[Congressional Record (Bound Edition), Volume 159 (2013), Part 5]
[Senate]
[Pages 6892-6903]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF WILLIAM H. ORRICK, III, TO BE UNITED STATES DISTRICT 
             JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA

                                 ______
                                 

 NOMINATION OF MARILYN B. TAVENNER TO BE ADMINISTRATOR OF THE CENTERS 
                   FOR MEDICARE AND MEDICAID SERVICES

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session and consider the following nominations, 
which the clerk will report.
  The legislative clerk read the nominations of William H. Orrick, III, 
of the District of Columbia, to be United States District Judge for the 
Northern District of California; and Department of Health and Human 
Services, Marilyn B. Tavenner, of Virginia, to be Administrator of the 
Centers for Medicare and Medicaid Services.
  Mrs. BOXER. Mr. President, what is the order in terms of the time for 
the votes?
  The PRESIDING OFFICER. Time is held until 4:30 and is equally 
divided.
  Mrs. BOXER. Will there be a vote at 4:30?
  The PRESIDING OFFICER. There will.
  Mrs. BOXER. Thank you very much. There will be two votes, I 
understand.
  Mr. LEAHY. Mr. President, I noted last week that Senate Republicans 
who have taken such pride in the number of judicial nominees being 
confirmed this year ignore how many were needlessly delayed from 
confirmation last year. There were 11 nominees left pending on the 
Senate floor, and another four nominees who had had hearings and could 
have been expedited, as we had done for many of President Bush's 
nominees, and all could and should have been confirmed before the end 
of last year. Instead, all had to be renominated, and we are still 
working through the resulting backlog. We are halfway through May, and 
the Senate has still not completed action on 4 of the 15 nominees who 
could and should have been confirmed last year.
  William Orrick, who the Senate will finally consider today, is one of 
those nominees. He has now been reported twice with bipartisan support, 
and he has spent over 225 days waiting for his final, Senate 
confirmation vote. He was first reported last August. There was no 
reason he could not have been confirmed last year, especially 
considering that he is nominated to fill a judicial emergency vacancy.
  William Orrick is currently Special Counsel at the law firm Coblentz, 
Patch, Duffy & Bass, LLP, where he previously served as a partner for 
over two decades. From 2009 to 2012, he served in the Department of 
Justice's Civil Division, first as Counselor, and subsequently, as 
Deputy Assistant Attorney General. The ABA Standing Committee on the 
Federal Judiciary unanimously rated William Orrick ``well qualified,'' 
its highest rating. He has the strong support of his home State 
Senators, Senator Feinstein and Senator Boxer.
  Regretably, Senate Republicans have broken from our traditions and 
have taken to opposing judicial nominees based on those nominees' 
efforts on behalf of clients. They did this when opposing nominees like 
Jeffrey Helmick, Paul Watford, and, most recently, Caitlin Halligan, 
and they are doing it, again, with William Orrick. They are opposing 
William Orrick because he worked on behalf of his client--the United 
States Government--on cases dealing with Federal preemption in 
immigration.
  The criticisms of his supervision and advocacy on these immigration 
cases on behalf of the United States are unwarranted and, again, 
reflect a fundamental misunderstanding of our legal system. I have 
repeatedly noted that from John Adams to Chief Justice Roberts, that 
has never before been the standard by which we consider judicial 
nominees. Senate Republicans have adopted another double standard when 
it comes to President Obama's nominees.
  Further, having reviewed his responses, I believe that the nominee 
has more than adequately responded to the questions presented to him. 
It is time to vote on his nomination and allow him to work on behalf of 
the American people in a judicial emergency district where the judges 
have been overwhelmed with cases.
  Because Senate Republicans have delayed the confirmations of well-
qualified nominees like William Orrick, we remain 20 confirmations 
behind the pace we set for President Bush's circuit and district 
nominees, and vacancies remain nearly twice as high as they were at 
this point during President Bush's second term. For all their self-
congratulatory statements, they cannot refute the following: We are not 
even keeping up with attrition. Vacancies have increased, not 
decreased, since the start of this year.
  President Obama's judicial nominees have faced unprecedented delays 
and obstruction by Senate Republicans. We have yet to finish the work 
that could and should have been completed last year. There are still 10 
judicial nominees with bipartisan support being denied confirmation.
  It is true that some vacancies do not have nominees. I wish 
Republican home State Senators would work with President Obama to fill 
these vacancies. As I stated last week when this issue arose in the 
Judiciary Committee, I am more than willing to work with Republican 
Senators and the administration to consider nominees for these 
vacancies. But it is disingenuous of Republican Senators not to work 
with President Obama to pick nominees and then blame the President for 
the lack of nominees. If Senators want new judgeships in their States, 
they should be working especially hard to ensure that all existing ones 
are filled. I take very seriously my responsibility to make 
recommendations when we have vacancies in Vermont, whether the 
President is a Democrat or a Republican, and I would hope that other 
Senators would do the same. After all, if there are not enough judges 
in our home States, it is our own constituents who suffer.
  It is not enough for Senators to say that they are working on getting 
recommendations or they have appointed a commission to give them 
recommendations. Senators have to lead this effort in their home 
States, set firm deadlines, and get the President recommendations to 
fill these vacancies. In some places Federal judgeships have been 
vacant for 500 days or 1000 days or more without a recommendation.
  I was interested to hear Senate Republicans argue that if Senators do 
not get recommendations in ``expeditiously enough,'' the President 
``has the prerogative to nominate someone and then we have the 
responsibility to act on it.'' Before President Obama had made a single 
judicial nomination, all Senate Republicans sent him a letter 
threatening to filibuster his nominees if he did not consult Republican 
home State Senators. So the recent statement was a either complete 
reversal in position, or baiting a trap to then filibuster any nominees 
the President sends to us.

[[Page 6893]]

  Moreover, the failure of some Republican Senators to help fill 
vacancies in their own States does not excuse their unwillingness to 
complete action on the consensus judicial nominees who are ready to be 
confirmed but whose confirmations are being needlessly delayed. Mark 
Barnett, Claire Kelly, William Orrick, Sheri Chappell, Michael McShane, 
Nitza Quinones Alejandro, Luis Restrepo, Jeffrey Schmehl, Kenneth 
Gonzales, and Gregory Phillips are awaiting confirmation and Sri 
Srinivasan, Ray Chen, and Jennifer Dorsey could have been reported to 
the Senate last week. So long as there is a backlog of nominees before 
the Senate, the fault for failing to confirm these nominees lies with 
Senate Republicans.
  The Judicial Conference recently released their judgeship 
recommendations. Based upon the caseloads of our Federal courts, the 
Conference recommended the creation of 91 new judgeships. That is in 
addition to the 85 judgeships that are currently vacant. This means 
that the effective vacancy rate on the Federal bench is over 18 
percent. A vacancy rate this high is harmful to the individuals and 
businesses that depend on our courts for speedy justice. The damage is 
even more acute in the busiest district courts, such as those in border 
states that have heavy immigration-related caseloads. Unfortunately, 
several of those district courts also have significant numbers of 
judicial vacancies, and I hope that Senators are working to find good 
nominees to fill those vacancies.
  Senate Republicans have a long way to go to match the record of 
cooperation on consensus nominees that Senate Democrats established 
during the Bush administration. After today's votes, 9 more judicial 
nominees remain pending, and all were reported unanimously. All Senate 
Democrats are ready to vote to allow them all to get to work for the 
American people without further delay. We can make real progress if 
Senate Republicans would join us.
  Mrs. FEINSTEIN. Mr. President, I rise today to strongly support the 
nomination of Bill Orrick to the Northern District of California.
  Bill Orrick was raised in San Francisco, where his family has a long 
and distinguished pedigree in the legal community. I happen to have 
known the nominee's father, William Orrick, Jr., who was a highly-
respected Federal judge in San Francisco. The firm Orrick, Herrington, 
& Sutcliffe--which his grandfather founded--is pristine in San 
Francisco. I strongly urge my colleagues to support Bill Orrick's 
nomination. He has proven throughout his career that he has the 
intellect, skill, and temperament to do an outstanding job on the 
Federal bench in San Francisco.
  Mr. Orrick earned his bachelor's degree from Yale and his law degree 
from Boston College. He then represented low-income clients in Georgia 
for five years. After that, he came home to San Francisco, where he 
practiced commercial litigation for 25 years at Coblentz, Patch, Duffy, 
& Bass. He primarily practiced in the field of employment defense.
  In 2009, he joined the Justice Department, where he worked in the 
Civil Division and oversaw the Office of Immigration Litigation. As an 
attorney at the Justice Department, Mr. Orrick's job has been to 
represent his client zealously and professionally--and he has done so.
  The Office of Immigration Litigation is in the business of defending 
the government's position in cases in which an alien is seeking to 
prevent removal from this country. The office also defends the 
government in cases when an alien brings a challenge to the length or 
conditions of detention. That means that Orrick's primary task was to 
litigate against aliens in Federal court.
  Mr. Orrick has also been called upon to represent the Department of 
Justice in other cases, including those challenging state immigration 
laws like those in Arizona and Alabama on Federal preemption grounds. 
In these cases and others, Mr. Orrick dutifully and faithfully executed 
his duty to advance the position of the United States Government.
  Mr. Orrick's record speaks for itself. He is seasoned. He has over 
three decades of experience in legal practice, faithfully representing 
his private and governmental clients. He has been rated ``well 
qualified'' by the American Bar Association.
  I will close with a few remarks on the confirmation process. Mr. 
Orrick's confirmation is a long time coming. He was first nominated 
nearly a year ago, and first approved by the Judiciary Committee on 
August 2, 2012 with the support of Senators Kyl and Graham.
  When the 112th Congress recessed, other nominees who were reported by 
the Judiciary Committee before the August recess were confirmed. Not 
Mr. Orrick. He had to be renominated. His nomination had to be reported 
by the Judiciary Committee again. His nomination has only now come to 
the floor--nearly a year after his first nomination.
  This is a real shame. The Northern District of California is in a 
judicial emergency, as declared by the Judiciary Conference of the 
United States, as are all judicial districts in California. The 
Northern District has 675 weighted filings per judgeship, making its 
caseload 30 percent above the national average. A civil case takes 
nearly 3 years to get to trial--up nearly 50 percent from a year ago.
  When well-qualified nominees like Bill Orrick are held up, judicial 
emergencies like those California continues to face year after year are 
only exacerbated.
  I am very pleased Bill Orrick will be confirmed, and I thank my 
colleagues on the Republican side for agreeing to schedule a vote on 
his nomination. I simply believe--strongly--that he could and should 
have been confirmed sooner by this body.
  I yield the floor.
  Mrs. BOXER. This is a very good day for me because we not only had a 
great vote on our water resources bill, which is so important to this 
economy, to jobs, and businesses all across this great Nation, but 
finally we are getting a vote on an excellent nominee to be the U.S. 
district judge for the Northern District of California, William H. 
Orrick, III.
  Mr. Orrick was approved by the Senate Judiciary Committee with 
bipartisan support, and his appointment to the Northern District would 
fill a seat in an emergency district. We need to move on this 
nomination, and I am most grateful for getting this opportunity today.
  The caseload in the Northern District is 24 percent above the 
national average, at 631 weighted filings per judgeship. Civil cases 
that go to trial in the Northern District now take over 34 months to 
get to trial, up from 21 months just a year ago. We know justice 
delayed is justice denied, so this is justice delayed. It is not good 
for our country. That is why I am so excited we are finally getting to 
this vote.
  This is such a good nominee. He brings a depth of legal experience in 
both the public and private sectors, which will make him a tremendous 
asset to the Northern District Court.
  Mr. Orrick received his bachelor's degree from Yale University, and 
he earned his law degree from Boston College. He graduated cum laude 
from both schools. After law school, he spent 5 years providing pro 
bono legal services for low-income clients in the State of Georgia.
  Then Mr. Orrick returned home to the Bay Area, and he joined a very 
prominent San Francisco firm--Coblentz, Patch, Duffy, and Bass, where 
he spent 25 years as an associate partner and then the head of the 
firm's employment litigation practice.
  In 2009 Mr. Orrick joined the Department of Justice as Deputy 
Assistant Attorney General in the Civil Division. His primary duty at 
the Justice Department was to oversee the Office of Immigration 
Litigation, representing the United States in all manners of 
immigration law.
  Last year he returned to private practice in San Francisco. Mr. 
Orrick considers service to the community to be a hallmark of his legal 
career. He spent 11 years as chancellor and legal advisor to the 
Episcopal Diocese of California and 13 years working with the Good 
Samaritan Family Resource Center, a low-income housing nonprofit in San 
Francisco. This is a man who has given back over and over again.

