[Congressional Record (Bound Edition), Volume 158 (2012), Part 4]
[Senate]
[Pages 4712-4719]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF STEPHANIE DAWN THACKER TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE FOURTH 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 legislative clerk read the nomination of Stephanie Dawn Thacker, 
of West Virginia, to be United States Circuit Judge for the Fourth 
Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 60 
minutes of debate equally divided and controlled in the usual form.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, let me make sure I understand. The time is 
now divided for an hour until the vote?
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. I thank the distinguished Presiding Officer, and I welcome 
him back after the break and all Senators on both sides of the aisle.
  The Senate is going to consider the nomination of Stephanie Dawn 
Thacker, of West Virginia, to fill a judicial vacancy of the Fourth 
Circuit Court of Appeals, and I know the distinguished Senator from 
West Virginia, Senator Manchin, will be coming to speak in a few 
moments.
  I would note this is a judicial vacancy on which the Senate Judiciary 
Committee voted unanimously more than 5 months ago, as the 
distinguished Presiding Officer will recall, in favor of this 
nomination. After thorough debate and background, we voted for her 
unanimously. That was 5 months ago. She should not have had to wait 
this long.
  She should have been confirmed last year. With nearly 1 in 10 
judgeships across the Nation vacant and the judicial vacancy rate 
remaining nearly twice what it was at this point in the first term of 
President George W. Bush, the Senate needs to do more to reduce 
judicial vacancies so that all Americans can have the quality of 
justice that they deserve.
  The Federal Judiciary has been forced to operate with the heavy 
burden of 80 or more judicial vacancies for more than 3 years now. 
There is nothing to justify this extended period with years of 
vacancies numbering more than 80 around the country. Congress has not 
created scores of new judgeships, as we did in a bipartisan fashion 
during the Republican administration of Ronald Reagan and George 
Herbert Walker Bush. Indeed, when the Senate was confirming 205 circuit 
and district court nominees during the first term of President George 
W. Bush, we lowered vacancy rates more than twice as quickly.
  I will include for the Record at the conclusion of my remarks a copy 
of the Internet article entitled, ``1000 days,'' by Doug Kendall and 
Ryan Woo of the Constitutional Accountability Center, on this point.
  I also remind the Senate of the study by the Congressional Research 
Service on the historically high vacancies for record amounts of time 
about which I spoke earlier this year. This level of vacancies has been 
perpetuated for the entire Presidency of President Obama because Senate 
Republicans have adopted ``new standards'' and refused to enter into 
prompt agreements to schedule votes on qualified, consensus nominees.
  Today's vote is pursuant to the agreement reached by the majority 
leader and the Republican leader last month. This is the first Court of 
Appeals nominee to receive a vote pursuant to that agreement. This is 
only the second Court of Appeals nominee to receive a Senate vote all 
year. Both were qualified, consensus nominees who should have been 
confirmed last year and would have been but for Republican filibusters.
  It should not have taken 4 months and 2 days after being reported by 
the Senate Judiciary Committee for the nomination of Judge Adalberto 
Jordan to be considered by the Senate. Judge Jordan of Florida was 
finally allowed to fill a judicial emergency vacancy on the Eleventh 
Circuit. Finally, after a 4-month Republican filibuster that was broken 
by an 89 to 5 vote, and after Republicans insisted on 2 additional days 
of delay, the Senate voted to confirm him 94 to 5. A superbly-qualified 
nominee, he is the first Cuban-American to serve on the Eleventh 
Circuit. His record of achievement is beyond reproach. Judge Jordan is 
by any measure the kind of consensus nominee who should have been 
confirmed without such delay. Despite the strong support of his home 
state Senators, Senator Nelson, a Democrat, and Senator Rubio, a 
Republican, Senate Republicans filibustered and delayed his 
confirmation in October, in November, in December, and in January. It 
should not have taken another 2 days after the Senate voted 
overwhelmingly to bring the debate to a close to have the confirmation 
vote.
  The nomination of Stephanie Thacker is similar, and Senate 
Republicans have acted in a similar, all too familiar pattern. When 
confirmed, Stephanie Thacker will be the first woman from West Virginia 
to serve on the United States Court of Appeals for the Fourth Circuit. 
She, too, is strongly supported by both her home state Senators. She, 
too, is a qualified, consensus nominee. She has been forced to wait 
5\1/2\ months for Senate consideration, with no good purpose. Hers is 
not a nomination that should have been delayed and filibustered by 
Senate Republicans after it was reported unanimously by the Senate 
Judiciary Committee last November 3.
  Ms. Thacker is the kind of qualified, consensus nominee who in past 
years would have been considered and confirmed by the Senate within 
days of being reported unanimously by the Judiciary Committee. She is 
an experienced litigator, who, in her 21-year career as a Federal 
prosecutor and private defense attorney, has tried nearly two dozen 
cases to verdict or judgment and argued appeals before the Fourth 
Circuit and the West Virginia Supreme Court. Much of her career has 
been dedicated to public service. She served as an Assistant U.S. 
Attorney for the Southern District of West Virginia for 5 years and 
participated in the first prosecution in this country under the 
Violence Against Women Act--an important piece of legislation that I am 
working with Senator Crapo to reauthorize.
  She continued her career as a Federal prosecutor for another 7 years 
in the Child Exploitation and Obscenity Section of the Criminal 
Division of the Department of Justice. There, she focused on 
prosecuting cases dealing with child pornography, child sexual 
exploitation, sex trafficking, sex tourism, obscenity, and criminal 
nonsupport offenses. She rose to Deputy Chief of Litigation and then to 
Principal Deputy Chief. While

[[Page 4713]]

