[Congressional Record (Bound Edition), Volume 158 (2012), Part 6]
[Senate]
[Pages 8398-8403]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF JEFFREY J. HELMICK TO BE U.S. DISTRICT JUDGE FOR THE 
                       NORTHERN DISTRICT OF OHIO

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The bill clerk read the nomination of Jeffrey J. Helmick, of Ohio, to 
be United States District Judge for the Northern District of Ohio.
  The PRESIDING OFFICER. Under the previous order, there will be 90 
minutes of debate equally divided in the usual form.
  The Senator from Ohio is recognized.
  Mr. BROWN of Ohio. Mr. President, the U.S. Constitution entrusts the 
Senate with one of our democracies' most important obligations--to 
``advise and consent'' to judicial nominations.
  Yet, today, almost half of all Americans, 133 million citizens of our 
great country, live in districts or circuits that have a vacancy due to 
the inaction of Members of this body.
  We have an opportunity today to take seriously our responsibility to 
do something about that and take one significant step by voting to 
confirm Jeffrey Helmick to serve as a U.S. district court judge. 
President Obama nominated Mr. Helmick to serve on the U.S. District 
Court for the Northern District of Ohio on May 11, 2011.
  Based on a bipartisan commission's recommendation and based on my own 
judgment, I had no hesitation whatsoever in suggesting Jeffrey 
Helmick's name to President Obama. Let me tell you about our selection 
process.
  In 2009, then-Senator George Voinovich, a Republican, and I assembled 
a bipartisan commission of distinguished Ohioans in the legal 
community. The commission included a former attorney general of Ohio, 
law school deans, and other accomplished Ohioans. In order to avoid any 
conflicts of interest, leading legal professionals from the Southern 
District of the State reviewed nominations--that Northern District 
includes Toledo, Akron, Canton, Youngstown; the Southern District 
includes Columbus, Dayton, Cincinnati, and other communities. Legal 
professionals from the Southern District reviewed nominations for 
vacant judgeships in the Northern District and vice versa.
  The members of the bipartisan commission for the Northern and 
Southern District were about exactly half Republican and half 
Democratic. They spent a substantial amount of time, as they have on 
previous judges in the process, screening, interviewing, and discussing 
the candidates.
  At the end of this process, they selected Jeffrey Helmick, a native 
of Toledo, to be the nominee for this judicial vacancy. They gave me 
three highly qualified names, suggesting that I interview them, which 
is part of the process. I then went there to advise and consent, if you 
will, after speaking with all members of the committee, personally or 
on the phone. I chose to send Jeffrey Helmick's name in to be the 
nominee.
  Jeff Helmick continues to live in Toledo with his wife Karen, an 
attorney also, and their son Joel. Each of the members of this 
commission I spoke with was impressed by Jeff's thoughtfulness, his 
temperament, and his extraordinary reputation among his peers, even 
among opposing counsel.
  The chair of the commission, Nancy Rogers, a former dean of the Ohio 
State University Moritz College of Law and former attorney general of 
Ohio, said of Jeff:

       He has shown a commitment to integrity and to excellence, 
     and a dedication to his community and to the administration 
     of justice.

  Jeff Helmick not only has the support of this bipartisan selection 
committee, selected by Senator Voinovich, a Republican, and by me, he 
has the support of the larger legal community, including all the 
Federal judges he will serve beside at the Federal courthouse in 
Toledo.
  U.S. District Court Judge Jack Zouhary, nominated by President George 
W. Bush, has been a judge in the Northern District since 2006. He is 
currently the sole active judge of the court in the Western Division of 
the Northern District in Ohio, and he will be working most closely with 
this new judge--we hope.
  Judge Zouhary wrote to the committee recommending Jeff Helmick's 
expedient confirmation. For some time, Judge Zouhary has asked when the 
Senate would confirm Jeff. He wrote:

       You will find no better candidate than Jeff Helmick. He 
     possesses the intelligence, the passion for our justice 
     system, and the necessary temperament and people skills to be 
     an outstanding district court judge.

  If that weren't enough, he also said:

       In the private practice, lawyers are able to choose their 
     partners. Federal judges don't have such a luxury; we must 
     work with whomever you confirm. I would be thrilled to have 
     Jeff as my ``partner'' on the bench.

  Ohio State Senator Mark Wagner, a Republican, represents much of that 
area in the State legislature in the Western Division of the court. He 
is chair of the Ohio State Senate judiciary committee and a long-time 
member of the Toledo Bar Association. He recommends Jeff for this 
position. State Senator Wagner, a Republican, said:

       [Jeff] is someone who has stood for principles, litigated 
     honestly, and ably defended our constitutional system of 
     government. Helmick is held in very high esteem by the local 
     bar, and his support crosses partisan lines.

