[Congressional Record (Bound Edition), Volume 158 (2012), Part 9] [Senate] [Pages 11847-11854] [From the U.S. Government Publishing Office, www.gpo.gov]EXECUTIVE SESSION ______ NOMINATION OF MICHAEL A. SHIPP TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY 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 assistant bill clerk read the nomination of Michael A. Shipp, of New Jersey, to be United States District Judge for the District of New Jersey. Mr. LEAHY. Mr. President, I ask unanimous consent that the cloture motion be withdrawn and that the time be equally divided between now and the hour of 5:30 in the usual form; that upon the use or yielding back of time the Senate proceed to vote without intervening action or debate on the nomination; that the motion to reconsider be considered made and laid upon the table, with no intervening action or debate; that no further motions be in order; that any related statements be printed in the Record; that the President be immediately notified of the Senate's action and the Senate then resume legislative session. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LEAHY. Mr. President, I thank the distinguished Presiding Officer, distinguished by his service here in the Senate but also as Governor of one of the most beautiful States in the Union. Aurora, Colorado Shootings Before we begin--and so many others have said this--it would be impossible to state the amount of horror and sadness felt by my wife Marcelle and me at the news of what happened in Colorado, and I was reminded again today as I saw the flags lowered to half staff on this Capitol Building. We think of the Capitol as being a bastion of democracy or the light that sort of shines for the rest of the world on what democracy is. Unfortunately, so much of the world has seen the acts of a madman. It is safe to say this is one thing that united every Senator of both parties here. Our hearts go out not only to those who have been injured, obviously to the families of those who have died, and to the people in that wonderful community, because it is impossible for any one of us here to know how long or how hard that will hold in their heart, the number of people who say, as we all do: We just went to a movie. Any one of us has done that. Our children go to movies, our grandchildren go to movies. You expect them to go, have a good time, and come back, and enjoy it. The thought of what they saw there is horrible. We have before us a Federal trial court nomination, that of Michael Shipp. This is a nomination that was voted on by the Senate Judiciary Committee more than three months ago and supported nearly unanimously by both Republican and Democratic Senators who have reviewed it. The only objection came as a protest vote from Senator Lee. Judge Michael Shipp has served as a U.S. Magistrate Judge in the District of New Jersey since 2007 and has presided over civil and criminal matters and issued over 100 opinions. He is the first African- American United States Magistrate Judge in that district. Prior to his appointment to the Federal bench, he worked for the Office of the Attorney General of New Jersey for five years, where he was Assistant Attorney General in charge of Consumer [[Page 11848]] Protection from 2003 to 2007 and Counsel to the Attorney General in 2007. From 1995 to 2003, Judge Shipp was an associate in the Newark office of the law firm Skadden, Arps. Upon graduation from law school, Judge Shipp clerked for Judge James Coleman on the New Jersey Supreme Court. Despite his outstanding qualifications and bipartisan support, Senate Republicans have delayed his confirmation vote for more than three months. Despite the fact that the Senate has finally been allowed to consider his nomination and that he will be confirmed overwhelmingly, Senate Republicans have again demonstrated their obstruction of judicial nominees. This is not a nominee on whom cloture should have been filed. They refused until today to agree to a vote on this nomination. That meant that the Majority Leader was required to file a cloture petition to put an end to their obstruction and partisan filibuster. While I am pleased we are holding a confirmation vote today, it should not have required that the Majority Leader file for cloture. This was the 29th time the Majority Leader had been forced to file for cloture to end a Republican filibuster and get an up-or-down vote for one of President Obama's judicial nominees. By comparison, during the entire eight years that President Bush was in office, cloture was filed in connection with 18 of his judicial nominees, most of whom were opposed on their merits as extreme ideologues. Senate Republicans used to insist that filibustering of judicial nominations was unconstitutional. The Constitution has not changed but as soon as President Obama was elected they reversed course and filibustered President Obama's very first judicial nomination. Judge David Hamilton of Indiana was a widely-respected 15-year veteran of the Federal bench nominated to the Seventh Circuit and was supported by Senator Dick Lugar, the longest-serving Republican in the Senate. They delayed his confirmation for five months. Senate Republicans then proceeded to obstruct and delay just about every circuit court nominee of this President, filibustering nine of them. They delayed confirmation of Judge Albert Diaz of North Carolina to the Fourth Circuit for 11 months. They delayed confirmation of Judge Jane Stranch of Tennessee to the Sixth Circuit for 10 months. They delayed confirmation of Judge Ray Lohier of New York to the Second Circuit for seven months. They delayed confirmation of Judge Scott Matheson of Utah to the Tenth Circuit and Judge James Wynn, Jr. of North Carolina to the Fourth Circuit for six months. They delayed confirmation of Judge Andre Davis of Maryland to the Fourth Circuit, Judge Henry Floyd of South Carolina to the Fourth Circuit, Judge Stephanie Thacker of West Virginia to the Fourth Circuit, and Judge Jacqueline Nguyen of California to the Ninth Circuit for five months. They delayed confirmation of Judge Adalberto Jordan of Florida to the Eleventh Circuit, Judge Beverly Martin of Georgia to the Eleventh Circuit, Judge Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit, Judge Denny Chin of New York to the Second Circuit, and Judge Chris Droney of Connecticut to the Second Circuit for four months. They delayed confirmation of Judge Paul Watford of California to the Ninth Circuit, Judge Andrew Hurwitz of Arizona to the Ninth Circuit, Judge Morgan Christen of Alaska to the Ninth Circuit, Judge Stephen Higginson of Louisiana to the Fifth Circuit, Judge Gerard Lynch of New York to the Second Circuit, Judge Susan Carney of Connecticut to the Second Circuit, and Judge Kathleen O'Malley of Ohio to the Federal Circuit for three months. As a current report from the nonpartisan Congressional Research Service confirms, the median time circuit nominees have had to wait before a Senate vote has skyrocketed from 18 days for President Bush's nominees to 132 days for President Obama's. This is the result of Republican foot dragging and obstruction. In most cases, Senate Republicans are delaying and stalling for no good reason. How else do you explain the filibuster of the