[Congressional Record (Bound Edition), Volume 157 (2011), Part 11]
[Senate]
[Pages 16275-16281]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF STEPHEN A. HIGGINSON TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE FIFTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider

[[Page 16276]]

the following nomination, which the clerk will report.
  The legislative clerk read the nomination of Stephen A. Higginson, of 
Louisiana, to be United States Circuit Judge for the Fifth Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
of debate, equally divided and controlled in the usual form.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, today the Senate will finally vote on the 
nomination of Stephen Higginson of Louisiana to fill a vacancy on the 
Fifth Circuit which has been a judicial emergency for more than a year. 
I anticipate his nomination, which was reported unanimously by the 
Judiciary Committee more than 3\1/2\ months ago on July 14, will be 
confirmed overwhelmingly. It would have been confirmed had it been 
considered before the August recess, rather than subjected to an 
extensive and unexplained delay. I hope that the Senate will build on 
today's vote by soon having up or down votes on the other 22 superbly 
qualified judicial nominations pending on the Senate calendar. At a 
time when judicial vacancies have remained at historically high levels 
for well over 2\1/2\ years, we owe it to the American people to work 
together to ensure that the Federal courts are functioning.
  Stephen Higginson is a well-respected consensus nominee who has 
served as a Federal prosecutor for 23 years. He served as a law clerk 
to Justice Byron White of the United States Supreme Court and to Chief 
Judge Patricia Wald of the DC Circuit. He currently teaches law at the 
New Orleans College of Law. The American Bar Association's Standing 
Committee on the Federal Judiciary unanimously rated Professor 
Higginson ``well qualified'' to serve on the Fifth Circuit, its highest 
possible rating. The two Senators from Louisiana, Democratic Senator 
Mary Landrieu and Republican Senator David Vitter, support his 
nomination. When Senator Vitter introduced Mr. Higginson to the 
Judiciary Committee in early June, he joined with Senator Landrieu ``in 
being extremely enthusiastic'' about the nomination and said that he 
``wholeheartedly support[s]'' the nomination, saying of the nominee:

       He has unbelievable academic and intellectual credentials 
     that are unquestioned . . . He [has] won the respect of 
     everyone in the community based on his work ethic, and his 
     honesty, and his integrity, and his dedication to the job.

  In the past, such a nominee would go sailing through and not have to 
wait week after week, month after month after month. Yet despite the 
strong endorsement by both his Democratic and Republican home State 
Senators and the support of every Democrat and every Republican on the 
Committee, Mr. Higginson's nomination has been stalled for months by 
Republican leadership. The people of Louisiana and the other States of 
the Fifth Circuit--Mississippi and Texas--deserve an explanation for 
these unnecessary delays. So do the 161 million Americans who live in 
districts or circuits who have judicial vacancies that could be filled 
today if the Senate Republicans agreed to vote on the other 22 
nominations that were reported favorably by the Judiciary Committee and 
are ready for a Senate vote. We have done our work in the Judiciary 
Committee. We have held hearings on these nominees. We have vetted 
them. We have gone through FBI reports and Bar Association reports. We 
have debated the nominations, and we have voted on them. We have sent 
the nominations to the Senate floor, and they have been languishing 
ever since.
  The needless delays in our confirmation process are affecting 
millions of Americans around the country. As shown in this chart I have 
in the Senate Chamber, more than half of all Americans--161 million--
live in districts or circuits with a judicial vacancy that could be 
filled today if the Senate Republicans agreed to vote on the 
nominations currently pending on the Executive Calendar. Twenty-four 
States are served by Federal courts with vacancies that could be filled 
immediately if Republicans would agree to vote on the judicial 
nominations already reported by the Judiciary Committee. Judicial 
vacancies in the Second Circuit, which includes Vermont, New York, and 
Connecticut, the Fifth Circuit, which includes Louisiana, Texas, and 
Mississippi, the Ninth Circuit, which includes California, Alaska, 
Nevada, Arizona, Oregon, Idaho, Montana, Washington, and Hawaii, and 
the Eleventh Circuit, which includes Florida, Georgia, and Alabama, 
have been designated ``judicial emergencies'' by the Administrative 
Office of the United States Courts. So have vacancies on district 
courts in New York, Texas, and Utah.
  I would hope my friends on the other side of the aisle would explain 
to the millions of Americans in these States why the Senate is not 
being allowed to vote on these vacancies, especially for the consensus 
nominees who have been vetted and approved by a bipartisan majority--
usually unanimously--in the Judiciary Committee.
  The American people need functioning Federal courts with judges, not 
vacancies. Despite the damaging number of vacancies that have persisted 
throughout President Obama's term, some Republican Senators have tried 
to excuse their delay in taking up nominations by suggesting that the 
Senate is doing better than we did during the first 3 years of 
President Bush's administration. It is true that President Obama is 
doing better in that he has worked more closely with home State 
Senators of both parties. As I have noted, all of the judicial nominees 
pending and being stalled on the Senate Executive Calendar have the 
support of both home State Senators. That was not true of President 
Bush's nominees and led to many problems.
  There is no good reason or explanation for the Republican 
leadership's continued refusal to vote on these stalled nominations. 
Senator Grassley and I have worked together to ensure that each of the 
23 nominations now on the Senate calendar was fully considered by the 
Judiciary Committee after a thorough and fair process, including 
completing our extensive questionnaire and questioning at a hearing. 
Like Mr. Higginson, the other 22 nominees who are awaiting final Senate 
action are qualified nominees, and 19 were reported unanimously by the 
committee. Yet despite their qualifications and broad bipartisan 
support, many have languished needlessly on the Executive Calendar for 
weeks.
  These delays are not only unnecessary, they are damaging. The number 
of judicial vacancies remains at historic levels, having risen above 90 
in August 2009, and staying near or above that level ever since. The 
number of vacancies is twice as high as it was at this point in 
President Bush's first term, when the Senate was expeditiously voting 
on consensus judicial nominations. With 1 in 10 Federal judgeships 
currently vacant, the Senate must come together to address the serious 
judicial vacancies crisis on Federal courts throughout the country. 
Bill Robinson, the president of the American Bar Association, recently 
highlighted the serious problems for businesses and individuals 
affected by these excessive vacancies in a letter to the Senate 
leaders, joining Justice Scalia, Justice Kennedy, and Chief Justice 
Roberts in warning of the serious problems created by persistent 
judicial vacancies.
  The only way to make progress is to fulfill our constitutional duty 
and confirm qualified judicial nominations to the Federal bench. We 
remain well behind the pace we set in dramatically reducing vacancies 
by regularly scheduling votes during President George W. Bush's first 
term. At this point in President Bush's first term, the Senate had 
confirmed 166 of his nominees for the Federal circuit and district 
courts, including 100 during the 17 months that I was chairman of the 
Judiciary Committee. In contrast, after today's vote, we will have 
confirmed only 113 of President Obama's nominees to Federal circuit and 
district courts. Three years into President Bush's first term, the 
Senate had confirmed 29 circuit judges. After today's vote, we will 
have confirmed only 22 of President Obama's circuit court nominees. We 
could make significant progress toward matching that pace if we voted 
on consensus nominees. Yet President Obama's judicial nominees 
unanimously reported by

