[Congressional Record (Bound Edition), Volume 159 (2013), Part 13]
[Senate]
[Pages 18606-18613]
[From the U.S. Government Publishing Office, www.gpo.gov]




 NOMINATION OF BRIAN MORRIS TO BE UNITED STATES DISTRICT JUDGE FOR THE 
                          DISTRICT OF MONTANA

  The PRESIDING OFFICER. The clerk will report the nomination.
  The bill clerk read the nomination of Brian Morris, of Montana, to be 
United States District Judge for the District of Montana.
  The PRESIDING OFFICER. Pursuant to the provisions of S. Res. 15 of 
the 113th Congress, there will now be 2 hours of postcloture 
consideration of the nomination equally divided in the usual form.
  The majority leader.
  Mr. REID. Mr. President, it is my understanding there is 2 hours 
equally divided; is that right?
  The PRESIDING OFFICER. The leader is correct.
  Mr. REID. I yield back 59 minutes.
  The PRESIDING OFFICER. The time is yielded back.
  The Senator from Florida.


          Space Launch Liability Indemnification Extension Act

  Mr. NELSON. Mr. President, as in legislative session, I ask unanimous 
consent that the Senate proceed to the immediate consideration of H.R. 
3547, which is at the desk.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The bill clerk read as follows:

       A bill (H.R. 3547) to extend the application of certain 
     space launch liability provisions through 2014.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. NELSON. Mr. President, today, I am asking for unanimous consent 
to pass H.R. 3547, as amended, a bill to extend government liability, 
subject to appropriation, for certain third-party claims arising from 
commercial space launches. The bill supports the competitiveness of the 
United States commercial space industry.
  This industry, which grew in part out of the successes of NASA, is 
vital both to the economy and to national security. Our U.S. space 
companies offer us new opportunities to send astronauts into space on 
U.S.-built vehicles and to continue launching communications satellites 
and conducting important scientific research on the International Space 
Station.
  This bill helps to ensure the strength of the space industry by 
continuing to provide Federal launch liability protection from third-
party losses for commercial launches. Congress first established this 
indemnification regime in 1988 and has seen the need to extend the 
policy many times since then. It is important to note that it has never 
cost the United States a single dime.
  This indemnification helps domestic launch companies compete in the 
global launch market. Many international competitors enjoy similar 
protections in their various home nations.
  However, indemnification protection is set to expire on December 31st 
of this year. Without indemnification, each company would ``bet the 
company'' every time they launch.
  As chairman of the Science and Space Subcommittee, I have worked with 
other Senators to thoroughly consider this issue. In a hearing this 
May, we discussed indemnification in detail. It was clear that 
extending indemnification was necessary.
  This bill therefore extends the indemnification for 3 years, until 
2016, giving Congress the ability to continue to review this policy 
while providing the commercial space industry the stability it needs.
  I would like to especially thank Senator Thune and his committee 
staff for their work on this bill. I would also like to thank Senators 
Cruz, Feinstein, Heinrich, Kaine, Rubio, Thune, Mark Udall, Tom Udall, 
Warner, and Wicker, all of whom worked with me on this effort.
  Mr. NELSON. Mr. President, I ask unanimous consent that the Nelson 
amendment which is at the desk be agreed to; the bill, as amended, be 
read a third time, the title amendment be agreed to, and the motion to 
reconsider be considered made and laid upon the table with no 
intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 2544) was agreed to, as follows:

[[Page 18607]]



                (Purpose: In the nature of a substitute)

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. LAUNCH LIABILITY EXTENSION.

       Section 50915(f) of title 51, United States Code, is 
     amended by striking ``December 31, 2013'' and inserting 
     ``December 31, 2016''.

  The amendment was ordered to be engrossed and the bill to be read a 
third time.
  The bill was read the third time.
  The bill (H.R. 3547), as amended, was passed.
  The amendment (No. 2545) was agreed to, as follows:

                     (Purpose: To amend the title)

       Amend the title so as to read: ``A bill to extend 
     Government liability, subject to appropriation, for certain 
     third-party claims arising from commercial space launches.''.

