[Congressional Record (Bound Edition), Volume 159 (2013), Part 3] [Senate] [Pages 2922-2925] [From the U.S. Government Publishing Office, www.gpo.gov]EXECUTIVE SESSION ______ NOMINATION OF RICHARD GARY TARANTO TO BE UNITED STATES CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT ______ NOMINATION OF ANDREW PATRICK GORDON TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF NEVADA 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 Richard Gary Taranto, of Maryland, to be United States Circuit Judge for the Federal Circuit, and Andrew Patrick Gordon, of Nevada, to be United States District Judge for the District of Nevada. The PRESIDING OFFICER. Under the previous order, there will be 30 minutes for debate equally divided and controlled in the usual form. Mr. LEAHY. Mr. President, I ask unanimous consent that the time be divided in such a way that the vote occur at 5:30. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LEAHY. Last week, Senate Republicans were given an opportunity to end their partisan and wrongheaded filibuster of Caitlin Halligan to the D.C. Circuit. Instead, they voted against the Federal judiciary, the administration of justice, and the needs of the American people. The Republican filibuster has lasted for over 2 years, in which Senate Republicans have refused to vote up or down on this highly qualified woman to fill a needed judgeship on the D.C. Circuit. No one can honestly question whether she has the legal ability, judgment, character, ethics, and temperament to serve on the court. The smearing of her distinguished record of service is deeply disappointing. Narrow, special interest groups have misrepresented her as a partisan or ideological crusader. She is not. Senate Republicans attacked Caitlin Halligan's advocacy on behalf of her client, the State of New York, with which they disagree. It is wrong and dangerous to attribute the legal positions a lawyer takes when advocating [[Page 2923]] for a client with what that person would do as an impartial judge. That is wrong and not the American tradition. That is not what Republicans insisted was the standard for nominees of Republican Presidents. In a March 10 article entitled ``As Obama, Senate Collide, Courts Caught Short,'' The Boston Globe reported over the weekend about the stranglehold Senate Republicans have placed on nominations to fill vacancies on the D.C. Circuit. The Court is now more than one third vacant with 4 vacancies among its 11 authorized judgeships, in what the Globe noted is ``the worst vacancy rate in its history and higher than any other federal circuit court nationwide.'' The article further notes that the Republican filibuster of Caitlin Halligan is representative of what the Republicans have done to obstruct President Obama's nominees the last 4 years. It says: In what is a growing problem infecting the nation's federal courts--both small and large, from San Francisco to Allentown, Pa.--judges are taking far longer to gain approval from the Senate. It's the result of a decline in decorum among senators, the willingness of the Republican minority to use tactics that were previously off-limits, and an overall rise in partisanship. The result is that Washington gridlock is resulting in docket gridlock across the country, with courts not getting the judges they need as a result of dysfunction in the Senate. I agree and I hope that Senate Republicans will stop their obstruction of the President's judicial nominees. Similarly, in a March 8 article in the New York Times, author Carl Hulse noted that the changes made to filibusters earlier this year: . . . have done little so far this session to curb filibusters, as evidenced by the vote on Ms. Halligan and the politically charged obstacles raised to confirmation votes on Mr. Brennan and Chuck Hagel, a former Republican senator who found himself on the receiving end of a Republican filibuster before winning confirmation as secretary of defense. Senate Republicans continue to abuse the nominations process by refusing to give up-or-down votes to nominees. I ask unanimous consent to have this article printed in the Record at the conclusion of my statement. Also disconcerting were the comments and tweets by Republicans after their filibuster in which they gloated about payback. That, too, is wrong. It does our Nation and our Federal Judiciary no good when they place their desire to engage in tit-for-tat over the needs of the American people. I rejected that approach while moving to confirm 100 of President Bush's judicial nominees in just 17 months in 2001 and 2002. Indeed, the filibuster of the nomination of Miguel Estrada was different. It was to obtain access to information about his work and whether he acted ideologically as his supervisor at the Office of Solicitor General had alleged. Had we gotten access to those materials, there would have been a vote on the