[Congressional Record (Bound Edition), Volume 156 (2010), Part 5]
[Senate]
[Pages 5902-5915]
[From the U.S. Government Publishing Office, www.gpo.gov]




  THOMAS I. VANASKIE TO BE UNITED STATES CIRCUIT JUDGE FOR THE THIRD 
                                CIRCUIT

  The ACTING PRESIDENT pro tempore. The clerk will report the next 
nomination.
  The legislative clerk read the nomination of Thomas I. Vanaskie, of 
Pennsylvania, to be United States Circuit Judge for the Third Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 3 hours of debate on this nomination. Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, the Senate just devoted more than 3 hours 
to the nomination of Chris Schroeder. I am glad that after many months 
the Senate has finally been allowed to act on that nomination and 
gratified that he received a bipartisan confirmation vote. After months 
of delay no Republican came to the Senate to speak in opposition to the 
nomination in the 3 hours that Republicans insisted be set aside to 
debate it. Senator Kaufman spoke in favor; I spoke in favor. Not a 
single opponent came to debate. That wasted more of the Senate's time 
when we should be considering other matters. We could be debating Wall 
Street reform, patent reform, or clearing the way for some of the other 
100 Presidential nominations being stalled. We should have been.
  With respect to the President's judicial nominees, we are well behind 
the pace I set as chairman when the Senate was considering President 
Bush's nominees during the second year of his Presidency. By this date 
in President Bush's second year, the Senate, with a Democratic 
majority, had moved ahead to confirm 45 of his Federal circuit and 
district court judges. So far during President Obama's Presidency, 
Senate Republicans have only allowed votes on 18 of his Federal circuit 
and district court nominations. During the first 2 years of President 
Bush's Presidency we moved forward to confirm 100 of his judicial 
nominees. Republican obstruction of President Obama's nominations makes 
it unlikely that the Senate will reach 50 such confirmations. Last year 
they allowed only 12 Federal circuit and district court nominees to be 
confirmed, the lowest number in more than 50 years.
  Today, thanks to the perseverance of the majority leader and the 
Senators from Pennsylvania, we will consider and I hope confirm the 
19th of President Obama's Federal circuit and district court nominees, 
Judge Thomas Vanaskie. It has been more than 4 months since Judge 
Thomas Vanaskie's nomination to fill a judicial emergency on the U.S. 
Court of Appeals for the Third Circuit was reported favorably by the 
Judiciary Committee with strong bipartisan support. His nomination has 
the support of both of his home State Senators, Senator Specter and 
Senator Casey. He has more than 15 years of Federal judicial experience 
having served as a district court judge in Pennsylvania since 1994. The 
American Bar Association Standing Committee on the Federal Judiciary 
has unanimously rated him well qualified to serve as a circuit judge on 
third circuit. His nomination is not controversial. Yet, it has taken 
months to get consent from the other side for an up-or-down vote on 
Judge

[[Page 5903]]

Vanaskie's nomination and that did not occur until the majority leader 
was forced to file cloture to end the stalling. Judge Vanaskie is one 
of the 25 judicial nominees still being stalled from final Senate 
consideration.
  I appreciate the significant steps taken by the majority leader to 
address the crisis created by Senate Republican obstruction of the 
Senate's advice and consent responsibilities. Their refusal to promptly 
consider even the most noncontroversial nominations is a dramatic 
departure from the Senate's traditional practice of prompt and routine 
consideration of noncontroversial nominees. The majority leader's 
decision to file cloture was an unfortunate but necessary step, 
resulting from Senate Republicans' refusal month after month to join 
agreements to consider, debate and vote on this nomination. Those 
practices have obstructed Senate action and led to the backlog of 
almost 100 nominations pending before the Senate, awaiting final 
action. These are all nominations favorably reported by the committees 
of jurisdiction. Most are nominations that were reported without 
opposition or with a small minority of negative votes. Regrettably, 
this has been an ongoing Republican strategy and practice during 
President Obama's Presidency.
  The vote on the confirmation of Judge Vanaskie's nomination is the 
first vote on judicial nominations that the Senate will hold in 5 
weeks. Despite the dozens of judicial nominations ready for Senate 
consideration, none has been allowed to move forward for over a month 
to fill longstanding vacancies in the Federal courts. Of the 25 pending 
judicial nominations, 18 were reported from the Senate Judiciary 
Committee without any Republican Senator voting against. I have been 
urging the Senate Republican leadership for months to allow votes on 
these noncontroversial nominations and to enter into time agreements to 
debate the others. We need to clear the backlog of nominations and move 
forward.
  I am pleased that the Senate tomorrow will consider another judicial 
nomination, that of Judge Denny Chin to the Second Circuit Court of 
Appeals. His nomination was reported by the Judiciary Committee 
unanimously, but it has also been stalled from Senate consideration for 
more than 4 months. Senate Republicans should lift their secret holds 
and also allow votes on the remaining 23 judicial nominations currently 
pending final action by the Senate. If we are allowed to act on the 
judicial nominations reported favorably by the Senate Judiciary 
Committee but on which Senate Republicans are preventing Senate action, 
we will more than double the number of judicial nominations confirmed 
by the Senate this Congress, and bring the number of confirmations in 
line with the number we confirmed at this point during President Bush's 
first two years in office.
  Judicial vacancies have skyrocketed to over 100, more than 40 of 
which have been designated ``judicial emergencies.'' Caseloads and 
backlogs continue to grow while vacancies are left open longer and 
longer. On this date in President Bush's first term, not only had the 
Senate confirmed 45 Federal district and circuit court judges but there 
were just seven judicial nominations on the calendar. All seven were 
confirmed within 9 days. By the end of this month, which is nine days 
from now, we should clear the backlog that Republican obstruction has 
created and vote on the judicial nominations stalled on the Senate 
Executive Calendar.
  By this date during President Bush's first term, circuit court 
nominations had waited less than a week, on average, before being voted 
on and confirmed. By contrast, currently stalled by Senate Republicans 
are circuit court nominees reported by the Judiciary Committee 5 months 
ago, in November of last year. The seven circuit court nominees the 
Senate has been allowed to consider so far have waited an average of 
124 days after being reported before being allowed to be considered and 
confirmed.
  Judge Vanaskie was born and raised in Shamokin, PA. He is one of 
seven children raised by two working parents. He graduated magna cum 
laude from Lycoming College in 1975 and cum laude from Dickinson School 
of Law in 1978, where he was an editor of the law review. After law 
school, he spent 2 years as a law clerk to the Honorable William J. 
Nealon, then Chief Judge of the United States District Court for the 
Middle District of Pennsylvania. Prior to joining the Federal bench, 
Judge Vanaskie spent 14 years in private practice.
  In 1994, Judge Vanaskie was confirmed by voice vote to serve as a 
United States District Court Judge for the Middle District of 
Pennsylvania. He served as the Chief Judge of the Middle District from 
1999 to 2006, and has sat by designation with the Third Circuit Court 
of Appeals on several occasions. He has also served as cochair of the 
Third Circuit Library Resources Task Force and as a member of the Board 
of Directors of the Federal Judges Association. He is presently the 
chair of the Third Circuit Judicial Council's Information Technology 
Committee. His work in the area of technology in the courtroom has won 
him widespread admiration and appreciation.
  I congratulate Judge Vanaskie and his family on what I expect will be 
strong bipartisan vote in favor of his confirmation to serve on the 
Third Circuit. It is long overdue.
  The ACTING PRESIDENT pro tempore. The Senator from North Carolina.


                     Nominees Jim Wynn and Al Diaz

  Mrs. HAGAN. Mr. President, there are two judicial nominees on the 
calendar from North Carolina who I believe would be confirmed by this 
body overwhelmingly. Judges Jim Wynn and Al Diaz, nominees for the 
Fourth Circuit Court of Appeals, were both approved by the Senate 
Judiciary Committee in January. Judge Diaz had the vote of every single 
member of the committee, and just one Senator opposed Judge Wynn.
  The reality of this situation, though, is that North Carolina has 
been waiting for one of these judges since 1994. That is 1994. Since 
then, there has been only one judge from North Carolina on the 15-judge 
panel of the Fourth Circuit Court of Appeals, even though North 
Carolina is the largest and fastest growing of the five States in the 
Fourth Circuit. Partisan bickering has continually blocked qualified 
North Carolinians from confirmation since the court's establishment 
back in 1891.
  But in consultation with both me and Senator Burr, the President has 
appointed two highly qualified, experienced, and fairminded North 
Carolina judges: Al Diaz and Jim Wynn. Judge Diaz, of Charlotte, a 
Business Court judge, handles extremely complex business cases. Before 
that, he was a State superior court judge. Judge Wynn, of Cary, is a 
19-year veteran of the North Carolina Court of Appeals and formerly 
served on the North Carolina Supreme Court. The American Bar 
Association has given them both its highest possible rating. They both 
have served our country in the military. They have the support of 
Democrats and Republicans, including my North Carolina Senate 
colleague, Senator Richard Burr. They have no real opposition that I am 
aware of.
  Finally, we have not one but two qualified and bipartisan choices to 
serve North Carolina and our country on the Fourth Circuit. I am 
hopeful that we are close to confirming these two outstanding nominees 
for the Fourth Circuit. I will continue working with my colleagues to 
ensure they are confirmed as swiftly as possible.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is 
recognized.
  Mr. CASEY. Mr. President, I rise today to speak about the nomination 
we are considering in the next few hours, which is the nomination of 
Judge Thomas I. Vanaskie.
  I can't tell you how proud I am to talk about his nomination. I have 
known him for a long time. I think it goes without saying that--and I 
join a lot of people who have spoken about him already and know him--I 
strongly support his nomination and confirmation for a seat on the 
United States

[[Page 5904]]