[[Page 6894]]

  At his law firm he supervised much of the firm's pro bono work, for 
which he received the San Francisco Bar Association's ``Outstanding 
Lawyer in Public Service'' Award.
  The American Bar Association found that Mr. Orrick is ``unanimously 
well-qualified'' to be a Federal judge. Today is Bill Orrick's 60th 
birthday. I can think of no better gift than for us to finally act on 
this nomination.
  I urge my colleagues to cast an ``aye'' vote. I think it is a vote 
you will be proud of in the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. KAINE. Mr. President, I rise today in support of a nomination as 
well. One of the other votes we will be casting at 4 o'clock is on the 
nomination of Marilyn Tavenner of Virginia to be the head of the 
Centers for Medicare and Medicaid Services, CMS.
  I am so excited that we are voting on this matter today. CMS is the 
largest line item in the Federal budget. It is larger than the 
Department of Defense because both Medicare and Medicaid are such 
significant budgetary items.
  We have not had a confirmed Administrator of CMS in the United States 
since 2006. We have been operating this program on which tens of 
millions of vulnerable Americans rely on a daily basis with a 
succession of part-time, acting, interim Administrators. It will be 
good for the country and for the mission of CMS to confirm an 
Administrator. I am excited that we are taking that vote today.
  A few words about the nominee Marilyn Tavenner. First is her 
experience: Marilyn is from a rural community in Southside, VA. She 
grew up and wanted to be a nurse. She started her career as a nurse and 
served at hospitals, first rural and then urban hospitals, in Virginia 
for many years.
  Her leadership skills and traits were recognized, and she became a 
nursing supervisor, obtaining greater education along the way. At one 
point, she was working at a hospital in Virginia that lost their CEO, 
and as the board wrestled with who should be an interim CEO, whether 
they should do a search or bring someone in from the outside, it was 
suggested Marilyn might be the person to do it. She wasn't interim CEO 
for long before the board decided she was, in fact, the person who 
should run the hospital.
  She then had a career of running that hospital, then multiple 
hospitals and eventually worked for the HCA hospital chain running an 
entire region of hospitals and eventually became a vice president for 
HCA running all of their outpatient surgery centers for all of the 
United States.
  At that point, I reached out to Marilyn--I had been elected Governor 
of Virginia in 2005--and asked her to be my secretary of Health and 
Human Services. Marilyn performed in an exemplary way as a cabinet 
secretary in my administration from 2006 to 2010 and helped me tackle 
all manner of Health and Human Services challenges, some of which she 
had significant background in--nursing education, for example--and 
others that might have been new--cessation of youth smoking--and some 
that were not even on the health side but were in the human services 
portfolio that had not been her work--foster care and mental health 
reform. In all those areas, Marilyn proved herself to be very able.
  She has been essentially the chief operating deputy at CMS since 
early 2010. She was the No. 2 at CMS to the Administrator nominee 
Donald Berwick--a nominee who was never confirmed by the Senate--and in 
that role she worked closely with Donald Berwick and did wonderful work 
within CMS through the very challenging time of drafting, passing, and 
now the implementation of the Affordable Care Act.
  Marilyn is the right person for the job for three reasons: First, if 
you care about patients, then Marilyn is your person. Marilyn, through 
all of her work, whether as a nurse, a hospital administrator, a 
regional health care executive, a cabinet secretary or a CMS 
administrator, has never forgotten it is fundamentally about patients 
and that before we get to health care we have to care about health. 
Marilyn brings a nurse's attitude, and what a great thing it would be 
for the nursing profession to have a nurse as the agency director of 
the Centers for Medicaid and Medicare Services. She brings a nurse's 
mentality, and she will do that every day on the job. That is her first 
priority.
  The second reason Marilyn would be a strong CMS Administrator is that 
she is an expert, frankly, at finding savings and finding ways to 
reduce and control costs. We all know in the country we spend too high 
a percentage of GDP on health care--18 to 19 percent of our GDP on 
health care. Other nations in the world--Switzerland and others--spend 
11 or 12 percent. We have a system that produces some spectacular 
professionals and some procedures that are second to none in the world, 
but we don't live as healthy as other nations and some of our outcomes 
are not quite as strong and we spend too much. So one of the subjects 
we talk about on this floor all the time is budgetary issues and what 
are the right ways the Federal Government can find savings in our own 
programs.
  But also if we do innovative things in Medicaid and Medicare that 
would save money, those also become examples that can be learned 
throughout the health care industry to help us find appropriate 
savings. When I was Governor and we were dealing with the national 
recession and we were having to make cuts, there was no one in my 
cabinet or no other senior official whom I had who worked with me who 
was more creative and compassionate about trying to find targeted ways 
to achieve savings as Marilyn Tavenner. She is a whiz at this and yet 
never sacrifices her focus on patient care, which was the primary 
attribute of hers I mentioned. So as we wrestle with Medicaid and 
Medicare and the growth of those budgetary items, and we need to find 
ways to try to deal with them, I couldn't think of a better person than 
Marilyn Tavenner to be in that position.
  The last attribute of hers that I think is truly an amazing one and a 
reason I support her is that she is a creative person and is always 
driven by finding true results. I could tell numerous stories from my 
time as Governor of her efforts to successfully help us ban smoking in 
restaurants and bars to improve our health, her efforts to help us 
improve our foster care system outcomes, to train more nurses, and 
expand the number of physicians in the State, but the story I will tell 
is one that was a shame for Virginia, but Marilyn helped us solve it by 
being creative and helping us focus on results, which is what we need 
at the national level.
  Here is a conundrum about Virginia. When I was elected Governor, we 
were in the top 10 in the Nation in per capita income, but in infant 
mortality we were about 35th in the Nation. It just didn't seem like 
those two things matched up; a high-income State with a successful 
economy and a low unemployment rate should be doing better in infant 
mortality. That had occurred to Governors before me; that this just 
didn't make sense. Why would we not be a better State when it comes to 
the health of our newborns?
  I gave Marilyn the challenge--because I didn't know the answer and I 
didn't know what to do--as my Health and Human Services secretary, to 
dramatically reduce our infant mortality rate. You can do everything 
else you want, but the No. 1 thing I want you to do during my single 4-
year term as Governor is help us figure out a way to dramatically 
reduce our infant mortality rate.
  Others had made the effort, and the other efforts hadn't produced any 
results. But largely through a creative and exhaustive analysis of 
data--why did we have a problem--Marilyn approached the challenge and 
figured out why we had the problem. She figured out the myths and the 
facts and separated the myths and put them aside. She devised a very 
targeted strategy for dealing with the particular reasons we had a 
problem and, lo and behold, within a very few years, this intractable 
challenge we had in Virginia of an unacceptably high infant mortality 
rate began to dramatically change, and the changes continue because the

