(Senate - July 30, 2012)

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[Pages S5642-S5651]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION


                           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 Robert E. Bacharach, of 
Oklahoma, to be United States Circuit Judge for the Tenth Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
of debate equally divided and controlled in the usual form.
  Mr. LEAHY. Today's debate and vote on the partisan filibuster of the 
Oklahoma judicial nominee, who has had the support of the Republican 
Senators from Oklahoma since President Obama nominated him 6 months 
ago, is another example of how extreme Senate Republicans have gone in 
their efforts to obstruct judicial confirmations. If they succeed in 
their partisan filibuster, it will be another first for them. Never 
before has the Senate filibustered and refused to vote on a judicial 
nominee with such strong bipartisan support, who was voted out of the 
Judiciary Committee with virtually unanimous support.
  Their partisan efforts to shut down Senate confirmations of qualified 
judicial nominees who have bipartisan support do not help the American 
people. This is a shortsighted policy at a time when the judicial 
vacancy rate remains more than twice what it was at this point in the 
first term of President Bush. Judicial vacancies during the last few 
years have been at historically high levels. Nearly one out of every 11 
Federal judgeships is currently vacant. Their shutting down 
confirmations for consensus and qualified circuit court nominees is not 
helping the overburdened Federal courts to which Americans turn for 

[[Page S5643]]

  Over his 13-year career as a U.S. Magistrate Judge in the Western 
District of Oklahoma, Judge Robert Bacharach has handled nearly 3,000 
civil and criminal matters, presided over 400 judicial settlement 
conferences, and issued more than 1,600 reports and recommendations. As 
an attorney in private practice, Judge Bacharach tried 10 cases to 
verdict, argued 2 cases before the Tenth Circuit Court of Appeals, and 
briefed scores of other cases to the tenth circuit and the Oklahoma 
Supreme Court. The ABA Standing Committee on the Federal Judiciary has 
rated Judge Bacharach unanimously well qualified, the highest possible 
rating from its nonpartisan peer review.
  Judge Bacharach's judicial colleagues in the Western District of 
Oklahoma stand strongly behind his nomination. Vicki Miles-LaGrange, 
Chief Judge of the U.S. District Court for the Western District of 
Oklahoma, has said of Judge Bacharach:

       He is an outstanding jurist and my colleagues and I 
     enthusiastically and wholeheartedly recommend him for the 
     Tenth Circuit position . . . We knew that we were lucky to 
     have Bob as a Magistrate Judge, and he's been remarkable in 
     this position for over 12 years. He is an absolutely great 
     Magistrate Judge. His research and writing are excellent, his 
     temperament is superb, his preparation is top-notch, and he 
     is a wonderful colleague to all of the judges and in general 
     to the entire court family. . . . All of the other judges and 
     I--Republicans and Democrats alike--enthusiastically and 
     wholeheartedly recommend Judge Bob Bacharach for the Tenth 
     Circuit position. All of us believe very strongly that Judge 
     Bacharach would be a superb choice for the position.

  Throughout this very careful and deliberate process in which Judge 
Robert Bacharach has been thoroughly vetted, considered, and voted on 
by the Judiciary Committee, I have not heard a single negative word 
about him. There is no Senator that I know of who is opposed to his 
nomination on the merits. The only obstacle standing between Judge 
Bacharach being confirmed to serve the people of the tenth circuit is 
partisan obstruction.
  Nor is Judge Bacharach the only victim of this abuse. In a letter 
dated June 20, 2012, the president of the American Bar Association 
urged Senator Reid and Senator McConnell to work together to schedule 
votes on the nominations of William Kayatta and Richard Taranto, as 
well as Judge Bacharach. These are three consensus, qualified circuit 
court nominees awaiting Senate confirmation so that they may serve the 
American people. I ask that a copy of that letter be printed in the 
Record, along with an article from the Oklahoman on this nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     American Bar Association,

                                       Chicago, IL, June 20, 2012.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Mitch McConnell,
     Republican Leader, U.S. Senate,
     Washington, DC.
       Dear Majority Leader Reid and Republican Leader McConnell: 
     Amid concerns that the judicial confirmation process is about 
     to fall victim to presidential election year politics through 
     the invocation of the ``Thurmond Rule,'' I am writing on 
     behalf of the American Bar Association to reiterate our grave 
     concern for the longstanding number of judicial vacancies on 
     Article III courts and to urge you to schedule floor votes on 
     three pending, noncontroversial circuit court nominees before 
     July and on district court nominees who have strong 
     bipartisan support on a weekly basis thereafter.
       Three of the four circuit court nominees pending on the 
     Senate floor are consensus nominees who have received 
     overwhelming approval from the Senate Judiciary Committee. 
     Both William Kayatta, Jr. of Maine, nominated to the First 
     Circuit, and Robert Bacharach of Oklahoma, nominated to the 
     Tenth Circuit, have the staunch support of their Republican 
     senators. Richard Taranto, nominated to the Federal Circuit, 
     enjoys strong bipartisan support, including the endorsement 
     of noted conservative legal scholars. All three nominees also 
     have stellar professional qualifications and each has been 
     rated unanimously ``well-qualified'' by the ABA's Standing 
     Committee on the Federal Judiciary.
       As you know, the ``Thurmond Rule'' is neither a rule nor a 
     clearly defined event. While the ABA takes no position on 
     what invocation of the ``Thurmond Rule'' actually means or 
     whether it represents wise policy, recent news stories have 
     cast it as a precedent under which the Senate, after a 
     specified date in a presidential election year, ceases to 
     vote on nominees to the federal circuit courts of appeals. We 
     note that there has been no consistently observed date at 
     which this has occurred during the presidential election 
     years from 1980 to 2008. With regard to the past three 
     election years, the last circuit court nominees were 
     confirmed in June during 2004 and 2008 and in July during 
     2000. In deference to these historical cut-off dates and 
     because of our conviction that the Senate has a continuing 
     constitutional duty to act with due diligence to reduce the 
     dangerously high vacancy rate that is adversely affecting our 
     federal judiciary, we exhort you to schedule votes on these 
     three outstanding circuit court nominees this month.
       We also urge you to continue to work together to move 
     consensus district court nominees to the floor for a vote 
     throughout the rest of the session, lest the vacancy crisis 
     worsens in the waning months of the 112th Congress. With five 
     new vacancies arising this month and an additional five 
     announced for next month, this is not just a possibility; it 
     is a certainty, absent your continued commitment to the 
     federal judiciary and steady action on nominees.
       Thank you for your past efforts and for your consideration 
     of our views on this important issue.
                                       Wm. T. (Bill) Robinson III,

                  [From the Oklahoman, June 15, 2012]

   Senate Republicans To Block Vote on Oklahoma Nominee for Federal 
                             Appeals Court

                           (By Chris Casteel)

