[Congressional Record (Bound Edition), Volume 159 (2013), Part 6]
[Senate]
[Pages 8820-8826]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF NITZA I. QUINONES ALEJANDRO TO BE UNITED STATES DISTRICT 
             JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                                 ______
                                 

NOMINATION OF JEFFREY L. SCHMEHL TO BE UNITED STATES DISTRICT JUDGE FOR 
                  THE EASTERN DISTRICT OF PENNSYLVANIA

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nominations 
which the clerk will report.
  The assistant legislative clerk read the nominations of Nitza I. 
Quinones Alejandro, of Pennsylvania, to be United States District Judge 
for the Eastern District of Pennsylvania, and Jeffrey L. Schmehl, of 
Pennsylvania, to be United States District Judge for the Eastern 
District of Pennsylvania.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes of debate equally divided in the usual form.
  The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent that all time be allocated equally as previously 
agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CASEY. 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the quorum call be rescinded.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. CASEY. Mr. President, I know we are going to be voting in a 
matter of minutes on two judicial nominees for the Eastern District of 
Pennsylvania, which is the eastern side of our State. Obviously, these 
appointments are critically important to justice and critically 
important to litigants who come before these courts, whether they are 
civil or criminal matters.
  These candidates go through an exhaustive review process. That is 
probably an understatement. The process includes the nomination through 
the White House under any administration and then the process continues 
through the Senate. There are all kinds of reviews. So we are finally 
to this point. It has been a very long road and we are grateful for 
that.
  One of the votes will be by voice potentially and one will be a 
rollcall vote. I wish to speak about both candidates. I spoke about 
them yesterday, but I will speak briefly this morning.
  First of all, Judge Quinones, who has served in the city of 
Philadelphia, has served on the common pleas court in the city of 
Philadelphia since 1991, in what is known as the First Judicial 
District of Pennsylvania, which is the trial court in the city of 
Philadelphia. One can just imagine, in a big city such as Philadelphia, 
all of the matters a judge such as Judge Quinones would deal with over 
the course of more than two decades now, dealing with civil and 
criminal cases, all kinds of difficult and complex matters that come 
before a judge. In essence, she has been performing the same functions 
as a county judge that she would on the Federal district court. So I 
think she is more than prepared to take on this assignment.
  In her case, this is also a great American story. Judge Quinones was 
born in Puerto Rico, educated there, and came to the United States. As 
I said, since 1991 she has been on the court of common pleas in 
Philadelphia. Prior to that, she was an arbitrator for more than a 
decade. She worked in the Department of Veterans Affairs. She worked in 
the Department of Health and Human Services. She did a lot of work in 
the 1970s for Community Legal Services of Philadelphia. So that speaks 
to a broad range of experience and expertise dealing with litigants and 
representing clients, which is so important in our system. She is 
someone who takes on the responsibility to represent someone in court 
so they may have their day in court, which is one of the foundational 
principles of our government. Then, of course, she later served as a 
judge, as I mentioned.
  So it is not only a resume and a life story that speaks to experience 
and knowledge and insight when it comes to dealing with complex matters 
that come before the Federal courts, but it is also in a very personal 
way a great American story. So I am particularly grateful that her 
nomination is now coming to the Senate floor and that we will be able 
to have a vote on her nomination today.
  I have enjoyed working with Senator Toomey on both of these 
nominations. Both of us represent a big and diverse State, one Democrat 
and one Republican, working through this process together, these 
judicial appointments.
  We will be voting as well on a second judge in the Eastern District 
of Pennsylvania: Judge Jeffrey Schmehl. I can say a lot of the same 
things about his experience. Judge Schmehl is now and has been the 
president judge of the Berks County Court of Common Pleas since 2007. 
So for many years now he has been in the trenches, so to speak, or to 
use an expression from the Bible, ``laboring the vineyards,'' dealing 
with cases of complex issues. Berks County, just by way of geographic 
orientation, is north of Philadelphia but on the eastern side of our 
State. It is a big county. It is a county that has a lot of matters 
that come before it that are particularly complex.
  He has served, as I mentioned, as the president judge of the court of 
common pleas, but then prior to that he was a judge on that same court 
from 1998 to 2007. So these are long periods of time, in both 
instances, for Judge Schmehl and Judge Quinones to serve on a court.
  For those who know something about our judicial system and know a bit 
about the difference between an appellate court, where we are dealing 
with appeals and legal arguments, as opposed to a trial court, which is 
where the action is in terms of litigants, trial judges have to preside 
over a trial as well as deal with and rule on evidentiary matters. They 
have to deal with witnesses and lawyers and all the complexities of a 
trial. As we all know, when your case is on trial, it is the most 
important case in the world.
  So these judges have tremendous experience as trial judges, and we 
are so grateful they are willing to put themselves forward not just to 
be nominated and today confirmed as judges, as I am sure they will be, 
but to put themselves forward for that kind of public service in a 
difficult environment, where the scrutiny and the review and the long 
road from nomination to confirmation can be very challenging.
  So again I will pay tribute to the work Senator Toomey has done 
working with us. He is on the floor, and I wish to thank him for that 
good work. And obviously I thank the chairman of the Judiciary 
Committee, Senator Leahy, who is on the floor as well. We appreciate 
him working with our offices to move these nominations forward.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, does the other Senator from Pennsylvania 
wish to say something?
  Mr. TOOMEY. Mr. President, I would like to speak for several minutes, 
principally about the two judicial nominees.
  Mr. LEAHY. I just want to make sure I have time prior to the vote at 
noon. How long does the Senator from Pennsylvania wish to speak?
  Mr. TOOMEY. I think I could wrap this up in less than 10 minutes.

