[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 7346-7354]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF SUSAN L. CARNEY TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             SECOND CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination.
  The legislative clerk read the nomination of Susan L. Carney, of 
Connecticut, to be United States Circuit Judge for the Second Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 2 hours of debate equally divided and controlled between the 
Senator from Vermont, Mr. Leahy, and the Senator from Iowa, Mr. 
Grassley, or their designees.
  Mr. McCONNELL. Madam President, I suggest the absence of a quorum, 
and I ask that the time be charged equally to both sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Madam 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order for the quorum call be rescinded.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. BLUMENTHAL. Madam President, I rise today to voice my strong 
support for the nomination of Susan Carney to serve as an appeals court 
judge on the Second Circuit Court of Appeals, one of our most 
distinguished appeals court panels among the Federal circuits. I hope 
the Senate will move swiftly to confirm her to fill one of the open 
seats on this critically important court.
  Ms. Carney has truly impressive credentials for appointment to the 
Federal bench. She graduated cum laude from Harvard College in 1973 and 
magna cum laude from the Harvard Law School in 1977. She then went on 
to clerk for Judge Levin Campbell on the Court of Appeals for the First 
Circuit.
  She currently serves as deputy general counsel for Yale University, 
one of the country's great institutions of higher learning, and 
previously served as an associate general counsel for Yale. In her 
capacity at Yale, she advises the university on a wide range of legal 
issues, some of them complex and challenging, relating to intellectual 
property, international transactions, and commercial matters.
  Ms. Carney's time at Yale has exposed her to a broad array, a diverse 
swath of Federal law, giving her a breadth of experience that truly 
qualifies her to serve on the Second Circuit, which handles Federal 
appeals on legal issues arising within New York, Vermont, and 
Connecticut. In various matters, Ms. Carney has advised Yale in 
reaching very successful results, and that experience will serve her 
well on the bench. Her experience as an advocate has given her a 
perspective that will give her the kinds of qualities--a respect for 
other advocates who come before the court, a respect for the legal 
principles at stake, for the factual findings of courts below--and of 
all the considerations that are so critically important to ability and 
integrity on the Federal court of appeals.
  She spent 17 years working as a private practice attorney in 
Washington, DC, and Boston, and there, too, she represented a wide 
array of clients on major issues, including, for example, the Major 
League Baseball Players Association and a Tennessee union that stopped 
work due to its employees' exposure to uranium. In the Tennessee court, 
the NLRB determined that striking employees could not be replaced, and 
the DC Circuit issued a similarly posited verdict.
  As impressive as her commercial and private litigation is is her 
commitment to pro bono public service work. She engaged in such work 
throughout her

[[Page 7347]]

time as a lawyer, offering free legal counsel to pro bono clients and 
even volunteering as a tutor. Her commitment to the community as well 
as appropriate legal representation for all clients demonstrates a real 
respect for the legal system and the fairness, the fundamental fairness 
of the legal system that I believe should be and is broadly shared by 
members of the Federal bench.
  Her nomination comes at a particularly pressing and challenging time 
for the Second Circuit. The vacancy she is slated to fill has been 
designated as a ``judicial emergency.'' The vacancy has existed since 
October 10, 2009. There are two open seats from Connecticut on this 
court, which is currently more than 15 percent understaffed. So the 
arrival of Susan Carney to the Second Circuit will have immediate 
impacts. It will help immediately to address the understaffing problem 
and the work burden that has accumulated as a result of it. It will 
ensure that this caseload can be addressed quickly and efficiently.
  We hear in this body the famous saying that ``justice delayed is 
justice denied.'' Truly, it is often justice denied if it is delayed. 
In practical circumstances, people have a right to their day in court, 
which includes a day in the court of appeals. In the Federal courts, 
that appeal is generally one of right, it is not discretionary, and to 
deprive people of that right is truly a denial of justice.
  I have been impressed since I came to the Senate by the good faith 
that has been shown by both sides in working to address this growing 
judicial vacancy issue. Some have thought it an epidemic. In many 
circuits, it has been characterized as a ``judicial emergency,'' and it 
has been spurred by respected figures from across the spectrum, from 
Chief Justice Roberts to Attorney General Holder. The Senate has been 
moving very responsively and responsibly to address this issue.
  I am hopeful that this nomination of Susan Carney and others that 
will follow, as some have preceded it, will lead to a new era in 
addressing the judicial vacancy problem throughout our Federal courts. 
The American people expect us to work together, just as they expect the 
courts to give them justice. So far, I have been encouraged to see 
Members of both parties working in the Senate to act expeditiously on 
these nominations, some of them very long delayed. I hope the Senate 
will continue this trend with the swift confirmation of Susan Carney to 
the Second Circuit.


                            Big Oil Profits

  On the issue of emergencies, I would like to address a second topic.
  Over the last decade, what we have seen is a pattern of rising 
profits on the part of oil companies. The emergency for consumers is 
one of rising prices now.
  I believe we have an obligation to ensure fundamental fairness in our 
Tax Code by eliminating, in effect, the tax subsidies and loopholes and 
giveaways that are such an offense to the justice and fairness of our 
system.
  In spite of the big five oil companies earning more than $1 trillion 
in profits, they have enjoyed tens of millions of dollars in taxpayer 
subsidies, which are unconscionable, they are unacceptable, and they 
must end.
  That is the purpose of the legislation we are going to consider later 
today. I strongly support it in the interest of consumers, but, more 
importantly, in the interest of taxpayers and to repair a part of our 
deficit.
  While families and businesses in Connecticut are paying more than 
$4.25 a gallon, putting a strain on all of our family budgets, the big 
oil companies continue to rake in record profits and continue to enjoy 
subsidies that put a dent in our fiscal situation. The companies made 
over $30 billion in profits in the first quarter of this year alone, 
representing a 50-percent increase in profits from last year.
  The long and short of this debate is, big oil doesn't need these 
subsidies. They don't need the help of American taxpayers to do 
exploration or any of the other activities that are involved in 
producing the profits they enjoy so abundantly.
  Ending these subsidies, despite claims to the contrary, will not 
increase prices at the pump and, instead, will provide for basic 
fairness so Americans no longer have to pay for these giveaways and tax 
breaks to some of the most profitable companies in the world.
  People in my home State of Connecticut and across the country remain 
concerned about reducing our debt and deficit. We cannot do it if we 
have this plethora of subsidies and giveaways and breaks going to 
special interests and corporations, such as Big Oil, which simply don't 
need it.
  Ordinary Americans, in Connecticut and elsewhere, are struggling to 
stay in their homes, find jobs, keep their families together and they 
regard these subsidies as offensive to fundamental fairness and they 
are right.
  I urge this body to act later today in eliminating those loopholes 
and subsidies.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma is 
recognized.
  Mr. INHOFE. Madam President, it is my understanding that I have 10 
minutes as in morning business. I ask unanimous consent to use that 
time now.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. INHOFE. Madam President, we are going to be voting on a bill this 
afternoon to dramatically increase taxes on America's oil and gas 
companies. I only suggest that it is not going to pass. I can recall 
when the Senator from Vermont, just a few months ago, had a bill that 
would have done essentially the same thing--pass tax increases on these 
oil and gas companies. I remember coming to the floor at that time and 
giving my argument against it. It ended up that we voted on it, and we 
had 61 votes against it, so it worked out that about 30 were for it.
  Afterward--and I have to say this about Senator Sanders--Senator 
Sanders said that was probably one of the healthiest and honest debates 
he had seen during the years he has been in the Senate. I agreed with 
that. The idea that we can somehow tax these people and accomplish 
something--let me just say that the Congressional Research Service--and 
when I talk about CRS, it is nonpartisan and nobody argues with them.
  We in the United States have the largest recoverable reserves of oil, 
gas, and coal of any country in the world. There is no reason we cannot 
be completely independent of the Middle East. All we have to do is 
explore our own resources--oil, gas, and coal.
  This same Congressional Research Service has looked at the issues and 
told us that raising taxes on energy companies will do two things--
decrease supply and increase our dependence on foreign countries. In 
other words, this vote we are going to have this afternoon, if it were 
successful, would decrease the supply and increase our dependence upon 
the Middle East.
  In addition to the CRS, let's go back to the 1970s, under the Carter 
administration, when we had the windfall profits tax. The same exact 
thing happened. It decreased supply and increased our dependence on 
foreign competition. The interesting point is--and my wife is not the 
only one complaining about the price of gas, but she is certainly loud 
and clear in that position--nobody is saying that by increasing the 
taxes, with the vote we are going to have on oil and gas companies this 
afternoon, somehow that will have the effect of lowering prices at the 
pump. It will raise them. In fact, I think several Members have come 
down--Senator Menendez, the sponsor of the legislation, said:

       Nobody has made the claim that this bill is about reducing 
     gas prices.

  If it is not about reducing gas prices, then what is it for? The 
answer to that is, they say--as the Senator from Connecticut just 
stated, this is going to be something that is going to be reducing the 
deficit. Our problem is, President Obama and his Democratic support in 
the House and Senate--in the first 2 years, they had a large majority 
in the House and the Senate--in his 3 years of the budget, they have 
increased the deficit and budget by over $5 trillion. I can remember 
coming to the floor of

[[Page 7348]]

the Senate during the Clinton years, in 1995, saying this is 
outrageous. This was a $1.5 trillion budget. That was to run the entire 
United States. This last budget by President Obama was an increase of 
$1.65 trillion--just the deficit. Let's do our math. That is 365 days a 
year, and it works out to be $4 billion a day.
  We have a President and his majority giving us a $4 billion-a-day 
deficit, and this says it is going to cut the deficit by $2 billion. So 
we can tax all these oil companies to come up with enough money to 
reduce the deficit just by $2 billion. That is worth one-half day's 
deficit of this administration. I know the majority of people 
understand that, and they will not be duped into doing that.
  By the way, I have to say that fortifying me was this morning's 
editorial in USA Today. They talk about how ludicrous this idea is that 
we can increase taxes on oil and gas companies. They say it is an 
example of the sort of political gamesmanship that substitutes for 
serious deficit reduction. It says:

       But the initiative is also government at its arbitrary 
     worst, further complicating the tax code by singling out five 
     companies--ExxonMobil, Chevron, ConocoPhillips, Shell, and 
     BP--for special taxes not paid by smaller energy concerns. . 
     . .

  So we have a little class warfare going along with it. Only 
yesterday, the same USA Today was criticizing me in their editorial 
policy because I don't want to pass a cap and trade--a tax increase. 
The same paper that yesterday was critical of a position I have taken 
is now strongly in favor of the position I have taken in avoiding any 
additional taxes on the energy companies or anybody else.
  The last thing I will say--because I will stay within my timeframe is 
that people say if we want to do something about the deficit--and that 
is what they are saying they are doing--this is one-half day's deficit 
if they pass these tax increases, which they will not--they say there 
are only two ways to handle the debt; one is to decrease spending and 
another is to increase taxes.
  I suggest there is a third way. That way is to go after all these 
regulations we currently are operating under as a result of this 
administration. We are talking about cap-and-trade regulations, 
greenhouse gas regulations, boiler MACT regulations, ozone, which could 
create over 600 nonattainment areas, and the cost of that is $90 
billion. If we add all the costs of all these different regulations--
greenhouse gas, $300 billion to $400 billion; ozone, $60 billion to $90 
billion; boiler MACT, $1 billion; and utility MACT, $184 billion--when 
we add that, it is $1 trillion. If we take the $1 trillion, that is 7 
percent of the $14 trillion that we would say the GDP would amount to.
  CRS says that for every 1 percent increase in economic activity or 
increase in GDP, that translates into revenue of $50 billion. This is 7 
percent, so that would be $350 billion. If we want to go after the 
deficit, deficit spending, and the debt, go after the regulations too. 
But to think we can tax oil and gas companies and somehow come up with 
$2 billion to reduce the deficit, that is just one day's deficit under 
the Obama administration. This body is not going to pass that.
  With that, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, I congratulate the Senator from 
Oklahoma for making an obvious and compelling point, which is that the 
problem is high gasoline prices. Why is the Democratic solution to 
raise them more? That is all their tax would do.
  The Republican plan for dealing with high gasoline prices is to find 
more American energy and use less. The Democratic plan seems to be to 
find less and tax more. That is not going to solve the problem. We need 
to use less. We agree with that.
  There are a variety of ways to do that: through conservation and 
electric cars, which I favor, and finding research for crops--for 
alternative fuels from crops we don't need. More important, we need to 
find more American energy and natural gas offshore, on Federal lands, 
and in Alaska. That will not completely solve the problem of high 
gasoline prices, but it will help. If less oil from Libya is a factor 
in raising gasoline prices, more oil from the United States would be a 
factor in lowering gasoline prices. We are, after all, the third 
largest producer of oil in the world.
  I thank the Senator from Oklahoma for an excellent point. The 
Democratic proposal is to find less American energy and to tax more.