Estrada nomination. Republican Senators now demand access to all sorts of materials while filibustering for the first time in our history the Secretary of Defense and the Deputy Attorney General of the United States, as well as the nominee to head the CIA and judicial nominees. They cannot do that and still complain about the Estrada nomination. Nor was there any information missing in connection with the Halligan nomination. As the debate showed, the opposition was fictitious. Today the Senate will finally consider another circuit court nomination that has been needlessly stalled for 1 year. During the year that Richard Taranto's nomination has been pending, two more vacancies have opened up on the Federal Circuit. This judicial vacancy, now one of multiple vacancies on that court, has been left open for almost 3 years, for no good reason. There is simply no reason for the year-long delay of Richard Taranto. During the year since he was reported without controversy by the Judiciary Committee, I do not know of a single Senator who has come to the floor to express any reservations about this nomination on the merits. After nearly 4 years when judicial vacancies have remained near or above 80, hardworking Americans seeking justice deserve better. Today, the Senate will vote on the nomination of Richard Taranto to the Court of Appeals for the Federal Circuit. He is currently a name partner at the Washington D.C. law firm Farr & Taranto, where he has spent the majority of his professional career. He previously served as Assistant to the Solicitor General and as a law clerk for Justice Sandra Day O'Connor for the U.S. Supreme Court, Judge Robert Bork for the U.S. Court of Appeals for the D.C. Circuit, and Judge Abraham Sofaer on the U.S. District Court for the Southern District of New York. He is a distinguished litigator, who has filed nearly 230 Supreme Court briefs in his career, and who has argued before that court 19 times. He has also argued 20 cases before the Federal Circuit, the court to which he has been nominated. He was unanimously rated ``well qualified'' by the ABA Standing Committee on the Federal Judiciary, its highest rating. Richard Taranto was reported by the Judiciary Committee without controversy in March 2012 and, again, last month. The Senate will also be voting this evening on the nomination of Andrew Gordon to the U.S. District Court for the District of Nevada. He is currently a partner at the law firm McDonald Carano Wilson LLP in Las Vegas, Nevada where he has practiced since 1994. Andrew Gordon has the bipartisan support of his home State Senators and he was reported by the Judiciary Committee 1 month ago. There are two additional nominees currently being stalled in Committee that would fill vacancies on the Federal court in Nevada but Senator Heller is objecting to their nominations. After his obstruction of one of the nominees for more than a year, that nominee finally asked that her nomination be withdrawn. She was a very good nominee and the people of Nevada will be worse off for not having her serve on that court. These are only 2 of the 20 judicial nominations currently ready for Senate consideration and confirmation. Both of these nominees should have been considered and confirmed last year. All of the 20 nominees now ready for final action had to be renominated this year after being returned at the end of the last Congress. The Senate should act swiftly to let these nominees get to work on behalf of the American people. There being no objection, the material was ordered to be printed in the Record, as follows: [From the Caucus, The Politics and Government Blog, the New York Times, Mar. 8, 2013] Democrats Cry Foul Over Wednesday's Other Filibuster (By Carl Hulse) Senator Rand Paul may have staged a Senate-shaking filibuster Wednesday, but his was actually only the second most significant Republican filibuster of the day. In a vote just before Mr. Paul, the junior senator from Kentucky, tried to blockade the nomination of John Brennan as director of central intelligence over drone policy, the Senate failed to end debate on the nomination of Caitlin J. Halligan of New York to a seat on the federal appeals court for the District of Columbia. The filibuster of Ms. Halligan didn't blow up on Twitter the way Mr. Paul's impressive 12-hour stand did. But of the two, it was the one that could renew a feud over rules governing filibusters and how the Senate handles high-level judicial nominations--an issue that has torn the chamber for years. Democrats are already in discussions on how to respond to the Halligan filibuster. They believe Republicans are dead set against confirming qualified Obama administration nominees to the United States Court of Appeals for the District of Columbia Circuit. They accuse Republicans of exaggerating their objections to Ms. Halligan to justify a filibuster under a 2005 