[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 17238-17242]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF ROBERT LEON WILKINS TO BE UNITED STATES CIRCUIT JUDGE FOR 
                    THE DISTRICT OF COLUMBIA CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the nomination of Robert Leon 
Wilkins to be United States Circuit Judge.
  The assistant legislative clerk read the nomination of Robert Leon 
Wilkins, of the District of Columbia, to be United States Circuit Judge 
for the District Of Columbia Circuit.
  The PRESIDING OFFICER. Under the previous order, the time until 5:30 
p.m. will be equally divided and controlled in the usual form.
  The Senator from Maryland.
  Mr. CARDIN. Mr. President, I rise today in strong support of the 
nomination of Judge Robert L. Wilkins to be a circuit judge for the 
United States Court of Appeals for the District of Columbia Circuit. I 
was pleased to introduce Judge Wilkins to the Judiciary Committee in 
September, and the committee favorably reported his nomination in 
October.
  Judge Wilkins currently serves as Federal District Judge for the U.S. 
District Court for the District of Columbia, and was unanimously 
confirmed by the Senate for this position in 2010. I urge the Senate to 
invoke cloture to allow an up-or-down vote on this extremely qualified 
nominee.
  Judge Wilkins is a native of Muncie, IN. He obtained his B.S. cum 
laude in chemical engineering from Rose-Hulman Institute of Technology, 
and his J.D. from Harvard Law School.
  Following graduation, Judge Wilkins clerked for the Honorable Earl B. 
Gilliam of the U.S. District Court for the Southern District of 
California. He later served as a staff attorney and as head of Special 
Litigation for the Public Defender Service for the District of 
Columbia. He then practiced as a partner with Venable LLP, specializing 
in white collar defense, intellectual property, and complex civil 
litigation, before taking the bench as a judge.
  Besides Wilkins' professional accomplishments as an attorney, he also 
played a leading role as a plaintiff in a landmark civil rights case in 
Maryland involving racial profiling. During his tenure with the Public 
Defender Service and in private practice, Judge Wilkins served as the 
lead plaintiff in Wilkins, et al. v. State of Maryland, a civil rights 
lawsuit against the Maryland State Police for a traffic stop they 
conducted of Judge Wilkins and his family.
  In 1992, Judge Wilkins attended his grandfather's funeral in Chicago, 
and then began an all-night road trip home with three family members. 
Judge Wilkins was due back in Washington, DC that coming morning for a 
court appearance as a public defender. A Maryland State Police trooper 
pulled over their car. The police detained the family and deployed a 
drug-sniffing dog to check the car, after Judge Wilkins declined to 
consent to a search of the car, stating there was no reasonable 
suspicion. The family stood in the rain during the search, which did 
not undercover any contraband.

       It is hard to describe the frustration and pain you feel 
     when people pressure you to be guilty for no good reason, and 
     you know that you are innocent . . . [W]e fit the profile to 
     a tee. We were traveling on I-68, early in the morning, in a 
     Virginia rental car. And, my cousin and I, the front seat 
     passengers, were young black males. The only problem was that 
     we were not dangerous, armed drug traffickers. It should not 
     be suspicious to travel on the highway early in the morning 
     in a Virginia rental car. And it should not be suspicious to 
     be black.