       Washington.--Senate Republicans won't allow a vote before 
     November's presidential election to confirm U.S. Magistrate 
     Judge Robert E. Bacharach to a federal appeals court, despite 
     Bacharach's credentials and support from both Oklahoma 
     senators, Sen. Tom Coburn said Thursday.
       Coburn, R-Muskogee, said Senate Republican leader Mitch 
     McConnell told him Republicans were following a tradition 
     used by both parties to block votes on circuit court nominees 
     a few months before a presidential election.
       That means a vote on Bacharach, whose nomination to the 
     10th U.S. Circuit Court of Appeals cleared the Senate 
     Judiciary Committee last week, ``is not going to happen,'' 
     Coburn said.
       Coburn said the nomination of John E. Dowdell to be a U.S. 
     district judge in Tulsa still has a ``great chance'' of 
     clearing the full Senate.
       Bacharach is ``an awfully good candidate'' for the circuit 
     court position, said Coburn, who praised his character and 
     judicial temperament. Bacharach, who has been a magistrate 
     judge in Oklahoma City since 1999, was given a rating of 
     ``unanimously well qualified'' for the appeals court position 
     by the American Bar Association.
       Sen. Jim Inhofe, R-Tulsa, praised Bacharach during a 
     committee hearing last month.
       But the selection and confirmation process moved too slowly 
     to fill the vacancy on the appeals court--which is a step 
     below the U.S. Supreme Court--given the political timetable 
     in Washington.
       Though the position has been open since July 2010, the 
     White House didn't make a nomination until January, after 
     spending months vetting candidates that weren't going to be 
     acceptable to Coburn and Inhofe.
       Then, it took more than three months to schedule a 
     committee hearing for Bacharach as the staff conducted a 
     background investigation; Coburn withheld his approval for a 
     committee hearing until the committee investigation was 
       Ultimately, Bacharach may have just narrowly missed a full 
     Senate vote. The Senate this week, over the objections of 
     most Republicans, confirmed a nominee from Arizona for 
     another circuit court. After that vote, McConnell told 
     Republican senators no other votes on circuit judges would be 
       McConnell's office declined to comment on Thursday.
       Sen. Patrick Leahy, D-Vermont, chairman of the Senate 
     Judiciary Committee, said Thursday, ``This is really a 
     challenge to the senators who have said that they will not 
     support these filibusters and this kind of shutdown, and to 
     those Republican senators who support the circuit court 
     nominees from Maine and Oklahoma.''
       But Coburn said there wasn't anything he could do about the 
       The delaying tactic on circuit court judges, which will 
     likely extend to district court judges later this year, has 
     become common practice for the party that doesn't control the 
     White House.
       This year, it means Republicans will block votes on 
     nominees for appeals courts, which can have great influence 
     on a wide range of legal issues since the Supreme Court 
     agrees to hear relatively few cases.
       The aim of the tactic is to delay making lifetime 
     appointments to federal courts in hopes their party will 
     regain the White House and the power to fill judicial 
     vacancies. Coburn said Bacharach could be cleared late this 
     year if President Barack Obama wins re-election. If not, 
     Coburn said, Bacharach would make a great nominee for a 
     Republican president.

  Mr. LEAHY. The ABA president wrote:

[[Page S5644]]

       Amid concerns that the judicial confirmation process is 
     about to fall victim to presidential election year politics 
     through the invocation of the ``Thurmond Rule,'' I am writing 
     on behalf of the American Bar Association to reiterate our 
     grave concern for the longstanding number of judicial 
     vacancies on Article III courts and to urge you to schedule 
     floor votes on three pending, noncontroversial circuit court 
     nominees before July and on district court nominees who have 
     strong bipartisan support on a weekly basis thereafter.

  This is the precise danger that was the reason for that letter. 
Including Judge Bacharach, William Kayatta of Maine, and Richard 
Taranto, there are currently 20 judicial nominees voted out of the 
Judiciary Committee and being blocked by Senate Republicans.
  During the Judiciary Committee meeting approving the nomination of 
Judge Bacharach, Senator Coburn noted:

       I believe that Judge Bacharach will uphold the highest 
     standards and reflect the best in our American judicial 
     tradition by coming to the bench as a well-regarded member of 
     the community. At a time when our country seems as divided as 
     ever, it is important that citizens respect members of the 
     judiciary and are confident they will faithfully and 
     impartially apply the law. . . I believe Judge Bacharach 
     would be an excellent addition to the Tenth Circuit.

  Senator Inhofe likewise has said: ``I believe that Judge Bacharach 
would continue the strong service Oklahomans have provided the Tenth 
Circuit.'' When asked last month about this effort to block a vote on 
Judge Bacharach's nomination, Senator Coburn told The Oklahoman: ``I 
think it's stupid.'' He is right. It is just obstruction.
  There is no good reason that the Senate should not vote on consensus 
circuit court nominees thoroughly vetted, considered and voted on and 
approved with nearly unanimous bipartisan support by the Judiciary 
Committee. There is no reason the Senate cannot vote on the nomination 
of William Kayatta of Maine to the first circuit, a nominee strongly 
supported by both of Maine's Republican Senators and reported nearly 
unanimously by the committee 3 months ago and 2 months before 
considering Judge Bacharach's nomination. This is the same person who 
Chief Justice John Roberts recommended to Kenneth Starr for a position 
in the Justice Department. He is widely respected in Maine. Republicans 
cannot seriously oppose his nomination on the merits or for ideological 
reasons. It is just more obstruction.
  There is also no reason the Senate cannot vote on Richard Taranto's 
nomination to the Federal circuit. He was reported almost unanimously 
by voice vote nearly 4 months ago, and is supported by conservatives 
such as Robert Bork and Paul Clement. Republicans cannot seriously 
oppose his nomination to the Federal circuit on the merits or for 
ideological reasons. It is just more obstruction.
  Each of these circuit court nominees has been rated unanimously well 
qualified by the nonpartisan ABA Standing Committee on the Federal 
Judiciary, the highest possible rating. These are not controversial 
nominees. They are qualified and should be considered as consensus 
nominees and confirmed. Senate Republicans are blocking consent to vote 
on superbly qualified circuit court nominees with strong bipartisan 
support. This is a new and damaging application of the Thurmond rule.
  It is hard to see how this new application of the Thurmond rule is 
really anything more than another name for the stalling tactics we have 
seen for months and years. I have yet to hear any good reason why we 
should not continue to vote on well-qualified, consensus nominees, just 
as we did up until September of the last 2 Presidential election years. 
I have yet to hear a good explanation why we cannot work to solve the 
problem of high vacancies for the American people. I will continue to 
work to confirm as many of President Obama's qualified judicial 
nominees as possible to fill the many judicial vacancies that burden 
our courts and the American people across the country.
  Senate Republicans have become the party of no--no help for the 
American people, no to jobs, no to economic recovery, no help to extend 
tax cuts for the middle class, and no to judges to provide Americans 
with justice in their Federal courts. Although the public announcement 
that they would be blocking qualified and consensus circuit court 
nominees was not until June, the truth is that Senate Republicans have 
been obstructing President Obama's judicial nominees since the 
beginning of his Presidency, beginning with their filibuster of his 
first nominee.
  Senate Republicans used to insist that filibustering of judicial 
nominations was unconstitutional. The Constitution has not changed but 
as soon as President Obama was elected they reversed course and 
filibustered President Obama's very first judicial nomination. Judge 
David Hamilton of Indiana was a widely respected 15-year veteran of the 
Federal bench nominated to the seventh circuit and was supported by 
Senator Dick Lugar, the longest-serving Republican in the Senate. They 
delayed his confirmation for 5 months. Senate Republicans then 
proceeded to obstruct and delay just about every circuit court nominee 
of this President, filibustering nine of them. They delayed 
confirmation of Judge Albert Diaz of North Carolina to the fourth 
circuit for 11 months. They delayed confirmation of Judge Jane Stranch 
of Tennessee to the sixth circuit for 10 months. They delayed 
confirmation of Judge Ray Lohier of New York to the second circuit for 
7 months. They delayed confirmation of Judge Scott Matheson of Utah to 
the tenth circuit and Judge James Wynn, Jr. of North Carolina to the 
fourth circuit for 6 months. They delayed confirmation of Judge Andre 
Davis of Maryland to the fourth circuit, Judge Henry Floyd of South 
Carolina to the fourth circuit, Judge Stephanie Thacker of West 
Virginia to the fourth circuit, and Judge Jacqueline Nguyen of 
California to the ninth circuit for 5 months. They delayed confirmation 
of Judge Adalberto Jordan of Florida to the eleventh circuit, Judge 
Beverly Martin of Georgia to the eleventh circuit, Judge Mary Murguia 
of Arizona to the ninth circuit, Judge Bernice Donald of Tennessee to 
the sixth circuit, Judge Barbara Keenan of Virginia to the fourth 
circuit, Judge Thomas Vanaskie of Pennsylvania to the third circuit, 
Judge Joseph Greenaway of New Jersey to the third circuit, Judge Denny 
Chin of New York to the second circuit, and Judge Chris Droney of 
Connecticut to the second circuit for 4 months. They delayed 
confirmation of Judge Paul Watford of California to the ninth circuit, 
Judge Andrew Hurwitz of Arizona to the ninth circuit, Judge Morgan 
Christen of Alaska to the ninth circuit, Judge Stephen Higginson of 
Louisiana to the fifth circuit, Judge Gerard Lynch of New York to the 
second circuit, Judge Susan Carney of Connecticut to the second 
circuit, and Judge Kathleen O'Malley of Ohio to the Federal circuit for 
3 months.
  As a recent report from the nonpartisan Congressional Research 
Service confirms, the median time circuit nominees have had to wait for 
a Senate vote has skyrocketed from 18 days for President Bush's 
nominees to 132 days for President Obama's circuit court nominees. This 
is the result of Republican foot dragging and obstruction. In most 
cases, Senate Republicans have been delaying and stalling for no good 
reason. How else do you explain the filibuster of the nomination of 
Judge Barbara Keenan of Virginia to the fourth circuit who was 
ultimately confirmed 99-0? And how else do you explain the needless 
obstruction of Judge Denny Chin of New York to the second circuit, who 
was filibustered for 4 months before he was confirmed 98-0?
  The only change in their practices is that Senate Republicans have 
finally acknowledged that they are seeking to shut down the 
confirmation process for qualified and consensus circuit court 
nominees. Three of the five circuit court judges finally confirmed this 
year after months of unnecessary delays and a filibuster should have 
been confirmed last year. The other two circuit court nominees 
confirmed this year were both subjected to stalling and partisan 
filibusters, which were thankfully unsuccessful.
  The American people need to understand that Senate Republicans are 
stalling and filibustering judicial nominees supported by their home 
State Republican Senators. Just consider the States I have already 
mentioned as having circuit nominees supported by their home State 
Republican Senators unnecessarily stalled--Indiana, North Carolina, 
Utah, South Carolina, Georgia. Just last month we needed to overcome a 
filibuster to confirm