Court of Appeals for the Third Circuit. Tom Vanaskie is a legal 
scholar, he is fair minded, and he has unquestioned integrity and 
ability. He is an experienced Federal judge since his appointment in 
1994. On top of all that, he is a decent, compassionate man.
  The Standing Committee on the Federal Judiciary of the American Bar 
Association has unanimously rated Judge Vanaskie well qualified to 
serve as a judge on the United States Court of Appeals for the Third 
Circuit.
  Judge Vanaskie's biography highlights both his scholarly and 
professional accomplishments and the highest esteem in which he is held 
by his colleagues in the legal profession. He graduated magna cum laude 
from Lycoming College in Williamsport, PA, where he was also an 
honorable mention all-American football player, a first-team academic 
all-American, and he was the college's outstanding male student 
athlete, and the recipient of the highest award given to a graduating 
student.
  Then he went to Dickinson School of Law in Pennsylvania, from which 
he graduated cum laude in 1978, where Judge Vanaskie served as an 
editor of the law review and received the M. Vashti Burr award, a 
scholarship given by the faculty to the student deemed ``most 
deserving.''
  After graduating from law school, Judge Vanaskie served as a law 
clerk for Judge William J. Nealon, chief judge at the time of the U.S. 
District Court for the Middle District of Pennsylvania.
  Judge Vanaskie practiced law for two highly regarded Pennsylvania law 
firms before his appointment to the United States District Court for 
the Middle District of Pennsylvania in 1994. He became the Middle 
District's chief judge 5 years later, in 1999, and completed his 7-year 
term in that capacity in 2006.
  He was appointed by Chief Justice Rehnquist to the Information 
Technology Committee of the Judicial Conference of the United States, 
where he served as chairman for 3 years. He also participated in 
several working groups at the Administrative Office of the U.S. Courts, 
most recently on the Future of District CM/ECF Working Group, tasked 
with determining the design and development of the next generation of 
the Federal judiciary's electronic case filing program.
  Finally, he is an adjunct professor at Dickinson School of Law and 
has been active in civic and charitable endeavors in northeastern 
Pennsylvania. Like me, he is a northeastern Pennsylvania native and 
resident.
  Just a few accolades about his service from a wide variety of people. 
We could read a number of these. I will highlight a few: Lawyers who 
have appeared before Judge Vanaskie have expressed tremendous respect 
for his intellectual rigor and the disciplined attention he brings to 
the matters before him.
  One attorney, who tried over a dozen cases before Judge Vanaskie, has 
described him as ``objective, fair, analytical, dispassionate, 
extraordinarily careful, and very respectful of appellate authority.'' 
This same lawyer, the same practitioner, said he had not always agreed 
with Judge Vanaskie's decisions, but he always felt his rulings 
reflected what the judge considered to be the most appropriate result 
and the result that he was obligated to impose under the law.
  A U.S. district court judge, William J. Nealon, for whom he clerked, 
described him as follows:

       Superbly qualified. He's outstanding, he's brilliant, he's 
     objective, and he's tireless.

  Judge Vanaskie recognizes that for many citizens, his decisions will 
be the final word on their claims before the court. He treats people 
with respect and honors their right to be heard. His deep understanding 
of and respect for the rule of law will serve him well in ruling on 
cases and authoring opinions that will be influential in the Third 
Circuit Court of Appeals and beyond.
  For all these reasons and many others, I am proud to stand in support 
of Judge Vanaskie and urge his confirmation today.
  With that, I ask unanimous consent that all quorum calls during the 
controlled time on the Vanaskie nomination be equally divided.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. CASEY. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. CASEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CASEY. Mr. President, I ask unanimous consent that I be permitted 
to speak as in morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                      Financial Regulatory Reform

  Mr. CASEY. Mr. President, I rise today to talk about a major issue 
that will be before the Senate very shortly, and which we have spent 
some time on in the Agriculture, Nutrition and Forestry Committee over 
many weeks and days, but most recently today in a markup. I will talk 
about that in a couple moments.
  It is time that the Senate, in the next couple of days and weeks, 
focuses on passing comprehensive reform measures that will put an end 
to Wall Street's reckless endangerment of our economic system. For too 
long--in fact, for many years now--we have allowed this system to be in 
place, where high-risk deals were cut on Wall Street. Some people made 
a lot of money, but our economy went into the ditch because of it.
  It wasn't always like that. For decades following the Great 
Depression, we enjoyed a financial system that worked--worked for 
American families and small businesses. It is pretty simple when you 
think about it, and it has been successful at the same time. Local 
banks, operating in communities across the Nation, took deposits and 
made loans for homes, cars, or businesses. People knew their bankers 
and their bankers knew them. Each party was invested in the success of 
the other. During this time, our economy thrived. It experienced 
prolonged growth and innovation. These benefits were felt across the 
board by people across our economy and our country.
  Let's contrast that period of growth and shared prosperity with what 
has happened in the last few years, and even over the last 30 years. 
This most recent period can be characterized by the massive growth of 
the financial sector.
  In 1978, commercial banks held $1.2 trillion in assets, equivalent to 
53 percent of gross domestic product. By the end of 2007, that same 
measurement, what commercial banks held in assets, had grown to $11.8 
trillion or 84 percent of gross domestic product. So the percentage 
went from 53 to 84, and the number went from $1.2 trillion to $11.8 
trillion in assets. Unlike the preceding period, this growth was not 
spread across the real economy to households and businesses. Instead, 
it was explicitly shifted away from families and communities and 
concentrated on Wall Street.
  The impact of this concentration has been acute. People used to rely 
on local institutions, but they now face a financial service 
marketplace dominated by a few banks with retail outposts sprinkled 
across the country.
  Instead of supporting small businesses, little league teams, or 
families, as did their local predecessors, these megabanks gather 
deposits from Main Street and then slice and dice them and leverage 
them to the hilt and use the hard-earned wages and savings of Americans 
to make a handful of people very rich.
  Make no mistake about it, the megabanks profited tremendously from 
this new model. Over the last 30 years, profits and compensation in the 
banking industry have skyrocketed. From 1948 to 1979, the average 
compensation in the banking sector was more or less the same as any 
other job in the private sector. Today, bankers earn, on average, two 
times what other private sector employees take home.
  Simply stated, American families and small businesses are no longer 
the

[[Page 5905]]

customer in this broken system. Instead, these institutions function to 
make wealth for themselves and their stockholders.
  A clear example of this can be found in recent news stories detailing 
the record profits of these megabanks--record profits in a time of 
historically high unemployment and a bad economy. These profits were 
not made through savvy lending to their customers. In fact, in the case 
of JPMorgan Chase, Citigroup, and Bank of America--three of our largest 
megabanks--they have cut lending through a key Small Business 
Administration lending program by between 85 and 90 percent from 1 year 
to the next.
  These multibillion dollar profits have been made through high-risk 
trading operations with money deposited by families and businesses. The 
banks are expecting people in our communities to shoulder all of the 
risk, while getting none of the upside.
  Something has to give in this situation. These megabanks, these big 
companies, are entitled to make profits, but we will no longer allow 
them to continue to use the federally insured deposits of working 
people as capital for their money-making schemes. We need commonsense 
rules that separate conventional commercial banking operations from 
high-risk financial gambles.
  In no area is this need for reform more apparent than in the so-
called derivatives market. A derivative is a high-risk bet that the 
value of another financial instrument, or commodity, or other product 
will go up or down. It is a bet. For years, Wall Street fought and won 
the battle to keep derivatives unregulated. In this highly unregulated 
market, Wall Street could place bets on bets, without backing them up. 
Therefore, when the underlying weakness of assets became apparent, the 
derivatives market went bust--along with it, the Wall Street banks 
playing in the market, causing the need for the massive bailout of 
these institutions.
  To prevent another catastrophe, we need a strong regulation of the 
derivatives market. Today, the Senate committee of which I am a member, 
the Committee on Agriculture, Nutrition and Forestry, had a markup 
session. What we are talking about is members of the committee talking 
on amendments and then voting for final passage of the bill out of 
committee. That is a markup. We had that markup session today on the 
Wall Street Transparency and Accountability Act of 2010.
  I applaud our chairwoman, Senator Lincoln, for her work on putting 
forth a bill that cracks down on the reckless activities of Wall 
Street. I also commend her and other members of the committee for 
reporting it out of committee so we can incorporate it into the Banking 
Committee bill we will be considering on the floor soon.
  The Wall Street Transparency and Accountability Act of 2010 will add 
those two important words to our financial system, both transparency 
and accountability. In particular, it will impose it on the derivatives 
market, No. 1, by requiring that derivative transactions--most of 
them--be cleared through a central clearinghouse; second, require real-
time reporting, similar to a stock exchange, of the transactions that 
parties are entering into.
  Besides a more transparent market, the most important provision in 
this bill is the requirement that commercial banks that have FDIC-
insured accounts can no longer trade on the derivatives market. This 
provision will force commercial banks to refocus on what should be 
their No. 1 priority--the customer--instead of just profits and their 
own stockholders.
  Our current financial system is broken and no longer works for 
families and small businesses. When I travel across the Commonwealth of 
Pennsylvania, I often hear about the financial difficulties people are 
experiencing. We have close to record-high unemployment, 582,000 people 
out of work. A lot of people lost their jobs or their homes or both, 
and, in so many ways, their hopes and their dreams. Then they read in 
the paper every day it seems about record profits of these big 
megabanks.
  They think: What about me and my family? Why can't I get a loan? They 
will ask people like me: Why is the interest rate being raised on my 
credit card? Questions such as these have persisted for so long now. 
Did we not bail out these megabanks on Wall Street already so they can 
continue to lend money to people like me or their customers? Those are 
the questions I get.
  The answers to each of these questions are the same. These 
institutions have failed the American people. It is that simple. By 
extension, they have helped to collapse our economy. Thank goodness we 
are starting to turn, seeing some job growth in our economy. But we 
need financial institutions that focus on the needs of our families and 
our small businesses once again.
  Senator Lincoln's bill is a step in the right direction. We are not 
there yet. With that bill and with the work we will do on the Banking 
Committee bill, we can begin to restore not only transparency and 
accountability and sunlight, but I believe we can restore some measure 
of confidence in our financial system and make it work better for real 
people, for families, and for small businesses and also to strengthen 
our economy.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Merkley). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Financial Regulatory Reform