                            nlrb and boeing

  Madam President, I wish to speak about the events of the last few 
weeks that have followed the decision by the National Labor Relations 
Board general counsel to file a complaint against the Boeing Company, 
alleging basically that the fact that they are expanding their 
production of airliners at a new plant in South Carolina, which is a 
right-to-work State, is prima facie evidence of an unfair labor 
practice. This would, in effect, establish for the first time since the 
Taft-Hartley Act was passed in 1947, the idea that it is against the 
Federal law for a company that is producing in a union State to move or 
expand its facilities in a right-to-work State, of which there are 22.
  We are talking about the first new plant in 40 years to build large 
airplanes. The Boeing Company builds most of its planes in Washington 
State. It is the Nation's largest exporter. It has 170,000 employees 
around the world, and 155,000 of them are employees in the United 
States. These are good jobs.
  But at the Senate Health, Education, and Labor Committee hearing on 
Thursday, the general counsel of Boeing said the company expects to 
lose their appeal of the general counsel's complaint when it is heard 
before an administrative judge on June 14. Then they expect to lose the 
appeal of that decision to the National Labor Relations Board because 
the company assumes that the general counsel is following the same view 
of the law that the President's appointees on the NLRB are following. 
However, then Boeing expects to win the case when it goes to the U.S. 
court of appeals or, perhaps, even to the Supreme Court. But it will 
take 2 to 5 years for all that to happen.
  I ask, what happens to American jobs in the meantime? Well, first, 
this complaint against Boeing will slow the number of good, new jobs 
into my State of Tennessee, which has a 9-percent unemployment rate, 
and it has had that for 2 years. I have watched our State grow over the 
last 30 years, from the time I was Governor. We had a hearing last week 
that Senator Harkin called, chairman of the Health, Education, and 
Labor Committee, about middle-class incomes. What I said at the hearing 
was that the effect on middle-class income in Tennessee--the State I 
know the most about--is that 30 years ago we were the third poorest 
State. Because the auto industry chose to come to our State, partly 
because it was a central location in the population market and because 
it is a right-to-work State with a different sort of labor environment 
in it than other States--because the auto industry came to Tennessee, 
middle incomes have gone up.
  One-third of the manufacturing jobs in our State are now auto jobs. 
Nissan is there. General Motors is there. Volkswagen just came there. 
Hundreds of suppliers have come to Tennessee. They like the 
environment. They like the road system. They like the central location. 
But they like the right-to-work law.
  Suddenly any supplier or any manufacturer who wants to create a new 
facility in 1 of the 22 right-to-work States, including Tennessee, 
according to the National Labor Relations Board counsel, is going to 
have to think twice because that company, which could be a small 
company, may not want to spend 2 to 5 years before the National Labor 
Relations Board. I think this counsel knew exactly what he was doing. 
He was trying to freeze job expansion in the United States at a time 
when we need job expansion the most.
  There is an unintended consequence to this. If jobs cannot move into 
Tennessee and other right-to-work States because of the Boeing 
complaint, they may not move into the States that do

[[Page 7349]]

not have a right-to-work law. Why is that? According to Jim McNerney, 
the CEO of Boeing:

       An unintended consequence of the Boeing complaint [is that] 
     forward thinking CEOs also would be reluctant to place new 
     plants in unionized States--lest they be forever restricted 
     from placing future plants across the country.

  If you want to put a plant in, say, Michigan, which is a unionized 
State, you might not do that because under the general counsel of the 
NLRB's rule of law, you then could not move to South Carolina or 
Tennessee or Arkansas or any other State with a right-to-work law.
  If you cannot go to a unionized State, and if you cannot go to a 
right-to-work State, then where do you go if you want to make things? 
You go overseas. This action by the NLRB general counsel is the single 
most important action I can imagine that would make it more difficult 
to create good, new jobs in Tennessee and would make it more likely 
that manufacturing jobs would go overseas.
  The President of the United States asked the chief executive of 
Boeing, Mr. McNerney, to chair the President's Export Council. I 
presume what President Obama would like for Mr. McNerney to do is to 
export airplanes, not export jobs. But what the NLRB ruling will do is 
cause the export of jobs, not the export of airplanes.
  Boeing has 170,000 employees. About 90 percent of them are in the 
United States. But Boeing sells its airplanes everywhere in the world, 
and Boeing can make its airplanes anywhere in the world. There may be 
other countries that come to Boeing and to other manufacturers in the 
United States and say: We want you to make in our country what you sell 
in our country. After this NLRB decision, they may be more tempted to 
do that.
  Fortunately, there are other trends suggesting that manufacturing 
companies around the world may be more likely in the next few years to 
make here what they sell in the United States. That is what President 
Carter said to the Governors 30 years ago: Governors, go to Japan. 
Persuade them to make in the United States what they sell in the United 
States. Off I went to Tokyo. I asked Nissan to come to Tennessee, as 
most States. They chose us because of our central location and right-
to-work law, just as other auto jobs have done that. Nissan tells me 
soon 85 percent of what they sell in the United States will be made in 
the United States. Thirty years ago they were making almost none of 
what they sold in the United States in the United States. They were 
making it in Japan. We were worried then Japan was going to take us 
over. That has changed. Now they are making here what they sell here.
  The Economist article this week says there may be a manufacturing 
renaissance coming. What is happening in China where they are making 
things today is a lot like what happened in Japan 30 years ago. As 
China becomes more prosperous, wages will go up. As Japan became more 
prosperous 30 years ago, wages went up. In the auto industry, where 
wages only constitute maybe 20 percent of the total cost of what a 
supplier may have to spend to make a part for a Volkswagen assembly 
plant, wages get to be less important.
  People look at other things. Manufacturing would look at a variety of 
actions by a government before the manufacturer decides where to make 
the airplane or where to make the car or where to make the appliance 
that might be sold in a country.
  They are going to have plenty of incentives naturally to make a lot 
of products in the United States because the country that produces 25 
percent of all the money in the world, which we do, is going to be 
buying a lot of stuff unless we do our best to throw a big wet blanket 
on making here what we sell here, which is precisely what this 
administration has been doing.
  We have a high corporate income tax. Give the President the credit. 
He said maybe we want to change that. We should because it makes it 
better for manufacturers to make products overseas.
  The health care law takes profits away from companies that they might 
use to create new jobs here. I have had heads of restaurant companies 
tell me they are not going to invest anymore in the United States 
because the health care taxes take away all of their profits. 
Regulations make credit harder to get, and regulations drive up energy 
and gasoline prices. All of this makes it harder to make here what 
manufacturers sell here.
  Now we have a regulation from the National Labor Relations Board that 
may have the effect of law for 2 to 5 years that says it is prima facie 
evidence of an unfair labor practice if a company that is producing in 
a union State expands or moves to a right-to-work State. This is an 
assault on every middle-income Tennessean and on millions of middle-
income Americans who have manufacturing jobs--certainly, everyone in 
the 22 right-to-work States. But as the Boeing chief executive said, it 
could be just as much of a disincentive to a State such as Michigan or 
Illinois or some other State that does not have a right-to-work law 
because why would you put a plant in Michigan if later you would not be 
allowed to put it in Tennessee?
  If General Motors has plants in both right-to-work and non-right-to-
work States, we are going to make it more difficult for General Motors 
to expand in America. Where are they going to expand? They can expand 
overseas. They can be making there what they sell there instead of 
making it here.
  Some of my friends on the other side of the aisle like to talk about 
outsourcing jobs. This is the mother of all outsourcing jobs plan--the 
idea that it is prima facie evidence for a company that expands in a 
right-to-work State, that is an unfair labor practice.
  For the next 2 to 5 years, we have the unhealthy situation for jobs 
that any manufacturer who wants to expand will have to think twice 
about expanding in a right-to-work State and then think at least once 
about coming in the first place to a State that does not have a right-
to-work law. The only other option I can see for those jobs is to make 
them overseas. That will not only slow job growth in the United States 
where we desperately need it, but it will be speeding up the sending of 
American jobs overseas.
  Madam President, I ask unanimous consent to have printed in the 
Record two articles--one by George Will this week on the South Carolina 
Boeing plant and the action of the National Labor Relations Board 
complaint, and the second, an article from the Economist magazine.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   [From The Economist, May 12, 2011]

