[Congressional Record (Bound Edition), Volume 159 (2013), Part 2]
[Senate]
[Pages 2169-2174]
[From the U.S. Government Publishing Office, www.gpo.gov]



NOMINATION OF KATHERINE POLK FAILLA TO BE UNITED STATES DISTRICT JUDGE 
                 FOR THE SOUTHERN DISTRICT OF NEW YORK

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations 
which the clerk will report.
  The legislative clerk read the nominations of Pamela Ki Mai Chen, of 
New York, to be United States District Judge for the Eastern District 
of New York, and Katherine Polk Failla, of New York, to be United 
States District Judge for the Southern District of New York.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes for debate equally divided in the usual form.
  Mr. LEAHY. Mr. President, last week, Congress failed to act to avoid 
indiscriminate across-the-board cuts from sequestration. These 
automatic cuts are in the tens of billions of dollars at a time when 
our economy is finally recovering but remains fragile. Among those who 
will have to endure these cuts are the overburdened Federal courts 
already suffering from longstanding vacancies that number almost

[[Page 2170]]

90 and have remained near or above 80 for almost 4 years. Budgetary 
cuts will mean more difficulty for the American people to get speedy 
justice from our Federal justice system.
  Two senior district judges, one appointed by President Reagan and one 
appointed by President Clinton, wrote last week in U.S. News and World 
Report that sequestration will ``devastate the judicial branch.'' They 
wrote: ``[C]ourts may need to close periodically, furlough employees, 
and cut security, thereby, delaying proceedings. These realities, 
combined with a reduction in supervision of persons on bond and 
convicted felons who are released from prison, compromise public 
safety.'' They conclude: ``[Our Federal courts provide access to 
justice, protect against abuses of power, and defend the Constitution. 
Failure to avert sequestration by March 1 undermines the ability of the 
Federal courts to fulfill this Constitutional mandate.'' I ask 
unanimous consent that this article be printed in the Record at the 
conclusion of my statement.
  As we hear these warnings from judges and other officials across our 
three branches of Government, I hope Senators understand that 
sequestration is bad for the courts, bad for the economy, and bad for 
the American people.
  Over the past 4 years, unprecedented obstruction by Senate 
Republicans has meant that all judicial nominees have become wrapped 
around the axle of partisanship. Senators from both sides of the aisle 
used to agree that Federal courts are supposed to be impartial and 
outside of politics. Yet, the actions of Senate Republicans over the 
last 4 years have undermined that principle of our constitutional 
system and hurt the integrity of the judiciary. I hear this from judges 
appointed by Republican Presidents and those appointed by Democratic 
Presidents. They say the unprecedented delays that nominees face 
politicize the courts and destroy the appearance of impartiality the 
Federal courts need. Supreme Court Justice Anthony Kennedy said last 
year that this extreme partisanship erodes the public's confidence in 
our courts and ``makes the judiciary look politicized when it is not, 
and it has to stop.''
  This obstruction has also contributed to keeping judicial vacancies 
at a damagingly high level for over 4 years. Persistent vacancies mean 
that fewer judges have to take on growing caseloads and make it harder 
for Americans to have access to speedy justice. There are today 89 
judicial vacancies across the country. By way of contrast, that is more 
than double the number of vacancies that existed at this point in the 
Bush administration.
  Senate Republicans chose to depart dramatically from well-established 
Senate practices from the moment President Obama took office in their 
efforts to delay and obstruct his judicial nominations.
  Until 2009, judicial nominees reported by the Judiciary Committee 
with bipartisan support were generally confirmed quickly. Until 2009, 
we observed regular order, we usually confirmed nominees promptly, and 
we cleared the Senate Executive Calendar before long recesses. Until 
2009, if a nominee was filibustered, it was almost always because of a 
substantive issue with the nominee's record. We know what has happened 
since 2009. The average district court nominee has been stalled 4.3 
times longer and the average circuit court nominee has been stalled 7.3 
times as long as it took to confirm them during the Bush 
administration. No other President's judicial nominees had to wait an 
average of over 100 days for a Senate vote after being reported by the 
