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.

                          ____________________