          Multinational Manufacturers--Moving Back to America


          the dwindling allure of building factories offshore

       ``When clients are considering opening another 
     manufacturing plant in China, I've started to urge them to 
     consider alternative locations,'' says Hal Sirkin of the 
     Boston Consulting Group (BCG). ``Have they thought about 
     Vietnam, say? Or maybe [they could] even try Made in USA?'' 
     When clients are American firms looking to build factories to 
     serve American customers, Mr. Sirkin is increasingly likely 
     to suggest they stay at home, not for patriotic reasons but 
     because the economics of globalisation are changing fast.
       Labour arbitrage--taking advantage of lower wages abroad, 
     especially in poor countries--has never been the only force 
     pushing multinationals to locate offshore, but it has 
     certainly played a big part. Now, however, as emerging 
     economies boom, wages there are rising. Pay for factory 
     workers in China, for example, soared by 69% between 2005 and 
     2010. So the gains from labour arbitrage are starting to 
     shrink, in some cases to the point of irrelevance, according 
     to a new study by BCG.
       ``Sometime around 2015, manufacturers will be indifferent 
     between locating in America or China for production for 
     consumption in America,'' says Mr. Sirkin. That calculation 
     assumes that wage growth will continue at around 17% a year 
     in China but remain relatively slow in America, and that 
     productivity growth will continue on current trends in both 
     countries. It also assumes a modest appreciation of the yuan 
     against the dollar.
       The year 2015 is not far off. Factories take time to build, 
     and can carry on cranking out widgets for years. So firms 
     planning today for production tomorrow are increasingly 
     looking close to home. BCG lists several examples of 
     companies that have already

[[Page 7350]]

     brought plants and jobs back to America. Caterpillar, a maker 
     of vehicles that dig, pull or plough, is shifting some of its 
     excavator production from abroad to Texas. Sauder, an 
     American furniture-maker, is moving production back home from 
     low-wage countries. NCR has returned production of cash 
     machines to Georgia (the American state, not the country that 
     is occasionally invaded by Russia). Wham-O last year restored 
     half of its Frisbee and Hula Hoop production to America from 
     China and Mexico.
       BCG predicts a ``manufacturing renaissance'' in America. 
     There are reasons to be sceptical. The surge of manufacturing 
     output in the past year or so has largely been about 
     recovering ground lost during the downturn. Moreover, some of 
     the new factories in America have been wooed by subsidies 
     that may soon dry up. But still, the new economics of labour 
     arbitrage will make a difference.
       Rather than a stampede of plants coming home, ``higher 
     wages in China may cause some firms that were going to scale 
     back in the U.S. to keep their options open by continuing to 
     operate a plant in America,'' says Gary Pisano of Harvard 
     Business School. The announcement on May 10th by General 
     Motors (GM) that it will invest $2 billion to add up to 4,000 
     jobs at 17 American plants supports Mr. Pisano's point. GM is 
     probably not creating many new jobs but keeping in America 
     jobs that it might otherwise have exported.
       Even if wages in China explode, some multinationals will 
     find it hard to bring many jobs back to America, argues Mr. 
     Pisano. In some areas, such as consumer electronics, America 
     no longer has the necessary supplier base or infrastructure. 
     Firms did not realise when they shifted operations to low-
     wage countries that some moves ``would be almost 
     irreversible'', says Mr Pisano.
       Many multinationals will continue to build most of their 
     new factories in emerging markets, not to export stuff back 
     home but because that is where demand is growing fastest. And 
     companies from other rich countries will probably continue to 
     enjoy the opportunity for labour arbitrage for longer than 
     American ones, says Mr. Sirkin. Their labour costs are higher 
     than America's and will remain so unless the euro falls 
     sharply against the yuan.


                       there's no place like home

       The opportunity for labour arbitrage is disappearing 
     fastest in basic manufacturing and in China. Other sectors 
     and countries are less affected. As Pankaj Ghemawat, the 
     author of ``World 3.0'', points out, despite rapidly rising 
     wages in India, its software and back-office offshoring 
     industry is likely to retain its cost advantage for the 
     foreseeable future, not least because of its rapid 
     productivity growth.
       Nonetheless, a growing number of multinationals, especially 
     from rich countries, are starting to see the benefits of 
     keeping more of their operations close to home. For many 
     products, labour is a small and diminishing fraction of total 
     costs. And long, complex supply chains turn out to be riskier 
     than many firms realised. When oil prices soar, transport 
     grows dearer. When an epidemic such as SARS hits Asia or when 
     an earthquake hits Japan, supply chains are disrupted. 
     ``There has been a definite shortening of supply chains, 
     especially of those that had 30 or 40 processing steps,'' 
     says Mr. Ghemawat.
       Firms are also trying to reduce their inventory costs. 
     Importing from China to the United States may require a 
     company to hold 100 days of inventory. That burden can be 
     handily reduced if the goods are made nearer home (though 
     that could be in Mexico rather than in America).
       Companies are thinking in more sophisticated ways about 
     their supply chains. Bosses no longer assume that they should 
     always make things in the country with the lowest wages. 
     Increasingly, it makes sense to make things in a variety of 
     places, including America.
                                  ____


                             [May 13, 2011]

                        The Dreamliner Nightmare

                            (By George Will)