nomination of Judge Barbara Keenan of Virginia to the Fourth Circuit who was ultimately confirmed 99-0? And how else do you explain the needless stalling and obstruction of Judge Denny Chin of New York to the Second Circuit, who was filibustered for four months before he was confirmed 98-0? Three of the five circuit court judges finally confirmed this year after months of unnecessary delays and a filibuster should have been confirmed last year. The other two circuit court nominees confirmed this year were both subjected to stalling and a partisan filibuster by Senate Republicans. This was the case even though these circuit nominees had strong bipartisan support. We needed to overcome a filibuster to confirm Justice Andrew Hurwitz of Arizona to the Ninth Circuit despite the strong support of his home state Senators, Republicans Jon Kyl and John McCain. The Majority Leader had to file cloture to secure an up-or-down vote on Paul Watford of California to the Ninth Circuit despite his sterling credentials and bipartisan support. The year started with the Majority Leader having to file cloture to get an up-or-down vote on Judge Adalberto Jordan of Florida to the Eleventh Circuit even though he was strongly supported by his Republican home state Senator. Every single one of these nominees for whom the Majority Leader was forced to file cloture was rated unanimously well qualified by the nonpartisan ABA Standing Committee on the Federal Judiciary, the highest possible rating. And every one of them was nominated to fill a judicial emergency vacancy. In June, Senate Republicans confirmed that they shut down the confirmation process for qualified and consensus circuit court nominees. They are now filibustering Judge Patty Shwartz of New Jersey who is nominated to the Third Circuit and Richard Taranto who is nominated to the Federal Circuit. In addition, they are filibustering two circuit court nominees who have the support of both their home state Republican Senators: William Kayatta of Maine to the First Circuit and Judge Robert Bacharach of Oklahoma to the Tenth Circuit. This is almost unprecedented. During the past five presidential election years, Senate Democrats have never denied an up-or-down vote to any circuit court nominee of a Republican President who received bipartisan support in the Judiciary Committee. In fact, during the last 20 years, only four circuit nominees reported with bipartisan support have been denied an up-or- down vote by the Senate and all four were nominated by President Clinton and blocked by Senate Republicans. While Senate Democrats have been willing to work with Republican presidents to confirm circuit court nominees with bipartisan support, Senate Republicans have repeatedly obstructed the nominees of Democratic presidents. In the previous five presidential election years, a total of 13 circuit court nominees have been confirmed after June 1. Not surprisingly, 12 of the 13 were Republican nominees. Clearly, this is not tit-for-tat as some contend but, rather, a one-way street in favor of Republican presidents' nominees. This entire year, the Senate has yet to vote on a single circuit court nominee who was nominated by President Obama this year. Since 1980, the only presidential election year in which there were no circuit nominees confirmed who was nominated that year was in 1996, when Senate Republicans shut down the process against President Clinton's circuit nominees. The nonpartisan Congressional Research Service has confirmed in its reports that judicial nominees continue to be confirmed in presidential election years--except it seems when there is a Democratic President. In five of the last eight 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 [[Page 11849]] Clinton's two terms in 1996 and 2000 when Senate Republicans would not allow confirmations to continue. The third exception was in 1988, at the end of President Reagan's presidency, but that was because vacancies were at 28. In comparison, vacancies at the end of the Clinton years stood at 75 at the end of 1996 and 67 at the end of 2000. Otherwise, it has been the rule rather than the exception. So, for example, according to CRS the Senate confirmed 32 nominees 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. So far this year only 7 judicial nominees have been allowed to be confirmed. It is ironic that certain Senate Republicans are now arguing in support of a distorted version of the Thurmond Rule, as if it had the force of law. After all, it is Senate Republicans who have repeatedly asserted that the Thurmond Rule does not exist. For example, on July 14, 2008, the Senate Republican caucus held a hearing solely dedicated to arguing that the Thurmond Rule does not exist. At that hearing, the senior Senator from Kentucky stated: ``I think it's clear that there is no Thurmond Rule. And I think the facts demonstrate that.'' Similarly, the Senator from Iowa, my friend who is now serving as Ranking Member of the Judiciary Committee, stated that the Thurmond Rule was in his view ``plain bunk.'' He said: ``The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president's term.'' We did not in 2008 when we proceeded to confirm 22 nominees over the second half of that year. That Senate Republicans have objected to voting on the nomination of Judge Shipp is a distortion of the Thurmond rule and shows the depths to which they have gone. There is no good reason that the Senate should not vote on consensus nominees like Judge Shipp and more than a dozen other consensus judicial nominees to fill Federal trial court vacancies in Iowa, California, Utah, Connecticut, Maryland, Florida, Oklahoma, Michigan, New York and Pennsylvania. There is no good reason the Senate should not vote on the nominations of William Kayatta of Maine to the First Circuit, Judge Robert Bacharach of Oklahoma to the Tenth Circuit, Richard Taranto to the Federal Circuit and for that matter Judge Patty Shwartz of New Jersey to the Third Circuit, who is supported by New Jersey's Republican Governor. Each of these circuit court nominees has been rated unanimously well qualified by the nonpartisan ABA Standing Committee on the Federal Judiciary, the highest possible rating. These should not be controversial nominees. They are qualified and should be considered as consensus nominees and confirmed. Senate Republicans are blocking consent to vote on superbly qualified circuit court nominees with strong bipartisan support. This is a new and damaging application of the Thurmond rule. The fact that Republican stalling tactics have meant that circuit court nominees that should have been confirmed in the spring--like Bill Kayatta, Richard Taranto and Patty Shwartz--are still awaiting a vote is no excuse for not moving forward this month to confirm these circuit nominees. In an article dated July 16, 2012 entitled ``William Kayatta and the Needless Destruction of the Thurmond Rule,'' Andrew Cohen of the Atlantic states: In a more prudent and practical era in Senate history, nominees like Kayatta would have been confirmed in days . . . Now even slam-dunk candidates like Kayatta linger in the wings waiting for Senate ``consent'' long after the body already has definitively ``advised'' the executive branch of how great it thinks the nominee