at the Justice Department, Ms. Thacker was awarded the Attorney 
General's Distinguished Service Award.
  Why would any Senator stall confirmation of this consensus nominee? 
What purpose did it serve? Must all nominees of President Obama be 
delayed and obstructed and stalled?
  I thank the majority leader for scheduling this vote. He has secured 
an agreement to vote on the long-delayed nomination of Judge Jacqueline 
Nguyen of California to fill one of the judicial emergency vacancies 
plaguing the Ninth Circuit, the busiest circuit in the country. She, 
too, is a consensus nominee who could and should have been confirmed 
last year. Her consideration has been delayed more than 5 months and 
will not occur until May 7. But there are two more Ninth Circuit 
nominees to fill judicial emergency vacancies who are before the Senate 
awaiting final consideration. Paul Watford of California was reported 
favorably by the Senate Judiciary Committee in early February. His 
nomination should be scheduled for a confirmation vote without further 
delay. Justice Andrew Hurwitz of Arizona was reported favorably by the 
Senate Judiciary Committee in early March. His nomination should also 
be scheduled for a confirmation vote. There is no good reason for 
delay. The 61 million people served by the Ninth Circuit are not served 
by this delay. The Circuit is being forced to handle double the 
caseload of any other without its full complement of judges. The Senate 
should be expediting consideration of the nominations of Judge 
Jacqueline Nguyen, Paul Watford, and Justice Andrew Hurwitz, not 
delaying them.
  The Chief Judge of the Ninth Circuit, Judge Alex Kozinski, a Reagan 
appointee, along with the members of the Judicial Council of the Ninth 
Circuit, have written to the Senate emphasizing the Ninth Circuit's 
``desperate need for judges,'' urging the Senate to ``act on judicial 
nominees without delay,'' and concluding ``we fear that the public will 
suffer unless our vacancies are filled very promptly.'' The judicial 
emergency vacancies on the Ninth Circuit are harming litigants by 
creating unnecessary and costly delays. The Administrative Office of 
U.S. Courts reports that it takes nearly 5 months longer for the Ninth 
Circuit to issue an opinion after an appeal is filed, compared to all 
other circuits. The Ninth Circuit's backlog of pending cases far 
exceeds other Federal courts. As of September 2011, the Ninth Circuit 
had 14,041 cases pending before it, more than three times that of the 
next busiest circuit.
  If caseloads were really a concern of Republican Senators, as they 
contended last year when they filibustered the nomination of Caitlin 
Halligan to the D.C. Circuit, they would not be delaying the 
nominations to fill judicial emergency vacancies in the Ninth Circuit. 
If caseloads were really a concern, Senate Republicans would consent to 
move forward with all three of these Ninth Circuit nominees to allow 
for a final up or down vote by the Senate without these months of 
unnecessary delays.
  None of these nominees should be controversial. They are all 
mainstream nominees with bipartisan support. Judge Nguyen, whose family 
fled to the United States in 1975 after the fall of South Vietnam, was 
confirmed unanimously to the district court in 2009 and the Senate 
Judiciary Committee unanimously supported her nomination to the Ninth 
Circuit last year. When confirmed, she will be the first Asian Pacific 
American woman to serve on a U.S. Court of Appeals in our history.
  Paul Watford was rated unanimously well qualified by the ABA's 
Standing Committee on the Federal Judiciary, the highest rating 
possible. He clerked at the United States Supreme Court for Justice 
Ruth Bader Ginsburg and on the Ninth Circuit for now Chief Judge Alex 
Kozinski. He was a Federal prosecutor in Los Angeles. He has the 
support of his home state Senators and bipartisan support from noted 
conservatives such as Daniel Collins, who served as Associate Deputy 
Attorney General in the Bush administration; Professors Eugene Volokh 
and Orin Kerr; and Jeremy Rosen, the former president of the Los 
Angeles Chapter of the Federalist Society.
  Justice Hurwitz is a respected and experience jurist on the Arizona 
Supreme Court. He also received the ABA Standing Committee on the 
Federal Judiciary's highest rating possible, unanimously well 
qualified. This nomination has the strong support of both his 
Republican home state Senators John McCain and Jon Kyl.
  Chief Justice Roberts and the Attorney General have both spoken about 
the serious problems created by persistent judicial vacancies. More 
than 160 million Americans live in districts or circuits that have a 
judicial vacancy that could be filled today if Senate Republicans would 
just agree to vote on the nominations now pending on the Senate 
calendar. The Senate should act to bring an end to the harm caused by 
delays in overburdened courts and we should start with the Ninth 
Circuit. Senate Republicans should consent to votes on the Ninth 
Circuit nominees without more delay and obstruction.
  I ask unanimous consent that the article to which I referred be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     [From the Constitutional Accountability Center, Mar. 27, 2012]

                               1000 Days

                     (By Doug Kendall and Ryan Woo)

       Today marks the 1000th consecutive day during which our 
     judicial system has been operating with the burden of 80 or 
     more vacancies on the federal bench. Aside from a completely 
     anomalous period following the creation of 85 new judgeships 
     in 1990, this is far and away the longest period of time 
     during which the federal courts have been forced to operate 
     at such an understaffed level. Across the country, these 
     vacancies have translated into rising caseloads for 
     overworked judges and unacceptable delays for the countless 
     Americans seeking justice in the courts. While it is possible 
     that the vacancy total will dip below 80 in the coming days 
     due to a slow drip of confirmations secured by a recent and 
     hard-fought-for deal in the Senate to allow confirmation 
     votes on 14 judicial nominees, this slow trickle is not 
     anywhere close to the decisive action that is needed to 
     resolve the vacancy crisis that has been plaguing the country 
     for nearly three years.
       Although much has changed over the past 1000 days, one 
     thing that has remained constant is the partisan obstruction 
     by Republicans in the Senate that has kept the judicial 
     confirmation process moving at a crawl. While a backlog in 
     vacancies is typical at the beginning of a presidential term, 
     the vacancy rate is usually brought down to a more manageable 
     level well before a president's fourth year in office. 
     Indeed, by this point in the first terms of Presidents Bill 
     Clinton and George W. Bush, the vacancy totals were 55 and 
     45, respectively, and the Senate had already confirmed 181 of 
     President Clinton's nominees to the lower federal courts and 
     172 of President Bush's. By comparison, the Senate has only 
     confirmed 134 of President Obama's nominees.
       The glacial confirmation pace that has kept the vacancy 
     number so high for the past 1000 days can be traced back to 
     Republican obstruction at all levels of the judicial 
     confirmation process. Most important, even uncontroversial 
     nominees are facing unprecedented cloture votes before they 
     can be confirmed. The process of delaying floor votes for 
     nominees has resulted in an average wait time of 111 days 
     between the Judiciary Committee vote and Senate confirmation 
     vote for President Obama's nominees. In sharp contrast, 
     President George W. Bush's nominees waited an average of just 
     22 days.
       There should never again be a period when the federal 
     judiciary faces such a high number of vacancies for so long; 
     if the vacancy total dips below 80 in the coming days, it 
     will hardly be a cause for celebration. Rather, it will be a 
     reminder that even in an election year, the Senate must put 
     partisan wrangling aside and continue to staff the federal 
     judiciary. The Senate owes nothing less to the judges and 
     everyday Americans who bear the brunt of this politically-
     inflicted judicial vacancy crisis.