       North Charleston, S.C.--This summer, the huge Boeing 
     assembly plant here will begin producing 787 Dreamliners--up 
     to three a month, priced at $185 million apiece. It will, 
     unless the National Labor Relations Board, controlled by 
     Democrats and encouraged by Barack Obama's reverberating 
     silence, gets its way.
       Last month--17 months after Boeing announced plans to build 
     here and with the $2 billion plant nearing completion--the 
     NLRB, collaborating with the International Association of 
     Machinists and Aerospace Workers (IAM), charged that Boeing's 
     decision violated the rights of its unionized workers in 
     Washington state, where some Dreamliners are assembled and 
     still will be even after the plant here is operational. The 
     NLRB has read a 76-year-old statute (the 1935 Wagner Act) 
     perversely, disregarded almost half a century of NLRB and 
     Supreme Court rulings, and patently misrepresented statements 
     by Boeing officials.
       South Carolina is one of 22--so far--right-to-work states, 
     where workers cannot be compelled to join a union. When in 
     September 2009, Boeing's South Carolina workers--fuselage 
     sections of 787s already are built here--voted to end their 
     representation by IAM, the union did not accuse Boeing of 
     pre-vote misbehavior. Now, however, the NLRB seeks to 
     establish the principle that moving businesses to such states 
     from non-right-to-work states constitutes prima facie 
     evidence of ``unfair labor practices,'' including 
     intimidation and coercion of labor. This principle would be a 
     powerful incentive for new companies to locate only in right-
     to-work states.
       The NLRB complaint fictitiously says Boeing has decided to 
     ``remove'' or ``transfer'' work from Washington. Actually, 
     Boeing has so far added more than 2,000 workers in 
     Washington, where planned production--seven 787s a month, 
     full capacity for that facility--will not be reduced. 
     Besides, how can locating a new plant here violate the rights 
     of IAM members whose collective bargaining agreement with 
     Boeing gives the company the right to locate new production 
     facilities where it deems best?
       The NLRB says that Boeing has come here ``because'' IAM 
     strikes have disrupted production and ``to discourage'' 
     future strikes.
       Since 1995, IAM has stopped Boeing's production in three of 
     five labor negotiations, including a 58-day walkout in 2008 
     that cost the company $1.8 billion and a diminished 
     reputation with customers.
       The NLRB uses meretricious editing of Boeing officials' 
     remarks to falsely suggest that anti-union animus motivated 
     the company to locate some production in a right-to-work 
     state. Anyway, it is settled law that companies can consider 
     past strikes when making business decisions to diminish the 
     risk of future disruptions.
       The economy is mired in a sluggish recovery. But the 
     destructive--and self-destructive--Obama administration is 
     trying to debilitate the world's largest aerospace 
     corporation and the nation's leading exporter, which has 
     155,000 U.S. employees and whose 738 million shares are held 
     by individual and institutional investors, mutual funds and 
     retirement accounts. Why? Organized labor, primarily and 
     increasingly confined to government workers, cannot convince 
     private-sector workers that it adds more value to their lives 
     than it subtracts with dues and work rules that damage 
     productivity. Hence unions' reliance on government coercion 
     where persuasion has failed.
       The NLRB's complaint is not a conscientious administration 
     of the law; it is intimidation of business leaders who 
     contemplate locating operations in right-to-work states. 
     Labor loathes Section 14(b) of the 1947 Taft-Hartley Act, 
     which allows states to pass right-to-work laws that forbid 
     compulsory unionization. But 11 Democratic senators represent 
     10 of the right-to-work states: Mark Pryor (Arkansas), Bill 
     Nelson (Florida), Tom Harkin (Iowa), Mary Landrieu 
     (Louisiana), Ben Nelson (Nebraska), Harry Reid (Nevada), Kay 
     Hagan (North Carolina), Kent Conrad (North Dakota), Tim 
     Johnson (South Dakota), and Jim Webb and Mark Warner 
     (Virginia). Do they support the Obama administration's 
     attempt to cripple their states' economic attractiveness?
       The NLRB's attack on Boeing illustrates the Obama 
     administration's penchant for lawlessness displayed when, 
     disregarding bankruptcy law, it traduced the rights of 
     Chrysler's secured creditors. Now the NLRB is suing Arizona 
     and South Dakota because they recently, and by large 
     majorities, passed constitutional amendments guaranteeing the 
     right to secret ballots in unionization elections--ballots 
     that complicate coercion by union organizers.
       Just as uncompetitive companies try to become wards of the 
     government (beneficiaries of subsidies, tariffs, import 
     quotas), unions unable to compete for workers' allegiance 
     solicit government compulsion to fill their ranks. The NLRB's 
     reckless attempt to break a great corporation, and by 
     extension all businesses, to government's saddle--never mind 
     the collateral damage to the economy--is emblematic of the 
     Obama administration's willingness to sacrifice the economy 
     on the altar of politics.
                                  ____


              [From the Wall Street Journal, May 11, 2011]

                  Boeing Is Pro-Growth, Not Anti-Union

                           (By Jim McNerney)

       Deep into the recent recession, Boeing decided to invest 
     more than $1 billion in a new factory in South Carolina. 
     Surging global demand for our innovative, new 787 Dreamliner 
     exceeded what we could build on one production line and we 
     needed to open another.
       This was good news for Boeing and for the economy. The new 
     jetliner assembly plant would be the first one built in the 
     U.S. in 40 years. It would create new American jobs at a time 
     when most employers are hunkered down. It would expand the 
     domestic footprint of the nation's leading exporter and make 
     it more competitive against emerging plane makers from China, 
     Russia and elsewhere. And it would bring hope to a state 
     burdened by double-digit unemployment--with the construction 
     phase alone estimated to create more than 9,000 total jobs.
       Eighteen months later, a North Charleston swamp has been 
     transformed into a state-of-the-art, green-energy powered, 
     1.2 million square-foot airplane assembly plant. One thousand 
     new workers are hired and being trained to start building 
     planes in July.

[[Page 7351]]

