacrificed 
     because of a short-term battle over memos that every Senator 
     already has the opportunity to review.

  Professor Cole is right. I have personally pressed the administration 
for greater transparency on these matters as well, but that is a 
separate debate and we should not be waging it at the expense of 
harming our Federal judiciary and denying the American people an 
individual who will make a first-rate judge. Not only is this tactic 
unwise, but it also does not help advance the cause of those who are 
seeking public disclosure of the memos. As Professor Cole has further 
explained:

       [H]olding up Barron's nomination is unlikely to expedite 
     disclosure of the memos. It will only undermine the 
     confirmation of someone who would make an excellent judge. 
     The Administration has been ordered (unanimously) to release 
     the memo, and will in short order either comply with that 
     order or seek further review. Barron has no control over that 
     decision, and should not be held hostage to it . . .

[[Page S2991]]

       I am second to none in my support for transparency. And I 
     will continue to fight for that value on its own terms. But 
     it is a huge mistake to let our legitimate concerns about 
     transparency get in the way of the confirmation of a judge 
     who will faithfully protect our liberties and hold government 
     accountable--especially when the Senate already has been 
     given access to all the information they need to exercise 
     their ``advise and consent'' role.

  I agree completely with Professor Cole, and I ask unanimous consent 
to have printed in the Record the full posting after my remarks.
  I would further ask unanimous consent to include a joint op-ed in the 
Boston Globe by Harvard Law professors Charles Fried and Laurence 
Tribe--two legal luminaries who often disagree in their views on the 
Constitution and other legal issues. As the two of them have written:

       The nation badly needs the best possible judges--men and 
     women of integrity, intelligence, judicial temperament, 
     respect for the rule of law, and an understanding of the role 
     of judges within our legal system. Barron understands and 
     exemplifies those values. He should be released from the 
     destructive tangle in which he has become quite undeservedly 
     enmeshed and placed on the First Circuit Court of Appeals 
     where he can serve our nation with great distinction.

