[Congressional Record (Bound Edition), Volume 158 (2012), Part 10]
[Senate]
[Pages 13299-13306]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF GERSHWIN A. DRAIN TO BE UNITED STATES DISTRICT JUDGE FOR 
                    THE EASTERN DISTRICT OF MICHIGAN

  The PRESIDING OFFICER (Mrs. McCaskill). Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The assistant bill clerk read the nomination of Gershwin A. Drain, of 
Michigan, to be United States District Judge for the Eastern District 
of Michigan.
  The PRESIDING OFFICER. There will be 1 hour of debate equally 
divided.
  Mr. LEAHY. Mr. President, earlier this week, Senate Republicans 
followed through on their partisan opposition to the President by 
slamming the door on a highly qualified, consensus circuit court 
nominee with bipartisan support. It was the first time in history that 
a circuit court nominee reported with bipartisan support from the 
Judiciary Committee was successfully filibustered. Judge Robert 
Bacharach, who was nominated to the Tenth Circuit Court of Appeals, had 
had the strong support of his Republican home State Senators, Senator 
Coburn and Senator Inhofe. Unfortunately, they chose not to vote to end 
the unprecedented filibuster of his nomination and cloture fell just 
short. This deprived the people of Oklahoma and the Tenth Circuit of an 
outstanding judge who could today be serving the American people as an 
appellate judge. The Bacharach nomination is one of the many judicial 
nominees ready for final action by the Senate but being delayed by 
Republican opposition.
  There was an article in the Washington Post this morning entitled ``A 
Bench with Plenty of Room'' about the judicial vacancies being 
perpetuated by partisanship all to the detriment of those seeking 
justice in our Federal courts. It notes that a lower percentage of 
President Obama's nominees have been confirmed than had been during the 
Bush administration and that at this point during the Bush Presidency 
there were only 28 judicial vacancies. It observes that ``Obama, with 
78 vacancies, may be the first president in decades to end his first 
term with more judicial vacancies than when he began.'' We can change 
that if Senate Republicans will cooperate in the consideration of the 
23 judicial nominees on the Senate Executive Calendar awaiting a final, 
up-or-down confirmation vote. I ask that a copy of that article be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Aug. 1, 2012]

                      A Bench With Plenty of Room

       The Senate's rejection Monday of Oklahoma Magistrate Judge 
     Robert Bacharach for a U.S. Court of Appeals seat sent a 
     clear message to the three other appellate nominees hoping 
     for a vote on the Senate floor:
       Fuhgeddaboudit.
       Ditto for 16 U.S. District Court nominees also pending in 
     committee. The odds of judicial confirmations after this 
     August recess are exceptionally slim--at best. The Cubs will 
     win the pennant before you'll be putting on the black robes.
       No nominees were confirmed after the August recess when 
     President Bill Clinton was running for reelection in 1996 and 
     only three when President George W. Bush was running for a 
     second term in 2004--although five got in during the lame-
     duck session.
       Still, a whopping 13 George H.W. Bush nominees, including 
     two for appellate seats, were confirmed after the August 
     recess in 1992, according to Senate Judiciary Committee 
     statistics.
       Four Clinton judicial picks were confirmed after the recess 
     in 2000, when Bush II and Al Gore were running, and 10 Bush 
     judges were confirmed during the race between Barack Obama 
     and John McCain, the committee reports.
       So with the numbers pretty much set, let's recap.
       President Barack Obama, who started off slowly in getting 
     nominations up to the Senate, never fully caught up. He's 
     nominated fewer judges (200) than either Bush (228) or 
     Clinton (245) on Aug. 1 of their fourth year in office, 
     according to committee statistics.
       At the same time, the Senate has confirmed a smaller 
     percentage of Obama nominees than Clinton nominees--78 
     percent, compared with 80.8 percent--and a much smaller 
     percentage than in the Bush administration (86.4).
       As a result, Obama, with 78 vacancies, may be the first 
     president in decades to end his first term with more judicial 
     vacancies than when he started.
       At this point in their first terms, Clinton had 58 judicial 
     vacancies and Bush had 28. (The latter figure is pretty much 
     full employment.)
       Liberals have criticized Obama for not having pushed harder 
     for his nominees, noting that Bush issued a lengthy statement 
     at a 2002 news conference blasting ``a handful'' of Senate 
     Democrats for holding up his judicial nominees because they 
     ``fear the outcome of a fair vote in the full Senate.''
       ``The Senate has an obligation to provide fair hearings and 
     prompt votes to all nominees,'' Bush said, ``no matter who 
     controls the Senate or who controls the White House.'' Obama 
     did, however, mention Senate delays in a State of the Union 
     address and in a Saturday radio address, we were told. And 
     Senate Judiciary Chairman Patrick Leahy (D-Vt.) intends to 
     keep moving nominees this fall. Well, who knows? Deals are 
     always possible.
       But, after those recess appointments of the consumer 
     finance watchdog and some labor folks in January, furious 
     Republicans are not feeling particularly cooperative on 
     appointments.