  Mr. NELSON. Mr. President, what we have just passed is the 
indemnification bill on commercial space launches.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. NELSON. I thank the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. HOEVEN. Mr. President, I and my colleagues stand here holding the 
floor in defense of fair and free debate, and the longstanding 
traditions of the Senate that promote consensus.
  We are here working on nominations because the majority leader has 
determined that is the agenda for today. But there are important issues 
we need to move to: the Defense reauthorization bill, the Water 
Resources Development Act, the farm bill, the budget, and other vitally 
important legislation. We need to move to these bills and we need to 
deal with them in a bipartisan way. Instead, we continue to work on 
nominees. We are working on nominees without the discussion and the 
debate and the consideration and, most importantly, without that 
bipartisan consensus which has always been a hallmark of the Senate. 
Because of the unilateral change to the longstanding rules of the 
Senate, that consensus is no longer required for advice and consent; a 
simple partisan majority will do.
  I would use time today to talk about need for bipartisanship, 
bipartisanship in nominations, but also bipartisanship in the important 
legislation that we need to address for the good of our country, 
legislation such as the right kind of health care reform. I have 
provided real-life stories from citizens from my State about the impact 
that the Affordable Care Act, ObamaCare, is having on them and their 
lives and why we need to replace it with market-based reforms, a step-
by-step comprehensive approach that fosters choice and competition. We 
have put forward proposals to do that.
  I have also used time today to talk about other important issues that 
we need to advance on a bipartisan basis; for example, the farm bill. 
We need a 5-year farm bill. We are currently operating under an 
extension. That extension expires at the end of the year. We need to 
get a farm bill in place, and a farm bill is a great example of how we 
do things on a bipartisan basis, not only in the Senate but also in the 
House.
  I wish to talk about another subject that is vitally important to our 
country, to our economy, to job creation, and to national security, 
that also needs to be advanced and needs to be advanced in a bipartisan 
way, and that is energy.
  I want to provide a specific example; that is, the Keystone XL 
Pipeline. I know the Presiding Officer wishes to see that project 
approved. That is the point. This is a project that will create jobs, 
create economic activity, it will create greater energy security, it is 
something that we can work on with our closest friend and ally in the 
world, Canada. It is something that goes to national security so we are 
no longer dependent on the Middle East for oil, and it is something 
that is supported on a bipartisan basis and there is strong support 
from the American people.
  The polls show somewhere between 70 and 80 percent of the American 
public supports this project and wants to see it move forward.
  It has now been more than 5 years since the permit applications were 
submitted to the State Department for the Keystone XL Pipeline 
project--more than 5 years in the application process and still no 
decision--an exhaustive review process, including five environmental 
impact statements, showing no significant impact to the environment. 
The most recently issued draft statement was only last spring. The 
consent of every single State along the route of the pipeline is in 
place. Every single State on the route supports and approves the 
project, with the backing of a majority of Congress. Legislation to 
approve the project has passed in the House and we have passed it in 
the Senate only to have the President turn it aside.
  As I said a only minute ago, it has the support of the American 
people. More than 70 percent--in the most recent poll--of the American 
people support moving forward with this project. Despite all of this 
support, the Keystone XL Pipeline project is still awaiting decision 
from the President of the United States.
  The long wait for approval is troubling enough, but it represents a 
larger issue for our Nation and begs a bigger question for all of us 
who serve our States and the American people in this institution: How 
will America ever build an all-of-the-above energy policy if the 
President takes more than 5 years to approve only one piece of a 
comprehensive plan?
  The Presiding Officer has seen this issue before in his State when it 
comes to the Alaska pipeline, how for years and years it was worked on 
until it was finally approved. Once approved, not only is it a vitally 
important piece of infrastructure for the State of Alaska, but contrary 
to all the concerns that were raised in regard to the Alaska pipeline, 
such as the environmental concerns, it has proven to work and work very 
well.
  They addressed the concerns and the project was approved. The same is 
true for the Keystone XL Pipeline.
  To recount briefly, this $7 billion, 1,700-mile high-tech pipeline 
will carry oil not only from Alberta, Canada, to refineries in Oklahoma 
and the Texas Gulf Coast, but it will also carry growing quantities of 
sweet crude from the Bakken oil fields in North Dakota, my State, and 
also Montana--light, sweet, Bakken crude, the highest quality oil 
produced.
  Even by modest estimates it will create more than 40,000 jobs. There 
have been a lot of estimates out there, some much higher. But the State 
Department itself, the administration's own State Department has come 
out after more than 5 years of study and said that this project will 
create more than 40,000 jobs. At a time when unemployment is still 7 
percent, these are good jobs, jobs that put Americans back to work.
  It will create more than 40,000 jobs, boost the American economy, and 
raise much-needed revenues for States and the Federal Government. It is 
not raising revenues by raising taxes, it is raising revenues through 
economic growth. That is the way to do it--not higher taxes but through 
economic growth.
  Further, and perhaps most importantly, it will help put our country 
within striking range of a long-sought goal, a vitally important goal 
for our country, true energy security. For the first time in 
generations, the United States--with its friend and ally Canada--will 
have the capacity to produce more energy than we use, truly, North 
American energy independence, eliminating our reliance on oil from the 
Middle East, Venezuela, and other volatile parts of the world. This is 
something Americans very much want.
  When we see in the polls they support this project by more than 70 
percent, it is with a clear recognition of what are we doing getting 
oil from the Middle East when we should be getting it from ourselves in 
this country and from our closest friend and ally Canada. We absolutely 
can do it, we can do it to an extent that is beyond our needs, and we 
can do it in short order, easily within the next 5 years if we approve 
projects such as this one.
  Now we produce about 60 percent of our fuel domestically. We still 
import 40 percent, much of it from the Middle East, and other areas of 
the world that are hostile to our interests.
  The question is why would we want to import oil from an unstable 
region

[[Page 18608]]

