[Congressional Record (Bound Edition), Volume 159 (2013), Part 8]
[Senate]
[Pages 10921-10924]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF GREGORY ALAN PHILLIPS TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE TENTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination which 
the clerk will report.
  The assistant legislative clerk read the nomination of Gregory Alan 
Phillips, of Wyoming, to be a United States Circuit Judge for the Tenth 
Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes of debate equally divided and controlled in the usual form.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I don't wish to in any way cut into the 
time of the senior Senator from Wyoming, but I hope once he and Senator 
Barrasso have finished speaking--once their time is consumed--we might 
agree that the vote will still be at 5:30, if possible, or as close to 
that time as possible.
  Our Constitution provides the Senate an important role to play in 
providing advice to the President and in voting on whether to confirm 
nominees for our third branch of government. Last month, we were 
reminded of the importance of these confirmation votes when the Supreme 
Court handed down several narrowly-decided opinions that are already 
impacting millions of Americans. As a senior member of this chamber, I 
have voted on the confirmation of every one of the nine justices 
currently serving. Since only a tiny percentage of cases brought in 
Federal court ever end up at the Supreme Court, the Federal courts of 
appeal are often the courts of last resort for most disputes. I am glad 
that today we are finally voting to confirm another appellate nominee.
  Before the Memorial Day recess, the minority leader asked during a 
floor debate when Gregory Phillips, the Wyoming nominee to the Tenth 
Circuit, would receive a vote. When the majority leader immediately 
offered a vote on that nominee, the minority leader demurred without 
giving any reason. Senate Republicans have now finally decided to allow 
the vote on Gregory Phillips to move forward, but there was no reason 
for this delay in his confirmation vote.
  Gregory Phillips is currently the attorney general of Wyoming, a 
position to which he was appointed by Wyoming's Republican Governor. 
From 2010 to 2011 he worked in the Wyoming attorney general's office as 
the special assistant to the Governor for legislative affairs. Prior to 
working in the Wyoming attorney general's office, he was an assistant 
U.S. attorney in Wyoming, and spent 14 years in private practice. 
Attorney general Phillips has also served as a part-time deputy county 
attorney, an assistant municipal judge and as a state senator. 
Following law school, he served as a law clerk to the Honorable Alan B. 
Johnson of the U.S. district court for the District of Wyoming. The ABA 
Standing Committee on the Federal Judiciary unanimously rated Mr. 
Phillips ``well qualified,'' its highest rating.
  At his Judiciary Committee hearing, Attorney General Phillips was 
introduced by his two Republican home State Senators, Senator Enzi and 
Senator Barrasso, both of whom strongly support his nomination. He was 
reported unanimously by the Judiciary Committee nearly 3 months ago. 
While his confirmation vote has not been delayed quite as long as votes 
on most of President Obama's nominees, he could and should have been 
confirmed last May when the majority leader offered.
  With the confirmation of Attorney General Phillips, there will be 10 
active judges on the Tenth Circuit. According to the most recent data, 
this means that the number of pending appeals per active judge on that 
court will drop from 150 to 135. I mention this because another 
appellate court, the DC Circuit, currently has 177 pending appeals per 
active judge. Despite that higher caseload, some Senate Republicans 
argue that the DC Circuit's caseload is too low, and that three of its 
judgeships should be eliminated. I suspect that many, if not all, of 
these Senators will vote to confirm Attorney General Phillips, even 
though his confirmation means that the Tenth Circuit will now have the 
lowest caseload in the country, just as earlier this year they 
supported the confirmation of Jane Kelly to the Eighth Circuit, which 
gave that court the lowest caseload in the country, and just as they 
supported the confirmation of Robert Bacharach to the Tenth Circuit, 
which gave that court the lowest caseload in the country. I hope those 
Senators will reconsider their double standard and not play politics 
with an independent branch of government.
  Some of the same Senate Republicans who are opposing President 
Obama's three nominees to the DC Circuit are also criticizing him for 
making too few nominations and somehow claiming that many vacancies 
without a nominee cannot possibly be the fault of Senate Republicans. I 
recall that before President Obama 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. They 
cannot have it both ways.
  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 other Senators should do the same. After all, if there 
are not enough judges in our home States, it is our own constituents 
who suffer. It should be only a matter of weeks or months, not years, 
for Senators to make recommendations.
  Unfortunately, in some States it appears as if there is no effort 
being made to recommend qualified nominees to the administration. There 
are three district vacancies in Georgia without nominees, and the 
oldest is over 4 years old. There are three district vacancies in 
Kentucky without nominees, and the oldest is over a year and a half 
old. There are seven district vacancies in Texas without nominees, and 
the oldest is over 4\1/2\ years old. Three months ago the Senators from 
Texas announced a nominations commission, but it is my understanding 
that it is still not accepting applications. If Senators want new 
judgeships in their States, they should be working especially hard to 
ensure that all existing ones are filled. Republican Senators who 
demanded to be consulted on nominations should live up to their 
responsibilities and fulfill their constitutional obligation to advise 
the President on nominations. They should follow the example of 
Democratic Senators: the administration has received recommendations 
for all current district vacancies in States represented by two 
Democratic Senators.
  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 nominations the President has made. I regret 
that I must correct the record, again, on how Senate Republicans have 
obstructed judicial nominees over the past 4 years. The continued 
assertion by Senate Republicans that 99 percent of President Obama's 
nominees have been confirmed is not accurate. President Obama has 
nominated 243 individuals to be circuit or

