[Congressional Record (Bound Edition), Volume 162 (2016), Part 3]
[Senate]
[Pages 3890-3893]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

  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 senior assistant legislative clerk read the nomination of Waverly 
D. Crenshaw, Jr., of Tennessee, to be United States District Judge for 
the Middle District of Tennessee.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes for debate only on the nomination, equally divided in the usual 
form.
  Mr. NELSON. Mr. President, I ask unanimous consent that the time 
during quorum calls be charged equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. 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for the quorum call be rescinded.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. ALEXANDER. Mr. President, in December of 2014, Judge William 
Joseph Haynes, Jr., of the Middle District of Tennessee, assumed senior 
status, creating a vacancy on the Middle District bench. That vacancy 
has resulted in increased caseloads for the three active Federal 
district judges--Judge Sharp, Judge Campbell, and Judge Trauger.
  Fortunately, help is on the way.
  In June, Senator Corker and I had the pleasure of introducing Waverly 
Crenshaw to the Senate Judiciary Committee when it met to consider his 
nomination. I was pleased that the committee agreed with our position, 
and they reported out his nomination by voice vote the following month.
  It's easy to see why Tennesseans support Mr. Crenshaw and are excited 
about his nomination--and the prospect that the Senate will confirm him 
tonight. He was born in Nashville, and then he stayed--attending 
Vanderbilt University for both college and law school.
  After law school, he clerked for Judge John Nixon in the Middle 
District of Tennessee, the same court where we hope he will soon serve. 
After his clerkship, he worked for the Tennessee attorney general 
before entering

[[Page 3891]]

