[Congressional Record Volume 167, Number 214 (Monday, December 13, 2021)]
[Senate]
[Pages S9115-S9117]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



             Unanimous Consent Request--Executive Calendar

  Mr. WHITEHOUSE. Mr. President, I am here on the floor to ask for some 
courtesy for a pair of nominees. These are nominees to the Court of 
Federal Claims, which is the court to which citizens can come with 
claims against the Federal Government.
  In the Court of Federal Claims, the Federal Government is the 
defendant, and these two individuals are in an enormous traffic jam 
that our colleagues have created for nominees. At the moment, I am told 
we have 159 nominees, out of committee, on the Executive Calendar, 
backed up on the Senate floor--159.
  I am on the Judiciary Committee. These two are judges. They are for 
the Court of Federal Claims. This is not a partisan thing; this is 
about letting the Court of Federal Claims do its work.
  Both of them are extremely well qualified; neither is partisan. Both 
were voice voted out of the Judiciary Committee, and I would hope, just 
as a matter of courtesy and common decency, we could agree tonight to 
move them forward.
  Now, one of them is named Armando Bonilla. He served as the counsel 
to the Marshals Service. He served as counsel to the Deputy Attorney 
General.
  He served, actually, as Associate Deputy Attorney General. In the 
Department of Justice it is not an easy thing to move up from being 
counsel to the Marshals Service to being counsel to the DAG, to being 
Associate DAG. So that is a pretty impressive record.
  Before that, as a trial attorney, he had served in the Public 
Integrity Section of the Department, in the asset forfeiture and money 
laundering section, bringing those cases, and in the civil side in the 
Commercial Litigation Division.
  So he has the trial qualifications you would want. He has the 
experience from the government side that you would want. He got a voice 
vote out of committee. And if that is not enough, he is a graduate from 
West Virginia University.
  So he is, I think, a very well-rounded individual who would serve 
well in the Court of Federal Claims.
  Also, I will be asking to confirm Carolyn Lerner, who brings her own 
superb qualifications to this position as well. She is, right now, the 
chief circuit mediator for the Court of Appeals for the DC Circuit. So 
she deals with litigation conflicts all the time. She obviously is 
viewed with considerable regard by the court who made her their chief 
circuit mediator.
  She served for many years in private practice. So she would be very 
familiar with the private practice of individuals who come before the 
Court of Federal Claims. Again, private person versus Federal 
Government is what that court's business is. And she even taught law.
  So Carolyn Lerner and Armando Bonilla are both very well qualified, 
and both came out of the Judiciary Committee with voice votes, which 
means they both had bipartisan support, and this is an important court 
to proceed with.
  Now, what has happened here and the reason we are now up to 159 
backed-up nominees for executive and judicial positions is that our 
colleagues on the other side are insisting on cloture for essentially 
almost every individual who comes through, and that eats up time on the 
Senate floor and slows things down and creates a traffic jam. It is 
like you are driving on Highway 95 and you pull into the middle lane 
and drive 25 miles an hour. You are going to jam up traffic behind you. 
And that is what our friends are doing. They are jamming up traffic.
  I think there are certain Members of the other party who would like 
to see the Biden administration not be able to get his team in place 
just for partisan reasons.
  So when Donald Trump came in, in his first year, he was obviously not 
popular with us on our side, and he had some pretty appalling 
appointments. But even in that very hostile environment, the Republican 
leader only had to file cloture for 65 appointees--65 in that first 
year. In President Biden's year, we are already at 127. So the cloture 
rate has doubled from even that very difficult, challenging year when 
Trump first came in.
  And I see my friend from Alaska here. So I will just review the 
bidding. We have 159 nominees backed up on the Senate floor who are all 
out of committee, all ready for votes, many of whom are coming out of 
committee by voice votes with big bipartisan majorities. Two of them 
are the individuals whom I am going to be asking unanimous consent to 
confirm tonight, Armando Bonilla and Carolyn Lerner.

[[Page S9116]]