  After the traffic stop, Judge Wilkins began reviewing Maryland State 
Police data, and noticed that while a majority of those drivers 
searched on 1-95 were black, blacks made up only a minority of drivers 
traveling there.
  Judge Wilkins filed a civil rights lawsuit, which resulted in two 
landmark settlements that were the first to require systematic 
compilation and publication by a police agency of data for all highway 
drug and weapons searches, including data regarding the race of the 
motorist involved, the justification for the search and the outcome of 
the search. The settlements also required the State police to hire an 
independent consultant, install video cameras in their vehicles, 
conduct internal investigations of all citizen complaints of racial 
profiling, and provide the Maryland NAACP with quarterly reports 
containing detailed information on the number, nature, location, and 
disposition of racial profiling complaints.
  These settlements inspired a June 1999 executive order by President 
Clinton, Congressional hearings and legislation that has been enacted 
in over half of the 50 States.
  It was a landmark case. It pointed out the right way in which we 
should conduct oversight and the right way to end racial profiling. 
Judge Wilkins took the leadership and did something that many of us 
would have had a hard time doing, putting himself forward in order to 
do what was right.
  As my colleagues know, I have introduced S. 1038, the End Racial 
Profiling Act--ERPA--which would codify many of the practices now used 
by the Maryland State Police to root out the use of racial profiling by 
law enforcement. The Judiciary Committee held a hearing on ending the 
use of racial profiling last year, and I am hopeful that with the 
broader discussion on racial profiling generated by the tragic Trayvon 
Martin case that we can come together and move forward on this 
legislation.
  Judge Wilkins played a key role in the passage of the federal statute 
establishing the National Museum of African American History and 
Culture Plan for Action Presidential Commission, and he served as the 
Chairman of the Site and Building Committee of that Presidential 
Commission. The work of the Presidential Commission led to the passage 
of Public Law No. 108-184, which authorized the creation of the 
National Museum of African American History and Culture. This museum 
will be the newest addition to the Smithsonian, and it is scheduled to 
open in 2015 between the National Museum of American History and the 
Washington Monument on the National Mall.
  Judge Wilkins continues his pro bono work to this day. He currently 
serves as the Court liaison to the Standing Committee on Pro Bono Legal 
Services of the Judicial Conference of the D.C. Circuit. He is 
committed to public service and equal justice under the law.
  As a U.S. district judge for the District of Columbia since 2011, 
Judge Wilkins has presided over hundreds of civil

[[Page 17239]]

and criminal cases, including both jury and bench trials. Judge Wilkins 
already sits on a Federal bench which hears an unusual number of cases 
of national importance to the Federal Government, including complex 
election law, voting rights, environmental, securities, and 
administrative law cases. Indeed, Judge Wilkins has been nominated for 
the appellate court that would directly hear appeals from the court on 
which he currently sits. He understands the responsibilities of the 
court that he has been nominated to by President Obama.
  The American Bar Association gave Judge Wilkins a rating of 
unanimously well qualified to serve as a Federal appellate judge, which 
is the highest possible rating from the nonpartisan peer review.
  The U.S. Court of Appeals for the District of Columbia Circuit is 
also referred to as the Nation's second-highest court. The Supreme 
Court only accepts a handful of cases each year, so the D.C. Circuit 
often has the last word and proclaims the final law of the land in a 
range of critical areas of the law. Only 8 of the 11 seats of the court 
authorized by the Congress are filled, resulting in a higher than 25-
percent vacancy rate on this critical court.
  This court handles unusually complex cases in the area of 
administrative law, including revealing decisions and rulemaking of 
many Federal agencies in policy areas such as environmental, labor, and 
financial regulations. Nationally, only about 15 percent of the appeals 
are administrative in nature. In the D.C. Circuit, that figure is 43 
percent. They have a much larger caseload of complex cases. The court 
also hears a variety of sensitive terrorism cases involving complicated 
issues such as enemy combatants and detention policies.
  I have a quote from former Chief Judge Henry Edwards who said:

       [R]eview of large, multiparty, difficult administrative 
     appeals is the staple of judicial work in the D.C. Circuit. 
     This alone distinguishes the work of the D.C. Circuit from 
     the work of other circuits. It also explains why it is 
     impossible to compare the work of the D.C. Circuit with other 
     circuits by simply referring to raw data on case filings.