private practice. In 1987 he became an associate of a small labor and 
employment law firm in Nashville. In 1990 he joined one of our largest 
firms--Waller Lansden Dortch & Davis--where he is currently a partner.
  He is also active in the Nashville community serving as unpaid legal 
counsel to the Nashville Conventions and Visitors Corporation, the 
Tennessee Independent Colleges and Universities Association, and the 
YWCA, among others.
  The Middle District of Tennessee is fortunate to have such a well-
qualified nominee. Waverly Crenshaw is a man of good character and of 
good temperament, and today I encourage my colleagues to vote for his 
confirmation.
  The PRESIDING OFFICER. The junior Senator from Tennessee.
  Mr. CORKER. Mr. President, I am glad to join the senior Senator, as I 
have many times, but I thank him for his comments about this 
distinguished person whom I hope is going to be confirmed this 
afternoon as a district court judge.
  When the White House began looking for someone to fill this position, 
I spoke with people, as I am sure Senator Alexander did, across Middle 
Tennessee to really find someone who not only would serve in his 
position well but had, in his current role, been involved in the 
community and had done many other things outside of law to benefit the 
community itself. Certainly, this is someone who has done that.
  It became very clear that he has distinguished himself not only as a 
talented attorney but also as a well respected leader in the Nashville 
community. As Lamar has mentioned, he is a lifelong Middle Tennessee 
resident. He received his law degree from Vanderbilt University. He was 
the first African-American attorney at the Waller law firm, and he has 
been a partner since 1994.
  He served as Tennessee's assistant attorney general from 1984 to 
1987, and as a law clerk, as was mentioned, for the Honorable John 
Nixon. This is exactly the branch he hopes to serve in.
  I am confident he will serve the people of Middle Tennessee in this 
new role in an honorable fashion. I am proud to be here to support him 
with our senior Senator and with so many other people, by the way, in 
Middle Tennessee who want to see him confirmed in this position. I hope 
others will join us today in confirming him, and I look forward to him 
serving. By the way, it is a place where there is a dire need to have 
someone of his capacity. We have many cases that are backed up. This is 
one of those places where we not only need someone to fill the role, 
but we need someone as distinguished as Mr. Crenshaw.
  I thank the Presiding Officer for the time. This Senator looks 
forward to his confirmation. I hope everyone will join in confirming 
this nominee.
  I yield the floor.
  Mr. LEAHY. Mr. President, today we will finally vote on the 
nomination of Waverly Crenshaw to fill a judicial emergency vacancy in 
the Federal District Court in the Middle District of Tennessee. This 
vacancy has been open since December 2014, and Mr. Crenshaw was 
nominated over a year ago, on February 4, 2015. He has the support of 
his two Republican home State Senators, Senators Alexander and Corker. 
He was voted out of the Judiciary Committee by unanimous voice vote 
last summer on July 9, 2015. There is no good reason why it has taken 
14 months to confirm this nominee.
  Mr. Crenshaw is currently a partner at the law firm Waller Lansden 
Dortch & Davis, LLP, in Nashville. Mr. Crenshaw was the first African-
American partner at Waller, and in his nearly three-decade career in 
private practice, he has tried approximately 50 cases to verdict. Mr. 
Crenshaw also served for 3 years in the Tennessee attorney general's 
office as an assistant attorney general. He has the experience and 
qualifications necessary to serve on the Federal bench, and he should 
be confirmed.
  This is our first judicial confirmation vote in 2 months. In the last 
2 years of the Bush administration--with a Democratic majority--the 
Senate confirmed 68 judges. This new Congress, the Republican 
leadership has allowed only 16 judges to be confirmed since they gained 
the majority last year. This record of obstruction began last year, 
when Senate Republicans confirmed the fewest judicial nominees in more 
than half a century.
  Senate Republican leadership is failing our Federal judiciary with 
their obstruction of judicial confirmations. When Senate Republicans 
took over the majority in January of last year, there were 43 judicial 
vacancies. Since then, vacancies have dramatically increased more than 
75 percent to 79. Furthermore, the number of judicial vacancies deemed 
to be ``emergencies'' by the Administrative Office of the U.S. Courts 
because caseloads in those courts are unmanageably high has nearly 
tripled under Republican Senate leadership--from 12 when Republicans 
took over last year to 34 today.
  After we vote on Mr. Crenshaw's nomination, 19 judicial nominees will 
remain pending on the Executive Calendar. This includes nominees with 
home state support from Republican Senators, including Robert Rossiter 
for the Federal District Court in the District of Nebraska; Edward 
Stanton for the Federal District Court in the Western District of 
Tennessee; and Susan Baxter and Marilyn Horan for the Federal District 
Court in the Western District of Pennsylvania.
  We can reduce the empty judgeships in those states if Republican 
leadership would allow timely votes on the pending judicial nominees on 
the Executive Calendar. All of those nominees were reported out of the 
Judiciary Committee by voice vote. There should not be any further 
delay in confirming them.
  Last Thursday, the Leadership Conference on Civil and Human Rights 
and 42 other organizations submitted a letter to Chairman Grassley 
expressing their dismay with the failure of the Judiciary Committee to 
do its job to process nominees for our Federal trial and appellate 
courts, creating a growing backlog of judicial nominations. I ask 
unanimous consent to have printed in the Record a copy of this letter 
at the end of my statement.
  The American people expect Senators to do their jobs. This is true 
with judicial nominations to the lower courts, but it is even more 
crucial for the Supreme Court of the United States because no one can 
fill in for the vacant seat on our highest Court. In just the last few 
weeks, the Supreme Court has deadlocked twice, so it was unable to 
serve its constitutional function. Refusing to consider Chief Judge 
Merrick Garland for the Supreme Court is not only unfair to him, it is 
irresponsible and a threat to a functioning democracy.
  A recent poll shows that nearly 70 percent of Americans--including a 
majority of Republicans--say that the Senate should hold a hearing for 
Chief Judge Garland. That is what the American people are saying, but 
Republicans are refusing to hear them. Instead of listening to their 
constituents, they are listening to powerful interest groups.
  Since public confirmation hearings of Supreme Court nominees began in 
1916, the Senate has never denied a Supreme Court nominee a hearing and 
a vote. And based on the Senate's precedent for decades, the Senate 
Judiciary Committee should hold a hearing for Chief Judge Garland this 
month.
  A public hearing would allow Americans to engage in the process of 
considering the nomination and hear directly from Chief Judge Garland, 
but Senate Republicans continue to refuse to do their jobs. Instead, 
Republicans have outsourced their job to political interest groups 
whose only goal is to raise millions of dollars to launch a smear 
campaign against the nominee's admirable record of public service. 
These outside groups are not accountable to the American people. They 
do not have the American people's interest in mind. They are private, 
powerful groups whose only goal is to advance their own special 
interests at any cost.
  These special interest groups are spending millions of dollars in 
dark money to run ads distorting Chief Judge Garland's record. At the 
same time, Republican Senators are planning to deny Chief Judge Garland 
a