       It is an American industrial success story by every 
     measure. With 9% unemployment nationwide, we need more of 
     them--and soon.
       Yet the National Labor Relations Board (NLRB) believes it 
     was a mistake and that our actions were unlawful. It claims 
     we improperly transferred existing work, and that our 
     decision reflected ``animus'' and constituted ``retaliation'' 
     against union-represented employees in Washington state. Its 
     remedy: Reverse course, Boeing, and build the assembly line 
     where we tell you to build it.
       The NLRB is wrong and has far overreached its authority. 
     Its action is a fundamental assault on the capitalist 
     principles that have sustained America's competitiveness 
     since it became the world's largest economy nearly 140 years 
     ago. We've made a rational, legal business decision about the 
     allocation of our capital and the placement of new work 
     within the U.S. We're confident the federal courts will 
     reject the claim, but only after a significant and 
     unnecessary expense to taxpayers.
       More worrisome, though, are the potential implications of 
     such brazen regulatory activism on the U.S. manufacturing 
     base and long-term job creation. The NLRB's overreach could 
     accelerate the overseas flight of good, middle-class American 
     jobs.
       Contrary to the NLRB's claim, our decision to expand in 
     South Carolina resulted from an objective analysis of the 
     same factors we use in every site selection. We considered 
     locations in several states but narrowed the choice to either 
     North Charleston (where sections of the 787 are built 
     already) or Everett, Wash., which won the initial 787 
     assembly line in 2003.
       Our union contracts expressly permit us to locate new work 
     at our discretion. However, we viewed Everett as an 
     attractive option and engaged voluntarily in talks with union 
     officials to see if we could make the business case work. 
     Among the considerations we sought were a long-term ``no-
     strike clause'' that would ensure production stability for 
     our customers, and a wage and benefit growth trajectory that 
     would help in our cost battle against Airbus and other state-
     sponsored competitors.
       Despite months of effort, no agreement was reached. Union 
     leaders couldn't meet expectations on our key issues, and we 
     couldn't accept their demands that we remain neutral in all 
     union-organizing campaigns and essentially guarantee to build 
     every future Boeing airplane in the Puget Sound area. In 
     October 2009, we made the Charleston selection.
       Important to our case is the basic fact that no existing 
     work is being transferred to South Carolina, and not a single 
     union member in Washington has been adversely affected by 
     this decision. In fact, we've since added more than 2,000 
     union jobs there, and the hiring continues. The 787 
     production line in Everett has a planned capacity of seven 
     airplanes per month. The line in Charleston will build three 
     additional airplanes to reach our 10-per-month capacity plan. 
     Production of the new U.S. Air Force aerial refueling tanker 
     will sustain and grow union jobs in Everett, too.
       Before and after the selection, we spoke openly to 
     employees and investors about our competitive realities and 
     the business considerations of the decision. The NLRB now is 
     selectively quoting and mischaracterizing those comments in 
     an attempt to bolster its case. This is a distressing signal 
     from one arm of the government when others are pushing for 
     greater openness and transparency in corporate decision 
     making.
       It is no secret that over the years Boeing and union 
     leaders have struggled to find the right way to work 
     together. I don't blame that all on the union, or all on the 
     company. Both sides are working to improve that dynamic, 
     which is also a top concern for customers. Virgin Atlantic 
     founder Richard Branson put it this way following the 2008 
     machinists' strike that shut down assembly for eight weeks: 
     ``If union leaders and management can't get their act 
     together to avoid strikes, we're not going to come back here 
     again. We're already thinking, `Would we ever risk putting 
     another order with Boeing?' It's that serious.''
       Despite the ups-and-downs, we hold no animus toward union 
     members, and we have never sought to threaten or punish them 
     for exercising their rights, as the NLRB claims. To the 
     contrary, union members are part of our company's fabric and 
     key to our success. About 40% of our 155,000 U.S. employees 
     are represented by unions--a ratio unchanged since 2003.
       Nor are we making a mass exodus to right-to-work states 
     that forbid compulsory union membership. We have a sizable 
     presence in 34 states; half are unionized and half are right-
     to-work. We make decisions on work placement based on 
     business principles--not out of emotion or spite. For 
     example, last year we added new manufacturing facilities in 
     Illinois and Montana. One work force is union-represented, 
     the other is not. Both decisions made business sense.
       The world the NLRB wants to create with its complaint would 
     effectively prevent all companies from placing new plants in 
     right-to-work states if they have existing plants in 
     unionized states. But as an unintended consequence, forward-
     thinking CEOs also would be reluctant to place new plants in 
     unionized states--lest they be forever restricted from 
     placing future plants elsewhere across the country.
       U.S. tax and regulatory policies already make it more 
     attractive for many companies to build new manufacturing 
     capacity overseas. That's something the administration has 
     said it wants to change and is taking steps to address. It 
     appears that message hasn't made it to the front offices of 
     the NLRB.

  Mr. ALEXANDER. Madam President, I yield the floor and suggest the 
absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Madam 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. ALEXANDER. Madam President, I ask unanimous consent that the 
quorum call time be equally divided.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ALEXANDER. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Madam 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. LIEBERMAN. Madam President, I rise to offer my full support for 
Susan Carney of my State of Connecticut, who is the President's 
nominee, now approved by the Judiciary Committee, to serve on a very 
important circuit court--the U.S. Court of Appeals for the Second 
Circuit.
  Susan Carney's legal education and long career of public service will 
make her a valuable addition to the Federal bench. I thank President 
Obama for his decision to nominate Ms. Carney, and I urge my colleagues 
across party lines to confirm her nomination when it comes to a vote in 
a short while today.
  Ms. Carney, as a matter of record, was quickly reported out of the 
Judiciary Committee with a bipartisan vote of 15 to 3 on February 17 of 
this year. This, in fact, was the second time her nomination had been 
reported out of the committee with broad bipartisan support. If 
confirmed, Susan Carney will fill one of two judicial vacancies on the 
second circuit--vacancies which the Administrative Office of the U.S. 
Courts has declared to be emergency vacancies. As I have said, she has 
been thoroughly vetted twice by the Judiciary Committee and earned 
bipartisan support both times.
  I would like to take a moment to provide some background on the 
nominee's credentials. Susan Carney has a very diverse background, both 
in private practice, working for the Peace Corps, and most recently 
serving as the deputy general counsel at Yale University. For the past 
12 years, she has served in that position. As Yale's President Richard 
Levin put it:

       Susan Carney has served the University with insight, 
     intelligence, and superb legal skills.

  He added that she has never failed to be guided by what he referred 
to as her ``firm ethical compass.''
  In her capacity as general counsel, Ms. Carney was the second highest 
legal officer at Yale--which is of course not just a great educational 
and research institution but has an operating budget of more than $2 
billion annually, more than 12,000 employees, and more than 11,000 
students. So there was a lot of legal work to do there.
  Ms. Carney's portfolio included a lot of complicated areas covered by 
Federal law, including scientific research, intellectual property, and 
health care. She also managed other legal elements of Yale's 
transactions with institutions throughout this country and the world.
  Ms. Carney served as a law clerk to Judge Levin Hicks Campbell on the 
U.S. Court of Appeals for the First Circuit before entering private 
practice. She has been admitted to practice in seven courts, including 
the U.S. Supreme Court, the U.S. Court of Appeals for the First 
Circuit, and the U.S.

[[Page 7352]]