  Mr. LEAHY. The Senate Republicans who took the floor earlier this 
week relied on their distorted application of

[[Page 13300]]

the Thurmond rule in seeking to justify their unprecedented filibuster 
of Judge Bacharach's nomination. The truth is that Senate Republicans 
are trying to find an excuse for their partisan inaction that is 
stalling almost two dozen judicial nominees.
  We now have a President who has worked with home State Senators to 
select moderate, superbly qualified judicial nominees. Yet Republicans 
who support these nominees will not vote to end filibusters against 
them and will not stand up to the partisan obstruction. I am proud of 
my record of working to lower vacancies and to move nominations whether 
there is a Republican or Democratic President and of my role ensuring 
that nominees are treated fairly and that the rights of every Senator 
are protected in the Judiciary Committee. But this is not about me. 
This is about the American people. This is about ensuring that they 
have functioning courts so they have access to justice.
  With our Federal courts still severely overburdened, I hope that 
Senate Republicans will consider the needs of the American people. We 
need to do better, filling vacancies to ensure a functioning democracy, 
functioning courts, and do our job for the American people.
  There are currently 19 district court nominees who have been reported 
favorably by the Judiciary Committee who can be voted on right now, 
almost all of them completely noncontroversial with significant 
bipartisan support. Of the 19 district court nominees currently pending 
on the floor, 16 were supported by nearly all Republicans on the 
committee. All have the support of their home State Senators, including 
eight with Republican home State Senators.
  The reason for this extensive backlog of nominees is that Senate 
Republicans have allowed for votes on just one district court nominee 
per week for the last 7 weeks. We cannot allow this slow pace of 
confirmations to continue with the judicial vacancy crisis that we 
face. There are currently 78 vacancies. Judicial vacancies during the 
last few years have been at historically high levels and have remained 
near or above 80 for 3\1/2\ years. Nearly 1 out of every 11 Federal 
judgeships is currently vacant. Vacancies on the Federal courts are 
more than 2\1/2\ times as many as they were on this date during the 
first term of President Bush.
  In contrast to the dramatic reduction in judicial vacancies during 
President Bush's first term, judicial vacancies are higher than they 
were when President Obama came into office--another sad first.
  We have heard lots of excuses from Senate Republicans, who have tried 
to shift the blame for the judicial vacancy crisis to the President. 
They claim that the President has not made enough nominations. However, 
there are 19 outstanding district court nominees who can be confirmed 
right now who are being stalled. Let's act on them. Let's vote them up 
or down.
  The Senate should proceed to confirm all 19 district court nominees 
who are ready for final confirmation votes. I know we can do this 
because we have done this before. On November 14, 2002, the Senate 
proceeded to confirm 18 judicial nominees on 1 day, and vacancies went 
down to 60 throughout the country. If we confirm the 19 district 
nominees ready for final Senate action today, we can reduce vacancies 
down to 60 as well. I hope that Senate Republicans will not extend 
their wrongheaded Thurmond rule shutdown to the confirmation of 
consensus, well-qualified district court nominees. Given our 
overburdened Federal courts and the need to provide all Americans with 
prompt justice, we should all be working in a bipartisan fashion to 
confirm these nominees.
  Today, the Senate will vote on the nomination of Gershwin Drain to 
fill a judicial emergency vacancy in the U.S. District Court for the 
Eastern District of Michigan. Judge Drain has the strong support of his 
home State Senators, Senator Levin and Senator Stabenow. His nomination 
was reported favorably by the Judiciary Committee 4 months ago.
  Judge Drain has been a State and local trial court judge in Michigan 
for over 25 years, with jurisdiction over both civil and criminal 
matters. In that time, he has presided over approximately 600 cases 
that have gone to verdict or judgment after trial. The ABA Standing 
Committee on the Federal Judiciary has unanimously rated Judge Drain as 
``qualified'' to serve on the U.S. district court.
  Currently a trial judge on the third Circuit Court of Michigan, where 
he has been presiding since 1997, Judge Drain has also served on the 
Recorder's Court for the City of Detroit for a decade. Prior to that, 
he served briefly as a judge for the 36th District Court of Michigan. 
Before becoming a judge, he was a trial attorney for the Federal 
Defenders Office for nearly a dozen years, where he tried over 140 
cases to verdict or judgment. Judge Drain's vast experience as both a 
judge and a litigator makes him well prepared to take the Federal 
bench.
  There are some Senators who have expressed concerns about Judge 
Drain's views based on a few isolated public statements that Judge 
Drain made more than a decade ago. However, Judge Drain's 25 years on 
the bench demonstrate that he is more than capable of being a fair and 
neutral judge who faithfully applies the law. His experience presiding 
over 600 civil and criminal matters provides further assurance that he 
makes his decision based on the law and nothing more.
  Mr. GRASSLEY. Mr. President, I rise in opposition to the nomination 
of Gershwin A. Drain, to be U.S. district judge for the Eastern 
District of Michigan. Judge Drain, currently serving as a Michigan 
State court judge, was reported out of committee on a 10 to 8 vote. He 
could hardly be described as a consensus nominee.
  Even as we turn to the 155th nominee of this President to be 
confirmed to the district and circuit courts, we continue to hear 
unsubstantiated charges of obstructionism. The fact is, we have 
confirmed over 80 percent of President Obama's District nominees. That 
exceeds the percentage for President Bush at this stage in his 
Presidency.
  During the last Presidential election year, 2008, the Senate 
confirmed a total of 28 judges--24 district and 4 circuit. This 
Presidential election year we have already exceeded those numbers. We 
have confirmed 5 circuit nominees, and Judge Drain would be the 28th 
district judge confirmed. That is a total of 33 judges this year versus 
28 in the last Presidential election year. Again, there is no credible 
basis to argue that this President is being treated differently.
  With regard to Judge Drain, I will not take the time to mention every 
aspect of his record that I find troubling, but I do want to highlight 
some of my concerns.
  In 1994, Judge Drain wrote an article that was published in the 
Michigan Chronicle concerning the second amendment and the right of 
American citizens to own and possess firearms. Judge Drain wrote that 
he ``envisions a day when the National Rifle Association with its lobby 
will not be feared, and that legislators and congressman will stand up 
strong against them instead of bowing down to them.'' He also wrote 
that he ``looks forward to the time when a person with a gun will be 
viewed as a coward or a chicken.''
  I would note that it is not as if Judge Drain was a young and 
inexperienced lawyer when he took this view. On the contrary, he wrote 
this article after he had been serving as a judge for approximately 7 
years. I recognize that Judge Drain told Senator Lee at his hearing 
that, if confirmed, he would follow the precedent in McDonald and 
Heller. But, I also know that when individual has such strong and well-
established views on a particular subject, it can be very difficult for 
them to set aside those strongly held views.
  Judge Drain also has very strong views regarding his opposition to 
the death penalty. In an article he authored in the Detroit News, he 
referred to the death penalty as a ``primitive punishment that is 
brutal and barbaric.'' He also said that deterrence was ``the only 
reasonably legitimate argument for killing the convicted,'' but he said 
deterrence was actually a ``myth.'' Now, at his hearing, Judge Drain 
said that he wrote that article many years ago and he no longer holds 
to that position. But again, given how