           Violence Against Women Reauthorization Act of 2011

  Mr. LEAHY. Mr. President, speaking of the Senate Judiciary Committee, 
as we begin to work now after the Easter/Passover recess, I wish to 
thank all Senators who have come to the floor in recent weeks to 
express their bipartisan support of the Violence Against Women 
Reauthorization Act and who have emphasized, and I agree, the need for 
the Senate to take up and reauthorize this landmark legislation.
  For almost 18 years, the Violence Against Women Act--called VAWA--has 
been the centerpiece of the Federal Government's commitment to 
combating domestic violence, dating violence, domestic assault, and 
stalking.

[[Page 4714]]

The impact of this landmark law has been remarkable. It has provided 
lifesaving assistance to hundreds of thousands of men, women, and 
children, and the annual incidence of domestic violence has dropped by 
50 percent since the act was passed.
  Support for the Violence Against Women Act has always been 
bipartisan, and I appreciate the bipartisan support this 
reauthorization bill has already received. Senator Crapo and I 
introduced the reauthorization of the Violence Against Women Act in 
November. With Senators Heller and Ayotte joining as cosponsors in 
March, we now have 61 cosponsors in the Senate from both sides of the 
aisle. I hope the Senate will take up and pass this bill soon.
  The Violence Against Women Act is about responding to domestic and 
sexual violence. Its programs are vitally important. Our legislation 
has looked at and learned from the experiences and needs of survivors 
of domestic and sexual violence from all around the country. We have 
also heard the recommendations of those tireless professionals who work 
every single day--I might say virtually every single night--to serve. 
It builds on the progress that has been made in reducing domestic and 
sexual violence and makes vital improvements to respond to unmet needs, 
as we have each time we have reauthorized the Violence Against Women 
Act.
  The provisions that a minority on the Judiciary Committee labeled 
controversial are, in fact, modest changes to meet the genuine, unmet 
needs that service providers have told us they see every day as they 
work with victims all over the country. This is what we have done on 
every single VAWA reauthorization. We have looked at what we have 
learned since the last one and then taken steps to recognize those 
needs of victims that are not being met and find ways to meet them. 
That is nothing new or different. It is what we have always done. 
Because we have improved it each time, it is one of the reasons 
domestic violence has dropped. This should not be a basis for a 
partisan division or delay.
  The legislation also improves important changes to respond to current 
economic realities. We all know while the economy is now improving, 
these remain difficult economic times, and we have to be responsible in 
how we spend the taxpayers' money. That is why in our bill we 
consolidate 13 programs into 4. We remove duplication and bureaucratic 
errors. It is another thing we do each time we reauthorize to make it 
better. It would cut the authorization level for VAWA by more than $135 
million a year. That is a decrease of nearly 20 percent from the last 
reauthorization.
  The legislation also includes significant accountability provisions, 
including audit requirements, enforcement mechanisms, and restrictions 
on grantees and costs. Again, we are saying we want to do the right 
thing in the Violence Against Women Act, but we also want to protect 
the taxpayers' dollars. That is why it is a bipartisan bill. It is a 
product of careful consideration, and that is why it has widespread 
support.
  There is no reason not to take it up and debate it and pass it. The 
Judiciary Committee passed this bill after considering a number of 
amendments, including a substitute offered by the minority. I have 
reached out to the distinguished ranking member, Senator Grassley, and 
asked about possible amendments and time agreements for consideration. 
We should do what we have always done ever since the first VAWA years 
ago and pass it with strong bipartisan support. These problems are too 
serious for us to delay.
  Any one of us who has served in law enforcement has gone to a scene 
where somebody has been severely battered, sometimes killed. I know 
when I have gone to the scenes I never heard a police officer say: Is 
this a Republican or a Democrat? They say, is this a victim? What do we 
do to help them? That is what this is. It is not a Republican or 
Democratic bill; it is a sensible bill to help the victims of violence.
  This is crucial, commonsense legislation. It has been endorsed by 
more than 700 State and national organizations, numerous religious and 
faith-based organizations, as well as our law enforcement partners. The 
last two times the Violence Against Women Act was reauthorized, it was 
unanimously approved by the Senate. It seems sometimes that partisan 
gridlock has become the default in the Senate in recent years. We are 
better than that. We should rise above gridlock. There is no reason we 
should delay considering this bill. It has the support of 61 cosponsors 
across the aisle. Let us pass it.
  As I have said before, domestic and sexual violence know no political 
party. Violence happens to too many people in this country. Its victims 
are Republicans and Democrats. They are rich and poor, young and old. 
They are male and female. They are straight and gay. Nobody falls into 
a category where they are immune to this kind of violence. So let us 
work together and pass this strong VAWA reauthorization legislation and 
let us do it without delay. It is a law that has saved countless lives. 
For my fellow Senators, I would say this is an example of what we in 
the Senate can accomplish if we work together.


                        Paying a Fair Share Act

  Lastly, before I came to the floor, I heard the strong support for 
the Paying a Fair Share Act. It has been called the Buffett rule. The 
Buffett rule is a commonsense bill, ensuring that taxpayers at the top 
of the economic ladder pay at least the same tax rate paid by hard-
working middle-class families in my State of Vermont and all other 
States. No longer should handsomely compensated CEOs or those who live 
off trust funds pay a lower effective tax rate than the people who work 
for them.
  Frankly, I think it is remarkable and regrettable that such a 
principle of tax fairness should evoke controversy. It is more 
regrettable still that opponents have erected a supermajority barrier 
in an effort to prevent debate on this straightforward principle. We 
should debate whether the wealthiest should pay at least the same rate 
of taxes as hard-working middle America and then vote for it or vote 
against it. If a Senator wants to vote to protect the wealthiest 
Americans, fine, stand and vote that way or vote to protect hard-
working American families. But when we filibuster, what we are doing is 
voting maybe. That is voting maybe.
  Let's have the courage to vote for the millionaires and protect them 
from any kind of a tax such as ordinary Americans pay or vote for 
ordinary Americans and say everybody should pay the same kind of tax. 
Vote one way or the other, but don't duck it by having a filibuster, 
where we can say: I looked at it and I voted maybe. We are not elected 
to vote maybe.
  I am pleased to join Senator Whitehouse and others as a cosponsor of 
the bill which calls for a minimum 30-percent tax rate for taxpayers 
with adjusted gross incomes above $1 million. This just says they are 
going to pay at least the tax rate paid by middle-class families, and 
it also will reduce the deficit by $47 billion over the next decade.
  While hard-working Vermont families and small businesses are 
struggling to make ends meet in a difficult economy, tax fairness has 
continued to erode, benefiting the wealthiest 1 percent at the expense 
of the rest of the country. Right now, a very large proportion of 
millionaires pay a smaller percentage of their income than do a larger 
share of moderate-income taxpayers.
  Warren Buffett, one of the wealthiest people in the world, noted in a 
New York Times op-ed article last year that he paid taxes of only 17.4 
percent on his taxable income--a lower percentage than paid by any of 
his 20 employees. They paid from 33 to 41 percent. In fact, the 
nonpartisan Congressional Research Service studied these claims and 
confirmed Mr. Buffett's assertion that a large proportion of 
millionaires pay a smaller percentage of their income than average 
working Americans and Vermonters do.
  Let us end the loopholes. Tax day is upon us. Let us stand and say we 
are going to end the loopholes, we are going to end these special 
provisions that allow some of the wealthiest to pay less than hard-
working Americans. It is simply a matter of fairness.