[[Page S5645]]

Justice Andrew Hurwitz of the Arizona Supreme Court to the ninth 
circuit despite the strong support of Senators Jon Kyl and John McCain. 
Now it is nominees from Oklahoma and Maine who are being filibustered 
despite the support of their home State Republican Senators.
  The year started with the majority leader having to file cloture to 
get an up-or-down vote on Judge Adalberto Jordan of Florida to the 
eleventh circuit even though he was strongly supported by his 
Republican home State Senator. And every single one of these nominees 
for whom the majority leader was forced to file cloture this year was 
rated unanimously well qualified by the nonpartisan ABA Standing 
Committee on the Federal Judiciary, the highest possible rating. Most 
were to fill a judicial emergency vacancy. So when I hear some Senate 
Republicans say they are now invoking the Thurmond rule and have 
decided they are not going to allow President Obama's judicial nominees 
to be considered, I wonder how the American people are supposed to be 
able to tell the difference from how they have been obstructing for the 
last 3\1/2\ years.
  The minority's stalling of votes on judicial nominees with 
significant bipartisan support is all to the detriment of the American 
people. This has been a tactic that they have employed for the last 
3\1/2\ years, despite repeated appeals urging them to work with us to 
help solve the judicial vacancy crisis. We have seen everyone from 
Chief Justice John Roberts, himself appointed by a Republican 
President, to the nonpartisan American Bar Association urging the 
Senate to vote on qualified judicial nominees who are available to 
administer justice for the American public. Sadly, Republicans insist 
on being the party of no.
  What the American people and the overburdened Federal courts need are 
qualified judges to administer justice in our Federal courts, not the 
perpetuation of extended, numerous vacancies. Today vacancies on the 
Federal courts are more than 2\1/2\ times as many as they were on this 
date during the first term of President Bush. The Senate is more than 
40 confirmations off the pace we set during President Bush's first 
  Because they cannot deny the strength of this comparison--using 
apples to apples by comparing first terms--Senate Republicans instead 
try to draw comfort by making comparisons to President Bush's second 
term after we had already worked hard to reduce vacancies by 75 
percent. In fact, during President Bush's second term, the number of 
vacancies never exceeded 60 and was reduced to 34 near the end of his 
Presidency. In stark contrast, vacancies have long remained near or 
above 80, with little progress made in these last 3\1/2\ years. Today, 
there are still 76 vacancies. Their tactics have actually led to an 
increase in judicial vacancies during President Obama's first term--a 
development that is another sad first.
  But the real point is that their selective use of numbers does 
nothing to help the American people. We should be doing better. I know 
that we can because we have done better. During President Bush's first 
term, notwithstanding the 9/11 attacks, the anthrax attack on the 
Senate, the ideologically driven selections of judicial nominees by 
President Bush, and his lack of outreach to home State Senators, we 
reduced the number of judicial vacancies down to 29 by this point 
during his first term and acted to confirm 205 circuit and district 
court nominees by the end of his first term.
  Another excuse from the minority comes across more as partisan score 
settling than anything else. They claim that having confirmed two 
Supreme Court Justices, the Senate cannot be expected to reach the 205 
number of confirmations in President Bush's first term.
  But those Supreme Court confirmation proceedings from years ago do 
not excuse the Senate from taking the actions it could now on the 20 
judicial nominees voted out of the Judiciary Committee and ready for 
final Senate action. That second Supreme Court confirmation was in 
August 2010. That is almost 2 years ago and it was opposed by most 
Senate Republicans.
  Senate Republicans held down circuit and district court confirmations 
in President Obama's first 2 years in office to historically low 
numbers--12 by the end of 2009 and another 48 in 2010 for a total of 
only 60. They refused to act on 10 nominees ready at the end of 2009 
and on 19 as 2010 drew to a close. Last year they employed the same 
tactic in stalling action on another 19 judicial nominees at the end of 
2011. Now it is 20 judicial nominees in this summer of 2012 that they 
are stalling. Had Republicans not stalled 19 nominations at the end of 
last year and dragged those confirmations out into May of this year, we 
the American people and the Federal courts would be much better off. As 
it is, however, the fact remains that there are 20 qualified judicial 
nominations that the Senate could be voting on without further delay.
  They refuse to acknowledge that in addition to confirming two Supreme 
Court Justices in President Clinton's first term, the Senate was able 
to confirm 200 circuit and district court judges. And in 1992, at the 
end of President George H.W. Bush's term, the Senate with a Democratic 
majority was able to confirm 192 circuit and district court judges 
despite confirming two Supreme Court Justices. Republicans have kept 
the Senate well back from those numbers by only allowing the Senate to 
proceed to confirm 154 of President Obama's circuit and district court 
nominees. That is a far cry from what we have been able to achieve in 
addition to our consideration of Supreme Court nominations when the 
Senate was being allowed to function more fairly and to consider 
judicial nominees reported with bipartisan support.
  Nor are the nominees about whom we are concerned recently nominated. 
These are not nominees dumped on the Senate in scores at the end of a 
Presidential term. These are, instead, nominations that date back to 
October of last year. Most were nominated before March. In fact the 
circuit court nominees who Republicans are refusing to consider date 
back to October and November of last year and January of this year. 
William Kayatta was voted on by the committee and placed before the 
Senate by mid-April and could have been confirmed then. Richard Taranto 
and Judge Patty Shwartz have been stalled before the Senate even 
longer, since March. The truth is that Senate Republicans have shut 
down confirmations of circuit court judges not just in July but, in 
effect, for the entire year. The Senate has yet to vote on a single 
circuit court nominee nominated by President Obama this year. Since 
1980, the only Presidential election year in which there were no 
circuit nominees confirmed who was nominated that year was in 1996, 
when Senate Republicans shut down the process against President 
Clinton's circuit nominees. The fact that Republican stalling tactics 
have meant that circuit court nominees that should have been confirmed 
in the spring--like Bill Kayatta, Richard Taranto and Patty Shwartz--
are still awaiting a vote after July 4th is no excuse for not moving 
forward this month to confirm these circuit nominees.
  The American people who are waiting for justice do not care about 
excuses. They do not care about some false sense of settling political 
scores. They want justice, just as they want action on measures the 
President has suggested to help the economy and create jobs rather than 
political calculations about what will help Republican candidates in 
the elections in November.
  When Republican Senators try to take credit for the Senate having 
reached what they regard as their ``quota'' for confirmations this 
year, they should acknowledge their strenuous opposition and attempts 
to filibuster many of the nominations for which they now take credit. 
As recently as 2008, Senate Republicans denied there was a Thurmond 
rule. They used to say that any judicial nominee reported by the Senate 
was entitled to an up-or-down vote and that they would never filibuster 
judicial nominees. Well, the majority leader has had to file 30 cloture 
petitions to end their filibusters of judicial nominees. Now they are 
flip-flopping on their own call for up-or-down votes.
  What they are doing now is a first. As I have noted, in the past 5 
Presidential election years, Senate Democrats have never denied an up-
or-down vote to any circuit court nominee of a Republican President who 
received bipartisan support in the Judiciary Committee. They