[[Page 16277]]

the Judiciary Committee--by any measure consensus nominees--have waited 
an average of 80 days--nearly 3 months--on the Executive Calendar 
before coming to a vote. President Bush's nominees waited an average of 
just 28 days. We must bring an end to the needless delays that have 
obstructed President Obama's nominations to the Federal bench.
  During the last work period, the Senate started to make some progress 
in voting on some of President Obama's longest pending judicial 
nominees. I thank Majority Leader Reid for working hard to schedule 
these votes. I hope we can build on this progress by continuing to have 
votes during this work period on consensus nominations. There is no 
reason we could not vote today on the nominations of Chris Droney of 
Connecticut to fill a judicial emergency vacancy on the Second Circuit, 
Morgan Christen of Alaska to fill a judicial emergency vacancy on the 
Ninth Circuit, and Adalberto Jordan of Florida to fill a judicial 
emergency vacancy on the Eleventh Circuit. Like Mr. Higginson, these 
nominations were all reported unanimously. The circuits to which they 
are nominated desperately need judges: the Ninth Circuit Court of 
Appeals alone has four vacancies, worsening what the Los Angeles Times 
has recently called ``an already critical case backlog'' on that court, 
which is the largest circuit court in the country, covering California 
and all of the Western States. I ask unanimous consent that the full 
text of the LA Times article be printed in the Record at the conclusion 
of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. LEAHY. I hope the 22 judicial nominations pending after today 
will get a vote soon. We have a long way to go to match the 205 
district and circuit court nominations confirmed during President 
Bush's first term.
  With millions of Americans currently affected by judicial vacancies 
that the Senate could fill today, now is the time for Republicans and 
Democrats to work together so that our courts can better serve the 
American people.
  I yield the floor.