[[Page 6895]]

changes Marilyn put into the system are what no one would ever want to 
undo.
  Marilyn's experience, her focus on patients from her background as a 
nurse, her spectacular success at smart cost cutting but then 
especially her proven capacity to be creative and innovative in 
reaching results merit our support for her. I am excited we will be 
casting this vote today. I think the fact the United States will have a 
confirmed CMS Administrator who can then take that confirmation and 
plow forward on important initiatives will be for the good of this 
country.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KAINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KAINE. Mr. President, I ask unanimous consent that the time 
during all quorums before the votes be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KAINE. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, I rise in opposition to Mr. Orrick's 
nomination to be a District Judge for the Northern District of 
California and I would like to take a few moments to explain to my 
colleagues why I will be voting no.
  Before I discuss the nominee, however, I will update my colleagues on 
where we stand with judicial confirmations. Thus far, the Senate has 
confirmed 187 District and Circuit nominees; we have defeated two. 
That's 187-2, which is a .989 batting average. That is an outstanding 
record.
  So far this year, the Senate has confirmed 16 nominees. Today, if Mr. 
Orrick is confirmed, we will have confirmed the 17th nominee. At this 
stage in President Bush's second term only four were confirmed. That's 
a record of 17 to 4. This President is being treated exceptionally 
fairly.
  The President has recently submitted a few new nominations. I know I 
have been reminding him that we can't do anything about vacancies 
without him first sending up nominees. But again, even with the recent 
nominations 61 of 85 nominations still have no nominee. That's nearly 
three out of four vacancies, and for judicial emergencies, only 8 of 35 
vacancies have a nominee. So I just wanted to set the record straight 
before we vote on this nominee.
  Again, I will be voting ``no'' on Mr. Orrick's nomination. I was 
troubled by his intervention in Utah, Arizona, South Carolina, and 
Alabama. In those States he led the effort to strike down the statutes 
in those States addressing the Federal Government's failure to enforce 
immigration laws. We are in the middle of marking up a comprehensive 
immigration bill. It is clear that enforcement is a problem.
  I, and some of my colleagues, would like to strengthen enforcement, 
but Mr. Orrick was out there leading the effort to maintain the weak 
status quo. I don't know why that should lead to a lifetime appointment 
on the Federal bench.
  I was also disappointed by Mr. Orrick's responses to many of my 
questions at his hearing and in follow-up questions for the record. At 
his hearing, I asked him a number of questions that he said he could 
not answer at the hearing, but that he would familiarize himself with 
the issues. I offered to submit those questions in writing to provide 
Mr. Orrick the opportunity to answer them--a courtesy this Committee 
commonly extends to nominees in these circumstances.
  After granting Mr. Orrick this courtesy, I was disappointed that he 
still failed to answer many of my questions. So I extended the courtesy 
a second time, offering Mr. Orrick the opportunity to provide a 
responsive answer to my earlier questions. Unfortunately, the 
``answers'' he provided to my second set of questions were as non-
responsive as the first.
  Now, I understand that it is not unusual for nominees to claim they 
are unable to answer a particular question, but I must say that the 
degree of Mr. Orrick's non-responsiveness rose to a level well above 
what we typically see from nominees.
  Moreover, just because a particular answer might be awkward for the 
administration that does not justify refusing to provide that answer.
  Now, although there were a host of questions Mr. Orrick would not 
answer, I will provide just one example. In the hearing, I asked Mr. 
Orrick about a particular Ninth Circuit case and asked if it was 
controlling. This was in connection with a brief he filed opposing the 
Defense of Marriage Act. I thought he mischaracterized the precedent 
and wanted an explanation. At a minimum, I wanted to know if he had a 
basic knowledge of the precedent and recognized it as current law. He 
answered, ``I will follow controlling precedent wherever it exists.''
  That is a clever answer, but of course, it doesn't answer the 
question. So in my written questions, I asked again if the Adams case 
was controlling precedent. He responded that he was reluctant to answer 
because a similar case could come before him.
  This struck me as odd for two reasons. First, if confirmed, he would 
likely recuse himself from any case where he crafted a part of the 
Justice Department's policy or stance. And second, I wasn't asking for 
his personal views on the Adams case. I was trying to assess his legal 
ability. I want to know whether he will recognize that a particular 
case is controlling--even if he, or the administration for that matter, 
may not agree with it. That is what serving as a district court judge 
is all about: Applying controlling case law, whether or not you agree 
with the holding.
  So I sent him a second set of questions for the record, and asked him 
again if Adams was controlling precedent. He still would not answer. 
The second time, Mr. Orrick agreed that he should recuse himself from 
such cases, but then reserved the right not to recuse himself. And, I 
still don't have an answer to my original question raised in the 
hearing: Does Mr. Orrick recognize Adams as controlling precedent in 
the Ninth Circuit?
  Unfortunately, based on this and other aspects of Mr. Orrick's record 
that I find troubling, I cannot support his nomination.
  Following graduation from Boston College Law School in 1979, Mr. 
Orrick began practicing law in Savannah, GA, at Georgia Legal Services, 
a general legal practice representing low-income individuals in 
litigation. In 1984, Mr. Orrick moved to California to join the law 
firm of Coblentz, Patch, Duffy, & Bass, LLP. His practice with the firm 
initially focused on complex commercial litigation. After making 
partner in 1998, his practice broadened to include employment 
litigation. His clientele included both individuals and corporations.
  During this same period, Mr. Orrick also served the Episcopal Bishop 
of California, essentially acting as outside general counsel. This 
included advising the Diocese on interpretation of church canons, the 
various rights of congregations leaving the Diocese, and clergy's 
duties to report child abuse. He received compensation for these 
services.
  In June 2009, Mr. Orrick joined the Department of Justice as a 
counselor to the assistant attorney general for the Civil Division in 
Washington, DC. His responsibilities included ``matters related to the 
Freedom of Information Act, tobacco litigation, increasing affirmative 
consumer litigation brought by the Civil Division, analysis of 
amendments to the False Claims Act, litigation reports, national 
security cases, and efforts to increase access to justice, including 
expansion of the Civil Division's pro bono efforts.'' In September 
2009, he started supervising

[[Page 6896]]

immigration litigation within the Division.
  In June 2010, Mr. Orrick was appointed deputy assistant attorney 
general in the Civil Division, Department of Justice. In this role, he 
oversees the Office of Immigration Litigation, which is comprised of 
over 300 lawyers. This office handles ``all federal appellate 
litigation arising from petitions for review from the immigration 
courts and roughly 50% of the civil United States District Court 
immigration matters, primarily class actions, habeas and mandamus 
petitions, and certain Bivens actions.'' He also participates on 
several coordinating task forces that oversee immigration and national 
security related issues.
  Mr. Orrick reports that throughout his career he has represented 
private individuals, small businesses, and large corporations in 
litigation matters before State and Federal courts. He estimates that 
approximately 97 percent of his practice has been in the area of 
litigation and has tried 16 cases to verdict, judgment, or final 
decision as either sole or lead counsel.
  The American Bar Association's Standing Committee on the Federal 
Judiciary gave him a Unanimous ``Well Qualified'' rating.