agreement that short-circuited the last partisan showdown over filling judicial vacancies. That deal, crafted by the famous Gang of 14, put its signatories on record as saying they would not block confirmation votes on appeals court judges without ``extraordinary circumstances'' as determined by each individual. While only members of the gang signed it, it became informal Senate policy and defused a crisis that had Republicans threatening to execute the ``nuclear option'' and bar filibusters against judicial nominees by a simple majority vote instead of with the 67 votes historically needed to change Senate rules. It also led to President George W. Bush winning three appointments to the appeals court often considered a feeder to the Supreme Court, giving conservatives an advantage on the influential panel, which hears [[Page 2924]] many federal-powers cases. In its current makeup, the court consists of four judges appointed by Republican presidents and three appointed by President Bill Clinton, with four vacancies--the most ever on that court. In filibustering Ms. Halligan, several Republicans cited extraordinary circumstances arising from her earlier work as the solicitor general for the State of New York, particularly on a case against gun manufacturers. ``Ms. Halligan advanced the novel legal theory that gun manufacturers, wholesalers and retailers contributed to a `public nuisance' of illegal handguns in the state,'' said Senator Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, accusing her of judicial activism. ``Therefore, she argued, gun manufacturers should be liable for the criminal conduct of third parties.'' Democrats cried foul. The real reason she was blocked, they say, is that Republicans do not want to see the balance of power on the D.C. appeals court shifted. They say that Ms. Halligan was acting in her official capacity representing the State of New York, not as a jurist, and that Republicans have abandoned the extraordinary circumstances test engineered by the Gang of 14. ``If you go back to that history of what occurred back then, there is a real question of whether they have broken the deal now,'' said Senator Tom Udall, Democrat of New Mexico. ``This is a key circuit for the country. What they are doing is not allowing these consensus candidate judges to get votes.'' Mr. Udall has been among a group of relatively newer members of the Senate clamoring for significant changes in the rules governing filibusters. One demand is that senators act more like Mr. Paul, and take the floor to make their case when they are trying to block a vote. In January, working to avoid a divisive fight, Senator Harry Reid, the Nevada Democrat and majority leader, and Senator Mitch McConnell of Kentucky, the Republican leader, struck a deal making some modest changes in filibuster rules. But those changes have done little so far this session to curb filibusters, as evidenced by the vote on Ms. Halligan and the politically charged obstacles raised to confirmation votes on Mr. Brennan and Chuck Hagel, a former Republican senator who found himself on the receiving end of a Republican filibuster before winning confirmation as secretary of defense. The filibuster is alive and well in the Senate and, as Mr. Paul showed, may even be enjoying resurgence as grand theater. Democrats say that despite what they see as clear provocation, they are in no hurry to change the new rules after just two months in place. They say they are more inclined to explore new ways to confront Republicans over the vacancies. Mr. Udall says one option might be for the president to make multiple nominations, in effect daring Republicans to find ways to cite extraordinary circumstances in multiple instances. ``Rather than putting just one up, we should put before the Senate all four and expose what is happening here,'' said Mr. Udall, who acknowledged that Senate Democrats would need White House cooperation. ``We need to design a strategy to counter the Republicans, and we are going to need the president,'' he said. The fight will take time to unfold. Democrats say they will wait to see how Republicans respond to future appeals court nominees. But a series of filibusters against what they view as acceptable nominees could quickly bring to a head the push for a change in Senate rules. Mr. GRASSLEY. Mr. President, I rise today in support of Richard Gary Taranto, nominated to be U.S. circuit judge for the Federal Circuit. Mr. Taranto's nomination was pending before the Senate last year. In accordance with Senate custom and practice, the nomination was placed on hold, along with other circuit Judge nominations, pending the outcome of the 2012 Presidential election. I also support the nomination of Andrew Patrick Gordon to be U.S. district judge for the District of Nevada. Mr. Gordon was nominated late last year, with his hearing held in December. Despite