[[Page 8821]]


  Mr. LEAHY. OK. Then, Mr. President, I simply ask unanimous consent 
that there be 4 minutes for the Senator from Vermont at the conclusion 
of the comments of the Senator from Pennsylvania.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Because these nominees are from his State, I will step 
aside and let the Senator go forward.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I thank the chairman of the Judiciary 
Committee.
  I do want to speak principally about the two nominees from 
Pennsylvania, both of whom I strongly support, and I am delighted they 
are going to get their votes today. But before I do that, I do want to 
put just a little bit of context on judicial nominations and 
confirmations as a general matter because I think it is important that 
we understand this.
  In my own experience in the 2\1/2\ years I have been in the Senate, I 
know I have voted to confirm the vast majority of judicial nominees 
whom President Obama has proposed for us. In fact, since President 
Obama became President, the Senate has confirmed 193 district court 
nominees and blocked 2. That is a confirmation rate of about 99 
percent. In the last Congress, the 112th Congress confirmed more judges 
than any Congress in 20 years. So by any reasonable measure, we are 
confirming judges at a terrific rate. Republicans are cooperating and 
confirming the nominees of a Democratic President, and this is as it 
should be when the nominees are competent, as they have been.
  So President Obama is enjoying a rate of confirmation of judges that 
is far greater than the rate President Bush, for instance, enjoyed or 
most other previous recent Presidents, which is part of the reason why 
I am concerned when I hear persistent rumors that the majority leader 
is considering invoking the nuclear option and breaking the rules so he 
can change the rules as to how nominees get confirmed. I do not 
understand why there is a problem that would require this. If he were 
to do this, this would be in direct contradiction to a commitment he 
made to all of us very publicly that he would not do this. So I really 
hope that Senator Reid will keep his word and that he will not break 
the rules in order to change the rules.
  He stated very clearly in January of 2011 that--I will quote Senator 
Reid:

       I agree that the proper way to change Senate rules is 
     through the procedures established in those rules, and I will 
     oppose any effort in this Congress or the next to change the 
     Senate's rules other than through the regular order.

  I would remind my colleagues that earlier this year Republicans went 
along with a rule change about which I had real reservations. I 
personally could not support it, but most Republicans did. It changed 
the rules, forfeiting some of the power we have as a minority, granting 
the majority greater flexibility to go to a bill without assuring us we 
would be able to offer the amendments we would like. We granted that to 
the majority in part because we got another explicit commitment that 
there would be no nuclear rule change if we made that agreement. Well, 
we did, at least as a party and as a body.
  So, again, I certainly hope Senator Reid will honor the promise he 
made that was part of that understanding, where he said in January of 
this year, in an exchange with Senator McConnell--Senator Reid said:

       Any other resolutions related to Senate procedure would be 
     subject to a regular order process including consideration by 
     the Rules Committee.

  I would add, that means a 67-vote majority in the Senate because that 
is the way you change the rules in accordance with the rules.


                            Sarah Murnaghan

  Having said that, I want to also make a brief mention of some 
terrific news we got in Pennsylvania; that is, the opportunity for a 
little girl named Sarah Murnaghan to have a lung transplant she had 
been waiting for. I have spoken about this on the Senate floor. A 
Federal judge in the Eastern District of Pennsylvania issued a 
temporary restraining order forbidding a rule that was keeping her off 
the transplant list to be a potential recipient of a donor lung 
transplant. Fortunately, by virtue of that restraining order, she was 
able to go on the list and receive the lung transplant. She had an 
emergency surgery just yesterday that seems to have gone very well, and 
we are all delighted for that and wishing for her speedy and full 
recovery.
  Having said that, as I indicated to the chairman, I wanted to come 
down principally to say how pleased I am that we are going to vote 
today and I believe confirm both Judge Jeffrey Schmehl and Judge Nitza 
Quinones, who are two nominees for the Eastern District of 
Pennsylvania. Both are eminently qualified, terrific individuals who 
come highly recommended.
  I commend Senator Casey. He and I have worked together since I have 
been here. He has been terrific to work with. We have looked to 
identify some of the most capable and talented people. I would like to 
mention a couple of the things I know Senator Casey mentioned.
  Judge Schmehl is a terrific guy. He is the president judge of the 
Berks County Court of Common Pleas. His candidacy was approved by a 
voice vote in the Senate Judiciary Committee. He is a graduate of 
Dickinson College. He has his J.D. from the University of Toledo School 
of Law. He has served as a public defender. He has served in private 
practice. After 9 years at a law firm, he was elected to the Berks 
County Court of Common Pleas, where his colleagues made him the 
president judge. He is a very bright individual. He has a keen 
intellect, a great judicial temperament. He has done a great job on the 
Berks County court, and he will make a great Federal judge. I hope my 
colleagues will support his candidacy.
  Nitza Quinones is a native of Puerto Rico. She is a graduate of the 
University of Puerto Rico School of Business Administration. At the 
University of Puerto Rico, she got her J.D. She has demonstrated a 
terrific commitment to the legal community and beyond that in 
Philadelphia. She has been very active mentoring young people--law 
students in particular--and is a great advocate of civic education for 
high school students. She has served on the Philadelphia Court of 
Common Pleas since 1991, presiding over a very large number of very 
diverse cases. She has extensive experience in the courtroom. She has 
demonstrated her ability, her commitment, her judicial temperament. 
Yet, as it happens, she will be the first Latino judge on the Eastern 
District of Pennsylvania court.
  I think it is terrific that we are able to vote today to confirm both 
of these judges. I look forward to continuing to work with Senator 
Casey to fill the remaining vacancies across Pennsylvania. I thank 
Chairman Leahy for his work in advancing these nominees. I urge my 
colleagues to support their confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I appreciate the words of both Senators 
from Pennsylvania. I would note there are currently three nominations 
pending for vacancies in the Eastern District of Pennsylvania. All 
three have the bipartisan support of their home State Senators. All 
three were reported unanimously by the Judiciary Committee 3 months 
ago. Yet Senate Republicans are permitting votes on only two of them. 
They are forcing Judge Luis Restrepo to continue to wait for a vote 
even though he would fill a seat that has been vacant for 4 years.
  I mention this because we talk about how things move during this 
President's tenure as compared to that of his predecessor. At the end 
of President Bush's second term, I was chairman of the Judiciary 
Committee and I expedited confirmations of three of his nominees to 
this same court--three, not just allowing two to go through, as my 
friends on the other side of the aisle are today--and not having to 
wait for months and months. Those three were confirmed by voice vote. 
So you know how long it took, we had reported them out of the Judiciary 
Committee the day before. They were confirmed along with 7 other 
district court