would be as a judge. Can you imagine the uproar if the Senate ever used its filibuster power to block the deployment of troops already endorsed by the Armed Services Committee? Now please tell me the material difference here. Surely, the judiciary needs judges as much as the army needs soldiers. I agree. We have outstanding nominees with the support of both Republican home State senators. Yet, we cannot vote on these nominees because Senate Republicans want to place politics over the needs of the American people. The Los Angeles Times recently published an editorial entitled ``Reject the `Thurmond Rule''' which concluded ``the administration of justice shouldn't be held hostage to partisan politics even in an election year.'' I ask unanimous consent that copies of the July 12 and 16 articles be printed in the Record at the conclusion of my statement. The PRESIDING OFFICER. Without objection, it is ordered. (See exhibit 1.) Mr. LEAHY. As both Chairman and Ranking Member of the Judiciary Committee during the last several years, I have worked with Senate Republicans to consider judicial nominees well into presidential election years, I have made earnest efforts to make the confirmation process more transparent and fair, I have ensured that the President consults with home state Senators before submitting a nominee, and I have opened up the blue slip process to prevent abuses while continuing to respect it. In the last two presidential election years, we were able to bring the number of judicial vacancies down to the lowest levels in the past 20 years. In 2004 at end of President Bush's first term, vacancies were reduced to 28 not the 77 we have today. In 2008, in the last year of President Bush's second term, we again worked to fill vacancies and got them down to 34, less than half of what they are today. In 2004, 25 nominees were confirmed between June and the presidential election, and in 2008, 22 nominees were confirmed between June and the presidential election. In 2004, a Presidential election year, the Senate confirmed five circuit court nominees of a Republican President that had been reported by the Committee that year. This year we have confirmed only two circuit court nominees that have been reported by the Committee this year, and both were filibustered. By this date in 2004 the Senate had already confirmed 32 of President Bush's circuit court nominees, and we confirmed another three that year for a total of 35 circuit court nominees in his first term. So far, the Senate has only been allowed to consider and confirm 30 of President Obama's circuit court nominees five fewer, 17 percent fewer while higher numbers of vacancies remain, and yet the Senate Republican leadership wants to artificially shut down nominations for no good reason. As Chairman of this Committee, I have also assiduously protected the rights of the minority in the judicial nomination process. I have only proceeded with judicial nominations supported by both home state Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. Nor did I accede to the Majority Leader's request to push a Nevada nominee through Committee who did not have the blue slip of the state's Republican Senator. In stark contrast, it was Senate Republicans and the Republican chairman who blatantly disregarded Senate Judiciary procedure by proceeding with nominations despite the objection of both home state Senators. And I have been consistent. I hold hearings at the same pace and under the same procedures whether the President nominating is a Democrat or a Republican. Others cannot say that. So those have been my rules respect for minority rights, transparency, deference to home state Senators, consistent application of policies and practices, and allowing for confirmations well into presidential election years for nominees with bipartisan support. Personal attacks on me do nothing to help the American people who are seeking justice in our Federal courts. I am willing to defend my record but that is beside the point. The harm to the American people is what matters. What the American people and the overburdened Federal courts need are qualified judges to administer justice [[Page 11850]] in our Federal courts, not the perpetuation of extended, numerous vacancies. The judicial vacancy rate remains almost twice what it was at this point in the first term of President Bush. I wish Senate Republicans would think more about our responsibilities to the American people than some warped sense of partisan score settling. Vacancies have been near or above 80 for three years. Nearly one out of every 11 Federal courts is currently vacant. Their shutting down confirmations for consensus and qualified judicial nominees is not helping the overburdened courts who cannot administer justice in an expedient fashion. It is not helping owners of small businesses. Last week, after his nomination was reported with near unanimous voice vote by the Judiciary Committee approximately three months ago, the Senate was finally able to confirm Judge Kevin McNulty to the District of New Jersey. Despite vacancies still remaining near or above 80, Senate Republicans continue to obstruct and stall nominees on the Senate floor for no good reason. We could easily have confirmed both Judges Shipp and McNulty together three months ago. It is this type of across-the-board obstruction of judicial nominees by Senate Republicans that has contributed to the judicial vacancy crisis in our Federal courts. Last week, I spoke about the novel excuses that some Senate Republicans have concocted for refusing to allow for votes on nominees. One excuse was that having confirmed two Supreme Court justices, the Senate cannot be expected to reach the 205 number of confirmations in President Bush's first term. Work on two Supreme Court nominations did not stop the Senate from working to confirm 200 of President Clinton's circuit and district nominees in his first term. Similarly, there were two Supreme Court confirmations in President George H.W. Bush's term, and that did not prevent Senate Democrats who were in the Senate majority from confirming 192 of his circuit and district nominees, including 66 in the election year of 1992 alone. Last week we heard another self-serving misconception of more recent history from the Republican side of the aisle. They claimed that Democrats were responsible for growing judicial vacancies in 2008. The charge was as follows: ``[A]t the beginning of 2008 there were 43 vacancies. So the practice for Democrats who controlled the Senate during that last year of President Bush's term was to allow vacancies to increase by more than 37 percent.'' In fact, what we did in 2008 was to reduce vacancies back down to 34 in October 2008 when the Senate recessed for the year. The increase in vacancies after October and through the remainder of 2008 was not because Senate Democrats were obstructing Senate votes on qualified judicial nominees with bipartisan support as Senate Republicans are today. In November and December 2008 the Senate met on a few days only to address the financial crisis. There were no nominations pending on the Calendar after the election in 2008. Their charge is fallacious. Judicial vacancies have not been as low as 34 or 43 or even the 55 that they