[[Page 4715]]

  Again, let us vote yes or no. If someone wants to vote to protect the 
millionaires, then, fine, vote no. If someone wants to say have it be 
fair, then vote yes. But let us vote. Having a filibuster means we vote 
maybe. None of us get elected or paid to vote maybe.
  Mr. President, I see the distinguished senior Senator from West 
Virginia on the floor and I see his distinguished colleague.
  I am sorry, I now see the Senator from Pennsylvania. Before I yield 
the floor, I ask unanimous consent, if there are quorum calls during 
this hour, the time be divided equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask unanimous consent when the time goes 
back to this side, that first the distinguished senior Senator from 
West Virginia be recognized and then his distinguished colleague from 
West Virginia, Senator Manchin, be recognized, both to speak for the 
time remaining to the Senator from Vermont.
  I ask unanimous consent that when time is yielded back to me, the 
time remaining to the Senator from Vermont, which will be approximately 
15 minutes, be divided between the two Senators from West Virginia.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I ask unanimous consent to speak as though 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Tax Fairness

  Mr. TOOMEY. Mr. President, I rise this afternoon to speak against the 
so-called Buffett rule. This is a gimmick. It is a political gimmick. 
This is not a serious effort to deal with a ridiculously broken Tax 
Code. This is not a serious effort to deal with a completely broken 
budget. And, frankly, it is very disappointing to me that we are 
wasting time on this instead of dealing with both of those things.
  We have a Tax Code that is ridiculous, impossible to understand, 
counterproductive to economic growth, and that badly needs a complete 
overhaul that would simplify the Code, get rid of much unfairness, 
lower marginal rates, broaden the base, and encourage strong economic 
growth. Instead, we have this little gimmick because we don't have the 
political leadership to deal with the underlying real problem of a 
badly flawed Tax Code.
  Likewise on budget policy, this does nothing meaningful for our 
massive budget deficits that we have been running. In fact, this body 
chooses again for the third consecutive year not to even have a budget. 
It is unbelievable. Instead, we are going to waste time arguing about 
this political stunt.
  The President proposed a budget, at least. Unfortunately, it was not 
a serious budget, not a serious attempt to deal with the massive 
deficits we are running. It is the fourth consecutive year of trillion 
dollar deficits. Instead of dealing with that, we have this gimmick.
  Let's be clear. This is not a serious attempt to deal with tax reform 
or the budget. This so-called Buffett rule, this tax increase, would 
raise less than $5 billion a year. That amounts to about one-half of 1 
percent of the $1 trillion deficit the President has proposed that we 
run. In fact, it would cover about 2 days' worth of the deficits we are 
running for 2013.
  Here is a chart that illustrates the deficit we will have under the 
President's policies without the Buffett tax. Here is the deficit we 
will have if we pass the Buffett tax. If you can't tell the difference, 
it is because there is no meaningful difference.
  Folks, we ought to be dealing with the real tax reform that we need 
to encourage economic growth and help reduce this deficit. Instead, we 
are wasting time with this.
  Since we are not doing what we ought to do, why are we having this 
argument? Unfortunately, it looks as though it is an effort on two 
fronts. One is to simply engage in class warfare, generate envy and 
resentment, and try to use that for political gain. And, secondly, it 
is an effort to distract from the underlying mismanagement of economic 
policy and fiscal policy we have seen from this administration.
  I know what the claim is from the other side. We hear this is all 
about making sure the rich pay their fair share. I have to say I have a 
little trouble taking lectures on fairness from folks who think 
taxpayers ought to be made to put $500 million into a solar energy 
company that does not have a competitive product, which drives it into 
bankruptcy at the cost to the taxpayers, from the same folks who want 
to force taxpayers to continue subsidizing plug-in cars people don't 
want to buy. That kind of crony capitalism and distorting of our 
economy at the expense of taxpayers doesn't strike me as fairness, so I 
have a hard time taking a lecture on fairness from people who advocate 
those things.
  But let's look at this Tax Code. If we want to talk about fairness, 
that is fine. How about the fact that, according to the Joint Committee 
on Taxation, almost half of all Americans today pay no income tax at 
all or actually receive money through the income tax code? The other 
half pays all of the taxes. We are hearing from our friends that that 
is not enough; they need to pay still more.
  My second chart will illustrate the point that according to the CBO, 
if we look at all Federal taxes, the middle quintile, the middle 20 
percent of wage earners in America, pays about 14 percent as an average 
tax when you combine all the kinds of Federal taxes that are paid. The 
top 1 percent pays 30 percent. So it is more than twice as high--29.5, 
actually.
  If we look at just the income tax, the disparity is even bigger. If 
we look at the income tax alone, the middle quintile, the middle class, 
the middle 20 percent, when it comes to income tax alone on average 
pays about 3.3 percent as an effective average income tax rate. The top 
1 percent pays 19 percent; that is, on average, almost 6 times as high.
  The fact is we have a very progressive tax system, not just by the 
historical measures of our own previous tax systems, but look 
everywhere else in the world. In fact, the United States, according to 
the OECD, has the most progressive tax system in the industrialized 
world.
  This is a chart that measures progressivity. Greater progressivity is 
in this direction; less is in this direction. As you can see, this 
ranking shows all the countries around the world that have less 
progressivity than the United States, which means that higher income 
Americans pay a greater share of income taxes and taxes generally than 
in any other country in the world. But again, we are told this is not 
enough.
  Clearly there is something else going on here, and here is what 
concerns me the most. The real consequence of this so-called Buffett 
rule, this tax increase, are that it is meant to be a tax on investment 
returns. It is a tax on capital gains and dividends. It is a tax that 
would upend decades of established law with respect to the 
differentiation we have put in place with respect to dividend income 
versus wage income. And it disregards the very sound reasons why we 
have created that distinction, one of which is that investment returns 
are taxed multiple times.
  We don't hear so much about that during this debate from my friends 
who are advocates for this new tax increase. But the fact is, first of 
all, it is only aftertax income that can be invested in the first 
place. So someone had to pay taxes on their earnings, and then after 
they have spent what they need to for their cost of living and if they 
have managed to save something which they then invest, they have 
already paid tax on that. Now the investment they have made--and let's 
say this is an investment in a corporate stock. Let's keep in mind that 
that corporation has to pay tax before they have an opportunity to 
provide a return on the investment that is made. And as it happens, in 
the United States, our corporations pay the highest corporate tax in 
the entire industrialized world, 35 percent.
  We have got a terrible corporate Tax Code that needs to be reformed 
in many ways. One of them is to lower