  The bipartisan selection committee, which Senator Voinovich and I 
convened, did its job well, and today we must do our job.
  Jeff Helmick understands the needs and challenges facing the Northern 
District of Ohio and our legal system generally. Rising costs of 
litigation and increasing size and scope of court dockets pose numerous 
challenges to any system of justice.
  But it is because of his experience--and respect from fellow lawyers 
and judges he has worked with--that he is well prepared to meet these 
challenges.
  He is a courtroom innovator, having worked with the courts to 
integrate cutting-edge technologies into courtrooms to ensure that the 
administration of justice is efficient, equal, fair, and open for all 
who seek it. I am not a lawyer, but that is what lawyering and the 
judiciary should be all about.
  Outside the courtroom, Jeff is equally dedicated to serving the 
public. A supporter of pro bono services, he volunteers at the Maumee 
Valley Criminal Defense Lawyers Association to improve the 
professionalism of lawyers and access to justice for the underserved.
  He is past president of the Pemberville Boys Ranch, which helps 
troubled young men in need of a home or a safer environment to reach 
their potential. He will make an outstanding judge on the U.S. District 
Court for Ohio's Northern District. I agree with Judge Zouhary that 
``we will find no better candidate than Jeff.''
  That is why I urge my colleagues on both sides to confirm Jeff 
Helmick today.
  The snail pace with which we have been moving on judicial nominations 
threatens to delay justice for far too many Americans. Right now, 15 
judicial nominations reported favorably by the Judiciary Committee 
still await a Senate confirmation vote.
  Today, nearly 1 in 10 Federal judgeships is vacant. Earlier this 
year, the

[[Page 8399]]

nonpartisan Administrative Office of the Courts, the nonpartisan agency 
charged with running our Federal courts, declared a judicial emergency 
for Ohio's Northern District.
  We need to act right now, today, to confirm Jeffrey Helmick. The 
people of Ohio have waited for too long. The result is that litigants 
in the Northern District of Ohio are experiencing delays in having 
their cases resolved. In too many cases, justice deferred can mean 
justice denied.
  In June of 2010, U.S. District Judge James Carr took senior status, 
creating a vacancy in Toledo's Federal courthouse. That is almost 
precisely 2 years ago.
  For these 2 years, Jeffrey Helmick--I spoke with him in August, if my 
memory is correct, saying I wanted to send his name to the President, 
and I told him the delay may be several months, maybe even 1 year, 
never dreaming that partisanship in this body would mean a 2-year 
delay. For almost 2 years, Jeffrey Helmick, who enjoys the enthusiastic 
support of Federal judges appointed by Presidents of both parties in 
Toledo, enjoys the bipartisan support of me and of Senator Portman, the 
Republican from Ohio.
  For these 2 years, he has had his nomination placed on hold, and this 
is at enormous political cost. Justice delayed is justice denied.
  Jeff Helmick is not a partner at some big law firm where others can 
help him or take over his cases. Instead, he has had a small firm where 
the clients are his own. As a result, his practice and his clients have 
been placed in limbo, not knowing when he will be confirmed.
  Some 2 years later, we can finally ensure that the U.S. District 
Court for the Northern District of Ohio finally has its longstanding 
vacancy filled.
  Today, we can confirm Judge Helmick as a judge, a brilliant, 
distinguished lawyer who was nominated by a bipartisan commission whose 
members were appointed by former Senator George Voinovich and me.
  We must confirm Jeff Helmick. He has the support of his colleagues 
and from Republicans and Democrats in my home State.
  One more brief story. I came to the Senate, as the Presiding Officer 
did, in January of 2007. Soon after I came here, I was presented with 
the nomination of a potential Federal judge, now Judge Lioi, from 
Canton, OH. Judge Lioi, waiting and hoping to be a judge--I believe she 
was a common pleas judge. She had been selected by two republican 
Senators, Senator DeWine, my predecessor, and Senator Voinovich, 
neither of whom is in the Senate today. She had been selected and 
vetted by two Republican Senators in a process not nearly as 
bipartisan--or I don't think as vigorous or as rigorous as ours--
nominated by President Bush and sent to the Senate. As a Senator from 
Ohio, I had the opportunity, if I had chosen, to block the nomination 
of Ms. Lioi.
  So the chairman of the Judiciary Committee, controlled by the 
Democrats--my party--in considering a nominee by the Republican 
President, sent to the Senate by two Republican Senators, presented 
this candidate's name to me. I sat down with Ms. Lioi for perhaps an 
hour, interviewed her, talked to others who were familiar with her and 
her background, and found her to be a woman of integrity and found her 
to be qualified. I immediately sent her name to Senator Leahy, the 
chairman of the Judiciary Committee, and said: She has my support. I 
don't know the precise date, but within only a few weeks of my coming 
to the Senate and meeting future Judge Lioi, her nomination came to the 
floor of the Senate and she was confirmed. Contrast that with what has 
happened today with dozens of judges.
  I plead with my colleagues to confirm this qualified, smart man with 
great integrity from Toledo, OH, who has been vetted by both parties 
and who has waited long enough. More importantly, the people of the 
Northern District, where a judicial emergency has been declared, 
deserve this nomination to be confirmed so that he can begin to serve 
the people of the Northern District and the western area of the 
Northern District of the Federal District Court in Ohio.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Klobuchar). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN of Ohio. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN of Ohio. Madam President, I ask unanimous consent that the 
time during the quorum call be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN of Ohio. Madam President, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN of Ohio. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             D-day Invasion