[[Page 8822]]

nominees for a total of 10 that day. We got them out of committee and 
voted them by voice vote. But now we have seven judicial nominees on 
the calendar, and Republicans are only allowing us to vote on two of 
them.
  This is just the latest example of Senate Republicans insisting that 
President Obama play by a different set of rules than they had for 
President Bush. It was perfectly fine to expedite President Bush's 
three nominees to the Eastern District of Pennsylvania and to confirm 
them all on the same day, along with seven others. We had Democratic 
control of the Senate, and we moved them that way. But now with 
President Obama they refuse to proceed with the seven nominees who are 
pending on the Calendar. They will not even proceed with the three 
judicial nominees needed in the Eastern District of Pennsylvania.
  So let's not talk about how Presidents are treated. I am not sure 
what it is that is different about President Obama, but his nominees 
get delayed, delayed, and delayed, unlike--and I use Pennsylvania as an 
example--where we vote out three, unanimously, of President Bush's 
nominees on one day and confirm them by voice vote the next day, along 
with seven others. Here they are refusing to proceed with the seven 
nominees on the Calendar. They will not even proceed with all three of 
the judicial nominees for the Eastern District of Pennsylvania. There 
are currently seven vacancies on that court--seven. The Eastern 
District of Pennsylvania needs judges.
  Like the two nominees we will be permitted to vote on today, Judge 
Restrepo has the support of his Republican home State Senator as well 
as every single Republican member of the Judiciary Committee. So let's 
not make him and the people of Pennsylvania wait.
  Frankly, there is no good reason Nitza Quinones Alejandro and Jeffrey 
Schmehl should have waited this long for a vote. There is no good 
reason why, when half of President Bush's consensus district nominees 
waited 18 days or fewer after being sent to the Senate by the Judiciary 
Committee during his first term, these consensus nominees should have 
had to wait almost 100 days. This contributes to the unprecedented 
delays and obstruction of President Obama's consensus judicial 
nominees.
  I read comments last week by Judge James Brady of the Middle District 
of Louisiana expressing concern about what has happened to the judicial 
confirmation process. Shelly Dick was confirmed this year to that court 
after months of delay, and the Advocate article noted the ``strain the 
empty judgeship had on a district overburdened with cases.'' Judge 
Brady was quoted saying of the confirmation process: ``It's just crazy, 
and we need to do something about that.'' I could not agree more. Judge 
Brady added that the delays in the process are ``driving away a lot of 
really good folks that would make excellent judges because they're 
saying, `I don't need to go through that process and be in limbo for 
18, 20, 24 months.' That's something I'm very, very concerned about.'' 
We should all share that concern, especially Senators who are looking 
for district nominees to recommend to the President. I ask that this 
article, entitled ``Nomination Delays Hurting Courts, Federal Judge 
Says,'' be printed in the Record at the conclusion of my statement.
  The recent assertion by Senate Republicans that 99 percent of 
President Obama's nominees have been confirmed is just not accurate. He 
has nominated 237 individuals to be circuit or district judges, and 193 
have been confirmed. That is 81 percent. By way of comparison, at the 
same point in President Bush's second term, June 13 of his fifth year 
in office, President Bush had nominated four fewer people, but had seen 
214 of them confirmed, or 92 percent. That is an apples to apples 
comparison, and it demonstrates the undeniable fact that the Senate has 
confirmed a lower number and lower percentage of President Obama's 
nominees than President Bush's nominees at the same time in their 
presidencies.
  I noted at the end of last year while Senate Republicans were 
insisting on delaying confirmations of 15 judicial nominees that could 
and should have taken place then, and that we would not likely be 
allowed to complete work on them until May. That was precisely the 
Republican plan. So when Senate Republicans now seek to claim credit 
for their confirmations in President Obama's second term, they are 
falsely inflating the confirmation statistics. The truth is that only 
seven confirmations have taken place this year that are not 
attributable to those nominations they held over from last year and 
that could and should have taken place last year. To return to the 
baseball analogy, if a baseball player goes 0-for-9, and then gets a 
hit, we do not say he is an all-star because he is batting 1.000 in his 
last at bat. We recognize that he is just 1-for-10, and not a very good 
hitter. Nor would a fair calculation of hits or home runs allow a 
player to credit those that occurred in one game or season to the next 
because it would make his stats look better.
  I was Chairman of the Judiciary Committee for 17 months during 
President Bush's first term, so I know something about how President 
Bush's nominees were treated. During those 17 months, 100 of them were 
confirmed. In the 31 months that Republicans controlled the Senate 
during President Bush's first term, 105 of his circuit and district 
nominees were confirmed. That is, it took them almost twice as long to 
make as much progress as I had as Chairman. Even when Senate Democrats 
were in the minority, we worked with the Republicans to bring the 
number of vacancies all the way down to 28. Vacancies have remained 
near or above 80 for 4 years during the Obama presidency. In the last 4 
years, Senate Republicans have never let vacancies get below 72. At 
this point in the fifth year of the Bush presidency there were 44 
vacancies. Today they remain almost double that amount. Despite Senate 
Republicans who make self-congratulatory statements about ``progress'' 
this year, we are not even keeping up with attrition. Vacancies have 
increased, not decreased, since the start of this year.
  If President Obama's nominees were receiving the same treatment as 
President Bush's, Judge Srinivasan would have been the 210th 
confirmation, not the 193rd and vacancies would be far lower. The 
nonpartisan Congressional Research Service has noted that it will 
require 33 more district and circuit confirmations this year to match 
President Bush's 5-year total. Even with the confirmations finally 
concluded during the first 6 months of this year, Senate Republicans 
have still not allowed President Obama to match the record of President 
Bush's first term. Even with an extra 6 months, we are still a dozen 
confirmations behind where we were at the end of 2004.
  In addition to the obstruction of circuit and district nominees, I am 
deeply concerned about the impact of sequestration on our Federal 
courts. I continue to hear from judges and legal professionals around 
the country who worry about the impact of these senseless budget cuts, 
and I share their concern. A recent evaluation of sequestration 
concluded: ``Its impact on the operation of the [F]ederal courts will 
be devastating and longlasting.'' Sequestration will exacerbate the 
delays our courts already face due to persistent understaffing, both 
for civil and criminal cases. According to the Executive Summary of 
``FY 2013 Sequestration Impacts on the Federal Judiciary,'' ``Delays in 
cases will harm individuals, small businesses, and corporations,'' 
while the ``cuts to funding for drug testing, substance abuse and 
mental health treatment of federal defendants and offenders have also 
been made, increasing further the risk to public safety.'' I ask that 
the full summary be printed in the Record at the conclusion of my 
statement.
  Judge Nitza Quinones Alejandro has served as a judge on the Court of 
Common Pleas for the First Judicial District of Pennsylvania since 
1991. Prior to being a judge, Judge Quinones worked as a solo 
practitioner, a staff attorney with the U.S. Department of Veterans 
Affairs, an Attorney Advisor with the U.S. Department of Health and 
Human Services' Bureau of Hearings and Appeals, and a staff attorney