                            Perez Nomination

  Mr. GRASSLEY. Mr. President, at this time I would like to discuss the 
President's nominee for Secretary of Labor, Tom Perez.
  Mr. Perez is not unknown to the Senate or even to the country as a 
whole now that he has been Assistant Attorney General for a long time. 
His tenure at the Civil Rights Commission has been marked with 
controversy, and that is putting it mildly. He was confirmed to his 
current post as Civil Rights Division Assistant Attorney General by a 
vote of 72 to 22. I was among those who supported his nomination to 
lead the Civil Rights Division, but unfortunately, based on reasons I 
will outline, I have come to regret that vote.
  There are a number of issues regarding Mr. Perez's record that should 
give my colleagues pause. Today I wish to focus on the investigation I 
have been conducting with my colleague in the House Mr. Issa, chairman 
of the Oversight and Government Reform Committee, as well as Mr. 
Goodlatte, chairman of the House Judiciary Committee.
  I would like to share with my colleagues the role Mr. Perez played in 
the quid pro quo between the City of St. Paul, MN, and the Department 
of Justice here in Washington where the Department agreed not to join 
two False Claims Act cases in exchange for the City of St. Paul 
withdrawing its case from the Supreme Court in a case called Magner v. 
Gallagher. Mr. Perez's actions in this case are extremely troubling for 
a number of reasons. In other words, if an individual takes 
extraordinary action to get a city to withdraw a case that is already 
on the docket of the Supreme Court, that is pretty serious 
intervention.
  First and foremost, at this point no one disputes the fact that Mr. 
Perez orchestrated the entire arrangement. He manipulated the Supreme 
Court docket so that his favored legal theory, called the disparate 
impact theory, would evade review by the High Court. In the process, 
Mr. Perez left a whistleblower twisting in the wind. Those are the 
facts, and even Mr. Perez doesn't dispute those facts.
  The fact that Mr. Perez struck a deal that potentially squandered up 
to $200 million from taxpayers in order to preserve the disparate 
impact theory is, of course, extremely troubling in and of itself. In 
addition to the underlying quid pro quo, however, the evidence 
uncovered in our investigation revealed that Mr. Perez sought to cover 
up the fact that the exchange even took place.
  Finally--and let me emphasize that this should concern all of my 
colleagues--when Mr. Perez testified under oath about this case both to 
congressional investigators and during his confirmation hearing, Mr. 
Perez told a different story.
  The simple but unavoidable conclusion is that the story Mr. Perez 
told is simply not supported by the evidence, so I will start by 
reviewing the underlying quid pro quo.
  In the fall of 2011, the Department of Justice was poised to join a 
False Claims Act lawsuit against the city of St. Paul. The career 
lawyers--when I use the words ``career lawyers,'' I mean these folks 
who are not political appointees. The career lawyers in the U.S. 
attorney's office of Minnesota were recommending the Department of 
Justice join this false claims case. The career lawyers, even in the 
civil division at main Justice, were recommending that Justice join the 
case. The career lawyers in the Department of Housing and Urban 
Development were also recommending the Department of Justice join in 
this false claims case. Why is that important? Because the government 
participating in a false claims case makes it a much stronger case than 
when the individual pursues it by themselves.
  What I just described to my colleagues was all before Mr. Perez got 
involved. At about the same time the Supreme Court agreed to hear a 
case called Magner v. Gallagher. In Magner, the City of St. Paul was 
challenging the use of the ``disparate impact'' theory under the FAIR 
Housing Act. The disparate impact theory is a mechanism Mr. Perez and 
the civil rights division have been using in lawsuits against banks for 
their lending practices. If that theory were undermined by the Supreme 
Court, it would likely spell trouble for Mr. Perez's lawsuits against 
the banks.
  So Mr. Perez approached the lawyers handling the Magner case and he 
cut a deal. The Department of Justice agreed not to join two false 
claims cases in exchange for the City of St. Paul withdrawing Magner 
from the Supreme Court. In early February 2012, Mr. Perez even flew to 
St. Paul to finalize the deal. The next week the Department of Justice 
declined the first false claims case, called the Newell case. The next 
day, the City of St. Paul withdrew the Magner case from the Supreme 
Court.
  Now, there are a couple of aspects about this deal I wish to 
emphasize. First, as I mentioned, the evidence makes clear Mr. Perez 
took steps to cover up the fact that he had bartered away the false 
claims cases. Cover-ups aren't good in government. On January 10, 2012, 
Mr. Perez called the line attorney in the U.S. attorney's office 
regarding the declination memo in the Newell case. To remind my 
colleagues, Newell was the case the same career attorneys were strongly 
recommending the United States join before Mr. Perez got involved. By 
the time of this phone call in January 2012, Mr. Perez was well on his 
way toward orchestrating this quid pro quo I have described.
  Mr. Perez then called the line attorney, Mr. Greg Brooker, and 
instructed him not to discuss the Magner case in the memo he prepared 
outlining the reasons for the decision not to join that false claims 
case. Here is what he said. This is a quote:

       Hey, Greg. This is Tom Perez calling you--excuse me, 
     calling you at 9 o'clock on Tuesday. I got your message. The 
     main thing I wanted to ask you, I spoke to some folks in the 
     Civil Division yesterday and wanted to make sure that the 
     declination memo that you sent to the Civil Division--and I 
     am sure it probably already does this--but it doesn't make 
     any mention of the Magner case. It is just a memo on the 
     merits of the two cases that are under review in the qui tam 
     context.

  End of that voicemail.
  Approximately 1 hour later, Mr. Perez sent Mr. Brooker a follow-up e-
mail, writing:

       I left you a detailed voice message. Call me if you can 
     after you have a chance to review [the] voice mail.

  Several hours later Mr. Perez sent another follow-up e-mail, writing:

       Were you able to listen to my message?

  Mr. Perez's voice mail was quite clear and obvious. He told Mr. 
Brooker:

       Make sure that the declination memo . . . doesn't make any 
     mention of the Magner case. It is just a memo on the merits 
     of the two cases.

  What could be more clear than that?
  In fact, Mr. Perez himself sent an e-mail less than an hour later 
explaining that he had left a detailed voice mail for Mr. Brooker. Yet 
when congressional investigators asked Mr. Perez why he left a voice 
mail, he told an entirely different story. Here is what he told the 
investigators:


[[Page 6897]]

       What I meant to communicate was, it is time to bring this 
     to closure, and if the only issue that is standing in the way 
     is how you talk about Magner, then don't talk about it.

  Well, I hope my colleagues are listening and they say to themselves: 
Give me a break. This is plainly not what he said in his voice mail. 
Mr. Perez, I was born at night, but I wasn't born last night. He didn't 
say anything about being concerned with the delay. He said:

       Make sure you don't mention Magner. It is just a memo on 
     the merits.

  His intent was crystal clear.
  Mr. Perez also testified Mr. Brooker called him back the next day and 
refused to omit the discussion of the Magner case that was being 
withdrawn from the Supreme Court. According to Mr. Perez, he told Mr. 
Brooker during this call to ``follow the normal process.''
  But, again, this story is not supported by the evidence.
  One month later, after Mr. Perez flew to Minneapolis to personally 
seal the deal with the city, a line attorney in the civil division e-
mailed his superior to outline ``additional facts'' about the deal.
  Point 6 read:

       USA-MN--

  U.S. Attorney Minnesota. That is abbreviated here.

       U.S. Attorney Minnesota considers it non-negotiable that 
     its office will include a discussion of the Supreme Court 
     case and the policy issues in its declination memo.

  If Mr. Perez's story were true and the issue was resolved on January 
11, then why, 1 month later, would the U.S. attorney's office need to 
emphatically state it would not hide the fact that the exchange took 
place? Thank God for honest line attorneys, career attorneys.
  As I mentioned, Mr. Perez flew to Minneapolis to finalize the deal on 
February 3, and one would think a deal of this magnitude would be 
memorialized in a detailed written agreement. After all, you can't even 
rent a car without signing a detailed agreement. But was this agreement 
written? No, it wasn't.
  After Mr. Perez finalized the deal, the career attorney asked if 
there was going to be a written agreement. What was Mr. Perez's 
response? He said:

       No, just oral discussions; word was your bond.

  Once again, the people listening to this are saying to themselves: 
Can you believe that? Here is Mr. Perez. He has just orchestrated a 
deal where the United States declined to join a case worth up to $200 
million to the Federal Treasury in exchange for the City of St. Paul 
withdrawing a case from the Supreme Court. And when the career lawyers 
asked if this deal will be written down, he says, No. Your word was 
your bond.
  As everyone knows, the reason we make arrangements such as this in 
writing is so there is no disagreement down the road about what the 
parties agreed to. As it turns out, there was, in fact, a disagreement 
about the terms of this unwritten deal. The lawyer for the City of St. 
Paul, Mr. Lillehaug, told congressional investigators on January 9, 
approximately 1 month before the deal was finalized, Mr. Perez assured 
him that ``HUD would be helpful'' if the Newell case proceeded after 
the Department of Justice declined to intervene. Mr. Lillehaug also 
told investigators that on February 4, the day after they finalized the 
deal, Mr. Perez told him HUD had begun assembling information to assist 
the city in a motion to dismiss the Newell complaint on ``original 
source'' grounds. But, according to Mr. Lillehaug, this assistance 
disappeared after the lawyers in the civil division learned about it.
  Let me tell my colleagues the significance of that. Mr. Perez 
represents the United States. Mr. Newell is bringing a case on behalf 
of the United States. Mr. Perez is talking to lawyers on the other side 
and he tells them, after the United States declines to join the case we 
will give you information to help you defeat Mr. Newell, who is 
bringing the case on behalf of the United States. Mr. Newell, the 
whistleblower, was left hanging out to dry by Mr. Perez. In effect, Mr. 
Perez is offering, in that statement, to give the other side 
information to help defeat his own client.
  I recognize this is a significant allegation, and Mr. Perez was asked 
about it under oath. His response? Mr. Perez said:

       No, I don't recall ever suggesting that.

  So on the one hand is Mr. Lillehaug, who says Mr. Perez made this 
offer first in January and then again on February 4, but the assistance 
disappeared after the lawyers in the civil division caught wind of it.
  On the other hand is Mr. Perez, who testified under oath: I don't 
recall ever having made that offer. Who should we believe? Well, the 
documents support Mr. Lillehaug's version of events.
  On February 7, a line attorney sent an e-mail to the director of the 
civil fraud section and related a conversation the assistant U.S. 
attorney in Minnesota had with Mr. Lillehaug. According to Mr. 
Lillehaug, the line attorney wrote that there were two additional items 
that were part of the ``deal that is not a deal'' and one of those two 
items was this:

       HUD will provide material to the City in support of their 
     motion to dismiss the original source grounds.

  Internal e-mails show that when the career lawyers learned of this 
promise, they strongly disagreed with it and they conveyed their 
concerns to Tony West, head of the civil division. During his 
transcribed interview, Mr. West testified that it would have been 
inappropriate to provide this material outside of the normal discovery 
channels. Mr. West said:

       I just know that wasn't going to happen and it didn't 
     happen.