Judiciary Committee.
  Some Republicans have ignored the facts I just cited even though they 
came from the nonpartisan Congressional Research Service (CRS). No 
invented statistic can change the fact that no president's nominees 
have ever waited as long for a vote as President Obama's.
  Senate Republicans have also claimed that President Bush had only 74 
percent of his nominees confirmed during his first term. This is also 
not true. President Bush nominated 231 men and women to serve as 
circuit and district judges; of them, 205 were confirmed. That is a 
confirmation rate of 89 percent. During President Obama's first term, 
only 173 district and circuit judges were confirmed, and a much lower 
percentage. Contrary to the claims of Senate Republicans the Senate has 
confirmed far fewer of President Obama's nominees and confirmed them at 
a significantly lower rate at the same points in his and President 
Bush's administrations. Senate Republicans talk about how much progress 
we made during the 112th Congress, when we confirmed 113 of President 
Obama's circuit and district nominees. But they ignore the fact that 19 
of those nominees could and should have been confirmed during the 111th 
Congress, and the fact that the 60 confirmations they allowed in the 
111th Congress was the lowest total for a new president in over 30 
years. They ignore the fact that in President Obama's first year in 
office they allowed just 12 of his circuit and district nominees to be 
confirmed, which, according to CRS, was the lowest one-year 
confirmation total since the Eisenhower administration when the Federal 
bench was barely one-third the size it is today. We have yet to make up 
the ground we lost during those first 2 years. Looking only at the 
confirmation total from last Congress while ignoring the historic 
obstruction of nominations that preceded it and the backlog that was 
created provides an incomplete and misleading picture.
  There can be no question about the effect of the unprecedented effort 
by Senate Republicans to obstruct President Obama's judicial 
nominations. Despite bipartisan calls to address longstanding judicial 
vacancies, the delays and obstruction of judicial confirmations have 
led to judicial vacancies to the remaining near or above 80 for almost 
4 years.
  During the vote on Judge Bacharach last week, some Senators defending 
the filibuster that blocked his confirmation for 7 months claimed that 
it was just the usual Senate practice in a presidential election year. 
During the filibuster last year of Judge Bacharach, there was not even 
a pretense of any substantive concern--Senate Republicans just decided 
to shut down the confirmation process and contorted the ``Thurmond 
Rule.'' But personal attacks on me, trying to repackage their own 
actions as if following the Thurmond Rule, do not change the facts. The 
fact is that in the past six presidential election years, Senate 
Democrats have never denied an up-or-down vote to a consensus circuit 
nominee; Senate Republicans cannot say that. Until last year, no 
circuit nominee with bipartisan Judiciary Committee support had ever 
been successfully filibustered. Senators claiming to be upholding 
Senate tradition while engaging in a filibuster that had no precedent 
in Senate history are not supported by the facts.
  After last year's filibuster, Judge Bacharach waited another 7 months 
before being allowed a vote on the merits. The outcome of that vote was 
that he was confirmed unanimously. It is hard to understand why 7 
months of delay were necessary. During the 7 months of additional 
unnecessary delay since his filibuster, Judge Bacharach could have been 
working on behalf of the people of Oklahoma, Kansas, New Mexico, 
Colorado, Wyoming, and Utah. Likewise there is no reason to delay 
further the confirmation of Caitlin Halligan, whose nomination to the 
D.C. Circuit was first reported nearly 2 years ago. Senate Republicans 
justified their filibuster of her nomination a year ago by arguing that 
the Circuit did not need another judge. Since that time, the number of 
vacancies on that court has doubled, and it is now more than one-third 
vacant. It needs Caitlin Halligan. She is the kind of moderate, 
superbly qualified nominee who should easily be able to be confirmed 
under any standard by which the Senate has considered judicial nominees 
in the past. It is well past time to walk back from the precipice 
marked by the wrongheaded filibuster of Ms. Halligan. The continued 
filibuster of her nomination does harm to the Senate, to the important 
D.C. Circuit, and to the American people.
  At a time when judicial vacancies have again risen to almost 90, we 
must