  Mr. BROWN of Ohio. Madam President, 68 years ago today, June 6, 1944, 
some 150,000 Americans, including many Ohioans, began what seemed like 
an impossible journey. Supreme Allied Commander Dwight Eisenhower 
called it ``the Great Crusade.''
  At 6:30 on a fog-filled morning on June 6, 1944, our servicemembers 
made it to France. They waded onshore--past mines landed from the air, 
past sharpened stakes--and crawled toward gunfire. General Eisenhower 
told our sailors, soldiers, and airmen that the ``eyes of the world . . 
. the hopes and prayers of liberty-loving people everywhere'' were with 
them. A mere 50-mile stretch of the French coast--with places named 
Utah and Omaha, Gold and Juno Pointe du Hoc and Sword--was all that 
stood between humanity's freedom and Hitler's aggression. But our 
warriors--men such as Ohio's own PFC Frank E. Harget--did not give up.
  Last May I had the honor of presenting Mr. Harget, of Akron, OH, the 
service medals he earned during World War II, some 67 or 68 years 
later.
  Frank Harget joined the Army in September 1943 and was immediately 
sent to the European theatre. He was given the unenviable task of scout 
and was dispatched to the front lines to perform reconnaissance. His 
job was to gather intelligence on enemy forces. Many times, Mr. Harget 
told me, he was so close to the German front, he could see German 
soldiers eating their lunch. He served in five battle campaigns, from 
D-day to the Battle of the Bulge, and in Central Europe.
  Mr. Harget was discharged in November 1945 after the war was over 
without receiving the Bronze Star he had earned. My office helped him 
finally receive that Bronze Star and seven other medals and awards. He 
helped our Nation and the world--think about living with this for the 
next 60 years of your life--overthrow an evil regime.
  Today we recognize men like Frank Harget who overcame great odds 
thousands and thousands of miles from home.
  D-day was the largest amphibious invasion in recorded world history, 
with 73,000 American troops, 61,000 British troops, 21,000 Canadian 
troops, and 195,000 allied naval and Merchant Marine personnel, with 
more than 5,000 ships involved.
  After 24 hours, only 2,500 troops of the 101st and 2,000 of the 82nd 
Airborne Divisions were under the control of their parent units.
  At Gold Beach, 25,000 men landed and some 400 were killed. At Omaha 
Beach, the U.S. 1st Infantry and the 29th Infantry Divisions found 
their sections to be the most heavily fortified of all the invasion 
beaches. The official record stated:

       . . . within 10 minutes of the ramps being lowered, the 
     leading company had become inert, leaderless and almost 
     incapable of action. Every officer and sergeant had been 
     killed or wounded. It had become a struggle for survival and 
     rescue.

  The 2nd Ranger Battalion had to scale 100-foot cliffs under the cover 
of

[[Page 8400]]

night and then attack and destroy the German coastal defense guns at 
the massive concrete cliff-top gun emplacement at Pointe du Hoc. But 
despite these obstacles, young men such as Frank Harget from Akron, OH, 
who participated in this invasion fought and persevered and began the 
liberation of Europe with little else besides their training, their 
comrades, their courage, and their refusal to quit.
  These men proved that the forces of freedom are strong. I would 
suggest that the forces of freedom are still strong today.
  Members of the allied forces showed us the strength of humanity over 
tyranny. Franklin Roosevelt knew our D-day warriors would not ``rest 
until the victory is won.'' And we did win.
  Today we salute the Frank Hargets of the world. There are still 
thousands of World War II veterans left. Most have died. Most who 
fought and survived D-day are no longer with us. Some still are. We 
salute them, and we salute those who went before them for running 
toward danger in order to secure peace.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Madam President, today the Senate turns to another 
judicial nomination, Jeffrey J. Helmick to be U.S. district judge for 
the Northern District of Ohio. I want to tell the Senate why I oppose 
the nomination and urge all Senators to do likewise.
  We continue to confirm the President's nominees at a very brisk pace. 
Just 2 days ago we confirmed the 147th judicial nominee of this 
President to district and circuit courts. Let me put that in 
perspective for my colleagues. We also have confirmed two Supreme Court 
nominees during President Obama's term. The last time the Senate 
confirmed two Supreme Court nominees was during President Bush's second 
term. And during President Bush's entire second term, the Senate 
confirmed a total of only 120 district and circuit court nominees. We 
have already confirmed 27 more nominees for President Obama than we did 
for President Bush in a similar period of time. And this is in a 
Presidential election year--typically a time when judicial 
confirmations are limited to consensus nominees. Yet here we are 
considering a controversial nomination. Perhaps the Senate could better 
spend this time working on critical issues facing our Nation, such as 
our massive debt, intolerable deficit spending, an anemic economy, 
unacceptable unemployment levels, high energy costs, and national 
security issues.
  The advice and consent function of the Senate is a critical step in 
the appointment of Federal judges. In Federalist Paper No. 76, 
Alexander Hamilton wrote this:

       To what purpose then require the co-operation of the 
     Senate? I answer, that the necessity of their concurrence 
     would have a powerful, though, in general, a silent 
     operation. It would be an excellent check upon a spirit of 
     favoritism in the President, and would tend greatly to 
     prevent the appointment of unfit characters from State 
     prejudice, from family connection, from personal attention, 
     or from a view to popularity.

