[Congressional Record (Bound Edition), Volume 160 (2014), Part 3]
[Senate]
[Pages 3979-3981]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF CAROLYN B. McHUGH 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 legislative clerk read the nomination of Carolyn B. McHugh, of 
Utah, to be United States Circuit Judge for the Tenth Circuit.
  The PRESIDING OFFICER. Under the previous order the time until 5:30 
p.m. will be equally divided and controlled in the usual form.
  The Senator from Vermont.
  (The remarks of Mr. Leahy are printed in today's Record under 
``Morning Business.'')
  Mr. LEAHY. I suggest the absence of a quorum and ask that the time be 
charged on both sides.
  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. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  Recognition of the Republican Leader

  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Are we in morning business?
  The PRESIDING OFFICER. The Senate is currently considering the McHugh 
nomination. We are not in morning business.
  Mr. McCONNELL. Madam President, I am going to proceed on my leader 
time.
  The PRESIDING OFFICER. The Senator has that right.


                         appalachia depression

  Mr. McCONNELL. Madam President, there is a depression in Appalachia--
an absolute depression. Families are losing work because of government 
attacks on the coal industry and communities are hurting.
  Tonight we are going to hear 30 hours of excuses from a group of 
people who think that it is just OK that we have a depression in 
Appalachia. Well, it is not OK. It is cruel. It is cruel to tell 
struggling coal families that they can't have a job because some 
billionaire in San Francisco disagrees with their line of work.
  Let me relay a message from a Kentucky miner named Howard. What you 
are going to hear over the next 30 seconds is more important than 
anything these anticoal liberals will say over the next 30 hours.
  Here is what Howard had to say:

       I say to you, Mister President of the United States . . . 
     We're hurting. You say you're the president of the people? 
     Well, we're people too. No one loves the mountains more than 
     we do. We live here. We crawl between them. We get up every 
     morning and we go to the top of a mountain in a strip job in 
     the cold rain and snow to put bread on the table. Come and 
     look at our little children, look at our people, Mr. 
     President. You're not hurting for a job; you've got one. I 
     don't.

  That is Howard from eastern Kentucky.
  I am not sure how anyone can hear something like that and think that 
attacking coal families is OK. It is not just coal families who are 
suffering.
  I have two electric bills from a farmer named John in Shelbyville. 
Shelbyville is not in coal country. It is in another part of our State. 
But 90 percent of our electricity is from coal-fired generation. We 
have some of the lowest utility rates in America. At least we used to.
  In July of 2008, the year before the President took office, John's 
electric bill was $64.70. That was John's electric bill before the 
President took office. In July of 2013, he paid $107.30. This same 
farm, a new President, and a 66-percent increase in utility bills in my 
State outside of coal country. That is a cost increase the people of 
Kentucky and the Nation simply cannot afford.
  My colleagues say they will spend the entire night talking about how 
we need to wake up and take action. They are going to spend all night 
saying how we need to wake up and take action. I wish to challenge them 
to think about acting in a way that puts the Americans I represent 
first and not spend 30 hours pretending as though they don't exist.
  As I said, we have a depression in the coalfields of Kentucky created 
by this administration. Utility bills are soaring all over my State 
because of the actions of this administration. Tonight our colleagues 
are going to spend all night talking about just how great that really 
is. There is another side to the story. We need to care about and think 
about the people who are being hurt by the policies of this 
administration.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. If neither side yields time, the time will be 
equally divided.
  The Senator from Utah.
  Mr. LEE. Madam President, I am pleased to have the nomination of 
Judge Carolyn McHugh before the Senate today. Throughout her life Judge 
McHugh has demonstrated a commitment to the highest standards of 
academic excellence, professional distinction, and public service.
  Judge McHugh graduated magna cum laude from the University of Utah, 
where she later earned her jurist doctorate, graduating Order of the 
Coif and serving as the editor on the Utah Law Review.
  After excelling in law school, Judge McHugh clerked for the Honorable 
Bruce Jenkins of the District of Utah. She then spent more than 20 
years in private practice, where she excelled, focusing on complex 
commercial litigation.
  Throughout her career in private practice, Judge McHugh has 
demonstrated a strong commitment to pro bono work. She has been awarded 
several honors for her work to advance women in the legal profession. 
In 1996 the Utah State Bar recognized her with a Distinguished 
Committee Award from the Needs of Children Committee.
  It was nearly 10 years ago when I first met Judge McHugh when I was 
working for then-Governor Jon Huntsman. During his first year as 
Governor, it was time for him to appoint someone to the Utah Court of 
Appeals. At that point the nominating commissions began their work, and 
shortly after their work concluded, the Governor's staff started 
interviewing various applicants, various people who had been considered 
by the nominating commission. It soon became apparent that there was a 
real standout in this very impressive group of candidates for this 
court of appeals position, and Judge McHugh's name rose to the top of 
the list.
  During discussions I had with her and with my colleagues, as well as 
with Governor Huntsman, I found her to possess a keenly insightful 
legal mind, and I found her to be someone who really understands the 
role of judges--the necessarily limited role--and the crucial function 
of the judge in our system. She has served with great distinction on 
the Utah Court of Appeals during those intervening years.
  For that reason I am confident, based on the knowledge she has 
acquired, the skills she has developed and honed over the years, and 
the commitment to public service she has displayed up to this point in 
her career, Judge McHugh will, in fact, excel as a judge on the