  Chief Justice Roberts noted that ``about two-thirds of the cases 
before the D.C. Circuit involved the Federal Government in some civil 
capacity, while that figure is less than twenty-five percent 
nationwide.'' He also described the ``D.C. Circuit's unique character, 
as a court with special responsibility to review legal challenges to 
the conduct of the national government.''
  We have a person who is imminently qualified for this position in 
Judge Wilkins. We have a need to fill these vacancies. The Senate 
should carry out its responsibility and conduct an up-or-down vote on 
Judge Wilkins' nomination. We are going to have a chance to do that in 
a few moments.
  Let me remind my colleagues that the Senate unanimously confirmed 
Judge Wilkins in 2010 for his current position, and he has a 
distinguished lifelong record of public service.
  I ask the Senate and my colleagues to vote so we can move forward and 
get an up-or-down vote on this imminently qualified judge, and I hope 
my colleagues will support his confirmation.
  Mr. HATCH. The Senate today takes yet another unnecessary cloture 
vote on a nomination to the U.S. Court of Appeals for the D.C. Circuit, 
a court that needs no more judges. Applying the same standards that 
Democrats used to oppose Republican nominees to this court shows 
without a doubt that it needs no more judges today.
  In July 2006, Judiciary Committee Democrats--including four still 
serving on the committee today--wrote chairman Arlen Specter explaining 
two reasons for opposing more D.C. Circuit appointments. The caseload 
of the court had declined, Democrats wrote, and more pressing 
``judicial emergency'' vacancies had not been filled. Today, as we also 
debate nominees to the D.C. Circuit, Democrats will not only mention, 
let alone apply, the criteria they used in the past. But if we are 
going to have more than a totally political, completely partisan 
judicial confirmation process, I believe we should do just that.
  In 2006, Democrats opposed more D.C. Circuit appointments because 
written decisions per active judge had declined by 17 percent. Since 
2006, written decisions per active judge have declined by an even 
greater 27 percent. In 2006, Democrats opposed more D.C. Circuit 
appointments because total appeals had declined by 10 percent. Since 
2006, total appeals have declined by an even greater 18 percent. The 
D.C. Circuit's caseload not only continues to decline, but is declining 
faster than before.
  In 2006, Democrats opposed more D.C. Circuit appointments because 
there were 20 judicial emergency vacancies and there were nominees for 
only 60 percent of them. Since 2006, judicial emergency vacancies have 
nearly doubled and the percentage of those vacancies with nominees has 
declined to less than 50 percent.
  These are not my criteria. I did not pull these criteria out of the 
air this morning because they helped the political spin surrounding 
this cloture vote. After all, it takes only an agenda and a calculator 
to create a politically useful statistic. No, these are the very same 
criteria that Democrats used to oppose Republican nominees to this very 
same court. No Democrat has yet admitted that they were wrong to use 
these criteria in 2006 or explained why we should use different 
criteria today simply because the other political party controls the 
White House.
  Since these facts are so uncomfortable, Democrats simply ignore them 
and try a new tactic, claiming that the D.C. Circuit's caseload is at 
least not the lowest in the country. I really wish the truth mattered 
more around here, especially when it is so easy to identify. The 
Administrative Office of the U.S. Courts ranks the 12 circuits of the 
U.S. Court of Appeals on different measures of their caseload and have 
posted on its website the rankings for the past 17 years. Without 
exception, the D.C. Circuit has ranked last, 12th out of 12 circuits, 
in both appeals being filed and appeals being terminated.
  Some, including the Judiciary Committee chairman just last week, 
claim that the D.C. Circuit is busier than the Tenth Circuit, which 
includes my State of Utah. I have no idea how that is relevant to 
whether the D.C. Circuit needs more judges today. But even if that made 
sense, the claim is simply not true. The only caseload measure he now 
mentions is ``pending cases,'' which is least relevant because it is a 
snapshot rather than a measure of the flow of cases through the court. 
But here's what a brief look at the Administrative Office's database 
quickly shows. This year is the only year in nearly two decades when 
the Tenth Circuit ever had more pending cases than the D.C. Circuit.
  The Tenth and D.C. Circuits have been the same size for many years, 
and since 2008 the D.C. Circuit has had one fewer authorized judgeship. 
This year, the Tenth Circuit had 87 percent more new appeals, 150 
percent more written decisions per active judge, and 220 percent more 
appeals terminated on the merits. Rather than using an irrelevant 
criterion from a single year, as Democrats do, I looked at these 
relevant criteria over the last 20 years. The Tenth Circuit has always 
had a higher caseload than the D.C. Circuit and, if anything, the gulf 
between them has increased over time.
  Why are my Democratic colleagues trying so hard to ignore or distort 
the cold, hard facts? What is so crucial about appointing these 
particular nominees to this particular court at this particular time? 
The most obvious reason is also the most political. This court has 
jurisdiction over actions of the executive branch agencies that 
President Obama needs to pursue his political agenda. His go-it-alone 
strategy increasingly avoids Congress, the only branch directly elected 
by and representing the American people. He appears to think that the 
three branches are interchangeable, that the political ends justify the 
political means.
  The D.C. Circuit is evenly balanced today, with four Republican and 
four Democratic appointees. So President Obama sees this as his chance 
to stack the D.C. Circuit with judges he believes will approve his 
agenda.
  If we still believe in an independent judiciary, if we want to 
preserve at

