December 10, 2013 - Issue: Vol. 159, No. 174 — Daily Edition113th Congress (2013 - 2014) - 1st Session
EXECUTIVE SESSION; Congressional Record Vol. 159, No. 174
(Senate - December 10, 2013)
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[Pages S8583-S8584] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] EXECUTIVE SESSION ______ NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT The PRESIDING OFFICER. Under the previous order, the Senate will proceed to executive session to resume consideration of the following nomination, which the clerk will report. The legislative clerk read the nomination of Patricia Ann Millett, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit. Mr. LEAHY. Mr. President, today, the Senate will finally have the opportunity to vote on the confirmation of Patricia Millett to the U.S. Court of Appeals for the DC Circuit. Over the course of her 25-year legal career, Ms. Millett has risen through the ranks of government and private practice to earn a place among the best appellate practitioners in the country. She has argued 32 cases before the Supreme Court. She worked in the Justice Department under both Republican and Democratic administrations. She is unquestionably qualified and deserves to be confirmed without further delay so she can get to work for the American people. Patricia Millett's career mirrors that of the last DC Circuit judge to occupy the very seat to which she is nominated--that of John Roberts, Jr. I voted for his confirmation to both the DC Circuit and later to the Supreme Court. I knew at the time of those votes that I would not agree with every decision he would make on the bench, but I voted for him because of his temperament and his excellent reputation as a lawyer. John Roberts was confirmed unanimously to the DC Circuit on the day the Judiciary Committee completed consideration of his nomination and reported it to the Senate--at a time when the caseload of the DC Circuit by any measure was lower than it is today. If only Senate Republicans had been willing to apply the same standard for Ms. Millett. Instead, they decided to filibuster her nomination even though they had promised to only filibuster nominations under ``extraordinary circumstances''. If those Senators had been true to their word, I do not believe we would have reached the tipping point on the use of the filibuster. By refusing to allow a vote for any existing vacancy on the DC Circuit, Republicans took their determined obstruction to an unprecedented level. As the senior most Senator serving today, I approach changes to the tradition and history of the Senate with great reluctance. I have always believed in the Senate's unique protection of the minority party. I have held to my belief that the best traditions of the Senate would win out; that the 100 of us who stand in the shoes of more than 310 million Americans would do the right thing. Now that the Senate has changed its precedents to overcome the escalating obstruction of some, I hope reasonable Republicans will join us in restoring the Senate's ability to fulfill its constitutional duties. I hope this will include a vote to confirm Patricia Millett to the DC Circuit. Ms. Millett is a nominee with unquestionable integrity and character. She has engaged in significant community service and committed herself to pro bono work. She helps the neediest among us, volunteering through her church to prepare meals for the homeless and serving regularly as an overnight monitor at a local shelter. Through her legal work, Ms. Millett has earned broad bipartisan support. This includes the support of Peter Keisler, Carter Phillips, Kenneth Starr, Theodore Olson, and Paul Clement, and a bipartisan group of 110 appellate practitioners, as well as 37 Deputy Solicitors General and Assistants to the Solicitor General from both Republican and Democratic administrations. She is supported by the national president of the National Fraternal Order of Police, Chuck Canterbury, and many others. Patricia Millett's service to our Nation is not limited to her legal career or her humanitarianism. She is part of our Nation's storied military family, a family that we have called on repeatedly in the past decade. Her husband is a retired Navy reservist, and as a military spouse, Ms. Millett is part of our Nation's military fabric. She understands personally what we ask of our servicemembers and their families. At the height of Patricia Millett's legal career, her husband received orders to deploy in support of Operation Iraqi Freedom. For nearly a year, she balanced Supreme Court arguments and the demands of being a single parent all while reassuring her children that their father would return home safe. But not only is Ms. Millett committed to her own military family, she has helped to secure employment protections for members of our National Guard and Reserve through her pro bono legal work. In a case decided by the Supreme Court in 2011, Ms. Millett represented an Army Reservist who was fired, in part, because some of his co-workers did not like his military absences. The successful arguments that Ms. Millett helped craft have made it easier for all members of our Reserve and National Guard to protect their rights under the Uniformed Services Employment and Reemployment Rights Act. Patricia Millett embodies what we ask our military families to do on behalf of their country. Military spouses juggle all the challenges that every American family faces--but often with the added pressure of deployments and extended separations. I want to thank all the military spouses who are in the Senate gallery today and those watching on C- SPAN who have worked tirelessly to support the nomination of ``one of their own''. We should recognize, honor and support our military families not just through words, but through meaningful action. A vote to confirm Patricia Millett is that meaningful action. Today the Senate finally has the opportunity to vote for