  Mr. DODD. Mr. President, I wish to take a few minutes this afternoon, 
if I may, to discuss further the efforts in financial regulatory 
reform.
  I would be remiss if I did not note the contribution of the Presiding 
Officer to this effort. I thank him personally once again. He is a 
member of the Banking Committee and has expressed strong interest in 
this legislation and various parts of it, and I thank him for it.
  Today I wish to talk about aspects of the bill. I have been talking 
about this bill on the floor over the last several days, issues such as 
too big to fail, which we aggressively address in our legislation. I 
talked about the efforts that have been made to try to forge a 
comprehensive bill, a strong bill. We have involved, we have invited 
virtually everyone interested to participate in the product. I am proud 
to say many did offer their ideas and thoughts as we tried to develop a 
proposal that was not only strong and broad based but attracted, again, 
a strong group of our colleagues, both Democrats and Republicans, to 
this effort.
  Over the days, we have spent a lot of time discussing the impact of 
Wall Street reform on large financial firms, big banks, investment 
banks, nonbanks, corporate executives, Federal regulators, and other 
power players in the financial sector--that has been the subject of a 
great deal of attention--and the complicated subject matters of 
derivatives--how they work, how they apply--shadow economies, black 
pools, systemic risk--all this language and discussion that sometimes 
can leave the average citizen feeling as though we are talking in a 
foreign language about these matters.
  The question they ask is: How does this affect me? I am glad you are 
going to try to clean this up, but what is happening with all of this 
that has some positive impact on my life as a taxpayer, as a working 
American? I would like to know what is being done to see to it that my 
interests are going to be considered as you are trying to resolve all 
of these larger questions that somehow seem very distant to my concerns 
every day.
  Today I wish to take a few minutes to talk about the impact of this 
legislation on millions and millions of our fellow citizens who are not 
financial wizards--and would be the first to tell you so--they are not 
big wigs on Wall Street, major players in large banks and financial 
institutions. They are people just trying to build a nest egg for their 
families, invest in their futures, maybe take a loan out to buy an 
automobile, a home, send a child to college because that child has done 
everything they have asked them to do over the years and now wants to 
go on to that educational opportunity and needs the resources to do so.

[[Page 5906]]

  The stories are myriad. There are many. The demands are obviously 
clear. Unfortunately, as we know and many Americans found out the hard 
way over the last few years, our current financial system leaves 
consumers too often vulnerable to being deceived into purchasing risky 
products, if not outright ripped off by greedy Wall Street firms and 
others. After all, at the heart of the financial crisis that has cost 
our Nation so dearly were the subprime mortgages sold by unscrupulous 
lenders to Americans who did not understand their terms and who never, 
ever could have afforded them, and the lenders knew it. They knew going 
into it. Yet they lured them into those arrangements, with great damage 
done to individuals and to the economy as a whole.
  Wall Street's unquenchable thirst for profits and utter disregard for 
ordinary consumers led to a pattern of greed and recklessness that darn 
near led to creating a complete collapse of our financial markets and 
our economy. Millions of Americans lost their jobs, around 8.5 million. 
Seven million homes have gone into foreclosure, many lost forever. 
Retirement earnings, as I have said over and over, evaporated in some 
cases almost instantaneously as a result of the collapse of our 
economy. Maybe more important than all of that--as hard as it is if you 
lost your home, your job, your health care--is they lost their faith 
and sense of optimism and confidence in our financial system in this 
country, that loss of confidence, that loss of optimism, that loss of 
belief that while you may make a bad bet on a stock, the system was 
sound and fair. It would treat you fairly, and you were not going to 
get hurt because we had a good system in place. That confidence, that 
faith has been lost. That may be more important than everything else I 
have mentioned in terms of the future strength of our economy and our 
country.
  To add insult to injury, those same Americans then saw those same 
firms collecting billion-dollar bailouts at the expense of the 
taxpayer--and paying million-dollar bonuses to the same executives 
whose bad decisions put us in the mess in the first place and who would 
have been out of a job had the bailout not occurred.
  The bailout allowed those financial institutions to survive and their 
expression of gratitude was to write themselves a huge bonus check and 
being able to do so only because in this Chamber we voted 75 to 24 to 
stabilize our financial system--a decision I believe was the right one. 
I think we made the right call in doing it, as difficult as it was. But 
at the end of all that, major executives in these companies then 
rewarded themselves as the head of these institutions because we--
mostly the taxpayers, by the way--came up with the resources to make it 
possible for those institutions to survive.
  So the American people are angry and with good reason. But they are 
also wondering: Who is looking out for us? Whose job is it to make sure 
this doesn't happen again? While our current system pays lip service to 
consumer protection, those responsibilities are divided among some 
seven different regulators for whom consumer protection is just an 
afterthought, in too many cases, to their primary safety and soundness 
missions that they are responsible for as well. The result is, 
regulators put the interests of banks and large financial institutions, 
in too many cases, before the interests of the consumers who rely on 
those institutions for their long-term economic security.
  If this sounds like a recipe for failure, that is because it is. 
Assistant Secretary of the Treasury Michael Barr testified before our 
Banking Committee not long ago, and he said:

       Today's consumer protection regime just experienced massive 
     failure. It could not stem a plague of abusive and 
     unaffordable mortgages and exploitative credit cards despite 
     clear warning signs. It cost millions of responsible 
     consumers their homes, their savings, and their dignity. And 
     it contributed to the near collapse of our financial system. 
     We did not have just a financial crisis, we had a consumer 
     crisis.

  That massive failure could happen again. Today, we are in no 
different position than we were in 2007, 2008, and 2009. Nothing has 
changed. Yet we are on the brink of creating change that could make a 
difference in this very area. So today those massive failures are still 
lurking out there, and the same consumers who lost their homes, lost 
their jobs, lost their retirement, lost their health care are in no 
different position should another crisis happen tonight or tomorrow. It 
is exactly the same system, exactly the same structure, exactly the 
same so-called regulators out there charged with protecting consumers 
from the kinds of problems that led us to the difficulties we are in 
today. Again, the financial products and practices being devised on 
Wall Street, even as we speak, will make it even more difficult in many 
ways. Are they safe? Are they exploitative? We have no idea, and 
neither do the American people because no one is looking out for them 
at this juncture.
  Our legislation answers the question of who is looking out for 
ordinary Americans when they interact with our financial systems. The 
bill we will present to our colleagues in just a matter of hours in 
this Chamber creates an independent Consumer Financial Protection 
Bureau, a watchdog with bark and with bite. This new bureau will not 
have any job more important than helping American consumers make smart 
financial decisions--because protecting, educating, and empowering 
American consumers will be their only job.
  This bureau will have an independent Director, appointed by the 
President and confirmed by the Senate. It will have a dedicated and 
independent budget paid by the Federal Reserve Board. It will be 
empowered to write consumer protection rules governing any institution, 
whether it is a bank or a payday lender that offers consumer financial 
services or products. It will have a new Office of Financial Literacy 
to ensure that consumers are able to understand the products and 
services they are being offered and a national toll-free consumer 
complaint line so, for the first time, Americans have somewhere to go 
when they need to report a problem.
  When I talk to people back in my home State, they understand it is 
their responsibility to make smart decisions about their family 
finances, and nothing in our bill suggests otherwise. That is the first 
line of defense, so we all bear responsibility to learn more, to pay 
attention, and to understand the financial arrangements we are getting 
into. I am not saying anything different. Unlike Wall Street, they are 
not looking to shirk that responsibility. They welcome that 
responsibility, but they would like to understand it better. What they 
need is clear, accurate information so they can make those good 
decisions and a cop on the beat to stop abusive practices when they 
occur. That is what our legislation, which will soon be before this 
body, does.
  Our legislation finally puts consumers in control of their financial 
lives by requiring large financial institutions and credit card 
companies to tell them what they are selling in plain English so the 
purchaser doesn't need a master's in business administration to 
understand. It will finally put an end to the practices that have 
become almost standard operating procedure--skyrocketing credit card 
interest rates, the explosion of overdraft fees, predatory lending by 
mortgage firms, and more.
  This Congress has taken steps to address these abusive practices, 
passing the Credit CARD Act, which was authored by the members of our 
committee--again, I thank the Presiding Officer for having been a part 
of that--and forcing large banks to change their overdraft fee 
policies.
  But credit card companies continue to look for ways around the new 
rules, and history shows them to be pretty good at getting away with it 
as well.
  Between 1997 and 2007--in that decade--credit card companies engaged 
a wide variety of, frankly, unethical practices--from so-called double-
cycle billing and universal default to retroactive and arbitrary 
interest rate hikes. In that entire decade--a decade

[[Page 5907]]