                               Exhibit 1

              [From the Los Angeles Times, Oct. 15, 2011]

               Judges' Deaths Add to 9th Circuit Backlog

                         (By Carol J. Williams)

       Five judges from the U.S. 9th Circuit Court of Appeals have 
     died this year, worsening an already critical case backlog 
     and spotlighting President Obama's inability to put his 
     judicial choices and stamp on the powerful court.
       The deaths of four semi-retired senior jurists and full-
     time Circuit Judge Pamela Ann Rymer have intensified concerns 
     on the aging bench and among judicial scholars that the 9th 
     Circuit will fall farther behind in what is already the 
     slowest pace of dispensing justice in the federal courts.
       Judges of the 9th Circuit currently sit on twice the number 
     of cases each year as those of the other 12 federal appeals 
     courts, according to the Administrative Office of the U.S. 
     Courts. And it takes an average of 16.3 months for the 
     court's panels to issue opinions after an appeal is filed, 
     compared with 11.7 months on average for all circuits. The 
     9th Circuit has jurisdiction over California and eight other 
     Western states and is authorized to have 29 full-time 
     jurists.
       ``While we mourn the loss of our colleagues, whom we will 
     miss as friends, we are alarmed by the loss of judicial 
     manpower,'' said 9th Circuit Chief Judge Alex Kozinski, who 
     was appointed to the court by President Reagan. ``A very 
     difficult situation has been seriously exacerbated, and we 
     fear that the public will suffer unless our vacancies are 
     filled very promptly.''
       The 9th Circuit is an especially important court because it 
     helps to define many of the nation's laws on immigration, 
     sentencing, intellectual property and civil rights, experts 
     say.
       Obama inherited two 9th Circuit vacancies with his 
     inauguration. Two jurists retired last year. Rymer's Sept. 21 
     death from cancer created another vacancy. Another vacancy 
     looms at the end of the year, when former Chief Judge Mary M. 
     Schroeder plans to take senior status.
       Obama has managed to get only one of his picks for the 9th 
     Circuit confirmed by the Senate. He elevated U.S. District 
     Judge Mary H. Murguia in 2010 from the Arizona federal court, 
     leaving that bench with its own manpower crisis after its 
     chief judge, John M. Roll, was killed in the Jan. 8 shooting 
     rampage in Tucson.
       Obama's other appeals court nominations, Alaska Supreme 
     Court Justice Morgan Christen and U.S. District Judge 
     Jacqueline H. Nguyen of Los Angeles, are still making their 
     way through the contentious confirmation process. Christen 
     was nominated in May and Nguyen was nominated last month. 
     Obama has yet to name anyone for the other three 9th Circuit 
     vacancies, including one that has been open for seven years 
     because of a dispute between California and Idaho senators 
     over which state gets to propose candidates to the White 
     House. Nationally, Obama nominations are pending in 51 of 92 
     vacancies.
       Some judicial scholars speculate that Obama may be having 
     trouble convincing those he would like to appoint to accept 
     nominations for fear of derailing their legal careers only to 
     be rejected by partisan fights in the Senate. Goodwin Liu, a 
     UC Berkeley law professor twice nominated by Obama, was 
     forced to withdraw earlier this year when Senate Republicans 
     again blocked a confirmation vote.
       ``What we know is that the nominations haven't been coming 
     through with the speed we would expect. What we don't know is 
     whether that is because the president is not asking people or 
     whether he is being turned down,'' said Arthur Hellman, a 
     University of Pittsburgh law professor and 9th Circuit 
     historian. Citing the relatively low pay compared with what a 
     lawyer can make in private practice and the often withering 
     interrogations in the confirmation process, he said, ``some 
     may be saying it's just not worth it.''
       Hellman worries that the overwhelmed 9th Circuit judges 
     will have to cut corners to prevent their case backlog from 
     further increasing. That could mean less time spent reviewing 
     each case, holding fewer oral arguments before issuing 
     decisions or bringing in judges from other circuits who might 
     be unfamiliar with 9th Circuit law.
       A call to the White House press office asking why Obama has 
     not nominated more judges wasn't answered Thursday. Earlier 
     in the day, at a session of the Senate Judiciary Committee, 
     its Democratic chairman blamed Republicans for stalling 
     judicial appointments by refusing to give consent for 
     confirmation votes even on candidates voted out of committee 
     with unanimous support.
       ``Millions of Americans across the country are harmed by 
     delays in overburdened courts,'' said Sen. Patrick J. Leahy 
     (D-Vt.). ``The Republican leadership should explain to the 
     American people why they will not consent to vote on the 
     qualified, consensus candidates nominated to fill these 
     extended judicial vacancies.''
       The committee's ranking member, Sen. Charles E. Grassley 
     (R-Iowa), countered with a claim that the Senate is ``ahead 
     of the pace'' compared with the confirmation rate of the 
     Democratic-controlled Congress during the Bush 
     administration. His comment followed Thursday's confirmation 
     vote on three of 30 Obama judicial nominations that 
     Republicans agreed to bring to a vote.
       Even if Obama acts quickly to nominate three more 9th 
     Circuit judges, the impending 2012 campaign could thwart 
     Senate approval of those choices, said Michael McConnell, a 
     Stanford law professor and former judge on the 10th Circuit.
       Russell Wheeler, a Brookings Institution fellow and veteran 
     analyst of the federal courts, said Obama is entering 
     ``uncharted territory'' with the 9th Circuit vacancies 
     occurring so late in his term.
       Noting that Bush got Senate confirmation of 35 federal 
     judges in the last 15 months before his 2004 reelection bid, 
     Wheeler said, ``I doubt Obama will do as well, but 
     confirmations are not going to stop altogether.''
       Some judicial analysts also lament that the administration 
     hasn't pushed Congress to expand the federal judiciary, as 
     recommended for more than a decade by the Judicial Conference 
     of the United States. That policymaking body of the federal 
     courts has said the 9th Circuit needs at least five more 
     judges added to its authorized 29 to alleviate its annual 
     caseload of 12,000-plus filings.
       The announcement Tuesday that senior Circuit Judge Robert 
     Boochever died at his Pasadena home on Sunday was a sharp 
     reminder of the advancing age of the 9th Circuit bench that 
     relies on its purportedly retired seniors to shoulder much of 
     the case overload. Fifteen of the court's judges are over 80, 
     including two of the 25 active judges and 13 of its 18 
     seniors. Last year, a third of the court's caseload was 
     carried by senior judges.
       Since criminal appeals can't be delayed because of federal 
     laws protecting defendants' rights, the burden of delays will 
     fall on civil cases, said Kozinski.
       ``We can ameliorate some of that by relying more heavily on 
     visiting judges, but we're already doing that quite a bit,'' 
     he said, adding that the help available from outside is 
     finite. ``Essentially, it's a zero-sum game, so that when you 
     decrease the number of judges available in the federal 
     system, you necessarily add more delay somewhere. Shifting 
     judges around can help even out the burden, but it can't make 
     up for judges that just aren't there.''