[[Page 8823]]

at Community Legal Services, Inc. When confirmed, Judge Quinones will 
be the first openly gay Latina judge to serve on the Federal bench. 
Judge Quinones was also Pennsylvania's first Latina judge.
  Judge Jeffrey Schmehl currently serves as the President Judge in 
Berks County, where he has been an active member of the bench since 
1997. Prior to becoming a judge, Judge Schmehl served in various 
capacities in private practice, including as an associate and partner 
at Rhoda, Stoudt & Bradley and as a solo practitioner at the Law 
Offices of Jeffrey L. Schmehl, Esq. While working in private practice, 
Judge Schmehl was also a Berks County Solicitor from 1989 to 1997. In 
addition to his experience in private practice, Judge Schmehl has 
served as an assistant district attorney and as an assistant public 
defender for Berks County.
  I want the Senate to make real progress on filling judicial vacancies 
so that the American people have access to justice. Before the recess, 
the minority leader asked during a floor debate when Gregory Phillips, 
the Wyoming nominee to the Tenth Circuit, would receive a vote.
  Majority Leader Reid said: OK, let's vote on him right now.
  They said: Well, we are not ready.
  I hope the American people were watching, because there should be no 
ambiguity about this: The only reason the Senate is not voting today on 
Judge Restrepo, Attorney General Phillips, or the other seven judicial 
nominees pending on the Calendar is because of Republican refusal to 
allow such votes. They could be voted on today. We ought to do it. 
These nominees deserve better, and the American people deserve better.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         FY 2013 Sequestration Impacts on the Federal Judiciary


                Sequestration and the Federal Judiciary

       On March 26, 2013, the President signed Public Law 113-6, 
     the Consolidated and Further Continuing Appropriations Act of 
     2013, which provides full-year FY 2013 funding for the 
     federal government, including the Judiciary. The bill leaves 
     in place the government-wide sequestration cuts mandated 
     under the Budget Control Act of 2011.
       Sequestration reduces Judiciary funding overall by nearly 
     $350 million below the FY 2012 discretionary funding. The 
     impact of sequestration on the Judiciary is compounded by the 
     fact that the Judiciary has no control over its workload--the 
     courts must react to the cases which it receives from the 
     Executive Branch, individuals and businesses--overall, that 
     workload has not declined. In addition, unlike most Executive 
     Branch entities, the Judiciary has little flexibility to move 
     funds between appropriations accounts to lessen the effects 
     of sequestration. There are no lower-priority programs to 
     reduce to transfer to other accounts.


                 Impact of Sequestration on the Courts

       Sequestration places unprecedented pressure on the federal 
     Judiciary's administration of justice. Its impact on the 
     operation of the federal courts will be devastating and 
     longlasting.
       To mitigate the impact of sequestration on employees, the 
     courts have slashed non-salary budgets (training, information 
     technology, supplies and equipment), which is possible for 
     one fiscal year, but cannot be sustained into future years. 
     Even with these reductions, on a national level, up to 1,000 
     court employees could be laid off, or thousands of employees 
     could face furloughs before the end of the year. These 
     staffing losses will come on top of the nearly 2,200 
     probation officers and clerks office staff the courts have 
     already lost since the end of July 2011.
       Cuts in staffing will result in the slower processing of 
     civil and bankruptcy cases. Delays in cases will harm 
     individuals, small businesses, and corporations.
       Sequestration has also reduced funding for probation and 
     pretrial officer staffing throughout the courts, which means 
     less deterrence, detection, and response to possible resumed 
     criminal activity by federal defendants and offenders in the 
     community. In addition, law enforcement funding to support 
     GPS and other electronic monitoring of potentially dangerous 
     defendants and offenders has been cut 20%. Equivalent cuts to 
     funding for drug testing, substance abuse and mental health 
     treatment of federal defendants and offenders have also been 
     made, increasing further the risk to public safety.
       Security systems and equipment in our Court Security 
     program have been cut 25% and court security officers' hours 
     have been reduced. These reductions come at a time of 
     heightened security resulting from the prosecutor murders in 
     Texas and the Boston bombings. A high level of security of 
     judges, prosecutors, defense counsel, jurors and litigants 
     entering our courthouses must be maintained.


