[Congressional Record (Bound Edition), Volume 157 (2011), Part 9]
[Senate]
[Pages 12987-12993]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF BERNICE BOUIE DONALD TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE SIXTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination which 
the clerk will report.
  The bill clerk read the nomination of Bernice Bouie Donald, of 
Tennessee, to be United States Circuit Judge for the Sixth Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes of debate, equally divided, in the usual form.
  The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I wish to speak in support of the 
nomination of Bernice Bouie Donald as a U.S. Circuit Judge for the 
Sixth Circuit. With today's vote, we will have confirmed 34 article III 
judicial nominees during this Congress.
  We continue to make great progress in processing President Obama's 
judicial nominees. We have taken positive action on 78 percent of the 
judicial nominations submitted during this Congress. The Senate has 
confirmed 63 percent of President Obama's nominees since the beginning 
of his Presidency, including two Supreme Court Justices, which everyone 
may recall was a lengthy process.
  Despite our productive efforts, we continue to hear unsubstantiated 
and unfounded charges of delays and obstruction on the part of the 
minority party of the Senate. Over the August recess, opinion writers 
and bloggers parroted one another in churning out this message of 
obstruction on the part of the Republicans. I am not surprised to see 
this from outside groups. However, I was very disappointed the White 
House joined in publishing a distorted record on judicial nominations. 
I had a meeting this year with the White House Counsel's Office, and at 
that meeting I expressed my intent to move forward as the Republican 
leader of the Judiciary Committee Republicans on consensus nominees. I 
thought we had cooperative and productive conversations with the White 
House. Furthermore, I have demonstrated a record, on the part of the 
Republicans on the Judiciary Committee, of cooperation and action 
regarding judicial nominees.
  But in a White House blog that was titled ``Record Judicial 
Diversity, Record Judicial Delays'' the White House characterized ``the 
delays these nominees are encountering'' as unprecedented. The White 
House has a short memory or a very limited definition to characterize 
the nominations process as ``unprecedented.''
  To illustrate, the blog cites a statistic on the average wait time 
between the Judiciary Committee reporting out a nominee and 
confirmation on the Senate floor as evidence of an unprecedented delay. 
For example, it indicates circuit nominees of President Bush only 
waited 29 days, while President Obama's circuit nominees waited 151 
days.
  The nominations process, as everyone knows but maybe the White House 
needs to be informed about, is more than Senate floor action. It starts 
with the President actually nominating somebody. I have previously 
commented on the White House delay in

[[Page 12988]]