  In other words, the Senate has a role in preventing the appointment 
of judges who are unfit characters or political favors of any President 
or of those who are not qualified to serve as Federal judges.
  What did our current President, then-Senator Obama say about this 
duty? He stated:

       There are some who believe that the President, having won 
     the election, should have the complete authority to appoint 
     his nominee, and the Senate should only examine whether or 
     not the Justice is intellectually capable and an all-around 
     nice guy, that once you get beyond intellect and personal 
     character, there should be no further question whether the 
     judge should be confirmed. I disagree with this view. I 
     believe firmly that the Constitution calls for the Senate to 
     advise and consent. I believe that it calls for meaningful 
     advice and consent that includes an examination of a judge's 
     philosophy, ideology, and record.

  Our inquiry of the qualifications of nominees must be more than 
intelligence, a pleasant personality, or a prestigious clerkship. At 
the beginning of this Congress, I articulated my standards for judicial 
nominees. I want to ensure that the men and women who are appointed to 
a lifetime position in the Federal judiciary are qualified to serve. 
Factors I consider important include intellectual ability, respect for 
the Constitution, fidelity to the law, personal integrity, appropriate 
judicial temperament, and professional competence. In applying these 
standards, I have demonstrated good faith in ensuring fair 
consideration of judicial nominees. I have worked with the majority to 
confirm consensus nominees. However, as I have stated more than once, 
the Senate must not place quantity confirmed over quality confirmed. 
These lifetime appointments are too important to the Federal judiciary 
and the American people to simply rubberstamp them. This is not a pro 
forma process that we are engaged in.
  Last year I became increasingly concerned about some of the judicial 
nominees being sent to the Senate by this administration. In a few 
individual cases, it was very troublesome. Mr. Helmick's nomination 
fell into that category. When I apply the standard I mentioned and the 
standards that then-Senator Obama laid out or the standards expressed 
in the Federalist Papers, I reach the same conclusion. In my judgment, 
Mr. Helmick fails to meet the required standard and should not be 
confirmed.
  The Senate process for reviewing the professional qualifications, 
temperament, background, and character is a long and thorough process. 
In Mr. Helmick's case, there were some issues that needed to be fully 
examined. At the conclusion of that lengthy process, a substantial 
majority of my political party--the Republicans--on the Judiciary 
Committee determined that this nomination should not be reported to the 
Senate. Nevertheless, we now have the nomination before us. Even so, 
there are reasons sufficient to oppose the nomination.
  In 2000 Mr. Helmick faced disciplinary action for failing to comply 
with a court-issued subpoena. He refused to turn over an incriminating 
letter signed by a former client in the same case, which contained 
threats to a State witness. A grand jury issued a subpoena to obtain 
the letter, but Mr. Helmick refused to appear before the grand jury. 
The trial court found him in contempt of court. Mr. Helmick appealed, 
which caused the contempt sanction to be stayed. A three-judge panel of 
the Ohio Court of Appeals unanimously held that he was required to turn 
over the letter.
  Mr. Helmick then appealed to the Ohio Supreme Court, which held that 
he must comply with the subpoena, although they lifted the contempt 
citation.
  The Supreme Court of Ohio stated that Mr. Helmick's concerns 
regarding the attorney-client privilege were not enough to ``override 
the public interest in maintaining public safety and promoting the 
administration of justice.''
  I do not think we should confirm to the bench individuals who are 
willing to put private interests over the public interest in the 
administration of justice.
  I am concerned about Mr. Helmick's view on national security, as 
evidenced by his handling of terrorism cases as a defense attorney. In 
looking at the arguments he has made in court representing terrorists, 
I am concerned he may believe terrorism cases are less serious than 
other criminal cases, and that in turn causes some concern about how he 
might handle terrorism cases that may come before him, if confirmed.
  For example, he represented the terrorist Wassim Mazloum. This 
terrorist was convicted by a jury of a conspiracy to kill U.S. troops 
overseas and of providing material support for terrorists. Those are 
very serious crimes. According to the sentencing guidelines, Mazloum 
deserved life in prison. Mr. Helmick argued ``that perhaps the life 
sentence that was called for in the advisory guidelines was too severe 
or too