[[Page 4716]]

this top marginal rate, but right now it is 35 percent. And what the 
proponents of this rule are saying is that after a corporation pays 
that 35 percent tax on whatever income they can earn, and when they 
then choose to dividend some of that remaining aftertax income to the 
people who own that company, they want those owners to pay yet another 
tax that is even higher than we pay now.
  We have a chart here that illustrates what the net effect of this is. 
Given that we have a 35-percent top corporate tax rate, and if we were 
to adopt this proposal to impose this 30-percent minimum tax, for an 
individual who has dividend income, first the company in which they 
invest pays a tax. Not all companies pay the 35-percent rate, but that 
is the top rate and it is in effect on many companies. Well, if the 
company has to pay 35 percent of a given $100 of income, they are left 
with $65 in corporate aftertax income. If that company then decides 
that the people who own it ought to get a dividend reflecting their 
ownership on that $65 that is available to be paid out as a dividend to 
investors, the proponents of the Buffett rule would have those 
investors pay another 30 percent. That is $19.50, leaving the investors 
with $45.50 out of the $100 of income. In other words, the government 
takes the lion's share of the income from this investment.
  The net effect of that, of course, is that it diminishes the 
incentive to make these investments in the first place. It makes other 
countries more attractive places to invest capital, to invest in a 
business to try to generate a return.
  There is another aspect that is disturbing about this which is, if 
you ask me, it is very reminiscent of the alternative minimum tax. We 
tried that once. In 1969, Congress decided there were some people who 
weren't paying enough in tax, and they said we are going to target a 
handful. Literally, it was 15 people--not 155,000 but 155 people who 
were subject to the alternative minimum tax, which was this confession 
of the absurdity of the Tax Code in the first place. Right? Junk the 
entire existing Tax Code and have yet a second parallel Code that will 
apply to just those rich 155 people. Well, guess what. Today that 
applies to tens of millions of Americans, and every year Congress has 
to do a temporary fix because it wasn't intended to do that.
  I would suggest if we go down this road, we are going to find that 
this tax--which we are told today would only apply to millionaires and 
billionaires, well, pretty soon the hard cold reality of the fact that 
it doesn't generate any revenue to speak of if you apply it just to 
millionaires and billionaires, means it is going to be expanded to the 
middle class and far more people, very much to our detriment.
  Finally, let me say that it is a bad idea to confiscate the capital 
which is the lifeblood of an economy. This next chart illustrates the 
critical role that investment plays in economic growth and in job 
creation.
  A couple of squiggly lines. But one thing you notice if you take a 
quick look is there is an inverse relationship here. When the black 
line goes up, the red line is going down. The black line is investment 
as a percentage of our economy. And when investment climbs--the red 
line is unemployment--you see, unemployment goes down. This is very 
well understood. It is capital invested in the economy that creates 
growth and creates jobs. What this rule would do is it would impose a 
new layer of additionally higher taxes on that very lifeblood of our 
economy.
  It is capital also that drives wages higher. We should never forget 
that fact. It is capital that allows the hunter-gatherer to have a hoe 
and become a farmer. It is capital that allows the farmer with a hoe to 
cast aside the hoe and drive a tractor and become far more productive. 
It is capital that allows the laborer who is digging with the shovel to 
put aside the shovel and drive a backhoe. And as I think everybody 
understands or should understand, the farmer who is using a tractor is 
producing more and has a higher income than the poor guy who is using a 
hoe. And the guy who is operating a backhoe has far more income and is 
far more productive than the guy who is using a shovel. It is capital 
that makes that possible.
  There is a metaphor I like about this, and I am not sure who to 
credit it to, but certainly I didn't invent it. I may not do it 
justice, but the gist of it is this:
  The comparison to the economy is that of a fruit tree.
  A farmer who has a fruit tree cultivates that tree so it will produce 
fruit, and the fruit is the income the farmer earns from the work he 
puts into cultivating that tree.
  If the government comes along and takes some of the fruit as a tax, 
as long as it doesn't take too much it still makes sense for the farmer 
to cultivate that tree so he can have that aftertax income. And as long 
as the government only takes a portion of the fruit, then the 
government is not diminishing the ability of the tree to produce that 
fruit.
  But if the government comes along and says in addition to taking a 
whole lot of the fruit, we want to saw off a branch because we want 
some firewood, that is a whole different matter. Because whatever you 
think of how many of those apples or whatever portion of that fruit you 
wish to take from the farmer, once you start cutting at the tree you 
are diminishing the ability of the tree to produce income for the good 
of the farmer and for society.
  That is what happens when we restrict capital, and I am afraid this 
is the path we would be going down if we adopt this. This is bad 
economic policy. We already have the most progressive Tax Code in the 
world, and very progressive by our own historical standards.
  For the sake of job growth, economic growth, and in the hopes that we 
will instead have a meaningful discussion about budget policy and tax 
reform, I urge my colleagues to vote no today on the cloture motion on 
the Buffett rule.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, 1 year ago last month our Nation lost 
an esteemed public servant and an outstanding human being, Judge M. 
Blane Michael, who served on the U.S. Court of Appeals for the Fourth 
Circuit for a number of years.
  With his passing, we were therefore left with a great void not only 
on the Federal judiciary but also in the hearts of his family and his 
many friends. So it is with a profound sense of obligation to the 
people of West Virginia and America that I set out to find a nominee to 
fill his vacancy. My duty to provide advice and consent took on, to me, 
additional significance.
  In West Virginia, we are fortunate to have many talented and worthy 
lawyers who are capable of serving--and willing to serve--on the 
Federal bench.
  But the nominee before the Senate today, Stephanie Dawn Thacker, 
completely stood out to me--and (in turn) to President Obama--as 
someone who is uniquely qualified to carry on in her own way, Judge 
Michael's legacy of independence, humility, and intellectual honesty as 
a Federal judge.
  There is no question that Stephanie Thacker has reached the heights 
of the legal profession, both as an award-winning public servant and as 
an esteemed lawyer in private practice.
  Her rise is all the more impressive because of the challenges she 
overcame The circumstances of Stephanie Thacker's early life were not 
easy. Her home town, Hamlin, WV, is in one of the poorest counties in 
the nation--a place where nothing is taken for granted and where every 
success is hard-earned.
  Stephanie credits a supportive family and community, and the 
influence of two strong women who assumed her ability to achieve 
against the odds.
  While still in the crib, Stephanie's mother and grandmother told her 
every day that she would go to college, and then in college they told 
her she would succeed in law school. They instilled in her the value of 
education and a strong sense of public service and duty to her country, 
which we fulfill again today.
  Ms. Thacker heeded their advice, graduating magna cum laude from