of the world when we can import it and when we can work with our 
closest friend and ally Canada, as well as move it from parts of our 
country that produce that oil, such as my State and others, and 
transport it to our refineries.
  The 40 percent that we don't produce domestically has to come from 
someplace else. Why not from our closest friend and ally Canada. With a 
true all-of-the-above approach to energy development in this country, 
including projects such as the Keystone XL Pipeline project, I 
absolutely believe we can be energy independent within 5 years.
  The argument has been advanced that the oil sands will increase 
carbon emissions and that failing to build the Keystone XL Pipeline 
will somehow reduce emissions.
  Let us look at the facts. Let us look at this claim more closely. 
Today an ever increasing percentage of new recovery in the oil sands is 
being accomplished in situ. That means with technology that makes the 
oil sands carbon footprint comparable to conventional drilling.
  In fact, the oil sands industry has reduced greenhouse gas emissions 
per barrel of oil produced by an average of 26 percent since 1990 and 
with some facilities achieving reductions as high as 50 percent--a 50-
percent reduction in carbon emissions. Today heavy crude from the 
Middle East--and even from California--produces more carbon emissions 
over its life cycle than the Canadian oil sands.
  Also, we need to factor in that if the pipeline is not built from 
Alberta to the United States, a similar pipeline will be built to 
Canada's Pacific coast.
  What does that mean? That means from there the oil will be shipped on 
tankers across the Pacific Ocean, a much larger and more sensitive 
ecosystem than the Sandhills--which, of course, have been at issue in 
terms of the route of the pipeline. It will be shipped across the ocean 
to be refined in facilities in China with weaker environmental 
standards and more emissions than our refineries in the United States.
  The United States, moreover, will continue to import its oil from the 
Middle East, again on tankers so that again has to be transported 
across the ocean. Factor in the cost of trucking and railing the 
product to market overland, and the result, contrary to the claims of 
opponents, will be more emissions, more CO2 emissions, and a 
less secure distribution system without the Keystone XL Pipeline than 
we will have if it is built.
  In fact, the administration's own State Department has released three 
draft Environmental Impact Statements finding ``no significant 
impacts'' on the environment.
  Let me read that again. In fact, the administration's own State 
Department has released three draft Environmental Impact Statements 
finding ``no significant impacts'' on the environment.
  What does the administration do? They delay and ask for another 
Environmental Impact Statement.
  What is going on?
  In its latest analysis in March, the State Department concluded that 
``there would be no substantive change in global greenhouse gas 
emissions'' associated with the Keystone XL Pipeline.
  That raises another important point. The White House has said 
repeatedly they ``don't want to get ahead of the process,'' but the 
President effectively abandoned the process more than 2 years ago when 
he halted the project by executive action. Had he not, the State 
Department, in keeping with the usual process, would have issued a 
decision on the permit by December of 2011. That is according to a 
letter that was sent to me by Secretary Hillary Clinton, Secretary of 
State at that time, which she sent to me in August 2011.
  I wish to point out that this body, the Senate, as well as the House 
of Representatives, has embraced the Keystone XL project with 
bipartisan majorities. Congress has expressed support for the Keystone 
XL with two majority votes in the Senate and several bipartisan letters 
to the President. The American people have also expressed overwhelming 
support for the project, as I have stated.
  In a Harris poll released this summer, 82 percent of voting Americans 
voiced support for the Keystone XL Pipeline project. I want to 
emphasize that and say it again. In a Harris poll released this summer, 
82 percent of voting Americans voiced support for the Keystone XL 
Pipeline project. According to Harris, 9 in 10 Republicans and nearly 
80 percent of Democrats and independents believe the pipeline is in our 
national interest.
  In July, Senator Landrieu and I led a bipartisan group of our 
colleagues to introduce a concurrent resolution declaring the Keystone 
XL Pipeline project in the national interest of the United States and 
calling on President Obama to approve it.
  The resolution notes that every study conducted by the State 
Department, including the Department's draft Environmental Impact 
Statement issued in May, has found no significant impacts to the 
environment.
  This is the text of S. Con. Res. 21.

       Expressing the sense of Congress that construction of the 
     Keystone XL Pipeline and the Federal approvals required for 
     the construction of the Keystone XL Pipeline are in the 
     national interest of the United States.

                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2013

       Ms. LANDRIEU (for herself, Mr. Hoeven, Mr. Pryor, Mr. 
     Donnelly, Mr. Begich, Ms. Heitkamp, Mr. Thune, Mr. Risch, Mr. 
     Cornyn, Mr. Johanns and Mr. Barrasso) [a bipartisan group] 
     submitted the following concurrent resolution; which was 
     referred to the Committee on Energy and Natural Resources.

                         CONCURRENT RESOLUTION

       Expressing the sense of the Congress that construction of 
     the Keystone XL Pipeline and the Federal approval required 
     for the construction of the Keystone XL pipeline are in the 
     national interest of the United States.
       Whereas safe and responsible production, transportation, 
     and use of oil and petroleum products provide the foundation 
     of the energy economy of the United States, helping to secure 
     and advance the economic prosperity, national security, and 
     overall quality of life in the United States;
       Whereas the Keystone XL pipeline would provide short- and 
     long-term employment opportunities and related labor income 
     benefits, such as government revenues associated with taxes;
       Whereas the State of Nebraska has thoroughly reviewed and 
     approved the proposed Keystone XL pipeline reroute, 
     concluding that the concerns of Nebraskans have had a major 
     influence on the pipeline reroute and that the reroute will 
     have minimal environmental impacts;
       Whereas the Department of State and other Federal agencies 
     have conducted extensive studies and analysis over a long 
     period of time on the technical, environmental, social, and 
     economic impact of the proposed Keystone XL pipeline;
       Whereas assessments by the Department of State found that 
     the Keystone XL pipeline is ``not likely to impact the amount 
     of crude oil produced from the oil sands'' and that 
     ``approval or denial of the proposed Project is unlikely to 
     have a substantial impact on the rate of development in the 
     oil sands'';
       Whereas the Department of State found that the incremental 
     life cycle greenhouse gas emissions associated with the 
     Keystone XL project are estimated in the range of 0.07 to 
     0.83 million metric tons of carbon dioxide equivalents, with 
     the upper end of this range representing 12/1,000 of 1 
     percent of the 6,702,000,000 metric tons of carbon dioxide 
     emitted in the United States in 2011;
       Whereas after extensive evaluation of potential impact to 
     land and water resources along the 875-mile proposed route of 
     the Keystone XL pipeline, the Department of State found, 
     ``The analyses of potential impacts associated with 
     construction and normal operation of the proposed Project 
     suggest that there would be no significant impacts to most 
     resources along the proposed Project route (assuming Keystone 
     complies with all laws and required conditions and 
     measures).'';
       Whereas the Department of State found that ``[s]pills 
     associated with the proposed Project that enter the 
     environment are expected to be rare and relatively small'' 
     and that ``there is no evidence of increased corrosion or 
     other pipeline threat due to viscosity'' of diluted bitumen 
     oil that will be transported by the Keystone XL pipeline;
       Whereas, the National Research Council convened a special 
     expert panel to review the risk of transporting diluted 
     bitumen by pipeline and issued a report in June 2013 to the 
     Department of Transportation in which the National Research 
     Council found that existing literature indicates that 
     transportation of diluted bitumen proposes no increased risk 
     of pipeline failure;
       Whereas plans to incorporate 57 project-specific special 
     conditions relating to the design, construction, and 
     operations of the