[[Page S5646]]

are denying votes not only to Robert Bacharach, a nominee from Oklahoma 
supported by his conservative home State Republican Senators but also 
to William Kayatta, a universally respected nominee from Maine 
supported by his home State Republican Senators, and Richard Taranto, 
whose nomination to the Federal circuit received virtually unanimous 
support. Even Judge Patty Shwartz, whose nomination to the third 
circuit received a split rollcall vote, has the bipartisan support of 
New Jersey Governor Chris Christie.
  Personal attacks on me, taking quotes out of context, trying to 
repackage their own actions as if following the Thurmond rule or what 
they seek to dub the Leahy Rule do nothing to help the American people 
who are seeking justice in our Federal courts. I am willing to defend 
my record but that is beside the point. The harm to the American people 
is what matters. Republicans are insisting on being the party of no 
even when it comes to judicial nominees who home State Republican 
Senators support.
  As chairman and when I served as the ranking member of the Judiciary 
Committee, I have worked with Senate Republicans to consider judicial 
nominees well into Presidential election years. I have taken steps to 
make the confirmation process more transparent and fair. I have ensured 
that the President consults with home State Senators before submitting 
a nominee. I have opened up what had been a secretive, blue-slip 
process to prevent abuses. All the while I have protected the rights of 
the minority, of Republican Senators. If Republicans want to talk about 
the Leahy rules, those are the practices I have followed. And I have 
been consistent. I hold hearings at the same pace and under the same 
procedures whether the President nominating is a Democrat or a 
Republican. Others cannot say that.
  Senate Republicans are fond of taking quotes of things I have said 
out of context. But look at my record as chairman. I have not 
filibustered nominees with bipartisan support in July of Presidential 
election years. As chairman of this committee, I have steadfastly 
protected the rights of the minority. I have done so despite criticism 
from Democrats. I have only proceeded with judicial nominations 
supported by both home State Senators. I will put my record of 
consistent fairness up against that of any chairman and remind Senate 
Republicans that it is they who blatantly disregarded evenhanded 
practices when they were ramming through ideological nominations of 
President George W. Bush. They would proceed with nominations despite 
the objection of both home State Senators.
  So those are the Leahy rules--respect for and protection of minority 
rights, increased transparency, consistency, and allowing for 
confirmations well into Presidential election years for nominees with 
bipartisan support.
  And what were the results? In the last two Presidential election 
years, we were able to bring the number of judicial vacancies down to 
the lowest levels in the past 20 years. In 2004, at the end of 
President Bush's first term, vacancies were reduced to 28, not the 76 
we have today. In 2008, in the last year of President Bush's second 
term, we again worked to fill vacancies and got them down to 34, less 
than half of what they are today. In 2004, 25 nominees were confirmed 
from June 1 to the Presidential election. In 2008, 22 nominees were 
confirmed between June 1 and the Presidential election. So far, since 
June 1 of this year, only eight judges have been confirmed and five 
required the majority leader to file cloture to end Republican 
  In 2004, the Senate confirmed five circuit court nominees of a 
Republican President that had been reported by the committee that year. 
This year we have confirmed only two circuit court nominees that have 
been reported by the committee this year, and we had to overcome 
Republican filibusters in both cases. By this date in 2004 the Senate 
had already confirmed 35 of President Bush's circuit court nominees. So 
far, the Senate has only been allowed to consider and confirm 30 of 
President Obama's circuit court nominees--5 fewer, 17 percent fewer--
while higher numbers of vacancies remain, and yet the Senate Republican 
leadership demands an artificial shutdown on confirmation of qualified, 
consensus nominees for no good reason.
  In fact, during the last 20 years, only four circuit nominees 
reported with bipartisan support have been denied an up-or-down vote 
during a Presidential election year by the Senate; all four were 
nominated by President Clinton and blocked by Senate Republicans. While 
Senate Democrats have been willing to work with Republican Presidents 
to confirm circuit court nominees with bipartisan support, Senate 
Republicans have repeatedly obstructed the nominees of Democratic 
Presidents. In the previous 5 Presidential election years, a total of 
13 circuit court nominees have been confirmed after May 31. Not 
surprisingly, 12 of the 13 were Republican nominees. Clearly, this is a 
one-way street in favor of Republican Presidents' nominees.
  Senate Republicans, on the other hand, have repeatedly asserted that 
the Thurmond rule does not exist. For example, on July 14, 2008, the 
Senate Republican caucus held a forum and said that the Thurmond rule 
does not exist. At that meeting, the senior Senator from Kentucky, the 
Republican leader stated: ``I think it's clear that there is no 
Thurmond rule. And I think the facts demonstrate that.'' Similarly, the 
Senator from Iowa, my friend who is now serving as ranking member of 
the Judiciary Committee, stated that the Thurmond rule was in his view 
``plain bunk.'' He said: ``The reality is that the Senate has never 
stopped confirming judicial nominees during the last few months of a 
President's term.'' We did not in 2008 when we proceeded to confirm 22 
nominees over the second half of that year.
  So at the end of President Bush's second term, and at the beginning 
of his first term as well, Senate Democrats worked to confirm consensus 
nominees and reduce the judicial vacancy rate. Despite the pace we set 
during President Bush's first term for reducing vacancies, vacancies 
have remained near or above 80 for most of President Obama's first term 
and little comparative progress has been made during the three and a 
half years of President Obama's first term. As contrasted to 29 
vacancies in July 2004, there are still 76 vacancies in July 2012. If 
we could move forward to Senate votes on the 20 judicial nominees ready 
for final action, the Senate could reduce vacancies to less than 60 and 
make some progress. We were 9 months later in confirming the 150th 
circuit or district judge to be appointed by President Obama. Another 
way to look at our relative lack of progress and the burden the 
Republican obstruction is placing on the American people seeking 
justice is to note that by mid-November 2002 we had already reduced 
judicial vacancies to below where we are now. In fact, when on November 
14, 2002, the Senate proceeded to confirm 18 judicial nominees, 
vacancies went down to 60 throughout the country. We effectively worked 
twice as efficiently and twice as fast. By that measure, the Senate is 
almost 20 months behind schedule. This is hardly then the time to be 
shutting down the process.
  In a letter to Senators Coburn and Inhofe dated July 19, 2012, the 
American Bar Association's State Delegate for Oklahoma urged the 
Republican Senators to rise above politics and to end this filibuster 
of Judge Bacharach. I ask unanimous consent that a copy of this letter 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     American Bar Association,

                                 Oklahoma City, OK, July 19, 2012.
     Senator James M. Inhofe,
     Russell Senate Office Building, Washington, DC.
     Senator Tom Coburn,
     Russell Senate Office Building, Washington, DC.
       Dear Senators Inhofe and Coburn: The undersigned, 
     Oklahoma's current delegates to the American Bar Association 
     (ABA) (less two judge members who abstain from this letter), 
     are writing to ask you respectfully to press the Republican 
     Senate leadership for a floor vote, before the traditional 
     August recess, on the nomination of Judge Robert Bacharach to 
     the Tenth Circuit Court of Appeals vacancy.
       As you probably know, the ABA wrote to the Senate leaders 
     of both parties on June 20, 2012, after Senator McConnell 
     announced his party's intention to invoke the so-called 
     ``Thurmond Rule'' and block floor consideration of any more 
     nominees to any federal circuit court vacancies, including 
     those, like Judge Bacharach, that: (1) have passed through 
     the Judiciary Committee; (2)