in which literally millions of our fellow citizens were overcharged or 
outright ripped off by these banks--there were just nine formal 
enforcement actions taken by the seven regulators in our national 
government. Let me repeat that. In that entire decade--when nearly 
every single citizen in this country could talk about one horror story 
after another, where rates were increased, fees were enlarged, and 
every gimmick and trick was used to squeeze every last nickel out of a 
consumer's pocketbook--there were only nine formal enforcement actions 
taken by the regulators at the national level.
  There are stories similar to the one I heard from Mario Livieri of 
Branford, CT. Mario is a 75-year-old retired homebuilder who 
accidentally overdrew his account by $2. I am not making this up. Mario 
is 75 years old and a small business contractor. He overdrew his 
account by $2 and was charged $35. The bank took several days to notify 
him that the account was overdrawn. In the meantime, of course, 
additional minor purchases yielded three additional $35 fees, for a 
total of $140, which Mario Livieri was charged because he was $2 
overdrawn in his banking account.
  Unfortunately, that story by this individual in my State can be 
repeated millions of times all across the country. A $2 mistake made by 
a conscientious individual, and one that he was unaware of until 
notified later, and every subsequent purchase he made brought an 
additional $35 fee until he had a bill--before he discovered the 
mistake--of $140 because of being $2 overdrawn. That used to go on all 
the time, and in too many cases it still does. When Mario protested, 
the bank waived one of the four $35 charges, but they told him there 
was nothing he could do to fight the fees because the practice was 
perfectly legal.
  Then there are the auto dealers that have been shown to take 
advantage of military servicemembers, the shady payday lenders that 
prey on minority communities, and a wide range of malicious actors who 
look to take advantage of American consumers. This bill that will be 
before this body, which passed out of our committee, puts an end to 
those abuses, and that is why it is supported by the Military 
Coalition, civil rights groups, consumer rights groups, and more. It is 
also why it is opposed by large financial institutions whose business 
strategies are based too often on taking advantage of their very own 
customers.
  Let me take a moment to put an end to some of the malarkey we have 
been hearing from the Wall Street crowd. The large banks are paying for 
ads now claiming that this legislation will impose new restrictions on 
dentists and butchers and other Main Street merchants. That is not 
true. You and I know this. But that kind of falsehood that goes out 
across the country is exactly the kind of propaganda they are 
determined to engage in to undermine this legislation.
  These rules we have crafted apply only to firms engaged in offering 
consumer financial services or products, not the butcher, not the 
laundromat, and not the dentist. An entity must be engaged in financial 
services or products. Just because your butcher lets you keep a tab or 
your dentist offers a payment plan doesn't mean these new rules apply.
  Moreover, this legislation doesn't seek to strangle innovation in the 
financial sector. Quite the opposite. That innovation is part of what 
keeps America prosperous. We are not dictating what products can be 
offered any more than the Consumer Product Safety Commission directs 
what toymakers can invent. But just as the Consumer Product Safety 
Commission watches out for toys that could hurt children, the 
independent Consumer Financial Protection Bureau will watch out for 
products that will hurt someone's finances so customers and consumers 
can make smart decisions.
  The large financial institutions have tried to push this notion that 
this legislation creates an enormous burden on small community banks. 
Let me address that. How nice of them to look out for their 
competitors, the ones they have been trying to drum out of business for 
decades. But the fact is, the small community banks with $10 billion or 
less in assets will not see any regulatory changes. They will not be 
charged any fees or assessments. They will follow the same rules they 
follow today. Even better, these small community banks will be able to 
operate on a level playing field without the unfair competition from 
the underregulated or unregulated shadow banks that don't operate with 
any rules whatsoever.
  So this legislation has many important objectives, from ending 
taxpayer bailouts to establishing an early warning system so future 
financial crises can be nipped in the bud before they threaten our 
entire economic system. But for millions of Americans who don't pay 
much attention to what goes on, on Wall Street, except when they have 
to write a check to bail out the firms that live there, perhaps nothing 
in this bill will impact their lives more directly than the new 
independent Consumer Financial Protection Bureau. Finally, there will 
be a cop on the beat watching out for them.
  The safety and soundness of our financial institutions are critically 
important. I am not arguing against that at all. But that is not the 
only consideration. As this real estate bubble was building up, we were 
told over and over that the system was safe and sound. Why? Because 
people were making money. It was growing in profits. What we failed to 
look at and understand was it may have been safe and sound from that 
narrow perspective, but for the consumers who were relying on these 
financial institutions for their economic security, it was anything but 
safe and sound. With the establishment of this bureau, for the first 
time in the history of our country, we are saying that financial 
products ought to be no different than any other product consumers buy. 
There ought to be a place where someone can go when they have been 
deceived or defrauded in the use of these financial products.
  If your lawnmower breaks or your car malfunctions, we get all sorts 
of reports, as recently seen with recalls of products because they are 
unsafe for a consumer to use. Why shouldn't that also exist if someone 
is out there purchasing a financial product that could put them in 
great danger--in fact, bankrupt them and ruin their life because they 
have been deceived and drawn into a financial arrangement because it 
was a quick profit-making operation for the lender, but it put the 
consumer at great risk--and ultimately causes, as we have seen in 
millions of cases, the ultimate financial ruin of individuals, 
families, and businesses. Thus, we have established a parity between 
physical products you may buy and financial products you may engage in.
  Finally, Americans will be able to rely on clear and accurate 
information about their family finances. They will know that someone 
will be looking out for them. There is no better way to restore faith 
against the loss of homes, the loss of jobs, the loss of retirement--
all of which have occurred--and perhaps the greatest tragedy of all 
being the loss of faith in our financial system. We need to restore 
that. The absence of that will not make this get better. Every single 
other thing we do will not achieve its goal if Americans don't have 
confidence in our financial systems--the faith that it is there, it is 
safe; that they can be secure in the knowledge that when they deposit a 
hard-earned paycheck, when they buy an insurance policy, when they buy 
a stock, when they engage in financial activity, the structure, the 
system there is not unfair. It is not out there to deceive them, to 
defraud them, to take advantage of them, but to see to it they are 
protected. That is our goal in this bill.
  My hope is that my colleagues will allow us to get to this debate. If 
you have objections or ideas, let's have that full-throated debate that 
has been the history of this Chamber on important matters that have 
come before us in the past. We ought not be denied that opportunity 
again on this bill.
  But I wanted to take a moment to talk about the consumer protection 
efforts on this legislation, and I again compliment my colleague in the 
chair,

[[Page 5908]]

the Presiding Officer, because he has been a champion in our short 
service together on this committee on the very issues I have addressed 
today, and I thank him for his commitment and passion for these issues.
  I yield the floor, and I see my colleague and friend from Arizona, so 
I will not note the absence of a quorum.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, before I begin talking about this bill 
specifically, I wish to compliment Chairman Dodd for the hard work he 
has put into this matter. I believe it is important for us to reach a 
bipartisan consensus, and many of the things we just discussed are 
matters on which we can reach a consensus. That is the goal of 
Republicans.
  I am concerned that there has been some politicization of this issue 
by many on the other side and, frankly, some in the administration. I 
know, for example, that Senator Chambliss, a Republican, and Senator 
Lincoln, a Democrat, worked very closely together and had virtually, I 
am told, reached an agreement on the derivative issue as it pertains to 
the jurisdiction of their Agriculture Committee, only to be told by the 
White House that was not acceptable and that Chairman Lincoln needed to 
go back and redo it the way they wanted it done. As a result, the bill 
was passed out of the Agriculture Committee on an almost partisan line. 
The same thing was true of the legislation that came out of the Banking 
Committee.
  While Chairman Dodd is here, let me make this point. He suggested 
this morning that there are Republicans who support this bill, he 
knows, but that they are being told by Republican leadership that they 
can't support it. I want to make it clear that our leadership does not 
operate that way. One reason I know that is because I am one of our 
leadership. Our members of the Republican caucus think for themselves.
  We came to a conclusion unanimously in the Republican conference that 
the partisan bill that came out of the Banking Committee--and it was 
partisan; it was written by Democrats, not Republicans, and it was 
passed on a party-line vote--that bill was not the way to move forward. 
It was partisan, it was flawed and, among other things, it would 
provide for perpetual bailouts and therefore didn't achieve the first 
goal of the legislation, which was to finally end the taxpayer 
bailouts.
  So all 41 of us wrote to the leader and said we will not vote to 
proceed to that bill because it is a partisan bill. It would be better 
if we could work together in a bipartisan way to bring a bill to the 
floor of the Senate that represented not just Republican ideas but a 
combination of Democratic and Republican ideas that had been negotiated 
by the members of the Banking Committee, members of the Agriculture 
Committee, and others. That would ordinarily be the way we would take 
up a bill here on the Senate floor.
  Having said that, I am still confident, based upon what Senator 
Shelby and other Republicans on the Banking Committee have said, that 
it is possible to reach a bipartisan consensus. I know Chairman Dodd 
and Senator Shelby have been working hard every day on various aspects 
of the bill to try to reach a conclusion.
  The second point I wish to make is that one should not describe the 
bill that passed out of the Banking Committee as the end of the story, 
as a successful bill that is going to solve all of these problems. I do 
not think it will. It does not end taxpayer bailouts, for example, and 
at a minimum, it seems to me it ought to do that. So in just a few 
minutes here, I would like to describe some of the things that I think 
the bill should address and that I hope are being addressed in the 
bipartisan negotiations.
  I am sure it is obvious that it is very difficult--once a bill comes 
to the floor and you have a chairman and leader supporting the bill, 
with 59 Senators on their side of the aisle, it is very hard to amend 
that bill. That is one reason Republicans would like to see a bill 
brought to the floor that already has bipartisan consensus, and then, 
yes, we can work our will on the bill and maybe amend it, maybe not, 
but at least we know it is not going to be a purely partisan 
proposition.
  There has been much attention paid to the $50 billion fund that is 
created by this bill. While it is true that the financial institutions, 
of course, pay the money, supply the money that goes into that fund, we 
all know where the money eventually is paid--the costs are passed on to 
the consumers. But that is not the real problem because there are other 
funds, such as the FDIC fund, for example, which the banks obviously 
pass on to their consumers in order to have an ability to take care of 
their expenses to creditors should they not be able to do so.
  But what this bill does is not just create this $50 billion fund but 
also continuing government obligations beyond that. It provides not an 
orderly bankruptcy type of procedure for the resolution of a failed 
company but, rather, an ad hoc procedure determined by bureaucrats who 
are not accountable to anybody and who can apply pretty much any rule 
they want to the winding down of the institution.
  What does that do? Today--and frankly, it has been this way for two 
centuries--we have a series of laws that dictate what happens in the 
event of the failure of a company. Primarily, these are our bankruptcy 
laws. You know in advance what happens. If you are a company that 
cannot make it and you go bankrupt, there are two basic ways you can 
file bankruptcy, one in which you totally liquidate, the other in which 
you reorganize. In those two situations, the law provides for what 
happens to your creditors.
  By definition, bankruptcy means you cannot pay all your debts. So who 
gets paid and who doesn't and how much and in what order--all of that 
is resolved by the bankruptcy laws and by the laws built up as 
precedent applied in the bankruptcy courts. That is why you know--when 
you either lend money to an institution or you invest in it in equity 
investments, you have an idea of where you stand, where your loan or 
equity investment stands in the order of priority should the entity 
fail. For example, a secured creditor would be very high on the list. 
Security means you have something to fall back on to take from the 
company if they can't pay their debt to you. As a result, you can lend 
the money at a lower rate because you don't have to account for that 
risk when you lend the money. It is a good way for companies to borrow 
money. Granted, they have to have something that backs it up. Sometimes 
it is even the personal guarantee of the CEO of the company. But you 
get a pretty cheap loan if you do that because the lender knows he or 
she or it is going to get its money back. By the same token, if you 
need money pretty badly and don't have any more security, you might ask 
people to invest in your company or to borrow money on an unsecured 
basis. Well, you are going to get charged a higher rate of interest on 
that because there is more risk to the investor or to the lender. But 
in every case, they know where they stand in the event you can't make 
it or you fold.
  What this bill does is substitute an unknown, untested process for 
the tried-and-true rules of bankruptcy. Nobody is suggesting there 
could not be some modification of the bankruptcy process or rules that 
might govern these particular institutions. They are unique 
institutions in some respects, and to the extent the rules should be 
tailored in order to fit these circumstances, they could be. But that 
is not what is done in this legislation. Instead, new entities are 
created and bureaucrats are allowed to decide when a company could 
destabilize the markets and therefore decide what to do about it. Their 
range of options is essentially unlimited. The bottom line is that 
taxpayers could end up being on the hook for the bailout. That is true 
with the FDIC, it is true with the Fed, and this legislation has 
specific language in it that provides for that.
  There are those who say: Why don't we just get rid of this $50 
billion fund, and then the problem will go away. No, that problem 
doesn't go away unless you correct the other language as well.
  I will not try to substitute my judgment for that of others who say 
we