Court of Appeals for the Ninth Circuit. She is a member of three 
different bars: the Massachusetts bar, the District of Columbia bar, 
and the Connecticut bar, and has also served on the board of directors 
of the National Association of College & University Attorneys.
  This is a superbly qualified individual with a broad background in a 
host of different legal fields which she will bring to the bench. I 
think most significant of all--and she obviously impressed both parties 
on the Judiciary Committee--she is balanced, she is openminded, and she 
will adjudicate according to what President Levin called ``her firm 
ethical and moral compass.'' Therefore I hope there will be a strong 
vote of support to send Susan Carney to the Second Circuit Court of 
Appeals where she will serve the cause of justice in America very well 
indeed.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Tester). The clerk will call the roll.
  The assistant legislative 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 come to the floor to address my 
colleagues and the public on the nomination of Susan Carney, nominated 
to the Second Circuit, and which we will soon vote. Today's vote marks 
the 24th judicial confirmation this year and the 16th for a seat 
designated as a judicial emergency. This also marks the fourth vacancy 
to the Second Circuit that has been filled by an Obama nominee.
  Over the past 2 weeks, nominations-related work has taken up the vast 
majority of the Senate's time. In fact, after today, we will have 
confirmed seven judges in just 9 days. Last week alone, we had a 
cloture vote on the nominee to be Deputy Attorney General, debate and 
votes on three district court nominees, and two Judiciary Committee 
markups. This year, the committee has reported 51 percent of President 
Obama's nominees. Yet it seems the more we work with the majority on 
filling vacancies, the more complaints we hear. Furthermore, as we work 
together to confirm consensus nominees, we are met with the majority's 
insistence that we turn to controversial nominees. So I wish to address 
some of the complaints we have heard.
  I think about the American Constitution Society blog and some of my 
colleagues in the Senate who say we are not moving fast enough on 
President Obama's nominees. I wish to point out to them that is 
intellectually dishonest. They may be ignorant about some of the 
statistics that involve the nominees we have approved so far versus 
what has been done in other administrations, but I wish to show that it 
is an outright, flat lie that we are not processing nominees fast 
enough. Given the pace of activity in our committee and on the floor, 
there is no credibility to the arguments that we are not moving fast 
enough.
  Last week, it was stated that the Senate is well behind on President 
Obama's nominations, so I would like to provide perspective on that 
assertion. For comparable time periods, we have processed and confirmed 
a greater percentage of President Obama's nominees. When we complete 
the vote we are going to have in about 30 minutes, we will have 
confirmed 33 percent of President Obama's nominees nominated this year. 
That compares to only 28 percent of President Bush's nominees confirmed 
in a comparable time period.
  Furthermore, President Obama's nominees are moving much faster 
through the committee process. President Obama's circuit court nominees 
have waited only, on average, 72 days from nomination to hearing. 
President Bush's had to wait, on average, 275 days during his first 
term. For his entire Presidency, that average was almost 247 days. 
President Obama's district court nominees are also faring better, 
waiting, on average, only 70 days for their hearings. President Bush's 
district court nominees had an average wait of closer to 100 days 
during his first term, and an average of 120 days throughout his entire 
Presidency.
  These statistics, and our continued action to move on consensus 
nominees, refutes the argument made by those who continue to falsely 
claim there is a systematic delay and partisan obstruction of judicial 
nominees by Republicans in the Senate. I hope those who continue to 
make dishonest comments take note of the statistics I just gave.
  Today, we are going to vote on the nomination of Susan Carney, and 
this will be for a U.S. circuit judge for the Second Circuit. Ms. 
Carney received her A.B., cum laude, from Harvard University in 1973 
and her juris doctorate, magna cum laude, from Harvard Law School in 
1977. Upon graduation from law school, she clerked for Judge Campbell 
on the First Circuit and then entered private practice. After 8 years 
of private practice, Ms. Carney was self-employed for the next 6 years, 
engaged in contract legal work and consulting. In 1994, the nominee 
returned to legal practice as a counsel to Bredhoff & Kaiser here in 
Washington, DC. In 1996, she moved to the Peace Corps, where she served 
as Associate General Counsel for 2 years. In 1998, she joined the 
general counsel's office at Yale University, where she has been the 
deputy general counsel for the past 9 years.
  My concern with Ms. Carney's nomination is her lack of experience. 
She has no judicial experience and has limited litigation experience. 
She has never authored any scholarly legal works of note, and much of 
her work product provided to the committee consists of presentations 
about various legal issues faced by research universities.
  Her qualifications for the court of appeals and, indeed, the reason 
for the President's decision to nominate her to the Second Circuit 
remains somewhat of a mystery. According to her questionnaire, Ms. 
Carney appeared in court occasionally over the course of her career, 
and the word ``occasionally'' is her own. She has never tried a case to 
verdict, judgment, or final decision--an absence she explains by saying 
that she ``spent [her] law career as an appellate lawyer and in-house 
counsel.'' Her questionnaire suggests she has never argued a case in 
any appellate court.
  During her most recent legal job, Ms. Carney has focused largely on 
contractual issues such as scientific research partnerships between 
academic researchers and for-profit industry, international 
partnerships involving Yale, and intellectual property ownership 
issues. Her questionnaire reveals no litigation experience in the last 
15 years of her career, and it is unclear how her position with Yale 
University might have prepared her for the Federal judicial 
appointment, much less one on the court of appeals.
  The American Bar Association Standing Committee on the Federal 
Judiciary gave her the rating ``substantial majority qualified, 
minority not qualified.'' Even though the reasons behind the ratings 
are not released, I suspect the ``not qualified'' rating stems from her 
lack of litigation experience.
  This nominee does not have the concrete judicial experience I favor. 
I know others share this view. The Judiciary Committee reported this 
nominee by a vote of 15 to 3, with three Republicans in opposition, not 
including this Senator. I take their views seriously and fully 
understand why Senators would not support this nomination. 
Nevertheless, with little enthusiasm for her nomination, I will give 
her the benefit of the doubt and support the nominee.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, today, the Senate finally considers the 
nomination of Susan Carney of Connecticut to fill a judicial emergency 
vacancy on

[[Page 7353]]

the Court of Appeals for the Second Circuit. Ms. Carney has twice been 
considered by the Judiciary Committee and has twice been reported with 
strong bipartisan support, first last year and again in February. The 
majority of the Republicans on the Judiciary Committee have twice 
joined in supporting this nomination. I expect that she will be 
confirmed with significant bipartisan support.
  This is one of several judicial nominations that the minority refused 
to consider, despite being favorably reported by the Judiciary 
Committee last year. Hers will be the 16th nomination confirmed this 
year that could and, in my view, should have been considered last year. 
That is right: Of the 24 judicial nominations the Senate will have 
considered and confirmed this year, including Ms. Carney, almost 70 
percent were delayed from last year. We have only been able to confirm 
eight judicial nominees who had hearings and were reported for the 
first time this year. So when some say we are taking ``positive 
action'' on large percentages of nominees, what this shows is how many 
unobjectionable nominees were stalled last year by objections from the 
minority.
  This is only the third circuit court nomination the Senate has been 
allowed to consider all year. There are several others awaiting final 
Senate action. Caitlin Halligan is an outstanding nominee to the DC 
Circuit. Bernice Donald of Tennessee has the support of her home State 
Republican Senators, and should be confirmed promptly to the Sixth 
Circuit. Henry Floyd of South Carolina has the support of his home 
State Republican Senators and should not be delayed from serving on the 
Fourth Circuit. The circuit nominee stalled the longest is Professor 
Goodwin Liu of California. He is nominated to the Ninth Circuit and is 
strongly supported by his home State Senators. He is qualified and will 
make an outstanding judge. He is brilliant and understands the role of 
a judge. He has been reported three times by the Senate Judiciary 
Committee. The stalling on his nomination should end. The Senate should 
vote and confirm Goodwin Liu.
  Susan Carney, currently the deputy general counsel of Yale 
University, has a career of distinguished service. After graduating 
with honors from Harvard College and Harvard Law School, Ms. Carney 
clerked for Judge Levin H. Campbell of the Court of Appeals for the 
First Circuit. She then spent 17 years in private practice, obtaining 
significant appellate litigation experience, before becoming the 
associate general counsel of the Peace Corps. Ms. Carney has spent the 
last 13 years in the Office of the General Counsel at Yale University, 
and is now Yale's second highest ranking legal officer.
  Ms. Carney's nomination has the strong support of both of her home 
State Senators, Senator Lieberman and Senator Blumenthal, along with 
the Federal Judiciary Committee of the Connecticut Bar Association and 
the New York City Bar Association's Committee on the Judiciary. Ms. 
Carney's nomination also had the strong support of Mr. Dodd, the 
distinguished former Senator from Connecticut. Before he retired from 
the Senate, Senator Dodd introduced Ms. Carney to the Judiciary 
Committee at her nomination hearing. He said of Ms. Carney:

       Throughout her career, Susan Carney has developed a 
     professional versatility and breadth of legal knowledge well 
     suited to serve on the Second Circuit Court of Appeals. And 
     perhaps even more important, I believe she has exhibited the 
     kind of temperament and unflinching respect for the rule of 
     law that are absolutely critical components, in my view, of 
     serving on the Federal courts.