[[Page 10922]]

district judges, and 197 have been confirmed by the Senate. That is 81 
percent, not 99 percent. By way of comparison, at the same point in 
President Bush's second term, July 8 of his fifth year in office, 
President Bush had nominated 10 fewer people to be circuit or district 
judges, but had seen 215 of them confirmed, which is 18 more 
confirmations. The truth is that 92 percent of President Bush's 
judicial nominees had been confirmed at the same point, 11 percentage 
points more than have been allowed for President Obama. That is an 
apples-to-apples comparison, and it demonstrates the undeniable fact 
that the Senate has confirmed a lower number and a 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 should 
have taken place in wrap up, 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 inflating the confirmation 
statistics. The truth is that only 11 circuit and district 
confirmations have taken place this year that are not attributable to 
those nominations Senate Republicans needlessly held over from last 
year. To use a 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 to the 
next because it would make his stats look better.
  If President Obama's nominees were receiving the same treatment as 
President Bush's, today's vote would bring us to 215 confirmations, not 
198, and vacancies would be far lower. The nonpartisan Congressional 
Research Service has noted that it will require 29 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 even the record of President Bush's first term. Even with an 
extra 6 months, we are still eight confirmations behind where we were 
at the end of 2004.
  The assertion by some Senate Republicans that ``there is no 
difference in how this President's nominees are being treated versus 
how President Bush's nominees were treated'' is simply not supported by 
the facts. Compared to the same point in the Bush administration, there 
have been more nominees filibustered, fewer confirmations, and longer 
wait times for nominees, even though President Obama has nominated more 
people and there are more vacancies. And while Senate Republicans have 
taken to comparing President Obama's fifth year to President Bush's 
fifth year, the fact is that there were fewer confirmations then 
because we had done such good work in President Bush's first term, in 
particular the 100 confirmations we achieved during the 17 months in 
2001 and 2002 when I was chairman of the Judiciary Committee. In fact, 
from June 9, 2005, until October 20, 2005, there were no consensus 
judicial nominees on the Executive Calendar. So the only reason there 
have been more votes this year than in 2005 is that, contrary to 
Republicans' assertions, we have had more nominees this year, mostly 
because they were held over from last year by Senate Republicans.
  While the routine and sustained delays over the past 4 years are 
without precedent, Republicans point to June 2004 as the one time that 
there were a number of President Bush's nominees pending on the floor. 
I recall that in early 2004, President Bush had bypassed the Senate and 
recess appointed two controversial nominees to be circuit judges and 
that around that time we learned that Republican committee staff hacked 
into a shared server to pilfer Democratic files. Still, we were able to 
clear nominations by confirming more than 20 consensus nominees in just 
1 month. There is nothing like that to explain the years of backlogged 
judicial nominees during this administration.
  Context matters. Anyone can point to this example or that example, 
but when you look at the whole picture, it is clear that President 
Obama's nominees have faced unprecedented delays on the Senate floor 
and that his nominees have been less likely to be confirmed than 
President Bush's at the same point.