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, today the Senate will vote on the 
nomination of Stephen A. Higginson to

[[Page 16278]]

serve as U.S. circuit judge for the Fifth Circuit. This is a seat that 
has been deemed by our statistics as a ``judicial emergency.'' This is 
the 15th judicial nomination we will confirm this month. With this vote 
today we have confirmed 51 article III judicial nominees during this 
Congress, and 30 of those confirmations have been for judicial 
emergencies.
  Despite this brisk level of activity, we continue to hear 
complaints--too many complaints, unjustified complaints--about the lack 
of real progress by the Senate.
  Let me set the record straight regarding the real progress the Senate 
has made, and this is in regard to President Obama's judicial nominees. 
We have taken positive action on 87 percent of the judicial nominations 
submitted before this Congress. The Senate has confirmed 71 percent of 
President Obama's nominees since the beginning of his Presidency, 
including two of the most important--Supreme Court Justices.
  We continue to remain ahead of the pace set forth in the 108th 
Congress under President Bush. So far, we have held hearings on 85 
percent of President Obama's judicial nominees. That is compared to 
only 79 percent at this point in President Bush's Presidency. I note 
that we have another nomination hearing scheduled in the Judiciary 
Committee on Wednesday of this week. We have also reported 76 percent 
of the judicial nominees received so far this Congress, with five more 
scheduled for consideration on Thursday of this week. A comparable 75 
percent were reported at this time in the 108th Congress.
  Critics may dismiss the activity we have accomplished in committee as 
not making real progress. But everyone knows that no votes can take 
place on the Senate floor until committee action is complete, and that 
completion must include hearings as well as markups.
  Furthermore, when it comes to floor action, we are making real 
progress as well. We are well ahead in this session of the confirmation 
pace of previous sessions of Congress. As I mentioned, after this vote, 
we will have confirmed 51 judicial nominees during this session of 
Congress. I point out that this exceeds the average number of judicial 
confirmations going back to the 1st session of the 97th Congress. That 
session was the beginning of President Reagan's first term in 1981. The 
average since then is 44 judicial confirmations per session. This puts 
the current session of Congress in the top 10 over the past 30 years. 
This means that during this session, President Obama has had better 
results with his judicial nominees than President Reagan had in seven 
sessions of Congress. It is more confirmed in five of the eight 
sessions of Congress during President Clinton's administration. 
President George W. Bush had six sessions of Congress with fewer 
nominees confirmed.
  So I hope these statistics--as boring as they are--will put to rest 
insinuations that there is something that is somehow different about 
this President or that he is being treated unfairly because those sorts 
of comments do not hold up to analysis.
  To support the ``lack of real progress''--those are the words we keep 
hearing--some would argue that the only valid measure of progress is 
how quickly a nominee is confirmed after being reported out of 
committee. That is only one piece of the confirmation process. Hearings 
and markups in committee are also necessary components. To ignore those 
elements distorts the picture.
  I want to give you an example involving today's nominee, the one we 
will be voting on in less than half an hour. Mr. Higginson was 
nominated May 9 of this year. He had his hearing 30 days later. The 
total time from nomination to confirmation was 175 days. Compare this 
to the record of the nomination of Edith Brown Clement. She was the 
nominee of President Bush to be U.S. circuit judge for the Fifth 
Circuit. Like Mr. Higginson, she, too, was from Louisiana. May 9, 2001, 
was the first day of her nomination, and because it wasn't handled 
right away, it had to be returned to the President during the August 
recess of that year. And, of course, a month later, on September 4, 
2001, she was renominated. Compare this length of time involving Judge 
Clement with the nominee today. As I said, she was renominated on 
September 4. She had to wait 148 days for her hearing. The total time 
from initial nomination to confirmation was 188 days. That is nearly 2 
weeks longer than Mr. Higginson's confirmation wait.
  This is just one example of how cherry-picking one piece of the 