[[Page 3980]]

U.S. Court of Appeals for the Tenth Circuit. I strongly urge my 
colleagues to support her confirmation.
  Thank you, Madam President.
  Mr. LEAHY. Madam President, in the last few weeks, we have wasted 
precious floor time and energy to overcome filibusters on several 
judicial nominations. The majority leader was forced to file cloture on 
judicial nominees in Arkansas, California, Connecticut, Puerto Rico, 
and Tennessee. This was the case, even though every single one of those 
nominations had the support of home State Senators--whether Democrat or 
Republican. In fact, seven of the eight judges confirmed in the last 2 
weeks after filibusters were defeated were confirmed overwhelmingly 
with 90 or more votes. So why were we forced to overcome unnecessary 
procedural obstacles even though these judges were non-controversial 
and were filling longstanding vacancies in their districts? It is 
because Senate Republicans continue to try to slow down all 
confirmations in the Senate.
  Today, we must again vote to end a filibuster on a judicial 
nomination. Carolyn McHugh, nominated to fill a vacancy on the U.S. 
Court of Appeals for the Tenth Circuit, is a distinguished jurist who 
has served on the Utah Court of Appeals for nearly a decade. She has 
the support of both her home State Republican senators--Senator Hatch 
and Senator Lee. Her nomination could and should have been confirmed 
last year. She was unanimously reported out of the Judiciary Committee 
on November 14, 2013, but because Republicans refused to consent to a 
confirmation vote by the full Senate and Senate Republicans would not 
consent to holding her nomination in the Senate, Judge McHugh's 
nomination was returned to the President at the end of last year. She 
then had to be re-nominated and re-processed through committee this 
year and was again reported out of the Judiciary Committee without 
opposition on January 16, 2014.
  After tonight's vote to end this unnecessary Republican filibuster, 
the Senate will waste up to 30 hours waiting for post-cloture time to 
burn, even though Judge McHugh will then be confirmed overwhelmingly. 
It is unlikely that much, if any, of the 30 hours will be used to 
explain why Republicans found it necessary to block the Senate from 
promptly considering Judge McHugh's nomination last year and again this 
year.
  Republicans continue to obstruct on every nomination, even though 
there are currently 89 Federal judicial vacancies, 34 of which have 
been deemed emergency vacancies by the Administrative Office of the 
U.S. Courts. In stark contrast, there were only 56 judicial vacancies 
at the same point in President Bush's tenure. The comparison is even 
more troubling when you consider the 33 judicial nominees currently 
pending on the Executive Calendar. We could lower the number of 
judicial vacancies today to less than 70 if Senate Republicans would 
simply consent to voting on the pending nominees. We have not had fewer 
than 70 vacancies since May 2009, more than 4 years ago. And for most 
of President Obama's tenure in office, judicial vacancies have hovered 
around 80 and 90 because of Senate Republican obstruction. 
Nevertheless, Senate Republicans continue to object to votes on 
judicial nominations even when they cannot muster anything upon which 
to justify their delay.
  There are no excuses for the delays except sheer partisanship. 
Twenty-one of the 33 judicial nominees currently pending on the 
Executive Calendar had hearings before the Senate Judiciary Committee 
last year. And 31 of the 33 judicial nominees currently pending on the 
floor were voted out of Committee with bipartisan support. It is clear 
that Senate Republicans have decided to use the rules change as another 