[[Page 17240]]

least a little integrity and not lose all confidence of the American 
people in the confirmation process, then we should stop this partisan 
gambit. We should do what Democrats in 2006 did. We should use 
meaningful, objective criteria to conclude that the D.C. Circuit needs 
no more judges today and instead focus on confirming qualified nominees 
to courts that need them.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I listened to the words of my good friend 
from Maryland. He is absolutely right in what he said. It is a strange 
time. I have been here almost four decades, and I have experienced some 
dramatic changes in the Senate majorities and leadership styles going 
back and forth between both parties. But nothing at all has compared to 
the change that has occurred in the last 5 years.
  Since President Obama was sworn in as President of the United States, 
what has occurred here is something I have never seen with any other 
President, and I have been here since the time of President Ford. 
Senate Republicans have made it their priority to obstruct at every 
turn the consideration of nominations that he has put forward. The 
Republican leader has said that his main goal was to have the President 
fail. Confirmation votes that regularly occurred by consent, now 
require a lengthy cloture process. Bipartisan and home state support 
for a nominee no longer ensures a timely confirmation.
  Make no mistake, through this obstruction, Senate Republicans have 
crossed the line from use of the Senate rules to abuse of the Senate 
rules. It is the same kind of abuse that shut down our Federal 
Government recently and cost the taxpayers billions of dollars. One of 
the things that concerns me, as chairman of the Senate Judiciary 
Committee, is what it is doing to undermine, and eventually destroy, 
both the integrity and independence of our Federal judiciary.
  One of the great glories of our country's three-part government is 
the independence of the Federal Judiciary. But, over the last 5 years, 
Senate Republicans have dragged it into politics. This severely impacts 
the ability of our Federal justice system to serve the interests of the 
American people.
  If you are a litigant and need the protection of our Federal courts, 
you do not care whether a judge is a Republican or Democrat. You do not 
care whether they were nominated by a Republican or a Democratic 
President. All you expect--whether you are a plaintiff or defendant, 
State or respondent--is to be able to go into that courthouse and be 
treated fairly. But, if you go to that courthouse now, there is nobody 
there due to the 93 vacancies caused by the stonewalling on the other 
side of the aisle.
  The same Republicans who are stonewalling now once insisted that 
filibustering judicial nominees was unconstitutional. The Constitution 
has not changed but when a Democrat was elected to the White House, 
they reversed course and filibustered this President's very first 
judicial nominee. Can you imagine? Within a very short time after the 
President was sworn in, the very first person was filibustered. That 
was the precedent they started.
  Incidentally, that judicial nominee had the strong support of the 
most senior Republican then serving in the Senate. The most senior 
Republican Senator supported that nomination, but his leadership said: 
No, we have to filibuster and block the nomination because, after all, 
it was President Obama's nomination, not President Bush's nomination.
  This is the pattern Senate Republicans continued to follow, 
filibustering 34 of President Obama's judicial nominees. This is nearly 
twice as many nominees than required cloture during President Bush's 
two terms. Almost all of these nominees were, by any standard, 
noncontroversial, but it took a great deal of effort by the Senate 
Judiciary Committee members and by Majority Leader Reid to get to a 
simple up or down vote on those confirmations. Most of these nominees 
were supported by well-known names in the law, both Republicans and 
Democrats, but we still had to fight and get cloture to get them 