confirmation process over another can lead to unfounded conclusions. If 
one argues that Mr. Higginson has been treated unfairly because of how 
long he waited for confirmation, then certainly Judge Clement was 
treated even worse. I note that Judge Clement was approved by the 
committee on a unanimous vote and confirmed on the floor of the Senate 
on a 99-to-0 vote.
  Let's get to the present nominee. I support the nomination of Mr. 
Higginson. He received his bachelor of arts degree from Harvard 
College, summa cum laude, in 1983 and juris doctorate from Yale Law 
School in 1987. Upon graduating from law school, he served as a law 
clerk for Chief Judge Patricia Wald, U.S. Court of Appeals, DC Circuit. 
He then clerked at the Supreme Court for Associate Justice Byron White.
  Since these clerkships, Mr. Higginson has served as an assistant U.S. 
attorney. From 1989 to 1993, he served in the U.S. Attorney's Office in 
the District of Massachusetts. In 1993, he transferred to the Eastern 
District of Louisiana, continuing with criminal trial work, and became 
chief of appeals in 1995. From 1997 through 1998, he was detailed by 
the Department of Justice to work for the U.S. Department of State as 
Deputy Director of the Presidential Rule of Law Initiative. In 2004, he 
became a part-time assistant attorney general while serving as a full-
time associate professor of law at Loyola University New Orleans 
College of Law.
  The American Bar Association Standing Committee on the Federal 
Judiciary has rated Mr. Higginson with a unanimous ``well qualified.''
  I intend to vote for his nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Ms. LANDRIEU. Mr. President, I understand we have about 4 minutes on 
our side. I thank my colleague, Senator Grassley, for his kind words of 
support.
  I have strong words of support for the nomination before the Senate 
today. I rise to support the confirmation of Stephen Higginson to the 
U.S. Court of Appeals for the Fifth Circuit. I was pleased to recommend 
Mr. Higginson to President Obama to be considered for this nomination 
to this important post. I am pleased to be joined by my colleague from 
Louisiana, who also supports this nomination and supports this 
confirmation.
  I want to take just a moment to share with my colleagues a few 
highlights of Mr. Higginson's background and resume.
  He has been well prepared for this position. He has resided in New 
Orleans with his wife Colette and their three children, Christopher, 
Katy, and Noelle. Prior to that, he began with a degree from Harvard, 
graduating summa cum laude. After graduating there, he earned a 
master's in philosophy--which is unusual but very welcomed in this 
field--from Cambridge University. He went as a Harvard Scholar. With 
degrees from two very prestigious institutions, he decided to pursue 
his J.D. from Yale Law School, where he graduated 3 years later. He 
earned the extraordinary distinction of being both editor-in-chief of 
the Yale Law Review and the winner of the Israel H. Perez prize for the 
best written contribution to the Law Review. After graduating from 
another prestigious school--Yale--he served as law clerk to the 
Honorable Patricia M. Wald of the U.S. Court of Appeals in the District 
of Columbia. He also served as law clerk to the Honorable Byron White 
of the U.S. Supreme Court.
  Clearly, his academic and professional accomplishments have prepared 
him to handle the legal complexities of Federal appellate cases.

[[Page 16279]]

  All of these things have been put into context beautifully by 
comments from the judges with whom he will serve should he be confirmed 
today by the Senate. Other justices on the court, including Judge James 
Dennis of the Fifth Circuit, described him this way:

       Stephen has all the qualities one needs to become a great 
     judge and great colleague. He will be a great addition to our 
     court, and I look forward to serving with him.

  Another Fifth Circuit judge, Judge Edith Clement Brown, called Mr. 
Higginson ``the best criminal lawyer that has ever practiced before me 
in all of my 20 years serving on the Federal bench.''
  Finally, from the man he will succeed should he be confirmed, Judge 
Jack Weiner, who took senior status last year, said this:

       I have long admired Stephen Higginson's advocacy here in 
     the Eastern District, his scholarship as a law professor, his 
     outstanding academic record at Harvard and Yale Law School, 
     and as an exemplary citizen here in New Orleans. I am 
     distinctly honored to have him succeed to my seat on this 
     court, and I'm confident that he will discharge the duties of 
     the U.S. Circuit Court Judge fairly, conscientiously, and 
     honorably.