[[Page 4717]]

Marshall University and second in her class from the West Virginia 
University College of Law, where she was an editor of the Law Review.
  Over the next 21 years her passion and respect for the law, along 
with her drive to seek justice for her clients, resulted in an 
illustrious career. Ms. Thacker's reputation is as a compassionate yet 
tough attorney who makes thoughtful, very well-researched, and 
therefore confident arguments that are always based on the law and 
facts of her cases.
  These skills and character are evident in her 12 years of service as 
a federal prosecutor, where she rose to be Principal Deputy Chief of 
the Department of Justice's Child Exploitation and Obscenity Section. 
Among her accomplishments are prosecuting the first federal Violence 
Against Women Act case and helping to develop the nationwide Innocence 
Lost initiative to combat child sex trafficking, which to date has led 
to the rescue of more than 1,600 children and the conviction of more 
than 700 sex offenders.
  She co-authored the Federal Child Support Prosecution handbook, 
worked reviewing and amending West Virginia's domestic violence laws, 
prosecuting notorious child sex offender Dwight York, and training 
national and international law enforcement officials on the prosecution 
of child exploitation crimes.
  This body of work has rightfully earned her bipartisan praise over 
the years from United States Senators, FBI Director Mueller and former 
Attorney Generals Gonzales and Ashcroft, who awarded her the 
Distinguished Service Award, which is among the Department's highest 
commendations.
  These accomplishments are illustrative of the experience and 
qualifications that Stephanie Thacker offers in service to the U.S. 
Court of Appeals for the Fourth Circuit.
  She has the courage to make tough decisions, and will not back down 
from a challenge.
  She has the superior intellect necessary to analyze the complex legal 
issues that come before the Federal appeals courts. She will look at 
every case with a fair and open mind and will issue opinions that are 
guided by our Constitutional principles and always grounded in the law 
and she will never forget her solemn duty to uphold fairness and 
justice for everyone, regardless of social status or economic means.
  In conclusion, it is with great optimism, pride, and a renewed spirit 
that I look to the future, knowing that this important appellate 
vacancy will be filled with such a qualified nominee as Stephanie Dawn 
Thacker.
  I yield the Floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. MANCHIN. Mr. President, I rise today first of all to thank the 
senior Senator, my friend Senator Rockefeller, for nominating such a 
qualified jurist upon the passing of our dear friend, Judge Blane 
Michael.
  Stephanie Dawn Thacker is a native of Hamlin, WV. We are awaiting her 
confirmation this afternoon with a vote which I know will be in the 
affirmative. It is my privilege and my honor to speak on her behalf 
also.
  Stephanie Thacker's impressive background and extensive list of 
accomplishments in both the public and private sectors make her an 
exceptional judge for the 4th Circuit. She is renowned in our state for 
her mastery of the law and of the courtroom, and I have no doubt that 
she will make a highly successful federal judge.
  Ms. Thacker has dedicated much of her career to fighting some of the 
worst offenses in our society. As a trial attorney, Deputy Chief of 
Litigation, and Principal Deputy Chief, she spent several years 
prosecuting cases, as you have heard, on Child Exploitation and 
Obscenity at the Department of Justice. Her outstanding work and 
leadership earned her a number of honors at the Department of Justice, 
including four ``Meritorious'' Awards and two ``Special Achievement'' 
awards.
  Her impressive performance in prosecuting the case of United States 
v. Dwight York earned her the Attorney General's ``Distinguished 
Service'' award, one of the Department's highest honors. She was also a 
recipient of the Assistant Attorney General's awards for ``Special 
Initiative'' and ``Outstanding Victim and Witness Service.''
  Prior to her service at the Department of Justice, Ms. Thacker worked 
with the U.S. Attorney's Office for the Southern District of West 
Virginia, where she prosecuted a wide variety of criminal cases, 
including money laundering and fraud. While at the U.S. Attorney's 
Office, Ms. Thacker participated on the trial team prosecuting United 
States v. Bailey, the first case ever brought under the Violence 
Against Women Act.
  Since 2006, Ms. Thacker has been a partner at the law firm of Guthrie 
& Thomas in Charleston, West Virginia. There, she has concentrated on 
cases involving product liability, environmental and toxic torts, 
complex commercial defense, and criminal defense.
  Ms. Thacker was a model student in both her undergraduate and legal 
studies. She earned her Bachelor's degree in Business Administration, 
magna cum laude, from Marshall University, and her J.D., Order of the 
Coif, from West Virginia University College of Law. While at West 
Virginia University she was a recipient of the Robert L. Griffin 
Memorial Scholarship and Editor of West Virginia Law Review's Coal 
Issue. She has also recently been named ``Outstanding Female Attorney'' 
by WVU Law's Women's Caucus.
  Ms. Thacker's wide-ranging expertise in civil and criminal matters, 
her impressive track record in the courtroom as both a prosecutor and a 
defense attorney, and her outstanding academic accomplishments will 
make her a first-rate addition to the 4th Circuit. I am proud to call 
her a fellow West Virginian and I am pleased that she will finally be 
confirmed.


                            the buffett rule

  Mr. MANCHIN. Mr. President, I had the enormous privilege to spend the 
last 2 weeks traveling around my great State to hear from the people of 
West Virginia.
  It is always so refreshing to get a dose of commonsense from people 
who are working hard every day to balance their family budget, put food 
on the table and give their kids a better life.
  And I can tell you that the people of West Virginia are so frustrated 
and losing confidence in this government, especially when it comes to 
our broken tax system.
  Whether it was in Beckley, Ravenswood or Wheeling, I heard the same 
thing from the people of my great State.
  We just don't understand why hardworking, middle income people are 
paying a much higher tax rate than some of the wealthiest people in 
this country. Take our coal miners, who go to the mine every single day 
to make a living for themselves, for their families, but who are paying 
a higher tax rate than some people making a million dollars a year. 
Where I come from, that's not fair. Where I come from, that doesn't 
make any sense.
  Where I come from, that means our system needs to be fixed--in a 
real, responsible and fiscally sound way that reduces our debt.
  Now, let me be clear: I am not begrudging anyone who's worked hard, 
who has taken a risk or who has done well. But we have to have a solid 
country under us to achieve those goals. And we need to put fairness 
back in the tax system to get this country on solid ground again. And 
if we want a fair system, that means that there should not be 
privileges that allow the very wealthy to pay a lower rate than 
hardworking, middle class Americans.
  Right now, the average person does not have those opportunities or 
privileges. But when people believe the American Dream is in reach, 
they will all pull harder.
  Today I rise to speak about my support for the Buffett Rule, which 
would take a small step toward fixing this unfair system and paying 
down this country's nearly $16 trillion debt.
  A lot of people here believe that this bill will fail because of 
politics on a mostly party line vote. That is a shame because the only 
line we should vote is the American line.
  For a year-and-a-half, I have been coming to the Senate floor to urge 
my colleagues to put party and politics aside and vote for the good of 
the next