stood at when President Obama took office for years. Due to Republican obstruction, President Obama will be the first President in 20 years to complete his first term with more judicial vacancies than when he took office. Last week Senate Republicans also contended that they have no responsibility for the lack of progress in 2009. In fact, that year ended with 10 judicial confirmations stalled by Senate Republicans. The obstructionist tactics they employed from the outset of the Obama administration had led to the lowest number of judicial confirmations in more than 50 years. Only 12 of President Obama's judicial nominations to Federal circuit and district courts were confirmed that whole year. The 12 were less than half of what we achieved during President Bush's first tumultuous year. In the second half of 2001, a Democratic Senate majority proceeded to confirm 28 judges. Despite the fact that President Obama began nominating judicial nominees two months earlier than President Bush, Senate Republicans delayed and obstructed them to yield an historic low in confirmations. Republicans refused to agree to the consideration of qualified, noncontroversial nominees for weeks and months. And as the Senate recessed in December, only three of the available 13 judicial nominations on the Senate Executive Calendar were allowed to be considered. By contrast, in December 2001, the first year of President Bush's administration, Senate Democrats proceeded to confirm 10 of his judicial nominees. At the end of the Senate's 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002. By contrast, it took until May 2011, a year and a half later, to complete action on the judicial nominees who should have been confirmed in December 2009 but had to be renominated. Although noncontroversial, several were further delayed by filibusters before being confirmed unanimously. The lack of Senate action on those 10 judicial nominees in 2009 was attributable to Senate Republicans and no one else. Despite the fact that President Obama reached across the aisle to consult with Republican Senators, he was rewarded with obstruction from the outset of his administration. While President Obama moved beyond the judicial nominations battles of the past and reached out to work with Republicans and make mainstream nominations, Senate Republicans continued their tactics of delay. For Senate Republicans to claim that ``only 13 [sic] judges were confirmed during President Obama's first year'' because of ``decisions made by the Senate Democratic leadership'' and that it was ``the choice of Democrats'' and ``not because of anything the Republican minority could do'' is ludicrous. Senate Democrats had cleared for confirmation the other 10 judicial nominees stalled by Republicans in 2009. Their assertion ignores the facts and the truth. Just as they cannot escape responsibility for their unwillingness to move forward with the 21 judicial nominees ready for a final up-or down vote now before the end of this year, they cannot escape responsibility for what they did in 2009. Senate Republicans choose to offer weak excuses and blame everyone but themselves for the delays and obstruction in which they have excelled. Their sense of being justified by some view of tit-for-tat is distorted and should be beside the point while vacancies remain so high that the American people and our courts are overburdened. The way Senate Democrats helped reduce vacancies was not by limiting confirmations to one nominee per week, as Senate Republicans have. In September 2008, with Democrats in the majority, the Senate confirmed 10 of President Bush's nominees in a single day, all by voice vote. There were 10 consensus nominees pending on the Senate floor, and we confirmed all of them in minutes. Likewise, in 2002, Senate Democrats joined in confirming 18 of President Bush's nominees in a single day, again by voice vote. I wish Senate Republicans would duplicate that precedent and help clear the logjam of judicial nominees dating back to March who are still awaiting up-or-down votes. While I am pleased that we will confirm Judge Shipp today, I wish that Senate Republicans would help us confirm the 20 additional judicial nominees who can be confirmed right now. Then we could make real progress in giving our courts the judges they need to provide justice for the American people, just as we did in 1992, 2004 and 2008. After today's vote, I hope Senate Republicans will reconsider their ill-conceived partisan strategy and work with us to meet the needs of the American people. With more than 75 judicial vacancies still burdening the American people and our Federal courts, there is no justification for not proceeding to confirm the judicial nominees reported with bipartisan support by the Judiciary Committee this year. Each day that Senate Republicans refuse because of their political agenda [[Page 11851]] to confirm these qualified judicial nominees who have been reviewed and voted on by the Judiciary Committee is another day that a judge could have been working to administer justice. Every week lost is another in which injured plaintiffs are having to wait to recover the costs of medical expenses, lost wages, or other damages from wrongdoing. Every month is another drag on the economy as small business owners have to wait to have their contract disputes resolved. Hardworking and hard- pressed Americans should not have to wait years to have their cases decided. Just as it is with the economy and with jobs, the American people do not want to hear excuses about why Republicans in Congress will not help them. So let us do more to help the American people. Exhibit 1 [From theatlantic.com, July 16, 2012] William Kayatta and the Needless Destruction of the Thurmond Rule (By Andrew Cohen) Why do Republican leaders still play along with an informal Senate rule that prevents up-or-down votes on even those judges who have strong Republican support? Meet William Kayatta, another one of America's earnest, capable judges-in-waiting. Widely respected in his home state of Maine, nominated by President Obama in January to fill a vacancy on the 1st U.S. Circuit Court of Appeals, eagerly endorsed by both of Maine's Republican senators, passed for confirmation to the Senate floor by an easy voice vote in the Senate Judiciary Committee, Kayatta's nomination instead has become yet another victim of the Senate GOP's suicidal tendencies. The litigants of the 1st Circuit need Kayatta. There are no serious arguments against him. Yet the Republican leadership in the Senate has blocked a vote on the merits of his nomination in obedience to the so-called ``Thurmond Rule,'' an informal practice as self-destructive as was its namesake. The Thurmond Rule is typically invoked by the opposition party in a presidential election year to preclude substantive votes on federal judicial appointments within six months of Election Day. It is the Senate's version of a sit-down strike. In April, just after the Judiciary Committee favorably passed along Kayatta's nomination to the Senate floor for confirmation, Maine's junior senator, Susan Collins, had wonderful things to say about the nominee: Bill is an attorney of exceptional intelligence, extensive experience, and demonstrated integrity, who