sending nominations and have criticized some of the qualities of the 
nominees the White House has submitted. I will not elaborate on that 
today. But after a nomination is received, there is a process for 
hearing, for questions, and for committee debate prior to our committee 
vote. For whatever reason, the White House blog fact sheet ignored the 
bulk of the process.
  The record shows, then, that we are moving nominees through committee 
much faster than President Bush's nominees. For instance, President 
Obama's circuit court nominees have only waited, on average, 68 days 
for a hearing. President Bush's circuit court nominees were forced to 
wait over 247 days. President Obama's district court nominees have been 
afforded a hearing in just 78 days. President Bush's district court 
nominees, on the other hand, had to wait close to 120 days. So we can 
see how wrong the White House blog is when they just cite the waiting 
period between the committee reporting out and actually voting on it.
  Not only are President Obama's judicial nominees receiving hearings 
quicker than those of President Bush, they are also being reported out 
of committee more quickly. Circuit court nominees have been reported to 
the Senate floor in just 118 days, while President Bush's circuit court 
nominees were held for 369 days before they saw a vote in committee. 
The same is true for district court nominees. President Obama's 
nominees have been reported in just 129 days, while President Bush's 
district court nominees waited 148 days. Despite the so-called 
obstruction, we are confirming President Obama's circuit court nominees 
faster than those nominated by President Bush. That is the cooperation 
I promised. Thus far, circuit court nominees have been confirmed, on 
average, in 259 days. President Bush's circuit court nominees waited, 
on average, 350 days.
  The White House blog also stated that 21 months is the ``[l]ongest 
wait for one of President Obama's judicial confirmations.'' This is 
neither unprecedented nor uncommon. The Democrats should know; they 
held President Bush's circuit court nominee Raymond Kethledge for 23 
months before he was confirmed by the Senate, and then when he was 
confirmed, he was confirmed on a consensus voice vote basis. In 
addition, the record will show district nominees who waited well over 1 
year for confirmation, one of them as long as 441 days.
  After today's vote, there will be 19 judicial nominees on the 
Executive Calendar. If you listened to my colleagues on the other side 
of the aisle, you would conclude that this, too, is ``unprecedented.'' 
But again, the record demonstrates otherwise.
  Colleagues may recall a period in the 108th Congress when the 
Democrats--in the minority at that time--completely shut down the 
judicial nominations process. Not only were there numerous filibusters 
conducted by my friends on the other side of the aisle, but they would 
allow no votes on judicial nominees. As a result, in April and May of 
2004, when George W. Bush was President, 32 highly qualified judicial 
nominees awaited final votes while on the Executive Calendar. Only 
after a compromise was reached did judicial nomination votes resume on 
those who were on the Executive Calendar.
  I could continue to rebut this outrageous assertion that Senate 
Republicans are somehow paving new ground, according to the White House 
blog. The facts demonstrate that the current status of nominations is 
not--not--unprecedented. It is unfortunate that the media, the 
bloggers, and even this administration continue to distort the facts. I 
would rather use my time to speak on positive actions, such as the 
nominee we are about to confirm. But if my colleagues on the other side 
of the aisle wish to continue to live in the past, then I feel, as 
leader of the Republicans on the Judiciary Committee, the need to 
correct the record.
  I support the nomination before us today, and I congratulate Judge 
Donald. I wish to say a few words about her before we vote.
  Bernice Donald is nominated to be U.S. Circuit Judge for the Sixth 
Circuit. Judge Donald received her undergraduate degree and law degree 
from the University of Memphis. After graduating from law school, Judge 
Donald worked for a few months as a sole practitioner. In April of 
1980, she began work as a staff attorney for the Memphis Area Legal 
Services Clinic. In November of 1980, she began working as an assistant 
public defender at the Shelby County Public Defender's Office.
  In 1982, Judge Donald was elected to serve as a judge on the Court of 
General Sessions in Shelby County. As a general sessions judge, Judge 
Donald presided over trials of State misdemeanor offenses, and the 
preliminary hearings of State felony cases involving alleged crimes 
against persons as well as property.
  In 1988, the U.S. Court of Appeals for the Sixth Circuit appointed 
Judge Donald to a 14-year term on the Bankruptcy Court.
  In 1996, Judge Donald was confirmed by the Senate and appointed by 
President Clinton as United States District Judge for the Western 
District of Tennessee. She has served as a Federal judge for the past 
15 years.
  The American Bar Association's Standing Committee on the Federal 
Judiciary has given Judge Donald a rating of substantial majority 
``well-qualified''; minority ``qualified.''
  Mr. President, if I could, I wish to take 2 minutes to speak about 
the second vote we are having today.
  The PRESIDING OFFICER. The Senator has 4 minutes remaining.


                    Leahy-Smith America Invents Act

  Mr. GRASSLEY. Mr. President, I urge my colleagues to support cloture 
on the motion to proceed to H.R. 1249, the Leahy-Smith America Invents 
Act. This bipartisan legislation will make our patent system more 
effective and more efficient. It will enhance transparency and patent 
quality and improve certainty in the patent process. It will also 
enhance the ability of the Patent and Trademark Office to cut its 
backlog and process patent applications in a more expeditious manner. 
Ultimately, this bill will help promote innovation and technological 
advancements and will provide a stimulus for American businesses and, 
obviously, will help generate new jobs.
  My colleagues will recall the Senate passed the bill we entitled the 
America Invents Act earlier this year by a margin of 95 to 5. The House 
bill is very similar to our Senate bill, so Senators should not have a 
problem supporting it. In addition, the Leahy-Smith America Invents Act 
enjoys the widespread support of a large number of industries and other 
stakeholders from within the United States patent community.
  I am pleased to support the Leahy-Smith America Invents Act, and I 
urge my colleagues to vote for cloture on the motion to proceed so we 
can get this bill done as soon as possible.


                      Natural Disaster in Vermont

  Mr. President, I am happy to yield the floor, but before I do, I wish 
to say to Senator Leahy we are all sorry for the natural disasters that 
have happened in his State, wish him well and his State well, and, 
obviously, there will be some congressional action to help not only 
that natural disaster but the rest of the natural disaster that 
occurred as a result of Irene.
  Mr. LEAHY. Mr. President, if the Senator would yield on that point, I 
would tell my good friend from Iowa how touched I was when I received 
his e-mail saying how the people of Iowa have stood with the people of 
Vermont, as we did with the people of Iowa when they faced a disaster. 
When I received the e-mail, the Governor of our State, Governor 
Shumlin, and I and the head of our Vermont National Guard, General 
Dubie, had just helicoptered into one of our prettiest towns, but it 
was totally cut off. The only way we could reach it was by helicopter. 
I saw people working together. Nobody knew whether they were 
Republicans or Democrats or cared. They were all working together to 
help each other.
  I will tell my friend from Iowa, I took the liberty of showing his 
very meaningful, very heartfelt e-mail--similar, also, to ones I got 
from other Senators--and I thought how much that meant. If I might 
address the Senator from Iowa directly, I will tell you,