[[Page 13301]]

Judge Drain appears to have held very strong views on this issue, I am 
concerned that he would not be able to completely set those views 
aside.
  His views on criminal sentencing concern me as well. Judge Drain has 
been strident in his opposition to mandatory sentences. He once wrote 
that, as a judge, ``one of my unpleasant tasks on occasion is to impose 
mandatory sentences.'' On another occasion, he expressed admiration for 
judges who refuse to hear drug cases where the law would require them 
to impose mandatory sentences. He called the judges who refuse such 
cases ``courageous.'' In my view, judges should accept the cases that 
are assigned to them, and it is their duty to do what the law requires 
of them. If they are unable to do that, then they should not be a 
judge.
  At the State level, he urged his legislature to eliminate mandatory 
sentencing. At the Federal level, he criticized President Clinton's 
``three strikes and you're out'' legislation.
  At his hearing, I asked him about his views on sentencing. I 
appreciate that he acknowledged that his obligation is to follow the 
law. And then he added, ``The fact that I wrote some side comments 
about [sentencing], really shouldn't have anything to do with my 
decision-making, and is really kind of irrelevant or unimportant to 
me.''
  However, Judge Drain's articles and comments are not irrelevant. As I 
evaluate the nominee, I have to be comfortable that he will be able to 
set aside his strongly held personal views and do what the law 
requires. Unfortunately, I am unable to reach that conclusion. I am 
sure Judge Drain is an admirable man, but I am unable to support him 
for the Federal bench.
  Judge Drain received his B.S. from Western Michigan University in 
1970 and his J.D. from the University of Michigan Law School in 1972. 
Upon graduation, he clerked for the Michigan Third Circuit Court 
judges. In 1973, Judge Drain worked as an attorney for a year in the 
department of transportation in Detroit. There, he handled property 
damage and minor personal injury cases. From 1974 to 1986, he worked as 
a Federal public defender in Detroit on felony cases. He handled cases 
where defendants were charged with a variety of crimes, including drug 
violations, bank robberies, counterfeiting, mail theft, interstate 
transportation of stolen property, and gun charges.
  In 1986, Judge Drain was appointed to the 36th District Court for the 
city of Detroit. There, he had jurisdiction over traffic violations, 
landlord-tenant disputes, misdemeanors, and civil cases where the 
amount in controversy was less than $25,000. In 1987, he was appointed 
to the Recorder's Court for the city of Detroit, where he presided over 
felony prosecutions.
  Judge Drain was elected to the Third Circuit Court of Michigan in 
1997, where he presided over felony prosecutions in Wayne County until 
2000. In 2000, he became a civil judge in the Third Circuit and 
presides over State civil cases where the amount in controversy exceeds 
$25,000.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BLUNT. Madam President, I don't intend to talk about the 
nomination, but I have talked to my friend from Michigan about this, 
and I would ask unanimous consent that my time come from the Republican 
time on the nomination discussion.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cyber Security

  Mr. BLUNT. I rise today on two topics. One, I want to say that while 
I don't agree with everything my good friend from Rhode Island just 
said about the issue he was talking about, the two of us have worked 
all this year to try to bring people together on the issue we failed to 
deal with today on cyber security.
  Senator Whitehouse and I, along with Senators Kyl and Mikulski, at 
the very first of the year began to create opportunities for Senators 
to sit down together and talk about the threat we face and talk about 
what we need to do to deal with it. I am convinced and I believe all 
the people I just mentioned are equally convinced that two things will 
happen: No. 1, we will eventually have a cyber attack on our country 
that will be successful in some way that many Americans will understand 
the danger we face from the cyber threat and, No. 2, that we will 
eventually pass a bill. My strong belief is that will be a better bill 
if we pass it before that event rather than after that event.
  Mr. WHITEHOUSE. Madam President, may I simply interject, with the 
Senator's permission, to say how much of a pleasure it has been to work 
with him on this issue and to say that I think a great number of 
Senators on both sides of the aisle have worked in very good faith to 
get to a point where we can pass a bill. And I pledge to him, despite 
the unfortunate outcome of today's cloture vote, that I am committed to 
continuing to work with him, Senator Kyl, Senator Graham, Senator 
McCain, and others--I guess Senator Chambliss--on the other side of the 
aisle so we can indeed take the necessary steps to protect our Nation 
from this threat. But I say this with a strong consciousness of the 
very good will and the very hard work Senator Blunt put into this 
effort and with great appreciation to him personally.
  I yield the floor.
  Mr. BLUNT. I thank my friend from Rhode Island, and I think we can 
move forward. I think there is good faith.
  As I said, we started--the four of us--beginning to get people 
together. That group was quickly joined by Senators Collins and 
Lieberman, so then six of us began to get people together. There were 
any number of meetings this week with about two dozen Senators, about 
equally divided between both parties, trying to find a way forward. I 
didn't think we found that in the cloture motion today. The motion 
said: Here is how we are going to proceed to finish the bill, and so we 
didn't move forward today. But I hope we can continue to work with 
Senator Reid and others to create the sense that Senator Whitehouse 
just expressed, that there is great bipartisan effort being made to 
find a solution that not only would pass a Senate bill but would wind 
up with a bill on the President's desk sometime this year.
  You don't have to look very far to find people who will say that the 
greatest threat we face at this moment is the threat of some kind of 
cyber attack. At the highest levels of our military structure, of our 
intelligence structure, they quickly come to that conclusion. And 
leaving here for the work period in August that Congress has had since 
the beginning of Congresses without having this done on the Senate side 
is disappointing to me.
  On the other hand, there wouldn't have been a bill even if we had 
passed a bill today because we have to work with the House to have a 
bill that winds up with a piece of paper on the President's desk--a 
relatively small stack of paper--that he can sign and that then becomes 
the law that allows us to either minimize or hopefully avoid the 
current certainty that someone will eventually begin to get to our 
critical infrastructure in a way that makes it hard for the country to 
get water, to get electricity, to communicate, or to address the 
financial network. You know, 3 or 4 days anywhere in the country where 
the electricity is out, suddenly you begin to see all of the things 
that are dependent on just the electrical grid alone.
  Hopefully we can do this. I know work is being done. I will be 
involved in some of it later today. As I said, I am disappointed we 
didn't get this done, but it has to be done. We can't leave here this 
year with the House saying ``we passed a bill'' and the Senate saying 
either ``we didn't pass a bill because one side didn't want to work 
with the other'' or ``we passed a bill, but the House wouldn't agree to 
it.'' This is not a problem that we just need to have a political 
answer to; this is a problem we need to have a real answer to.