through.
  Most recently, Senate Republicans have decided to filibuster well-
qualified nominee after well-qualified nominee for the United States 
Court of Appeals for the D.C. Circuit. This court has three vacant 
seats.
  During the Bush Administration, the Senate confirmed President Bush's 
nominees to the 9th, 10th, and 11th seats. Then when there was again a 
vacancy in the 10th seat, and the Senate confirmed President Bush's 
second nominee for the 10th seat. But, now, when a new President has 
been elected--and I might say reelected by a solid majority--the Senate 
Republicans say: Oh, no, wait a minute. We needed those judges when 
there was a Republican President. We don't need them now that there is 
a Democrat President. The Senate Republican blockade of D.C. Circuit 
nominees is at an unprecedented level of obstruction. In my four 
decades here, I have never seen anything like what the Senate 
Republicans are doing--by either party. As Maine's former senior 
Senator Olympia Snowe recently said, ``When you have these back-to-back 
rejections of nominees, at some point it may be trying to reverse the 
results of the election.''
  I fear that the obstruction will continue tonight, when we will try 
to end the filibuster against Judge Robert Wilkins. Judge Wilkins was 
unanimously confirmed to the U.S. District Court for the District of 
Columbia less than three years ago. He has presided over hundreds of 
cases and issued significant decisions in various areas of the law, 
including in the fields of administrative and constitutional law. Prior 
to serving on the bench, he was a partner for nearly 10 years in 
private practice and served more than 10 years as a public defender in 
the District of Columbia.
  This is a man who under past Presidents and in past Senates would 
probably be confirmed by a voice vote after dozens of Senators of both 
parties stood on the floor to praise him. The difference today is that 
Judge Wilkins was nominated by President Obama, and suddenly Republican 
Senators are trying to block him.
  During his time at the Public Defender Service, Judge Wilkins served 
as the lead plaintiff in a racial profiling case, which arose out of an 
incident in which he and three family members were stopped and detained 
while returning from a funeral in Chicago. This lawsuit led to landmark 
settlements that required systematic statewide compilation and 
publication of highway traffic stop and search data by race.
  These settlements inspired an Executive order by President Clinton, 
legislation in the House and Senate, and legislation in at least 28 
States prohibiting racial profiling or requiring data collection. It 
was a landmark case. The distinguished Presiding Officer and I come 
from States where we hope we do not have racial profiling. But, many 
Senators here know there are cases of racial profiling. I am aware of 
that happening even to members of my own family. I believe this 
practice should be stopped.
  Despite the progress made in the past several decades, the struggle 
to diversify our Federal bench continues. If confirmed, Judge Wilkins 
would be only the sixth African American to have ever served on what is 
often considered the second most powerful court in our country, the 
D.C. Circuit.
  Judge Wilkins has earned the ABA's highest possible rating of 
unanimously well qualified. Most attorneys nominated to the federal 
courts by Republicans or Democrats wish they had Judge Wilkins' 
professional experience and qualifications. Judge Wilkins also has the 
support of the National Bar Association, the nation's largest 
professional association of African-American lawyers and judges, as 
well as several other prominent legal organizations. I ask unanimous 
consent to have printed in the Record a list of letters in support of 
Judge Wilkins.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      Letters in Support of the Nomination of Judge Robert Wilkins

       July 31, 2013--Diverse group of 97 organizations in support 
     of Judge Wilkins, and the other two D.C. Circuit nominees, 
     Patricia

[[Page 17241]]