  But the context of these statistics also matters. Judicial 
nominations should not be about partisan tit for tat. Judicial 
vacancies impact millions of people, all across America, who depend on 
our Federal courts for justice. When you compare the Senate's record 
from 2001 to 2005, and from 2009 to 2013, it is clear that we are not 
meeting the standard we set for how quickly the Senate can act to fill 
judicial vacancies. Throughout my career, whether as a prosecutor or as 
chairman of the Judiciary Committee, I have fought for justice, and to 
ensure that people have access to justice and can have their day in 
court. That is why my recent statements have discussed not only the 
delays in the nominations process, but also the impact of sequestration 
cuts on our legal system. I continue to hear from judges and other 
legal professionals about the serious problems sequestration either has 
caused or will cause if we do not fix it.
  Chief Justice John Roberts recently noted that sequestration ``hit 
[the judiciary] particularly hard. . . . When we have sustained cuts 
that means people have to be furloughed or worse and that has a more 
direct impact on the services that we can provide.'' I ask unanimous 
consent that this article titled ``Chief Justice Roberts: Sequester 
cuts hitting federal judiciary `hard''' be printed in the Record at the 
conclusion of my statement. We should all be doing everything we can to 
help our coequal branch meet the Constitution's promise of justice for 
all Americans.
  The impact of sequestration on the third branch is compounded by the 
high level of judicial vacancies. I know we can do better because we 
have done better. Each day that Senate Republicans refuse to confirm 
the qualified judicial nominees who have been reviewed and voted on by 
the Judiciary Committee is another day that a judge could have been 
working to resolve disputes. Hard-working Americans should not have to 
wait years to have their cases decided.
  Even if it were true, it is not good enough to say that the Senate is 
treating President Obama's nominees the same as it treated President 
Bush's. The real question is whether the Senate is meeting its duty to 
do everything it reasonably can to ensure the American people have 
access to justice. When Senate Republicans refuse to make 
recommendations for nominees, and then delay votes on consensus 
nominees, they are not somehow hurting the President, they are hurting 
the American people and our justice system.
  Today, Attorney General Phillips will finally be confirmed by the 
Senate, and there are many more nominees the Senate should consider in 
the coming weeks. Tomorrow, the Senate Judiciary Committee will hear 
from James Comey, who President Obama has nominated to serve as FBI 
Director. Later this week the committee will begin the process of 
considering the first of three current nominees to the DC Circuit. The 
Judiciary Committee is also scheduled this week to vote on the 
nomination of B. Todd Jones to serve as Director of the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives. The ATF has been without a 
Senate-confirmed Director since 2006. Senate Republicans refused to 
allow a vote on President Bush's nominee to lead the ATF and I hope 
they will not attempt to do the same again. Nominees to lead the Labor 
Department and the Environmental Protection Agency are also awaiting 
our consideration. I hope the Senate will be able to come together and 
confirm these worthy nominees without the delay that has befallen so 
many nominees in the past 4 years.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 10923]]



                     [From The Hill, June 29, 2013]

    Chief Justice Roberts: Sequester Cuts Hitting Federal Judiciary 
                                ``Hard''

                             (By Ben Geman)