[[Page 18609]]

     Keystone XL pipeline led the Department of State to find that 
     the pipeline will have ``a degree of safety over any other 
     typically constructed domestic pipeline''; and
       Whereas, the Department of State found that oil destined to 
     be shipped through the pipeline from the oil sands region of 
     Canada and oil shale deposits in the United States would 
     otherwise move by other modes of transportation if the 
     Keystone XL pipeline is not built: Now, therefore, be it
       Resolved by the Senate (the House of Representatives 
     concurring), That it is the sense of Congress that--
       (1) construction of the Keystone XL pipeline will promote 
     sound investment in the infrastructure of the United States;
       (2) construction of the Keystone XL pipeline will promote 
     energy security in North America and will generate an 
     increase in private sector jobs that will benefit both the 
     regions surrounding the Keystone XL pipeline and the United 
     States as a whole; and
       (3) completion of the Keystone XL pipeline is in the 
     national interest of the United States.

  I have worked toward approval of the Keystone XL Pipeline--first as 
the Governor of North Dakota and now as a Senator--because I believe it 
is just the kind of project that will grow our economy and create the 
jobs our country so desperately needs, and it will do so with good 
environmental stewardship. At the same time, it will reduce our 
dependence on the Middle East for oil, which is what the American 
people have sought for decades.
  The Keystone XL Pipeline project is long overdue. For the benefit of 
our economy, our environment, and our long-term energy security, this 
project needs to be approved and it needs to be approved without delay.
  As I say, we can do these things. We can do these things and so much 
more, but it takes a bipartisan effort. It takes bipartisanship. We 
have to find a way to tackle these tough issues for the benefit of the 
American people and we have to do it in a way that has always been the 
hallmark of this institution--the Senate--and that is on a bipartisan 
basis.
  Earlier today I read accounts I received from citizens of my State 
who have been impacted adversely by ObamaCare. ObamaCare is an example 
of what I am talking about, an example of something that was passed on 
a partisan basis rather than on a bipartisan basis. So when we look 
across this great country, it is very understandable why the public 
support is not there. This was a policy passed solely with votes from 
one side of the aisle, in the House and in the Senate. We need to pass 
legislation in a bipartisan way. We need policies for this country, 
particularly on these big issues, that can garner bipartisan support if 
we expect the American people to truly support the policies as well.
  I would like to read several more accounts, true stories, that I have 
received in my office from people from our State about the impact that 
ObamaCare is having on their lives. The first one comes from Crystal, 
ND. It is a frustrated senior, not eligible for Medicare, seeking ways 
to cut back to afford ObamaCare. This individual writes:

       Just who is this health care reform law helping? My 
     insurance broker, American Family, is no longer carrying 
     medical insurance--so they lose. The average American that 
     goes out and earns a paycheck--he loses. Doctors don't like 
     it, so how many new doctors will there be? I just got off the 
     phone with the insurance brokerage company that has taken 
     over my former broker's customers. I learned that if I sign 
     up before the end of the year, I can save by NOT having 
     maternity coverage (what a laugh!). But, after 2014, I HAVE 
     to have maternity coverage! Can you see all of us senior 
     citizens walking around pregnant? So, with the cheapest 
     coverage I WILL be paying $473 MORE per month than my current 
     coverage, and my premium will be $1,288.00 per month! That's 
     a 37% increase per month! Next year, the rate will increase 
     to cover maternity. And, if you have children under 18, you 
     HAVE to have dental, and maybe vision too. I already try to 
     conserve on our monthly expenses, have heat set to 55--and 
     when guests are here, I set it to 65. I turn lights off, 
     don't smoke, don't drink (even quit drinking pop). I don't 
     eat out, don't even go out to drive to get the mail every 
     day, and don't buy new clothes, and don't go to visit family 
     like I used to. What should I cut out of our monthly 
     expenses? Take weekly showers? Get the mail once a week? Eat 
     once a day? Hibernate? Get a third job? Cut out the 
     grandkids' events? So, ``affordable health care''. . . . I 
     wonder how many heart attacks there will be after Americans 
     open up their health insurance bill in 2014, and even more in 
     2015! Cause it will be a shocker.

  Here is another story from an independent North Dakotan in 
Minnewaukan who suggests seceding from the Union over ObamaCare.

       I would like you to know what the health care reform law is 
     doing for my family. The insurance company we have had since 
     1994 is no longer going to offer health insurance, starting 
     April 2014. When I called to get quotes to replace my current 
     health insurance policy, I learned I would have to pay $200 
     more for a plan with a deductible that is twice the amount 
     that I currently have. Then, when I eventually have to go on 
     an ObamaCare policy, I will have to pay for maternity, which 
     I haven't had for 17 years and have not needed. Plus, I will 
     have to pay for children's dental and vision, which my family 
     won't be able to use because my children are 18 and 20 years 
     old. The health reform insurance policy will cost me twice as 
     much as I am paying now. So, please tell me how this is going 
     to help me! The only thing this is doing is giving another 
     freebee to those who choose not to work. This is very 
     frustrating, and I am starting to believe that seceding from 
     this Union and making our country much better for the 
     residents of North Dakota. We certainly have enough of our 
     own resources to take care of ourselves. I hope you are 
     trying to change the health care reform bill.

