[Congressional Record (Bound Edition), Volume 160 (2014), Part 4]
[Senate]
[Pages 5100-5102]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JOHN B. OWENS TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             NINTH 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 John B. Owens, of 
California, to be United States Circuit Judge for the Ninth Circuit.
  The PRESIDING OFFICER. Under the previous order, the time until 5:30 
p.m. will be equally divided and controlled between the two leaders or 
their designees.
  The Senator from Utah.


                               SGR Patch

  Mr. HATCH. Mr. President, today the Senate will vote on H.R. 4302. 
This is a bill that will extend for 1 year the so-called doc fix 
relating to the sustainable growth rate--or SGR--formula.
  Patching the SGR has become a regular item of business here in the 
Congress. Indeed, it is basically an annual ritual that we have to go 
through.
  From the first day the SGR went into effect in 2002, Congress has 
acted to prevent its reimbursement cuts to physicians from going into 
effect in order to ensure that Medicare beneficiaries continue to have 
access to quality care.
  More often than not, SGR patches have been cobbled together at the 
last minute between the leadership offices of both parties. They are 
usually tacked on to larger pieces of legislation without the input of 
Members and without the benefit of going through a committee.
  For years this process has bothered Members of Congress who, like me, 
want to see transparency and regular order returned to the legislative 
process.
  It has also bothered seniors and physicians who are constantly 
worried about whether the gridlock in Congress is going to finally send 
them over the SGR cliff.
  There is bipartisan support for repealing and replacing the SGR, or 
the sustainable growth rate, and, to the surprise of many, progress has 
been made to do just that. For more than a year, a bipartisan, 
bicameral group of Members of Congress worked to fully repeal the SGR 
and replace it with more reasonable reforms that move Medicare's 
antiquated fee-for-service reimbursement system for physicians toward a 
system that rewards doctors for providing quality care based on health 
outcomes.
  I was part of that group, as was former Senator Max Baucus.
  Chairman Baucus and I worked for months to produce an SGR repeal bill 
here in the Senate. Eventually, that bill sailed through the Finance 
Committee with broad, bipartisan support.
  At the same time, the two relevant House committees--the Ways and 
Means Committee and the Energy and Commerce Committee--also reported a 
bill to repeal the SGR. That, in and of itself, would have been quite a 
feat. However, we were not done yet.
  Realizing that we were close to achieving our goal, the chairmen and 
ranking members of all three relevant committees--that is three 
Republicans and three Democrats--decided to come together to find a 
single unified approach that both parties in both Chambers could 
support.
  At the time there were a lot of naysayers. Indeed, given Congress's 
recent track record, there were reasons to be skeptical.
  However, by consulting with all the relevant stakeholders and hearing 
their recommendations and concerns, we were able to craft a policy that 
has near unanimous support across the health care community.
  That is right. For the first time since the SGR was enacted in 1997, 
Republicans and Democrats in the House and the Senate are united behind 
a policy that gets rid of this flawed system once and for all.
  However, we cannot get ahead of ourselves. From the outset of this 
process, Chairman Baucus and I, along with our House counterparts, 
agreed that any legislation to repeal and replace the SGR must be 
fiscally responsible.
  Without any offsets, this policy would add roughly $180 billion to 
the deficit--if we do not have offsets. If it is going to pass in both 
the Senate and the House of Representatives--and if we are going to 
maintain the same level of bipartisan support for the package--we need 
to find offsets that both parties can support. It is kind of miraculous 
we have come together, but both the bilateral and bipartisan people who 
have worked on this have agreed that we have to have solid offsets.
  In the months since we reached an agreement on the underlying policy, 
all the parties involved have been working to find suitable offsets.
  I am not going to disparage anything. This is a difficult process. 
But it has to be done.
  Despite the bipartisan good will this process has engendered, there 
have been some who were not satisfied with our progress. With today's 
SGR deadline looming, there was an effort to hijack this bipartisan 
process and turn it into yet another partisan sideshow.
  With an agreement in place and with parties still at the negotiating 
table, some of my friends on the other side of the aisle thought it 
would be preferable to simply bring our bill to the floor and demand a 
vote either without offsets or with offsets they knew Republicans would 
not be able to support. In other words, they wanted to force our 
bipartisan policy through the Senate on a partisan basis and then jam 
the House with it.
  This was, to say the least, disappointing to me. Here we have a 
historic opportunity to do something that will help people throughout 
this country and do it with the type of broad, bipartisan consensus 
that is all too rare in Washington these days. Yet there were still 
some who would prefer to snatch defeat from the jaws of victory and set 
up yet another political showdown destined to end in a partisan 
stalemate.
  Needless to say, I am glad that eventually cooler heads prevailed, 
which brings us to today's vote. The SGR patch that we will be voting 
on today is not perfect. However, I am not going to make the perfect 
the enemy of the good. The bill before us today is a good-faith effort 
to move the ball forward, thanks to the good work of Speaker Boehner 
and Majority Leader Reid.
  What we need now is time to get this done in the right way. This bill 
will give us that. So for these reasons, I plan to vote in favor of the 
SGR bill before us today. I urge my Senate colleagues to do the same. 
Once this legislation is signed into law, we need to get back at the 
negotiating table. I have no doubt that my friend, the distinguished 
Senator from Oregon, as he always has, will work with me and others in 
order to resolve these problems that have arisen.
  Like I said, there are three committees with jurisdiction over the 
SGR issue. We all need to work together to find a responsible path 
forward. Hopefully, the bill that we will vote on today will put an end 
to the unnecessary distractions and roadblocks that have been thrown in 
our path. This is an important vote today. I am very grateful for those 
who are willing to support what we are at least trying to do. I want to 
thank all concerned.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, before he leaves the floor, I thank my 
partner from Utah for his exceptional work in terms of putting together 
a repeal and replace program and say, as I have in the course of the 
afternoon, that essentially the proposal I have talked about here today 
could more properly be called the Hatch-Kyl plan because the underlying 
bill is essentially the outstanding work done by the Senator from Utah, 
Chairman Camp, Chairman