is very highly respected in the Maine legal community. Bill's impressive background makes him eminently qualified for a seat on the First Circuit. His thirty-plus years of real world litigation experience would bring a much-needed perspective to the court. Maine has a long proud history of supplying superb jurists to the federal bench. I know that, if confirmed, Mr. Kayatta will continue in that tradition. I urge the full Senate to approve his nomination as soon as possible. And how did her fellow Republicans respond to her request? They blew her off. There has been no vote on Kayatta's nomination and none is scheduled. Instead, last month, Sen. Mitch McConnell, the Senate Minority Leader, invoked the ``Thurmond rule'' to block floor consideration of appointment--as well as up-or-down votes on the rest of President Obama's federal appellate nominees (This in turn, initially prompted Sen. Collins to blame the Obama Administration for going too slow in nominating Kayatta in the first place.) In theory, the Thurmond Rule is something official Washington defends as the price of divided government. In reality, it's another outrageous example of how the Senate has re-written the Constitution by filibuster. In practice, in the Kayatta case and many more, the Thurmond rule is the antithesis of good governance. Your Senate today perpetuates a frivolous rule which, for the most cynical political reasons, blocks qualified people from serving their nation. It's not misfeasance. It's malfeasance. Just because Strom Thurmond was willing to jump the Senate off the bridge doesn't mean that today's Senate Republican leaders had to do likewise. In a more prudent and practical era in Senate history, nominees like Kayatta would have been confirmed in days. Fifty years ago, for example, when another bright Democratic appointee with strong Republican support came to the Senate seeking a judgeship, the Judiciary Committee took all of 11 minutes before it endorsed him. Byron ``Whizzer'' White then served the next 31 years as an associate justice of the United States Supreme Court. That's wholly unthinkable today--even with lower federal court nominees. Now even slam-dunk candidates like Kayatta linger in the wings waiting for Senate ``consent'' long after the body already has definitively ``advised'' the executive branch of how great it thinks the nominee would be as a judge. Can you imagine the uproar if the Senate ever used its filibuster power to block the deployment of troops already endorsed by the Armed Services Committee? Now please tell me the material difference here. Surely, the judiciary needs judges as much as the army needs soldiers. There are currently 76 judicial vacancies around the country. There are 31 districts and circuits designated as ``judicial emergencies'' because vacancies there have lingered so long. In the 10th Circuit, what's happening to Kayatta is happening to Robert Bacharach, who has the support of Oklahoma's two Republican senators. The Senate also is blocking Richard Taranto from a Federal Circuit spot even though he breezed through the Judiciary Committee and has been endorsed by Robert Bork and Paul Clement. The same goes for Patty Shwartz in the 3rd Circuit. This is unacceptable on every level. When we talk about ``false equivalence'' in modern politics the business of these judges should be the lede. These nominations require no great policy choices on the part of Congress. They don't come with thousands of pages of ambiguous legalese disguised as the language of a federal statute. There is no room for spin. These nominees are either qualified, or they aren't, and when they sail out of the Judiciary Committee with voice votes no one can plausibly say they aren't qualified. And yet here we are. It would be convenient to blame Strom Thurmond, one of the most divisive politicians of the 20th century, for one of the Senate's most divisive rules. But Thurmond is long gone. And there was never anything about his rule that demanded it be followed, session after session, under both Democratic and Republican control. Just because Strom Thurmond was willing to jump the Senate off the bridge, in other words, doesn't mean that today's Senate Republican leaders had to do likewise. But they have. America has trouble enough today without a senseless Senate rule that blocks highly skilled, highly competent public servants from joining government. The nation's litigants in federal court, burdened by judicial vacancies, already are waiting long enough to have their corporate disputes decided. This isn't gridlock. This is destruction. ``I think it's stupid'' to block good judges from confirmation, Sen. Tom Coburn said earlier this year. For once, he is right. And Sen. Collins? Even she's come around. ``I have urged my colleagues on both sides of the aisle to give Bill the direct vote by the full Senate that he deserves,'' she said late last month. Amen to that. ____ [From the Los Angeles Times, July 12, 2012] Reject the ``Thurmond Rule'' Senate Minority Leader Mitch McConnell invokes the legacy of Strom Thurmond to hold up judicial confirmations--It's bad for judges and bad for justice The late Strom Thurmond is best known for his 48 years in the U.S. Senate representing South Carolina, his segregationist candidacy for the presidency in 1948 and the fact that even though he was a longtime opponent of racial equality, he fathered a child with a black teenage housekeeper. But Thurmond also lent his name to the so-called Thurmond Rule, according to which Senate action on judicial confirmations is supposed to stop several months before a presidential election. The rule--actually a custom that sometimes has been honored in the breach--goes back to 1968, when Thurmond and other Republicans held up action on President Johnson's nomination of Abe Fortas to be chief justice of the United States. Fortas withdrew in the face of a filibuster, and President Nixon, the Republican victor in the 1968 election, was able to choose a successor to the retiring Earl Warren. In subsequent years, senators of both parties have cited the Thurmond/Fortas episode as a precedent for not acting on judicial nominations close to an election. Even in the case of a Supreme Court appointment, the Thurmond Rule violates the spirit of the Constitution, which doesn't distinguish between nominations made earlier or later in a president's term. It is less defensible still in connection with nominations to lower courts. Yet Senate Minority Leader Mitch McConnell (R-Ky.) told colleagues last month that he was immediately invoking the rule to end nominations to the U.S. Court of Appeals, and would block confirmation votes on nominees to federal district courts after September. Such delays are a disservice to the nominees and to an overburdened federal judiciary. At present there are 12 vacancies on federal appeals courts, 63 on district courts and two on the U.S. Court of International Trade. The Obama administration, although it has been slow to fill vacancies, currently is proposing seven candidates for the appeals court and 28 for the district courts. The Senate should hold up-or- down votes on these nominations and any others put forward in the near future. Apart from the Thurmond Rule, the timely confirmation of judicial nominees has long been frustrated by petty partisanship. Democrats and Republicans share the blame. The most recent logjam was broken in March [[Page 11852]] when Republicans agreed to timely votes on 14 nominations. Obviously Republicans hope that Barack Obama is a lame-duck president, but even lame-ducks are entitled to expeditious consideration of their nominations. And the administration of justice shouldn't be held hostage to partisan politics even in an election year. Mr. President, I see the distinguished senior Senator from New Jersey on the floor. If he seeks the floor, I will yield to him; otherwise, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll. Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LAUTENBERG. Mr. President, I thank the chairman of the Judiciary Committee who always has things of relevance to talk to us about and he has done that again today and we thank the chairman. Aurora, Colorado Shootings Mr. President, I do plan on talking about a confirmation vote coming up on the floor, but one can't address the public at-large on this day, so soon after a tragedy of enormous proportion, without taking just a few moments to discuss the events that took place in Aurora, CO, last Friday. The question arises: What do we do besides weep with these people? What do we do besides feel sad and see a gloom hanging over our country? What do we do about this? What do we want to do to prevent it in the future? That will be the test of the general character of this body and others in government. So many promising young lives were lost, changed forever. We see pictures of those who lost a loved one in our newspapers. It is heartbreaking just to look at those pictures. What I sense from my visits around New Jersey today and over the weekend is a certain kinship one feels with the people who are mourning the loss of a child--an 8-year-old--or a daughter or son, husband or wife. One feels a certain kinship. One can feel the sadness and it is depressing, and it is not the kind of characterization we would like to see for the United States and the young lives lost forever. But our duty in this body is not simply to mourn and offer our condolences. We want to do that. We want those families who lost someone to understand that we, in some strange way, join them in their mourning, but the best way to prove our sadness, the best way to prove we care is to take action to protect young, innocent lives. On that score, we don't rank very high. I remember so clearly the time in 1999 the pictures of young people at a high school, hanging out the window, imploring for help, imploring to be saved, heartbroken at what they were seeing and what they were feeling. So we have to do something more. The gun laws on the books are outdated, and we even have let key protections expire. It is tragic. In the coming days, I am sure, some of my colleagues and I will be discussing specific measures, commonsense measures, because when it comes to our gun laws, we need to act before another outburst of gun violence overtakes us with the terrible consequences that brings. Around here we have opportunities to do great things, and I have one of those, I believe, today--an opportunity that I take with great pleasure--to come to the floor to strongly endorse Judge Michael Shipp for a position on the U.S. District Court for the District of New Jersey. Judge Shipp brings an impressive background to the bench. To start, he was born in Paterson, NJ, as was I. It is a city of significant poverty and difficulty, but he rose from humble beginnings in Paterson to graduate from Rutgers University and Seton Hall Law School, two of New Jersey's fine educational institutions. Judge Shipp has dedicated his career to our justice system, and he spent much of it in public service. I learned so much about him in my meeting with him. Not only does he bring a sincerity about wanting to do what is right, but he has the knowledge and the sensitivity that will make him a terrific district court judge. He began his career as a law clerk to a New Jersey Supreme Court justice, James H. Coleman, Jr. He then served in the office of New Jersey's attorney general, where he developed not only a thorough legal expertise but also real leadership acumen. As counsel to the attorney general, he oversaw 10,000 employees, including 800 attorneys. For more than a decade, Judge Shipp has taught our State's students as an adjunct law professor at Seton Hall University. Since 2007, he has served our city and our Nation as a U.S. magistrate judge in the district court. In this capacity, he has conducted proceedings in both civil and criminal cases and has included rulings on motions, issuing recommendations to district court judges, and performing district court judge duties in cases with magistrate jurisdiction. With this experience, Judge Shipp is going to be well prepared to serve on the district court. The law, our constitution, are the greatest denominators of our democracy, and the judges are the faithful stewards to protect these precious guidelines of our society. That is why, as a Senator, I consider it a sacred duty, given by the Constitution, to carefully select judicial nominees and to provide the President with advice and consent. Our faith in the legal system depends on the just application of the law as it is soundly written law. Judge Shipp has served New Jersey extraordinarily well, he is eminently qualified, and his broad experience will prepare him well for his new role. I have no doubt he will continue his excellence as a judge on the U.S. district court. The success of our democracy depends on all our citizens receiving equal and just representation before the law. As leaders in our judicial system, judges hold that equality and justice in their hands. It means they must be fair-minded, honorable, and humble. I am confident Judge Shipp is going to make a terrific judge. He is highly qualified to meet this challenge, and I urge my colleagues to support this confirmation. With that, I yield the floor. The PRESIDING OFFICER. The Senator from New Jersey. Mr. MENENDEZ. Mr. President, I ask unanimous consent that I be recognized for 4 minutes; that following my 4 minutes, the distinguished Senator from Iowa, the ranking member of the Judiciary Committee, be recognized for 6 minutes. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. MENENDEZ. Mr. President, I rise to strongly support the nomination of Judge Michael Shipp for the U.S. District Court for the District of New Jersey. All of us in New Jersey, everyone who has dealt with him, everyone who knows him is very familiar with Judge Shipp's strong qualifications and reputation for excellence. He is an exceptional candidate for the Federal bench--an accomplished jurist with impressive credentials. I recommended Judge Shipp to President Obama, and I urge all my colleagues in the Senate to support his nomination, as the Judiciary Committee did. With almost 5 years' experience as a Federal magistrate judge for the District of New Jersey, he is well prepared to assume a seat as a Federal district judge. As a magistrate, he has successfully managed significant and complex cases. On occasion, he has served as the district court judge in cases with magistrate jurisdiction. The first 8 years of his distinguished legal career were spent in the litigation department at the law firm of Skadden, Arps, Slate, Meagher & Flom. In 2003, he turned to public service to give something back to the community as an assistant attorney general for consumer protection in the Office of the Attorney General of New Jersey, where he honed his expertise in consumer fraud, insurance fraud, and securities fraud cases. Judge Shipp clearly excelled. He was twice promoted within the office, first as a liaison to the attorney general and second as counsel to the attorney general. As counsel, he was in charge, in [[Page 11853]] essence, of day-to-day operations of the Department of Law and Public Safety, a department with over 10,000 employees and 800 attorneys. An accomplished jurist, an experienced prosecutor, a dedicated public servant, and an effective administrator and manager as well, that is Michael Shipp. It is what all of us in New Jersey have known him to be. Judge Shipp has not stayed on the sidelines. Even with a full plate, he has been deeply involved in the legal community in helping address the profession's needs and concerns. He held a leadership role with the New Jersey State Bar Association and is actively involved with the Garden State Bar Association, which is the association of African- American lawyers. As a faculty member of Seton Hall University's School of Law's Summer Institute for Pre-Legal Studies, he helped disadvantaged students develop their interest in the law, and he served on the faculty of the New Jersey Attorney General's Advocacy Institute, which ensures that attorneys representing the State of New Jersey maintain the highest possible levels of professionalism. Judge Shipp is also a very proud New Jerseyan--part of the community--with deep roots in the State. A native of Paterson, he grew up and has lived in New Jersey all his life. He earned his degrees from Rutgers, the State university, and Seton Hall University School of Law. After graduating, he went on to clerk for the Honorable James Coleman, a former justice on the New Jersey Supreme Court. To put it simply, Michael Shipp will be an extraordinary district court judge for the District of New Jersey. He is a man of honor, principle, and he possesses an excellent judicial temperament, has extraordinary legal experience, and a deep and abiding commitment to the rule of law. I have full confidence he will serve the people of New Jersey and the country with all the dignity, fairness, and honor he has shown throughout his extraordinary career. We are lucky to have a nominee of his caliber, and I wholeheartedly urge the full Senate to vote to confirm Judge Shipp to the District of New Jersey. I am thrilled we are actually going to do a confirmation vote and not a cloture vote and I appreciate those who made that possible. With that, I yield the floor to my distinguished colleague from Iowa. The PRESIDING OFFICER. The Senator from Iowa. Recognizing Taylor Morris Mr. GRASSLEY. Mr. President, when my colleagues come over to vote, I hope they will take note of a constituent of mine and wish him well. Taylor Morris, a Navy wounded person from Afghanistan, who is an explosives expert, lost parts of four limbs. He is at the bottom of the escalator as you go to the subway. He is one of our wounded heroes, and I would like to have my colleagues recognize him. Aurora, Colorado Shootings Mr. GRASSLEY. Mr. President, it was a very sad weekend and will be for a long period of time in Aurora, CO. I heard the remarks of the majority and minority leaders today expressing condolence for the victims and their families. I wish to associate myself with those remarks and offer my condolences to all the people of Aurora but particularly to those who have deceased family members and those who are hospitalized because of this tragic event that happened there. Mr. President, I support the nomination of Michael A. Shipp to be U.S. district judge for the District of New Jersey, currently serving as a U.S. magistrate and coming out of committee on voice vote. I am not aware of any controversy regarding this nominee, and I expect he will be confirmed with an overwhelming vote. There has been a bit of discussion regarding whether the cloture vote that had been scheduled on today's nominee was some sort of escalation of Presidential election politics or an indication of a partisan fight over judicial confirmations. Those are raised as speculation or misreading what is happening in the Senate. The fact is that the cloture vote, which is now vitiated, had nothing to do with the judicial confirmation process in general or this nominee in particular. There is, unfortunately, an element of partisan gridlock that is affecting this nomination, but it is not because of a Republican desire to block this nominee or to shut down the Senate floor. Republicans, in fact, have been demanding more access to the Senate floor. That gridlock is the majority leader's tactics to block amendments on the Senate floor. Time after time the majority uses parliamentary procedure to prohibit amendments, block votes, and deny or limit debate. For example, last Thursday the Republican leader asked the majority leader if the anticipated business coming before the Senate, the Stabenow-Obama campaign tax bill, would be open for amendment. The majority leader responded that would be ``very doubtful.'' These actions, although they may be permitted by Senate rules, are contrary to the spirit of the Senate. Certainly we are far from being the world's greatest deliberative body at this time. So when a Senator who seeks a vote on his amendment is stymied time after time, it is not surprising that the Senator would use Senator rules and procedures to bring pressure on the majority leader for a vote--in other words, to do exactly what the Senate was set up under the Constitution to do. There is a bit of sad irony that Senators who are facing obstructionism are the ones who are labeled obstructionist when they are persistent in trying to bring a matter to a vote, which is customary in the Senate. Unfortunately, we are now seeing this obstructionism strategy creep into committee activity as well. Again, last Thursday the Judiciary Committee marked up an important national security bill. The bill was open to amendment but apparently only amendments the chairman agreed with. In the Judiciary Committee, we have a longstanding practice of voting up or down on difficult, controversial issues. What happened last week undermined the responsibility of the committee to debate and address important issues--in this case, national security. The Judiciary Committee is a forum for these debates. The bill that was on the agenda is one of the few vehicles that will likely be passed before the end of the year, so it was an important and appropriate vehicle for addressing such issues once the chairman opened the amendment process by adopting his own substitute amendment. Instead, the partisan gridlock, driven by the majority leader's tactics to block amendments on the Senate floor, has now spread to the committee level with made-up germaneness rules and tabling motions forced on amendments, some of which had received bipartisan support from members of the Judiciary Committee