  We should proceed to Mr. Barron's nomination and confirm him so he 
can get to work on behalf of the American people. Delays are simply 
depriving the Federal judiciary and all Americans of a tremendous 
public servant.
  This week, we will proceed to vote to end filibusters on the 
following seven nominations:
  Judge Gregg Costa has been nominated to fill a judicial emergency 
vacancy on the U.S. Court of Appeals for the Fifth Circuit in Texas. He 
has served since 2012 as a U.S. district judge in the Southern District 
of Texas. He previously served as an assistant U.S. attorney in the 
Southern District of Texas from 2005 to 2012. He worked in private 
practice as an associate at Weil, Gotshal & Manges from 2002 to 2005. 
After graduating from law school, he served as a law clerk to Judge 
Raymond Randolph of the U.S. Court of Appeals for the DC Circuit from 
1999 to 2000 and to Chief Justice William Rehnquist of the Supreme 
Court of the United States from 2001 to 2002. He also served as a 
Bristow fellow in the Office of the Solicitor General from 2000 to 
2001. Judge Costa earned his B.A. from Dartmouth College in 1994. He 
earned his J.D. with the highest honors from the University of Texas 
Law School in 1999. He has the support of his home State Senators, 
Senator Cornyn and Senator Cruz. The Judiciary Committee reported him 
favorably to the full Senate by voice vote on March 27, 2014.
  Judge Steven Logan has been nominated to fill a judicial emergency 
vacancy on the U.S. District Court for the District of Arizona. He has 
served on the Military Court of Appeals since 2013 and as a U.S. 
magistrate judge in the District of Arizona since 2012. He also served 
as a Staff Judge Advocate in the U.S. Marine Corps Reserves from 2012 
to 2013. Previously, from 2010 to 2012, he served as a U.S. Immigration 
Judge in the Executive Office for Immigration Review. From 2009 to 
2011, he served as an Article I Deputy Chief Reserve Military Judge, 
and from 2005 to 2009, he served as an Article I Military Judge to the 
U.S. Department of the Navy. Prior to becoming judge, he served as an 
assistant U.S. attorney in the District of Arizona from 2001 to 2010 
and as an assistant U.S. attorney in the District of Minnesota from 
1999 to 2001. From 1993 to 1999, he worked for the Department of 
Defense, where he served as a Prosecutor--1996-1999--and as a 
contracting officer--1993-1996. Judge Logan has completed three 
deployments of Active Duty in Afghanistan--2008-2009--and Iraq--2004, 
2007-2008. During his military service, he received numerous awards 
that include the Bronze Star in 2008, the Meritorious Service Medal in 
2004 and 2012, and the Global War on Terrorism Expeditionary Medal in 
2004. Judge Logan has the support of his Republican home State 
Senators, Senator McCain and Senator Flake. The Judiciary Committee 
reported him favorably to the full Senate by voice vote on February 27, 
2014.
  John Tuchi has been nominated to fill a judicial emergency vacancy on 
the U.S. District Court for the District of Arizona. He has served 
since 2012 as the chief assistant U.S. attorney in the U.S. Attorney's 
Office for the District of Arizona, where he also has served as the 
U.S. attorney for an interim period in 2009 and as an assistant U.S. 
attorney since 1998. From 2001 to 2007, he served as an adjunct 
professor at the Arizona State University Law School, teaching courses 
on professional responsibility. From 1995 to 1998, Mr. Tuchi worked in 
private practice at Brown & Bain, P.A. as an associate. After 
graduating from law school, he served as a law clerk to Judge William 
C. Canby, Jr., of the U.S. Court of Appeals for the Ninth Circuit from 
1994 to 1995. In 2010, he received the Director's Award for Outstanding 
Performance in Indian Country from the U.S. Department of Justice. Mr. 
Tuchi has the support of his Republican home State Senators, Senator 
McCain and Senator Flake. The Judiciary Committee reported his 
nomination favorably by voice vote to the full Senate on February 27, 
2014.
  Diane Humetewa has been nominated to fill a judicial emergency 
vacancy on the U.S. District Court for the District of Arizona. She has 
served as a professor of practice and special advisor to the president 
at the Arizona State University Law School since 2011. From 2009 to 
2011, she worked in private practice as a counsel at Squire, Sanders & 
Dempsey. From 1998 to 2009, she served in the U.S. attorney's Office in 
the District of Arizona as an assistant U.S. attorney--1998-2007--and 
then as the U.S. attorney from 2007 to 2009. From 2005 to 2006, she 
served as a detailee with the U.S. Senate Committee on Indian Affairs. 
Ms. Humetewa also served as an appellate court judge for the Hopi Tribe 
from 2002 to 2007. Prior to her service in Arizona, she served as 
counsel to the Deputy Attorney General for the U.S. Department of 
Justice from 1996 to 1998. After graduating from law school, she served 
as Deputy Counsel to the U.S. Senate Committee on Indian Affairs from 
1993 to 1996. She has the support of her Republican home State 
Senators, Senator McCain and Senator Flake. The Judiciary Committee 
reported her nomination favorably by voice vote to the full Senate on 
February 27, 2014. When confirmed, Ms. Humetewa will be the first 
Native American woman to serve as a Federal judge and the third Native 
American ever to do so.
  Rosemary Morquez has been nominated to fill a judicial emergency 
vacancy on the U.S. District Court for the District of Arizona. She has 
served since 2008 in private practice as a sole practitioner in Tucson, 
AZ. She previously served as a partner at Montoya & Morquez, PLLC from 
2000 to 2008, an assistant Federal public defender in the Federal 
Public Defender's Office in Tucson, AZ from 1996 to 2000, a county 
legal defender in the Pima County Legal Defender's Office from 1994 to 
1996, and a deputy county attorney in the Pima County Attorney's Office 
in 1994. Ms. Morquez earned her B.A. from the University of Arizona in 
1990. She earned her J.D. from the University of Arizona Law School in 
1993. She has the support of her Republican home State Senators, 
Senator McCain and Senator Flake. The Judiciary Committee reported her 
favorably to the full Senate by a roll call vote of 15 to 2 on February 
27, 2014.
  Judge Douglas Rayes has been nominated to fill a judicial emergency 
vacancy on the U.S. District Court for the District of Arizona. He has 
served since 2000 as an Arizona State judge in Maricopa County Superior 
Court, including as associate presiding civil judge from 2008 to 2010 
and as presiding criminal judge from 2010 to 2013. He has presided over 
thousands of complex criminal, civil, and family cases that have gone 
to judgment by settlement, plea agreement, summary judgment, or 
dismissal. He previously worked in private practice as a partner at 
Tryon, Heller & Rayes from 1989 to 2000; a partner at McGroder, Tryon, 
Heller & Rayes from 1986 to 1989; McGroder, Tryon, Heller, Rayes & 
Berch from 1984 to 1986; and as an associate at McGroder, Pearlstein, 
Peppler & Tryon from 1982 to 1984. Following his graduation from law 
school, he served as Judge Advocate General in the U.S. Army JAG Corps 
from 1979 to 1982. He served in the U.S. Army from 1970 to 1982 and in 
the Army Reserve from 1982 to 1985. Judge Rayes has the support of his 
Republican home State Senators, Senator McCain and Senator Flake. The 
Judiciary Committee reported him