     Millett and Nina Pillard. The organizations include National 
     Bar Association, National Conference of Women's Bar 
     Associations, Hispanic National Bar Association, American 
     Association for Justice, National Association of Consumer 
     Advocates, NAACP, and National Employment Lawyers 
     Association.
       August 28, 2013--Joseph C. Akers, Jr., Interim Executive 
     Director, on behalf of National Organization of Black Law 
     Enforcement Executives (NOBLE)
       September 10, 2013--Benjamin F. Wilson, Managing Principal, 
     Beveridge & Diamond, P.C. and John E. Page, SVP, Chief Legal 
     Officer, Golden State Foods Corp. and Immediate Past 
     President, National Bar Association on behalf of an ``ad hoc 
     group of African American AmLaw 100 Managing Partners and 
     Fortune 1000 General Counsel''
       September 10, 2013--Nancy Duff Campbell and Marcia D. 
     Greenberger, co-Presidents, on behalf of the National Women's 
     Law Center
       September 10, 2013--Doreen Hartwell, President, Las Vegas 
     Chapter of the National Bar Association
       September 11, 2013--The National Bar Association testimony 
     in support.
       September 18, 2013--William Martin, Washington Bar 
     Association
       September 27, 2013--Douglas Kendall, President, and Judith 
     Schaeffer, Vice President, Constitutional Accountability 
     Center
       October 1, 2013--National Bar Association
       October 1, 2013--Michael Madigan, Orrick, Herrington & 
     Sutcliffe LLP
       September 10, 2013 and October 2, 2013--Wade Henderson, 
     President & CEO and Nancy Zirkin, Executive Vice President on 
     behalf of The Leadership Conference on Civil and Human Rights

  Mr. LEAHY. Republicans said the D.C. Circuit should be operating at 
full strength when President Bush held office. What is the difference 
between President Obama and President Bush's nominees? If it made sense 
to be operating at full strength with a Republican President, shouldn't 
it be operating at full strength under a Democratic President?
  The Senate should consider Judge Wilkins based on his qualifications, 
and not hide behind some pretextual argument that most Americans can 
see through. As today's Washington Post editorial states, ``It's 
transparently self-serving of GOP lawmakers to oppose D.C. Circuit 
nominees only when it's a Democrat's turn to pick them.'' I ask 
unanimous consent to have this editorial printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Nov. 17, 2013]

          Judicial Nominees Face Unfair Hurdles in the Senate

                        (By the Editorial Board)