[[Page 5909]]

need a $50 billion fund. I will say this: Creating that fund makes it 
more likely than less that risks will be taken and that therefore there 
will be instability in the market. I also suspect that those who have 
an implicit guarantee from the fund are more likely to receive credit, 
for example, at a lower rate because there is much of an assurance on 
the part of the lender or the equity investor that they will get their 
money back. So there are some downsides to having this fund.
  But those aside, if you want to do away with the fund, OK. If you 
want to keep the fund, OK. But what you should not do is provide that 
beyond that, the taxpayers are on the hook. Here is the problem. Lehman 
Brothers, I am told, had well over $600 billion in liabilities, and a 
$50 billion fund does not go a long way toward resolving a $600 billion 
liability. In the case of Fannie Mae and Freddie Mac, which are not 
even dealt with in this legislation even though they were the prime 
causes of the problem--and by the way, that is a deficiency in the law 
that needs to be corrected. I hope these negotiations will provide 
something in that regard. But they have now created--it is about $6.3 
trillion in obligations. Guess who is on the hook for those 
obligations. Congress never passed a law that said the taxpayers were 
going to be on the hook, but that is exactly the result of the actions 
taken by the bureaucrats who decide these matters now.
  I do not want to create a perpetual situation where not Congress, not 
the courts, but bureaucrats--by the way, I do not use that term 
pejoratively. ``Government officials''--let's use that term. Unelected 
government officials, to whom we give the power, simply decide who gets 
bailed out, when, under what circumstances, who gets paid back, who 
doesn't get paid back, and how much it is going to cost the taxpayers. 
That, in essence, is what is provided for in this legislation.
  So when folks say this is a bill we need to support because it ends 
too big to fail, that is wrong because it doesn't end too big to fail 
and taxpayers are still on the hook.
  If those things are fixed, then my criticisms in this respect go 
away. But we have not heard from these negotiations that is being done. 
So I told my colleagues: Don't come to the floor and say this is a 
great bill, it solves all these problems, it ends too big to fail, and 
there is nothing wrong with it. There are some things wrong with it 
that need to be fixed. Let's do those things. I assume, on a bipartisan 
basis, if you just ask the abstract question of every 100 of the 
Senators, do you think we ought to end too big to fail, the answer 
would be yes. Ask our constituents--yes. Then we can get down to the 
nitty-gritty.
  What about the language in the bill that says the FDIC ``will 
guarantee the obligations of banks'' under certain circumstances? That 
is language that has to be carefully either defined, limited, crabbed, 
or eliminated, or we are going to have taxpayers continuing to be on 
the hook for these obligations.
  As I said, we haven't done anything to Fannie and Freddie in the 
legislation, and that is going to continue to mean a continuing 
taxpayer obligation as well.
  As I said before, too, those firms, the ones deemed too big to fail, 
have an advantage over the smaller banks, the community banks. My 
colleague just mentioned those a moment ago. We just met with the 
community bank representatives in Arizona, and they fear this kind of 
provision will make them uncompetitive vis-a-vis the big boys. As a 
result, what we will eventually end up with is a few really big banks 
and maybe some that aren't, in kind of a medium-size operation, and 
almost all of the smaller banks having to go out of business because of 
this anticompetitiveness that will result from the legislation.
  One of the other ways in which what I have been talking about occurs 
is through section 113, the so-called Financial Stability Oversight 
Council. This is one of the entities that allow for these backdoor 
bailouts. It gives the Federal Reserve the authority to prop up any 
nonbank company that the council, this new council, deems to be a 
potential threat to systemic stability in our economy. This is a board 
based in Washington. It decides which institutions get special 
treatment. It gives these bureaucrats tremendous latitude to pick 
winners and losers, again resulting in a competitive advantage and 
disadvantage. What determines whether a nonbank is a threat to 
stability? What are the criteria? Among other possible considerations, 
``any other factors that the council deems appropriate.'' That is 
pretty much an open book--``any other factors that the council deems 
appropriate.'' I would think, if Congress is going to try to legislate 
in this very complex and difficult area, we would try to give pretty 
specific direction to the Federal authorities, to whom we give great 
power, as to how we want it exercised, and I don't think this meets the 
test--``any other factors that the council deems appropriate.'' Take 
that out of the bill. Let's have a bipartisan negotiation to do that. 
If somebody can demonstrate to me why that would have to be left in, 
then great, but these are the kinds of things that lead me to the 
conclusion that, no, we should not agree to consider the bill that came 
out of the Banking Committee on a purely partisan basis because there 
are problems in it.
  Today, the Wall Street Journal says:

       The Dodd bill allows too much discretion to federal 
     regulators to determine which firms to regulate and how, 
     which firms to rescue or close down, and which creditors to 
     reward and how. . . .

  Exactly what I was just saying. It goes on to conclude:

       The Dodd bill also extends the FDIC's resolution authority 
     (subject to other executive approval) beyond deposit-taking 
     institutions to any financial company deemed to be 
     systemically important. And it gives the FDIC the discretion 
     to discriminate among creditors as it judges who gets paid 
     what as part of a resolution. . . .Recall how the White House 
     exploited its authority under TARP to trash Chrysler's 
     creditors and give unions a better deal.

  Now, that is not the only section. Section 1155 of the bill is 
entitled ``Emergency Financial Stabilization.'' This is another way in 
which the bill guarantees bailouts and puts them into the law and 
leaves the taxpayers on the hook.
  Under this section, the FDIC would be allowed to create a new program 
of unlimited size to guarantee the obligation of depositories and 
holding companies with depositories.
  What does this mean since there is no requirement that a company that 
receives, guarantees, and defaults on its obligations be taken into an 
FDIC receivership, bankruptcy, or resolution? The FDIC and Treasury can 
prop up whatever company they choose. This authority can be exercised 
without congressional approval.
  It is one of the reasons I have said I think there needs to be some 
element of bankruptcy or other process prior to the instigation of this 
particular kind of authority. We cannot say this bill ends taxpayer 
bailouts as long as we have all of those sections in it.
  Finally, there is much said about consumer protection. Does anybody 
know anybody who does not favor consumer protection? I think we all do. 
There are questions about how to intelligently do it. We can create a 
lot more cost to consumers if we make the regulations so costly and 
inefficient that they end up paying more money than they would have 
otherwise. That is, I fear, what can happen here. It happened with the 
credit card legislation we passed. I think it is predicted that it can 
happen here as well.
  It could easily happen with businesses we do not even intend to 
cover. I know I have heard from dental offices and car dealerships. 
When we think about Wall Street bailouts, we do not think about our 
next-door neighbor who sells cars, or maybe our neighbor who is a 
dentist. But if they have an installment plan where it takes 4 months--
where you can get up to 4 months to pay your bill to them, boom, you 
can be covered by provisions here. Then all of the consumer protections 
apply and so on.
  Let's be careful that in an effort to make sure Wall Street handles 
its affairs properly that we do not impose conditions on Main Street, 
the folks we would like to see thrive, particularly in

[[Page 5910]]

times of recession, in a way that would end up either causing them more 
expenses or, at worst, even making them uncompetitive with these so-
called bigger guys.
  Restraining credit is a big way to do this, requiring that they have 
to apply capital not to building their businesses but to somehow 
backing up their credit issuance, even though that is not the main part 
of their business.
  Just quoting briefly from the New York Post:

       New restrictions on credit . . . are likely to cost our 
     economy tens of thousands of jobs a year.

  And:

       Reductions in credit--

  Which would result here--

     means declines in job creation. Many small business start-ups 
     use home equity debt or credit cards as their source of 
     funding.

  There is not a lot of home equity debt to be had these days. A lot of 
our homes are not mortgageable at the present time, so credit cards are 
maxed out and so on. Well, that is a difficult way to do it. But we 
have to make sure if small businesses are doing this that the credit 
flows are not stopped because of provisions of this bill.
  In an op-ed in the New York Post today, Mark Calabria pointed out:

       The bursting of the housing bubble largely eliminated the 
     first option.

  That is the mortgaging of your home to get additional credit.

       Now Washington is trying its best to kill the second.

  That is the credit card provision.

       [The Dodd bill's] proposed ``consumer protections'' would 
     reach beyond credit cards and restrict the availability of 
     all forms of credit, while raising costs.