[[Page S2992]]

favorably to the full Senate by a roll call vote of 16-2 on February 
27, 2014.
  Judge James Soto has been nominated to fill a judicial emergency 
vacancy on the U.S. District Court for the District of Arizona. He has 
served since 2001 as a superior court judge in the Santa Cruz County 
Court. During his time on the bench, he has presided over 1,100 cases 
that have gone to verdict or judgment. Prior to his judicial service, 
he worked in private practice for over two decades, including as a 
shareholder and president of Soto, Martin and Coogan, P.C. from 1992 to 
2001. He worked as a sole practitioner from 1976 to 1979. He previously 
served as town attorney for the town of Patagonia from 1975 to 1992, 
deputy city attorney for the Office of the Nogales City Attorney from 
1974 to 1983, and deputy county attorney for Santa Cruz County in 1975. 
Judge Soto has the support of his Republican home State Senators, 
Senator McCain and Senator Flake. The Judiciary Committee reported him 
favorably to the full Senate by voice vote on February 27, 2014.
  All of these nominees have the experience, judgment, and legal acumen 
to be terrific judges in our Federal courts. I thank the majority 
leader for filing cloture petitions, and I hope all Senators will join 
me to end these filibusters so that these nominees can get working on 
behalf of the American people.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                             [May 12, 2014]

  Why Civil Libertarians and Drone Critics Should Support David Barron

                            (By David Cole)