[[Page 8401]]

harsh.'' In the end, this terrorist did not receive a life sentence, 
rather he received only an 8-year sentence--hardly a punishment or 
deterrent.
  For these reasons and others I will vote no on this nomination and 
urge my colleagues to do likewise.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I understand I have time remaining?
  The PRESIDING OFFICER. The majority has 17 minutes 10 seconds.
  Mr. LEAHY. Madam President, let me refer to the nomination that is 
before us. I know the distinguished senior Senator from Ohio will speak 
after me. Today the Senate will vote on the nomination of Jeffrey 
Helmick to fill a judicial emergency vacancy on the U.S. District Court 
for the Northern District of Ohio. I commend Senator Brown and Senator 
Portman for their diligence in securing a vote on this nomination. Mr. 
Helmick has the strong bipartisan support of his home State Senators. 
His nomination was voted out of the Judiciary Committee nearly 3 months 
ago by a bipartisan majority. I thank the majority leader for his work 
in bringing this nomination up for a final vote.
  This is one of the nominations that I noted on Monday had been 
skipped, when we confirmed another district court judge. I look forward 
to working with Senator Kyl and Senator McCain to secure a vote on the 
nomination of Justice Andrew Hurwitz to fill a judicial emergency 
vacancy on the Ninth Circuit, working with Senator Menendez and Senator 
Lautenberg to secure a vote on the nomination of Judge Patty Shwartz to 
fill a vacancy on the Third Circuit, and with Senator Graham and 
Senator DeMint to set a vote on the nomination of Mary Lewis to fill a 
vacancy in South Carolina.
  I spoke on Monday about a recent Congressional Research Service 
report on judicial nominations. The report demonstrates what I have 
been saying for some time, that the time that nominations are being 
delayed from a final Senate vote is extraordinary. Pages 17 through 19 
and figure 4 demonstrate the unprecedented obstruction. The median 
number of days President Obama's circuit court nominees have been 
delayed, from Committee report to a vote, has skyrocketed to 132 days, 
``roughly 7.3 times greater than the median number of 18 days for the 
61 confirmed circuit nominees of his immediate predecessor, President 
G.W. Bush.''
  I ask unanimous consent that the summary of the CRS report be printed 
in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Mr. President, delay is being demonstrated again with 
respect to the nominations of Justice Hurwitz to the Ninth Circuit, 
Judge Shwartz to the Third Circuit, Richard Taranto to the Federal 
Circuit, and William Kayatta to the First Circuit. These are not 
controversial or ideologically driven nominees. Justice Hurwitz is 
strongly supported by Senator Kyl and Senator McCain; William Kayatta 
is strongly supported by Senator Snowe and Senator Collins. Another 
point made by the Congressional Research Service is that fewer circuit 
court nominees have been confirmed than were confirmed during the first 
terms of any of President Obama's four predecessors President Reagan, 
President Geroge H.W. Bush, President Clinton, or President George W. 
Bush.
  Similarly, district court nominees such as Mr. Helmick are being 
unnecessarily delayed. The median time from Committee vote to Senate 
vote has gone from 21 days during the George W. Bush presidency to 90 
days for President Obama's district nominees. I wish Mr. Helmick had 
been confirmed back in March when he was first ready for a final Senate 
vote. He has been stalled for nearly 3 months. The Congressional 
Research Service report also notes that in contrast to President George 
W. Bush's district court nominees, who were confirmed at a rate of 
almost 95 percent, President Obama's district court nominees are being 
confirmed at a rate below 80 percent. And it concludes that ``the 
average time in the current Congress during which circuit and district 
court nominations have been pending on the Senate Executive Calendar 
before being confirmed has reached historically high levels.''
  Once the Senate is allowed to vote on this nomination, we need 
agreement to vote on the 14 other judicial nominees stalled on the 
Executive Calendar. There are five more judicial nominees who had their 
hearing back on May 9 and should be voted on by the Judiciary Committee 
tomorrow. They too will need Senate votes for confirmation. Another 
point made by the Congressional Research Service in its recent report 
is that fewer of President Obama's district court nominees have been 
confirmed than were confirmed during the first terms of his four 
predecessors and vacancies remain higher now than when President Obama 
took office. Not a single one of the last three presidents has had 
judicial vacancies increase after their first term. In order to avoid 
this, the Senate needs to act on these nominees before adjourning this 
year.
  Nor would that be unusual. As the Congressional Research Service 
Report makes clear, in 5 of the last 8 presidential election years, the 
Senate has confirmed at least 22 circuit and district court nominees 
after May 31. The notable exceptions were during the last years of 
President Clinton's two terms in 1996 and 2000 when they would not 
allow confirmations to continue. Otherwise, it has been the rule rather 
than the exception. So, for example, the Senate confirmed 32 in 1980; 
28 in 1984; 31 in 1992; 28 in 2004 at the end of President George W. 
Bush's first term; and 22 after May 31 in 2008 at the end of President 
Bush's second term.
  The Congressional Research Service Report about the treatment of 
President Obama's judicial nominations confirms what we already know 
that Senate Republicans have held President Obama's nominees to a 
different and unfair standard and engaged in unnecessary and harmful 
delays of consensus nominees.
  James Fallows, a well-respected journalist at The Atlantic authored 
an internet article dated June 5, 2012 based on his reading of the CRS 
Report, which is entitled ``American Dysfunction Watch: State of the 
Judiciary.'' In this article, Mr. Fallows notes that Mr. Obama ``is the 
only president in the past few decades . . . to have more seats vacant 
as he began his re-election year than he inherited when he took 
office.'' Moreover, Mr. Fallows further highlights the following: 
``During the Obama presidency thus far, fewer circuit court nominees 
have been confirmed by the Senate than were confirmed during the first 
terms of any of the four preceding Presidents (Reagan through G.W. 
Bush). Likewise, fewer Obama district court nominees have been 
confirmed by the Senate than were confirmed during the first terms of 
the four preceding presidents.''
  The ranking member on the Judiciary Committee has noted that we are 
doing better than when his predecessor was the ranking republican on 
the Committee, and that is accurate. But we have not made up for the 
historically low confirmations allowed during that period or for the 
fact that in each of the last 2 years the Senate has adjourned without 
acting on 19 judicial nominations ready for final action each year.
  Some seek to compare this first term of President Obama to President 
Bush's second 4-year term, but as the Congressional Research Service 
Report demonstrates, the proper comparison is to President Bush's first 
term. Nonetheless, I would remind the Senate that during President 
Bush's second term, the Republican majority managed the confirmation of 
52 circuit and district court nominees while the Senate Democratic 
majority worked to confirm 68 judicial nominees during the

