Congressional Record, Volume 160 Issue 73 (Wednesday, May 14, 2014)

[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.

____________________