  In other words, this is simple: When lawyers at the civil division 
learned of this offer, they shut down that offer. So, the documentary 
evidence shows the events transpired exactly as Mr. Lillehaug said they 
did. Mr. Perez offered to provide the other side with information that 
would help them defeat the whistleblower, Mr. Newell, in his case, and 
that case was on behalf of the United States and the taxpayers, and 
possibly $200 million. Well, I imagine this is simply stunning, the 
lack of common sense exhibited, when the American taxpayers hear about 
this.
  Mr. Perez represents the United States. Any lawyer would tell you it 
is highly inappropriate to offer to help the other side defeat their 
own client.
  This brings me to my final couple points I want to highlight for my 
colleagues.
  Even though the Department traded away Mr. Newell's case, Mr. Perez 
has defended his decision, in part, by claiming that Mr. Newell still 
had his ``day in court.'' What Mr. Perez omits from his story is that 
Mr. Newell's case was dismissed precisely because the United States was 
no longer a party to it.
  After the United States declined to join the case, the judge 
dismissed Mr. Newell's case based upon the legal language ``public 
disclosure bar,'' finding he was not, again, the ``original source'' of 
the information to the government. I want to remind my colleagues that 
we recently amended the False Claims Act precisely to prevent an 
outcome like this. Specifically, that amendment made clear that the 
Justice Department can contest the ``original source'' dismissal even 
if it fails to intervene, as it did in this case.
  So the Department did not merely decline to intervene, which is bad 
enough, but, in fact, it affirmatively chose to leave Mr. Newell all 
alone in this case that Mr. Newell filed for the benefit of the United 
States. Of course, that is the whole point. That is why it was so 
important for the City of St. Paul to make sure the United States did 
not join the case. That is why the city was willing to trade away a 
strong case before the Supreme Court. The city knew that if the United 
States joined the action, the case would almost certainly go forward. 
Conversely, the city knew that if the United States did not join the 
case and chose not to contest the original source, it would likely get 
dismissed.
  Think about that--$200 million possibly down the drain. The 
Department trades away a case worth millions of taxpayer dollars. They 
did it precisely because of the impact the decision would have on the 
litigation. They knew that as a result of their decision, the 
whistleblower would get dismissed based upon ``original source'' 
grounds,

[[Page 6898]]

since they did not contest it. And not only that, Mr. Perez went so far 
as to offer to provide documents to the other side that would help them 
defeat Mr. Newell in his case on behalf of Mr. Perez's client. Again, 
that client was the United States. Yet, when the Congress starts asking 
questions, they have the guts to say: We didn't do anything improper 
because Mr. Newell still had his day in court. Well, the problem with 
that is that they cut the limbs out from under him.
  This brings me to my last point, and that has to do with the strength 
of the case. Throughout our investigation, the Department has tried to 
defend Mr. Perez's actions by claiming the case was ``marginal'' or 
``weak.'' Once again, the documents tell a far different story.
  Before Mr. Perez got involved, the career lawyers--again, not 
political appointees but career lawyers--at the Department wrote a memo 
recommending intervention in the case. In that memo, they describe St. 
Paul's actions as ``a particularly egregious example of false 
certifications.'' In fact, the career lawyers in Minnesota felt so 
strongly about the case that they took the unusual step of flying here 
to Washington, DC, to meet with HUD officials. HUD, of course, agreed 
that the United States should intervene, but that was before Mr. Perez 
got involved in the case.
  The documents make clear that career lawyers considered this a strong 
case, but the Department has claimed that Mike Hertz, the Department's 
expert on the False Claims Act, considered it a weak case. In fact, 2 
weeks ago Mr. Perez testified before my colleagues in the Senate HELP 
Committee that Mr. Hertz ``had a very immediate and visceral reaction 
that it was a weak case.'' But what do the documents show? They tell a 
different story. Mr. Hertz knew about the case in November 2011. Two 
months later a Department official took notes of a meeting where the 
quid pro quo was discussed. That official wrote down Mr. Hertz's 
reaction. This official wrote:

       Mike--
  Referring to Mr. Hertz--

       Mike--Odd--Looks like buying off St. Paul. Should be 
     whether there are legit reasons to decline as to past 
     practice.

  The next day that same official e-mailed the Associate Attorney 
General here in town and said:

       Mike Hertz brought up the St. Paul ``disparate impact'' 
     case in which the SG [Solicitor General] just filed an amicus 
     brief in the Supreme Court. He's concerned about the 
     recommendation that we decline to intervene in two qui tam 
     cases against St. Paul.

  So you have these documents appearing to show that Mr. Hertz's 
primary concern was not the strength of the case, as Mr. Perez led 
Senate colleagues to believe; Mr. Hertz was concerned that the quid pro 
quo Mr. Perez ultimately arranged was, in fact, improper. And, again, 
in his words, it ``looks like buying off St. Paul.''
  Just last week the Justice Department sent my staff a critical 33-
page slide show about the Department's case against St. Paul. In that 
document, the career lawyers made their strong case for intervention, 
for the Justice Department to intervene with Newell to bring this case 
about. The Department failed to provide this critical document to the 
committees, and we only learned about this document not from the 
Department of Justice but from a recent interview we had with a HUD 
employee. Why do I say this is a critical document? Because this 
document makes abundantly clear that career lawyers did not view this 
case as ``marginal,'' where Mr. Perez wants you to believe that other 
people in the Department, experts on false claims, thought it was a 
``marginal'' or ``weak'' case. And obviously he did not view it as a 
weak case, as Mr. Perez testified before the HELP Committee--far from 
it.
  Here is how the career lawyers summed up the case in one of the final 
slides of this document. These are quotes:

       The City Repeatedly and Knowingly Misrepresented its 
     Compliance with Section 3 to Obtain Federal Funds.
       Tentative conclusions:
       The City has long been aware of its obligations under 
     section 3;
       The City repeatedly told HUD and others that it was in 
     Compliance with Section 3;
       The City has failed to substantially comply with Section 3.

  Does that sound like career lawyers describing a ``marginal'' or a 
``weak'' case? Of course not. Yet that is what Mr. Perez told my 
colleagues on the HELP Committee. My colleagues are well aware of how I 
feel about the Whistleblower Protection Act, and my colleagues know how 
I feel about protecting whistleblowers who have the courage to step 
forward, often at great risk to their own careers. But this is about 
much more than the whistleblower who was left dangling by Mr. Perez. 
This is about the fact that Mr. Perez manipulated the rule of law in 
order to get a case removed from the Supreme Court docket. But most 
importantly, this is about the fact that when Congress started asking 
questions about this case and when Mr. Perez was called upon to offer 
his testimony under oath, he chose to tell an entirely different story. 
The unavoidable conclusion is that the story he told is flatly not 
supported by the facts.
  We have to demand more. We have to demand that when individuals are 
called upon to answer questions before the Senate, that they shoot 
straight regardless of the consequences.
  I do not believe Mr. Perez gave us the straight story when he was 
called upon to answer questions about this case, and for that reason, I 
recommend, first of all, that my colleagues study these issues. There 
is a lot in this that needs to be brought out about this nomination 
before we vote on it. This evidence I give is just part of the story.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coons). The Senator from Utah.
  Mr. HATCH. Mr. President, I rise today to speak in support of the 
nomination of Marilyn Tavenner to serve as Administrator of the Centers 
for Medicare and Medicaid Services or CMS, one of the largest agencies 
ever in the history of the country. For a number of reasons, CMS has 
been without a confirmed Administrator since the fall of 2006.
  CMS is the world's largest health insurer. It processes over a 
billion Medicare and Medicaid claims a year. It has a budget of nearly 
$1 trillion. It also provides services to over 100 million of our 
Nation's most vulnerable citizens receiving Medicare and Medicaid. So 
clearly this is a critical agency that needs a strong leader at the 
helm.
  Thus far, from what I have seen, Ms. Tavenner has the qualifications 
to be that kind of a leader I believe her to be. She has clinical 
experience from being a nurse, executive experience from serving as a 
hospital administrator, and hands-on operational experience from her 
time as the secretary of health and human resources for the State of 
Virginia. That rare combination of skills will be essential when 
heading an agency as diverse as CMS. There is a reason she was voted 
out of the Senate Finance Committee on a voice vote and had the House 
majority leader come testify on her behalf.
  Starting in 2010, she was appointed as the Deputy Administrator of 
CMS. Since November of 2011, she has served as the Acting 
Administrator. So far, she has shown a willingness to work with Members 
of both parties, which is a welcome development, particularly under 
this administration.
  At a time when the Secretary of the Department of Health and Human 
Services is engaging in activities that are less than transparent and 
potentially illegal, it is even more important that an agency as vital 
as CMS be headed by someone with strong ethics and integrity.
  Make no mistake, this agency's greatest challenges lie ahead. One of 
the biggest problems facing CMS in the near future is implementation of 
the Federal- and State-based health insurance exchanges established 
under ObamaCare. These exchanges are supposed to be brought online 
later this year, but there are numerous obstacles that will have to be 
addressed. By most indications, it would take a miracle for the 
exchanges to be up and ready on time.
  To date CMS has not been able to provide satisfactory answers to a 
number of questions posed by myself and