                             Iran Sanctions

  What I also came to the floor to talk about today is something we 
actually managed to get done just a few days ago when the Senate passed 
the House-passed Iran Threat Reduction and Syria Human Rights Act. This 
is one thing people who don't agree on much of anything else in the 
House and Senate can figure out how to agree on.

[[Page 13302]]

This bill, while I think it could have been a little stronger, was 
still a strong effort to reach a conclusion that hopefully the 
President will sign as soon as possible and send the right message to 
Iran that even amid our vigorous disagreements on all these other 
issues, including something as important as cyber security, Congress 
stands united against Iran developing nuclear capacity.
  Let me give some of the highlights of the bill. This would create 
strong new measures on any entity that invests in Iran's petroleum, 
petrochemical, or natural gas sector, strong measures against any 
entity that provides goods, services, and infrastructure or technology 
to Iran's oil and natural gas and any entity that provides refined 
petroleum products to Iran.
  Iran is an economic basket case. They have all this oil, but they 
can't turn enough of it into gasoline for their own country because of 
the kind of government under which they are suffering.
  Again, this bill would create new, strong measures against any 
company or entity that insures or reinsures investments in Iran's oil 
sector; that engages in joint ventures with the National Iranian Oil 
Company; that provides insurance or reinsurance to the National Iranian 
Oil Company or the National Iranian Tanker Company; that helps Iran 
evade oil sanctions through reflagging or some effort that tries to 
hide the real source of oil coming from Iran; that sells or leases or 
otherwise provides tankers to Iran; that transports crude oil from Iran 
concealing the origin of Iranian crude in any way. These are good 
measures that strengthen what we have been doing, and what we have been 
doing is having some impact. I believe we need to have more impact 
because the result would be so unacceptable if Iran successfully gets a 
nuclear weapon.
  The bill prevents Iran from bringing money back when it sells oil in 
other countries. Now, 80 percent of their hard currency comes into the 
country that way. So we would say that can't happen. And 50 percent of 
all the money that runs the government comes in that way. When the 
President signs this bill, we are saying this shouldn't be allowed to 
happen. It also prevents the purchasing of Iranian sovereign debt.
  I have been working on this issue for a long time. In 2006 I worked 
with my colleagues in the House and Senate and the administration to 
secure the first Iran Freedom Support Act, which updated the Iran 
sanctions law and put into law many of the things we have been doing. 
This bill, along with that bill, addresses problems we need to be 
concerned about as a country.
  Late last year the Senate passed an amendment to the Defense bill, 
100 to 0, to block Iran's access to global capital markets. Foreign 
banks that do business with Iran's banks won't be able to do business 
with the U.S. financial system.
  Nobody disputes what a nuclear Iran would mean to the world. Iran is 
currently led by a man who has called for the destruction of our ally 
Israel. Iran's government funds and supports terrorist organizations 
and regimes all over the Middle East that threaten American allies and 
interests and American citizens. The Iranian regime is dangerous, it is 
undemocratic, it treats its own people brutally, and it associates 
itself with other countries that do the same thing. North Korea, 
Venezuela, and Syria are allies of Iran. What does that tell us? We can 
sometimes tell a lot about a country by the few friends it has left in 
the world. Iran bankrolls Hezbollah and has strong financial ties with 
Hamas. Remember, this is a country that can't even produce their own 
gasoline, even though they send oil out every day, because they are 
focusing on nuclear activities when they have so many other needs. So 
there is no reason to believe a nuclear Iran would not be a threat to 
the United States.
  Some of our country partners in that region, such as Turkey, feel 
they have to develop nuclear programs if Iran does.
  The Iranian people, many of whom advocate for freedom and 
demonstrated their bravery in the 2009 uprisings, are not our enemies. 
This government, however, is our enemy, and this government should not 
be allowed to have a nuclear weapon.
  We are going to have to work together to more vigorously persuade 
countries such as Russia and China that their ties with Iran aren't in 
the best interest of the world. We have to work to encourage our 
European allies to accept some further risk as they also continue on 
the path they are on to make these sanctions work better.
  I understand there is some risk here, but the Senate--which doesn't 
agree on a lot of things--agrees that an unacceptable conclusion to 
what is going on in Iran right now would be a nuclear Iran.
  I urge the President to sign this bill to implement the provisions as 
quickly as possible and to work with other countries in the world to 
see that we all advance the interests of peace by insisting that Iran 
not continue on the course it is on.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I am very pleased that the Senate is now 
taking up the nomination of Gershwin Drain to be a judge on the Eastern 
District Court of Michigan.
  Judge Drain has an impressive legal career. He graduated from the 
University of Michigan Law School and then went on to earn a master's 
of judicial studies degree in 1991. He has served with distinction as a 
trial judge for over two decades in all three of our trial courts, from 
the lowest court, which is a so-called district court, to the 
recorder's court and the circuit court.
  He has demonstrated a career-long dedication to helping the people 
understand how our legal system works. As a longtime columnist for the 
Michigan Chronicle newspaper, he has explained often-complex legal 
issues in language accessible to lay readers, broadening understanding 
of and appreciation for our courts. Beyond his writing, Judge Drain has 
been very active in the community, including membership on the 
education committee of the Southfield Christian School Board.
  It is important to note that the confirmation of Judge Drain would 
help to remedy the judicial emergency in the Eastern District of 
Michigan. Vacancies and caseloads in the Eastern District meet the 
Federal judicial system's definition of an emergency. These judicial 
emergencies lead to delays and, even worse, to the risk of rushed 
judgments that could deprive Americans of the impartial justice that is 
so much a necessary component of our democratic system of government.
  Judge Drain was asked about some of his past writings and statements 
during his confirmation hearing at the Judiciary Committee on such 
issues as capital punishment and mandatory minimum sentences. He 
indicated that some of those views--some of them decades ago--have 
evolved. He was candid in saying where they have changed. I don't agree 
with everything Judge Drain said 20 years ago, but nonetheless, without 
the slightest hesitancy, Senator Stabenow and I have recommended him to 
be a judge on the Eastern District Court for Michigan.
  The test of his fairness has been shown by the fact that he has 
served with distinction for over two decades on trial courts. Another 
test of his fairness is how the legal community feels about Judge 
Drain.
  Senator Stabenow and I have appointed a judicial advisory commission 
to make recommendations to us for the judicial positions we have on the 
Federal district courts. His nomination was the result of an 
examination by and consideration of a host of people interested in 
being Federal court judges in the Eastern District. His competition was 
great. There are literally dozens of qualified people whom we 
considered--more accurately, our judicial advisory commission 
considered--to recommend to the President for nomination. He was one of 
the persons they recommended. This is a commission we have appointed in 
order to remove the nominees whom we recommend to the President, as 
much as we can, from partisan politics and to

