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“NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S7706-S7708 on Oct. 31, 2013.
The publication is reproduced in full below:
NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA
Cloture Motion
The PRESIDING OFFICER (Ms. Baldwin). Under the previous order, the clerk will report the motion to invoke cloture.
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 Patricia Ann Millett, of Virginia, to be United States Circuit Judge for the District of Columbia.
Harry Reid, Patrick J. Leahy, Richard J. Durbin, Johb D.
Rockefeller IV, Benjamin L. Cardin, Jon Tester, Sheldon
Whitehouse, Mark R. Warner, Patty Murray, Mazie K.
Hirono, Angus S. King, Jr. Barbara Boxer, Jeanne
Shaheen, Robert Menendez, Bill Nelson, Debbie Stabenow,
Richard Blumenthal
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, I ask unanimous consent that there be 2 minutes of debate equally divided in the usual format.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Patricia Millett is unquestionably qualified to be the next judge on the DC Circuit. The Senate will soon vote to end debate on her nomination and I hope that the rank partisanship that shut down our Government earlier this month will not be on display again with this upcoming vote. I hope the moderates who prided themselves in finding a solution to the shutdown will agree that Ms. Millett is an extraordinary nominee who should not be filibustered.
Over the last few weeks, I have heard those who want to filibuster Ms. Millett make some unfounded claims to justify their partisan agenda. First they asserted that the President is somehow packing the court by nominating judges to vacant seats. No student of history can honestly say that nominating candidates to existing vacancies is court-packing.
Next, they claimed that because the last of President Bush's nominees to this court was not confirmed, Ms. Millett should be filibustered as payback. These partisans fail to note that by the time Peter Keisler was nominated, four of President Bush's nominees to the DC Circuit had been confirmed. Only one of President Obama's nominees to this court has been confirmed and another has been filibustered.
Mr. Keisler was nominated to the 11th seat on the DC Circuit--and would have marked the fifth time a President Bush nominee was confirmed the court and the second time a Bush nominee was confirmed to be the 11th judge on the court. At that time, Democrats noted the hypocrisy of Republicans pushing to confirm a second judge to the 11th seat on the DC Circuit after they had blocked Merrick Garland's nomination in 1996 to be the 11th judge. Judge Garland's nomination was held up until another judge retired and he was confirmed to be the 10th judge on the court. Patricia Millett, however, is nominated to be the 9th judge. Those who are determined to filibuster this highly qualified nominee should at least get their facts straight.
For all the discussion about the DC Circuit's caseload, you would think that it had the lowest caseload of any circuit court in the country. But you would be wrong. The circuit court with the lowest caseload is actually the Tenth Circuit Court of Appeals, which as of June 30, 2013, has 1,341 total pending appeals and 134 pending appeals per active judge. In contrast, the DC Circuit has 1,479 total pending appeals and 185 pending appeals per active judge.
Despite the lower caseload on the Tenth Circuit, the Senate has continued to confirm nominees to that court without any complaints from Republicans about the workload. Just this past year, we confirmed Robert Bacharach of Oklahoma to be the ninth judge on the Tenth Circuit and Gregory Phillips of Wyoming to be the tenth judge on the Tenth Circuit. We also recently held a hearing for Carolyn McHugh of Utah to be the eleventh judge on the Circuit. And in the next few weeks, we will hold a hearing for Nancy Moritz of Kansas to be the twelfth judge on the Tenth Circuit. If Ms. McHugh and Ms. Moritz are both confirmed, the Tenth Circuit will be at full strength with 12 active judges. Again, in all the hearings and votes we have had for these Tenth Circuit nominees, I cannot recall a single instance where Republican senators questioned the need for judges on that court.
Some have also cited the DC Circuit's six senior judges as a reason to filibuster Patricia Millett's nomination. Of course, the Tenth Circuit has 10 senior judges, and yet, we never hear this cited as a reason for not confirming nominees to existing vacancies in the Tenth Circuit. I hope the Senators from Oklahoma, Wyoming, Utah, and Kansas will hold Patricia Millett to the same standard that the circuit nominees from their home state were held to or which they expect to be held to.