  Here is one from a hardware store owner who is unable to grow his 
business due to ObamaCare.

       I just received my renewal from Blue Cross Blue Shield for 
     my 5 employees, and the premium for the same coverage went up 
     from $2,179.50 per month to $3,090.40 per month. I am a small 
     town hardware store owner. Where is this money to come from? 
     I am so frustrated by the lack of understanding that our 
     country's government officials have regarding the policies 
     they create. It appears we all need to go on welfare [to 
     survive]. Most people [who] work and generate the money are 
     feeling hopeless. I don't think you have a clue as to the 
     frustration that is out here. I was looking to expand and 
     grow my business, but the drain I believe ObamaCare will have 
     on the already strained economy will be much greater than in 
     the Great Depression.
       So, as a small business owner, why should I invest in the 
     future? So our U.S. Government can continue its ``business as 
     usual?'' I think not.

  I present these stories and others I presented earlier in the day, 
along with those from my colleagues, because they are real stories from 
real Americans across the country who are suffering because of 
ObamaCare. We have put forward the kind of market-based solutions to 
replace ObamaCare that empower people--empower them to choose their own 
health care insurance and their own health care provider--and we need 
to go to work to provide the right kind of health care reform. We need 
to do that on a bipartisan basis.
  I think that by presenting these stories, it is not just a case of 
Members of the Senate or Members of Congress saying: Hey, this is what 
I think is happening. These are real stories. These are people telling 
us what is happening to them in their lives and we need to take heed 
and we need to address the very real and very valid concerns they are 
raising and we can do it. We absolutely can do it.
  I come back to where I started my comments after our last vote. We 
are here today voting on nominations. Due to the change in the Senate 
rules by the majority party, advise and consent no longer requires 
participation or any votes whatsoever from the minority party. That 
creates a situation now where judges, other nominees can be approved 
solely by one party. We have seen what happens when one party and one 
party alone can confirm appointees or can pass laws such as ObamaCare. 
It doesn't work. It doesn't work for our country. That is why the 
Senate was set up to require bipartisanship, to require consensus so as 
we pass the important policies and laws that will help lift our country 
and move it forward, we have the broad base of support from both sides 
of the aisle across this great Nation. That is what is required to make 
things work.
  That is why it is incumbent on all of us in this institution to reach 
out and find ways to make sure we have that bipartisanship so we create 
the kind of policies that will truly move our country forward. That is 
what the American people have sent us here to do.
  I see my esteemed colleague from the great State of Utah is on the 
Senate floor and at this time I yield to him.
  The PRESIDING OFFICER. The Senator from Utah.

[[Page 18610]]