[[Page 13303]]

 put them instead under consideration to be a judge with great 
objectivity. We have a broadly based commission. I think the best test 
of his fairness and objectivity and his ability to judge people not 
based on anything other than the merits of the case in front of him is 
testified more than anything to by the fact that the broadly based 
judicial advisory commission recommended his nomination to us as one of 
the people to be considered, and we recommended him to the President.
  The American Bar Association has also spoken on this issue. He has 
been recommended unanimously as qualified for the Federal bench by the 
Standing Committee on the Federal Judiciary of the American Bar 
Association.
  So we are in a position here where we have a judicial emergency on 
the Eastern District Court. We have a situation where the delays that 
result deprive Americans of what they are entitled to. We have a 
nominee who has been recommended by a broadly based commission that 
Senator Stabenow and I have appointed. He has been given a unanimous 
rating of ``qualified'' by the American Bar Association. And I think 
his commitment has been shown not just by his decades of service as a 
trial judge but by the way he answered the questions in his 
confirmation hearing. He said--and he has shown this in practice--that 
``my personal beliefs, both past and present, have no bearing on the 
decisions I make in court.'' The notion that he would insert his own 
personal judgment in place of the law is contradicted by not just his 
testimony but by a record of decisions that indicate he abides by the 
concept of judge as impartial arbiter.
  Senator Stabenow and I strongly urge our colleagues to confirm Judge 
Drain. We hope that can happen in the next hour.
  Madam President, I yield the floor and ask that the time between now 
and the time for voting be equally divided between the majority and the 
minority.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
quorum call will be equally divided.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Politicizing Israel

  Mr. LAUTENBERG. Madam President, I rise today out of disbelief with 
the rhetoric coming from Republicans and their Presidential candidate 
concerning the U.S. relationship with Israel. Frankly, it pains me to 
see that a political trip to Israel is carried with a message to scare 
the Israelis that President Obama and this administration are not as 
fast and as complete as they are.
  I have had numerous trips to Israel. One was the 6-day war in 1967, 
when the Israelis had battled with the Egyptians, and I got there 
shortly after the guns stopped shooting. I went to the Sinai Desert and 
watched the Israelis on guard while the Egyptian soldiers were carrying 
necessary items, such as water and food, for their people. I was 
reminded then that the Israelis always have to be on guard. They are 
never free to go about their domestic interests and problems without 
having one eye open to make certain the rockets that are being aimed at 
them aren't going to tear their people apart again, as their people 
have experienced--the worst of human relations, a blight on mankind 
which can never be forgotten, and the Israelis remember it very 
clearly.
  Unfortunately, Republicans want to use our relationship with Israel 
as a political game, which is terrible for America's national security 
and bad for Israel. The implication that we are weak in our support for 
Israel is foul play and encourages Israel's enemies to look and say: 
Well, maybe America is not as solid on its support of Israel, because 
Mr. Romney, when asked the question about what he would do differently 
with Israel, says he would do just the opposite of what President Obama 
has done.
  We have built a relationship between our countries that is firm and 
unshakable since 1948. To try to clumsily interfere with that is 
shameful. Republicans are distorting the state of U.S.-Israel relations 
for political gain and sending the wrong signal to the rest of the 
world.
  When you listen to the Republicans--especially their Presidential 
candidate, Mitt Romney discuss Israel, reality is often replaced with 
distortion and fantasy. Mitt Romney says President Obama has not been a 
friend of Israel. That couldn't be any further from the truth. When we 
examine the record, it is clear that President Obama shares my 
convictions about the enduring bond between Israel and the United 
States. It is clear that there is no greater friend to Israel than this 
President.
  But you don't have to take my word for it. Here is a chart that 
carries a message from a distinguished leader in Israel, the Israeli 
Defense Minister, Ehud Barak. He says very clearly:

       [T]his administration under President Obama is doing in 
     regard to our security more than anything that I can remember 
     in the past.