[[Page 4718]]

generation, whether it is a Democratic idea or a Republican idea.
  But even though this vote on the Buffett Rule might fail today on 
party lines, we cannot give up--we have to find a way to come together 
for the next generation.
  I have said before that the Buffett Rule alone does not address the 
full scope of the problem. All it does is nibble around the edges of 
our broken tax code. We still have too many corporations that can take 
advantage of too many loopholes, credits and exemptions. We are pushing 
$16 trillion dollars in debt and we are still spending more than a 
trillion dollars more than we take in every year. That does not make 
sense.
  We have to fix the whole thing so that we can start reducing our 
deficit, paying down our debt and putting our fiscal house back in 
order for the next generation.
  To do that, we have a plan with bipartisan support--the Bowles-
Simpson framework, which would reduce loopholes, exemptions and credits 
across the board, lower tax rates and get everyone to pay their fair 
share. Just as importantly, it would cut spending and start paying down 
our debt.
  I can't tell you how important that is to the people of West 
Virginia, the taxpayers in every single income bracket who don't trust 
the government to spend their tax dollars wisely.
  Just like all Americans have the responsibility to pay their fair 
share, Washington has the responsibility to show the people of this 
country--no matter how much money they make--that we are using their 
tax dollars wisely and effectively--just as we did in West Virginia.
  That is why I believe we must--and I will continue to fight--to cut 
back on our spending. We have to eliminate the $125 billion dollars 
that we spent in waste, fraud and abuse last year alone. And most 
importantly, we have to pay down the nearly $16 trillion dollar debt 
hole that has been dug for the next generation.
  The Buffett Rule would take a small step to show the American people 
that we are trying to correct those problems and--most importantly--put 
some basic fairness back into our tax system.
  Even though this vote might fail, in West Virginia we will continue 
to work hard. We will continue to pay our taxes. And we will continue 
to fight to make sure that when our coal miners send in their taxes, 
that people who bring in a million dollars a year aren't getting away 
with paying less.
  The future of this country depends on those of us here in Washington 
working together to restore confidence in this great nation because 
when people believe that everyone is paying their fair share, they are 
all willing to pull their load a little harder. And if people start 
believing in this country again, there's no stopping us.
  I yield the floor.
  Mr. GRASSLEY. Mr. President, again we are moving forward under the 
regular order and procedures of the Senate. This year we have been in 
session for about 37 days, including today. During that time we will 
have confirmed 15 judges. That is an average of better than one 
confirmation for every 2\1/2\ days we have been in session. With the 
confirmations today, the Senate will have confirmed nearly 75 percent 
of President Obama's article III judicial nominations.
  Despite this progress, we still hear complaints about the judicial 
vacancy rate. We are filling those vacancies. But again, I would remind 
my colleagues that of the 82 current vacancies, 50 have no nominee. 
That is over 60 percent of vacancies with no nominee.
  Another complaint we hear, which is a distortion of the record, is 
the so-called delay in confirming nominees. Those who raise this 
complaint only focus on the time a nominee is reported out of committee 
until confirmation. But the confirmation process is more than just 
Senate floor action.
  For those who may not be familiar with the confirmation process, let 
me review. Once a nomination is received, the committee takes an 
appropriate amount of time to review the nominee's Senate questionnaire 
and background and review written materials. The Committee holds a 
hearing on judicial nominees and then holds the record open for 
additional written questions. Of course there is debate on the 
nomination in committee, then the nomination is reported to the floor. 
All of this takes time. Every step is important. Not all nominees make 
it through each step.
  The average time for this process for President Bush's circuit judge 
nominees was 350 days. That means it took, on average, nearly 12 months 
from the time a nomination was received in the Senate until final 
confirmation.
  For President Obama's circuit nominees the average time from 
nomination to confirmation is 243 days. That means President Obama's 
circuit nominees are being confirmed faster than those of President 
Bush. So to those who ask What's different about this President? I 
would respond that one thing that is different is that this President's 
circuit nominees are being treated much more fairly than President 
Bush's nominees were treated.
  As I stated, not all nominees make it through every step of the 
process. In the case of our nominee today, she completed that process 
in about 220 days, below the average for President Obama and much 
quicker than the average for President Bush. She will likely be 
confirmed and take her place on the Court of Appeals for the fourth 
circuit.
  This was not the outcome for many of President Bush's nominees to the 
fourth circuit. Let me review just a few of the highlights from those 
failed nominations.
  I wonder if my colleagues remember William Haynes, President Bush's 
nominee to sit on the fourth circuit. In the 108th Congress, my 
Democratic colleagues held up his nomination for 638 days on the Senate 
calendar alone before it was returned to the President. All in all, he 
put his life on hold for 1,173 days and never received an up-or-down 
vote.
  Later, at a point during the 110th Congress, the fourth circuit had a 
vacancy rate of 33 percent and desperately required judges. The 
President did his duty and submitted four nominations. Unfortunately, 
all of them were needlessly delayed.
  Judge Robert Conrad was nominated to a seat on the fourth circuit 
which had been designated as a judicial emergency, Both home State 
Senators supported his nomination. Furthermore, he had received 
unanimous support from the Senate on two prior occasions--first when he 
was confirmed to be a United States Attorney and again when he was 
confirmed by voice vote to be a United States District Judge for the 
Western District of North Carolina. The American Bar Association's 
Standing Committee on the Federal Judiciary unanimously gave him a 
rating of well qualified.
  Judge Conrad met every standard to be considered a well qualified, 
noncontroversial, consensus nominee. Yet, his nomination stalled. He 
was nominated on July 17, 2007. Despite his extensive qualifications, a 
hearing was never scheduled. On October 2, 2007 Senators Burr and Dole 
sent a letter to the chairman asking for a hearing for Judge Conrad. On 
April 15, 2008 they sent a second letter to the chairman requesting a 
hearing for Judge Conrad.
  Their request was never granted. After waiting 585 days for a hearing 
that never came, Judge Conrad's nomination was returned on January 2, 
2009.
  Steve Matthews was another nominee to the fourth circuit, nominated 
on September 6, 2007. He was a graduate of Yale Law School and had a 
distinguished career in private practice in South Carolina. He also had 
the support of his home State Senators. On April 15, 2008 Senators 
Graham and DeMint sent a letter to the chairman asking for a hearing 
for Mr. Matthews. Despite his qualifications, Mr. Matthews waited 485 
days for a hearing that never came. His nomination was returned on 
January 2, 2009.
  Rod Rosenstein was nominated to a fourth circuit seat designated as a 
judicial emergency on November 15, 2007. The American Bar Association's 
Standing Committee on the Federal Judiciary unanimously rated him well 
qualified. Previously, in 2005 he had been