our continued cooperation with the President and Senate Democrats, we continue to hear unfounded criticism. For example, recently the White House posted on its Web site a statement ``The rising number of judicial vacancies is a direct result of unprecedented delays in the Senate confirmation process.'' The graphic went on to suggest that the President's nominees have to wait longer for confirmation than nominees of previous Presidents. It cites statistics that the President's nominees have to wait longer than nominees in prior administrations for floor consideration after being reported out of committee. There is no mention that in previous administrations there was a much longer wait for committee consideration. The end result, from nomination to confirmation, is about the same for Obama nominees as it was for nominees submitted by George W. Bush. There is no credible basis for alleging ``unprecedented delays.'' President Obama is quoted as saying: ``A minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees.'' Of course, President Obama, as Senator, supported the filibuster of the nomination of Samuel Alito, nominated to be an Associate Justice of the Supreme Court of the United States. A few Senate Democrats have joined this chorus, claiming that the recent vote on the Halligan nomination was a violation of a Senate understanding or ``deal'' negotiated in 2005 by the so-called Gang of 14. Unfortunately, some of those Senators have no understanding of what happened with Bush nominees, leading to that limited agreement. I am not going to recite that history here, but the record is there for those who are interested in the truth. It is a stretch to say that the Gang of 14 is any kind of Senate policy, informal or otherwise. It was an agreement among a few Members of that Congress. Most Senators who were part of that agreement no longer serve in the Senate. Senators who did sign the agreement, on both sides, subsequently voted against cloture on nominees--indicating that the agreement was never regarded as limiting the Senate on cloture votes. It is clear that agreement was limited to a small group, for a particular point in time. The allegation of a systematic and irresponsible use of procedural maneuvers to block or delay nominations is unfounded. Senate Republicans have sparingly used Senate rules. Only two nominees have been defeated by a filibuster. Compare that to the multiple filibusters on nominees of President Bush. Ten nominees were blocked by filibusters, with five ultimately being defeated. The fact is, in his first term, President Obama had the highest percentage of circuit confirmations over the past four Presidential terms. With regard to district confirmations, President Obama had more during the 112th Congress that in any of the previous eight Congresses, going back to 1994. So those who say that this President is being treated differently either fail to recognize history or want to ignore the facts or both. A second prong of this debate concerns the vacancy rate in the Federal judiciary. Blaming judicial vacancies on the Senate confirmation process is unfounded and a distortion of the process. The growth in vacancies is the result of a failure in the White House to send nominations to the Senate. Presently, 55 of the 87 vacancies--63 percent--have no nominee. For the 30 vacancies categorized as ``judicial emergencies,'' only 9 have a nominee. This has been a pattern through most of the Obama Presidency. Senators who suggest that Republican Senators are blocking all four vacancies on the D.C. Circuit should understand that two of those vacancies have no nominee. A Senator who suggests as a strategy to ``put before the Senate all four and expose what is happening'' must first talk to the White House about the lack of nominees. With regard to today's nominations, I would like to say a few words about the nominees. I expect they will be approved, and congratulate each on his confirmation. Richard Gary Taranto is nominated to be U.S. circuit judge for the Federal Circuit. After graduating from Yale Law School in 1981, Mr. Taranto held several judicial clerkships. First, he served as a law clerk for Judge Abraham Sofaer on the U.S. District Court for the Southern District of New York. From 1982 to 1983, he clerked for Judge Robert Bork on the D.C. Circuit. Finally, he clerked for Justice Sandra Day O'Connor from 1983 to 1984. After completing his clerkship with Justice O'Connor, Mr. Taranto worked as an associate with Onek, Klein & Farr. He also served for a few months [[Page 2925]] in the spring of 1986 as a legal consultant to the Secretary of State's Advisory Committee on South Africa. Beginning in the summer of 1986, he joined the U.S. Department of Justice Solicitor General's Office serving as an assistant to the Solicitor General. In 1989, he returned to the private sector as a partner in his old