in the past. The only conclusion that can be drawn is that the Senate majority leadership wants to protect its members at every step of the legislative process from having to make difficult votes, and the majority leadership will employ any procedure it can to duck debates and to govern. Even as we turn to the 154th nominee of this President to be confirmed to the district or circuit courts, we continue to hear unsubstantiated charges of obstructionism. The fact is we have confirmed over 78 percent of President Obama's district nominees. At this point in his Presidency, 75 percent of President Bush's nominees had been confirmed. President Obama, in other words, is running ahead of President Bush on district confirmations as a percentage. I continue to hear some of my colleagues repeatedly ask the question: What is different about this President that he is to be treated differently than all of these other Presidents? I won't speculate as to any inference that might be intended by that question, but I can tell you that this President is not being treated differently than previous Presidents. By any objective measure, this President has been treated fairly and consistently with past Senate practices. As I stated, as a percentage of nominations, this President is running [[Page 11854]] ahead of the previous President with regard to the number of confirmations. Let me put that in perspective for my colleagues with an apples-to-apples comparison. As I mentioned, we have confirmed 153 district and circuit nominees of this President. We have also confirmed two Supreme Court nominees. Everyone understands that the Supreme Court nominations take a great deal of committee time. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term, and during that term the Senate confirmed a total of 119 district and circuit court nominees. With Judge Shipp's confirmation today--which I support and which I think will be confirmed almost unanimously--we will have confirmed 35 more district and circuit court nominees for President Obama than we did for President Bush in similar circumstances. During the last Presidential election, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. This Presidential election year we have already exceeded those numbers. We have confirmed 5 circuit nominees, and this will be the 27th district judge confirmed. Judge Shipp received his B.S. from Rutgers University in 1987 and his J.D. from the Seton Hall University School of Law in 1994. Upon graduation, he clerked for the Honorable James H. Coleman, Jr., a justice on the Supreme Court of New Jersey. After his clerkship, Judge Shipp joined Skadden, Arps, Slate, Meagher & Flom LLP as a litigation associate. There, he worked in general litigation matters, handling labor and employment work. He also developed an expertise in mass tort law and products liability litigation. In 2003, Judge Shipp became an assistant attorney general in charge of consumer protection with the Department of Law and Public Safety of New Jersey. There, he managed five practice groups: consumer fraud prosecution, insurance fraud prosecution (civil), securities fraud prosecution, professional boards prosecution, and debt recovery. He supervised approximately 80 deputy attorneys general. In 2005, he was promoted to the Attorney General's front office. There, he acted as an advisor to the Attorney General on sensitive legal matters related to ethics and appointments. In 2007, Judge Shipp was appointed as a United States magistrate judge for the District of New Jersey. As a magistrate judge he presides over civil and criminal pre-trial proceedings. He also presides over civil trials, with the consent of the parties. The ABA Standing Committee on the Federal Judiciary gave Judge Shipp a rating of substantial majority ``Qualified,'' minority ``Not Qualified.'' Mr. LEAHY. Mr. President, I ask unanimous consent to speak for 1 minute. Mr. GRASSLEY. I ask unanimous consent to have 1 minute, then, too. Mr. LEAHY. I have no objection. In fact, I will give a courtesy to the Senator from Iowa that he did not give to me, and I will be happy to yield 1 minute. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Mr. LEAHY. Usually, Mr. President, it has been my experience that in 37 years in this Senate, as the second most senior Member here, if a Senator wants to come and attack another Senator, they have the courtesy of giving him notice before they do. I am sorry my friend from Iowa didn't follow the normal courtesy. The PRESIDING OFFICER. The Senator from Iowa. Mr. GRASSLEY. Mr. President, for my 1 minute I will respond simply to that by saying that I am talking about the institution of the Senate and not one single Senator personally. Mr. LEAHY. Mr. President, how much time do I have remaining? The PRESIDING OFFICER. The Senator has 25 seconds. Mr. LEAHY. Mr. President, I yield to no Member of this body in the fact that I uphold not only the rules but the courtesies of this Senate. As chairman of the Senate Judiciary Committee, I have never cut off a Member of the other party who wished to speak, unlike some of the procedures they followed when they held the chair. I have never refused to have a Member of the other party bring up an amendment, contrary to the procedures they followed when they chaired it. I believe in the Senate. I believe in the rules of the Senate, but especially I believe in the comity that Thomas Jefferson believed in, in this body; otherwise, the Senate would fall apart. I yield the floor. The PRESIDING OFFICER. The question is, Will the Senate advise and consent to the nomination of Michael A. Shipp, of New Jersey, to be United States District Judge for the District of New Jersey. Mr. LEAHY. Mr. President, I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. The clerk will call the roll. The assistant legislative clerk called the roll. Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich), the Senator from California (Mrs. Boxer), the Senator from Pennsylvania (Mr. Casey), the Senator from Iowa (Mr. Harkin), and the Senator from Colorado (Mr. Udall) are necessarily absent. I further announce that, if present and voting, the Senator from Colorado (Mr. Udall) would have voted ``yea.'' Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), 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 (Mrs. Hagan). Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 91, nays 1, as follows: [Rollcall Vote No. 182 Ex.] YEAS--91 Akaka Alexander Ayotte Barrasso Baucus Bennet Bingaman Blumenthal Blunt Boozman Brown (MA) Brown (OH) Burr Cantwell Cardin Carper Chambliss Coats Coburn Cochran Collins Conrad Coons Corker Cornyn Crapo Durbin Enzi Feinstein Franken Gillibrand Graham Grassley Hagan Heller Hoeven Hutchison Inhofe Inouye Isakson Johanns Johnson (SD) Johnson (WI) Kerry Klobuchar Kohl Kyl Landrieu Lautenberg Leahy Levin Lieberman 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 (NM) Vitter Warner Webb Whitehouse Wicker Wyden NAYS--1 Lee NOT VOTING--8 Begich Boxer Casey DeMint Harkin Hatch Kirk Udall (CO) The nomination was confirmed. The PRESIDING OFFICER. Under the previous order, the motion to reconsider is considered made and laid upon the table, and the President will be immediately notified of the Senate's action. ____________________