[[Page 5101]]

Upton, a number of Democrats, and essentially takes as a pay-for what 
our former colleague, Senator Kyl, a conservative by anybody's 
calculation had in mind.
  We are going to be doing a lot of bipartisan work in the Senate 
Finance Committee. Senator Hatch and I, as I touched on earlier, are 
already working on the tax extenders. I simply thought that the ideas 
of Senator Hatch and Senator Kyl, two conservatives who I admire, fit 
quite well with the kind of bipartisan approach that you heard many 
Senators on this side of the aisle talk about this afternoon, such as 
Senator Cardin and Senator Warner.
  At the end of the day, I guess I will put my final remarks in the 
context of what Senator Coburn, our friend from Oklahoma, said. He 
essentially said: Do not put off until tomorrow what you can do today. 
The good work that Senator Hatch has done on this--I was not the point 
person for the Democrats at that time; it was Chairman Baucus--I think 
highlights what we could be moving on today.
  The pay-for that our former colleague Senator Kyl from Arizona put 
forward several years ago is just as valid as it once was. So we will 
continue, as Senator Hatch has described this afternoon, to work very 
closely together. I am hopeful that here in the next couple of days 
colleagues will also see it on a vital matter relating to jobs because 
the two of us are working together on tax extenders, which is for 
promoting innovation in our economy: the research and development 
credit, renewable energy, jobs for veterans.
  I yield the floor.
  Mr. HATCH. Mr. President, 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.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak for 3 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I want to talk about John Owens, who 
is the first vote, for a judgeship, particularly one for the U.S. Court 
of Appeals for the Ninth Circuit. No one questions his qualifications. 
I spoke on the floor about him before. I was proud to nominate him to 
the President. He has a sterling background and would be an excellent 
circuit court judge. The question that arose was because of the 
previous judge, a man by the name of Stephen Trott. He spent his entire 
legal career in California before joining the Reagan administration. He 
was licensed to practice law in California. He was supported by two 
Republican Senators from California for various federal appointments. 
Blue slips for his nomination were sent to California senators.
  Now what am I trying to do? I am trying to say, this was a California 
judge for the Ninth Circuit. What has happened since then is because he 
moved his home to Idaho once he was a judge, Idaho or some of the 
representatives from Idaho tend to believe that, voila, this is now an 
Idaho seat. It is not an Idaho seat. I explained last week that 
California has less than its proportional share of Ninth Circuit Court 
judgeships.
  Idaho has its fair share. Senator Crapo, who came to the floor and 
spoke about this, said nothing about population or caseload to 
illustrate why this judgeship should move to Idaho. This has been a 
long-standing attempt to take this seat away from California. When I 
came to the floor before, I outlined the whole process of how 
historically this is, in fact, a California seat.
  I urge my Republican colleagues to consider the precedent they would 
be endorsing if they vote against this nominee because of this seat's 
history; and that is, if a circuit court judge in your State decides to 
move to another State in the circuit, then your State has lost that 
judgeship. That is the precedent that not approving this judge would 
set.
  I urge my colleagues to continue to support this nominee, 
notwithstanding the opposition of the Senators from Idaho.
  Mr. LEAHY. Mr. President, last Thursday the Senate voted to end the 
filibuster on the nomination of John Owens of California to a judicial 
emergency vacancy on the U.S. Court of Appeals for the Ninth Circuit. 
This is the longest running vacancy in our entire Federal court system. 
Today the Senate will finally vote to confirm this outstanding nominee 
to a court that is in desperate need of judges.
  The Ninth Circuit is the busiest circuit court in the country, and 
yet it has not been operating at full strength for more than nine 
years. It has the highest number of appeals filed, the highest pending 
appeals per panel and the highest pending appeals per active judge. It 
also takes far longer than any other circuit court to resolve an 
appeal. The delay in resolving these appeals hurts the American people. 
After confirming John Owens, the Senate should proceed to Michelle 
Friedland's nomination to the Ninth Circuit as soon as possible.
  The nomination of John Owens is an example of how the process of 
judicial nominations and consultation with home State senators should 
work. Under Article II of the Constitution, the Senate has a 
significant role to play regarding our independent judiciary. We are 
called upon to work with the President by providing advice and consent 
for Federal judicial appointments.
  Some have recently questioned the rationale behind the so-called 
``blue slip'' process that solicits the views of the home State 
senators before a judicial nomination moves in the Senate. I have 
explained that this blue piece of paper reflects the ``advice'' prong 
of the Senate's role. If an administration does not consult with home 
State senators to seek their advice on a nominee, it is far less likely 
the nominee will receive their support. This support is crucial to the 
successful confirmation of judicial nominees. In the almost four 
decades I have served in the Senate, I cannot recall a single judicial 
nominee confirmed over the objection of his or her home State senators. 
Today's confirmation to the Ninth Circuit is yet another example of 
that reality.
  In the prior administration, rather than working with the California 
senators to fill this seat on the Ninth Circuit, President Bush 
unnecessarily complicated and delayed filling this vacancy by 
nominating Judge Randy Smith of Idaho. In doing so, President Bush 
attempted an end run around home State Senators Feinstein and Boxer. 
Instead, he consulted with the senators from Idaho--both of whom were 
Republican senators. Judge Smith was not a Californian and did not 
receive support from the California Senators. When President Bush took 
my advice and re-nominated Judge Smith to fill an Idaho vacancy on the 
Ninth Circuit at the beginning of 2007, Judge Smith received the 
support of both Idaho Senators and was confirmed quickly.
  The Bush administration also tried to get around home State senators 
in Maryland to fill a vacancy on the Fourth Circuit. President Bush 
chose to nominate Claude Allen of Virginia, a controversial nominee 
with limited experience who received a partial ``not qualified'' rating 
from the American Bar Association, and the Maryland Senators 
understandably objected. Mr. Allen's nomination did not move forward 
due to the objection of the proper home State Senators from Maryland. 
Meaningful consultation and support of the appropriate home State 
Senators continues to be important to the confirmation of nominees, and 
the vote we are taking today on John Owens is proof of that.
  President Obama nominated Mr. Owens last August, and his early 
October hearing date had to be moved after Republicans forced a 
shutdown of our government. A hearing on his nomination was finally 
held in late October. Mr. Owens could and should have been confirmed 
before we adjourned last year. Instead, because Republicans refused to 
consent to hold any nominations in the Senate, every single one