  Mr. HATCH. Mr. President, I have certainly enjoyed the remarks of the 
distinguished Senator from North Dakota. He has done a terrific job in 
the Senate and made a real difference, and I personally appreciate it 
very much.
  We all know we are here for one basic reason: I believe our friends 
on the other side believe that by creating this kind of a fuss and 
problem, they can get off of the issue of ObamaCare, which is a 
disaster, and everybody knows it, including them.
  The fact is that I think they have gone from one extreme debacle to 
another in their desecration of this body by getting rid of a rule that 
is absolutely critical to this body--a rule of protection to the 
minority.
  I can hardly wait for those on the other side of the aisle, who have 
never been in the minority, to get in the minority and realize what 
they have done is basically destroyed the thing which has made the 
Senate the greatest deliberative body in the world.
  The cloture rule--rule XXII--was put in place to allow the majority 
to end filibusters. In the early part of the last century they couldn't 
get anything done, so they came up with rule XXII so they could invoke 
cloture, end the debate, and get back to whatever the Senate decided 
was the appropriate business. It has worked amazingly well and it would 
continue to work amazingly well, except for the fact that our 
colleagues on the other side have made the Senate no better than the 
House of Representatives.
  The Senate was always supposed to be different from the House of 
Representatives. It was supposed to be the body that would be more 
deliberative. It was Washington who said to Jefferson that the Senate 
is the saucer which cools the tea. They were right. The Senate is the 
saucer which should cool the tea. It should cool debates around here. 
But now it is just whatever the majority wants, and they vote in 
unison. They vote in unison because they are supported in unison by a 
number of very well-heeled groups, especially including the unions, 
which Democrats are basically afraid of crossing. It is a pitiful 
shame.
  I would like to chat just a little bit about this filibuster because 
it is a time-honored instrument which both sides have used. But I think 
there have been gross misrepresentations of what the filibuster is by 
the leadership of the other side, and these gross misrepresentations 
should never have been spoken on the floor. I don't know how they keep 
a straight face when they do it.
  On November 21, 2013, the majority used a premeditative parliamentary 
gimmick to change more than two centuries of Senate confirmation 
practice. As a result, for the first time since 1806, the minority 
cannot extend debate on any nominations except for those that go to the 
Supreme Court. Democrats accomplished this on a purely party-line vote 
and by a maneuver designed to avoid scrutiny.
  It would be hard to imagine a crisis so grave, a conflict so 
intractable that the only option was to fundamentally alter the very 
nature of this institution and further politicize the very confirmation 
process. I am here to say that the crisis the majority said could only 
be solved that way never existed.
  The majority leader claimed on November 21 that this crisis was, as 
he put it, caused by ``unprecedented obstruction'' of nominations to 
both the judicial and the executive branches.
  More specifically, he said there had been 163 filibusters of judicial 
and executive branch nominations, half of them during the Obama 
administration.
  By the way, that is totally false and they know it. I don't know how 
they can stand on the floor and make these bald-faced assertions.
  The only solution to the problem, the leader said, was simply to ban 
nomination filibusters.
  I notice the majority leader made no attempt to either define the 
filibusters he was counting or to identify the nominations on his 
filibuster list. That was an odd omission because doing so would surely 
have proved his point. Wouldn't it? No.
  There was a very good reason the majority leader simply threw out a 
big number and did identify the filibusters he claimed justified 
rigging the confirmation process. If he had simply listed those 
filibusters, we all would have seen dozens and dozens of nominations 
the Senate had confirmed, many without opposition at all.
  Since I took my first oath of office on January 3, 1977, the Senate 
has confirmed more than 1,700 nominations to the U.S. district courts, 
the U.S. courts of appeal, and the U.S. Supreme Court, and they have 
defeated two--two--in all of that time the last 37 years. We confirmed 
78 percent by unanimous consent without any rollcall vote at all. Two-
thirds of the rollcall votes we did take were unanimous. Think about 
that. Where is the problem?
  No President gets every single appointment he or she wants, but every 
President gets the vast majority.
  During his first term, for example, President Obama was 30 percent 
behind his predecessor in nominations. They were sloppy in putting 
forth nominations. But he ended up only 10 percent behind in 
confirmations. That could only mean the Senate handled his judicial 
nominations efficiently.
  During his second term, so far the Senate has confirmed more than 
twice--twice--as many judicial nominees as it had by this point in 
President Bush's second term.
  The Congressional Research Service says the Senate is confirming 
President Obama's appeals court nominees faster than the Senate 
confirmed President Bush's. In fact, President Obama has already 
appointed one-quarter of the entire Federal judiciary.
  I can also comment on how executive branch nominations referred to 
the Finance Committee have been handled. Nearly 80 percent of the 
nominations sent to the committee during the 112th Congress have so far 
been confirmed.
  Looking at executive branch filibusters overall, the same Democratic 
leaders who last month voted to abolish nomination filibusters voted to 
filibuster President Bush's nominees to be Assistant Secretary of 
Defense and EPA Administrators and twice voted to filibuster his 
nominees to be a U.N. Ambassador.
  They must have thought very differently back then about whether the 
President deserves his team. We have heard a lot about that from 
current Democrats. Their actions then spoke more loudly than their 
words do today about whether they think all nominees do deserve an up-
or-down vote. Look at the past. Look at what they have done. It is 
hypocritical.
  However, the majority will not acknowledge those facts and others 
like them because those facts do not fit the spin they are putting on 
this.
  It is hard, after all, to claim an obstruction crisis when so many 
nominees are confirmed and are being confirmed. So the majority instead 
makes a claim about what they call filibusters because that sounds bad 
to most people, and most people will not know whether the claim is even 
true. Calling something a filibuster does not make it so.
  A filibuster occurs when the Senate cannot vote on passage of 
legislation or confirmation of a nomination because an attempt to end 
debate on it fails. That is why filibuster reform always focuses on 
making it easier to end debate.
  The filibuster rule XXII came about after the turn of the last 
century because they couldn't get anything done in the Senate and they 
needed a way of bringing things to cloture so they could vote. We are 
headed into the same kind of disaster without this important rule.
  It takes two steps to detect a filibuster--a cloture motion and a 
cloture vote. You can't have a filibuster without both. As we can see, 
a vast majority of what our leader has claimed are filibusters are not 
because they haven't had a cloture vote.
  A cloture motion is a request to end debate and a cloture vote 
answers that request. A filibuster occurs when a cloture vote fails and 
debate cannot be ended. That is the definition of a filibuster.
  Some people listening to this might already be wondering whether 
these details matter, whether the difference between a cloture motion 
and a cloture

[[Page 18611]]