       Supreme Court Chief Justice John Roberts on Saturday said 
     the sequester is hurting the judicial branch and that he's 
     hopeful Congress will provide flexibility.
       Roberts, speaking at a conference in West Virginia, noted 
     that the judicial branch of government overall is less than 
     one percent of the federal budget.
       ``You get a whole branch of government under the 
     Constitution for relative pennies, and the idea that we have 
     to be swept along because it is good public policy to cut 
     everybody--I am not commenting on that policy at all--but the 
     notion that we should just be swept along with it I think is 
     really unfounded,'' Roberts said of the across-the-board 
     budget cuts.
       ``The cuts hit us particularly hard because we are made up 
     of people. That is what the judicial branch is. It is not 
     like we are the Pentagon where you can slow up a particular 
     procurement program or a lot of the other agencies. When we 
     have sustained cuts that mean people have to be furloughed or 
     worse and that has a more direct impact on the services that 
     we can provide,'' he added, speaking at the Fourth Circuit 
     Judicial Conference.
       Roberts said the Administrative Office of the U.S. Courts 
     is working with congressional appropriators ``to get them to 
     go to bat for us,'' and that he's hopeful. ``I hope we are 
     able to make an effective case for why need a little bit more 
     flexibility than others,'' Roberts said.
       And, in a bit of humor, he tried some obvious flattery.
       ``I just want to say publicly, that I think our 
     appropriators in Congress are the best legislators since 
     Henry Clay and Daniel Webster, and you can quote me on that 
     if you'd like,'' Roberts said.
       In other remarks, Roberts said the Supreme Court justices 
     are asking too many questions from the bench during oral 
     arguments.
       ``We do overdo it,'' Roberts said. ``The bench has gotten 
     more and more aggressive.'' He noted that lawyers trying to 
     present their arguments ``feel cheated sometimes.''
       He said that justices do not talk about cases before the 
     arguments. So they use questions as a way to ``bring out 
     points that we think our colleagues ought to know about,'' 
     and debate one another through questions to lawyers making 
     arguments.
       But he said, ``That is an explanation. It is not meant as 
     an excuse.''
       ``I do think we have gone too far,'' Roberts said. ``It is 
     too much and I think we do need to address it a little bit.''
       Roberts comments came after a busy week for the court, with 
     justices handing down rulings striking down a key portion of 
     the Voting Rights Act and ruling the Defense of Marriage Act 
     unconstitutional.