    Impact of Sequestration on Representation of Indigent Offenders

       For Defender Services, incorporating enacted 
     appropriations, offset by sequestration, results in a $51 
     million shortfall in funding below minimum requirements. This 
     program has no flexibility to absorb such large cuts. It is 
     almost totally comprised of compensation to federal 
     defenders, rent, case related expenses (expert witnesses, 
     interpreters, etc.), and payments to private panel attorneys. 
     The only way to absorb the $51 million shortfall is to reduce 
     staffing or defer payments to private panel attorneys.
       The Executive Committee examined all aspects of the 
     account, scrubbed expenses where possible, and approved a 
     spending plan that will result in federal defender offices 
     having to cut staff and furlough employees an average of 
     approximately 15 days. The approved spending plan will also 
     halt payments to private panel attorneys for the last 15 
     business days of the fiscal year. This will shift these 
     expenses to FY 2014, which were not considered as part of the 
     Judiciary's FY 2014 budget request to Congress, and add to FY 
     2014 appropriation requirements.
       The uncertainty of the availability of federal defender 
     attorneys and the anticipated suspension of panel attorney 
     payments will create the real possibility that panel 
     attorneys may decline to accept Criminal Justice Act 
     appointments in cases that otherwise would have been 
     represented by FDOs. Delays in the cases moving forward may 
     result in violations of constitutional and statutory speedy 
     trial mandates resulting in criminal cases being dismissed.
       Since all non-case related expenses in this account have 
     already been reduced, the only solution to avoiding these 
     impacts is for Congress to provide additional funds.


                      Supplemental Appropriations

       The Judiciary transmitted to the Office of Management and 
     Budget and the Congress an FY 2013 emergency supplemental 
     request that seeks $72.9 million to mitigate the devastating 
     impact of sequestration on defender services, probation and 
     pretrial services offices, court staffing, and court 
     security. The request includes $31.5 million for the Courts' 
     Salaries and Expenses account, and $41.4 million for the 
     Defender Services account.
       Courts' Salaries and Expenses:
       $18.5 million will be used to avoid further staffing cuts 
     and furloughs in clerks of court and probation and pretrial 
     services offices during the fourth quarter of FY 2013. This 
     funding will save the jobs of approximately 500 court 
     employees and avoid 14,400 planned furlough days for 3,300 
     court employees.
       $13.0 million will restore half of the sequestration cuts 
     to drug testing and substance abuse and mental health 
     treatment services for defendants awaiting trial and 
     offenders released from prison.
       Defender Services:
       $27.7 million is required to avoid deferring payments to 
     private attorneys for the last 15 business days (3 weeks) of 
     the fiscal year.
       $8.7 million is needed to avoid further staffing cuts and 
     furloughs in federal defender organizations during the fourth 
     quarter of FY 2013. This funding will save the jobs of 
     approximately 50 employees and avoid 9,600 planned furlough 
     days for 1,700 federal defender organization employees.
       $5.0 million is for projected defense representation and 
     related expert costs for high-threat trials, including high-
     threat cases in New York and Boston that, absent 
     sequestration, the Defender Services program would have been 
     able to absorb.
       Executive branch agencies with criminal justice 
     responsibilities have had the flexibility and resources to 
     address their FY 2013 post-sequestration requirements. As a 
     result, these agencies--which directly impact the workload of 
     the Judiciary--have been able to avoid furloughs. The 
     Judiciary has no such flexibility and instead must ask 
     Congress to approve a supplemental appropriation.


                   Cost Containment in the Judiciary

       Cost containment is not new to the Judiciary. In 2004, as a 
     result of an unexpected shortfall in funding, the Judicial 
     Conference endorsed a cost containment strategy that called 
     for examining more than 50 court operations for reducing 
     expenses. Since then, the Judiciary has focused on three that 
     have the greatest potential for significant long-term 
     savings: rent, personnel expenses, and information 
     technology. To date, the Judiciary has cut costs by $1.1 
     billion.
       The Judiciary's approach to cost containment is to 
     continuously challenge our ways of doing business and to 
     identify, wherever possible, ways to economize even further. 
     This can be a painful process as we are often proposing 
     changes to long established Judiciary customs and practices 
     and we sometimes face opposition from within. But we are 
     committed to doing everything we can to conserve resources 
     and be good stewards of the taxpayers' money.
       While cost containment has been helpful during the last 
     several years of flat budgets, it will not come close to 
     offsetting the major reductions we face from sequestration.