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do more for our overburdened courts. It is past time for the partisan 
obstruction to end. We have a long way to go. After 4 years of delay 
and obstruction, we remain far behind the pace of confirmations we set 
during President Bush's administration, and there remain far too many 
judicial vacancies that make it harder for Americans to have their day 
in court. During President Bush's entire second term, the 4 years from 
2004 through 2008, vacancies never exceeded 60. Since President Obama's 
first full month in office, and as far into the future as we can see, 
there have never been fewer than 60 vacancies, and for much of that 
time many, many more. The Senate must do much more to fill these 
vacancies and make real progress.
  Senate Republicans claim that we cannot do more because President 
Obama has not made a sufficient number of nominations. But it is Senate 
Republicans themselves, and their unwillingness to work with a 
President who has reached out to them to submit recommendations and to 
work with him, that has delayed many nominations.
  Unlike his predecessor, President Obama has worked hard to solicit 
recommendations from home State Senators, including those from the 
other party. This President has consistently selected qualified, 
mainstream nominees. For the judicial vacancies in States with 2 
Republican Senators, just 11 percent have a nominee. I urge Senate 
Republicans to do a better job providing consensus recommendations and 
fulfilling their own constitutional responsibility to ``advise'' the 
President on nominations and work with President Obama to fill these 
vacancies.
  The Senate today will finally vote on the nominations of Pamela Chen 
and Katherine Failla. Both nominees should have been confirmed last 
year. Pamela Chen is nominated to fill a judicial emergency vacancy on 
the U.S. District Court for the Eastern District of New York. She has 
worked as an Assistant U.S. Attorney for the district to which has now 
been nominated to be a judge for all but one of the last 14 years, 
rising from a line prosecutor to serve as chief of Civil Rights 
Litigation, deputy chief of the Public Integrity Section, and chief of 
the Civil Rights Section, Criminal Division. Between January and April 
2008, she served as the deputy commissioner for enforcement at the New 
York State Division of Human Rights. Previously, she spent 7 years as a 
trial attorney and senior trial attorney in the Special Litigation 
Section of the Civil Rights Division of the U.S. Department of Justice. 
She began her legal career as an associate in private practice. She 
earned her B.A., with honors, from the University of Michigan, and her 
J.D. from Georgetown University Law Center. When confirmed, Pamela Chen 
will be only the second female Chinese-American in U.S. history to 
serve on a Federal district court. She will also be one of only a few 
openly gay Federal judges.
  Katherine Failla is nominated to serve on the U.S. District Court for 
the Southern District of New York. Since 2000, she has served as an 
Assistant United States Attorney in that division, and since 2008 she 
has served as the chief of the office's Criminal Appeals Unit. Prior to 
her government service, she was an associate in the New York office of 
Morgan Lewis & Bockius LLP. In her career, she has tried 10 trials to 
verdict. After law school, she clerked for the Honorable Joseph E. 
Irenas, U.S. District Judge for the District of New Jersey. She 
graduated with honors from the College of William & Mary, and Harvard 
Law School.
  After today's votes, there are still another 15 judicial nominees 
pending before the Senate. All of these nominees had to be renominated 
after being returned at the end of the last Congress. It is unusual to 
have such a backlog so early in a Congress, and this is the result of 
Senate Republicans' refusal to allow votes on 11 nominees at the end of 
last year, almost all of whom had been reported with bipartisan 
support, and their refusal to consider another 4 who had hearings and 
could have been expedited. I urge that the Senate act quickly on these 
long-pending nominations. Further delay does not serve the interests of 
the American people. Hardworking Americans deserve better.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                            [Feb. 27, 2013]

                Sequestration Threatens American Justice

              (By Charles N. Clevert, Joseph H. Rodriguez)