  Now, nobody intends this result. I do not think anybody in this body 
wants to impose additional costs, especially on smaller businesses or 
on startup businesses. It is simply an inevitable result of a policy 
that is written too broadly. We need to be careful how we do it. We 
need to ensure we do not write it so broadly that friends we want to 
protect are not adversely impacted.
  They have been coming to my office. Folks you never dream of who 
would be covered by this act are coming in and saying: Here is how this 
bill could affect me. Please make sure it does not.
  All I urge my colleagues on the other side of the aisle to do is, 
take these concerns on board--they are not partisan concerns--and make 
sure when these negotiations figure out how to amend the bill, that we 
take into consideration the things we are raising. They are not 
partisan concerns. They are concerns of everyday Americans, and we owe 
it to our constituents to think these things through and, if need be, 
change the bill.
  I am sure even Senator Dodd would say the bill is not perfect. If 
there are things we need to see changed in it, then let's do that.
  The last point has to do with another element of consumer protection. 
A lot of folks do business in more than one State. In fact, some of the 
larger companies do business in all States, and it is cost efficient 
for them if there is one rule, if there is one regulator, so that they 
do not have to, for example, figure out what every single State 
requires in terms of different consumer protections or notice or 
whatever it might be, and then have to comply with all 50 States, some 
of which may be contradictory, as well as a Federal regulator.
  So up to now we have pretty much had a Federal regime that has 
preempted the State jurisdiction in some of these areas. Well, as I 
understand it, the legislation does away with a significant component 
of that and would allow the State regulators to impose individual 
requirements on these companies that are doing business throughout the 
United States. So we could have the anomalous situation where we have 
lots of different requirements.
  Some of you have seen ads on TV. It says: Call now to get your $29.95 
knife. If you call right now, you will get another one thrown in for 
free. Then the last 10 seconds of the ad has some guy reading in very 
fast language: Offer not valid in New Mexico, New York, Arizona, 
Tennessee, Oregon, and so on and so on. You cannot even follow what he 
is saying. But the reality is, there are a lot of different 
requirements.
  So what we would like to try to do is have things be as uniform as 
possible to keep the costs down because the greater the costs, the more 
the cost to the consumer. Unfortunately, as I said, however, this bill 
creates a patchwork of regulatory regimes that expand the number of 
regulators by 50 in certain areas. As a result, it is going to be much 
more difficult to comply with and much more costly.
  If we believe we understand what is necessary in consumer 
protections, then let's provide for it. If we think we do not, that we 
need to leave this to a lot of other regulators, then let's not try to 
make the rules ourselves. Just let them do it. But we should not do 
both.
  In addition to that, the chairman talked about safety and soundness. 
This is a technical term that essentially has regulators requiring 
banks and other financial institutions to carry a certain amount of 
reserves so that if people want their money back out of the bank, the 
bank has enough money to give to them. No bank believes every day 100 
percent of its deposits are going to be called back by its depositors. 
But they have to have a certain percentage of those funds on deposit so 
if you go and say: I want my money out of the bank, they have enough 
money to give it to you or, if they have loans go bad, they have enough 
to carry those loans, and so on. That is what the safety and soundness 
requirements of the regulators do. It is a good thing.
  Those same people can also provide for consumer protections, and say: 
Look, we know the bank needs to reserve a certain amount of money, and 
we also know, consistent with that, they need to ensure the protection 
of their consumers in a certain way.
  What is difficult is when we separate these two functions, as this 
legislation does, so we have one group saying to the bank here is what 
you have to do for safety and soundness purposes, and we have another 
totally independent group saying, we do not care anything about that, 
but here is what you have to do for consumer protection.
  We can end up with duplicative, overlapping, costly, and sometimes 
even inconsistent requirements, all of which make it more difficult for 
these institutions to give a cheaper product, a better loan, a credit 
card with a lower interest rate, or whatever it may be.
  I just urge my colleagues, everyone is for consumer protection. 
Everyone is for safety and soundness. Let's try to do this in a way 
that does not impose such great burdens, especially on the smaller 
folks, that they are not able to be competitive and provide their 
consumers, about whom, after all, we should be mostly concerned, with 
the cheapest product that is backed by the safety and soundness of the 
institutions.
  Incidentally, on this last point, some who are a little more cynical 
have said: Well, maybe this is being done for a more nefarious purpose. 
If every single attorney general in the country can go out and hire 
trial lawyers on a special contract to bring class action lawsuits 
because of a violation of State laws, then we have a brandnew cause of 
action for the trial lawyers to do even better than they have done in 
the past.
  I am not going to suggest that is the motivation, but I am going to 
suggest that I see nothing in the bill that will prevent that. As long 
as that is a potential, then, Katey, bar the door.
  So, again, there are many things in this legislation that are not 
partisan in terms of we all want to protect the same folks. But there 
are questions that have been raised that need to be dealt with. I think 
it would be far better to take the time, to have Republicans and 
Democrats sitting down and going through all of these issues carefully, 
writing up a bill on which they can agree, bring that bill to the floor 
so the rest of us can then look at it, and hopefully we would all say: 
Gee, that is a lot better product than we thought.
  It is not exactly as I would have done it. It looks like there are 
some compromises in there, but after all, that is what the process is 
when we have little

[[Page 5911]]

more than half of the body of one party and less than half of the other 
party. That is how we get things done.
  I can assure you this and assure my colleagues on the other side, 
Republicans want to work with our Democratic friends to get a good bill 
that all of us can support and that will be good for our country.
  I think if we can work in good faith toward that end, we will be much 
happier with the result than if it is the result of a partisan or a 
near-partisan vote in this body and likewise in the House of 
Representatives.
  I thank my colleagues for their patience and am happy to yield the 
floor.
  The PRESIDING OFFICER (Mr. Franken.) The Senator from Ohio is 
recognized.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent to engage 
in a colloquy with Senator Kaufman for up to 30 minutes as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN of Ohio. I want to believe what I just heard. I do. I 
believe the genuineness and the sincerity of the words from my 
colleague from Arizona. I also, though--and I agree with him there are 
things we need to fix in this bill. There always are. And we can work 
to improve it.
  I met only 2 hours ago a dozen manufacturers from Ohio--mostly metal-
working companies, stamping, bending metal, all of that--who came to 
see me to talk about credit. Their frustration with the banking system 
and Wall Street is pretty deep and pretty intense. Anger, frustration--
I will not speak for them, to be sure. But it is pretty clear that Wall 
Street has not served them well and has not served this country well.
  As I said, I know we need to fix some things about this bill. A guy 
years ago told me: Don't tell me what you believe. Show me what you do; 
I will tell you what you believe.
  When I listen to leadership on the other side, especially to our 
colleague from Kentucky, I really do watch what he does, not just what 
he says. I know he says this bill does not work because it will mean 
more bailouts. That is battle tested, focus group tested, poll tested. 
That is the right thing to say you are against the bill.
  But more than that, I watch what he does, and I watch what 
Republicans have done on this bill. Back in December 100 bank lobbyists 
met with Republican leadership in the House to talk about how to defeat 
any kind of Wall Street reform.
  Earlier this month, Senator McConnell and Senator Cornyn--Senator 
McConnell, the Republican leader; Senator Cornyn is head of the Senate 
Republican Campaign Committee--went to New York and met with 25 hedge 
fund and other Wall Street executives to figure out how to defeat the 
bill and to do what--you know, what you would expect. The best way to 
beat this bill is elect more Republicans. We need help. All of that.
  So when I hear them talk about bipartisan, that they want a 
bipartisan bill, what they really mean, and I know Senator Kaufman and 
I have talked about this--what they really mean is, we want Wall Street 
to come to the table and help us write the bill. That is what is 
bipartisan, in the same way that ``bipartisan'' in the health care bill 
of the last year was, we want to invite the insurance companies to the 
table and have them help write the bill.
  The public wants bipartisan. They want us to work together. They want 
us to cooperate. We do that in a lot of things. But on a big bill like 
this, the public does not want bipartisan if it means: Let's get Wall 
Street and the five biggest banks in the country to write this bill and 
then we can all be happy and let's get along and let's have legislation 
that way.
  Then I hear over and over, Senator McConnell, you know, kind of 
getting a little bit--the leader gets a little upset when he talks 
about this bill. It is a little bit like when you throw a rock at a 
pack of dogs, the dog that yelps is the one you hit.
  That is kind of what is going on here.
  (The remarks of Mr. Brown and Mr. Kaufman pertaining to the 
introduction of S. 3241 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. BROWN of Ohio. Mr. President, I yield the floor and suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to vigorously, 
enthusiastically support the nomination of U.S. district court judge 
Thomas I. Vanaskie for the Court of Appeals for the Third Circuit.
  Judge Vanaskie is someone known to me personally for the better part 
of two, perhaps even three decades as a practicing lawyer in 
Pennsylvania, as a judge on the Middle District Court. I had the 
privilege of recommending him, originally, for the district court 
during the Clinton administration. I have had the privilege of joining 
with Senator Casey in recommending him to President Obama for the Court 
of Appeals for the Third Circuit.
  Judge Vanaskie has a spectacular record. He is a graduate of Lycoming 
College, in 1975, with a BA degree, magna cum laude; Dickinson Law 
School in 1978, cum laude. He was a law clerk to Judge William Nealon 
from 1978 through 1980. For those who know Judge Nealon, he is a 
masterful judge, a paragon, a great person to learn from. Judge 
Vanaskie was in private practice in Scranton from 1980 to 1994. He was 
confirmed to the U.S. District Court for the Middle District of 
Pennsylvania on February 10, 1994.
  Judge Vanaskie has been awaiting confirmation for some time now. He 
has had his hearing. He was reported out of the Judiciary Committee by 
a vote of 16 to 3. He is an outstanding jurist.
  During the course of the discussions on the Judiciary Committee, 
where I have served during all of my tenure in the Senate, there was 
nothing really said in any way which was substantive in opposition. The 
contention was raised that he has cited foreign law, the law of other 
countries, but that is in keeping with the decisions of the Supreme 
Court in the United States, which has cited foreign legal precedents--
not that they are binding. They are not the U.S. Constitution. They are 
not decisions in the U.S. Federal judicial system. But they have been 
recognized by the Supreme Court as worthy of some consideration.
  It is regrettable that Judge Vanaskie has been caught up in the 
partisan battle in the Senate. This is a part of a broader picture of 
gridlock in the Congress of the United States, as we have seen the 
popularity and approval rating of Members of the House and Senate fall 
precipitously because of what America is seeing going on in this body 
and across the Rotunda in the House of Representatives. We see a 
stimulus package where there is very little willingness on the part of 
people on the other side of the aisle to negotiate with people on this 
side of the aisle. We have seen a health care package enacted into law 
without a single vote in the Senate. In the House of Representatives, 
176 Republicans said no and 1 said yes. On reconciliation, all 177 said 
no; all 41 in the Senate said no.
  There has been a point reached where there is really an issue of 
whether there can be governance at all with an obstructive minority 
standing fast. We have seen a slight break in ranks when the issue came 
up on the vacation for the payroll tax. One Republican stood up and 
voted with Democrats. That led a few others to join. And on 
unemployment compensation, again, one Republican took the lead, and a 
few others joined. I think it is realistic to conclude that it is the 
pressure from back home. There are some on the other side of the aisle 
who may sensibly calculate--I do not fault them for the calculation--
but they have to have some flexibility if they want to return to this 
body.
  We have had concerns on Wall Street which are overwhelming with what 
has gone on in the economy: the precipitous great recession, which has 
engulfed America and has engulfed the