vote or the definition of a filibuster are all that important after 
all. I am here today to say these details do matter because the truth 
matters.
  The truth matters when Senators claim there is a crisis that needs a 
solution when there isn't.
  The truth matters when the majority prohibits the very tool they used 
so successfully in the past against Republican nominees.
  The truth matters when the entire confirmation process is going to be 
rigged and the judiciary further politicized--such as the D.C. Circuit 
Court of Appeals.
  I have been on the Judiciary Committee 37 years. I chaired that 
committee. I was ranking on that committee. I can tell you never in the 
history of that committee has it been so brazenly ignored.
  The truth matters because the American people need to know what their 
Senators are doing.
  The truth was in short supply on November 21. The majority leader 
claimed 168 filibusters, but he was not counting filibusters at all. 
The majority leader was counting cloture motions, not filibusters. He 
had the habit of calling up a bill and almost immediately filing 
cloture as though there was a filibuster, when nobody intended to 
filibuster. Then, in prior years, he would fill the parliamentary tree 
so in the greatest deliberative body in the world we could not have 
amendments. The minority could not have amendments.
  There is a time to fill the tree, but it is only after there has been 
a full and fair debate and amendments have had their opportunity to be 
brought forward. They do it to cut off amendments--unless the majority 
leader approved of whatever the amendments were.
  I think it is nice to protect your fellow Senators on the majority 
side with legitimate ways of doing it, but this isn't one of them. That 
alone is causing a lot of discontent on our side because the majority 
leader was counting cloture motions, not filibusters, and claiming they 
were filibusters when they weren't. He was counting requests to end 
debate, not the answers to those requests.
  Most people probably do not know that the majority leader files 
nearly all cloture motions--as he did just a few days ago--by adding 10 
more to the list. So if the majority leader claims there are too many 
cloture motions filed on nominations, he has only himself to blame.
  Under President Obama, half of the cloture motions filed on 
nominations do not result in a cloture vote at all. The rest just 
vanish into thin air, obviously, because they never should have been 
filed in the first place. Yet that is a scheme used by the other side, 
and then they claim this side is being obstructionists.
  Two-thirds of the cloture votes that do occur on nominations pass. 
There has been no discussion of that by the other side. Two-thirds of 
them pass, preventing filibusters altogether.
  Here is the filibuster fraud: The majority leader has been using the 
cloture rule more effectively than in the past--or should I say more 
obnoxiously than in the past--to prevent filibusters of President 
Obama's nominations while telling us about unprecedented obstruction. 
The truth is exactly the opposite of what he has claimed and what other 
Democrats on the other side of the aisle have claimed.
  Perhaps the most astounding fact of all is that nearly 90 percent of 
Obama nominees to the executive or the judicial branch on whom cloture 
motions were filed have been confirmed. The majority told us that this 
was about obstruction, about how the minority was using the filibuster 
to prevent President Obama from appointing people. It is no wonder that 
the majority leader did not show the list of the nominations he claims 
have been filibustered. The claims are a fraud.
  The majority created this crisis and damaged this institution by 
claiming that ending debate is really a filibuster and that confirming 
nominations is really obstructing them. Up is down, left is right, and 
confirmations are filibusters.
  All of this is more than a little ironic since the Democrats were the 
ones who pioneered using the filibuster to defeat majority-supported 
judicial nominees. The first judicial nominee with clear majority 
support to be defeated by a filibuster was Miguel Estrada in 2003, one 
of the finest lawyers in the country. They didn't want him on the D.C. 
Circuit Court of Appeals because they knew getting on that court is a 
fast track to the U.S. Supreme Court. In fact, Democrats were so intent 
on keeping him off the D.C. Circuit that they filibustered Miguel 
Estrada, this Latino man, seven times--a record that stands to this 
day. I know. I was there. I was fighting for Miguel Estrada, as were 
all Republicans.
  As of November 21, when the majority said there was an unprecedented 
filibuster crisis, there had been 12 cloture votes on Obama judicial 
nominations and 6 of them had failed. In other words, there was no 
obstruction. At that same point in the Bush administration, there had 
been 26 cloture votes on judicial nominations, and 20 of them had 
failed. Democrats used the filibuster to defeat Republican nominees to 
the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit.
  Three-quarters of all votes for judicial nomination filibusters in 
American history have been cast by Democrats, and they have the gall to 
stand on this floor and suggest that Republicans are using the 
filibuster to stop nominees.
  The majority leader alone--at least before complaining of too many 
filibusters--voted no less than 26 times to filibuster Republican 
judicial nominees. As I said, the same Democratic leaders abolishing 
nomination filibusters today voted to filibuster President Bush's 
nominees to be Assistant Secretary of Defense and EPA Administrator and 
twice voted to filibuster his nominee to be United Nations Ambassador. 
I do not know what the majority understands the word ``unprecedented'' 
to mean, but this certainly is not it. This is why the truth matters.
  As of November 21, when the majority leader claimed that there had 
been 168 nominations filibusters, only 56 cloture votes on executive or 
judicial nominations had ever failed and only 17 of those filibustered 
nominees had not been confirmed. The crisis that the majority claimed 
turns out to be a myth, a tale for the fiction section of the library. 
This is why the truth matters.
  Let's not forget what the majority did on November 21. Rule XXII, the 
one that provides a way to end debate, is a written rule, a time-
honored rule. It says what it says, and it says that ending debate on 
any matter before the Senate, with the exception of rules changes, 
requires three-fifths of all Senators. It said that on November 21, and 
it says that today. The technical term for what the majority leader did 
that day was to raise a point of order, but in practical terms, the 
majority leader asked the Presiding Officer to say that three-fifths 
actually means a majority vote. He might just as well have asked the 
Presiding Officer to say that Christmas is on December 29 or that the 
Nation's Capital is in Salt Lake City, UT. The Presiding Officer stated 
the obvious, that three-fifths means three-fifths, because that is what 
the rule says. That is what the Presiding Officer, advised by the 
Parliamentarian of the Senate, said--three fifths means what it says: 
three-fifths. That is what the rule says.
  By a purely party-line vote, the majority said otherwise--that three-
fifths is actually a majority--by overruling their own colleague in the 
Chair. This sounds absurd because it is. Now we are forced to act as if 
we cannot read, to suspend the most basic ability to understand the 
English language and set aside our common sense. We are forced to 
pretend that the rules of this body say what they do not mean and mean 
what they do not say. This, frankly, reminds me of ``The Wizard of 
Oz,'' where Dorothy and her friends were before the image of what they 
thought was the great and powerful Oz. Her dog Toto pulls on the 
curtain to reveal a little man frantically operating dials and buttons 
and speaking into a microphone. The image commands: ``Pay no attention 
to that man behind the curtain.''
  On November 21 the majority told each of us to pay no attention to 
the