       As senior U.S. district judges, we urge members of the 
     House and Senate to act by March 1 to halt sequestration--
     looming, indiscriminate, 5.1 percent budget cuts for the 
     nation's federal courts. Crippling across-the-board budget 
     cuts would threaten constitutional rights, American justice, 
     and court security. Relatively little light has been shed on 
     the effects that these budget cuts would have on our federal 
     court system.
       These cuts would devastate the judicial branch, which 
     receives a mere two 10ths of 1 percent of the federal budget. 
     Federal courts operate on a lean budget and have embraced 
     cost containment by measures including staff reduction below 
     authorized levels. Thus, we urge the House and Senate to act 
     quickly and reach a budget agreement that prevents 
     sequestration and all its attendant harms.
       Lawmakers, businesses, and citizens alike must recognize 
     that budget sequestration imperils fundamental constitutional 
     rights and courts that protect those rights. The right to be 
     heard, the right to a speedy and public trial, and the right 
     to effective assistance of counsel in criminal cases are 
     cornerstones of our democracy. Sequestration could dissuade 
     attorneys from accepting appointments to represent indigent 
     defendants because of inadequate funding. Moreover, courts 
     may need to close periodically, furlough employees, and cut 
     security, thereby, delaying proceedings. These realities, 
     combined with a reduction in supervision of persons on bond 
     and convicted felons who are released from prison, compromise 
     public safety. Additionally, offenders with mental health 
     needs or drug and alcohol abuse problems would receive 
     inadequate monitoring and substandard treatment.
       Access to justice is not a luxury. If budget cuts slam 
     courthouse doors and postpone trials, some criminal cases may 
     need to be dismissed. Therefore, trust and confidence in our 
     federal courts would be at risk. Additionally, limited funds 
     needed to pay citizen jurors and the priority that must be 
     given to criminal proceedings could delay civil cases as 
     well. At the same time, budget related delays would prevent 
     bankruptcy courts from functioning normally in providing 
     relief to struggling debtors and ailing businesses seeking 
     reorganization. These individuals, businesses, and employees 
     would be harmed and economic recovery will be slowed.
       Cuts to courthouse security personnel and programs may be 
     as high as 30 percent. These cuts would compromise the safety 
     of all who visit or work in federal courthouses, including 
     witnesses, jurors, and judges. Recent tragic shootings at or 
     near courthouses in Delaware and South Carolina underscore 
     that concerns about courthouse safety are not theoretical 
     matters; cuts to funding for courthouse safety will only 
     deepen these concerns.

  America's courts are the final line of protection for the legal 
rights of all. They provide access to justice, protect against abuses 
of power, and defend the Constitution. Failure to avert sequestration 
by March 1 undermines the ability of the federal courts to fulfill this 
Constitutional mandate.
  Mr. LEAHY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Leahy, Ms. Collins, Mrs. Gillibrand and Mr. Kirk 
pertaining to the introduction of S. 443 are printed in today's Record 
under ``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. LEAHY. Mr. President, I reserve the remainder of my time.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Halligan Nomination

  Mr. SESSIONS. Mr. President, I rise to express my opposition to the 
nomination of Caitlin Halligan to be a judge for the U.S. Circuit Court 
of Appeals for the D.C. Circuit. That is an important court, one of the 
most important

[[Page 2172]]