[[Page S5647]]

     present no controversy on their qualifications; and (3) have 
     the support of their home state senators.
       We appreciate your role in the selection of Judge Bacharach 
     and your public support for his nomination. As you know, he 
     has been rated ``unanimously well qualified'' by the ABA 
     panel that reviewed his qualifications.
       We understand that both political parties have engaged in a 
     variety of stalling tactics, including the threat of a 
     filibuster, regarding judicial nominations in the past. 
     However, this ignores the fact that this Oklahoma slot on the 
     Tenth Circuit has now been vacant for over two years.
       Therefore, we are asking you (1) to use your considerable 
     influence within the Senate and urge the leadership of both 
     parties to schedule a floor vote on Judge Bacharach's 
     nomination before the August recess, and (2) to publicly 
     announce your willingness to vote to end any filibuster 
     preventing a vote on the merits of the nomination, if 
                                                    Jimmy Goodman,
                                  ABA State Delegate for Oklahoma.
       For himself and also for: Cathy M. Christensen, OBA (OK Bar 
     Assoc.) President; William G. Paul, ABA Past President; 
     Dwight L. Smith, ABA Division Delegate; James T. Stuart, OBA 
     President-Elect; M. Joe Crosthwait, Jr., Okla. County Bar 
     Delegate; Mark A. Robertson, ABA Section Delegate; Peggy 
     Stockwell, OBA Vice President; Robert S. Farris, Tulsa County 
     Bar Delegate; Jennifer Kirkpatrick, Young Lawyer Delegate.

  Mr. LEAHY. Mr. President, it is time for reasonable and independent 
thinking Senators to end this needless and damaging filibuster on Judge 
Bacharach's nomination and confirm him. With judicial vacancies 
remaining at such high levels for so long, we need to continue 
confirming judicial nominees. At a time when judicial vacancies 
remained historically high for 3 years, with 40 more vacancies and 40 
fewer confirmations than at this point in President Bush's first term, 
the Senate Republican leadership should reconsider its obstruction and 
work with us to fill these longstanding judicial vacancies in order to 
help the American people. We have well-qualified, consensus nominees 
with bipartisan support who can fill these vacancies. It is only 
partisan politics and continued tactics of obstruction that stand in 
the way.
  Mr. FRANKEN. Mr. President, I ask unanimous consent that any time in 
a quorum call be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRANKEN. Mr. President, 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. GRASSLEY. 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. GRASSLEY. Mr. President, for the last few weeks, it has been 
routine practice here in the Senate that we vote on consensus district 
court nominees most Mondays. We have done so quite a number of times in 
this Congress. We could have done so again tonight. Instead, the 
majority leader has decided to pursue another course. Rather than 
confirm what would have been the 155th judge tonight, the majority will 
instead engage in a political activity. Make no mistake, it is purely 
and simply a political posturing situation. It is really unfortunate.
  It is well known that the practice and tradition of the Senate is to 
stop confirming circuit nominees in the closing months of a 
Presidential election year. That is what we have done during the last 
number of Presidential election years. That started in 1980, I believe. 
So that would be 32 years. In fact, today is July 30. You would have to 
go back that number of years to find a Presidential election year when 
we approved a circuit court judge this late.
  Of course, the rationale has been that this close to an election, 
whoever wins that election should be the one to pick these lifetime 
nominees who will run our judiciary system. It is true that there were 
some votes in relation to circuit nominations in July during the last 
two election years. The only problem, of course, is that those were 
cloture votes on outstanding nominees the Democrats were filibustering.
  For example, in July 2004--remember, that was a Presidential election 
year--cloture votes were held on four outstanding circuit nominees the 
Democrats were filibustering. Those included Miguel Estrada, nominated 
for the D.C. Circuit; Richard Griffin, nominated to the sixth circuit 
court; David McKeagh, nominated to the sixth circuit; and Henry Saad, 
also nominated to the sixth circuit.
  I would note that at the time the sixth circuit alone had a 25-
percent vacancy rate. And every one of those vacancies was designated 
as judicial emergencies.
  That, of course, didn't matter to the other side. Despite the fact 
that the sixth circuit was in dire straits, the other side filibustered 
every one of those nominees.
  I don't recall too much concern from my friends on the other side of 
the aisle about the need to confirm those judges.
  And now, when our side seeks to enforce the rule the other side 
helped create and perfect, all we hear are complaints.
  Mr. President, if ever there was an example of ``crocodile tears,'' 
this is it.
  In 2008, the other side was at it again. Once again, they closed-up 
shop on Circuit nominations in June. This time, it was the Fourth 
Circuit that was in dire straits.
  Despite the fact that the Fourth Circuit was 25 percent vacant, the 
Democrats refused to even process four outstanding consensus nominees.
  Those nominees included Judge Robert Conrad, even though he had 
already been confirmed unanimously as a U.S. Attorney and District 
Court Judge. Democrats refused to process Judge Glen Conrad even though 
he had strong bipartisan home state support. Steve Matthews also had 
strong home-state support yet the Democrats in Committee refused to 
give him a vote. To show you the incredible lengths the Democrats were 
willing to go, they even tried to justify blocking the nomination of 
U.S. Attorney Rod Rosenstein to the fourth circuit by claiming he was 
doing ``too good of a job'' as U.S. Attorney to be promoted.
  By refusing to give these nominees a vote in Committee, the Democrats 
engaged in what amounted to a ``pocket filibuster'' of all four of 
these candidates to the fourth circuit.
  And again, this was at a time when the fourth circuit's vacancy rate 
was over 25 percent, similar to the Sixth Circuit vacancy rate in 2004. 
But that didn't matter to the other side. In 2008, just like in 2004, 
they simply refused to process any more circuit nominees after June.
  At the end of the day, based on any fair and objective metric, the 
suggestion that we today are operating any differently than Democrats 
did in 2004 and 2008 is simply without merit. Democrats stalled and 
blocked numerous highly qualified circuit nominees during those 
Presidential election years including even nominees with bipartisan 
  The Democratic leadership has invoked repeatedly what has been called 
the ``Thurmond Rule'' to justify stalling nominees--even those with 
bipartisan support. And now they don't want us to play by the same set 
of rules. The Democratic leadership doesn't want us to enforce the rule 
that they helped establish.
  Let me quote from a CRS report on this subject:

       The Senator who most frequently has asserted the existence 
     of a Thurmond rule has been the current chairman of the 
     Judiciary Committee.

  The CRS report noted that on March 7, 2008, the Chairman recalled:

       When President Reagan was running for President and Senator 
     Thurmond, then in the Republican minority as ranking member 
     of the Judiciary Committee, instituted a policy to stall 
     President Carter's nominations. That policy, known as the 
     ``Thurmond Rule,'' was put in when the Republicans were in 
     the minority. It is a rule that we still follow, and it will 
     take effect very soon here.

  Again, this was in March of that Presidential election year, not June 
or July.
  CRS went on to note the strong support the majority leader has 
expressed for the so-called Thurmond rule. According to CRS:

       Senator Harry Reid, the Senate majority leader, has 
     expressed agreement with Senator Leahy about the existence of 
     a Thurmond rule. In April 10, 2008, floor remarks, Senator 
     Reid said, ``In a Presidential election year, it is always 
     very tough for judges. That is the way it has been for a long 
     time, and that is why we have the Thurmond rule and other 
     such rules.''

  Five days later, the Majority Leader said:

[[Page S5648]]

       You know, there is a Thurmond doctrine that says: After 
     June, we will have to take a real close look at judges in a 
     Presidential election year.