  My friend from Alaska served in the Department of Justice. So he 
knows that it ain't nothing to be counsel to the Marshals Service and 
then counsel for the DAG and then Associate DAG. That is a really 
impressive climb through the top ranks of the Department--and to have 
served as a trial attorney in the Public Integrity Section and in the 
asset forfeiture and money laundering section and in the civil side in 
complex commercial litigation. That is a very impressive resume.
  That is ditto for Ms. Lerner, who has been chosen to be the chief 
circuit mediator for the DC Circuit Court of Appeals. That is a pretty 
impressive credential all on its own.
  So what I would like to do in order to get these two through the 
traffic jam and on to the Court of Federal Claims, where their presence 
is needed, is to ask unanimous consent that the Senate proceed to 
executive session to consider their nominations, which are Executive 
Calendar Nos. 489 and 490; and, further, that the nominations be 
confirmed, that the motions to reconsider be considered made and laid 
upon the table with no intervening action or debate; that no further 
motions be in order to the nominations; that any related statements be 
printed in the Record; that the President be immediately notified of 
the Senate's action; and that the Senate then resume legislative 
session.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Alaska.
  Mr. SULLIVAN. Reserving the right to object, Mr. President, I work 
very closely with my colleague from Rhode Island on many, many issues, 
and there is a pretty simple solution for my objection here, and it is 
related to judges, and it is related to the Senate working with the 
White House to get judges confirmed.
  I gave a speech on the Senate floor just about an hour ago, talking 
about a remarkable breach of Senate protocol, where the White House 
won't let certain Senators from the Court of Appeals of the Ninth 
Circuit States to meet with the nominees for the Court of Appeals for 
the Ninth Circuit.
  That is an outrage. In my entire time in the U.S. Senate, every time 
I have requested to meet with a judge who is going for confirmation to 
the U.S. Court of Appeals for the Ninth Circuit, I have had the 
opportunity to meet with that judge, and it is really important.
  I am not going to repeat the argument I made just an hour ago, but 
there is a simple solution here: We get to meet with the nominees whom 
we are debating on the Senate floor this week, and I certainly will 
lift the objection that I am about to make on these two nominees for 
the Court of Federal Claims.
  But I do want to just push back on my good friend from Rhode Island a 
little bit. My colleagues on the other side of the aisle forced votes 
on the Court of Federal Claims nominees during the Trump 
administration, including Judge Solomon, who literally wrote the book 
on the Court of Federal Claims.
  So here is the thing. What often happens in the Senate is that what 
goes around comes around. But what happened today, when I was 
requesting what I have always been requesting--what my constituents in 
Alaska expect me to do is to interview, meet, discuss issues with the 
judge who is going to get life tenure, who is going to have enormous 
power over my constituents--Ninth Circuit Court of Appeals judges.
  I don't know anybody who has heard this--that the White House Counsel 
says: No, you are a Senator doing advice and consent, a constitutional 
duty, and we are forbidding you to meet with a judge going through the 
confirmation process who is going to have enormous power over your 
constituents. That is unheard of since I have been here. And, by the 
way, I talked to the Trump administration's White House Counsel, and 
they said they never did that.
  But here is the point. This could be easily solved. I am sure Mr. 
Bonilla and Ms. Lerner are qualified. All I need is a call from the 
White House Counsel's office saying: You know what, Senator, you can 
meet with the nominees for the U.S. Court of Appeals for the Ninth 
Circuit. We are going to let you do your constitutional duty.
  Well, thank you--pretty simple.
  And I think working closely with my colleague from Rhode Island, as I 
have done throughout my career--and he is on the Judiciary Committee. 
So maybe he can help convince the White House to take a bit of a 
different stand when a Senator wants to meet with a judge who is going 
to have enormous power over his constituents and have lifetime tenure. 
And they can't take an hour out of their time? Heck, in my speech just 
an hour ago, I put out my office's phone number and said to these 
judges: Look, you don't have to have permission from the White House 
Counsel. Just call me. Let's have a discussion.
  I am trying to do my constitutional duty here.
  So with that, Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Rhode Island.
  Mr. WHITEHOUSE. In the spirit of ``what goes around comes around,'' 
let me just say that the First Circuit is a good deal smaller than the 
Ninth Circuit. My State of Rhode Island is in the First Circuit. We 
didn't have many vacancies during the Trump administration on the First 
Circuit, and the only one we had was not filled.
  But I am not aware of any Member on our side being offered to meet 
with any Trump judicial nominee at the Circuit Court level. And 
indeed--indeed--those of us who are on the Judiciary Committee didn't 
even get our 5 or 7 minutes of time in the hearing with Trump Circuit 
Court nominees because the Trump administration worked out some kind of 
a deal that their nominees could be put on the same panel--something 
that had only been done before with the agreement of both parties.
  So they would bring in their Circuit Court nominees, and you still 
got your 5 minutes or your 7 minutes. But now there are two or three on 
the panel. You get like 1 minute each.
  So I just have to say that I like my friend from Alaska and we do 
work well together. But when I couldn't get 5 or 7 minutes in the 
committee in the hearing with a Circuit Court nominee, it is hard for 
me to feel a great sense of outrage that somebody not on the committee 
doesn't get a special private meeting with judges. We never got special 
private meetings with judges. We didn't even get our time with the 
judges in the hearing because they sandwiched a bunch of them on the 
same panel in our same 5 to 7 minutes.
  So what I would like to do is to propose, since the objection has 
been made to confirming them tonight, that at least we might consider 
moving through the cloture step so that a vote can be scheduled and 
everybody can have their vote one way or the other.
  So my first unanimous consent request would have confirmed them, and 
a call could have gone out to them and to their families tonight 
saying: The holds are off. Your life is back in order. You can go to 
the job you have been nominated for.
  And all would have been well.
  There has been an objection to that. So what I would like to do is 
simply ask that they be allowed to tee up for a vote when scheduled, 
without having to pursue the cloture path.
  So I ask unanimous consent that, notwithstanding rule XXII, if 
applicable, at a time to be determined by the majority leader in 
consultation with the Republican leader--in consultation with the 
Republican leader--the Senate proceed to executive session to consider 
the following nominations: Again, Executive Calendar Nos. 489 and 490; 
and that there be 10 minutes of debate, equally divided in the usual 
form, on the nominations, en bloc; that upon the use or yielding back 
of time, the Senate proceed to vote without intervening action or 
debate on the nominations in the order listed; that if the nominations 
are confirmed, the motions to reconsider be considered made and laid 
upon the table with no intervening action or debate; that no further 
motions be in order regarding the nominations; and that the President 
be immediately notified of the Senate's action.
  Again, this would not confirm them tonight. Their families will not 
get this call. But they are freed from our little Executive Calendar 
traffic jam. But it would at least put them on a pathway toward 
confirmation.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Alaska.