courts, one step below the Supreme Court.
  I would note that the Senate has already once rejected proceeding 
with consideration of this nomination and, in my opinion, for good 
reason. We do not do that lightly. We should not do that lightly. But 
it is an important question, and nominees do have to clear the Senate, 
and the Senate is not a rubber stamp.
  Ms. Halligan has a well-documented record of advocating extreme 
positions on constitutional issues, pushing legal arguments beyond what 
I think is reasonable, including in cases involving Second Amendment 
gun rights, abortion, the death penalty, and others.
  But one of the most troubling of her views pertains to the war on 
terror and the detention of enemy combatants. This is alarming not only 
because the arguments she has advanced in this regard are contrary to 
well-settled law, but because the court she seeks to join the D.C. 
Circuit has a critical role in national security matters, including 
deciding habeas petitions of terrorist detainees.
  As a member of the Association of the Bar of the City of New York's 
Committee on the Federal Courts, she joined a 2004 report, the self-
described purpose of which was specifically to ``address, in 
particular, the role the federal courts should play in striking [the] 
balance [between, in this case, national security and civil liberties 
concerns] with respect to the detention and trial of suspected 
terrorists or their accomplices designated as `enemy combatants' by the 
executive branch.''
  The report comes to the untenable conclusion that the congressional 
Authorization for Use of Military Force does not authorize the 
indefinite detention of enemy combatants.
  These are prisoners of war. Not only did the Supreme Court hold that 
it does, in fact, authorize indefinite detention in Hamdi v. Rumsfeld, 
but the Obama administration has argued for a broad construction of 
that authority itself. And, in a series of rulings joined by judges 
across the ideological spectrum, the D.C. Circuit has adopted, itself, 
that broad definition.
  The report also adopts--this is the bar association report. And I 
have to say, lawyers and bar association committees, they sign on 
reports dealing with the national security of the United States of 
America. They sign on reports dealing with how prisoners of war are to 
be determined and handled. At a time of national crisis, when we are in 
a national debate about that, they should know what they are talking 
about, and this bar association did not.
  The report also adopts the unsupported view that the war on terrorism 
``seems closer to a law enforcement effort than to a military 
campaign.''
  But I would say to that, the Congress voted and declared it to be a 
military effort. Tell that to the soldiers in Afghanistan chasing down 
al-Qaida operatives, that it was not a war.
  The report goes on. But this was part of the attempt at the time to 
undermine President Bush's ability to effectively manage the war 
effort. The report argues vigorously against the use of military 
commissions--that is where you try prisoners of war for violations of 
the rules of war, in military commissions--and maintains that the 
preferred place to try them are Article III civilian courts, normal 
civilian courts, except in ``exceptional circumstances.''
  They say, of course, to try them in a civilian court would provide 
the terrorists--enemies of the United States, participating in a war 
against the United States--with all the same constitutional rights that 
a person who defrauded the IRS or robbed a bank would have. But it is a 
different situation. You do not give those kind of rights to people at 
war with the United States, whose goal is to destroy the United States 
and to replace the government. That has never been the position in our 
country, nor in any other nation in the world that I am aware of. But 
that is the position she signed on.
  While Obama surrogates and supporters during the campaign often 
attacked Bush and made these kinds of allegations, the Obama 
administration, after taking office, has been forced to abandon those 
positions. They are untenable.
  One of the report's flawed arguments of why you should try unlawful 
enemy combatants--that is people at war against the United States in 
Article III civilian courts is as follows: ``It seems self-evident that 
the same [constitutional] protections [afforded ordinary criminals] 
should presumptively extend to those individuals whom the government 
has seized and proposes to detain for an extended, and perhaps 
indefinite, period of time because they are suspected of having engaged 
in conduct intended to further terrorist aims, thus violating 
applicable criminal laws.''
  Well, applicable criminal laws were violated, but it was an attack on 
the United States, not a normal crime. And the Nation made a very clear 
decision on which I thought all of us were in agreement that we had 
moved from a time of criminal activity to a time of war, and we acted 
in that fashion. So there is nothing self-evident about the position in 
the report that an unlawful enemy combatant whose only connection with 
the United States is his acts of war against it should be afforded the 
constitutional due process rights of an American citizen who committed 
an crime.
  Andy McCarthy, a former longtime Department of Justice veteran 
prosecutor, who tried the Blind Sheik case, said this:

       The only thing the framers might have found more appalling 
     is the notion that the Constitution licenses lawfare--i.e., 
     that it permits the American people's courts (which, other 
     than the Supreme Court, are creatures of statute not required 
     by the Constitution) to be used by foreign enemies to put on 
     trial the armed forces of the American people over the manner 
     in which they conduct wartime combat operations that have 
     been authorized by the American people's representatives.