excuse to further accomplish their partial government shut down. Before 
the rules change, Senate Republicans used anonymous holds to delay 
confirming qualified judicial nominees, and dragged their feet every 
step of the way to slow down the confirmation process. Senate Democrats 
changed the rules precisely because of these delay tactics, which were 
causing great harm to the judicial system and negatively impacting 
those Americans who were seeking justice in our Federal courts. The 
American people who have sought to obtain justice in our Federal courts 
deserve speedy and prompt justice. These petty partisan tactics on 
display are not worthy of the Senate.
  Shortly, I hope we can overcome the filibuster of the nomination of 
Judge Carolyn McHugh to fill a vacancy in the Tenth Circuit Court of 
Appeals. She has served since 2005 as a judge on the Utah Court of 
Appeals and as the presiding judge of that court since 2012. She 
previously worked in private practice at Parr Brown Gee & Loveless as 
an associate (1983-1987) and subsequently as a shareholder (1987-2005). 
She has served as an adjunct professor at the University of Utah Law 
School and at the University of Utah College of Social and Behavioral 
Science. Judge McHugh earned her J.D., Order of the Coif, from the 
University of Utah Law School in 1982. After law school, she clerked 
for Judge Bruce S. Jenkins of the U.S. District Court for the District 
of Utah. The ABA Standing Committee on the Federal Judiciary 
unanimously rated Judge McHugh ``Well Qualified'' to serve on the U.S. 
Circuit Court of Appeals for the tenth Circuit, its highest rating. She 
has the support of her home State senators, Senator Hatch and Senator 
Lee. The Judiciary Committee reported her unanimously by roll call vote 
to the full Senate on November 14, 2013, and by voice vote on January 
16, 2014.
  I thank the majority leader for filing a cloture petition to end the 
filibuster of Judge McHugh's nomination. I hope my fellow senators will 
join me today to end this filibuster so that she can begin working on 
behalf of the American people.


                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Carolyn B. McHugh, of Utah, to be United States Circuit Judge 
     for the Tenth Circuit.
         Harry Reid, Patrick J. Leahy, Carl Levin, Richard J. 
           Durbin, Barbara Boxer, Debbie Stabenow, Charles E. 
           Schumer, Patty Murray, Jeanne Shaheen, Amy Klobuchar, 
           Tom Udall, Sheldon Whitehouse, Mazie K. Hirono, Joe 
           Donnelly, Jack Reed, Brian Schatz, Tom Harkin.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Carolyn B. McHugh, of Utah, to be United States Circuit 
Judge for the Tenth Circuit, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich) and 
the Senator from Iowa (Mr. Harkin) are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Illinois (Mr. Kirk) and the Senator from Arizona (Mr. 
McCain).
  The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 62, nays 34, as follows:

                       [Rollcall Vote No. 61 Ex.]

                                YEAS--62

     Ayotte
     Baldwin
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Coons
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Graham
     Hagan
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer

[[Page 3981]]


     Shaheen
     Stabenow
     Tester
     Toomey
     Udall (CO)
     Udall (NM)
     Walsh
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--34

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

                             NOT VOTING--4

     Begich
     Harkin
     Kirk
     McCain
  The PRESIDING OFFICER. On this vote, the yeas are 62 and the nays are 
34.
  The motion is agreed to.

                          ____________________