the confirmation of Patricia Millett. I urge my fellow Senators to join me in supporting this outstanding nominee. Mr. HATCH. Mr. President, over the past few months, here on the Senate floor, in the Judiciary Committee, and in op-eds in national publications, I have explained why the pending nominees to the U.S. Court of Appeals for the DC Circuit should not be confirmed. Neither those facts nor the conclusion they compel have changed and [[Page S8584]] so I will vote against confirming the nominee before us. The majority changed more than 200 years of Senate practice, taking away one of the few tools the minority has to participate in either the confirmation or legislative process. On nothing more than a party line vote, the majority deployed a premeditated parliamentary maneuver to prohibit the very filibusters that majority Senators once used. Getting these three individuals on this particular court at this particular time is apparently so important that the majority is willing to change the very nature of this institution to do it. I believe the reason is the majority's belief that, as DC Circuit judges, these nominees will reliably support actions by the executive branch agencies that are driving much of President Obama's political agenda. Democrats enthusiastically embraced the filibuster when they used it to block Republican nominees to positions in both the executive and judicial branches. They used the filibuster to defeat nominees to be Assistant Secretary of Defense, Undersecretary of Agriculture, and U.N. Ambassador. They used the filibuster to defeat nominees to the Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. They filibustered Miguel Estrada's nomination a record seven times to keep him off the DC Circuit. Three-quarters of all votes for judicial nominee filibusters in American history have been cast by Democrats. The majority leader alone voted to filibuster Republican judicial nominees no less than 26 times. That was then, this is now. Simply turning on a political dime and opposing today what Democrats used so aggressively just a few years ago would be bad enough. But this radical institutional change is being justified by patently false claims. The majority leader claims as proof of ``unprecedented obstruction'' that there have been 168 nominee filibusters in American history, half of them during the Obama administration. It turns out, Mr. President, that the majority leader is not even counting filibusters at all. He is counting cloture motions, which are nothing but requests to end debate on a matter pending before the Senate. A filibuster occurs only when that request to end debate is denied, when an attempt to end debate fails. Only 52 cloture votes on executive or judicial nominations have ever failed in American history, and only 19 nominees on whom cloture was filed were not confirmed. Looking at the Obama administration, only 14 cloture votes on nominations have failed and only six nominees have so far not been confirmed. During the Obama administration, a much lower percentage of cloture motions on nominations have resulted in cloture votes, a much higher percentage of those cloture votes have passed, and a much higher percentage of nominees on whom cloture was filed have been confirmed. By what I have called filibuster fraud, the majority ends up claiming that confirmed nominees were obstructed and that ending debate is a filibuster. The truth is the opposite of what the majority claimed as the justification for ending nominee filibusters. I regret that the President and the majority here in the Senate deliberately set up this political confrontation. I have explained in detail before how the DC Circuit's current level of eight active and six senior judges is sufficient to handle its caseload, which has been declining for years, while other circuits need more judges. I likely could support the nominee before us today had she been nominated to a seat that needed to be filled on a court that needed more judges. Using false claims to justify radically changing the confirmation process in order to stack a court with judges who will rubberstamp the President's political agenda is wrong in so many ways. I hope there is time to undo the damage. The PRESIDING OFFICER. Under the previous order, the question is, Will the Senate advise and consent to the nomination of Patricia Ann Millett, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit? Mr. McCONNELL. 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. DURBIN. I announce that the Senator from Delaware (Mr. Coons) is necessarily absent. Mr. CORNYN. The following Senators are necessarily absent: the Senator from Mississippi (Mr. Cochran), the Senator from Texas (Mr. Cruz), the Senator from Wisconsin (Mr. Johnson), the Senator from Illinois (Mr. Kirk), and the Senator from Louisiana (Mr. Vitter). Further, if present and voting, the Senator from Wisconsin (Mr. Johnson) would have voted ``nay.'' The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote? The result was announced--yeas 56, nays 38, as follows: [Rollcall Vote No. 247 Ex.] YEAS--56 Baldwin Baucus Begich Bennet Blumenthal Booker Boxer Brown Cantwell Cardin Carper Casey Collins Donnelly Durbin Feinstein Franken Gillibrand Hagan Harkin Heinrich Heitkamp Hirono Johnson (SD) Kaine King Klobuchar Landrieu Leahy Levin Manchin Markey McCaskill Menendez Merkley Mikulski Murkowski Murphy Murray Nelson Pryor Reed Reid Rockefeller Sanders Schatz Schumer Shaheen Stabenow Tester Udall (CO) Udall (NM) Warner Warren Whitehouse Wyden NAYS--38 Alexander Ayotte Barrasso Blunt Boozman Burr Chambliss Coats Coburn Corker Cornyn Crapo Enzi Fischer Flake Graham Grassley Hatch Heller Hoeven Inhofe Isakson Johanns Lee McCain McConnell Moran Paul Portman Risch Roberts Rubio Scott Sessions Shelby Thune Toomey Wicker NOT VOTING--6 Cochran Coons Cruz Johnson (WI) Kirk Vitter The nomination was confirmed. The PRESIDING OFFICER. The majority leader. ____________________