  I think Andy McCarthy is right about that. I think that is basically 
what happened. I do not dispute it is fully acceptable for lawyers to 
defend unpopular clients. However, it is curious to me that while this 
Nation has hundreds of thousands of fine lawyers and thousands of 
proven prosecutors, the ones who seem to have a leg up--I am saying 
this carefully because I have observed this now for 4 years. I think it 
is significant. The ones who seem to have a leg up in this 
administration's nomination process are those who have challenged the 
legal policies of the former President of the United States as he 
attempted to conduct a war to defend the United States against an enemy 
dedicated to its destruction.
  Time and time again, these are the people who have been nominated for 
high Department of Justice offices and to the courts. The lifetime 
appointment to which Ms. Halligan has been nominated demands 
independence and a commitment to the rule of law and not to a political 
agenda.
  At her hearing, she did attempt to distance herself from the report, 
variously claiming she had not seen it until just before the hearing 
and that she had not attended all the meetings at which the report was 
discussed. She admitted, however, that she could have requested that 
her name not be on the report, as did four other members of the 
committee, but she did not. She signed it.
  In fact, according to her own testimony, she never took any action to 
repudiate the report or its contents before her nomination or even 
before her hearing. The first time she expressed any disagreement with 
the report, it seems, was at her confirmation hearing. Some call that a 
confirmation conversion. A serious attorney would have taken swift 
action to either remove their name from the report or to repudiate it. 
No serious attorney would affix their name to a report on such 
important matters in a time of war without studying it carefully, 
surely.
  It can only be assumed the report represented her views on the role 
of a civilian Article III court with respect to detention and trial of 
enemy combatants. It would have done more for her credibility to own up 
to that fact, rather than paying lip service to what might be more 
helpful during the confirmation process.
  The report continues its irresponsible description of the al-Qaeda 
supporter and convicted terrorist Ali al-Marri as a ``civilian in this 
country legally,

[[Page 2173]]