[[Page 3892]]

chance to defend himself at a public hearing. It is wrong, it is 
harmful, and it is unfair.
  Some Senators have claimed that their unprecedented obstruction 
against Chief Judge Garland is based on ``principle, not the person.'' 
But it is not principled to attack Chief Judge Garland's sterling 
career and then refuse to allow him the chance to respond at a public 
hearing.
  Rather than following the demands of unaccountable interest groups, 
Republicans should listen to the American people who want to see real 
leadership in Washington. Americans want Republicans to do their jobs 
and consider for themselves the merits of Chief Judge Garland's record 
through a public hearing and a vote.
  I am glad that several Republican Senators have agreed to meet with 
Chief Judge Garland. This is a person who has spent almost three 
decades in public service and has more Federal judicial experience than 
any Supreme Court nominee in history. Those who meet with Chief Judge 
Garland will see what I have seen: that he has an exceptional legal 
mind and a deep respect for the Constitution. His commitment to public 
service is inspiring, from his days at the Justice Department working 
as a prosecutor on the ground in the aftermath of the Oklahoma City 
bombing to his nearly two decades as a Federal appellate judge.
  But simply meeting with Chief Judge Garland is not enough. The Senate 
must act on his nomination. In the last several weeks, the Supreme 
Court deadlocked twice and was not able to carry out its constitutional 
role as the final arbiter of our Nation's laws. Where you live will 
impact what your rights are. That is unacceptable and contrary to our 
constitutional system. If Republicans' irresponsible obstruction of 
Chief Judge Garland does not stop, this will continue at the Supreme 
Court for two terms.
  I hope Senate Republicans will listen to the American people, roll up 
their sleeves, and do their job. We must carry out one of our most 
important and solemn responsibilities and consider the Supreme Court 
nomination before us.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         The Leadership Conference