  He made certain that it is quite understood that the relationship 
with Israel and America is solid and well-balanced. This is coming 
from, as I said, a distinguished, decorated military leader. He helped 
plan the historic raid on Entebbe to rescue Israelis who were held in a 
grounded airplane. He understands Israel's security.
  Israeli Prime Minister Benjamin Netanyahu has called the Obama 
administration's security policy for Israel ``unprecedented.'' But if 
you listen to Republicans over here in the United States, they say we 
have all but abandoned Israel's security. They are encouraging hostile 
neighbors with their misrepresentations. Shame on them.
  Governor Romney in particular has demonstrated frightening ignorance 
about Israel and its security needs. The prime example of this behavior 
is the Republican Presidential nominee's complete inability to 
articulate what exactly he would do differently than President Obama. 
When asked about what his policy regarding Israel would be, and I have 
to quote him here, he said: ``I'd look at the things the President has 
done and do the opposite.''
  What a threatening statement that is. He said he wants to do the 
opposite of President Obama. So let's look at what that would mean. 
Obama blocked Palestinian statehood when it was brought up in the U.N. 
He had a big fight on his hands to keep that from happening. So that 
means Romney, as President, would allow Palestinian statehood in the 
U.N. He said he is going to do the opposite.
  Record high U.S. aid for Israel? Romney is going to do the opposite. 
That means he has to lower the U.S. aid for Israel.
  Obama says all options on the table for dealing with Iran are there. 
That means that Mitt Romney, if President, would only use 
``containment'' of a nuclear Iran as his yardstick for dealing with 
this incredible problem.
  So, everybody, beware. Israelis, beware. Don't be taken in by this 
and don't let people in America be taken in by this. They know that 
Israel is America's best friend.
  Last September, when the Palestinian Authority aggressively pursued a 
U.N. vote on statehood, that is when President Obama stood strong and 
blocked it. If we are to believe Mitt Romney, however, as indicated 
here, he would have allowed this unilateral action on Palestinian 
statehood to proceed.
  Just a few days ago, President Obama signed into law a new bill that 
will strengthen U.S. security with Israel even further. But again, if 
we are to believe Mitt Romney, he would have lowered Israeli aid and 
weakened, thusly, Israel's defenses against the threats it constantly 
faces.
  And last, President Obama has stood absolutely firm in his call to 
stop Iran from development of a nuclear weapon. The Obama 
administration has been clear that all options are on the table to 
prevent Iran from becoming a nuclear threat to its neighbors. President

[[Page 13304]]

Obama has put in place the strongest sanctions ever against Iran, 
sanctions that have punished and isolated Iran more than ever before. 
If we are to believe Mitt Romney here as well, under President Romney 
America's policy toward Iran would be one of accepting a nuclear-armed 
Iran that threatens Israel's--and the world's--very existence.
  The bottom line is this: These are not simple problems and they will 
require real leadership to tackle. We cannot play games with America's 
best friend. Israel continues to be threatened by rockets launched by 
Hamas from the Gaza Strip. Iran appears intent on developing a nuclear 
weapon and is the foremost state sponsor of terror. But instead of 
approaching these issues with the careful consideration they deserve, 
the Republicans seem intent on twisting reality for political gain.
  We see it on the domestic front, too. The Republican leader said--he 
said it here--his party's top priority is to make President Obama a 
one-term President, and they are using any pretense they can to 
establish that. Their top priorities, then, clearly do not include 
helping everyday Americans by creating jobs, improving our schools, or 
strengthening our health care system. If we take Mitt Romney at his 
word, they are certainly not aimed at doing what is in Israel's best 
interest. And when they simply wish for our President's failure, they 
are hurting America's chance for success.
  When they fail to put forth any ideas of their own, they show 
themselves to be unfit to govern, unable to lead. Their mission, their 
primary mission is to bring down the record that President Obama has 
established. We have recaptured a lot of jobs. Still, we have a long 
way to go to get our economy in better motion than it is, but everybody 
knows we are working on it. We have seen remarkable growth in jobs in 
the automobile industry, which looked as though it might have ended up 
being unable to function in this country of ours.
  The whole world knows that America's leadership depends on its 
domestic strength and not on casual political rhetoric that challenges 
America's loyalty to its friends.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. STABENOW. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Michigan.
  Ms. STABENOW. Madam President, I rise today to strongly urge my 
colleagues to support the nomination of an outstanding judge, Gershwin 
Drain, to the United States District Court for the Eastern District of 
Michigan. We will have an opportunity to vote in a few minutes. Senator 
Levin and I join together in the strongest possible recommendation to 
our colleagues on this nomination. I have known Judge Drain for many 
years. I can tell you he is a very impressive individual with a long 
record of excellent public service. He has served in the district 
court, the Detroit Recorder's Court and the Wayne County Circuit Court.
  He is active in the community. When I am in the community and have 
the opportunity to be at events that are important for people, for 
families, for communities, for children, for economic development, 
Judge Drain is always there, supporting the efforts of Detroit and of 
Michigan.
  He is of course dedicated to his incredible family, who I know is 
very proud of him, as we are. But don't take my word for it. The 
American Bar Association Standing Committee on the Federal Judiciary 
unanimously rated Judge Drain ``qualified'' to serve on the District 
Court. He was named a ``Man Of Excellence'' by the Michigan Chronicle 
newspaper, and the Detroit News named him ``Michiganian of the Year''--
both very prestigious recognitions in Michigan.
  This is a very important judgeship that has been vacant for more than 
2 years. It is important for people in Michigan and throughout the 
eastern district to be able to have the full measure of justice they 
expect and deserve when coming before the court. It is very important 
that we fill this vacancy.
  I am appreciative and proud that the President of the United States 
has nominated him. I appreciate the support of the Judiciary Committee 
in bringing this nomination forward and the agreement to allow us to 
vote on this nominee.
  Judge Drain has the qualifications, the experience, and the 
temperament for this very important position. I strongly urge my 
colleagues to support his nomination and to vote yes when it comes 
before us in the next few minutes.
  I 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. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the nomination 
of Gershwin A. Drain, of Michigan, to be United States District Judge 
for the Eastern District of Michigan?
  Mr. LEVIN. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Illinois (Mr. Kirk), the Senator from Kansas (Mr. Moran), the 
Senator from Florida (Mr. Rubio), and the Senator from Louisiana (Mr. 
Vitter).
  The PRESIDING OFFICER (Mr. Sanders). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 55, nays 41, as follows:

                      [Rollcall Vote No. 189 Ex.]

                                YEAS--55

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Coats
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--41

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kyl
     Lee
     Lugar
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Paul
     Portman
     Risch
     Roberts
     Shelby
     Snowe
     Thune
     Toomey
     Wicker

                             NOT VOTING--4

     Kirk
     Moran
     Rubio
     Vitter
  The nomination was confirmed.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, I ask unanimous consent that the motion 
to reconsider be considered made and laid upon the table, that the 
President be immediately notified of the Senate's action, and the 
Senate resume legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Burmese Freedom and Democracy Act

  Mrs. FEINSTEIN. Mr. President, I rise today to express my support for 
S. 3326, a trade package that includes legislation sponsored by myself 
and Senator McConnell to renew the import ban on Burma for another 
year.
  I have been involved in the struggle for freedom and democracy in 
Burma for 15 years.
  In 1997, former Senator William Cohen and I authored legislation 
requiring the President to ban new U.S.

[[Page 13305]]

investment in Burma if he determined that the Government of Burma had 
physically harmed, rearrested or exiled Aung San Suu Kyi or committed 
large-scale repression or violence against the democratic opposition.
  President Clinton issued the ban in a 1997 Executive order.
  In 2003, after the regime attempted to assassinate Aung San Suu Kyi, 
Senator McConnell and I introduced the Burmese Freedom and Democracy 
Act of 2003, which placed a complete ban on imports from Burma. It 
allowed that ban to be renewed one year at a time.
  It was signed into law and has been renewed annually since then.
  It expired on July 26 which is why this legislation is before us 
today.
  In past years, the debate on renewing the import ban on Burma has 
focused on more than two decades of violence, oppression, and human 
rights abuses by the ruling Burmese military.
  They annulled the last free parliamentary elections won by Aung San 
Suu Kyi and the National League for Democracy.
  They kept Suu Kyi in prison or under house arrest, detained hundreds 
of political prisoners, and ignored democracy, human rights, and the 
rule of law.
  They drafted a new constitution that maintained the military's grip 
on power and prevented Suu Kyi and her party from participating in the 
political process.
  But, I am pleased to report that this year is different. We have seen 
some remarkable changes in Burma over the past year which appear to 
have put Burma on the path of reform and rejoining the international 
community.
  Hundreds of political prisoners have been released.
  New legislation broadening the rights of political and civic 
associations has been enacted; and negotiations with ethnic minority 
groups have begun and some cease-fires have taken effect.
  In addition, Suu Kyi and her National League for Democracy, NLD, were 
allowed to compete in by-elections for 45 open seats in the new 
parliament in April 2012.
  Suu Kyi and the NLD won 43 of the 44 seats they contested.
  For those of us who have been inspired by her courage, her dedication 
to peace and her tireless efforts for freedom and democracy, it was a 
thrilling and deeply moving event. Years of sacrifice and hard work had 
shown results--the people of Burma had spoken with a clear voice in 
support of freedom and democracy.
  The United States has responded to this reform process in a number of 
ways.
  Secretary Clinton traveled to Burma last December and met with Suu 
Kyi and President Thein Sein.
  The United States and Burma resumed full diplomatic relations, with 
Ambassador Derek Mitchell becoming the first U.S. ambassador to Burma 
in 22 years.
  Earlier this month, the administration announced that it was 
suspending U.S. sanctions on providing financial services to Burma and 
investing in Burma.
  I supported these actions. It is entirely appropriate to acknowledge 
the steps Burma has already taken and encourage additional reforms.
  Some may ask then: why stop there? Given the reforms, why renew the 
import ban?
  The fact of the matter is, the reforms are not irreversible and the 
Government of Burma still needs to do more to respond to the legitimate 
concerns of the people of Burma and the international community.
  First, it must address the dominant role of the military in Burma 
under the new constitution.
  The military is guaranteed 25 percent of the seats without elections 
and remains independent of any civilian oversight.
  In addition, the commander in chief of the military has the authority 
to dismiss the government and rule the country under martial law.
  It goes without saying that such powers are incompatible with a truly 
democratic government.
  Second, Burma must stop all violence against ethnic minorities. I am 
particularly concerned about reports that the Burmese military is 
continuing attacks in Kachin State, displacing thousands of civilians 
and killing others.
  Third, the government must release all political prisoners.
  I applaud the decision of the Government of Burma to release hundreds 
of political prisoners, including a number of high-profile democracy 
and human rights activists.
  Yet, according to the State Department, hundreds more remain in 
detention.
  Unfortunately, the Government of Burma maintains there are no more 
political prisoners. We must keep the pressure on Burma until all 
democracy and human rights activists are free and able to resume their 
lives and careers.
  I believe that renewing this ban will help keep Burma on the path to 
full democratization and national reconciliation and support the work 
of Suu Kyi, the democratic opposition, and the reformists in the ruling 
government.
  It will give the administration additional leverage to convince Burma 
to stay on the right path.
  And the administration will still have the authority to waive or 
suspend the import ban--as it has suspended sanctions on investment and 
financial services--if the Government of Burma took the appropriate 
actions.
  If we do not renew the import ban, however, and Burma backslides on 
reform and democratization, we would have to pass a new law to reimpose 
the ban.
  By passing this legislation, we ensure that the administration has 
the flexibility it needs to respond to events in Burma as it as done so 
with financial services and investment.
  Suu Kyi herself has argued that ``sanctions have been effective in 
persuading the government to go for change.''
  I think renewing the import ban will push it to go further.
  I urge my colleagues to support this bill.
  Mrs. HAGAN. Mr. President, I ask unanimous consent that the quorum 
call be dispensed with.
  Mr. President, the bill we are considering this morning--the AGOA-
CAFTA-Burma sanctions package--has several parts, but I want to focus 
on the very real impact that one provision will have on jobs in my home 
State of North Carolina.
  This provision would make non-controversial technical fixes to the 
Dominican Republic-Central American Free Trade Agreement.
  When the DR-CAFTA was first negotiated nearly a decade ago, the 
intention of all the parties was to preserve the benefits of tariff 
reductions on yarn for the countries at the negotiating table.
  That is how the United States has traditionally negotiated the 
textile chapter of its free-trade agreements.
  But when the DR-CAFTA was agreed to in 2005 an out-of-date definition 
for sewing thread was used that inadvertently allowed non-CAFTA nations 
to export a certain kind of yarn into the CAFTA region duty free.
  Textile manufacturers in countries like China began exploiting this 
loophole to substitute their yarn for U.S.-produced yarn, and this 
action severely damaged textile manufacturers in North Carolina and the 
rest of the United States.
  Let me give you one example.
  Unifi is a textile manufacturing company headquartered in Greensboro, 
NC, with plants throughout the State. Half of their employees tied to 
the thread business have lost their jobs since 2006 when CAFTA took 
effect and the yarn loophole was exposed.
  Unifi is not alone.
  There are nearly 2,000 jobs in the United States that are directly 
affected by the exploitation of this loophole.
  Creating jobs in North Carolina is my No. 1 priority.
  Now I am proud of North Carolina's historic textile industry. It 
continues to innovate its way through advanced manufacturing and 
investments in research and development.
  But times are tough enough as it is for the American textile 
industry.
  We simply cannot afford to lose good-paying manufacturing jobs in 
North Carolina's textile industry because foreign countries are 
exploiting drafting errors and Congress delays fixing them.