[[Page 6899]]

other Members of Congress regarding the exchanges. For example, we have 
yet to see a breakdown of the budget for the federally facilitated 
exchange. Furthermore, we still know very little about the operational 
details of the exchanges and even less about how people will enroll. 
These are serious issues. With this system, you are asking American 
families to entrust the fate of their health care services to the empty 
words and deeds of an administration that has repeatedly shown a 
complete inability to be held accountable.
  More importantly, with the recent revelations of potentially criminal 
behavior at the Internal Revenue Service, I am very concerned about 
trusting that agency's ability to work with CMS and HHS to deliver 
benefits for Americans through the exchanges.
  Almost every day we see new indications that the health law is an 
unmitigated disaster. We are already seeing evidence that health 
insurance premium costs are continuing to rise and are projected to be, 
on average, 32 percent higher in the individual market. At the same 
time, according to numbers released yesterday by the Congressional 
Budget Office, by 2019 almost 14 million Americans who would have had 
employer-provided coverage will no longer have it.
  Let me be very clear. ObamaCare is fundamentally flawed. The only 
real way to fix it is to repeal it and then start again. But until we 
can accomplish that goal, we need to make sure we are protecting our 
fellow citizens the best we can from all the negative effects of this 
law.
  In addition to overseeing this massive new expansion of benefits, Ms. 
Tavenner will also be charged with helping to ensure the longevity and 
solvency of the existing Medicare trust fund, which is projected to go 
bankrupt in 2024. All told, between now and 2030, 76 million baby 
boomers will become eligible for Medicare. Even factoring in deaths 
over that period, the program will grow from approximately 47 million 
beneficiaries today to roughly 80 million beneficiaries in 2030.
  Maintaining the solvency of the Medicare Program while continuing to 
provide care for our ever-increasing beneficiary base is going to 
require courageous solutions. I have had several conversations with Ms. 
Tavenner about the need for structural entitlement reforms to ensure 
that these programs are here for future generations. I sincerely hope 
we will continue to make progress on these critical issues.
  Overseeing a massive bureaucracy such as the one at CMS is not a job 
for the faint of heart. I will be keeping a close eye on Ms. Tavenner 
as she takes the reins. If she is to be successful, she will have to 
realize she cannot do it alone. She will have to work with Members of 
Congress from both parties. I hope she will do so. I believe she will. 
Thus far I have reason to believe she will be one of the best leaders 
we can possibly have in the government. However, if it is under her 
leadership that CMS continues what has become a disappointing pattern 
in this administration--not responding to legitimate congressional 
inquiries and throwing promises of transparency by the wayside--I will 
use the full weight of my position as the ranking member on the Senate 
Finance Committee to hold her and others fully accountable. I do not 
think I am going to have to do that. I actually think she is that good.
  I appreciate Ms. Tavenner's willingness to serve in this difficult 
position. While I still have many concerns about the policies of this 
administration and the direction CMS is heading, I plan to vote in 
favor of her confirmation because she has the ability and the potential 
to be a real leader and already has exemplified that in many ways. I 
encourage my colleagues to vote for her. I think Marilyn Tavenner is 
the right prescription at the right time to help with HHS and also with 
CMS which, as I said, is one of the largest agencies ever in the 
history of the world. She is a good woman. She is dedicated. She has 
the ability. I believe she will do a great job.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Brown). The Senator from Virginia is 
recognized.
  Mr. WARNER. Mr. President, I want to, first of all, commend the 
Senator from Utah for his comments. We all know the Senator from Utah, 
like myself, has a real interest in making sure our government is more 
efficient and more effective in its operations, and know, as well, that 
the Senator from Utah has not always been necessarily supportive of 
health care reform, the Affordable Care Act. But I appreciate the 
comments of the Senator from Utah about Marilyn Tavenner.
  I have known Marilyn Tavenner for 25 years. I think while we may 
disagree about the effectiveness of the Affordable Care Act, we do know 
one thing: We want CMS to be the most efficient, effective organization 
possible. I commend the Senator from Utah for his strong endorsement of 
Marilyn Tavenner. I think he spoke eloquently about her background. I 
am going to try to add a few comments, but I did not want to let him 
get away without my thanking him for his comments.
  I rise today to join this bipartisan show of support for the 
President's nominee to lead the Centers for Medicare and Medicaid 
Services, Marilyn Tavenner. She comes to the floor this afternoon on a 
fairly unusual circumstance, considering some of the nominees we are 
considering. She came actually with a unanimous voice vote from the 
Senate Finance Committee. She is supported by a number of health care 
organizations, including the American Hospital Association, the SEIU, 
the American Nurses Association, just to name a few.
  As I mentioned already, I have known Marilyn Tavenner for 25 years. 
She is the real deal. She will be a phenomenal choice to continue to 
lead CMS. Marilyn grew up in a small town in southside Virginia and 
worked her way through school. She began her health care career not as 
a hospital administrator or an executive, but she began on the front 
lines as an emergency room nurse.
  Then through her ability, and her ability to relate to people and 
care, she rose to become CEO of a hospital and then a senior executive 
of a leading health care company. I know as Governor I called upon 
Marilyn on a repeated basis on health care issues that affected 
Virginia. Marilyn has always been committed to people and public 
service. She took that private sector knowledge and experience into the 
public sector even before her tenure with this administration when she 
joined my good friend, the junior Senator from Virginia Tim Kaine when 
he became Governor and served with his administration as the Virginia 
Secretary of Health.
  Today, Marilyn has already served at the highest levels of CMS, where 
she has shown her ability to manage and operate one of the largest and 
most complex agencies in our whole government. By spending most of her 
career in the private sector, she knows the impact that regulations and 
rules have on the real world and understands the importance of not just 
achieving a policy goal but ensuring that it works in practice.
  As we all know, passing a law like the ACA is a complicated process, 
particularly a law like this that has generated as much controversy. 
That means the role of the Administrator of CMS to be evenhanded, fact-
based, effective, and efficient in implementing the dramatic 
transformation of the health care market that the ACA is going to 
provide will require a first class Administrator, somebody who 
understands how to get things done and somebody who is well-respected 
by both sides of the aisle. Marilyn Tavenner clearly fits that bill.
  She is held in extraordinarily high esteem. We, again, heard the 
ranking member on the Finance Committee already speak in her support. 
She received unanimous support from the Finance Committee, but she is 
also held in extraordinarily high esteem by her peers. In fact, in 
February all of the previous living Senate-confirmed Administrators of 
the CMS--Democrats, Republicans, Independents, all of them who have run 
the agency in the past--sent a letter urging her confirmation, noting 
that it was ``hard to imagine a candidate more worthy of bipartisan 
support.''

[[Page 6900]]

  I look forward to voting with what I hope will be an overwhelming 
majority of my colleagues to confirm Marilyn for this very important 
role a little bit later this afternoon. I know I am about to give up my 
time and yield to the great new Senator from Massachusetts. I know she 
is going to be speaking about another nominee, someone with whom I have 
had the opportunity to visit a couple of times, for a role that may be 
almost as controversial as being head of CMS, being Administrator of 
EPA.
  I want to say that in my conversations with Gina McCarthy she seems 
to bring a breadth of background of work at the State level, working 
under both Democratic and Republican administrations. I know the 
Senator from Massachusetts is going to speak to her qualifications, but 
as long as I am here I want to add my voice as well that I think Ms. 
McCarthy will be a great head of the EPA, and I look forward to joining 
my friend and colleague, the Senator from Massachusetts, in supporting 
her.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.