                                    on Civil and Human Rights,

                                     Washington DC, April 7, 2016.
     Hon. Charles Grassley,
     Committee on the Judiciary, U.S. Senate, Washington, DC.
       Dear Chairman Grassley: On behalf of The Leadership 
     Conference on Civil and Human Rights and the 42 undersigned 
     organizations, we write to express our dismay with the 
     failure of the Judiciary Committee to address a growing 
     backlog of federal judicial nominations. With only 16 judges 
     confirmed so far, the 114th Congress is on pace to have the 
     lowest number of judges confirmed since the 82nd Congress in 
     1951-1952. Even worse, in the face of rising caseloads and 
     continuing judicial emergencies, it appears that the 
     Committee is determined to shut down the confirmation process 
     entirely--putting political considerations ahead of the 
     national interest in a well-functioning judicial branch, and 
     ahead of the constitutional responsibility of the Senate to 
     do its job of providing advice and consent on presidential 
     appointments.
       While a great deal of public attention has rightly been 
     focused on the pending nomination of Chief Judge Merrick 
     Garland to the U.S. Supreme Court, vacancies on the lower 
     courts must not be lost amidst the debate. This year, 
     President Obama has nominated seven individuals to serve on 
     U.S. Courts of Appeal in various circuits throughout the 
     country, including several in circuits that are currently 
     experiencing judicial emergencies. While some senators have 
     expressed vague and superficial reasons for opposing 
     consideration of individual nominees, the qualifications of 
     these nominees cannot be seriously disputed-- every one of 
     the nominees below has an outstanding background, as well as 
     the widespread respect of those in the legal community who 
     know them best:
       Rebecca Ross Haywood (Third Circuit): Nominated on March 
     15, Ms. Haywood has spent most of her legal career as an 
     Assistant U.S. Attorney for the Western District of 
     Pennsylvania, including as the Appellate Chief of the Civil 
     Division since 2010. She regularly practices before the court 
     to which she has been nominated--and, if confirmed, would be 
     the first African-American woman to serve there.
       Lisabeth Tabor Hughes (Sixth Circuit): Nominated on March 
     17, Judge Hughes was appointed to the Kentucky Supreme Court 
     in 2007 by then-Governor Ernie Fletcher and was reelected 
     twice, including without opposition in 2014. She previously 
     served on the Kentucky Court of Appeals (also having been 
     appointed by Gov. Fletcher), and has extensive experience in 
     both private practice and as a trial judge in Jefferson 
     County, Kentucky. She would be the first woman from Kentucky 
     on the court.
       Donald Karl Schott (Seventh Circuit): Nominated on Jan. 12, 
     Mr. Schott graduated cum laude from Harvard Law School in 
     1980. Since then, he has spent most of his legal career in 
     private practice at Quarles & Brady, where he became a 
     partner in 1987, and has extensive trial and appellate 
     litigation experience, at both the state and federal levels, 
     specializing in securities and business fraud, commercial 
     disputes, health care, and energy-related issues.
       Myra C. Selby (Seventh Circuit): Nominated on Jan. 12, Ms. 
     Selby spent 15 years in private practice and Indiana state 
     government before being nominated in 1995 to the Indiana 
     Supreme Court. She was the first African American and first 
     woman to serve there, and authored more than 100 majority 
     opinions, before returning to private practice in 1999. Since 
     then, she has specialized in commercial and health care 
     litigation. She would be the first African American from 
     Indiana and the first woman from Indiana on the Seventh 
     Circuit.
       Jennifer Klemestrud Puhl (Eighth Circuit): Nominated on 
     Jan. 28, Ms. Puhl spent several years in private practice and 
     as a clerk on the North Dakota Supreme Court. In 2002, she 
     joined the criminal division of the U.S. Attorney's Office 
     for the District of North Dakota, where she prosecutes a wide 
     range of criminal cases and specializes in computer hacking 
     and cybersecurity, intellectual property, and human 
     trafficking. She would be the first woman federal judge at 
     any level in North Dakota.
       Lucy H. Koh (Ninth Circuit): Nominated on Feb. 25, Judge 
     Koh became the first Asian American judge to serve on the 
     U.S. District Court for the Northern District of California, 
     having been confirmed in 2010 by a 90-0 vote. Prior to her 
     current position, she worked for the Senate Judiciary 
     Committee, held several positions within the Department of 
     Justice, and spent six years in private practice. In 2008, 
     she was appointed as a judge to
     the Superior Court of California for Santa Clara County by 
     then-Governor Arnold Schwarzenegger. She would be only the 
     second Asian American woman ever to serve on a federal 
     circuit court.
       Abdul K. Kallon (Eleventh Circuit): Nominated on Feb. 11, 
     Judge Kallon has served on the U.S. District Court for the 
     Northern District of Alabama since 2009, after being 
     confirmed by the Senate by unanimous consent. For the 
     previous fifteen years, Judge Kallon specialized in labor and 
     employment law as a partner at the Birmingham, Alabama firm 
     Bradley Arant Boult Cummings LLP. If confirmed, Judge Kallon 
     would be the first African American from Alabama to serve on 
     the Circuit.
       In addition, the committee has failed to act on dozens of 
     pending district court nominees--too many to list here--from 
     throughout the country. As with the above appellate nominees, 
     many of these nominees would fill seats in districts that are 
     currently facing judicial emergencies. Many of the district 
     and appellate nominees come from states in which both 
     senators have returned their so-called ``blue slips,'' 
     indicating their approval of the nominees. Normally, this 
     should clear the way for hearings and up-or-down confirmation 
     votes. Instead, these nominees have fallen victim to 
     election-year gamesmanship.
       The complete obstruction of nominees is unprecedented, and 
     the arguments some are making in defense of this obstruction 
     are wholly unpersuasive. In 2008, the Democratic party-
     controlled Senate confirmed 22 judges in the last seven 
     months of George W. Bush's presidency, including 10 in 
     September 2008. During Ronald Reagan's presidency, the Senate 
     on average confirmed 16 judges in the second half of 
     presidential election years. There is no legitimate reason 
     why things should be any different in the last year of 
     President Obama's second term.
       While the Committee refuses to do its job, the American 
     people are left to pay the price. There are currently 32 
     judicial emergencies nationwide (16 of the pending nominees 
     would fill these seats), and more than 40 total nominees 
     pending in committee or on the Senate floor. Many of the 
     pending nominees would fill vacancies in courts that have 
     been left shorthanded for years. Donald Schott would fill a 
     Seventh Circuit seat that has been vacant for more than six 
     years, and more than 30 of the 46 pending nominees are 
     nominated to seats that have been empty for more than a year.
       Meanwhile, the inaction is slowing the wheels of justice 
     for all types of parties who are seeking to vindicate their 
     legal and constitutional rights. Numerous judges have 
     explained the consequences they and litigants face: long 
     delays on even the most simple filings and motions, 
     protracted waits for post- conviction sentences, spoiled 
     evidence, witnesses whose memories fade, lost businesses and 
     the jobs that go with them while waiting for trials, and many 
     more. Not only is the situation rife with injustices, but it 
     is also completely unsustainable.

[[Page 3893]]