[[Page 12989]]

the people of Vermont appreciate it because I know how heartfelt it 
was. It meant a great deal.
  Mr. GRASSLEY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, we are on the question of the flooding in 
Vermont. I was born in Vermont. I have lived there all of my life. We 
live on a dirt road in a small town, Middlesex, up about 1,000 feet, in 
an 1850s farmhouse. It means a lot to us. It is a place my wife 
Marcelle and I spent part of our honeymoon 49 years ago. But I saw 
something I had never seen before in Vermont. Ten days ago, Vermont 
bore the full brunt of then-Tropical Storm Irene as it dumped more than 
6 inches of rain across the State in just a few hours. You have to 
understand, in our small State--with the Green Mountains running down 
the spine of it, north to south--the narrow valleys of the Green 
Mountains, where towns, roads, and rivers are historically intertwined, 
were particularly hard hit as gentle rivers and streams became rushing 
torrents of destruction. Whole towns were cut off from the outside 
world for days. You would fly over, and you could see a town completely 
marooned--every road going into it, every bridge going into it gone. 
Homes, businesses, water systems, and miles of roads were swept away. 
Even worse, some Vermonters lost their lives in these devastating 
floods.
  In our State, we have had an unprecedented wave of flooding this 
year. We had two spring events previously declared as major disasters. 
Vermonters have shouldered these great burdens. We have pulled together 
from all parts of the State, all walks of life. We are meeting this new 
crisis with the same courage, cooperation, and resilience we Vermonters 
have always shown.
  I applaud the brave first responders--the police departments, the 
fire departments, the EMS, and others--the National Guard members who 
have worked around the clock. Our National Guard in Vermont has been 
joined by the National Guard from Illinois and Maine, and we have had 
offers from our other adjoining States. I also applaud the power crews 
and road crews. I remember how impressed I was looking down there from 
the helicopter and seeing this long line of power trucks coming down 
the road and knowing they are going to be working around the clock. I 
also applaud the many others who have helped in the recovery and 
rebuilding process--our local Red Cross and other service 
organizations.
  But our small State--it is only 660,000 people--is stretched to the 
limit right now, and we need both immediate and ongoing assistance in 
recovering from these enormous setbacks. Winter is fast approaching. In 
Vermont, snow will be flying in a matter of weeks, certainly in a 
matter of a couple months. We must move quickly to secure our homes and 
businesses, restore our roads, our bridges, our water systems, our 
schools, and our medical facilities. With just weeks to accomplish so 
much, we need the full and immediate support of FEMA and so many of our 
Federal agencies.
  I appreciate President Obama's swift approval of Governor Shumlin's 
request to declare most of Vermont a Federal disaster area--something 
all of us in the Vermont delegation joined him in. But I am greatly 
concerned FEMA may not have adequate resources to meet the immediate 
assistance needs of the Irene victims in Vermont and all the other 
States. We do not consider ourselves an island here. We know a whole 
lot of other States were badly hurt by Irene. FEMA has less than $600 
million in its disaster account for the rest of fiscal year 2011. OMB 
said today that FEMA needs at least $1.5 billion for recovery 
assistance in States affected by Hurricane Irene.
  We need to act quickly to find a solution to this pressing problem. I 
do not think any of us wants to get into a situation where we underfund 
FEMA at this critical juncture, and then have FEMA run out of resources 
next spring, just as rebuilding efforts get going on the East Coast.
  Given the breadth and depth of Irene's destruction, on top of the 
ongoing disasters already declared in all 50 States, I am going to 
continue to work with the Democratic leader, the Republican leader, the 
Appropriations Committee, and all of my colleagues to ensure that FEMA 
has the resources they need to help all of our citizens at this time of 
disaster--not just in Vermont but in all of our States.