[[Page 13306]]

  We should be looking for ways to allow our textile companies to 
compete with their foreign counterparts on a level playing field. This 
bill is a step in that direction.
  The corrections in this bill were brought to the attention of other 
CAFTA countries by the United States, were agreed to in February 2011 
and have since been enacted by all the other CAFTA countries.
  I am glad that we overcame this hurdle to ally ensure the integrity 
of the textile provisions of the Central American Free Trade Agreement.
  This fix is long overdue.
  I want to express my deep appreciation to Chairman Baucus for his 
leadership in moving this bill forward.
  Mr. McCONNELL. Mr. President, I rise today to applaud Senate passage 
of the Burmese Freedom and Democracy Act. The measure extends for 
another year the import ban with regard to Burma.
  I would like to clarify two issues that have prompted some confusion 
regarding this legislation.
  First, the measure we are passing renews import sanctions for 1 year 
and 1 year only. I emphasize this point because it has been misreported 
that this bill renews sanctions for 3 years. That is not accurate; the 
bill renews them only for 1.
  Second, enactment of this bill does not overturn the easing of 
investment and financial sanctions that the administration unveiled 
earlier this year. In fact, this year's bill, as in years past, 
provides authority for the administration to waive the import sanctions 
should it determine that certain conditions have been met. Before 
deciding whether to waive import sanctions, I would strongly urge the 
administration not only to consider the changes occurring within Burma 
but also to consult closely with Nobel Peace Prize laureate Daw Aung 
San Suu Kyi and the National League for Democracy.
  This year's legislation comes at a time of historic changes on the 
ground in Burma. Daw Aung San Suu Kyi, long a political prisoner in the 
country, is now a member of Parliament. The National League for 
Democracy, once a banned organization, now actively participates in the 
political life of Burma.
  For these reasons, the administration has taken a number of actions 
to acknowledge the impressive reforms that President Thein Sein and his 
government have instituted. The United States has responded by sending 
an ambassador to Burma for the first time in two decades. The 
administration also largely waived the investment ban and financial 
restrictions, permitting U.S. businesses to begin investing again in 
Burma.
  For my part, I want to see investment in the ``new'' Burma. I want to 
see Burmese reformers empowered accordingly, and I want to see greater 
economic development come to this underdeveloped country. And, frankly, 
during challenging economic times here at home, I want American 
businesses to be able to compete in Burma now that sanctions have been 
removed by other Western governments.
  That said, high standards for accountability in American business 
operations in Burma are important going forward. This seems 
particularly acute with regard to transactions involving Myanmar Oil 
and Gas Enterprise. I would urge U.S. businesses to show the Burmese 
people and the world the positive effects that American investment 
prompts. I am confident that, as they do elsewhere around the world, 
U.S. enterprises in Burma will set the standard for ethical and 
transparent business practices and lead the way for others to follow.
  I would be remiss if I did not note the significant challenges in 
Burma that lie ahead. Ongoing violence in Kachin State and sectarian 
tensions in Arakan State reflect the long-term challenge of national 
reconciliation. Hundreds of political prisoners remain behind bars. The 
constitution still has a number of undemocratic elements. And the 
regime's relationship with North Korea, especially when it comes to 
arms sales with Pyongyang, remains an issue of grave concern.
  Even with these challenges, however, I am greatly encouraged by the 
progress that has been made over the past year and a half in Burma. My 
colleagues and I in the Senate will continue to monitor developments in 
the country with great interest and with hope for the future.

                          ____________________