[[Page 5912]]

world. And for a lengthy period of time, there has been resistance to 
any real negotiation by the other side of the aisle.
  Finally, within the last day or two, there has been some willingness 
to consider legislation on the Wall Street issue, but I think that has 
come about as a result of public pressure. It is, simply stated, 
impolitic to be against reforming Wall Street, considering what has 
gone on.
  It would be my hope these cracks in the die would lead to some 
substantial shift in position so we could return to the bipartisanship 
which was present in this body when I was elected in 1980. At that 
time, we had Mac Mathias of Maryland, who was willing to cross the 
aisle, and Mark Hatfield of Oregon similarly and John Danforth of 
Missouri, Lowell Weicker of Connecticut and Bob Stafford of Vermont and 
John Heinz of Pennsylvania and John Chafee of Rhode Island and Bill 
Cohen of Maine, so that when we had the so-called Wednesday club, it 
was full. That has dwindled so that the moderates can meet in a 
telephone booth today. We ought to go back to the days of just a little 
bipartisanship.
  We had an enormous problem in 2005 when the shoe was on the other 
foot and the filibustering was being done on this side of the aisle. 
Fortunately, we were able to work through that problem. There was a 
flirtation with the so-called nuclear constitutional option, which 
would have changed the rules on filibuster. We preserved the procedure 
of the Senate, the tradition of the Senate, to be the ``saucer which 
cools the tea'' as the expression was used during the colonial days. I 
think it is very important to maintain that tradition and that 
procedure. It was the coolness of the Senate which saved the 
independence of the Federal judiciary and the impeachment proceeding of 
Supreme Court Justice Chase of 1805 and preserved the independence of 
the Presidency and the acquittal on the impeachment proceeding of 
Andrew Johnson, when a controversy arose with the claim being made that 
there had to be congressional or senatorial approval to fire a 
Secretary of War, and he barricaded himself in the office. President 
Johnson refused to seek Senate consent to fire the Secretary of War. 
Articles of Impeachment were filed and he was saved by the vote of the 
Senator from Kansas. Growing up in Kansas, there was great pride in the 
State about that courageous Senator who stood and later was defeated. 
Maybe that--I would not make any predictions of the cost of standing 
up.
  So it is important to maintain the traditions of this body, but we 
have to do it in the context of capacity to govern. Supreme Court 
Justice Jackson, in a somewhat different context, said the Constitution 
is not a suicide pact. Whatever rules we have are not substitutes for 
our capacity to govern.
  We have seen this pattern illustrated by the nomination of Barbara 
Keenan of Virginia for the Fourth Circuit. Judge Keenan's nomination 
was stalled for 4 months, and after the time-consuming process of 
cloture, her nomination was approved 99 to nothing. Well, if she can be 
approved 99 to nothing, why require the filing of cloture? Why tie up 
this Senate for the better part of 2 days?
  May the Record show that the distinguished Presiding Officer, the 
junior Senator from Minnesota, is nodding in agreement with my 
statements. That is a procedure we lawyers use to perfect the Record. 
But that has been the policy--tying up this body, going to cloture, the 
delay, and then overwhelming confirmations; not all unanimous but very 
substantial, and I predict that is what will happen with Judge Vanaskie 
when the roll is called a little later this afternoon.
  One additional note. These proceedings take a very heavy toll on the 
nominee. Judge Vanaskie is a man devoted to public service. When he was 
practicing law in Scranton, his paycheck was a great deal bigger than 
when he became a Federal judge. When he comes into the process of the 
nominating procedure and he is questioned and his writings are impugned 
because he follows the Supreme Court of the United States, it is a jolt 
and it is hard on the Vanaskie family and it is hard on the community. 
I have had many calls from the people in Judge Vanaskie's community 
saying: What is going on in the Senate? What is going on? What is 
happening? Repeated calls. Finally, I decided to write a column for the 
Scranton Times Tribune, explaining what happens in the Senate as to why 
the delay has occurred.
  So I am glad to see this brought to a close. I hope we will move the 
appointments of the President. Consideration is being given to limiting 
the filibuster, not having it apply to members of the administration. 
We all concede, as a governmental doctrine, the President ought to have 
the right to name his own team but maintaining the filibuster for 
judicial nominations where we are talking about lifetime appointments. 
But this is a good and true man and he has been subjected to a process 
which is fundamentally unfair. I am glad to see it brought to an end 
this afternoon.
  I ask unanimous consent that the copy of the article which I wrote 
for the Scranton Times Tribune, dated February 26, 2010, be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the Scanton Times Tribune, Feb. 26, 2010]

                   GOP Delaying Vanaskie Appointment

                           (By Arlen Specter)

       Republican inaction on nominations is paralyzing the work 
     of the Senate and putting the government's ability to 
     confront the nation's challenges at risk.
       We have seen much obstructionism by the minority in this 
     Congress, but nothing compares to the gridlock on 
     nominations. During President Obama's first year, 46 
     executive nominees waited at least three months to be 
     confirmed, 45 waited at least four months, and nine took six 
     months or longer. Inaction on these qualified nominees, many 
     in defense-related and national security posts, is 
     unacceptable.
       This applies to nominations for federal judgeships, many to 
     important or long-vacant jurisdictions. Currently, 14 
     judicial nominees, who have been approved--in many cases 
     unanimously--by the Senate Judiciary Committee are awaiting 
     confirmation in the face of Republican objections, many of 
     them specious or just plain outlandish. It is time to put 
     partisan politics aside and work to fill these positions as 
     quickly as possible.
       Take the case of Judge Thomas I. Vanaskie, nominated by 
     President Obama last August to the U.S. Circuit Court of 
     Appeals for the Third Circuit. The Senate Judiciary Committee 
     voted 16-3 in support of his nomination on Dec. 3. More than 
     two months later the nomination still awaits confirmation.
       Judge Vanaskie's appointment, like so many of this 
     administration's, has been stalled by political posturing. 
     The near certainty of his eventual confirmation only adds to 
     the charade. When Senate Majority Leader Harry Reid recently 
     called for a vote on a long-delayed circuit court nomination, 
     the Republicans voted to confirm unanimously. One 
     legitimately wonders whether partisanship is not the only 
     explanation for the delay.
       The Senate can force a vote by resorting to the time-
     consuming step known as cloture, which takes up two days of 
     the Senate's time. If cloture were to be invoked in each of 
     the 67 currently pending nominations that have been approved 
     by committee, it would take most of the year to deal with 
     nominations. This is an intolerable imposition on the 
     Senate's time and business.
       Judge Vanaskie is eminently qualified to serve on the Third 
     Circuit, as evidenced by his 16-year record on the U.S. 
     District Court for the Middle District of Pennsylvania and 
     the overwhelming bipartisan support he received from the 
     Senate Judiciary Committee. He has built a reputation for 
     consistency and judicial restraint, backed by a first-class 
     legal mind and even temperament.
       Republican objections to his nomination are specious. One 
     criticism--that Judge Vanaskie inappropriately cites foreign 
     law precedents--was ably explained in his testimony before 
     the Judiciary Committee that he was following Supreme Court 
     decisions when it relied upon foreign sources in Lawrence v. 
     Texas and Roper v. Simmons. In Lawrence, the Supreme Court 
     majority cited the European Court of Human Rights in a 
     decision overruling its own prior precedent on the 
     criminalizing of consensual gay sex. In Roper, the court 
     cited international law to support a ruling striking down the 
     death penalty when applied to individuals who committed 
     murder before they were 18. In short, Judge Vanaskie was 
     merely following the Supreme Court's lead. Following 
     precedent is mandatory, not grounds for rejecting his 
     elevation to the Third Circuit.
       There is no reason to further delay the nomination of this 
     highly qualified jurist to the Third Circuit Court of 
     Appeals. The Senate should carry out its constitutional 
     duties promptly and promote this eminently qualified judge.


[[Page 5913]]