[[Page 8402]]

last 2 years of that presidency and reduced vacancies to 34 while 
holding hearings and votes on judicial nominees well into September 
2008.
  The simple fact is that the Senate is still lagging far behind what 
we accomplished during the first term of President George W. Bush. 
During President Bush's first term we reduced the number of judicial 
vacancies by almost 75 percent. When I became chairman in the summer of 
2001, there were 110 vacancies. As chairman, I worked with the 
administration and Senators from both sides of the aisle to confirm 100 
judicial nominees of a conservative Republican President in 17 months.
  Senate Democrats continued when in the minority to work with Senate 
Republicans to confirm President Bush's consensus judicial nominations 
well into 2004, a presidential election year. At the end of that 
presidential term, the Senate had acted to confirm 205 circuit and 
district court nominees. In May 2004, we reduced judicial vacancies to 
below 50 on the way to 28 that August. Despite 2004 being an election 
year, we were able to reduce vacancies to the lowest level in the last 
20 years. At a time of great turmoil and political confrontation, 
despite the attack on 
9/11, the anthrax letters shutting down Senate offices, and the 
ideologically-driven judicial selections of President Bush, we worked 
together to promptly confirm consensus nominees and to significantly 
reduce judicial vacancies.
  By comparison, the vacancy rate remains nearly twice what it was at 
this point in the first term of President Bush. While vacancies were 
reduced to 43 by June of President Bush's fourth year, in June of 
President Obama's fourth year they remain in the mid-70s. They remained 
near or above 80 for nearly 3 years. We are 30 confirmations behind the 
pace we set in 2001 through 2004. Of course, we could move forward if 
the Senate were allowed to vote without further delay on the 15 
judicial nominees ready for final action. The Senate could reduce 
vacancies below 60 and make progress.
  The Judiciary Committee should be voting on more judicial nominees 
this Thursday and we held a hearing for another three judicial nominees 
this afternoon. With cooperation from Senate Republicans, the Senate 
could make real progress and match what we have accomplished in prior 
years.
  After today, we still have much more work to do to help resolve the 
judicial vacancy crisis that has persisted for more than 3 years. Our 
courts need qualified Federal judges, not vacancies, if they are to 
reduce the excessive wait times that burden litigants seeking their day 
in court. It is unacceptable for hardworking Americans who turn to 
their courts for justice to suffer unnecessary delays. When an injured 
plaintiff sues to help cover the cost of his or her medical expenses, 
that plaintiff should not have to wait 3 years before a judge hears the 
case. When two small business owners disagree over a contract, they 
should not have to wait years for a court to resolve their dispute.
  We need to work to reduce the vacancies that are burdening the 
Federal judiciary and the millions of Americans who rely on our Federal 
courts to seek justice. Let us work in a bipartisan fashion to confirm 
these qualified judicial nominees so that we can address the judicial 
vacancy crisis and so they can serve the American people.
  Jeffrey Helmick was rated well qualified by a substantial majority of 
the ABA's Standing Committee on the Federal Judiciary. In his 22-year 
legal career as a litigator in private practice, Mr. Helmick has tried 
approximately 40 cases to verdict or judgment. Currently a principal at 
his law firm, Mr. Helmick has the strong support of his home state 
Senators, Democratic Senator Sherrod Brown and Republican Senator Rob 
Portman.
  I join Senator Brown and Senator Portman in supporting the 
confirmation of Jeffrey Helmick.