  It is no surprise that Ms. Carney's nomination has received such 
strong bipartisan support on the Judiciary Committee. The Senate should 
have been able to debate and vote on her nomination before Senator Dodd 
left the Senate. I am pleased we are finally going to vote on it today.
  I am sorry that another outstanding nominee from Connecticut, Judge 
Robert Chatigny, was also prevented by the minority from receiving 
consideration and a vote by the Senate. After he was favorably reported 
last year, Senate Republicans refused to agree to a debate and vote on 
his nomination, and insisted on returning it to the President without 
Senate consideration. He is a fine judge whose record was distorted in 
their opposition to him. That was a shame.
  I thank the majority and Republican leaders for agreeing to schedule 
the vote on Ms. Carney's nomination today. The Senate's agreement to 
debate and vote on long-delayed nominations like that of Ms. Carney and 
of Judge Edward Chen of the Northern District of California last week 
show that the delays that have slowed our progress on nominations are 
unnecessary. With the breakthrough earlier this month when 11 
Republicans joined in ending the filibuster against another long-
stalled nomination, that of Judge Jack McConnell of Rhode Island, we 
have begun to make progress and, in fact, take ``positive action'' or 
judicial nominations held up for months by the minority. With vacancies 
still totaling almost 90 on Federal courts throughout the country, with 
another dozen future vacancies on the horizon, we need to do more to 
ensure that the Federal judiciary has the resources it needs to fulfill 
its constitutional role.
  Including Ms. Carney's nomination, there are 15 judicial nominations 
on the Senate Executive Calendar, more than half of which have been 
ready for final Senate action for weeks and, in some cases, many 
months. I thank the Judiciary Committee's ranking member, Senator 
Grassley, for working with me to consider nominations in the Judiciary 
Committee. We have a fair but thorough process, including reviewing 
extensive background material on each nominee, and giving all Senators 
on the committee, Democratic and Republican, the opportunity to ask the 
nominees questions at a live hearing and following the hearing in 
writing. All of these nominees which the committee reported to the 
Senate have a strong commitment to the rule of law and a demonstrated 
faithfulness to the Constitution. All have the support of their home 
State Senators, both Republican and Democratic. They should not be 
delayed for weeks and months needlessly after being so thoroughly and 
fairly considered by the Judiciary Committee.
  Our ability to make progress regarding nominations has been hampered 
by the creation of what I consider to be misplaced controversies about 
many nominees' records. I hope no Senator cites one such invented 
controversy as a basis for opposing Ms. Carney's nomination. In the 
time that the Senate has been prevented from voting on Ms. Carney's 
nomination, some on the far right have made baseless allegations about 
Ms. Carney. Their false claim is that Ms. Carney engaged in a coverup 
after another Yale administrator had erroneously confirmed to a Korean 
institution that a prospective hire earned a Ph.D. from Yale. In fact, 
the opposite is true. It was Ms. Carney who informed the Korean 
institution that Yale had erred. I hope no Senator is taken in by this 
smear campaign against a good nominee.
  Concerns that Ms. Carney lacks sufficient experience to be an 
appellate judge are also misplaced. She has been a lawyer for 30 years 
and has a wealth of experience, including, as I mentioned, 17 years in 
private practice with experience in appellate litigation. I have, 
nonetheless, heard this purported concern raised by the handful of 
Republican Senators who oppose Ms. Carney's confirmation. I believe 
that Ms. Carney's wide range of experience as a lawyer in private 
practice and as deputy general counsel of one of the world's leading 
educational and research institutions--one with an annual budget that 
exceeds $2 billion--have prepared her well to serve on the Second 
Circuit. Along with Connecticut and New York, it is Vermont that is 
served by the circuit court to which Ms. Carney has been nominated. All 
Senators from States within the Second Circuit support her 
confirmation. I also note that I did not hear Republican Senators raise 
any concerns about lack of judicial experience when President Bush 
nominated, and the Senate confirmed, 24 nominees to circuit courts with 
no prior judicial experience, and a number with little trial litigation 
experience.

[[Page 7354]]

  Even as some Republicans have opposed this nominee by saying that she 
does not have sufficient litigation experience, Republican Senators 
have recently tried to twist nominees' litigation experience against 
them. Their partisan attacks are not consistent. When a nominee has 
extensive experience and is a successful trial lawyer, they complain 
that the nominee has too much experience and will be biased by it.
  Republicans opposed Judge McConnell of Rhode Island because he was an 
excellent trial lawyer. They opposed Judge Chen of California despite 
his 10 years as a fair and impartial Federal judge magistrate and 
disregarded his judicial record. The Republican opposition to President 
Obama's judicial nominees has been anything but consistent. Now some 
will turn around and oppose Ms. Carney, a nominee with more than 30 
years of legal experience, by saying she has not had sufficient 
experience as a trial advocate.
  This reminds me of the story of the mother who sent her son two 
neckties as gifts. When she visited, the son picked her up at the 
airport dutifully wearing one of the ties, only to hear his mother 
complain: ``What's the matter? Don't you like the other tie?''
  Let us turn away from such double standards and return to the 
longstanding Senate practice of judging nominees on their merits, not 
based on caricatures. Our ability to finally reach a time agreement and 
have a vote on the nomination of Susan Carney is a welcome sign of 
progress. We still have a long way to go to do as well as we did during 
President Bush's first term, when we confirmed 205 of his judicial 
nominations. We confirmed 100 of those judicial nominations during the 
17 months I was chairman during President Bush's first 2 years in 
office. So far, well into President Obama's third year in office, the 
Senate has only been allowed to consider 84 of President Obama's 
Federal circuit and district court nominees, well short of 205. We need 
to work together to ensure that the Federal judiciary has the judges it 
needs to provide justice to Americans in courts throughout the country.
  I congratulate Ms. Carney and her family on her confirmation today.
  Mr. President, I yield the floor and suggest the absence of a quorum, 
and ask unanimous consent that the time be charged equally to both 
sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAPO. 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. CRAPO. Mr. President, I yield back all time.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Susan L. Carney, of Connecticut, to be 
U.S. Circuit Judge for the Second Circuit?
  Mr. CRAPO. 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 legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 71, nays 28, as follows:

                       [Rollcall Vote No. 71 Ex.]

                                YEAS--71

     Akaka
     Alexander
     Ayotte
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Durbin
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Hutchison
     Inouye
     Johnson (SD)
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--28

     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Crapo
     DeMint
     Enzi
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Lee
     McConnell
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--1

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

                          ____________________