  These quotes indicate not only the expectation, but in fact a support 
for slowing down and cutting off the confirmation of judges in a 
Presidential election year.
  Senate Republicans are invoking this practice in a more narrow 
fashion, and after more confirmations than Democrats did in the past.
  Setting aside the so-called Leahy-Thurmond rule, by any objective 
measure, this President has been treated fairly and consistent with 
past Senate practices.
  For example, with regard to the total number of confirmations, this 
President is well ahead of his predecessor. We have confirmed 154 of 
this President's district and circuit nominations. We have also 
confirmed 2 Supreme Court nominations during President Obama's first 
term. When Supreme Court nominations are pending in the Committee, all 
other nominations work is put on hold.
  The last time the Senate confirmed two Supreme Court nominees was 
during President Bush's second term. And during that term the Senate 
confirmed a total of only 119 district and circuit court nominees.
  Let me put it another way, under similar circumstances, we have 
confirmed 35 more district and circuit nominees for President Obama 
than we did for President Bush.
  During the last Presidential election year, 2008, the Senate 
confirmed a total of 28 judges--24 district and 4 circuit. This 
Presidential election year we have already exceeded those numbers, 
having confirmed a total of 32 judges. So those who say that this 
President is being treated differently either fail to recognize 
history, or want to ignore the facts, or both.
  While this President has not been treated differently than previous 
Presidents, he certainly has behaved differently with regard to 
nominations. He has been slow to send nominees to the Senate, and he 
abused his recess appointment authority. If President Obama hasn't 
gotten as many confirmations as he could have, it is because he has 
been slow to nominate and he has abused his recess appointment power.
  Let me take just a moment to discuss how slow the President has been 
with his nominations.
  When President Obama took office, there were 59 judicial vacancies. 
One year earlier, at the beginning of 2008, there were only 43 
vacancies. So, during the last year of President Bush's second term, 
when the Democrats controlled the Senate, and during a time when they 
refused to process four nominees for the fourth circuit, they allowed 
the vacancy rate to increase by more than 37 percent.
  By mid-March 2009, when the first Obama judicial nomination was sent 
up to the Senate, there were 70 judicial vacancies. Over the next 3 
months, only five more circuit nominations were sent to the Senate. By 
the end of June, when the Senate received its first district 
nomination, there were 80 vacancies.
  The failure or delay in submitting nominations for vacancies has been 
the practice of this administration and it still continues to this day.
  By the end of 2009, there were 100 vacancies, with only 20 nominees. 
In December 2010, more than half of the 108 vacancies had no nominee. 
At the beginning of this year, only 36 nominees were pending for the 82 
vacancies. And it continues to this day, more than half of the 76 
vacancies have no nominee.
  I just want to remind my colleagues that all of this begins with the 
White House. So if someone wants to complain about judicial vacancies, 
they should mail those complaints to 1600 Pennsylvania Avenue.
  Now, I also mentioned that the President could have had a few more 
district court nominees at the end of last Congress.
  Our side offered to confirm quite a number of district court nominees 
who were on the Executive Calendar, If the President would provide his 
assurances that he wouldn't bypass the Senate with recess appointments. 
The President refused to provide those assurances, and we found out why 
a couple weeks later when the President unconstitutionally bypassed the 
  I want everyone to understand that. At the end of last Congress we 
offered to confirm quite a few district court nominees. But the 
President wouldn't take ``Yes'' for an answer. Rather than choosing a 
path that led to more progress and a greater number of confirmations, 
the President chose the path to more confrontation and fewer 
  The same thing happened last week. Once again, our side offered to 
confirm additional district court nominees. But, once again, the other 
side refused to take ``Yes'' for an answer. Rather than choosing the 
path that led to cooperation and additional confirmations, the other 
side chose more confrontation and fewer confirmations. They would 
rather waste precious time on a vote to nowhere, than spend the little 
time we have left on getting more nominations done. So here we are 
engaged in this political theater.
  I urge my colleagues to vote ``No'' on cloture.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
  Mr. McCONNELL. Mr. President, it is almost August. We are just a few 
weeks away from the political parties' nominating conventions. At this 
point in past Presidential election years, the Senate is diligently 
working on things such as appropriations bills or the Defense 
authorization bill but not this year in the Senate.
  Our Democratic colleagues refuse to do the basic work of government. 
Even though Chairman Inouye has said he would like to pass some of the 
nine appropriations bills his committee has worked hard to complete, we 
haven't taken up a single one. Our Democratic colleagues will not bring 
the Defense authorization bill to the floor either, even though both 
the chairman and the ranking member of the Armed Services Committee are 
ready to work on this important legislation as well. And they refuse to 
work with us to help the economy or to prevent a looming tax hike on 
nearly 1 million small businesses at the end of the year.
  Instead, they prefer to waste valuable time on a vote they have 
argued for many years shouldn't take place this close to a Presidential 
election. Now that there is a Democrat in the White House, they refuse 
to follow past practice on postponing the consideration of circuit 
court nominations this late in a Presidential election year so the 
American people can decide whom they want to make these important 
appointments. This practice is known as the Leahy-Thurmond rule. It is 
a custom they vigorously defended when there was a Republican in the 
White House.
  So let's take a look at recent history. In 2004, the unemployment 
rate was only 5.4 percent. On our circuit courts, however, back in 
2004, there were nine declared judicial emergencies. That didn't matter 
to our Democratic colleagues. The Senate stopped--stopped--circuit 
court nominations in June of that year, even though we had nine 
judicial emergencies. In 2008, the unemployment rate wasn't much 
higher, at 6.1 percent. In our circuit courts, there were almost as 
many judicial emergencies. But in the Fourth Circuit things were much 
worse: Fully one-fourth of the seats were empty, even though there were 
qualified nominees to fill them. Our Democratic colleagues didn't care 
then either. In the name of Senate custom and practice--by which I mean 
the Leahy-Thurmond rule--they pocket-filibustered several outstanding 
circuit court nominees in committee.
  It didn't matter to our Democratic friends that these nominees 
enjoyed strong home State support, including bipartisan home State 
support, or that they had outstanding credentials or that they would 
fill declared emergencies on our circuit courts. The Senate couldn't 
process them--they told us again and again and again--because it was 
June and that was--to quote the chairman of the Judiciary Committee--
``way past the time'' of the Leahy-Thurmond rule.
  Today, it is August, not June, that is upon us. The country's 

[[Page S5649]]