[[Page 8824]]

     
                                  ____
          Nomination Delays Hurting Courts, Federal Judge Says

                (By Jim Mustian, Advocate staff writer)


                    Long delays drive away nominees

       U.S. District Judge James J. Brady spoke out Monday against 
     the increasingly glacial pace of judicial nominations, 
     calling on U.S. Senate leaders to ``come to their senses'' 
     and recognize the toll a vacant bench has on the court 
     system.
       ``It's just crazy, and we need to do something about 
     that,'' said Brady, who sits in the Middle District of 
     Louisiana in Baton Rouge. ``What's happening, in my mind, is 
     we're driving away a lot of really good folks that would make 
     excellent judges because they're saying, `I don't need to go 
     through that process and be in limbo for 18, 20, 24 months.' 
     That's something I'm very, very concerned about.''
       Brady's remarks, made to more than two dozen people 
     attending a Catholic Community Radio luncheon, came less than 
     a month after Baton Rouge attorney Shelly Dick was confirmed 
     as the Middle District's first female federal judge more than 
     a year after being nominated by President Barack Obama.
       Dick's nomination was initially blocked by U.S. Sen. David 
     Vitter, who had been holding out hope that Obama would lose 
     to Republican presidential nominee Mitt Romney. Vitter, R-
     La., who said at the time he wanted to ``let the people 
     speak,'' later withdrew his block and backed Dick's 
     confirmation after Obama won re-election months later.
       Brady did not refer specifically to the delays in Dick's 
     confirmation, but he alluded to the strain the empty 
     judgeship had on a district overburdened with cases. Dick 
     already has been assigned nearly a third of the district's 
     877 pending civil cases, Brady said.
       The federal Middle District of Louisiana includes the 
     parishes of East Baton Rouge, West Baton Rouge, East 
     Feliciana, West Feliciana, Pointe Coupee, Iberville, 
     Ascension, Livingston and St. Helena.
       ``Getting a third judge has been a real relief for us,'' 
     Brady said. ``It helps people get their cases decided much 
     more promptly and, I think, in a much better fashion.''
       Delays in judicial nominations due to political differences 
     have become increasingly common in recent years. During 
     Obama's first term, the average wait time from nomination to 
     confirmation was more than six months for nominees to circuit 
     and district court judgeships, according to a recent report 
     by the Congressional Research Service.
       ``It's gotten to be now that it's almost like you're going 
     to paint a big bullseye on anyone who's nominated as a 
     federal judge,'' said Brady, whose own confirmation in 2000 
     took a little less than a year.
       Then-President Bill Clinton nominated Brady for the 
     judgeship.
       Brady suggested that concerns over district court nominees 
     are often overblown, noting he and his colleagues adhere to 
     parameters set forth by the higher circuit courts and U.S. 
     Supreme Court.
       ``I don't care if you're a Democratic appointee or a 
     Republican appointee, you're going to follow those laws, the 
     precedents that those courts have set,'' Brady said. ``I 
     don't know of anyone that deliberately goes out and tries to 
     rule against those precedents.''
       Brady's remarks were unusual for a federal judge but were 
     prompted by the ``unusual times'' gripping the federal 
     courts, said Carl W. Tobias, a University of Richmond law 
     professor who is an expert on judicial nominations.
       ``An increasing number of judges and other people are very 
     concerned about the (nomination) process and how long it 
     takes to move people through it,'' Tobias said. ``You have 
     Exhibit A with Shelly Dick right there in Baton Rouge.''
       Tobias said he was glad to hear of Brady speaking publicly 
     about the issue.
       ``I think it's important for people to understand what's 
     going on, and nobody knows better than the judges,'' he said. 
     ``They have to live with it.''

  Mr. LEAHY. I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I urge my colleagues to vote for the 
nominees who are before the Senate today.
  At this point in President Obama's term, when we get done with these 
two today, we will have approved 195 of the President's judicial 
appointments, and we have only disapproved 2. That is a 99-plus percent 
voting record.
  It would help if the President would speed up getting his nominees to 
the Senate. There are 81 vacancies now. The President has only 
submitted 29. That means there are 52 vacancies that could be filled by 
the White House that the Senate would have an opportunity to work on as 
well.
  So far this year, the Senate has confirmed 22 lower court nominees. 
Today, after these nominees are confirmed, we will have confirmed more 
than twice the number of district and circuit judges that were 
confirmed at this point in President Bush's second term. In fact, we 
will have confirmed more lower-court nominees than were confirmed in 
the entire first year of President Bush's second term.
  Think about that--I will repeat it. In the 5 months of this 
President's second term while we have been in session, we have 
confirmed more district and circuit judges than were confirmed in the 
entire first year of President Bush's second term.
  The bottom line is that the Senate is processing the President's 
nominees exceptionally fairly. He is being treated much more fairly 
than Senate Democrats treated President Bush in 2005.
  So I just wanted to set the record straight before we vote on these 
nominees. I expect they will both be confirmed and I congratulate them 
on their confirmations.
  Judge Quinones received her B.B.A. from the University of Puerto Rico 
in 1972 and her J.D. from the University of Puerto Rico School of Law 
in 1975. Upon graduation, she worked as a staff attorney with Community 
Legal Services in Philadelphia, where she focused on strictly civil and 
administrative matters, appearing predominately in family court and 
before administrative judges.
  From 1977 to 1979, Judge Quinones wrote opinions in support of 
decisions rendered by an Administrative Judge at the Department of 
Health & Human Services. From 1979 to 1991, she was a staff attorney at 
the Department of Veterans Affairs, VA, where her practice involved the 
interpretation and application of the VA's administrative rules and 
regulations. During this time, she also appeared in State court and 
administrative agencies to represent the VA before the Equal Employment 
Opportunity Commission and Merit Systems Protection Board. 
Additionally, from 1980 to 1991, Quinones worked as an arbitrator for 
the Arbitration Center at the Philadelphia Court of Common Pleas, 
designed to dispose of small civil cases. In 1991, Judge Quinones left 
the VA and established a solo practice. During this time she 
represented a criminal defendant and sat as an arbitrator in insurance 
matters.
  As a practicing attorney, Judge Quinones appeared in court with 
occasional frequency. She estimates that over the course of her pre-
judicial career, she tried 20 cases in family court, 300 commitment 
hearings before a Mental Health officer, pursuant to her work at the 
VA, and 600 administrative hearings.
  In 1990, Judge Quinones was nominated by then Governor Robert Casey 
to a judgeship on the Court of Common Pleas for the First Judicial 
District of Pennsylvania, a court of general jurisdiction. She was 
confirmed, but also engaged in a judicial election, and secured the 
first of three 10-year terms in 1992. She won the later terms in 
November 2001 and 2011.
  Judge Quinones has experience in both criminal and civil divisions, 
has presided over both jury and nonjury trials, and has supervised 
nearly every step in the trial process. Judge Quinones has presided 
over approximately 1,500 criminal trials and 300 civil trials.
  The American Bar Association's Standing Committee on the Federal 
Judiciary gave her a Majority ``Qualified'' and Minority ``Not 
Qualified'' rating.
  Judge Schmehl received his B.A. from Dickinson College in 1977 and 
his J.D. from University of Toledo School of Law in 1980. Early in his 
career, he focused on criminal law, first as an Assistant Public 
Defender, then as an Assistant District Attorney. In these capacities, 
he tried all types of criminal cases, from DUI to murder. During his 
time as Assistant District Attorney, Judge Schmehl also had his own 
private civil practice, handling wills, estates, real estate matters, 
workers' compensation cases, and unemployment compensation cases.
  In 1986, Judge Schmehl left private practice and the District 
Attorney's office to join the private law firm Rhoda, Stoudt, & 
Bradley. There he worked on insurance defense work and plaintiffs' 
personal injury cases. As a practicing