Today's Washington Post editorial calls for Patricia Millett to be confirmed and concludes that Republicans ``shouldn't insist on altering the size of a court only when it's a Democratic president's turn to pick judges or filibuster highly qualified nominees on that pretext.'' I ask unanimous consent that the editorial be printed in the Record.
Patricia Millett is an outstanding nominee who deserves to be treated on her merits. No argument has been lodged against her that would rise to the level of an extraordinary circumstance. If the Republican caucus finds that despite her stellar legal reputation and commitment to her country that somehow a filibuster is warranted, I believe this body will need to consider anew whether a rules change should be in order. That is not a change that I want to see happen but if Republican Senators are going to hold nominations hostage without consideration of their individual merit, drastic measures may be warranted. I hope it does not come to that. I hope that the same Senators who stepped forward to broker compromise when Republicans shut down the Government, will decide here to put politics aside and vote on the merits of this exceptional nominee. I also hope the same Senators who have said judicial nominees should not be filibustered barring extraordinary circumstances will stay true to their word.
Ten years ago John Roberts, President Bush's nominee received a voice vote by the Senate. Today President Obama's nominee to that same seat, Patricia Millett, is being filibustered. What has changed in 10 years? The caseload of that court under any measure has remained constant or gone up slightly in the past 10 years so that is just a partisan pretext.
Let us treat this extraordinary nominee based on her qualifications. Patricia Millett has honorably served this Nation for so many years and we are better off for it. I urge my fellow Senators to vote for cloture. Do not filibuster this brilliant lawyer, this military spouse, this exceptional nominee.
There being no objection, the material was ordered to be printed in the Record, as follows:
Stripping a Court as a Political Ploy
It would have been hard for President Obama to nominate a less controversial person to join the U. S. Court of Appeals for the District of Columbia Circuit, the second-most-important court in the land. So why are a lot of Republicans probably going to vote against moving forward with Patricia Millett's nomination on Thursday?
Ms. Millett is one of three people the president picked to fill three open slots on the court, a high-profile perch in the judiciary that reviews weighty matters such as regulation of Wall Street and the environment. A lawyer who has extensive experience arguing cases before the Supreme Court, she has gold-plated bipartisan credentials, having served in the Justice Department under the presidencies of Bill Clinton and George W. Bush. A raft of legal luminaries has endorsed her, including conservative former solicitors general Ted Olson, Paul Clement and Kenneth Starr. Even conservative GOP senators admit she is well-qualified.
But instead of being judged on her merits, Ms. Millett may well end up a victim of a GOP campaign against allowing any more of Mr. Obama's nominees onto the D.C. Circuit. Though Republicans pushed to fill its 11 seats when George W. Bush was president, they now argue that it doesn't need more than its current eight judges, and that Mr. Obama is trying to
``pack'' the court. Some have backed a bill from Sen. Charles E. Grassley (R-Iowa) that would strip the court of its vacancies rather than consider the president's duly appointed picks to fill them. A war of dueling numbers on the D.C. Circuit's workload has ensued. Republicans insist that it doesn't take as many cases as other appeals courts do. Democrats respond that the D.C. Circuit must consider more complex cases than others.
But the answer doesn't matter. Even if Republicans are right, they shouldn't insist on altering the size of a court only when it's a Democratic president's turn to pick judges or filibuster highly qualified nominees on that pretext. These moves are transparently self-serving, and would encourage similar behavior by Democrats against Republican presidents.
The recent history of the confirmation process is a steady descent into unreasonable partisanship; if acted upon, the Republicans' position would be another step down. It might also provoke another unnecessary battle over Senate rules, which could reshape the chamber in ways both parties would regret.
If Republicans are genuinely concerned that the D.C. Circuit has too many slots allotted to it, the fair way to trim it down would be to limit future presidents from filling seats that come open in the next presidential term and thereafter. In the meantime, President Obama's picks deserve the same fair treatment and respect as any others. Under that standard, Ms. Millett should fly through confirmation on Thursday.