rate is, unfortunately, much higher than it was in either 2004 or 2008. 
It is now at 8.2 percent. But the situation on our circuit courts is 
much better than it was in either 2004 or 2008. There are now fewer 
judicial emergencies. In terms of what the Senate can do about it, as 
opposed to the President's failure to nominate people, we have 
confirmed--we have confirmed--every nominee whom the President has 
submitted to fill a judicial emergency on our circuit courts, save 
one--only one. That is right. The Senate has confirmed every nominee 
the President has sent to fill an emergency on our circuit courts, save 
one, and that one nominee isn't on the Senate floor.
  In fact, the Senate has already confirmed as many or more circuit 
court nominees this year than it did in 2004 or 2008. It has confirmed 
a much higher percentage of circuit court nominations and it has 
confirmed those nominations faster than during the Bush administration.
  On that last point, although we will not hear our Democratic friends 
acknowledge it, the average time from nomination to confirmation--the 
average time from nomination to confirmation--of a circuit court 
nominee for President Obama is over 1 month faster than it was for 
President Bush in his first term. Again, the time from nomination to 
confirmation for President Obama is over 1 month faster for a circuit 
court nominee than in President Bush's first term, and it is over 100 
days faster than it was for President Bush's circuit court nominees 
  So the situation with our economy is worse now than it was in 2004 or 
2008, while the situation on our circuit courts is better. The economy 
is worse, but the situation on circuit courts is better. So what do you 
think our Democratic colleagues are going to focus on? Are they going 
to do the basic work of government--fund the government, for example? 
It doesn't look like it. Are they going to reauthorize important 
programs for our Nation's defense? I am told it has been 50-some-odd-
years since the Defense authorization bill hasn't passed--no sign of it 
this year. Are they going to work with us to fix the economy or prevent 
a looming tax hike? I don't see any evidence of it yet.
  What they want to do, instead, is violate the custom in Presidential 
election years that the Congressional Research Service says they have 
been the biggest proponents of. This is not me saying this, this is the 
Congressional Research Service. They want to violate the custom in 
Presidential election years that the CRS says they have been the 
biggest proponents of.
  The CRS does not say the biggest proponent of the Leahy-Thurmond rule 
is me or Ranking Member Grassley or even Senator Thurmond. Rather, the 
CRS says the most frequent proponent of the rule ``is the current 
chairman of the Senate Judiciary Committee.''
  No doubt we will hear some post hoc, gerrymandered rationale from our 
Democratic friends as to why the rule the CRS says they have been the 
biggest proponents of somehow doesn't apply to them. They will ignore 
the pocket filibusters of people who would have filled judicial 
emergencies during a Republican administration. But, of course, that is 
par for the course.
  Whether it is pro forma sessions to prevent recess appointments, or 
judicial filibusters, or the Leahy-Thurmond rule, our friends don't 
want the practices they have pioneered or been the biggest proponents 
of to apply to them. They don't want the practices they have been the 
pioneers of and the biggest proponents of to apply to them. Now it is 
pretty convenient for them, but that is not the way the Senate is 
supposed to work.
  In sum, on the subject of the Leahy-Thurmond rule, we have been more 
responsible in deciding to invoke it in this year than our Democratic 
colleagues were in either 2004 or 2008. I would urge my friends to 
oppose this double standard and to oppose cloture.
  Let me repeat. This is not about the individual who has been 
nominated. It wasn't, in many respects, about the individuals to be 
nominated in 2004 or 2008. What this is is a bipartisan timeout--
bipartisan in the sense that it has been used by both sides--a timeout 
within, this year, 6 months of an election; in 2008, it was within 8 
months of the end of a term--but within 6 months of an election to 
these important lifetime jobs to see who the next President may be.
  Mr. INHOFE. Mr. President, will the Senator yield?
  Mr. McCONNELL. I yield to my friend from Oklahoma.
  Mr. INHOFE. Let me first say it is awkward that one of the best 
nominees, Robert Bacharach, is the one subject to this. I regret that 
is the case. The problem is this would be the latest confirmation of a 
circuit court nominee during an election year in 20 years.
  I was thinking today that I cannot vote against this guy, but I sure 
can vote present. If we have a 20-year precedent that was put in there 
by the Democrats and the Republicans alike, I wouldn't want to be the 
one to break that precedent. We are within 4 months of an election 
right now. It is very important that we do what we have done over the 
last 20 years and allow the new administration to come in.
  The nomination of Robert Bacharach has been up there for 2 years 
before any action. You have to be a little suspicious as to why is he 
coming up right now. So I may end up voting present.
  Mr. McCONNELL. I thank my friend from Oklahoma. He confirms that this 
is not about the nominee, who apparently is well qualified. This is 
about an approach that has developed over several decades called the 
Leahy-Thurmond rule, under which it has been the practice to kind of 
call a timeout within rather close proximity to an election. In 2008, 
the timeout was called in June. We are going to enter August at the end 
of this week.
  I would say also to my friend from Oklahoma, we have confirmed for 
the President in this election year five circuit court nominees. 
President Bush in 2008 got four; President Bush in 2004 got five. We 
have not been unfair to the administration. And it is certainly no 
reflection on what is apparently an outstanding nominee from your 
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I hope the American people are witnessing 
this moment in the Senate. We are about to make history. We are going 
to make history here in a few minutes when we have a rollcall vote on 
U.S. Magistrate Judge Robert Bacharach to the Tenth Circuit Court of 
Appeals. This fine man who has been nominated to this high position in 
the Federal judiciary has the support of both Senators of his home 
State. They are both Republicans.
  Listen to what Senator Tom Coburn said of Mr. Bacharach: A stellar 
candidate. Listen to what Senator Inhofe said about this same nominee 
from his State: A great guy.
  I listened to these comments. Then I reflect on the fact this man was 
reported out of the Senate Judiciary Committee on a voice vote. There 
was so little controversy because of his outstanding record, he was 
reported out on a voice vote.
  The Democratic majority leader has offered to bring to the floor of 
the Senate a nominee approved by both Republican Senators from 
Oklahoma, and now you hear Senator McConnell come to the floor and 
explain why the Republicans will have to filibuster and stop this man 
from being appointed to the court. Is it something about him? No. It is 
all about politics and it is all about the Presidential campaign.
  If the Republicans sustain this filibuster and stop this good man 
from his service on the circuit court, it will be the first time in the 
history of the Senate that an appeals court nominee with bipartisan 
committee support has ever been filibustered on the floor of the 
Senate. But how can we be surprised? This will be the 86th Republican 
filibuster this Congress.
  It is said that if the only tool you own is a hammer, every problem 
looks like a nail. If you happen to be a Republican leader in the 
Senate, every day looks like another chance for a filibuster. Eighty-
six filibusters. Now they are filibustering judicial nominees approved 
nearly unanimously by the committee and approved by both Republican 
Senators. The President is prepared to assign this man into this 
position--a critically important position in the judiciary--and who is 
stopping him? The Republicans in the Senate, the 86th Republican Senate 
filibuster in this Congress. No surprise that it comes from Senator 
McConnell, who very openly and candidly, and I assume honestly, said, 
My biggest job in the Senate is to make sure

[[Page S5650]]

Barack Obama is a one-term President. That is how he welcomed President 
Obama to the White House.
  So they have piled filibuster on top of filibuster to stop the rare 
possibility that this President would give this good man, this 
exceptional man, a chance to serve his country. Listen to the 
background of this man who is about to become a victim of the 86th 
Republican filibuster:
  For 13 years he has served as a federal magistrate. He has handled an 
impressive caseload, including almost 3,000 civil and criminal matters, 
and 400 judicial settlement conferences. He is the type of consensus 
nominee we look for in every single State. He has been given the 
highest possible rating by the American Bar Association. No questions 
asked, this is a good man and a good candidate for this job. In the 
American Bar Association's nonpartisan peer review, every single 
reviewer said this magistrate is well qualified to serve as a circuit 
court judge in the Tenth Circuit Court of Appeals. And where are the 
politics there? The politics are that the Democratic majority leader 
has offered to the two Republican Senators from Oklahoma a chance for 
this good man to serve, and now they are going to stop him with a 
Republican filibuster.
  If you are looking for evidence of a dysfunctional Senate, hold on 
tight. In just a few moments we will start a rollcall, and you will 
watch as Republican after Republican comes and votes to kill this man's 
nomination for the Tenth Circuit Court of Appeals. President Obama will 
be the first President in 20 years to complete his first term with more 
judicial vacancies than when he took office. They have dragged their 
feet every step of the way with filibusters and delays to stop this 
President from appointing the judges he was elected to appoint. And 
good people--good people such as U.S. Magistrate Judge Robert 
Bacharach--who submit their names in this process, who go through 
extensive background investigations, who put their lives on hold 
wondering if they are going to make it, end up getting caught in a 
political game that is being played here on the floor.