  With my strongest recommendation, I ask my colleagues in the Senate 
to vote with me in approving this nominee today.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. VITTER. Mr. President, I rise and am honored to join my colleague 
from Louisiana, Senator Landrieu, as well as others, including Senators 
Leahy and Grassley, in strongly supporting this nomination. It is a 
very strong nomination.
  First of all, let me say that I am very happy to work in a very close 
fashion with Senator Landrieu on all of the judicial nominations in 
Louisiana under President Obama. I have to say that work and that 
cooperation has gone more smoothly, with better results, than I could 
ever have imagined. So I am very pleased with that entire process.
  This nomination of Stephen Higginson is perhaps the strongest, most 
shining example of that. Senator Landrieu and I worked very closely 
together. We were very focused on this important Fifth Circuit 
nomination. Quite frankly, we were both concerned about someone whom 
the White House was looking closely at for the nomination. We both, 
together, expressed that concern. And then we both very much supported 
this nomination of Stephen Higginson.
  Senator Landrieu, through a process she set up independently, 
suggested Steve Higginson as a nominee, and I very immediately and 
passionately and strongly chimed in. We did this because this is a 
highly qualified individual who will make nothing less than a great 
judge.
  As has been mentioned, Steve has a sterling record in many different 
facets. He is an associate law professor at Loyola Law School, where he 
has received great admiration from both his fellow professors, 
colleagues, and his students. He has served for about two decades as a 
Federal prosecutor in various offices of the U.S. Attorney, mostly the 
U.S. Attorney for the Eastern District of Louisiana, since 1993.
  During this time in Louisiana, Steve has handled multiple 
investigations and criminal trials--first at the trial level, then at 
the appellate level--and he has supervised both criminal and civil 
appeals. In this role, he has authored over 100 Federal appellate 
briefs and he has reviewed more than 300 appellate briefs authored by 
others. Of course, that is very directly relevant to this job on the 
U.S. Fifth Circuit.
  This work, and the entire work of this U.S. Attorney's Office, has 
been extremely important for the citizens of Louisiana in at least two 
respects. First of all, this U.S. Attorney's Office--led by current 
U.S. Attorney Jim Letten, a career prosecutor, initially appointed by 
President Bush and kept on by President Obama--has made enormously 
important strides in cleaning up political corruption in Louisiana with 
several landmark prosecutions, and Steve Higginson has been an 
important part of many of those landmark prosecutions.
  Second, in the immediate aftermath of Hurricane Katrina, this U.S. 
Attorney's Office, headed by Jim Letten and aided very much by Steve 
Higginson, was extremely instrumental in helping local prosecutors and 
local law enforcement recover from the blows of Hurricane Katrina, get 
back on their feet and move forward with important criminal 
prosecutions.
  A U.S. attorney's office is always important to a community, but I 
point out these two ways in which Steve Higginson's work under U.S. 
Attorney Jim Letten has been particularly significant for the citizens 
of the Greater New Orleans area.
  Steve came very well prepared for all of this work. As was mentioned, 
he has an exemplary academic career, including editor-in-chief of the 
Yale Law Journal, which is no small feat. He also served as law clerk 
to Supreme Court Justice Byron White. His work in the U.S. Attorney's 
Office has also been recognized in a myriad of ways.
  He has gotten many awards, so I will just mention one or two--for 
instance, the Excellence in Law Enforcement Award from the New Orleans 
Metropolitan Crime Commission, again focusing on that very important 
anticorruption work and post-Katrina work. At Loyola Law School, as I 
mentioned before, Steve has been recognized and lauded by his 
colleagues on the faculty, his peers, and by his students. In fact, 
from his students he has won Loyola's Professor of the Year Award three 
times in just a few years.
  Steve will bring a wealth of public experience to the Federal bench 
and is exceptionally qualified to serve there.
  I believe the Constitution is very clear that judges must interpret 
the law and not legislate from the bench, and I think our most solemn 
responsibility in terms of confirming Federal judges is to make sure we 
confirm judges who respect that rule of law and who live by that rule 
of judicial restraint. I am confident Steve Higginson will be such a 
judge. So, again, I am very pleased to join my colleague from 
Louisiana, Senator Landrieu, and to join many others in a very 
bipartisan way, including the chair of the committee, Senator Leahy, 
and the ranking member, Senator Grassley, in strongly endorsing and 
supporting the nomination of Steve Higginson to join the Fifth Circuit 
Court of Appeals.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GRASSLEY. 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. GRASSLEY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             The CLASS Act

  Mr. GRASSLEY. Mr. President, on Friday a week ago, the Secretary of 
HHS made a very important announcement regarding one specific provision 
of the Patient Protection and Affordable Care Act. Secretary Sebelius 
announced the administration would no longer be implementing the 
Community Living Assistance Services and Support Act. The acronym CLASS 
applies to that part of the health care bill. She said:

       When it became clear that the most basic benefit plans 
     wouldn't work, we looked at other possibilities. Recognizing 
     the enormous need in this country for better long-term care 
     insurance options, we cast as wide a net as possible in 
     searching for a model that could succeed. But as a report our 
     department is releasing today shows, we have not identified a 
     way to make CLASS work at this time.