[who] seems suspected of providing logistical support for al-Qaeda 
sleeper cells: presumably criminal activity, if proven, but not 
`combatant' activity under any likely definition of the term.'' Al-
Marri eventually pleaded guilty to providing material support to al-
Qaeda and was sentenced to eight years in federal prison. In his guilty 
plea, he admitted that he attended terrorist training camps in the 
years prior to the 9/11 terrorist attacks; that he was instructed by 
Khalid Sheikh Mohammed, the mastermind of 9/11, to enter the U.S. just 
prior to 9/11 and await further instruction from al-Qaeda; and that 
while here, he researched chemical weapons and communicated with al-
Qaeda members. Investigators also discovered that he had made several 
phone calls to Mustafa al-Hawasawi who had wired money to the 9/11 
hijackers.
  When al-Marri's case came before the Supreme Court, Ms. Halligan, as 
a private practitioner, donated her legal services pro bono to co-
author an amicus brief on his behalf. The brief argued the United 
States lacked the authority to detain al-Marri as an enemy combatant, 
and that the AUMF did not authorize his seizure and indefinite military 
detention, without criminal trial. At the hearing, Ms. Halligan 
claimed--unconvincingly in my view--that the brief did not represent 
her personal views. But the fact remains that she chose to donate her 
professional legal services to defend a radical Islamic terrorist 
instead of the millions of Americans who need legal representation, or 
victims of terrorism in this country and all over the world, or women 
in Afghanistan fighting for equal rights, or those suffering from 
religious persecution in Islamic countries. The fact that she would 
sign her name to the Bar report, and her decision to co-author and file 
an amicus brief in the al-Marri case, is a very serious matter. And 
those actions cast doubt on her testimony that she was not aware of the 
contents of the Bar report.
  Much of Ms. Halligan's testimony did not match up with her record as 
an attorney both in private practice and public service. During her 
testimony, she attempted to evade the activist views she spent her 
career advancing, claiming, for example, that she now embraces original 
intent as the preferred method of Constitutional interpretation. At the 
same time, however, she was forced to admit that, prior to her 
``confirmation conversion,'' she had never once espoused such views. 
That is not surprising, given her well-documented record over the 
course of many years of advocating for the restriction of Second 
Amendment rights, including in favor of liability for gun 
manufacturers, for same sex marriage, for limiting the death penalty, 
for back pay for unauthorized illegal alien workers, and for 
affirmative action. All positions utterly unsupportable by an original 
intent approach to constitutional interpretation.
  Her attempts to distance herself from her record were simply 
unconvincing. There is no question where she stands on these issues. 
She herself has said that the ``courts are the special friend of 
liberty . . . the dynamics of our rule of law enables enviable social 
progress and mobility.''
  Her testimony did nothing to convince me that her written record does 
not paint the accurate picture of what her tenure on the bench would 
look like if she were confirmed. We have judges who follow their oaths 
to serve under the Constitution and the laws of this country. They are 
never above it. They are never free to alter the meaning of words to 
advance a personal agenda.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. Mr. President, I ask unanimous consent for 1 additional 
minute.
  Mr. SCHUMER. Reserving the right to object, I have some remarks I 
would like to make before 5:30.
  I do not object.
  Mr. SESSIONS. I will try to not utilize the 30 seconds the Senator 
used in agreeing to this. But I would point out there are other 
different complaints that we have about the circumstances of this 
nomination. I do think it is an extraordinary circumstance. I take that 
decision seriously. There have not been many that I found that to have 
occurred.
  Therefore, I will oppose the motion for cloture and I urge my 
colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I thank my colleague from Alabama for taking only 30 
seconds because of the 30 seconds I took to explain to him. I have 
three parts to my little statement. I will speak briefly on each.
  First, I rise in support of the nominations of Katherine Failla for 
the Southern District of New York and Pam Chen for the Eastern 
District. I have enthusiastic support for both of them. They are superb 
nominees to the Federal bench. Let me talk a little bit about each.
  Similar to many proud New Yorkers, Chen was not born in New York 
City. But she is now a valid and valuable member, not just of the New 
York Bar but of our entire community. Chen was born in Chicago after 
her parents came here from China. She came by her zeal for public 
service honestly because her father worked for the IRS for over 30 
years, while her mother was a professor of political science.
  When I first met Chen, I do not think it took more than 5 minutes 
before she talked about how proud she was of her parents, how grateful 
for the sacrifices they made so she and her brother could excel in 
later life.
  She graduated from the University of Michigan and then Georgetown Law 
Center. As a young lawyer, she began as a litigator in private 
practice, and then began her illustrious career in public service by 
joining the Special Litigation Section of DOJ's Civil Rights Division.
  Fortunately for the people of New York, she came to the Office of the 
U.S. Attorney for the Eastern District of New York--which serves 
principally Brooklyn and Long Island--in 1998, and has been there ever 
since.
  At one of the premier U.S. Attorney's offices in the Nation, she rose 
to be chief of the civil rights litigation unit and later the civil 
rights section in that office.
  She has prosecuted all manner of public corruption, gang, narcotics, 
and terrorism cases.
  She is one of those highly intelligent, analytical individuals who 
was probably born to be a lawyer, and, once a lawyer, was almost 
certainly destined to be a judge.
  Born in Edison, NJ, she earned her B.A. from William & Mary, and her 
law degree from Harvard. After clerking for the Federal court in New 
Jersey, she practiced in New York City with the law firm of Morgan, 
Lewis & Bockius, and 6 years later joined the U.S. Attorney's office.
  She has now served as a prosecutor for 12 years. In her work as head 
of the criminal appeals section, she defends some of the most important 
criminal convictions in the Nation, including terrorism cases such as 
the East African bombing case against bin Laden and his associates, 
complex white-collar cases, and RICO cases.
  Her colleagues report to a person that her advice on legal arguments 
and matters of judgment is the most sought after in the whole * * *
  Everyone attests to the fact she is fair, decent, honest, and very 
smart. I wish to finally add that I look for three qualifications in a 
nominee: excellence, she clearly has that; moderation, she has that; 
and all else being present, diversity. Chen will be only the second 
female Chinese-American article III judge in U.S. history, making this 
day yet another step forward in our path to making the Judiciary 
reflect both the talent and depth of experience of our communities.
  Katherine Failla is currently U.S. attorney in charge of the 
important and prestigious Criminal Appeals Unit in the Southern 
District of New York. She is one of those highly intelligent, 
analytical individuals who was probably born to be a lawyer, and once a 
lawyer, was almost destined to be a judge.
  She has served as a prosecutor for 12 years. Her colleagues report to 
a person that her advice on legal arguments