  I hope there is a handful--five, six, or seven--Republican Senators 
who will give this man a fair break and will give him a chance to serve 
his country as a circuit judge for the Tenth Circuit Court of Appeals. 
Please, let us not make history today by stopping a highly qualified 
bipartisan nominee, well qualified by the American Bar Association, 
from serving this circuit. The Republican Senators from Oklahoma are 
right--he is a stellar candidate and, by every measure, a great guy. 
Please don't make him a victim of last-minute political campaigning in 
this last week before the recess we take for our Democratic national 
convention and the Republican national convention. He shouldn't be a 
victim of this Presidential campaign. He deserves a chance to serve.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I don't like to get involved in the back 
and forth on this issue. It bothers me. Chairman Leahy goes into all 
these numbers, and they are distorted for the most part in connection 
with the reality. I have said that I simply will not, however, stand by 
and see the record misconstrued and the picture painted as something 
other than it is.
  President Bush's judicial nominees were filibustered extraordinarily, 
unlike anything we had ever seen before. And this is the way it 
happened. I was here, I remember it very distinctly. President Bush was 
elected President. In 2001, shortly after he was elected, the New York 
Times reported that a group of well-known liberal law professors, 
including Laurence Tribe, Cass Sunstein, and Marsha Greenberger, met 
with Democratic Senators in a retreat. They proposed to the Democratic 
conference, who were then in the minority in the Senate--they didn't 
have the majority. President Bush was going to be nominating judges, 
and they decided to change the ground rules of judicial confirmation. 
That is a fact. After that, they aggressively executed a plan of 
unprecedented obstruction of judicial nominees.
  In a totally unprecedented use of the filibuster, the Senate 
confirmed only 6 of 25 of President Bush's circuit court nominees. Two 
of those six were prior Clinton nominees President Bush, in an act of 
good faith, renominated. Of course they were immediately confirmed. Yet 
the majority of President Bush's first nominees to the circuit court 
waited years for confirmation. Many were never confirmed.
  Perhaps the most disturbing story was that of Miguel Estrada, which 
has come up recently in the confirmation of Supreme Court Justices in 
which some of my Democratic colleagues basically acknowledge that he 
was unfairly treated. He is an outstanding appellate lawyer, supremely 
qualified to serve on the District of Columbia Circuit Court. He waited 
16 months for a hearing. They would not give him a hearing.
  This was all after 2000, in their determination to change the ground 
rules. Before that, filibusters had not been utilized against nominees, 
not to any degree. Almost never, actually. We had a fight over it. I 
spoke on maybe half a dozen or a dozen times about Mr. Estrada. There 
were seven cloture votes--seven attempts--by the Republicans to get a 
vote on Mr. Estrada so he could be confirmed. He was a superb nominee, 
and he was treated very poorly. It was not the right thing, and people 
have acknowledged it since.
  Mr. President, is there a time agreement on the vote to commence?
  The PRESIDING OFFICER. The time for the minority leader just expired.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to have one 
additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Let me just say this: In the last 20 years, going back even before 
this dispute began in 2000, when Democrats changed the ground rules of 
confirmations and started filibustering systematically qualified 
nominees, not one circuit judge has been confirmed after this day. That 
has been the tradition of the Senate. It has been referred to as the 
Thurmond rule. Maybe it would be even more appropriate to say the Leahy 
  Others have talked about the quotes that have been made from Senator 
Reid and Senator Leahy on the floor. This is the tradition of the 
Senate that when someone is up for reelection, after this day, to get 
their nominees confirmed, they have to win reelection. If President 
Obama is successful in being reelected, I am sure he will have a high 
likelihood of getting this nominee and others confirmed.
  I thank the Chair, yield the floor, and note the absence of a quorum.
  The PRESIDING OFFICER (Mr. Manchin). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I yield back all time prior to the vote.

                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  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 
     Robert E. Bacharach, of Oklahoma, to be United States Circuit 
     Judge for the 10th Circuit.
         Harry Reid, Patrick J. Leahy, Thomas R. Carper, Tom 
           Udall, Robert Menendez, Kirsten E. Gillibrand, Dianne 
           Feinstein, Kent Conrad, Christopher A. Coons, Herb 
           Kohl, Amy Klobuchar, Jack Reed, Ron Wyden, Richard J. 
           Durbin, Jeff Merkley, Richard Blumenthal, Sherrod 

  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 Robert E. Bacharach, of Oklahoma, 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. COBURN (when his name was called). Present.

[[Page S5651]]

  Mr. HATCH (when his name was called). Present.
  Mr. INHOFE (when his named was called). Present.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from New Hampshire (Ms. Ayotte), the Senator from South Carolina (Mr. 
DeMint), the Senator from South Carolina (Mr. Graham), the Senator from 
Illinois (Mr. Kirk), the Senator from Utah (Mr. Lee), the Senator from 
Arizona (Mr. McCain), and the Senator from Alaska (Ms. Murkowski).
  The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 56, nays 34, as follows:

                      [Rollcall Vote No. 186 Ex.]


     Brown (MA)
     Brown (OH)
     Johnson (SD)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)


     Johnson (WI)

                        ANSWERED ``PRESENT''--3


                             NOT VOTING--7

  The PRESIDING OFFICER. On this vote, the yeas are 56, the nays are 
34, 3 Senators responded ``present.'' Three-fifths of the Senators duly 
chosen and sworn not having voted in the affirmative, the motion is 
  Mr. COBURN. We just disallowed one of the best candidates for the 
appellate court in my 8 years since I have been in the Senate. 
Magistrate Judge Bob Bacharach is a stellar individual rated ``very 
highly qualified'' by the American Bar Association. What has happened 
is we are in the position today because of games that are being played, 
political games.
  Let me just put into the Record what is going on. There are three 
judges ahead of Bob Bacharach in line. We have had a Leahy-Thurmond 
rule for some 20 years. I have been quoted saying I think it is a 
stupid rule. But the background is that protecting the prerogative of 
the Senate is one of the most important things the majority leader can 
  What we have seen happen with the lack of agreement this last holiday 
season over the moving forward of judges and their approval was the 
unconstitutional usurpation of power by the President of the United 
States in the appointment, during our pro forma sessions, of four 
individuals, one to CFPB and three to the NLRB.
  Quite frankly, if we look at what Madison wrote in Federalist 51:

       The great security against a gradual concentration of the 
     several powers in the same branch of government consists in 
     giving to those who administer each branch the necessary 
     constitutional means and personal motives to resist 
     encroachment of the others. Ambition must made to counteract 
     ambition. The interest of the man must be connected with the 
     constitutional rights of the place.

  So started the saga in January of this past year, where the reaction 
of my colleagues on my side of the aisle was to shut down, in response 
to the President's move, all circuit court confirmations.
  I stood in my caucus and fought that. I thought it was the wrong 
action then. I still think it would have been the wrong action. But I 
convinced my caucus not to go that direction. To do that, I agreed I 
would consent to the Leahy-Thurmond rule in this election cycle. But I 
hope this is the last election cycle we use the Leahy-Thurmond rule.
  Because on the other side of the constitutional issues is that a duly 
elected President does have the right to have their nominees 
considered, whether I agree with them or not. To prove this, that this 
was a stunt rather than anything other than that, and Bob Bacharach 
becomes the pawn in that, is that we had an agreement on judges. Then 
we had cloture filed on fourteen district court judges, of which there 
was no real controversy.
  All of those district court judges, after that cloture was filed on 
them and then withdrawn, have henceforth been approved. To the American 
public, the game is politics and not policy for our country. To me, it 
saddens me. It frustrates me that we are at this state because it is 
not a whole lot different than what we see in the playground at a 
  The person who most has spoken in favor of the Leahy-Thurmond rule is 
the chairman of the Judiciary Committee. Yet we find this impasse 
today. So what we ought to all do, every Member of the Senate and the 
Judiciary Committee during the break after this election, is work 
together to try to resolve this so this does not happen to any other 
President and does not do damage to the Senate and the integrity of the 
Senate and the game on judges. The President gets elected, with their 
home State Senators, they make a selection. We should not use the 
filibuster, unless a judge is highly questionable or biased in their 
  I regret that we are in this position. I think this was just a vote 
to delay Bob Bacharach's eventual confirmation. If President Obama wins 
the election, I fully expect Judge Bob Bacharach will be approved. If 
he does not win the election, I plan on standing and fighting for this 
judge for this same position under a Republican President because he is 
exactly what we want on a court, someone who is right down the middle 
in terms of what the law means, what the Constitution means. He has 
stellar intellectual capabilities, and he has the qualities we all 
would want, both from the right and the left, as a fair decider of the 
facts. That is what we want in judges. He will make an ideal appellate 
judge, regardless of his political affiliation.
  If we cannot get there then what that says is the partisan politics 
of today, as everybody outside Washington recognizes, is killing our