[[Page 8825]]

attorney, he has tried approximately 200 cases to verdict, judgment, or 
final decision, serving as sole counsel or chief counsel in almost all 
of them.
  In 1997, Judge Schmehl was nominated by both the Democratic and 
Republican parties for a judicial position in the Berks County Court of 
Common Pleas and later elected to the bench. In 2007, he was appointed 
to a 5-year term as President Judge in the same court and remains there 
today. Judge Schmehl has presided over approximately 180 cases that 
have gone to verdict.
  The American Bar Association's Standing Committee on the Federal 
Judiciary gave him a majority ``Well Qualified'' and minority 
``Qualified'' rating.
  I also am going to take a couple minutes to discuss something I would 
have discussed in the Judiciary Committee meeting this morning, but 
because of our vote I was not able to do it.
  First, I want to talk about the nominations hearing we had earlier 
this week on B. Todd Jones.
  There is an open investigation in the Office of Special Counsel 
regarding very troubling allegations that Mr. Jones retaliated against 
a whistleblower in the U.S. Attorney's Office.
  He is now up for confirmation for the Bureau of Alcohol, Tobacco, and 
Firearms.
  Mr. President, how much time remains until the vote?
  The PRESIDING OFFICER. The Senator has 3 minutes remaining.
  Mr. GRASSLEY. Last week Carolyn Lerner, the special counsel who leads 
the office, wrote us a letter explaining the status of the matter. She 
wrote that the parties had agreed to participate in mediation. She also 
wrote, ``If mediation is unsuccessful, the case would return to the 
Office of Special Counsel's Investigation Prosecution Division for 
further investigation.''
  On Monday, she wrote us another letter confirming that the case was 
still open. We were told the reason we had to move forward with the 
hearing was because an April letter from the Office of Special Counsel 
was made public. The justification for holding the hearing was since 
that issue was made public, the nominee should have had an opportunity 
to respond at the hearing.
  But, of course, there was nothing confidential in the Office of 
Special Counsel's letter. I am not about to hide this issue from the 
public. It is relevant to our inquiry as to the qualifications of the 
nominee. Moving forward under these circumstances is not consistent 
with past committee practices. Of course, there are sensible reasons 
for that committee practice.
  First, none of us knows what the results of that investigation might 
be. How are we supposed to make an assessment of the matter while it is 
still open? Second, how are we supposed to ask the nominee about the 
results of the investigation when the investigation has not been 
completed? And, third, how are we supposed to ask the nominee about an 
open investigation when the nominee will claim he cannot talk about it 
for that exact reason?
  I would also note that an assistant U.S. attorney who filed the 
complaint against Mr. Jones gave his consent on Monday for the Office 
of Special Counsel to provide the complaint to the committee. I must 
say the allegations in the complaint are extremely troubling. So I 
began my questions by asking Mr. Jones about these allegations.
  Here is what he had to say:

       Because those complaints are confidential as a matter of 
     law I have not seen the substance of the complaints nor can I 
     comment on what they are. I have learned more from your 
     statement today--

meaning, from this Senator,

     than what I knew before I came here this morning about the 
     nature and substance in the complaints.

  In other words, Mr. Jones said he could not answer questions about 
the Office of Special Counsel investigation because it remains open. 
This is precisely why it is imprudent to move forward with a hearing in 
this way. At his hearing, I followed up with another question to Mr. 
Jones, had he ever taken adverse personnel action? He responded:

       I'm not familiar with the OSC complaint. I'm at somewhat of 
     a disadvantage with the facts. I can say that the privacy act 
     considerations do fit into the picture.

  As another followup, I asked him how we were supposed to ask about 
the complaint if he would not answer it. Here is what Mr. Jones said:

       Well, quite frankly, Senator, I'm at a disadvantage with 
     the facts. There is a process in place. I have not seen the 
     OSC complaints.