firm of Onek, Klein, & Farr, which soon after became Farr & Taranto. From 1989 to the late 1990s, his practice was heavily focused on the Supreme Court. He wrote briefs and argued cases on a wide variety of topics, including constitutional law, bankruptcy, patent, trademark, Federal procedure, antitrust, and copyright issues. In 1997, the focus of his practice shifted to handling patent appeals before the Federal Circuit. Before the Federal Circuit, he has represented patent holders and patent defendants across a variety of technology areas. He has experience with cases concerning international trade, government contracts, and money claims against the United States, all within the jurisdiction of the Federal Circuit. Mr. Taranto has argued 19 cases in the Supreme Court; 8 while in the Solicitor General's Office and 11 cases in private practice. He has also presented approximately 20 arguments in the Federal Circuit and appeared on briefs in a few others. He has also argued cases before the First, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits. The American Bar Association's Standing Committee on the Federal Judiciary gave him a unanimous well qualified rating. Andrew Patrick Gordon is nominated to be U.S. district judge for the District of Nevada. Mr. Gordon received a B.A. from Claremont McKenna College in 1984, graduating cum laude. In 1987, Gordon graduated from Harvard Law School. Upon graduation, he joined Streich, Lang, Weeks, and Cardon in Phoenix, AZ. In 1992, he moved to Las Vegas, NV, where he assisted Streich Lang to expand into the Las Vegas market through an affiliate of the firm, Dawson and Associates. In 1994, he lateraled to McDonald Carano Wilson LLP, working as an associate until 1997, when he became a partner. He remains with McDonald Carano Wilson to this day. Mr. Gordon's law experience is mostly in civil litigation in the areas of business, real property, construction, and employment. From 1997 to 2004, his practice centered on litigation arising from commercial construction projects. Over the last 10 years, he has become more active in arbitration and mediation. Additionally, Mr. Gordon has sat on numerous committees of the Nevada State Bar, the U.S. District Court of Nevada, and the U.S. Court of Appeals for the Ninth Circuit. He has tried at least nine cases to final judgment. The American Bar Association's Standing Committee on the Federal Judiciary gave him a rating of substantial majority well qualified--minority qualified. Mr. LEAHY. 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. CARDIN. 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 question is, Will the Senate advise and consent to the nomination of Richard Gary Taranto, of Maryland, to be United States Circuit Judge for the Federal Circuit? Mr. CARDIN. 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 bill clerk called the roll. Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin), the Senator from Louisiana (Ms. Landrieu), the Senator from New Jersey (Mr. Lautenberg), the Senator from Rhode Island (Mr. Reed), and the Senator from Rhode Island (Mr. Whitehouse) are necessarily absent. I further announce that, if present and voting, the Senator from Rhode Island (Mr. Reed) would vote ``yea.'' Mr. CORNYN. The following Senators are necessarily absent: the Senator from Arizona (Mr. Flake), the Senator from Pennsylvania (Mr. Toomey), the Senator from Louisiana (Mr. Vitter), and the Senator from Mississippi (Mr. Wicker). The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 91, nays 0, as follows: [Rollcall Vote No. 33 Ex.] YEAS--91 Alexander Ayotte Baldwin Barrasso Baucus Begich Bennet Blumenthal Blunt Boozman Boxer Brown Burr Cantwell Cardin Carper Casey Chambliss Coats Coburn Cochran Collins Coons Corker Cornyn Cowan Crapo Cruz Donnelly Durbin Enzi Feinstein Fischer Franken Gillibrand Graham Grassley Hagan Hatch Heinrich Heitkamp Heller Hirono Hoeven Inhofe Isakson Johanns Johnson (SD) Johnson (WI) Kaine King Kirk Klobuchar Leahy Lee Levin Manchin McCain McCaskill McConnell Menendez Merkley Mikulski Moran Murkowski Murphy Murray Nelson Paul Portman Pryor Reid Risch Roberts Rockefeller Rubio Sanders Schatz Schumer Scott Sessions Shaheen Shelby Stabenow Tester Thune Udall (CO) Udall (NM) Warner Warren Wyden NOT VOTING--9 Flake Harkin Landrieu Lautenberg Reed Toomey Vitter Whitehouse Wicker The nomination was confirmed. Vote On Nomination of Andrew Patrick Gordon The PRESIDING OFFICER. Under the previous order, the question is, Will the Senate advise and consent to the nomination of Andrew Patrick Gordon, of Nevada, to be United States District Judge for the District of Nevada? The nomination was confirmed. The PRESIDING OFFICER. Under the previous order, the motions to reconsider are considered made and laid upon the table. The President will be immediately notified of the Senate's action. ____________________