                               Exhibit 1

        [From the Congressional Research Service, June 1, 2012]

  Nominations to U.S. Circuit and District Courts by President Obama 
                 During the 111th and 112th Congresses

       (By Barry J. McMillion, Analyst on the Federal Judiciary)


                                Summary

       Recent Senate debates in the 112th Congress over judicial 
     nominations have focused on issues such as the relative 
     degree of success of President Barack Obama's nominees in 
     gaining Senate confirmation (compared with other recent 
     Presidents) as well as the effect of delayed judicial 
     appointments on judicial vacancy levels. The following report 
     addresses these issues, and others, by providing a 
     statistical overview of President Obama's nominees to U.S. 
     circuit court of appeals and U.S. district court judgeships, 
     current through May 31, 2012. Findings include the following:
       President Obama thus far in his presidency has nominated 41 
     persons to U.S. circuit court judgeships, 29 of whom have 
     been confirmed.
       Of the 150 persons nominated thus far by President Obama to 
     U.S. district court judgeships, 117 have been confirmed.
       The greatest number of President Obama's circuit court 
     nominees have been confirmed to the U.S. Court of Appeals for 
     the Fourth Circuit (6) and the Second Circuit (5).
       The greatest number of President Obama's district court 
     nominees have been confirmed to judgeships located within the 
     Ninth Circuit (22) and the fewest to district court 
     judgeships within the First Circuit (3).
       District court vacancies have grown in number over the 
     course of the Obama presidency, from 42 judgeships vacant 
     when President Obama took office to 59 at present. There 
     currently are 13 circuit court vacancies (the same number as 
     when President Obama took office).
       During the Obama presidency thus far, fewer circuit court 
     nominees have been confirmed by the Senate than were 
     confirmed during the first terms of any of the four preceding 
     Presidents (Reagan through G.W. Bush).
       Likewise, fewer Obama district court nominees have been 
     confirmed by the Senate than were confirmed during the first 
     terms of the four preceding Presidents.
       President Obama is the only one of the three most recent 
     Presidents to have begun his fourth year in office with more 
     circuit and district court judgeships vacant than when he 
     took office.
       During the Obama presidency, the average waiting time from 
     nomination to committee hearing has been, thus far, 69.6 days 
     for circuit court nominees and 83.2 days for district court 
     nominees.
       During the Obama presidency, the average waiting time from 
     Senate Judiciary Committee report to Senate confirmation has 
     been 139.7 days for circuit court nominees and 105.1 days for 
     district court nominees.
       Various factors might help explain differences or variation 
     found in judicial appointment statistics across recent 
     presidencies.
       A President's opportunities to make circuit and district 
     court appointments will be affected by the number of judicial 
     vacancies existing at the time he takes office, as well as by 
     how many judges depart office, and how many new judgeships 
     are statutorily created, during his presidency.
       The time taken by a President to select nominees for 
     judicial vacancies may be affected by whether the selection 
     of lower court nominees must compete with filling a Supreme 
     Court vacancy, whether the selection process itself is a 
     priority for a President, the level of consultation between a 
     President and a nominee's home state Senators, and the time 
     taken by home state Senators to make judicial candidate 
     recommendations.
       Institutional and political factors which may influence the 
     processing of judicial nominations by the Senate include 
     ideological differences between the President and the 
     opposition party in the Senate, the extent of interest group 
     opposition to certain nominees, the presence or absence of 
     ``divided government,'' the point in a congressional session 
     when nominations arrive in the Senate, whether nominees have 
     the support of both of their home state Senators, and whether 
     the blue slip policy of the Senate Judiciary Committee 
     requires the support of both home state Senators before a 
     nominee can receive a hearing or committee vote.

  Mr. LEAHY. I yield the remainder of my time to the distinguished 
senior Senator from Ohio.
  The PRESIDING OFFICER (Mr. Whitehouse). The distinguished Senator 
from Ohio.
  Mr. BROWN of Ohio. Mr. President, I appreciate the kind words and the 
insight from Chairman Leahy and his leadership on trying to speed up 
the confirmation process on a whole host of judges.
  I have a lot of respect for my colleague from Iowa, but I take 
exception with a couple of things he said. No. 1, he compared the 
number of nominations during the second Bush 4 years with the first 4 
Obama years and said that the Senate was more cooperative now than it 
was then. Clearly it was apples and oranges. We know--almost any 
schoolkid in America now knows--