[[Page 5102]]

had to be returned to the President at the end of last year. They then 
had to be renominated and reprocessed through committee this year. Mr. 
Owens was voted out of committee on a voice vote, without dissent, on 
January 16, 2014.
  Born in Washington, DC, Mr. Owens earned his B.A., with high 
distinction, from the University of California, Berkeley, and his J.D., 
with distinction, Order of the Coif, from Stanford Law School. At 
Stanford, he was the Nathan Abbott Scholar, an award given to the 
student with the highest cumulative point average in the class. Mr. 
Owens served as executive editor of the Stanford Law Review, where he 
earned the Stanford Law Review Board of Editors Award.
  After law school, Mr. Owens served as a law clerk to Judge J. 
Clifford Wallace of the Ninth Circuit and for Associate Justice Ruth 
Bader Ginsburg of the United States Supreme Court. He has been a 
litigator in both public and private practice. In 1998, he joined the 
U.S. Department of Justice, where he would later serve as an Assistant 
U.S. Attorney for the Central District of California and the Southern 
District of California. In 2008, Mr. Owens was promoted to serve as the 
Deputy Chief of Major Frauds and later the chief of the criminal 
division. In 2012, he rejoined private practice as a partner at Munger, 
Tolles & Olson where he presently works. Over the course of his legal 
career, he has been counsel of record in more than 20 cases before the 
court on which he is nominated to serve.
  Mr. Owens has the support of his home State senators--Senator 
Feinstein and Senator Boxer. I hope my fellow Senators will join me 
today to confirm Mr. Owen's nomination to the Ninth Circuit so that he 
can get to work for the American people.
  I yield the floor and 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. JOHANNS. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, all postcloture time is considered expired.
  The question is, Will the Senate advise and consent to the nomination 
of John B. Owens, of California, to be United States Circuit Judge for 
the Ninth Circuit?
  Mr. JOHANNS. 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 assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Dakota (Ms. 
Heitkamp) is necessarily absent.
  The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 56, nays 43, as follows:

                       [Rollcall Vote No. 91 Ex.]

                                YEAS--56

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

                                NAYS--43

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

                             NOT VOTING--1

       
     Heitkamp
       
  The nomination was confirmed.

                          ____________________