       Senate Republicans on Monday are likely to take a vote that 
     is unfair, unwise and bad for the functioning of the 
     government. Again.
       For the third time in three weeks, the Senate will consider 
     a presidential nominee to the powerful U.S. Court of Appeals 
     for the District of Columbia Circuit. The first two nominees, 
     Patricia Millett and Cornelia Pillard, failed to attract the 
     60 votes necessary to clear GOP filibusters. There's little 
     reason to think that dynamic will change for the third, Judge 
     Robert Wilkins.
       Senate Republicans are not assessing these nominees on 
     their merits, as each deserves. Rather, Republicans have made 
     them victims of a toxic and unresolvable ``debate'' about the 
     proper size of the D.C. Circuit. Republicans accuse President 
     Obama of attempting to tilt its ideological balance, which, 
     of course, he is. And they argue that the court isn't busy 
     enough to require its vacant seats to be filled. Democrats 
     insist the court still needs more active judges, and they 
     point out that Republicans attempted to fill the court during 
     the George W. Bush years, when the caseload wasn't much 
     different.
       But the question of whether the D.C. Circuit needs all 11 
     of its judicial slots doesn't need to be resolved to offer 
     the president's legitimate nominees a fair up-or-down vote, 
     and Republicans are wrong to use that as a pretext to block 
     them. It's transparently self-serving of GOP lawmakers to 
     oppose D.C. Circuit nominees only when it's a Democrat's turn 
     to pick them. If Republicans truly are concerned that the 
     court is too large, they should offer a plan to reduce its 
     size--in future presidencies. That would separate raw 
     partisan motivation from authentic concern about the state of 
     the court system, and it's the only sensible way to make 
     changes to its size amid sharp partisan contention. In the 
     meantime, Republicans should give the president's legitimate, 
     well-qualified nominees a fair hearing, instead of degrading 
     further the already-broken process of staffing the government 
     and the courts.
       If the ``debate'' about the D.C. Circuit's size should 
     doesn't end that way, Democrats might end it in another. Some 
     of them would like to unblock the road for the president's 
     nominees by forcing rules changes that would limit the 
     filibuster. Following the rejection of the two women and Mr. 
     Wilkins, who is African American, even some fairly even-
     keeled senators might be inclined to agree. That's a perilous 
     path for the chamber that both sides probably would regret 
     taking.
       Instead, adults in the GOP should finally get together with 
     Democrats and hammer out an understanding--the way previous 
     judicial nomination crises have been resolved.
  Mr. LEAHY. The halls are full of people talking about whether we are 
going to have a change in the cloture rule. I hope it does not come to 
that. But, make no mistake: the reason there is momentum toward 
considering a change in our rules is this kind of pettifoggery, delay 
for the sake of delay, and treating this President differently from 
past Presidents.
  If the Republican caucus continues to abuse the filibuster rules and 
obstruct these fine nominees without justification, then I believe this 
body must consider anew whether a rules change should be in order. As I 
stated above, that is not a change that I want to see happen but if 
Republican Senators are going to hold nominations hostage without 
consideration of their individual merit, drastic measures may be 
warranted.
  Earlier this year, nearly every single Senate Democrat pushed the 
Majority Leader for a rules change in the face of Republican 
obstruction. I was one of the few members of the majority who voiced 
concern about changing the Senate rules. I believe that if Republicans 
filibuster yet another well-qualified nominee to this court tonight, it 
will be a tipping point. Senate Republicans have blocked three well-
qualified women in a row from receiving a confirmation vote and now 
they are on the brink of filibustering the next nominee, Judge Robert 
Wilkins. I fear that after tonight the talk about changing the cloture 
rules for judicial nominations will no longer be just talk. There will 
be action. We cannot allow this unprecedented, wholesale obstruction to 
continue without undermining the Senate's role provided in the 
Constitution and without harming our independent Federal judiciary.
  I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. All time has expired.
  Under the previous order and pursuant to rule XXII, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Robert Leon Wilkins, of the District of Columbia, to be 
     United States Circuit Judge for the District of Columbia 
     Circuit.
         Harry Reid, Patrick J. Leahy, Tom Udall, Mark Begich, 
           Brian Schatz, Al Franken, Barbara Boxer, Richard J. 
           Durbin, Christopher A. Coons, Tammy Baldwin, Debbie 
           Stabenow, Benjamin L. Cardin, Sheldon Whitehouse, Patty 
           Murray, Barbara A. Mikulski, Kirsten E. Gillibrand, Tom 
           Harkin.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Robert Leon Wilkins, of the District of Columbia, to be 
United States Circuit Judge for the District of Columbia Circuit, shall 
be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. HATCH (when his name was called). ``Present.''
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich), the 
Senator from Louisiana (Ms. Landrieu), and the Senator from Virginia 
(Mr. Warner), are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Missouri (Mr. Blunt), the Senator from South Carolina (Mr. 
Graham), the Senator from Georgia (Mr. Isakson), the Senator from 
Florida (Mr. Rubio), and the Senator from Louisiana (Mr. Vitter).
  The yeas and nays resulted--yeas 53, nays 38, as follows:

[[Page 17242]]



                      [Rollcall Vote No. 235 Ex.]

                                YEAS--53

     Baldwin
     Baucus
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Coons
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warren
     Whitehouse
     Wyden

                                NAYS--38

     Alexander
     Ayotte
     Barrasso
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Flake
     Grassley
     Heller
     Hoeven
     Inhofe
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Moran
     Paul
     Portman
     Reid
     Risch
     Roberts
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Wicker

                        ANSWERED ``PRESENT'' --1

       
     Hatch
       

                             NOT VOTING--8

     Begich
     Blunt
     Graham
     Isakson
     Landrieu
     Rubio
     Vitter
     Warner
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
38. One Senator responded ``Present.'' Three-fifths of the Senators 
duly chosen and sworn not having voted in the affirmative, the motion 
is rejected.
  The majority leader.
  Mr. REID. Mr. President, I enter a motion to reconsider the vote by 
which cloture was not invoked on the Wilkins nomination.
  The PRESIDING OFFICER. The motion is entered.

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