  Mr. GRASSLEY. Mr. President, I support the nomination of Gregory Alan 
Phillips to be United States Circuit Judge for the Tenth Circuit. This 
is the 27th judicial confirmation this year. With today's confirmation, 
the Senate will have confirmed 198 lower court nominees; we have 
defeated two. That is 198-2, which is an outstanding record. That is a 
success rate of 99 percent.
  We have been doing these at a fast pace. During the last Congress, we 
confirmed more judges than any Congress since the 103rd Congress, which 
was 1993-1994.
  This year, the beginning of President Obama's second term, we have 
already confirmed more judges than were confirmed in the entire first 
year of President Bush's second term. Let me emphasize that again--
we've already confirmed more nominees this year than we did during the 
entirety of 2005, the first year of President Bush's second term.
  After today, only four article III judges remain on the executive 
calendar--three district nominees and one circuit nominee. Yet somehow 
Senate Democrats cite this as evidence of obstructionism.
  Compare that to the calendar of June 2004, when 30 judicial 
nominations were on the calendar--10 circuit and 20 district. I don't 
recall any Senate Democrats complaining about how many nominations were 
piling up on the calendar.
  Nor do I remember protestations from my colleagues on the other side 
that judicial nominees were moving too slowly. Some of those nominees 
had been reported out more than a year earlier and most were pending 
for months. Some of them never got an up or down vote.
  The bottom line is that the Senate is processing the President's 
nominees exceptionally fairly. President Obama certainly is being 
treated more fairly in the beginning of his second term than Senate 
Democrats treated President Bush in 2005. It is not clear to me how 
allowing more votes so far this year than President Bush got in an 
entire year amounts to ``unprecedented delays and obstruction.'' Yet 
that is the complaint we hear over and over from the other side.
  After today's votes, there will be 84 vacancies in the Federal 
judiciary. But 53 of those spots are without a nominee. How is it 
Republicans' fault that the President has not sent 53 nominees to the 
committee? Obviously, common sense ought to tell you that we can't act 
on nominees who are not presented to the Senate.
  I just wanted to set the record straight--again--before we vote on 
this nomination.
  Mr. Phillips received his B.S. in 1983 and his J.D. in 1987, both 
from the University of Wyoming. Upon graduation, he served as a law 
clerk from 1987 to 1989 to the Honorable Alan B. Johnson, U.S. district 
judge for the District of Wyoming. After completion of his clerkship, 
he worked in private practice in the town of Evanston. There he 
practiced a wide variety of civil law, including personal injury, wills 
and estates, real property, contracts, worker's compensation, 
employment, domestic relations, and bankruptcy. For a few months during 
this time, Mr. Phillips served as a part-time deputy county attorney, 
mostly prosecuting misdemeanor crimes until a new county attorney could 
be elected.
  In 1998, Mr. Phillips and Matthew H. Mead, presently serving as 
Governor of Wyoming, opened a law practice in Cheyenne, focusing on 
Medicaid, insurance, banking, and Federal tort claims law. Mr. Phillips 
served as a special attorney general during this period, handling a 
Medicaid third-party and estate reimbursement for Wyoming.
  Mr. Phillips joined the U.S. Attorney's office in 2003 as an 
assistant U.S. attorney, where he first worked on both civil and 
criminal issues before shifting to exclusively criminal work. In 2011, 
Mr. Phillips was appointed by Governor Mead to be attorney general of 
the State of Wyoming. As attorney general, he manages five law 
divisions, overseeing arguments before the Wyoming Supreme Court and 
the Tenth Circuit Court of Appeals.
  Mr. LEAHY. So I can help speed up things, I yield back all time on 
the Democratic side and yield to the senior Senator from Wyoming.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I thank the chairman of the Judiciary 
Committee for expediting the confirmation of Greg Phillips.
  I rise this afternoon to add strong support for the confirmation of 
Gregory Alan Phillips to serve as a judge on the Tenth Circuit Court of 
Appeals. I believe Mr. Phillips has all the characteristics necessary 
to serve as a Federal appellate judge. I worked with Mr. Phillips in 
the Wyoming Legislature and can say with confidence that he is 
recognized throughout the Wyoming legal community as a talented, 
respected, and thoughtful attorney.
  This vote is also important because the Tenth Circuit Court of 
Appeals has experienced a number of judicial vacancies recently. In 
February the Senate confirmed Judge Bacharach of Oklahoma to the panel, 
and we now have the opportunity to fill another vacancy so the Tenth 
Circuit can continue its work.
  Mr. Phillips has served as Wyoming's attorney general since 2011. The 
attorney general is not an elected position in Wyoming, and it is 
important to note that Mr. Phillips was appointed by Governor Mead, 
although they do not share the same party affiliation. This speaks 
tremendously to Mr. Phillips' talent and legal reputation. Governor 
Mead and former U.S. attorney comments that Greg is a ``first-rate 
legal thinker, a tireless worker and has an abiding sense of fair 
play.'' Governor Mead goes on to say that if confirmed, all those who 
appear before Mr. Phillips will find ``a judge fully prepared, engaged, 
and respectful to all.''
  Mr. Phillips was reported out of the Senate Judiciary Committee with 
a

[[Page 10924]]