Mr. LEAHY. I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, I want to illustrate why this seat doesn't need to be filled. These are the other circuits. The average of those other circuits is 383 caseloads. The DC Circuit has 149, so workload doesn't demand it.
Secondly, we are in a situation where this administration has said:
``If Congress won't, I will.'' He is going to do it by executive order. This is a court that can rule for or against the executive orders of this administration. We need to maintain checks and balances of the government.
Also, each one of these seats costs $1 million, and not just for 1 year, but every year for the rest of the life of those judges who are serving full time. I ask that my colleagues vote against this cloture motion.
Mr. LEAHY. Madam President, I ask unanimous consent that there be 2 more minutes equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I am sure the Senator is concerned about costs. Yet, the same Senators blocking Patricia Millett's confirmation were not concerned when an unnecessary shutdown of the government cost the taxpayers billions of dollars.
I also note that under President Bush, there were 11 judges on the DC Circuit Court of Appeals with a lower caseload. Now there are 8 judges with a higher caseload. The numbers are the numbers.
President Obama is being treated differently than President Bush was. Patricia Millett is being treated differently than John Roberts was. It is not fair, it is not an extraordinary circumstance, and there is no justification for it.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. What that doesn't take into consideration is that there are six senior status judges on this court. Chief Judge Garland told us that their workload is the equivalent of 3\1/4\ judges. So presently there are enough judges to go around and that would equal 11\1/4\ judges. There are 8 judges there now plus the 3\1/4\ that have senior status. There are plenty of reasons not to fill any more seats on this court.
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 Patricia Ann Millett, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit, shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CHAMBLISS (when his name was called). ``Present.''
Mr. HATCH (when his name was called). ``Present.''
Mr. ISAKSON (when his name was called). ``Present.''
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer) is necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the Senator from Oklahoma (Mr. Inhofe), the Senator from Texas (Mr. Cruz), and the Senator from Wyoming (Mr. Enzi).
The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?
The result was announced--yeas 55, nays 38, as follows:
YEAS--55
BaldwinBaucusBegichBennetBlumenthalBookerBrownCantwellCardinCarperCaseyCollinsCoonsDonnellyDurbinFeinsteinFrankenGillibrandHaganHarkinHeinrichHeitkampHironoJohnson (SD)KaineKingKlobucharLandrieuLeahyLevinManchinMarkeyMcCaskillMenendezMerkleyMikulskiMurkowskiMurphyMurrayNelsonPryorReedRockefellerSandersSchatzSchumerShaheenStabenowTesterUdall (CO)Udall (NM)WarnerWarrenWhitehouseWyden
NAYS--38
AlexanderAyotteBarrassoBluntBoozmanBurrCoatsCoburnCochranCorkerCornynCrapoFischerFlakeGrahamGrassleyHellerHoevenJohannsJohnson (WI)KirkLeeMcCainMcConnellMoranPaulPortmanReidRischRobertsRubioScottSessionsShelbyThuneToomeyVitterWicker
ANSWERED ``PRESENT'' --3
ChamblissHatchIsakson
NOT VOTING--4
BoxerCruzEnziInhofe
The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are 38, and three Senators responded ``Present.'' Three-fifths of the Senators duly chosen and sworn not having voted in the affirmative, the motion is not agreed to.
The majority leader.
Mr. REID. Madam President, I enter a motion to reconsider the vote by which cloture was not invoked on the nomination of Ms. Millet.
The PRESIDING OFFICER. The motion is entered.
Vote Explanation
Mrs. BOXER. Madam President, I was unable to attend the rollcall vote on the motion to invoke cloture on the nomination of Patricia Ann Millett, of Virginia, to be U.S. Circuit Judge for the District of Columbia Circuit. Had I been present, I would have voted
``yea.''
Mr. REID. Madam President, I ask unanimous consent that the Senate recess until 2 p.m., and that at 2 p.m. the Senate proceed to a period of morning business for debate only until 6 p.m. with Senators permitted to speak for up to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