                                  Iraq

  Mr. President, as many Members know, I opposed the war in Iraq, 
believing it had nothing to do with 9/11. It turned out it had nothing 
to do with 9/11. I thought there were no weapons of mass destruction. 
It turned out there were no weapons of mass destruction. Iraq is a 
country that bore no threat to the United States. It did to Iran but 
not to the United States.
  We have spent hundreds of billions, ultimately well over a trillion 
dollars, in Iraq. Year after year that money is just sent--no offset; 
it is put on the credit card. It is time to get out of Iraq and start 
thinking about people in America. It is time to take care of Americans. 
The needs of Americans are not just in a disaster but in the needs of 
Americans in their education, their medical care, our scientific 
research to find cures for cancer and Alzheimer's, to take care of the 
housing needs of America, to take care of our rivers and bridges. It is 
time to start worrying about this great country of ours. It is time to 
start paying for that which can give benefits immediately to Americans 
and make sure we have enough to care for the families and our returning 
soldiers who so bravely answered the call. Let's start thinking about 
the needs of 325 million Americans. Let's come home to the things we 
need. Because if we do that, we can then still be the force for good 
throughout the world. We can still fulfill commitments, legitimate 
commitments we have around the world. We can still be the humanitarian 
nation we have always been when there have been disasters in Haiti, in 
Indonesia, in Africa, or elsewhere. But we have neglected America too 
long.
  Mr. President, I understand I have some time.
  The PRESIDING OFFICER. The Senator has 8 minutes remaining.
  Mr. LEAHY. How much?
  The PRESIDING OFFICER. Eight minutes remaining.
  Mr. LEAHY. I thank the Presiding Officer.
  Mr. President, I was disappointed that before the August recess, the 
Senate was not allowed to take greater steps to address the serious 
judicial vacancies crisis on Federal courts around the country. As we 
resume consideration of pending judicial nominations, there are 20 
nominees fully considered by the Senate Judiciary Committee and ready 
for final Senate action. Of those, 16 were approved by the Judiciary 
Committee unanimously, without a single Republican or Democratic 
Senator in opposition.
  The nomination of Judge Bernice Donald of Tennessee is one such 
nomination. This is a nomination that has been waiting for Senate 
consideration, despite the support of her Republican home State 
Senators, since May 9. Nearly 4 months ago, the Judiciary Committee 
favorably reported her nomination without opposition. This is 
reminiscent of the nomination of Jane Stranch of Tennessee. She, too, 
had the support of her Republican home State Senators, but her 
confirmation was nonetheless stalled--inexplicably--by Senate 
Republicans. Judge Stranch was finally confirmed in September 2010, 
after an extended and unnecessary 10-month delay. These Tennessee 
nominations were the subject of a column by Professor Carl Tobias in 
early August, which I inserted in the Record on August 2. I, too, had 
hoped the Senate would be allowed to vote on this nomination last 
month. I am glad that we finally have agreement for a vote tonight.
  At this point in the Presidency of George W. Bush, 144 Federal 
circuit and district court judges had been confirmed. On September 6 of 
the third year of President Clinton's administration, 162 Federal 
circuit and district court judges had been confirmed. By comparison, 
although there are 20 judicial nominees stalled and awaiting final 
consideration by the Senate--

[[Page 12990]]

