The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“EXECUTIVE SESSION” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S1856-S1859 on March 31, 2014.
The publication is reproduced in full below:
EXECUTIVE SESSION
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NOMINATION OF JOHN B. OWENS TO BE UNITED STATES CIRCUIT JUDGE FOR THE
NINTH 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 John B. Owens, of California, to be United States Circuit Judge for the Ninth Circuit.
The PRESIDING OFFICER. Under the previous order, the time until 5:30 p.m. will be equally divided and controlled between the two leaders or their designees.
The Senator from Utah.
SGR Patch
Mr. HATCH. Mr. President, today the Senate will vote on H.R. 4302. This is a bill that will extend for 1 year the so-called doc fix relating to the sustainable growth rate--or SGR--formula.
Patching the SGR has become a regular item of business here in the Congress. Indeed, it is basically an annual ritual that we have to go through.
From the first day the SGR went into effect in 2002, Congress has acted to prevent its reimbursement cuts to physicians from going into effect in order to ensure that Medicare beneficiaries continue to have access to quality care.
More often than not, SGR patches have been cobbled together at the last minute between the leadership offices of both parties. They are usually tacked on to larger pieces of legislation without the input of Members and without the benefit of going through a committee.
For years this process has bothered Members of Congress who, like me, want to see transparency and regular order returned to the legislative process.
It has also bothered seniors and physicians who are constantly worried about whether the gridlock in Congress is going to finally send them over the SGR cliff.
There is bipartisan support for repealing and replacing the SGR, or the sustainable growth rate, and, to the surprise of many, progress has been made to do just that. For more than a year, a bipartisan, bicameral group of Members of Congress worked to fully repeal the SGR and replace it with more reasonable reforms that move Medicare's antiquated fee-for-service reimbursement system for physicians toward a system that rewards doctors for providing quality care based on health outcomes.
I was part of that group, as was former Senator Max Baucus.
Chairman Baucus and I worked for months to produce an SGR repeal bill here in the Senate. Eventually, that bill sailed through the Finance Committee with broad, bipartisan support.
At the same time, the two relevant House committees--the Ways and Means Committee and the Energy and Commerce Committee--also reported a bill to repeal the SGR. That, in and of itself, would have been quite a feat. However, we were not done yet.
Realizing that we were close to achieving our goal, the chairmen and ranking members of all three relevant committees--that is three Republicans and three Democrats--decided to come together to find a single unified approach that both parties in both Chambers could support.
At the time there were a lot of naysayers. Indeed, given Congress's recent track record, there were reasons to be skeptical.
However, by consulting with all the relevant stakeholders and hearing their recommendations and concerns, we were able to craft a policy that has near unanimous support across the health care community.
That is right. For the first time since the SGR was enacted in 1997, Republicans and Democrats in the House and the Senate are united behind a policy that gets rid of this flawed system once and for all.
However, we cannot get ahead of ourselves. From the outset of this process, Chairman Baucus and I, along with our House counterparts, agreed that any legislation to repeal and replace the SGR must be fiscally responsible.
Without any offsets, this policy would add roughly $180 billion to the deficit--if we do not have offsets. If it is going to pass in both the Senate and the House of Representatives--and if we are going to maintain the same level of bipartisan support for the package--we need to find offsets that both parties can support. It is kind of miraculous we have come together, but both the bilateral and bipartisan people who have worked on this have agreed that we have to have solid offsets.
In the months since we reached an agreement on the underlying policy, all the parties involved have been working to find suitable offsets.
I am not going to disparage anything. This is a difficult process. But it has to be done.
Despite the bipartisan good will this process has engendered, there have been some who were not satisfied with our progress. With today's SGR deadline looming, there was an effort to hijack this bipartisan process and turn it into yet another partisan sideshow.
With an agreement in place and with parties still at the negotiating table, some of my friends on the other side of the aisle thought it would be preferable to simply bring our bill to the floor and demand a vote either without offsets or with offsets they knew Republicans would not be able to support. In other words, they wanted to force our bipartisan policy through the Senate on a partisan basis and then jam the House with it.
This was, to say the least, disappointing to me. Here we have a historic opportunity to do something that will help people throughout this country and do it with the type of broad, bipartisan consensus that is all too rare in Washington these days. Yet there were still some who would prefer to snatch defeat from the jaws of victory and set up yet another political showdown destined to end in a partisan stalemate.
Needless to say, I am glad that eventually cooler heads prevailed, which brings us to today's vote. The SGR patch that we will be voting on today is not perfect. However, I am not going to make the perfect the enemy of the good. The bill before us today is a good-faith effort to move the ball forward, thanks to the good work of Speaker Boehner and Majority Leader Reid.
What we need now is time to get this done in the right way. This bill will give us that. So for these reasons, I plan to vote in favor of the SGR bill before us today. I urge my Senate colleagues to do the same. Once this legislation is signed into law, we need to get back at the negotiating table. I have no doubt that my friend, the distinguished Senator from Oregon, as he always has, will work with me and others in order to resolve these problems that have arisen.