  Mr. SPECTER. I thank the Chair and yield the floor and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER (Mr. Burris). The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the vote on 
confirmation of the nomination of Judge Thomas Vanaskie occur at 5:30 
p.m. today, with the time until then divided as previously ordered and 
the remaining provisions of the order governing consideration of this 
nomination still in effect.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. In the absence of any Senator seeking recognition, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Pryor). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I briefly wish to share a few thoughts 
about Judge Thomas Vanaskie, who has been nominated for the Third 
Circuit Court of Appeals--a very important position. He currently 
serves on the U.S. District Court for the Middle District of 
Pennsylvania. I do intend to support his nomination, giving deference 
to the President, but I would just like to share a thought or two about 
his testimony before the Judiciary Committee.
  Judge Vanaskie testified he believed American courts should not use 
foreign law in interpreting the Constitution, but he did believe the 
Supreme Court properly used foreign law in cases such as Lawrence v. 
Texas, and I think that is a bit contradictory. He also testified that 
the Supreme Court properly used foreign law in Roper v. Simmons, where 
the Court concluded that the Constitution, because of ``evolving 
standards of decency,'' would now prohibit States from imposing the 
death penalty on juveniles who commit murder. I think that is a 
legitimate public policy issue to discuss, but the question is, Does 
the Constitution say a State is not able to decide at what age people 
are executed?
  Judge Vanaskie said, at another point, that foreign law was relevant 
to determining fundamental constitutional rights. Well, our 
Constitution is the one we have, and judges, if they are faithful to 
their oath, will enforce our Constitution--the one we have. It is 
difficult for me to comprehend how somebody could conclude that a legal 
action in the European Union would provide illumination to a judge on 
how to interpret our Constitution and what the Founders meant and the 
plain meaning of its words.
  So I think this is a bad philosophy, and it evidences a detachment of 
the judiciary from the limited role they are given. We have limited 
powers, the President has limited powers, and the courts have limited 
powers. Courts are not empowered to reinterpret our laws and our 
Constitution based on some better idea they think they may find in 
France. They are not. This is not a little bitty matter. It is a trend 
that is occurring in our courts, and I am disappointed that several of 
the President's nominees seem to be seduced by these ideas, including 
speeches made by Justice Sotomayor where she talked about how she 
favored Justice Ginsburg's views about that.
  So I wish to give this judge the benefit of the doubt. He did say he 
didn't follow this doctrine to the full extent of it, and I will give 
him the benefit of the doubt. But also, some of his statements indicate 
that he may yet be seduced by this idea. He had difficulty articulating 
any limit on the commerce clause. The commerce clause says Congress can 
regulate commerce. Does that mean everything? Does regulating commerce 
mean you can reach down into Oklahoma and tell an individual farmer: 
You have to have insurance? That raises a serious question of 
constitutional power, and does that impact interstate commerce? Well, 
you could theoretically conjure up a way that it could, but I want to 
know that a judge understands there is some limit to the amount of 
reach the Federal Government can have.
  We have had a number of people complaining about the process of 
confirmation and judges languishing before the Senate. In particular, 
my friend, Senator Whitehouse, noted the nominations of Judge James 
Wynn and Judge Albert Diaz to the Fourth Circuit. Senator Whitehouse 
hasn't been here but since 2006, so maybe he isn't familiar with some 
of the procedures that have gone on before. Wynn and Diaz's nominations 
have been pending in the Senate for only 167 days. That is half the 
time--half the time--that President Bush's circuit court nominees 
waited--350 days.
  In fact, four of President Bush's nominees to the Fourth Circuit 
never received any hearing, and they were highly qualified nominees. 
Those nominees--Mr. Steve Matthews, Chief Judge Robert Conrad, Judge 
Glen Conrad, and former Maryland U.S. attorney Rod Rosenstein were well 
qualified and had the bipartisan support of their home State Senators. 
Yet they were blocked steadfastly from ever moving forward. President 
Bush nominated Steve Matthews in September of 2007 to the same seat on 
the Fourth Circuit for which Judge Diaz has now been nominated and 
expects to be confirmed--and will be confirmed, I am sure.
  For Senators to be whining about how long it takes Judge Diaz to move 
along, in a fairly steadfast way, in light of what was done to Mr. 
Matthews, is a bit much to me, I just have to tell you. We all know 
this is a robust body. We don't mind speaking our minds. But Mr. 
Matthews had the support of his home State Senators and received an ABA 
rating of ``qualified.'' He was a graduate of Yale Law School, had a 
distinguished career in private practice, and he waited 485 days for a 
hearing and never got one. So his nomination was returned and expired 
in January of 2009.
  Another of President Bush's nominees, Chief Judge Robert Conrad, was 
nominated to the seat for which Judge Wynn is now nominated. He had the 
support of his home State Senators, received an ABA rating of unanimous 
``well-qualified,'' which is the highest rating. Judge Conrad met 
Chairman Leahy's standard for a noncontroversial consensus nominee. He 
had received bipartisan approval by the committee when he was confirmed 
by a voice vote to be U.S. attorney and later district court judge for 
the District of North Carolina. He was then chief judge. Senators Burr 
and Dole sent letters in support of that confirmation. Yet he was 
blocked.
  I know he can make decisions because, if I am not mistaken, I used to 
say he was the point guard for the University of North Carolina 
basketball team. I think that was incorrect. I think he was point guard 
for Clemson. Regardless, anybody who can play a point guard in the ACC 
can make decisions. He was chosen out of all the prosecutors in America 
by Attorney General Janet Reno to conduct a very sensitive 
investigation of President Clinton, when he was accused of some 
wrongdoing. He conducted that and concluded no charges ought to be 
brought. This was a highly qualified person. Yet he was blocked.
  My time is up, but I know every nominee is not brought up immediately 
or when some people would want to call up the nomination. It requires 
unanimous consent to bring up a nominee, to immediately get a vote, and 
unanimous consent isn't always given, so it does slow down people. I do 
believe we ought not to unnecessarily delay persons, but I would want 
to say that the alacrity by which President Obama's nominations are 
moving far surpasses anything like the difficulties that President 
Bush's nominees had. I have been here, I have seen it, and I know that 
to be a fact.
  I hope we can create a climate where judges have a reasonable time on 
the

[[Page 5914]]

calendar, that they have hearings in the Judiciary Committee, that 
there is opportunity to raise objections, when they are made, and the 
nominee comes to the floor and eventually can be brought up for a final 
confirmation vote. That would be my request.
  I see it is time for the vote, and so I yield the floor.
  Mr. LEAHY. Mr. President, the Senate just devoted almost 3 hours to 
the nomination of Thomas Vanaskie. Senate Republicans demanded this 
extended time for debate. I thank Senator Specter and Senator Casey for 
their statements. The Senators from Pennsylvania know Judge Vanaskie 
best, and strongly support him.
  I was glad to see Chairman Dodd, Senator Brown of Ohio and Senator 
Kaufman come to use some of the time to talk about Wall Street reform. 
That is what we should be working on. Wall Street reform, patent 
reform, and other matters that are important to the American people are 
what we should be debating. I was glad to see that time not wasted in 
another extended quorum call because those who demanded this time to 
debate the nomination did not use it.
  I was glad to hear Senator Hagan talk about the two North Carolina 
nominees to the Fourth Circuit. They are among the 25 judicial nominees 
that Republicans have objected to considering even though they were 
voted out of the Judiciary Committee unanimously or nearly so.
  With respect to the President's judicial nominees, as I have said, we 
are well behind the pace I set as chairman when the Senate was 
considering President Bush's nominees during the second year of his 
presidency. By this date in President Bush's second year, the Senate 
with a Democratic majority, had moved ahead to confirm 45 of his 
Federal circuit and district court judges. So far during President 
Obama's Presidency, Senate Republicans have allowed votes on only 18 of 
his Federal circuit and district court nominations. During the first 2 
years of President Bush's Presidency we moved forward to confirm 100 of 
his judicial nominees. Republican obstruction of President Obama's 
nominations makes it unlikely that the Senate will reach 50 such 
confirmations. Last year they allowed only 12 Federal circuit and 
district court nominees to be confirmed, the lowest number in more than 
50 years.
  Today, thanks to the perseverance of the majority leader and the 
Senators from Pennsylvania, we will consider and confirm only the 19th 
of President Obama's Federal circuit and district court nominees. I 
have already noted Judge Vanaskie's qualifications. There is no dispute 
that he is well qualified. Indeed, the only concern his opponents have 
raised is their fixation that no Federal judge be aware of foreign law. 
As Senator Specter has explained, the matter on which Judge Vanaskie is 
criticized was a case involving an international treaty. To those whose 
ideology clouds their judgment, I remind them that the Constitution of 
the United States, our Constitution, expressly provides that the 
judicial power of the United States extends to cases arising under the 
Constitution, laws of the United States ``and Treaties.'' Treaties are 
international by their nature. How treaties are interpreted by other 
courts in other jurisdictions is relevant. In fact, Justice Scalia 
observed, when writing for the unanimous Court in Zicherman v. Korean 
Air Lines Co., 516 U.S. 217, 226 (1996):

       Because a treaty ratified by the United States is not only 
     the law of the land, see U.S. Const., Art. II, Sec.  2, but 
     also an agreement among sovereign powers, we have 
     traditionally considered as aids to its interpretation the 
     negotiating and drafting history (travaux preparatoires) and 
     postratification understanding of the contracting parties.

  I appreciate the significant steps taken by the majority leader to 
address the crisis created by Senate Republican obstruction of the 
Senate's advice and consent responsibilities. Their refusal to promptly 
to consider nominations is a dramatic departure from the Senate's 
traditional practice of prompt and routine consideration of 
noncontroversial nominees. The majority leader was required to file 
five cloture motions to break through the logjam. I, again, urge the 
Senate Republican leadership to reverse its course and its 
obstructionist practices. Those practices have obstructed Senate action 
and led to the backlog of almost 100 nominations pending before the 
Senate awaiting final action. These are all nominations favorably 
reported by the committees of jurisdiction. Most are nominations that 
were reported without opposition or with a small minority of negative 
votes. Regrettably, this has been an ongoing Republican strategy and 
practice during President Obama's Presidency. I hope it will now, 
finally, be abandoned and we will be allowed to make progress after 
weeks and months of delay.
  The vote on the confirmation of Judge Vanaksie's nomination is the 
first vote on judicial nominations that the Senate will hold in 5 
weeks. Despite the dozens of judicial nominations ready for Senate 
consideration, none has been allowed to move forward for over a month. 
These are nominations to fill longstanding vacancies in the Federal 
courts. Of the 25 pending judicial nominations, 18 were reported from 
the Senate Judiciary Committee without any Republican Senator voting 
against. I have been urging the Senate Republican leadership for months 
to allow votes on these noncontroversial nominations and to enter into 
time agreements to debate the others. We need to clear the backlog of 
nominations and move forward.
  Judicial vacancies have skyrocketed to over 100, more than 40 of 
which have been designated ``judicial emergencies.'' Caseloads and 
backlogs continue to grow while vacancies are left open longer and 
longer. On this date in President Bush's first term, not only had the 
Senate confirmed 45 Federal district and circuit court judges, but 
there were just seven judicial nominations on the calendar. All seven 
were confirmed within 9 days. By the end of this month, which is 9 days 
from now, we should clear the backlog that Republican obstruction has 
created and vote on the judicial nominations stalled on the Senate 
Executive Calendar.
  By this date during President Bush's first term, circuit court 
nominations had waited less than a week, on average, before being voted 
on and confirmed. By contrast, currently stalled by Senate Republicans 
are circuit court nominees reported by the Judiciary Committee as long 
ago as five months, in November of last year. The seven circuit court 
nominees the Senate has been allowed to consider so far have waited an 
average of 124 days after being reported before being allowed to be 
considered and confirmed.
  I congratulate Judge Vanaskie and his family on what I expect will be 
strong bipartisan vote in favor of his confirmation to serve on the 
Third Circuit. His confirmation is long overdue.
  The PRESIDING OFFICER (Mr. Franken). Under the previous order, the 
question is, Will the Senate advise and consent to the nomination of 
Thomas I. Vanaskie, of Pennsylvania, to be United States Circuit Judge 
for the Third Circuit.
  Mr. CASEY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
was necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Utah (Mr. Bennett) and the Senator from Nebraska (Mr. Johanns).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 77, nays 20, as follows:

                      [Rollcall Vote No. 122 Ex.]

                                YEAS--77

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Bond
     Boxer
     Brown (MA)
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham

[[Page 5915]]


     Gregg
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--20

     Barrasso
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Grassley
     Hutchison
     Inhofe
     Isakson
     Risch
     Roberts
     Thune
     Wicker

                             NOT VOTING--3

     Bennett
     Byrd
     Johanns
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table, and the 
President will be immediately notified of the Senate's action.

                          ____________________