  So we have a problem.
  So again, even though there is an open investigation, we were told we 
were going forward with the hearing so that Mr. Jones had an 
opportunity to answer the allegations. But whenever he was asked about 
it, he said he could not answer our questions because he had not seen 
the Complaint.
  So, my point about the hearing being premature was overwhelmingly 
proven.
  I also want to make a few comments about Tony West, nominated to be 
the Associate Attorney General. He is currently the Acting-Associate 
Attorney General and has generally done a good job. However, I remain 
concerned about his time serving as the Assistant Attorney General for 
the Civil Division.
  He was involved in the quid pro quo deal between the Department and 
the City of St. Paul, Minnesota that was orchestrated by Assistant 
Attorney General Tom Perez. That quid pro quo involved the Department 
agreeing to decline two False Claims Act cases pending against the City 
of St. Paul in exchange for the City dropping a case pending before the 
Supreme Court.
  Perhaps the most concerning part to me is that Mr. West essentially 
let Tom Perez take control of the Civil Division and cut this deal 
which hurt the whistleblower, Frederick Newell, leaving him to fight 
his case all alone. This is not how I expect the Department to treat 
good faith whistleblowers.
  On top of all that, I believe it is contrary to the assurances that I 
was given by Mr. West that he would protect whistleblowers and 
vigorously enforce the False Claims Act when we held his confirmation 
hearing in 2009. If this nominee is ultimately confirmed, I sincerely 
hope he does not let politics within the Department control, instead of 
supporting good faith whistleblowers who stick their necks out.
  I also wanted to address the nomination of Ms. Caproni, to be a 
District Judge. I have concerns over the fact that I made a request to 
the FBI over 6 years ago, asking for documents regarding exigent 
letters. In March 2007, Chairman Leahy and I requested copies of 
unclassified emails related to the use of National Security Letters 
issued by the FBI.
  I only received a few of these emails, and they were heavily 
redacted, so in 2008 I asked for the rest. Ms. Caproni, was general 
counsel of the FBI at the time and told me that the documents I was 
waiting for were on her desk, awaiting her review.
  Well, it is now 2013 and as of her hearing, I had never received 
these documents.
  I asked Ms. Caproni about this in her hearing and she had no specific 
recollection of this request. So, I asked her again in writing. This 
led to a set of FOIA documents being produced, which are a poor 
substitute for properly answering a committee request. It also raises 
further questions as to why it took 6 years and why Ms. Caproni told me 
years ago that she was working on responding to our request.
  I have followed up with the FBI with specific requests regarding Ms. 
Caproni's involvement in the matter. Therefore, while I did not hold 
Ms. Caproni's nomination in committee, I reserve my right to do so on 
the Senate floor.
  Concerning S. 394, the metal theft bill that we reported out this 
morning, I appreciate the changes that the sponsors made at my request 
to the criminal portion of the bill. The nature of the offense is 
clarified, and limited to the federal interest of critical 
infrastructure.
  The bill also now requires criminal intent as an element of the 
proposed offense. The negligence standard in the bill has been 
eliminated.
  However, I still have a number of concerns with this bill. The 
reality is that theft is already illegal everywhere in the country.
  So is receipt of stolen goods. That raises questions about the 
necessity of a new federal offense.

[[Page 8826]]

  The civil provisions are also duplicative of many State laws. The 
regulatory elements of this bill apply to any transaction in specified 
metal products exceeding $100. In my opinion, $100 seems to be a very 
low threshold.
  We should not impose federal obligations unless the transaction is of 
a significant amount.
  States can enforce their own laws if they have enacted a lower 
threshold.
  Some of the recordkeeping requirements are of questionable value. For 
instance, the recipient must record the license plate number and make 
of the car used to deliver the metal.
  Although the sponsors agreed to reduce the maximum amount, the dealer 
still faces up to a $5,000 penalty if he knowingly commits a paperwork 
violation, unless it is minor. This is true even if the metal is not 
stolen. That strikes me as excessive.
  And the sponsors declined to accept the changes that I sought in the 
civil provision, especially as enforced by the state attorneys general.
  Those provisions effectively allow a private right of action, even a 
class action, to enforce these paperwork violations at up to $5,000 per 
violation.
  Not only can federal authorities enforce the bill's civil 
authorities, but so can the States. If metal theft continues, then that 
diffuse authority undermines the ability of citizens to hold 
accountable the responsible level of government.
  This would allow the States to bring these cases in friendly State 
courts and expand the number of cases by outsourcing them to private 
lawyers paid under contingency fees.
  This leads to more enforcement than would occur if these cases had to 
compete for attention with other priorities that state attorneys 
general would bring.
  Excessive government can derive not only from broad laws, but from 
overzealous enforcement. The bill sponsors rejected my request that 
suits by the State AGs be filed only in federal court, and that any 
federal actions would supersede them.
  There should be transparency and accountability for these lawsuits 
that are brought under authority of federal law.
  I had amendments to discuss in markup, but will not do that here. 
However, when the full Senate takes up the bill, I will not be able to 
support it in its current form. I hope to work with the sponsors to 
address the concerns I have with this bill.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Will the Senate advise and consent to the nomination of Nitza I. 
Quinones Alejandro, of Pennsylvania, to be United States District Judge 
for the Eastern District of Pennsylvania?
  The nomination was confirmed.
  The PRESIDING OFFICER (Ms. Baldwin). Under the previous order, the 
question is, Will the Senate advise and consent to the nomination of 
Jeffrey L. Schmehl, of Pennsylvania, to be United States District Judge 
for the Eastern District of Pennsylvania?
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  The result was announced--yeas 100, nays 0, as follows:

                      [Rollcall Vote No. 149 Ex.]

                               YEAS--100

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Baucus
     Begich
     Bennet
     Blumenthal
     Blunt
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Chiesa
     Coats
     Coburn
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cowan
     Crapo
     Cruz
     Donnelly
     Durbin
     Enzi
     Feinstein
     Fischer
     Flake
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kaine
     King
     Kirk
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Paul
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Sanders
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Tester
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Vitter
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are made and laid on the table, and the President will be 
immediately notified of the Senate's action.

                          ____________________