[[Page 4719]]

confirmed by a noncontroversial voice vote as U.S. Attorney for 
Maryland. Prior to his service as U.S. Attorney, he held several 
positions in the Department of Justice under both Republican and 
Democratic administrations.
  On June 24, 2008 Senator Specter, the ranking Republican Member, sent 
a letter to Mr. Rosenstein's home State Senators pointing out that the 
seat to which Mr. Rosenstein had been nominated had been vacant since 
August 2000--at the time nearly 8 years. He requested they return their 
blue slips on his nomination. That request was declined, reportedly 
because the nominee lacked ties to Maryland and was doing too good of a 
job as the U.S. Attorney for Maryland. I find that rationale somewhat 
perplexing, if not inconsistent.
  Nevertheless, despite his stellar qualifications, Mr. Rosenstein 
waited 414 days for a hearing that never came. His nomination was 
returned on January 2, 2009.
  Judge Glen Conrad was another failed nomination to the fourth 
circuit. Nominated on May 8, 2008 he had the support of his home State 
Senators, one a Republican, the other a Democrat. Judge Conrad had 
previously been supported by the full Senate when he was confirmed to 
be a United States District Judge for the Western District of Virginia 
by a unanimous, bipartisan vote of 89-0 in September 2003. Despite his 
extensive qualifications, Judge Glen Conrad waited 240 days for a 
hearing that never came. His nomination was returned on January 2, 
2009.
  What was the reaction to this Democratic obstruction to President 
Bush's fourth circuit nominees? A December 2007 Washington Post 
editorial lamented the dire straits of the fourth circuit writing: 
``[T]he Senate should act in good faith to fill vacancies--not as a 
favor to the president but out of respect for the residents, 
businesses, defendants and victims of crime in the region the 4th 
Circuit covers. Two nominees--Mr. Conrad and Steve A. Matthews--should 
receive confirmation hearings as soon as possible.''
  In 2008, another Washington Post editorial stated that ``blocking Mr. 
Rosenstein's confirmation hearing . . . would elevate ideology and ego 
above substance and merit, and it would unfairly penalize a man who 
people on both sides of this question agree is well qualified for a 
judgeship.''
  I would note that the seat to which Mr. Rosenstein was nominated went 
vacant for over 9 years. When President Obama made his nomination to 
that vacancy, the nominee fared far better. He received a hearing a 
mere 27 days after his nomination and received a committee vote just 36 
days later.
  So today, as we confirm another of President Obama's nominees to the 
fourth circuit, I hope my colleagues understand, recognize, and 
acknowledge that President Obama's nominees are being treated in a fair 
manner.
  Stephanie Dawn Thacker is nominated to be United States Circuit Judge 
for the fourth circuit. She graduated with honors from West Virginia 
University College of Law in 1990 and received her B.A., magna cum 
laude, from Marshall University in 1987. Ms. Thacker began her legal 
career as an associate in the Pittsburgh office of Kirkpatrick & 
Lockhart, now K&L Gates. There she worked on complex commercial and 
asbestos defense litigation.
  In 1992, she worked for a brief period as an assistant attorney 
general in the Environmental Division of the Office of the West 
Virginia Attorney General. There she represented the State of West 
Virginia on environmental issues involving permitting and compliance. 
She then joined King, Allen & Betts--now Guthrie and Thomas--as an 
associate, where she worked from 1992 to 1994 on cases involving 
commercial litigation defense, white collar criminal defense, and legal 
malpractice and professional responsibility defense.
  In 1994, she joined the United States Attorney's Office for the 
Southern District of West Virginia as an assistant United States 
attorney in the General Criminal Division. As an assistant United 
States attorney, she prosecuted cases on a wide range of criminal 
matters including money laundering, fraud, firearms, and tax evasion 
matters. She eventually developed a niche in domestic violence, child 
support enforcement, and coal mine safety.
  In 1999, she became a trial attorney with the Department of Justice's 
Child Exploitation and Obscenity Section. She was promoted to deputy 
chief for litigation in 2002 and principal deputy chief in 2004. As a 
trial attorney, she prosecuted cases around the country involving child 
pornography, child sexual exploitation, sex trafficking, and obscenity. 
As deputy chief and principal deputy chief, she was responsible for the 
management and professional development of the section trial attorneys.
  In 2006, she became a partner at Guthrie and Thomas--formerly King, 
Betts & Allen--where she previously worked basis as an associate. She 
has specialized in complex litigation, environmental and toxic tort 
litigation, representing large companies, as well as handling some 
criminal defense cases representing individuals.
  A substantial majority of the ABA Standing Committee on the Federal 
Judiciary gave her a rating of well qualified; a minority of that 
committee rated her as qualified.
  The PRESIDING OFFICER. Under the previous order, the question is on 
the nomination.
  Mr. ROCKEFELLER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Stephanie Dawn Thacker, of West Virginia, to be United States 
Circuit Judge for the Fourth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Hawaii (Mr. Akaka), the 
Senator from Colorado (Mr. Bennet), and the Senator from Connecticut 
(Mr. Lieberman) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Wyoming (Mr. Enzi), the Senator from Utah (Mr. Hatch), and the 
Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Utah (Mr. Hatch) 
would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 91, nays 3, as follows:

                       [Rollcall Vote No. 64 Ex.]

                                YEAS--91

     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     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
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Heller
     Hoeven
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--3

     DeMint
     Lee
     Vitter

                             NOT VOTING--6

     Akaka
     Bennet
     Enzi
     Hatch
     Kirk
     Lieberman
  The nomination was confirmed.
  The PRESIDING OFFICER (Mrs. Hagan). Under the previous order, the 
motion to reconsider is made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________