Like I said, there are three committees with jurisdiction over the SGR issue. We all need to work together to find a responsible path forward. Hopefully, the bill that we will vote on today will put an end to the unnecessary distractions and roadblocks that have been thrown in our path. This is an important vote today. I am very grateful for those who are willing to support what we are at least trying to do. I want to thank all concerned.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, before he leaves the floor, I thank my partner from Utah for his exceptional work in terms of putting together a repeal and replace program and say, as I have in the course of the afternoon, that essentially the proposal I have talked about here today could more properly be called the Hatch-Kyl plan because the underlying bill is essentially the outstanding work done by the Senator from Utah, Chairman Camp, Chairman Upton, a number of Democrats, and essentially takes as a pay-for what our former colleague, Senator Kyl, a conservative by anybody's calculation had in mind.
We are going to be doing a lot of bipartisan work in the Senate Finance Committee. Senator Hatch and I, as I touched on earlier, are already working on the tax extenders. I simply thought that the ideas of Senator Hatch and Senator Kyl, two conservatives who I admire, fit quite well with the kind of bipartisan approach that you heard many Senators on this side of the aisle talk about this afternoon, such as Senator Cardin and Senator Warner.
At the end of the day, I guess I will put my final remarks in the context of what Senator Coburn, our friend from Oklahoma, said. He essentially said: Do not put off until tomorrow what you can do today. The good work that Senator Hatch has done on this--I was not the point person for the Democrats at that time; it was Chairman Baucus--I think highlights what we could be moving on today.
The pay-for that our former colleague Senator Kyl from Arizona put forward several years ago is just as valid as it once was. So we will continue, as Senator Hatch has described this afternoon, to work very closely together. I am hopeful that here in the next couple of days colleagues will also see it on a vital matter relating to jobs because the two of us are working together on tax extenders, which is for promoting innovation in our economy: the research and development credit, renewable energy, jobs for veterans.
I yield the floor.
Mr. HATCH. Mr. President, I suggest the absence of a quorum
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak for 3 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I want to talk about John Owens, who is the first vote, for a judgeship, particularly one for the U.S. Court of Appeals for the Ninth Circuit. No one questions his qualifications. I spoke on the floor about him before. I was proud to nominate him to the President. He has a sterling background and would be an excellent circuit court judge. The question that arose was because of the previous judge, a man by the name of Stephen Trott. He spent his entire legal career in California before joining the Reagan administration. He was licensed to practice law in California. He was supported by two Republican Senators from California for various federal appointments. Blue slips for his nomination were sent to California senators.
Now what am I trying to do? I am trying to say, this was a California judge for the Ninth Circuit. What has happened since then is because he moved his home to Idaho once he was a judge, Idaho or some of the representatives from Idaho tend to believe that, voila, this is now an Idaho seat. It is not an Idaho seat. I explained last week that California has less than its proportional share of Ninth Circuit Court judgeships.
Idaho has its fair share. Senator Crapo, who came to the floor and spoke about this, said nothing about population or caseload to illustrate why this judgeship should move to Idaho. This has been a long-standing attempt to take this seat away from California. When I came to the floor before, I outlined the whole process of how historically this is, in fact, a California seat.
I urge my Republican colleagues to consider the precedent they would be endorsing if they vote against this nominee because of this seat's history; and that is, if a circuit court judge in your State decides to move to another State in the circuit, then your State has lost that judgeship. That is the precedent that not approving this judge would set.
I urge my colleagues to continue to support this nominee, notwithstanding the opposition of the Senators from Idaho.
Mr. LEAHY. Mr. President, last Thursday the Senate voted to end the filibuster on the nomination of John Owens of California to a judicial emergency vacancy on the U.S. Court of Appeals for the Ninth Circuit. This is the longest running vacancy in our entire Federal court system. Today the Senate will finally vote to confirm this outstanding nominee to a court that is in desperate need of judges.
The Ninth Circuit is the busiest circuit court in the country, and yet it has not been operating at full strength for more than nine years. It has the highest number of appeals filed, the highest pending appeals per panel and the highest pending appeals per active judge. It also takes far longer than any other circuit court to resolve an appeal. The delay in resolving these appeals hurts the American people. After confirming John Owens, the Senate should proceed to Michelle Friedland's nomination to the Ninth Circuit as soon as possible.
The nomination of John Owens is an example of how the process of judicial nominations and consultation with home State senators should work. Under Article II of the Constitution, the Senate has a significant role to play regarding our independent judiciary. We are called upon to work with the President by providing advice and consent for Federal judicial appointments.