       Sen. Rand Paul has an op-ed in the New York Times today 
     opposing the nomination of David J. Barron to the U.S. Court 
     of Appeals for the First Circuit until the memos Barron wrote 
     concerning the legality of the targeted killing of US citizen 
     Anwar Al-Awlaki are publically released. The ACLU has also 
     urged that Barron's nomination be delayed until Senators are 
     allowed to read all targeted killing memos written by Barron. 
     I have been as much a critic of the drones program as Sen. 
     Paul, and have written often about my critiques of both the 
     apparent scope of the program and the lack of transparency 
     surrounding it. (See here, here & here). I continue to 
     support transparency. But it would be a terrible mistake to 
     hold up David Barron's nomination over this issue.
       First, and most importantly, it is a mistake to conflate 
     the issues of the appointment of David Barron and disclosure 
     of the memos. Barron is a highly qualified lawyer who I know 
     personally to be thoughtful, considerate, open-minded, and 
     brilliant. His confirmation would put in place a judge who 
     will be absolutely vigilant in his protection of civil 
     liberties and his insistence that executive power be 
     constrained by the rule of law. That long-term value should 
     not be sacrificed because of a short-term battle over memos 
     that every Senator already has the opportunity to review.
       There can be no doubt that Barron would be an excellent 
     independent judge, and would faithfully exercise his 
     authority to protect Americans' rights and to keep government 
     honest and constrained. As former judge and now Stanford Law 
     Professor Michael McConnell has noted, Barron ``has supported 
     efforts to adopt laws to enable judicial review of executive 
     actions that might otherwise escape judicial review because 
     of lack of standing, and has written powerfully about the 
     need for constitutional limits on executive excesses.'' 
     Indeed, as head of the Office of Legal Counsel in 2009, 
     Barron himself withdrew five OLC memos written during the 
     prior administration to authorize controversial interrogation 
     techniques such as waterboarding. And fellow Harvard Law 
     Professor John F. Manning, a conservative who clerked for 
     Judge Robert Bork and Justice Antonin Scalia, has accurately 
     described Barron as ``undeniably brilliant'' and ``an 
     unusually talented and careful lawyer'' who will ``understand 
     and faithfully carry out the duties of a circuit judge.''
       Second, the administration has in fact made available to 
     all Senators any and all memos Barron wrote concerning the 
     targeting of al-Awlaki--the core of the issue Sen. Paul is 
     concerned about. So if Sen. Paul and any other Senator want 
     to review Barron's reasoning in full, they are free to do so. 
     Moreover, the administration also made available to the 
     Senate, and ultimately to the public, a ``White Paper'' said 
     to be drawn from the Barron memo (though written long after 
     he left office). Thus, no Senator need be in the dark about 
     the Administration's reasoning, and the public also has a 
     pretty good idea as well.
       Indeed, the U.S. Court of Appeals for the Second Circuit 
     recently ruled that a redacted version of the al-Awlaki memo 
     can and should be disclosed, largely because much of its 
     reasoning had already been made public in the White Paper. 
     Thus, while I fully support the public disclosure of the 
     memo, redacted to protect sources and methods, every Senator 
     already has full access to the memo, and therefore can make 
     an informed judgment on advice and consent. And the public 
     also has a good sense of what it says.
       Notably, Senators Ron Wyden, Mark Udall, and Martin 
     Heinrich, all members of the Intelligence Committee, wrote a 
     letter to Attorney General Eric Holder in November 2013, 
     after reviewing the memo on the killing of al-Awlaki, and 
     stating their view the killing was ``a legitimate use of the 
     authority granted to the President.'' They went on to urge 
     the administration to be more forthcoming about the legal 
     limits on the use of force against U.S. persons in other 
     cases, beyond what the memo apparently had sanctioned, but 
     did not question the legality of the action authorized.
       Sen. Paul's op-ed notes that the Office of Legal Counsel 
     may have written more than one memo on targeted killing, 
     which is quite possible. But the administration has disclosed 
     to the Senators the full, unredacted versions of any memo 
     authorizing the killing of Americans, the issue Sen. Paul 
     raises in his op-ed.
       Finally, holding up Barron's nomination is unlikely to 
     expedite disclosure of the memos. It will only undermine the 
     confirmation of someone who would make an excellent judge. 
     The Administration has been ordered (unanimously) to release 
     the memo, and will in short order either comply with that 
     order or seek further review. Barron has no control over that 
     decision, and should not be held hostage to it.
       I am second to none in my support for transparency. And I 
     will continue to fight for that value on its own terms. But 
     it is a huge mistake to let our legitimate concerns about 
     transparency get in the way of the confirmation of a judge 
     who will faithfully protect our liberties and hold government 
     accountable--especially when the Senate already has been 
     given access to all the information they need to exercise 
     their ``advise and consent'' role. As a civil libertarian and 
     drone critic, I have no hesitation in saying that David 
     Barron should be confirmed.
                                  ____


                 [From the Boston Globe, May 13, 2014]

       David Barron Should Be Confirmed to U.S. Court of Appeals

                (By Charles Fried and Laurence H. Tribe)