                        Gina McCarthy Nomination

  Ms. WARREN. Mr. President, I want to start by thanking the senior 
Senator from Virginia both for advancing a nomination that we will vote 
on this afternoon and for his comments about Gina McCarthy. She is, as 
the Senator says, a quite remarkable person, and she will be a 
wonderful director of the Environmental Protection Agency. I very much 
appreciate the Senator's comments about her, and I know Ms. McCarthy 
does as well, and the people of Massachusetts do as well.
  I rise today to do something very simple. I ask my colleagues to give 
a simple vote to the President's nominee to head the Environmental 
Protection Agency. This is not fancy or ambitious, it is just a basic 
principle of good government in our constitutional system.
  When the Founders of our Republic came together to write the 
Constitution, they knew the President would need help in administering 
this great and expansive Nation. Without help, without a government 
that was staffed, justice would not be established, our common defense 
would be threatened, and the blessings of liberty we hoped to secure 
through our laws would go unfulfilled.
  The Founders of our Republic gave to the President the task of 
nominating individuals to serve and gave us the responsibility to 
advise on and consent to these appointments. For more than 200 years 
this process has worked. Presidents over the years have nominated 
thousands of qualified men and women who were willing to serve in key 
executive branch positions.
  The Senate has considered nominations in a timely fashion and taken 
up-or-down votes. Of course, there have been bumps along the way, but 
we have never seen anything like this. Time and again, Members of this 
body have resorted to procedural technicalities and flatout 
obstructionism to block qualified nominees.
  At the moment, there are 85 judicial vacancies in the U.S. courts, 
some of which are classified as ``judicial emergencies.'' That is more 
than double the number of judicial vacancies at the comparable point 
during President George W. Bush's second term. Yet right now there are 
10 nominees awaiting a vote in the Senate, and they have not gotten 
one.
  But that is not all. The nomination of the Secretary of Defense was 
held up for weeks and then filibustered. The nominee for the Secretary 
of Labor, Tom Perez, has been held up on an obscure technical maneuver. 
Then, of course, there is the determined effort to block Richard 
Cordray to head the Consumer Financial Protection Bureau--not because 
he is unqualified; in fact, he has received praise from industry and 
consumer groups alike. Even the Republicans who blocked him have 
praised his fairness and his evenhandedness. No, Rich Cordray is 
blocked because some Members of this body do not like the agency he 
heads. They know they do not have the votes to get rid of it or to 
weaken it, so instead they are holding the Director's nomination 
hostage.
  Now we get to Gina McCarthy. This past Thursday, the Senate 
Environment and Public Works Committee was scheduled to vote on Gina 
McCarthy's nomination to head the Environmental Protection Agency. 
Right before the scheduled vote, all the Republicans decided not to 
show up. Under Senate rules, that meant there was no quorum and thus 
the vote could not take place.
  The President has done his job. He named an outstanding nominee for 
the Administrator of the Environmental Protection Agency, Gina 
McCarthy. Gina has dedicated her professional life to the protection of 
our public health and to the stewardship of our environment. She was 
confirmed to her previous position at the EPA as Assistant 
Administrator for Air and Radiation by voice vote without objection.
  Just to be clear, this means most of the Members of this Chamber have 
already voted to approve her once before.
  Gina also has a long record of working effectively across party 
lines. She served under Republican and Democratic Governors alike, 
including working for Gov. Mitt Romney, the most recent Republican 
Presidential nominee. Her record in Massachusetts was stellar, and she 
has done all of us in the Commonwealth proud through her service in 
Washington.
  Gina herself has also done her job and more. She has answered a 
staggering 1,120 questions from the Environment and Public Works 
Committee. That is the largest number of questions ever asked of a 
nominee facing a Senate confirmation. To put this in some perspective, 
4 years ago the last confirmed Administrator of the EPA, Lisa Jackson, 
was asked 157 questions during her nomination process.
  When Congress convened in January, many of us, both veterans and 
newcomers, were concerned that this kind of obstructionism would 
persist in the new Congress. We pushed hard for changes to the 
filibuster rules. We understood passions on both sides of the issue, 
and we listened to our colleagues. Ultimately, the two sides reached a 
compromise, a compromise that many of us were concerned about, but it 
included a clear understanding that the Democrats would not make 
substantial changes to the filibuster and, in return, the Republicans 
would not abuse its use. But in the past 3 months, abuse has been piled 
on abuse. Republicans have prevented votes on judges, on agency heads, 
and on administration Secretaries.
  This is wrong. Republicans can vote no on any nominee they choose, 
but blocking a vote is nothing more than obstructionism. Blocking the 
business of government, the business of protecting people from cheating 
credit card companies, from mercury in the water or from unfair labor 
practices must stop.
  The President has done his job. Gina McCarthy has done her job. Now 
it is time for the Senate to do its job. Gina McCarthy deserves a vote.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from New Hampshire is 
recognized.
  Mrs. SHAHEEN. I am here to join my colleague Senator Warren to also 
express my frustration about what is happening with the nominees to 
these critical agencies that are being held up by our colleagues on the 
other side of the aisle. As Senator Warren said very eloquently, last 
week the Republican members of the Senate Environment and Public Works 
Committee chose not to appear for the important business of considering 
the nomination of Gina McCarthy. They made this decision with only a 
few minutes' notice. As a result, this action prevented an already 
overdue vote from taking place as scheduled.
  The refusal to allow a vote on such fundamental business is 
unacceptable. The EPA conducts vital work to safeguard public health 
and protect our environment. Yet the agency has been without permanent 
leadership for months. It is the Senate's duty to act in a timely 
manner on these kinds of vacancies, and it is clear from Ms. McCarthy's 
impressive and expansive record that this nominee has earned and 
deserves a vote.
  I understand and I respect those Senators who feel they have to vote

[[Page 6901]]

against a nominee for substantive reasons. However, this failure to 
even appear at last Thursday's meeting and take a vote shows an 
alarming level of disregard for the importance of permanent leadership 
at the EPA and for the Senate's confirmation process. As Senator Warren 
said, committee Republicans have already asked Ms. McCarthy to answer 
over 1,100 questions for the record, more than three times what any 
previous nominee for this position has faced. She has provided 234 
pages of answers, and it is past time that the committee held a vote. 
We need to move forward on filling the position of EPA Administrator so 
the agency can resume addressing today's public health challenges in 
the most effective manner.
  Simply put, the type of obstructionism we saw last week has no place 
in this Senate, no place in our government, particularly for a position 
as critical as this one. In addition to its work to reduce harmful 
pollution at the national level, the EPA plays a vital role in 
safeguarding public health in our local communities.
  For example, in my State of New Hampshire, testing in 2009 revealed 
elevated levels of contaminants in the wells of homeowners living in 
the town of Raymond because of their proximity to a Superfund site. 
Following this discovery, we worked with the EPA, with the State 
Department of Environmental Services, and with the town of Raymond to 
find a solution that would address the health concerns because the 
families didn't have safe drinking water. With the EPA's support, the 
town has extended its water lines to ensure that these homeowners and 
their families can be provided access to safe clean drinking water.
  I had the opportunity to view the progress of this construction 
project in person last year. I applaud the EPA for working with 
communities on vital local priorities such as this.
  Communities across our country face public health challenges, and the 
EPA plays an important role in addressing these challenges. Even now we 
are working in New Hampshire in a similar situation where wells have 
been contaminated in the town of Atkinson.
  We can't continue to delay the Senate's responsibilities to provide 
agencies such as the EPA with the leadership they need to operate. With 
30 years of public service in a variety of roles, Ms. McCarthy has both 
the experience and the expertise to do the critical job of leading the 
EPA. Her expansive and lengthy career is rooted in working at the 
forefront of pressing environmental issues for leading New England 
Governors of both political parties.
  Most recently, Gina McCarthy served in Connecticut's Department of 
Environmental Protection under former Republican Gov. Jodi Rell. Before 
that, Ms. McCarthy served five different Massachusetts Governors, 
including Michael Dukakis and Mitt Romney--the Republican Party's own 
nominee for President in last year's election.
  These diverse work experiences on a broad range of environmental 
issues have provided Ms. McCarthy with the first-hand knowledge of 
environmental and public health challenges we face. They are evidence 
of her ability to work with people on both sides of the aisle to 
address the problems faced as we look at agencies such as the EPA.
  Ms. McCarthy was confirmed by the Senate to her current EPA post with 
overwhelming bipartisan support in 2009. That makes the boycott last 
week even more shocking. In her current role as the Assistant 
Administrator for the Office of Air and Radiation, Ms. McCarthy has 
worked with environmental advocates and industry leaders to reduce 
harmful emissions that threaten clean air. These efforts are 
particularly significant for downwind regions such as in New England, 
where we serve as the tailpipe to the rest of the Nation and suffer the 
effects of pollution from coal-fired powerplants in the middle part of 
the country. I am sure the Chair understands this issue.
  In recognition of her successful tenure, Ms. McCarthy has received 
widespread praise from a diverse group of industry leaders who 
recognize her ability to find common ground and compromise.
  Coming from New Hampshire, which is the second most forested State in 
the Nation, I know New Hampshire's forest products industry will 
benefit from an EPA Administrator with a strong reputation for 
constructive dialog. Following Ms. McCarthy's nomination, Donna Harman 
of the American Forest and Paper Association described her by saying: 
``She's very data- and fact-driven, and that's been helpful for us as 
well as the entire business community.''
  Leaders in an array of other sectors have voiced similar appreciation 
for the way in which Ms. McCarthy values finding common ground. Heaven 
knows we can use some common ground here.
  Robert Engel of the American Automotive Policy Council praised the 
care she takes in listening to stakeholders, saying:

       We look forward to continuing to work with Gina McCarthy. 
     She has demonstrated a willingness to consider the views of 
     those affected by the agency she has been nominated to lead, 
     and to find practical solutions to issues facing the 
     automobile industry.

  These words describe a public servant who understands the importance 
of listening, understanding, and bringing stakeholders together.
  I am confident Gina McCarthy will be an excellent leader of the EPA. 
She deserves fair consideration. She deserves a timely vote.
  I am pleased we received news that there will be a rescheduled vote 
later this week. I urge my colleagues across the aisle to move forward 
in good faith and give fair consideration to this nominee. The EPA must 
have a permanent Administrator who is an advocate for protecting public 
health and providing valuable support to our Nation's communities.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, what is the parliamentary procedure?
  The PRESIDING OFFICER. The Senate is considering the Tavenner 
nomination en bloc and at 4:30 p.m. unanimous consent to move to a 
vote.
  The Senator from Montana.
  Mr. BAUCUS. Mr. President, I would like to speak on another matter, 
as well as on the Marilyn Tavenner matter. Frankly, my remarks will 
take more than 4 minutes, so to what degree we can get the Senate to 
postpone votes, we will be working on that as I am speaking.