many of them stalled since May and June--even after the confirmation of 
Judge Donald, the total confirmations of Federal circuit and district 
court judges confirmed during the first 3 years of the Obama 
administration will only be 96.
  In the 17 months I chaired the Judiciary Committee during President 
Bush's first term, the Senate confirmed 100 Federal circuit and 
district judges. By contrast, President Obama is approaching his 32nd 
month in office and we have yet to reach that total. The Senate has a 
long way to go before the end of next year to match the 205 
confirmations of President Bush's judicial nominees during his first 
term.
  To understand the strain on the Federal judiciary and the American 
people, it is important to note another set of comparisons. The number 
of judicial vacancies was reduced during the first years of the Bush 
and Clinton administration. The vacancies in early September in the 
third year of the Bush administration had been reduced to 54. The 
vacancies in early September in the third year of the Clinton 
administration had been reduced to 55. By contrast, the judicial 
vacancies now in September of the third year of the Obama 
administration stand at 93. As the Congressional Research Service 
confirmed in a recent report, this is a historically high level of 
vacancies and this is now the longest period of historically high 
vacancy rates on the Federal judiciary in the last 35 years.
  Even though Federal judicial vacancies have remained near or above 90 
for more than 2 years, the Senate's Republican leadership continues to 
delay votes on many qualified, consensus nominations. After tonight, 
there will remain 15 unanimously reported nominees stalled on the 
calendar. This is not the way to make real progress. In the past, we 
were able to confirm consensus nominees more promptly, often within 
days of being reported to the full Senate. They were not forced to 
languish for months. The American people should not have to wait more 
weeks and months for the Senate to fulfill its constitutional duty and 
ensure the ability of our Federal courts to provide justice to 
Americans around the country.
  It is not accurate to pretend that real progress is being made in 
these circumstances. Vacancies are being kept high, consensus nominees 
are being delayed, and it is the American people and the Federal courts 
that are being made to suffer. This is another area in which we must 
come together for the American people. There is no reason Senators 
cannot join together to finally bring down the excessive number of 
vacancies that have persisted on Federal courts throughout the Nation 
for far too long.
  At a time when judicial vacancies remain near or above 90, these 
needless delays perpetuate the judicial vacancies crisis that Chief 
Justice Roberts wrote of last December and that the President, the 
Attorney General, bar associations, and chief judges around the country 
have urged us to join together to end. The Senate can and should be 
doing a better job working to ensure the ability of our Federal courts 
to provide justice to Americans across the country.
  We were able to lower vacancies dramatically during President Bush's 
years in office, cutting them in half during his first term. The Senate 
has reversed course during the Obama administration, and with 
Republican objections slowing the pace of confirmations, judicial 
vacancies have been at crisis levels for over 2 years. As a recent 
report by the Constitutional Accountability Center noted, ``Never 
before has the number of vacancies risen so sharply and remained so 
high for so long during a President's term.'' I ask unanimous consent 
that an August 5 letter to the editor of the Washington Post from Wade 
Henderson, entitled ``Remiss in confirming judges,'' and an August 4 
article in Politico from Andrew Blotky and Doug Kendall entitled ``It's 
Senate's duty to confirm judges,'' 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. Over the 8 years of the Bush administration, from 2001 to 
2009, we reduced judicial vacancies from 110 to a low of 34. The 
vacancy rate--which we reduced from 10 percent to 6 percent by this 
date in President Bush's third year, and ultimately to less than 4 
percent in 2008--is back above 10 percent. Federal judicial vacancies 
now stand at 93.
  Time and time again over the last 2\1/2\ years, I have urged the 
Senate to come together and work to address this crisis. At the 
beginning of this year, I called for a return to regular order in the 
consideration of nominations. We have seen that approach work on the 
Judiciary Committee. I have thanked the Judiciary Committee's ranking 
member, Senator Grassley, many times for his cooperation with me to 
make sure that the committee continues to make progress in the 
consideration of nominations. His approach has been the right approach. 
Regrettably, it has not been matched on the floor, where the refusal by 
Republican leadership to come to regular time agreements to consider 
nominations has put our progress--our positive action--at risk.
  I expect the committee in the weeks ahead to continue to make 
progress and favorably report superbly qualified, consensus judicial 
nominations to fill vacancies in States throughout the country, in 
States with Democratic and Republican Senators. Most of these 
nominations will, I expect, join the 15 on the calendar after tonight's 
vote that were reported unanimously. I hope that the Americans in those 
districts will not have to wait for months for the Senate to act to 
fill the vacancies and ensure that the Federal courts in their States 
have the judges they need.
  Republican obstruction has led to a backlog of dozens of judicial 
nominations pending on the Senate's Executive Calendar. Half of the 
judicial nominations on the calendar would fill judicial emergency 
vacancies. Many were ready for final consideration and confirmation in 
May and June.
  Republican leadership should explain to the people and Senators from 
South Carolina, Missouri, Louisiana, Maine, New York, Texas, 
Connecticut, Pennsylvania, and Florida why there continue to be 
vacancies on the Federal courts in their States that could easily be 
filled if the Senate would vote on the President's qualified, consensus 
nominees. Yet those nominees still wait for months on the Senate's 
calendar. These damaging delays leave the people of these States to 
bear the brunt of having too few judges available to do the work of the 
Federal courts.
  All 20 of the judicial nominations on the calendar today have been 
favorably reported by the Judiciary Committee after a fair but thorough 
process. We review extensive background material on each nominee. All 
Senators on the committee, Democratic and Republican, have the 
opportunity to ask the nominees questions at a live hearing. Senators 
also have the opportunity to ask questions in writing following the 
hearing and to meet with the nominees. All of these nominees have a 
strong commitment to the rule of law and a demonstrated faithfulness to 
the Constitution. They should not be delayed for weeks and months 
needlessly after being so thoroughly and fairly considered by the 
Judiciary Committee.
  I continue to urge the Senate to join together to end the judicial 
vacancies crisis that concerns Chief Justice Roberts, the President, 
the Attorney General, bar associations, and chief judges around the 
country. I hope that this month Senators will finally join together to 
begin to bring down the excessive number of vacancies that have 
persisted on Federal courts throughout the Nation for far too long. We 
can and must do better. Vacancies are being kept high, consensus 
nominees are being delayed, and it is the American people and the 
Federal courts that are being made to suffer.

                               Exhibit 1

                [From the Washington Post, Aug. 5, 2011]

                      Remiss in Confirming Judges

                          (By Wade Henderson)

       In Ben Pershing's close-to-complete Aug. 2 Fed Page roundup 
     of the most important stories overshadowed by the debt-
     ceiling debate [``Debt debate isn't only story on Capitol

[[Page 12991]]

     Hill,'' In Session], one story that failed to make the cut 
     was how the Senate's refusal to vote on 20 judicial nominees 
     before recess has led to almost as many vacancies on the 
     federal bench--111--as there were in January.
       During the past two months, the Senate Judiciary Committee 
     has steadily processed nominations, yet the Senate has voted 
     on a mere nine judges. There is no reason to delay confirming 
     every one of the nominees pending before the full Senate. All 
     but one enjoyed strong bipartisan support in committee. In 
     fact, 17 of the 20 were approved without recorded opposition.
       Many of these seats have been designated as ``judicial 
     emergencies'' by the Administrative Office of the U.S. 
     Courts, meaning there are simply not enough judges to get the 
     work done. More and more people seeking to protect their 
     rights in a court of law are forced to wait, and justice 
     delayed is all too often justice denied.
                                  ____