[[Page 8403]]

the dysfunction of the Senate in terms of the minority party blocking 
all kinds of things, from medium- to low-level Federal appointments to 
the executive branch, to district court judges, to legislation. So I 
think Senator Leahy has addressed that very aptly, and I don't need to 
go into detail there.
  Senator Leahy also has spoken to the two public criticisms--shallow 
and vacuous that they are--of Jeffrey Helmick. The one on him 
representing terrorists, I am not a lawyer, but I know that when a 
Federal judge asks a lawyer to represent somebody, the lawyer does it, 
as Jeffrey Helmick did. And, as Senator Leahy said on the ethics issue, 
the Ohio Court of Appeals said that Mr. Helmick should be commended. 
The supreme court agreed unanimously that the letter they talked about 
was a client secret and that Mr. Helmick acted in good faith. So those 
criticisms don't really stand the test of time in that way.
  Again, I thank Senator Leahy and the Judiciary Committee for moving 
as quickly as they could move. This is a difficult time. At times, 
there is Senate dysfunction and the minority party blocks or slow-walks 
some of these nominees.
  Jeffrey Helmick has been supported by a bipartisan, rigorous 
committee of 17 who come from the Southern District of Ohio and who 
help to choose nominees for the Northern District of Ohio. I spoke 
personally with all but 1 or 2 of those 17 Republicans and Democrats 
around whom consensus was formed in support of Jeffrey Helmick. They 
think he is an outstanding lawyer, jurist, and potential Federal judge. 
The other Federal judges in the western region of the Northern District 
Court in Ohio, which is out of Toledo--including a judge nominated by 
President George W. Bush--enthusiastically support Jeffrey Helmick.
  Senator Grassley said he was a controversial nominee. He is only 
controversial in the Senate Judiciary Committee and among some of my 
colleagues. He is not controversial in Ohio, where they know Jeffrey 
Helmick the best. He is not controversial in the Toledo bar. He is not 
controversial among people who know Jeffrey Helmick and who have 
watched him perform his service to his community and watched him 
professionally and the way that he does his job as a lawyer in Toledo, 
OH, in Federal court or in State court. So the fact is, he is not a 
controversial nominee. He is only a controversial nominee in the U.S. 
Senate and in some places in Washington, DC. But we know he is 
qualified, and we know he is ready to serve.
  I ask my colleagues to vote today to confirm Jeffrey Helmick to the 
U.S. Federal court in the Northern District of Ohio.
  Jeffrey Helmick was rated ``well qualified'' by a substantial 
majority of the ABA's Standing Committee on the Federal Judiciary. In 
his 22-year legal career as a litigator in private practice, Mr. 
Helmick has tried approximately 40 cases to verdict or judgment. 
Currently a principal at his law firm, Mr. Helmick has the strong 
support of his home State Senators who have spoken in support of this 
nomination. He was also voted out of the Judiciary Committee nearly 3 
months ago by a bipartisan majority. Given his distinguished record in 
private practice and his bipartisan support, I trust that he will be 
confirmed.
  Some have chosen to criticize Mr. Helmick for his role as court-
appointed defense counsel. Those who criticize him may not understand 
how our justice system works. Our legal system is an adversary system, 
predicated upon legal advocacy for both sides. That is what Mr. Helmick 
did at the request of the court.
  No nominee should be disqualified for representing clients zealously. 
At his confirmation hearing to become the Chief Justice of the United 
States, John Roberts made the point:

       ``[I]t's a tradition of the American Bar that goes back 
     before the founding of the country that lawyers are not 
     identified with the positions of their clients. The most 
     famous example probably was John Adams, who represented the 
     British soldiers charged in the Boston Massacre. He did that 
     for a reason, because he wanted to show that the Revolution 
     in which he was involved was not about overturning the rule 
     of law, it was about vindicating the rule of law.
       Our Founders thought that they were not being given their 
     rights under the British system to which they were entitled, 
     and by representing the British soldiers, he helped show that 
     what they were about was defending the rule of law, not 
     undermining it, and that principle, that you don't identify 
     the lawyer with the particular views of the client, or the 
     views that the lawyer advances on behalf of the client, is 
     critical to the fair administration of justice.''

  Mr. Helmick was appointed by the court to represent a defendant and 
he had an ethical obligation to advocate zealously for that client. 
That was what he did, and he should not now be punished for doing his 
duty.
  In addition, there has apparently been an objection to Mr. Helmick's 
handling of an ethical dilemma where he refused to disclose a client 
secret. This is particularly odd because the Ohio Court of Appeals who 
heard the case stated that Mr. Helmick ``should be commended for his 
professional and ethical behavior in a very difficult situation.'' In 
addition, although a divided Ohio Supreme Court ultimately ordered 
disclosure of the letter based on a balancing test in a 4-3 decision, 
the Court nevertheless agreed unanimously with Mr. Helmick that the 
letter was a client secret. Indeed, the Ohio Supreme Court stated that 
Mr. Helmick acted in good faith.
  Let us confirm this good man and not try to tarnish his distinguished 
reputation. I join Senator Brown and Senator Portman in urging a vote 
for confirmation.
  I yield back the remaining time, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, will the Senate Advise and Consent to the nomination 
of Jeffrey J. Helmick, of Ohio, to be U.S. District Judge for the 
Northern District of Ohio?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Illinois (Mr. Kirk) and the Senator from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 62, nays 36, as follows:

                      [Rollcall Vote No. 116 Ex.]

                                YEAS--62

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

                                NAYS--36

     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Cornyn
     Crapo
     DeMint
     Enzi
     Grassley
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kyl
     Lee
     McCain
     McConnell
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune
     Toomey
     Wicker

                             NOT VOTING--2

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

                          ____________________