       The Committee has a constitutional responsibility to 
     provide advice and consent on presidential nominees, and a 
     duty to the American people to simply do its job. In the 
     coming weeks and months, our organizations will continue to 
     make the case until it does.
       If you have any questions, please contact Rob Randhava, 
     Senior Counsel at The Leadership Conference on Civil and 
     Human Rights at (202) 466-3311, or any of the organizations 
     listed below. As organizations that collectively represent 
     millions of diverse Americans who have a stake in a fair, 
     effective judicial system, we thank you for considering our 
     views.
           Sincerely,
       The Leadership Conference on Civil and Human Rights, AFL-
     CIO, Alliance for Justice, American Constitution Society for 
     Law and Policy, American Federation of State, County, and 
     Municipal Employees, American Federation of Teachers, 
     American-Arab Anti-Discrimination Committee, Americans for 
     Democratic Action, Asian Americans Advancing Justice AAJC, 
     Asian Pacific American Labor Alliance, AFL-CIO (APALA), 
     Association of Asian Pacific Community Health Organizations, 
     The Center for Asian Pacific American Women, Coalition of 
     Black Trade Unionists, Constitutional Accountability Center, 
     CREDO, Defenders of Wildlife, Disability Rights Education & 
     Defense Fund, Earthjustice, Human Rights Campaign, Lawyers' 
     Committee for Civil Rights Under Law, League of Conservation 
     Voters, NAACP.
       NAACP Legal Defense and Educational Fund, Inc., National 
     Association of Human Rights Workers, National Association of 
     Social Workers, National Black Justice Coalition, National 
     Center on Time and Learning, National Community Reinvestment 
     Coalition, National Congress of American Indians, National 
     Council of Asian Pacific Americans (NCAPA), National Council 
     of Jewish Women, National Education Association, National 
     Employment Lawyers Association, National Fair Housing 
     Alliance, National Hispanic Media Coalition, National LGBTQ 
     Task Force Action Fund, National Partnership for Women & 
     Families, National Women's Law Center, People For the 
     American Way, Pride at Work, South Asian Americans Leading, 
     Together (SAALT) United Auto Workers (UAW), The Workmen's 
     Circle.
  The PRESIDING OFFICER. The Senator from Florida.


                           Amendment No. 3524

  Mr. NELSON. Mr. President, while we are waiting for members of the 
Judiciary Committee to come and speak to the judicial nomination we 
will vote on shortly, I want to take the opportunity to talk about a 
pending amendment which is being offered by Senator Bennet of Colorado 
and which I would recommend to the Senate that they favorably consider. 
It is dealing with families traveling on airlines.
  As you know, things get very specific about seats and how much they 
charge for the seats. You pay extra for some baggage and other 
services, and then you get into seats that are getting increasingly 
smaller. It is even worse for a woman who is pregnant or is traveling 
with small children.
  Senator Bennet's amendment is a family-friendly amendment. If a 
parent has a minor child who is going on the plane by themselves, it 
would require TSA to allow the parent to accompany the child throughout 
the screening process. To a small child, that can be quite 
intimidating.
  Secondly, it would require the airlines to provide pregnant women 
with the opportunity to preboard the flight. How many times have we 
seen everybody queueing up to get on the flight? The special advantage 
passengers get on, the first class passengers get on, the members of 
the frequent flyer program get on, and here is a lady who is quite 
along in her pregnancy still standing. That is just common sense. That 
is being gentlemanly about the rules of airlines.
  Thirdly, the amendment tries to keep families together because it 
would require the airlines to make sure that at least one adult of the 
family who is traveling together can sit next to the child on the plane 
without the airlines saying the parent will have to pay an extra fee in 
order to guarantee having a seat next to their minor child. This is 
common sense, and it is encouraging family travel.
  I certainly urge my colleagues to support this amendment as we will 
be taking up the FAA bill after this judicial nomination confirmation 
vote.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. 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. ALEXANDER. I yield back any remaining time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the Crenshaw 
nomination?
  Mr. CORKER. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from West Virginia (Mrs. Capito), the Senator from Texas (Mr. 
Cruz), the Senator from South Carolina (Mr. Graham), the Senator from 
Wisconsin (Mr. Johnson), the Senator from Alaska (Ms. Murkowski), the 
Senator from Kentucky (Mr. Paul), and the Senator from Louisiana (Mr. 
Vitter).
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is 
necessarily absent.
  The result was announced--yeas 92, nays 0, as follows:

                       [Rollcall Vote No. 44 Ex.]

                                YEAS--92

     Alexander
     Ayotte
     Baldwin
     Barrasso
     Bennet
     Blumenthal
     Blunt
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Cassidy
     Coats
     Cochran
     Collins
     Coons
     Corker
     Cornyn
     Cotton
     Crapo
     Daines
     Donnelly
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Gillibrand
     Grassley
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Kaine
     King
     Kirk
     Klobuchar
     Lankford
     Leahy
     Lee
     Manchin
     Markey
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murphy
     Murray
     Nelson
     Perdue
     Peters
     Portman
     Reed
     Reid
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Udall
     Warner
     Warren
     Whitehouse
     Wicker
     Wyden

                             NOT VOTING--8

     Capito
     Cruz
     Graham
     Johnson
     Murkowski
     Paul
     Sanders
     Vitter
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table and the President 
will be immediately notified of the Senate's action.

                          ____________________