[[Page 18612]]

three-fifths in the cloture rule. That was quite a trick. The real 
question was why the majority would concoct such a fraud in order to 
rig the confirmation process. What could be so important that the 
majority would go through such contortions, peddle such myths, and play 
such word games? It certainly was not to solve a filibuster crisis, 
that is for sure. No, it was for a much more base political reason.
  The President and the majority here in the Senate deliberately set up 
this political confrontation in order to implement a political agenda 
that could not get through Congress. That agenda requires actions and 
decisions by the two groups of Federal officials who are not directly 
accountable to the American people: bureaucrats in the executive branch 
and judges in the judicial branch.
  The President appoints those two categories of officials but only 
with the consent of the Senate. For more than 200 years the process of 
deciding whether to give that consent included the right of the 
minority to slow things down and, yes, even block the most 
controversial nominees.
  I have given you the numbers. Only 17 executive or judicial nominees 
who were filibustered were not eventually confirmed. But the majority 
wants it all. They want a clear path to stacking the executive branch 
with officials who will issue the rules and stacking the judicial 
branch with judges who will approve those rules.
  The D.C. Circuit Court of Appeals is a perfect illustration of where 
much of the regulations are evaluated by the courts, and they want them 
decided in favor of President Obama. They want the courts to legislate 
from the bench that which they could never get through the Senate or 
the House of Representatives. This is a power grab--nothing more, 
nothing less. It appears that the ends justified the means, that short-
term political gains justified long-term institutional damage.
  I urge my colleagues, from the freshmen to the senior Members, to 
take some guidance from our own predecessors. Senator Mike Mansfield, a 
leading Democrat, majority leader in the Senate, had served in the 
minority and later became majority leader. In 1975, when Senators also 
proposed forcing a rules change by simple majority, he said that this 
tactic would ``destroy the very uniqueness of this body . . . and 
diminish the Senate as an institution of this Government.'' It would, 
he said, ``alter the concept of the Senate so drastically that I cannot 
under any circumstances find any justification for it.'' That was the 
Democratic leader in the Senate, a man of unquestionable integrity.
  As I have explained here today, the majority has certainly not 
provided any justification for doing away with the filibuster rule 
either. There is no filibuster crisis. I think I have made that case. 
There is only a desire by the majority to win every time, to have 
everything they want when and how they want it. Most of the executive 
and judicial branch nominations the majority claims were filibustered 
were actually confirmed. Even in this town, known famously for 
masterful spin, that will surely go down as legendary. The majority 
abolished nomination filibusters by claiming nominations that were 
confirmed were actually obstructed--when they were confirmed. This 
amounts to filibuster fraud. That is why we are here today, because the 
truth matters. The integrity of the Senate matters.
  I can only hope there is time for those two concepts to still 
prevail. What the Democrats have done here is not only extremely 
dangerous, it is outrageous. They have taken one of the things that 
really make the Senate the great body that it is and have desecrated 
it. They have done it because a number of the Democrats over here have 
never been in the minority. They do not realize how awful that rule-
change is. They do not realize that the filibuster is a rule of freedom 
that protects the minority and makes the Senate debate on these 
matters.
  I once said I would fight to my death for the filibuster rule because 
it is what makes the Senate different from the House of 
Representatives. The House of Representatives is the people's body. 
They can do anything once they get a rule and get 50 percent plus one 
of the votes--anything. It was structured that way. The Senate was 
structured another way. Our young new Senators on the other side don't 
seem to understand that.
  I have chatted with a number of more senior Senators who have been 
through being in the minority, who have been through some of the 
battles here. Let me tell you, they are as concerned as I am that this 
body is totally damaged by this breaking of the rules, destroying the 
rules for purely partisan purposes. They can talk about how they just 
want the Senate to work all they want to. The Senate is never going to 
work as well without this rule. The minority will never be protected as 
well without this rule.
  I have to say that I hope we can get this rule put back in place. 
Even though it is a disadvantage to Republicans right now because they 
now have three more liberal judges on the D.C. Circuit Court of 
Appeals, which was divided four to four, Republicans appointees to 
Democrat appointees--four to four. Now they stack it, the most 
important court in the country as far as regulatory affairs are 
concerned and administrative law is concerned, so they can pass through 
that court the Obama administration's regulatory measures and desires 
without having to face real debate.
  There was a reason why the Founding Fathers created the three 
separate governmental powers, because each of those powers is to 
protect our country. They are making it so that regulatory matters, 
administrative matters, and so forth there is really only one-sixth who 
are Republicans.


                          Order for Correction

  Mr. HATCH. Mr. President, there was an incorrect reference to the 
House bill number in a consent agreement earlier today with respect to 
the Fallen Firefighters Assistance Tax Clarification Act. I ask 
unanimous consent that the previous order be modified to reflect the 
correct House bill number--H.R. 3458.
  The PRESIDING OFFICER. Is there objection? The Chair hears none, and 
it is so ordered.
  Mr. HATCH. I yield the floor.
  The PRESIDING OFFICER. All postcloture time has expired.
  The question is, Will the Senate advise and consent to the nomination 
of Brian Morris, of Montana, to be United States District Judge for the 
District of Montana? On this question the yeas and nays have been 
ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Mississippi (Mr. Blunt), the Senator from South Carolina 
(Mr. Graham), the Senator from Oklahoma (Mr. Inhofe), the Senator from 
Illinois (Mr. Kirk), and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 75, nays 20, as follows:

                      [Rollcall Vote No. 266 Ex.]

                                YEAS--75

     Ayotte
     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Coats
     Coburn
     Cochran
     Collins
     Coons
     Cruz
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Rubio
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--20

     Alexander
     Barrasso
     Boozman
     Chambliss
     Corker
     Cornyn
     Crapo
     Enzi
     Fischer
     Hoeven
     Isakson
     Johanns
     McConnell
     Paul
     Risch
     Roberts
     Scott
     Sessions
     Shelby
     Vitter

[[Page 18613]]



                             NOT VOTING--5

     Blunt
     Graham
     Inhofe
     Kirk
     McCain
  The nomination was confirmed.

                          ____________________