                     [From Politico, Aug. 3, 2011]

                  It's Senate's Duty To Confirm Judges

                  (By Andrew Blotky and Doug Kendall)

       While Washington has been consumed by the debt ceiling 
     crisis, another serious crisis demands the attention of 
     President Barack Obama and the Senate: the threat to justice 
     by our overworked federal judiciary.
       There aren't enough judges to hear the cases piling up in 
     federal courtrooms across the country--which for countless 
     Americans means justice significantly delayed and denied.
       Our federal courts, which hear cases brought by ordinary 
     Americans to vindicate rights guaranteed by the Constitution, 
     are overworked and understaffed. Today's federal judiciary 
     resembles our armed forces-- stretched thin and deployed on 
     multiple tours of duty.
       There are now almost 90 empty seats on the federal bench, 
     with 22 more retirements on the way.
       Make no mistake, judges now on the bench are doing their 
     part--and then some. Last month, federal Judge Malcolm Muir 
     died in his chambers at age 96, while working on Social 
     Security appeals. Muir had continued to work literally until 
     his last breath, to reduce the case backlog caused by a judge 
     shortage. He was the fourth oldest judge on the federal bench 
     when he died. Last December, U.S. District Judge James F. 
     McClure Jr. died at age 79--also while working at the 
     courthouse.
       With fewer new judges being confirmed, the third branch of 
     government is increasingly run by judges working well into 
     their 80s, 90s and even 100s.
       ``The way we are going,'' 7th U.S. Circuit Court of Appeals 
     Judge Richard Cudahy, age 84, said, ``it looks to me as if 
     most of the judicial work is going to be done by 80- and 90-
     year-olds like me . . . since they will be the only ones left 
     to do anything.''
       There have been at least 80 vacancies on the federal courts 
     for the past 760 straight days and counting, according to a 
     recent Constitutional Accountability Center study. At the 
     same time, only 35 new permanent judgeships have been 
     authorized by Congress in the past 20 years--even as the 
     overall federal caseload has expanded by fully a third.
       The third branch is deteriorating largely because of 
     unprecedented Republican obstruction. Senate Republicans 
     refuse to agree to votes for well-qualified nominees, who 
     enjoy the unanimous support of their Republican and 
     Democratic colleagues on the Senate Judiciary Committee. 
     Today, 16 such nominees are waiting for a vote by the Senate, 
     with four more qualified nominees approved by the Judiciary 
     Committee, and new nominations being added regularly to the 
     Senate calendar.
       Some Republican senators are blocking--or placing holds--on 
     judicial nominations for reasons unrelated to justice, to 
     serve their own political interests. Republican senators are 
     also delaying or blocking nominees who would fill seats in 
     courtrooms so overwhelmed with cases that they are deemed by 
     the Administrative Office of the United States Courts to be 
     ``judicial emergencies.'' It is a level of obstruction not 
     seen under any previous president in U.S. history.
       Again, numbers tell the story. The glacial pace of judicial 
     confirmations has seen the number of judicial vacancies 
     explode from 55, when Obama took office, to 88 today. By this 
     time in the Bush administration, the Senate had confirmed 40 
     percent more judges than it has during the Obama 
     administration.
       Astonishingly, in the past two months, the Senate has voted 
     on just 11 nominations. The chamber could have easily 
     confirmed judges while awaiting a final debt ceiling deal. 
     Instead Republicans blocked, stalled and delayed.
       The Senate has now recessed for a month, yet the work of 
     the courts continues.
       When judicial vacancies remain at such record levels, 
     needless delays create a crisis that has drawn concern from 
     all corners--including Chief Justice John Roberts, Attorney 
     General Eric Holder, federal judges around the country and 
     bar associations.
       The Senate is failing in one of its key constitutional 
     duties. It is preventing the third branch of government from 
     doing its job--and making it impossible for Americans to have 
     their cases heard in a timely fashion.
       The solution is simple. With no Supreme Court nomination 
     battle consuming Washington this fall, there are no excuses. 
     The Senate should vote on these waiting nominees at the 
     earliest possible moment when it returns from its August 
     recess.
       It is time for the Senate to do what the Constitution 
     commands--advise and consent to the nomination of qualified 
     judges. The long-term health of the third branch of 
     government depends on it--and so do the American people.