       Although the two of us frequently approach legal questions 
     from different perspectives, and just as often disagree about 
     the best answers to those questions, we share a respect for 
     our Constitution and a reverence for the judicial process. 
     That's why, in spite of our disagreements, we agree that 
     Harvard Law School professor David Barron is exceptionally 
     well-qualified to hold a seat on the US Court of Appeals for 
     the First Circuit and that the Senate should promptly confirm 
     him.
       No one can reasonably question Barron's intelligence, the 
     high quality of his scholarship, his judicial temperament, 
     his deep respect for the rule of law, or his personal 
     integrity and devotion to public service. Barron (who is 
     married to Juliette Kayyem, a Democratic gubernatorial 
     candidate and former Globe columnist) is a brilliant lawyer 
     who will make an excellent judge.
       Though some conservatives oppose his embrace of what they 
     call ``progressive constitutionalism,'' and some civil 
     libertarians worry about the secrecy of memoranda he signed 
     as head of the Justice Department's Office of Legal Counsel 
     regarding the legality of using lethal force against a 
     specific US citizen who was an operational leader of an enemy 
     force, neither of these concerns justifies delaying a vote, 
     or denying Barron a seat on the First Circuit.
       Any description of Barron as ``an unabashed proponent of 
     judicial activism'' is a caricature that demonstrates a lack 
     of familiarity with serious debate over constitutional 
     issues. What is clear to us is that Barron would decide cases 
     based solely on the relevant sources of legal authority, 
     including binding precedent, and that his political views 
     would in no way distort his legal judgment. We will have 
     reached a tragic turning point if people are disqualified 
     from holding judicial office when they have thought deeply 
     about the issues and expressed their views in public.
       There is nothing in Barron's record, or in our many years 
     of personal interactions with him, that would lead us to 
     believe that he is anything other than a straight shooter, 
     thoroughly committed to applying rules of law dispassionately 
     and unflinchingly, and without political consideration. 
     That's what judges should and must do, whatever their 
     philosophical bent.
       Beyond the fight over judicial philosophy, Barron's 
     nomination has encountered resistance because of his 
     authorship of opinions in the Office of Legal Counsel 
     surrounding the legality of using lethal force against Anwar 
     al-Awlaki, a US citizen who was killed by a drone strike in 
     Yemen in 2011. Some have argued that the Senate should not 
     vote to confirm Barron until its members review the OLC 
     memos, but that point is now moot because the White House has 
     made unredacted versions available to every senator. Others 
     have argued that the Senate should not vote until a redacted 
     version of the principal Awlaki memo is made public, as a 
     court of appeals recently held it must be. That is an issue 
     subject to ongoing litigation and of no relevance to Barron's 
     nomination. He left public service four years ago and has 
     nothing to do with administration policies on the release of 
     sensitive information. In any event, it is likely that the 
     memos will be released in short order: Either the 
     administration will not appeal the court's ruling, or the 
     ruling will be upheld on appeal. Without doubt,

[[Page S2993]]

     holding up Barron's nomination will not expedite the release 
     of any memo.
       We agree it is entirely appropriate for Congress to 
     consider carefully the legal framework for drone strikes, 
     although we may reach different conclusions on that score. 
     But it would inflict grave harm on the confirmation process 
     and on our ability to recruit the best persons to the federal 
     judiciary if Barron's nomination to the First Circuit were 
     allowed to become collateral damage in this debate. The 
     pertinent question cannot be whether any senator agrees or 
     disagrees with any particular use of force or with whether 
     the administration should or should not release documents. 
     Barron didn't order the strikes or design the legal framework 
     for their authorization. Indeed we do not know whether he 
     personally agrees with that policy, the wisdom and morality 
     of which it was not his job to assess. And he has not 
     advocated, much less ordered, the withholding of any 
     documents. His job as acting head of the Office of Legal 
     Counsel was to provide thorough, accurate, and unvarnished 
     legal opinions to the president and other executive 
     officials, based on the traditional legal authorities of 
     text, history, and precedent. We have every reason to believe 
     that is precisely what he did, and there is absolutely no 
     evidence to the contrary.
       The nation badly needs the best possible judges--men and 
     women of integrity, intelligence, judicial temperament, 
     respect for the rule of law, and an understanding of the role 
     of judges within our legal system. Barron understands and 
     exemplifies those values. He should be released from the 
     destructive tangle in which he has become quite undeservedly 
     enmeshed and placed on the First Circuit Court of Appeals, 
     where he can serve our nation with great distinction.

                          ____________________