  This is not an ``I told you so'' speech, although it certainly could 
be. It isn't as though folks weren't raising significant concerns about 
the CLASS Act a long time before it ever passed. Two years ago, during 
the debate, Member after Member of the Senate came to the floor to 
argue the CLASS Act was destined to fail. Senator Thune led the fight 
to raise awareness about the fiscal disaster the CLASS Act has now 
turned out to be. The Democratic chairman of the Budget Committee

[[Page 16280]]

called it a ``Ponzi scheme.'' The Democratic chairman of the Finance 
Committee stated on the floor that he was ``no friend of the CLASS 
Act.''
  When the Senate took a vote on the CLASS Act, 51 Senators, including 
12 Democrats, voted to strip it from the legislation. The majority 
didn't rule that day because an agreement required 60 votes to strip it 
out.
  I think special recognition should go to former Senator Judd Gregg of 
New Hampshire. As ranking member of the Budget Committee while in the 
Senate, and a senior member of the HELP Committee, he was deeply 
concerned about the ultimate cost of the CLASS Act on future 
generations. He led an amendment to require the CLASS Act be 
actuarially sound. He did so not because he wanted to improve the CLASS 
Act but because he wanted to make clear the CLASS Act could not work 
from a fiscal standpoint.
  His amendment showed that, once implemented, the CLASS Act would take 
in revenues in early years and then begin to lose revenues in the 
outyears, ultimately either failing or requiring a massive bailout with 
taxpayer money to salvage the program. In a strange twist of budget 
scoring rules, his amendment, once accepted, led the Congressional 
Budget Office to score the CLASS Act as producing savings on paper in 
the short term.
  The score made clear the CLASS Act was doomed to failure, but as only 
happens here in Washington, a score showing the obvious failure of the 
CLASS Act then became an asset, particularly an asset because the 
Democratic leadership wanted to show this bill was revenue neutral or 
even revenue positive. It was used by the Democratic leadership not for 
what it provided beneficiaries but what it did for the overall health 
care reform bill.
  With the CLASS Act and some imaginary savings in the bill, it made 
the overall bill look as if it actually saved money. Those savings, of 
course, were a gimmick. Everyone in Congress knew it, but some chose to 
ignore it or, worse still, to celebrate it.
  The very first action on the floor for the Affordable Care Act was 
for the majority leader to ask unanimous consent to prevent amendments 
from spending the imaginary savings--and I emphasize imaginary 
savings--generated by the CLASS Act. It wasn't a motion to protect the 
CLASS Act itself but a cynical motion to protect its precious 
``savings'' and the political value it had. Only in Washington, with 
overwhelming evidence on the table making clear a program would fail, 
would defense of the doomed CLASS Act become a virtue.
  The Chief Actuary at CMS stated:

       There is a very serious risk that the problem of adverse 
     selection would make the CLASS program unsustainable.

  The risks were known then, yet Democrats in Congress plowed ahead 
anyway. Why, you may ask. Well, Megan McArdle noted in the Atlantic on 
Monday:

       The problems with CLASS were known from day one, but no one 
     listened, because it gave them good numbers to sell their 
     program politically.

  And it wasn't just political cover. The imaginary savings gave them 
protection against potential budget points of order. Would the Senate-
passed bill have been subject to a budget point of order without the 
imaginary CLASS Act savings in the bill? That is a very legitimate 
question.
  The announcement by the Secretary of HHS provides an overdue 
vindication for Senator Gregg. His amendment made the announcement 
inevitable. Health and Human Services could not make a viable case for 
implementing the CLASS Act because of Senator Gregg's amendment 
requiring the CLASS Act to be actuarially sustainable.
  Our next action is clear. Congress should repeal the CLASS Act. It 
was not in the House health care reform bill. A majority of the Senate 
voted to strip the CLASS Act from the Senate bill. It was passed under 
laughably false pretenses. The responsible action for Congress is to 
repeal it in the first relevant piece of legislation.
  I take a back seat to no one on issues associated with improving the 
lives of seniors and the disabled. As ranking member of the Aging 
Committee, I oversaw critical hearings into deep and persistent 
problems in our Nation's nursing homes. I was the principal author of 
the Medicare Part D prescription drug bill, which is currently 
providing our seniors and people with disabilities with affordable 
prescription medications.
  On the disability front, one of my proudest achievements is the 
enactment of legislation I sponsored, along with the late Senator Ted 
Kennedy--the Family Opportunity Act--which extends Medicaid coverage to 
disabled children. In large part through my efforts, the Money Follows 
the Person Rebalancing Act and the option for States to implement a 
home- and community-based services program were included in the Deficit 
Reduction Act of 2005.
  Along with Senator Kerry, I introduced the Empowered at Home Act 
which, among other things, revised the income eligibility level for 
home- and community-based services for elderly and disabled 
individuals.
  This is what I said about the CLASS Act on December 4, 2009:

       If I thought that the CLASS Act would add to this list of 
     improvements to the lives of seniors or the disabled, I would 
     be first in line as a proud cosponsor of the CLASS Act. But 
     the CLASS Act does not strengthen the safety net for seniors 
     and the disabled. The CLASS Act compounds the long-term 
     entitlement spending problems we already have by creating yet 
     another new unsustainable entitlement program. The CLASS Act 
     is just simply not viable in its current form.

  That is the end of the quote I made on December 4, 2009, when that 
provision of the health care reform bill was up.
  But this is not an ``I told you so'' speech. No, Mr. President, I am 
here because I am offended by the way this administration and 
proponents of health care reform have used the disability community 
throughout the debate over the CLASS Act.
  Congress and the administration knew the CLASS Act would fail when it 
was being considered. The administration now somehow manages to treat 
this as a shocking discovery, and the fact that they are doing that is 
beyond me. But the way the administration has tried to soften the blow 
for the disability community rubs me the wrong way, because in the 
Secretary's statement on the CLASS Act I referred to, the Secretary 
said this:

       In fact, one of the main reasons we decided not to go ahead 
     with CLASS at this point is that we know no one would be hurt 
     more if CLASS started and failed than the people who had paid 
     into it and were counting on it the most. We can't let that 
     happen.

  Of course, they could have opposed the inclusion of the legislation 
and told the disability community the exact same thing back in 2009. 
Apparently, the administration is trying to tell the disability 
community that even though HHS can't implement the statute, they don't 
want to repeal it. Nicholas Pappas, a White House spokesman, said:

       We do not support repeal. Repealing the CLASS Act isn't 
     necessary or productive. What we should be doing is working 
     together to address the long-term care challenges we face in 
     this country.

  After putting the political value of the savings ahead of the doomed 
policy, the administration finally admitted the CLASS Act was a 
failure. They apologized to the disability community. They said they 
don't support repeal of the CLASS Act.
  After years of dodging reality, it is time for the President and the 
majority party to treat the disability community respectfully and 
honestly. If the President believes the CLASS Act can and should be 
saved, he should put revisions on the table much as he threatened to in 
early 2010 but never managed to.
  Congress should weigh repeal of the CLASS Act against revisions that 
could be proposed to make it a legitimate program. We should do so with 
a full score--meaning from CBO--and in the context of our current 
fiscal climate with all our cards on the table, not the stealthy way it 
was handled in 2009. We should have a healthy and open debate.
  The insipid strategy of passing something into law with a wink and a 
nod toward making it all better in the future is unacceptable and 
disrespectful

[[Page 16281]]

to the disability community purported to be served by the legislation.
  Our course is clear. For those of us who care about the disability 
policies, the days of ignoring reality must come to an end. We should 
repeal the CLASS Act and move on to other legislation that gets the job 
done in a fiscally responsible way.
  I yield the remainder of the time.
  The PRESIDING OFFICER. All time has expired.
  The question is, Shall the Senate advise and consent to the 
nomination of Stephen A. Higginson, of Louisiana, to be United States 
Circuit Judge for the Fifth District of Louisiana?
  Mr. GRASSLEY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Manchin). Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Missouri (Mrs. 
McCaskill) and the Senator from Virginia (Mr. Warner) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from New Hampshire (Ms. Ayotte), the Senator from Missouri (Mr. Blunt), 
the Senator from North Carolina (Mr. Burr), the Senator from Indiana 
(Mr. Coats), the Senator from South Carolina (Mr. DeMint), the Senator 
from Texas (Mrs. Hutchison), the Senator from Arizona (Mr. McCain), the 
Senator from Idaho (Mr. Risch), the Senator from Kansas (Mr. Roberts), 
and the Senator from Florida (Mr. Rubio).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                      [Rollcall Vote No. 188 Ex.]

                                YEAS--88

     Akaka
     Alexander
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boozman
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heller
     Hoeven
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Webb
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--12

     Ayotte
     Blunt
     Burr
     Coats
     DeMint
     Hutchison
     McCain
     McCaskill
     Risch
     Roberts
     Rubio
     Warner
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table.
  The President will be immediately notified of the Senate's action.

                          ____________________