  Mr. LEAHY. I have outlined where we stand in comparison to the 
progress we made when the Senate moved to confirm 205 Federal circuit 
and district judges during President Bush's first term. Three years 
into President Obama's administration, we have yet to confirm 100 
judges. We are going to have to move pretty quickly to catch up, 
especially to what a Democratic-controlled Senate did for President 
Bush. I wish to be able to do the same for President Obama.
  Mr. President, I ask unanimous consent that I use my remaining time 
to speak as in morning business about the America Invents Act and the 
cloture vote that will be taken tonight on proceeding to that important 
measure.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          America Invents Act

  Mr. LEAHY. The Senate is today turning its attention back to the 
America Invents Act--a measure that will help create jobs, energize the 
economy and promote innovation without adding a penny to the deficit. 
This legislation is a key component of both Democratic and Republican 
jobs agendas, and is a priority of the Obama administration.
  Too often in recent years, good legislation has failed in the Senate 
because bills have become politicized. That should not be the case with 
patent reform. Innovation and economic development are not uniquely 
Democratic or Republican objectives--they are American goals. That is 
why so many Democratic and Republican Senators have worked closely on 
this legislation for years, along with a similar bipartisan coalition 
of House Members.
  And that is why a Democratic chairman of the Senate Judiciary 
Committee can stand on the floor of the Senate and advocate, as I do 
today, that the Senate pass a House bill, H.R. 1249, sponsored by the 
Republican chairman of the House Judiciary Committee, Lamar Smith of 
Texas. As Chairman Smith and I wrote earlier this year in a joint 
editorial, ``Patent reform unleashes American innovation, allowing 
patent holders to capitalize on their inventions and create products 
and jobs.''
  This bill, which passed the House with more than 300 votes, will make 
crucial improvements to our outdated patent system. These improvements 
can be divided into three important categories that are particularly 
noteworthy.
  First, the bill will speed the time it takes for applications on true 
inventions to issue as high quality patents, which can then be 
commercialized and used to create jobs. There are nearly 700,000 
applications pending at the Patent and Trademark Office (PTO) that have 
yet to receive any action by the PTO. The Director of the PTO often 
says that the next great invention that will drive our economic growth 
is likely sitting in that backlog of applications.
  The America Invents Act will ensure that the PTO has the resources it 
needs to work through its backlog of applications more quickly. The 
bill accomplishes this objective by authorizing the PTO to set its fees 
and creates a PTO reserve fund for any fees collected above the 
appropriated amounts in a given year--so that only the PTO will have 
access to these fees.
  Importantly, the bill also provides immediate tools the PTO needs to 
fast track applications, and continues discounts for fast tracked 
applications requested by small business, as well as for applications 
involving technologies important to the Nation's economy or national 
competitiveness, thanks to amendments offered in the Senate by Senators 
Bennet and Menendez.
  Second, the America Invents Act will improve the quality of both new 
patents issued by the PTO, as well as existing patents. High quality 
patents

[[Page 12992]]

incentivize inventors and entrepreneurs by providing a limited monopoly 
over the invention. Low quality patents, conversely, can impede 
innovation if the product or process already exists.
  The bill makes commonsense improvements to the system by allowing, 
for example, third parties to comment on pending applications so that 
patent examiners will have more and better information readily 
available. The bill also implements a National Academy of Sciences 
recommendation by creating a postgrant review process to weed out 
recently issued patents that should not have been issued in the first 
place.
  The bill will also improve upon the current system for challenging 
the validity of a patent at the PTO. The current inter partes 
reexamination process has been criticized for being too easy to 
initiate and used to harass legitimate patent owners, while being too 
lengthy and unwieldy to actually serve as an alternative to litigation 
when users are confronted with patents of dubious validity.
  Third, the America Invents Act will transition our patent filing 
system from a first-to-invent system to the more objective first-
inventor-to-file system, used throughout the rest of the world, while 
retaining the important grace period that will protect universities and 
small inventors, in particular. As business competition has gone 
global, and inventors are increasingly filing applications in the 
United States and other countries for protection of their inventions, 
our current system puts American inventors and businesses at a 
disadvantage.
  The differences cause confusion and inefficiencies for American 
companies and innovators. These problems exist both in the application 
process and in determining what counts as ``prior art'' in litigation. 
We debated this change at some length in connection with the Feinstein 
amendment in March. That amendment was rejected by the Senate by a vote 
of 87 to 13. The Senate has come down firmly and decisively in favor or 
modernizing and harmonizing the American patent system with the rest of 
the world.
  The House, to its credit, improved on the Senate bill in this area by 
including an expanded prior user right with the transition to a first-
inventor-to-file system. Prior user rights are important for American 
manufacturing, in particular.
  There is widespread support for the America Invents Act, and with 
good reason. In March, just before the Senate voted 95-5 to pass the 
America Invents Act, The New York Times editorialized that the America 
Invents Act will move America ``toward a more effective and transparent 
patent protection system'' that will ``encourage investment in 
inventions'' and ``should benefit the little guy'' by transitioning to 
a first-inventor-to-file system.
  A few weeks ago, the Washington Post editorial board added that 
``[i]n the six decades since its last overhaul, the patent system has 
become creaky,'' but the patent bill ``poised for final approval in the 
Senate would go a long way toward curing [the] problems.''
  The Obama administration issued a Statement of Administration Policy 
in connection with the House bill, in which it argued that ``[t]he 
bill's much-needed reforms to the Nation's patent system will speed 
deployment of innovative products to market and promote job creation, 
economic growth, and U.S. economic competitiveness all at no cost to 
American taxpayers.''
  The House bill is not the exact bill I would have written. It 
contains provisions that were not in the Senate bill, and it omits or 
changes other provisions from the Senate bill that I supported. But 
that is the legislative process, and the core elements of the House 
bill are identical or nearly identical to the core elements of the 
Senate bill. In addition, the House bill retains amendments adopted 
during Senate consideration of S. 23, including amendments offered by 
Senator Bennet, Senator Menendez, Senator Kirk, Senator Stabenow, 
Senator Bingaman, and Senator Reid, among others.
  The America Invents Act, as passed by the House, will not only 
implement an improved patent system that will grow the economy and 
create jobs, but it is the product of a process of which we should all 
be proud. Democrats and Republicans in the House and Senate have worked 
together with the administration and all interested stakeholders large 
and small to craft legislation that has near unanimous support.
  I thank Senator Kyl, the minority whip, for his comments early today. 
I agree with him that sending this House-passed bill directly to the 
President will begin the process of demonstrating to the American 
people that we can work together, Democrats and Republicans, House and 
Senate, on their behalf.
  Those now advocating for enactment of the America Invents Act without 
further amendment include the United States Chamber of Commerce, the 
United Steelworkers, the National Association of Manufacturers, the 
Association of American Universities, BIO and PhRMA, Community Bankers, 
the Coalition for 21st Century Patent Reform, the Coalition for Patent 
Fairness, the Small Business & Entrepreneurship Council, and businesses 
representing virtually every sector of our economy.
  In a recent letter from Louis Foreman, a well known independent 
inventor, he wrote of his support for the America Invents Act saying:

       The independent inventor has been well represented 
     throughout this process and we are in a unique situation 
     where there is overwhelming support for this legislation. . . 
     . H.R. 1249 is the catalyst necessary to incentivize 
     inventors and entrepreneurs to create the companies that will 
     get our country back on the right path and generate the jobs 
     we sorely need.

  American ingenuity and innovation have been a cornerstone of the 
American economy from the time Thomas Jefferson examined the first 
patent application to today. A recent Department of Commerce report 
attributes three-quarters of America's post-World War II economic 
growth to innovation. It is the patent system that incentivizes that 
innovation when it holds true to the constitutional imperative to 
``promote the progress of science and useful arts, by securing for 
limited times to . . . inventors the exclusive right to their 
respective . . . discoveries.''
  The Founders recognized the importance of promoting innovation. A 
number were themselves inventors. The Constitution explicitly grants 
Congress the power to ``promote the progress of science and useful 
arts, by securing for limited times to . . . inventors the exclusive 
right to their respective . . . discoveries.'' The time for Congress to 
undertake this responsibility and enact patent reform legislation into 
law is now.
  The discoveries made by American inventors and research institutions, 
commercialized by American companies, and protected and promoted by 
American patent laws have made our system the envy of the world. But we 
cannot stand on a 1950s patent system and expect our innovators to 
flourish in a 21st century world.
  The America Invents Act will keep America in its longstanding 
position at the pinnacle of innovation. This bill will establish a more 
efficient and streamlined patent system that will improve patent 
quality and limit unnecessary and counterproductive litigation costs, 
while making sure no party's access to court is denied.
  The President recently called on Congress to pass patent reform as 
soon as it returned from recess because it will create jobs and improve 
the economy without adding to the deficit. This bill is bipartisan, it 
is the product of years of thoughtful bicameral discussions, and it 
should be sent to the President's desk this week. There is no reason 
for delay.
  When we proceeded to the Senate version of this legislation last 
February, we did so by unanimous consent. The Senate proceeded to 
approve patent reform legislation with 95 votes. It is disappointing 
that we are being delayed from completing this important legislation. 
Further delay does nothing for American inventors, the American economy 
or the creation of American jobs. It is time, time to take final action 
on the America Invents Act.
  I see the time has arrived. Is the rollcall automatic?

[[Page 12993]]

  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  Is all time yielded back?
  Mr. LEAHY. I yield back.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Bernice Bouie Donald, of Tennessee, to be 
United States Circuit Judge for the Sixth Circuit?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller), is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Florida (Mr. Rubio).
  The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 96, nays 2, as follows:

                      [Rollcall Vote No. 124 Ex.]

                                YEAS--96

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

                                NAYS--2

     DeMint
     Vitter
       

                             NOT VOTING--2

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

                          ____________________