Some have recently questioned the rationale behind the so-called
``blue slip'' process that solicits the views of the home State senators before a judicial nomination moves in the Senate. I have explained that this blue piece of paper reflects the ``advice'' prong of the Senate's role. If an administration does not consult with home State senators to seek their advice on a nominee, it is far less likely the nominee will receive their support. This support is crucial to the successful confirmation of judicial nominees. In the almost four decades I have served in the Senate, I cannot recall a single judicial nominee confirmed over the objection of his or her home State senators. Today's confirmation to the Ninth Circuit is yet another example of that reality.
In the prior administration, rather than working with the California senators to fill this seat on the Ninth Circuit, President Bush unnecessarily complicated and delayed filling this vacancy by nominating Judge Randy Smith of Idaho. In doing so, President Bush attempted an end run around home State Senators Feinstein and Boxer. Instead, he consulted with the senators from Idaho--both of whom were Republican senators. Judge Smith was not a Californian and did not receive support from the California Senators. When President Bush took my advice and re-nominated Judge Smith to fill an Idaho vacancy on the Ninth Circuit at the beginning of 2007, Judge Smith received the support of both Idaho Senators and was confirmed quickly.
The Bush administration also tried to get around home State senators in Maryland to fill a vacancy on the Fourth Circuit. President Bush chose to nominate Claude Allen of Virginia, a controversial nominee with limited experience who received a partial ``not qualified'' rating from the American Bar Association, and the Maryland Senators understandably objected. Mr. Allen's nomination did not move forward due to the objection of the proper home State Senators from Maryland. Meaningful consultation and support of the appropriate home State Senators continues to be important to the confirmation of nominees, and the vote we are taking today on John Owens is proof of that.
President Obama nominated Mr. Owens last August, and his early October hearing date had to be moved after Republicans forced a shutdown of our government. A hearing on his nomination was finally held in late October. Mr. Owens could and should have been confirmed before we adjourned last year. Instead, because Republicans refused to consent to hold any nominations in the Senate, every single one had to be returned to the President at the end of last year. They then had to be renominated and reprocessed through committee this year. Mr. Owens was voted out of committee on a voice vote, without dissent, on January 16, 2014.
Born in Washington, DC, Mr. Owens earned his B.A., with high distinction, from the University of California, Berkeley, and his J.D., with distinction, Order of the Coif, from Stanford Law School. At Stanford, he was the Nathan Abbott Scholar, an award given to the student with the highest cumulative point average in the class. Mr. Owens served as executive editor of the Stanford Law Review, where he earned the Stanford Law Review Board of Editors Award.
After law school, Mr. Owens served as a law clerk to Judge J. Clifford Wallace of the Ninth Circuit and for Associate Justice Ruth Bader Ginsburg of the United States Supreme Court. He has been a litigator in both public and private practice. In 1998, he joined the U.S. Department of Justice, where he would later serve as an Assistant U.S. Attorney for the Central District of California and the Southern District of California. In 2008, Mr. Owens was promoted to serve as the Deputy Chief of Major Frauds and later the chief of the criminal division. In 2012, he rejoined private practice as a partner at Munger, Tolles & Olson where he presently works. Over the course of his legal career, he has been counsel of record in more than 20 cases before the court on which he is nominated to serve.
Mr. Owens has the support of his home State senators--Senator Feinstein and Senator Boxer. I hope my fellow Senators will join me today to confirm Mr. Owen's nomination to the Ninth Circuit so that he can get to work for the American people.
I yield the floor and I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. JOHANNS. I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, all postcloture time is considered expired.
The question is, Will the Senate advise and consent to the nomination of John B. Owens, of California, to be United States Circuit Judge for the Ninth Circuit?
Mr. JOHANNS. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from North Dakota (Ms. Heitkamp) is necessarily absent.
The PRESIDING OFFICER (Mr. Donnelly). Are there any other Senators in the Chamber desiring to vote?
The result was announced--yeas 56, nays 43, as follows:
YEAS--56
BaldwinBegichBennetBlumenthalBookerBoxerBrownCantwellCardinCarperCaseyChamblissCoonsDonnellyDurbinFeinsteinFrankenGillibrandHaganHarkinHeinrichHironoIsaksonJohnson (SD)KaineKingKlobucharLandrieuLeahyLevinManchinMarkeyMcCaskillMenendezMerkleyMikulskiMurphyMurrayNelsonPryorReedReidRockefellerSandersSchatzSchumerShaheenStabenowTesterUdall (CO)Udall (NM)WalshWarnerWarrenWhitehouseWyden
NAYS--43
AlexanderAyotteBarrassoBluntBoozmanBurrCoatsCoburnCochranCollinsCorkerCornynCrapoCruzEnzi FischerFlakeGrahamGrassleyHatchHellerHoevenInhofeJohannsJohnson (WI)KirkLeeMcCainMcConnellMoranMurkowskiPaulPortmanRischRobertsRubioScottSessionsShelbyThuneToomeyVitterWicker
NOT VOTING--1
Heitkamp
The nomination was confirmed.
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