                      The Internal Revenue Service

  Mr. President, over the last 5 days, information that I can describe 
only as very troubling has emerged about a systematic practice by the 
IRS to target conservative groups seeking tax-exempt status.
  According to a report released last night by the Inspector General 
for Tax Administration, the IRS developed and used inappropriate 
criteria to identify applications from organizations applying for tax-
exempt status based ``upon their names or policy positions instead of 
indications of potential political campaign intervention.''
  In addition, the 48-page report finds that ineffective management of 
the IRS allowed for this inappropriate practice to stay in place for 
more than 18 months, resulted in substantial delays in processing 
certain applications, and allowed unnecessary information requests to 
be issued.
  While the inspector general report does not say the IRS was 
intentionally partisan, it did find that the agency's narrow focus of 
the criteria gives the appearance that the IRS was not impartial in 
conducting its mission.
  These actions by the IRS, if true, are a clear breach of the public's 
trust. Targeting groups based on their political views is not only 
inappropriate, but it is intolerable, unacceptable, and cannot be 
allowed.
  I intend to get to the bottom of what happened. The inspector 
general's report is just the beginning. There are still many unanswered 
questions. The Senate Finance Committee, which has congressional 
oversight over the IRS, has just begun what will be a thorough 
investigation.
  Some are now using this issue to try to score political points. Some 
of my friends across the aisle are claiming the IRS was just doing what 
Democrats

[[Page 6902]]

wanted in examining these conservative groups.
  Let me clear up this misperception. I, for one, have never advocated 
targeting conservative groups. This is important, let me be clear. What 
I have called for in the past, especially in 2010, and continue to call 
for today is closer examination of any and all groups already granted 
or applying for tax-exempt status--let me say that again, any and all 
groups.
  Since the Citizens United case decided by the Supreme Court, there 
has been a dramatic increase in political organizations masquerading as 
social welfare groups. We need to make sure these groups are complying 
with IRS political activity rules.
  Any group claiming tax-exempt status under section 501(c)(4) of the 
Internal Revenue Code needs to prove it is following the letter of the 
law.
  As the New York Times noted yesterday, ``No one has an automatic 
right to this tax exemption. Those seeking one should expect close 
scrutiny from the government to ensure it is not evading taxes.''
  While I expect the scrutiny of the IRS to be thorough, I also expect 
it to be administered equally across the board, on conservative or 
liberal organizations and any in between.
  Americans expect the IRS to do its job without passion or prejudice. 
The IRS can't pick one group for closer examination and give the other 
a free pass. But that is apparently what they did here. That was the 
agency's big mistake, and now they have to answer for it.
  The Senate Finance Committee has launched a formal bipartisan 
investigation. A team of investigators from my staff and the staff of 
Senator Hatch has begun compiling questions and seeking additional 
documents from the IRS. There seems to be some inconsistencies in the 
timeline regarding who knew what and when, and we will get to the 
bottom of it.
  As part of the investigation, I went straight to the top and met with 
Acting Commissioner Steve Miller yesterday. It was a tough talk. I told 
Mr. Miller the actions of the IRS were inexcusable and warned he is in 
for serious questioning from this committee and from others. I told Mr. 
Miller the committee demanded nothing less than his complete 
cooperation and total transparency.
  The Finance Committee will hold a hearing on Tuesday to examine this 
issue. There needs to be a full accounting of what happened at the IRS 
and who knew what, when, how long did this practice go on, and what 
other groups were flagged for additional scrutiny.
  There is another important question that needs to be asked: Is there 
a fault in the Tax Code that may have contributed to the IRS taking 
such unacceptable steps? Do we need a better definition of what 
organizations qualify for tax exemption? Do we need to revisit the role 
tax-exempt organizations play in our political system? What part of the 
Tax Code has to be changed for us to guarantee this overreach never 
happens again? And there are many more questions.
  This will be an issue we delve into in tax reform as well. Clearly, 
something is amiss for the IRS to behave the way it did. The actions of 
the IRS are unacceptable and people will be held accountable.


                               Tax Reform

  Mr. President, let me take a moment to turn briefly to a related 
topic. As some may know, the Senate Finance Committee has been working 
on comprehensive tax reform for the last 2 years. We have held more 
than 30 hearings and heard from hundreds of experts on how tax reform 
can simplify the system for families, spark economic growth, create 
jobs, and make U.S. businesses more competitive.
  Last Thursday I teamed with House Ways and Means Committee Chairman 
Dave Camp to launch a Web site to get even more input directly from the 
American people. We launched taxreform.gov to give folks in Montana, in 
Michigan, and all across America an opportunity to weigh in on tax 
reform. Since the launch of the site less than a week ago, we have 
received thousands of ideas directly from the American people on how to 
improve the Code.
  I want to thank all those who have shared their ideas and opinions, 
and I encourage more people to log on to taxreform.gov to let us know 
what they think of the Nation's tax system and what it should look 
like.


                     Nomination of Marilyn Tavenner

  Mr. President, if I might, one other issue I want to address is the 
nomination of Marilyn Tavenner.
  Marilyn Tavenner has been nominated to be Administrator for the 
Centers of Medicare and Medicaid Services, otherwise known as CMS. As 
head of CMS, Ms. Tavenner would be in charge of administering Medicare, 
Medicaid, and the Children's Health Insurance Program, among others.
  Roughly one in three Americans relies on health coverage under the 
jurisdictions of CMS--one in three. This includes 50 million Medicare 
patients, 56 million Medicaid patients, and more than 5.5 million 
children in the Children's Health Insurance Program. In my home State 
of Montana, 167,000 seniors and 8,300 military retirees rely on 
Medicare alone.
  Marilyn Tavenner is an experienced health care professional. She has 
proven herself to be a strong leader, and I believe she is the right 
woman to lead CMS, a view shared by my colleagues on both sides of the 
aisle.
  Ms. Tavenner is a proud native Virginian and her congressional 
delegation, all of them, warmly introduced her--if they were all not 
there, in spirit--at a confirmation hearing before the Finance 
Committee last month. Democratic Senators Mark Warner and Tim Kaine and 
Republican House majority leader Eric Cantor all spoke on her behalf. 
Here is what House majority leader Cantor said:

       I don't think there is any secret that I differ with the 
     Obama administration in a lot of matters in health care 
     policy . . . but if there is anyone that I trust to try to 
     navigate [these] challenges, it is Marilyn Tavenner.

  Two weeks ago, the Finance Committee approved Ms. Tavenner's 
nomination with a unanimous vote. She has earned this broad support 
from both sides of the aisle and the confidence of many of us because 
of her demonstrated abilities.
  She started as a nurse, quickly rose through the ranks to become a 
hospital administrator, served 4 years as Virginia's Secretary of 
Health and Human Resources before joining CMS in 2010, and she has 
served as acting administrator for the last year and a half. I am 
confident we will get a strong vote for this nomination because Marilyn 
Tavenner has a reputation for being a pragmatist and a person who 
doesn't give up.
  One story I wish to share--and this is important--is of Marilyn 
working the night shift in the intensive care unit at Johnston-Willis 
Hospital in Richmond, VA, as a nurse. At 2 a.m. a rescue squad brought 
in a young woman to the emergency room. She had been in a terrible car 
accident and crashed through the windshield of her old Volkswagen bug. 
Badly injured and having suffered massive blood loss, she was 
pronounced dead. But Ms. Tavenner and the doctors went to work to 
revive her. The surgeon on call told reporters:

       We came up with a game plan, and it was right on target. We 
     used about 60 units of blood. Marilyn was very supportive in 
     everything . . . The patient ultimately walked out of the 
     hospital.

  That is Marilyn Tavenner. She doesn't give up. We need that type of 
leader at CMS, believe me. Her experience in health care is real, it is 
varied, and it will serve us well in this position.
  One final note. As someone pointed out, CMS has operated without a 
confirmed administrator for several years, so I am glad we are moving 
forward with this nomination. We need a confirmed administrator, with 
all the work she has to do, especially implementing the Affordable Care 
Act. That was an essential bill that created good law. In a few months 
the health care marketplaces will be open for enrollment, and tax 
credits and subsidies will be available to help families and small 
businesses pay for health care. It is a critical time to have someone 
with Ms. Tavenner's experience confirmed and

[[Page 6903]]

in charge at CMS. She has done a good job in the past, and she will do 
a good job in the future.
  I urge my colleagues to support me in supporting her nomination.
 Mr. CASEY. Mr. President, I support the nomination of Marilyn 
Tavenner to be the Administrator of the Centers for Medicare and 
Medicaid Services, CMS. I strongly support her nomination and was sorry 
to miss today's vote. I voted for her confirmation in the Finance 
Committee and would have done so today as well.
  It has been over 6 years since CMS has had a confirmed Administrator, 
and the agency will benefit from having someone with Ms. Tavenner's 
skills and expertise at the helm. Her experience as the Secretary of 
Health and Human Resources in Virginia and with the Hospital 
Corporation of America as well as the time she has already served as 
Acting Administrator and Principal Deputy Administrator of CMS have 
prepared her well for the challenges and opportunities she will 
confront in this position.
  I thank her for her willingness to serve at this important time, and 
I look forward to working with her in the months and years 
ahead.
  The PRESIDING OFFICER. Under the previous order, the question is: 
Will the Senate advise and consent to the nomination of William H. 
Orrick, III, of the District of Columbia, to be United States District 
Judge for the Northern District of California?
  Mrs. BOXER. 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 legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey) 
and the Senator from New Jersey (Mr. Lautenberg) are necessarily 
absent.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Tennessee (Mr. Corker).
  Further, if present and voting the Senator from Tennessee (Mr. 
Corker) would have voted ``no.''
  The PRESIDING OFFICER (Mr. Blumenthal). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 56, nays 41, as follows:

                      [Rollcall Vote No. 125 Ex.]

                                YEAS--56

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

                                NAYS--41

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

                             NOT VOTING--3

     Casey
     Corker
     Lautenberg
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate prior to a vote on the Tavenner nomination.
  The question is, Will the Senate advise and consent to the nomination 
of Marilyn B. Tavenner, of Virginia, to be Administrator of the Centers 
for Medicare and Medicaid Services?
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. DURBIN. I announce that the Senator from Pennsylvania (Mr. Casey) 
and the Senator from New Jersey (Mr. Lautenberg) are necessarily 
absent.
  The result was announced--yeas 91, nays 7, as follows:

                      [Rollcall Vote No. 126 Ex.]

                                YEAS--91

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

                                NAYS--7

     Crapo
     Cruz
     Johnson (WI)
     Lee
     McConnell
     Paul
     Risch

                             NOT VOTING--2

     Casey
     Lautenberg
       
  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 will be immediately notified of the Senate's action.

                          ____________________