[[Page S9117]]

  

  Mr. SULLIVAN. Mr. President, reserving the right to object.
  I have a simpler solution here, and I have already mentioned it.
  The White House has denied my ability to meet with one Ninth Circuit 
judge who just got confirmed. Let me meet with the next two, and then 
we will UC these. We will UC these nominees whom Senator Whitehouse has 
been trying to move forward tonight.
  I also want to mention to my colleague from Rhode Island that I am 
certainly more than amenable to working with him on a principle that, I 
think, all Senators should agree on--all of us--to strengthen this 
institution, whether you are a Democrat, a Republican. That is this 
simple idea, which I thought existed here because I have certainly been 
able to do it: If a judge is up for confirmation, a circuit judge, and 
if you are a Senator representing one of the States in the circuit and 
that judge is going to have enormous power over your constituents for 
life, we should, as a general rule, as a general principle, say always: 
Of course, you get to meet with that judge. Of course, you can do your 
constitutional advice and consent duty.
  I would be for it for any Democrat who wants it if there is a 
Republican. Again, I talked to some folks from the Trump administration 
today. They said that they always offered that. So maybe there is a 
misunderstanding. I don't want to say that my Senate colleague from 
Rhode Island is not right or those guys. I don't know. That is what 
they mentioned to me.
  I just think, as a principle, every Senator here should agree with 
it. Why wouldn't you want to do that?
  Like I said, until today, I have met with every single Ninth Circuit 
judge whom we voted on in my entire career here. Now, it has been a 
relatively short career, but this is really important to the people I 
represent because that court is really important to the people I 
represent. The Ninth Circuit so frequently gets the law wrong as it 
relates to Alaska, and it negatively impacts my constituents. This is 
important.
  So I object to this date certain request, but as I mentioned, if I 
can meet with these--two more--Ninth Circuit judges, Senator Whitehouse 
can come down here and UC these two Court of Federal Claims judges, and 
I think he can move it. It is a real simple ask.
  And the fact that the White House Counsel hasn't even called me 
back--a U.S. Senator trying to do his constitutional duty, advice and 
consent of the Senate? The Senator from Rhode Island and I are of the 
Senate.
  So why don't we work on this principle that, if there is a nominee, a 
circuit judge nominee, and if a Senator from a State in that circuit 
wants to meet with that nominee--to do his constitutional duty--that we 
should all agree to do that no matter who is in the White House. I 
would agree to that principle in a heartbeat.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I think we have concluded this matter 
for the evening, and I am sorry that it has ended this way because Mr. 
Bonilla and Ms. Lerner are essentially collateral damage in a fight 
that does not involve the Court of Federal Claims at all. This involves 
a dispute between the Senator from Alaska and the White House, whom I 
do not direct and whom I do not speak for.
  Instead of keeping it within the confines of the Ninth Circuit, it 
has now spilled over to the Court of Federal Claims, and these two 
completely unrelated individuals are continuing to have their lives 
interfered with by being kept in the traffic jam for a principle that, 
in my view, was never followed in the previous administration. I mean, 
for Pete's sake, if they were not going to even let us have our 
official time with a circuit court judge, the idea that we were going 
to get private meetings is, I think, imaginative in the extreme.
  I just regret that it has come to this pass. I regret that we are at 
159 obstructed nominees backed up. I regret that we have been forced to 
file cloture twice as much as that first group of Trump's nominees, in 
his first year--and there were some real beauties there, I have got to 
tell you.
  With that, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Smith). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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