[[Page 2174]]

and matters of judgment is the most sought after in the whole office. 
This is the Southern District of New York. It is an amazing office.
  She also came to her dedication to public service through a hard-
working family. This is evident through her siblings as well, a school 
teacher's aide and a submarine commander.
  I ask that my colleagues vote for both of them shortly.


                          Halligan Nomination

  I also wish to say a few words this evening about the President's 
longest standing nominee to any office, Caitlin Joan Halligan. The DC 
Circuit is currently one-third vacant; 4 of the 11 slots are without 
active judges. What some people call the second most important court in 
the country is firing only on two-thirds of its cylinders. Halligan is 
one of the President's nominees for two of these four slots. Her 
nomination has been pending for 23 months.
  Since her name has been sent to the Senate, she has not had an up-or-
down vote. She has never had an up-or-down vote despite the fact that 
her academic and professional credentials are superb: Princeton 
University, GW Law School, prestigious clerkships on the DC Circuit, 
including Patricia Wald, the first female member of the court, and then 
to Justice Steven Breyer.
  She has never had an up-or-down vote despite the fact that she has 
spent most of her career in public service as a prosecutor, first with 
the Office of the New York Attorney General, now as assistant district 
attorney who serves as the general counsel for the Manhattan DA's 
office.
  She has never had an up-or-down vote despite the fact that she would 
be only the sixth woman to serve on the court since its inception in 
1801. Two years ago, when her nomination was filibustered, many of my 
colleagues cited the DC Circuit's relatively low caseload for the 
reason the Senate did not need to confirm another judge. But now, 2 
years later, there are only seven judges hearing cases on the court. 
The caseload for judges has risen 21 percent since President Bush made 
his last nomination to the court in 2006.
  My colleagues know how difficult and time-consuming these cases are. 
I have great respect for my friend and colleague and the person I 
exercise with in the gym every morning, Jeff Sessions. But to say this 
is an extraordinary circumstance based on the smidgen of evidence he 
has mentioned--please, please, please.
  Let's hope there is not a concerted effort by the other side to keep 
this important DC circuit empty--unfilled. It is unfair and it is not 
right to this fine women and to the need to proceed with justice in 
these United States of America.
  I yield the floor and 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. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  THE PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Pamela Ki Mai Chen, of New York, to be 
United States District Judge for the Eastern District of New York?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President shall be immediately notified of the Senate's action.


              Vote on Nomination of Katherine Polk Failla

  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Katherine Polk Failla, of New York, to be 
United States District Judge for the Southern District of New York?
  Mr. WHITEHOUSE. 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 Ohio (Mr. Brown), the Senator from New Jersey (Mr. 
Lautenberg), the Senator from West Virginia (Mr. Rockefeller), and the 
Senator from Colorado (Mr. Udall) are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Indiana (Mr. Coats), the Senator from Alaska (Ms. 
Murkowski), the Senator from Kentucky (Mr. Paul), and the Senator from 
Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 91, nays 0, as follows:

                       [Rollcall Vote No. 28 Ex.]

                                YEAS--91

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Baucus
     Bennet
     Blumenthal
     Blunt
     Boozman
     Boxer
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cowan
     Crapo
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Fischer
     Flake
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murphy
     Murray
     Nelson
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rubio
     Sanders
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Toomey
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--9

     Begich
     Brown
     Coats
     Lautenberg
     Murkowski
     Paul
     Rockefeller
     Udall (CO)
     Vitter
  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.

                          ____________________