unanimous vote on April 18. The fact that he now stands for a vote 
after only being nominated in January is a credit to his abilities and 
strong bipartisan support. I thank Chairman Leahy, Ranking Member 
Grassley, and members of the Judiciary Committee for reviewing and 
moving this nomination along so quickly.
  It is no surprise that the American Bar Association unanimously gave 
Mr. Phillips its highest rating. Greg has extensive experience 
practicing law as a deputy county attorney and in private practice. 
Before becoming Wyoming's attorney general, Mr. Phillips served 7 years 
as an assistant U.S. attorney for the District of Wyoming, handling 
criminal prosecutions and appeals. Greg has extensive experience 
arguing in Federal court, including taking nearly 20 cases before the 
Tenth Circuit.
  Mr. Phillips studied economics at the University of Wyoming and 
graduated with honors from the Wyoming College of Law, where he was on 
the Law Review. Immediately following law school Mr. Phillips served as 
a clerk for U.S. district judge Alan Johnson of Wyoming. Judge Johnson 
writes that Greg is ``devoted to the rule of law and will honor the 
remarkable judicial officers who preceded him.'' Specifically, Judge 
Johnson notes that Mr. Phillips' thorough study of the U.S. sentencing 
guidelines, experience as a Federal criminal prosecutor, and 
understanding of State and Federal legal issues will serve him well on 
the Tenth Circuit.
  Mr. Phillips also has strong support from his colleagues from around 
the Nation. Thirty-four attorneys general wrote the Senate Judiciary 
Committee in March expressing their support for the nomination. I am 
told there would have been more signatures on that letter, but the 
nomination was advanced so diligently that some did not get a chance to 
sign the letter before Greg's hearing.
  I would like to conclude by saying that I can personally attest to 
Mr. Phillips' qualifications to serve as a Federal judge. Greg was on 
the senate Judiciary Committee when we served together in the Wyoming 
Legislature. On the senate floor, we sat across the aisle from each 
other--and I do not mean just across the Republican-Democratic aisle, I 
mean right next to each other across the aisle--and got to visit a lot. 
He was a part of formulating my 80 percent rule for legislating.
  Greg and his family are highly respected in their Wyoming community, 
and Wyoming is proud to call Greg one of our own. He will be an 
outstanding judge to follow Terry O'Brien, another longtime friend of 
mine. Terry and I, when he was a Wyoming District Court judge and I was 
in the Wyoming State senate, used to have dinner together to solve the 
world's problems. Then I became a U.S. Senator and he became a U.S. 
circuit court judge. I know his successor will honorably fill that 
seat.
  Mr. Phillips is highly qualified to serve on the Tenth Circuit Court 
of Appeals, and I call on my colleagues to also support his 
confirmation. Let's get this man to work in his new job.
  I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I join Senator Enzi in strongly 
supporting the nomination of Greg Phillips to a seat on the Tenth 
Circuit Court of Appeals. Greg Phillips will be an outstanding judge. 
He graduated with honors, as you heard from Senator Enzi, from the 
University of Wyoming College of Law. He has worked in private 
practice, he has worked in the Office of the U.S. Attorney for Wyoming, 
and he currently serves as attorney general for the State of Wyoming. 
The breadth of his experience, his understanding of the law and the 
role of a judge, as well as the thoroughness with which he approaches 
his responsibilities--well, they will serve him well.
  The people who know him best--his peers--uniformly praise his 
intellect, his diligence, and his fairness. His former boss, U.S. 
district judge Alan Johnson, said this in a recent letter to Senator 
Enzi:

       Again and again, local defense attorneys have expressed 
     their appreciation for the fair handed, respectful, and even 
     tempered treatment they have received from Greg Phillips.

  We are very fortunate in Wyoming to have Greg Phillips nominated for 
the bench. I have no doubt that as his career continues, he will become 
a successful and a respected member of the Tenth Circuit Court of 
Appeals. I strongly encourage all Members of the Senate to join Senator 
Enzi and me in voting to confirm Greg Phillips.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ENZI. 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. ENZI. I yield back the remainder of any of our time and ask for 
the yeas and nays.
  The PRESIDING OFFICER. All time is yielded back.
  Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Gregory Alan Phillips, of Wyoming, to be United States Circuit Judge 
for the Tenth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Washington (Ms. 
Cantwell), the Senator from North Dakota (Ms. Heitkamp), and the 
Senator from Maine (Mr. King) are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Indiana (Mr. Coats), the Senator from Texas (Mr. Cruz), 
the Senator from Arizona (Mr. Flake), the Senator from South Carolina 
(Mr. Graham), the Senator from Oklahoma (Mr. Inhofe), the Senator from 
Arizona (Mr. McCain), the Senator from Alaska (Ms. Murkowski), the 
Senator from Florida (Mr. Rubio), and the Senator from Pennsylvania 
(Mr. Toomey).
  The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 88, nays 0, as follows:

                      [Rollcall Vote No. 169 Ex.]

                                YEAS--88

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

                             NOT VOTING--12

     Cantwell
     Coats
     Cruz
     Flake
     Graham
     Heitkamp
     Inhofe
     King
     McCain
     Murkowski
     Rubio
     Toomey
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
shall be immediately notified of the Senate's action.

                          ____________________