Federal Judgeship Act of 2008

Mr. President, how much time remains to the Senator from Vermont?

How much time remains on the other side?

That is close enough; almost 100.

Mr. President, today the Senate turns to the consideration of another nomination for a lifetime appointment to the Federal bench--Brian Stacy Miller for the Eastern District of Arkansas. Judge Miller currently serves as a State appellate judge on the Arkansas Court of Appeals. He previously served as city judge in Holly Grove, AR, was a deputy prosecuting attorney for Phillips County, AR, and worked for several years in private practice.

With this nomination, we continue our work toward building a more representative Federal judiciary. I am pleased that, when confirmed, Judge Miller will be the 88th African-American currently serving on our Federal bench and the 74th African-American serving as a district court judge.

I thank Senators Pryor and Lincoln for their consideration of this nominee, and I thank Senator Feinstein for chairing the hearing on this nomination. I congratulate the nominee and his family on his confirmation today.

Today the Senate also considers another nomination for a lifetime appointment to the Federal bench--Stanley Thomas Anderson for the Western District of Tennessee. Judge Anderson is currently a magistrate judge for the Western District of Tennessee. He previously worked in private practice as the founder and owner of Anderson Law Firm in Jackson, TN.

He served as a claims commissioner for the State of Tennessee Department of Treasury and as assistant commissioner for the Tennessee Department of Transportation. I acknowledge the support of Senators Corker and Alexander for this nomination. I congratulate the nominee and his family on his confirmation today.

Another nomination for a lifetime appointment to the Federal bench is that of James Randal Hall for the Southern District of Georgia. Mr. Hall is currently a partner at the Augusta, GA, law firm of Warlick, Tritt, Stebbins & Hall.

He previously worked as corporate vice president and legal counsel for Bankers First Corporation and worked in private practice for several other Georgia law firms. Mr. Hall held the distinction of serving the people of the 22nd District of Georgia as a State senator.

I acknowledge the support of Senators Chambliss and Isakson and thank Senator Feinstein for chairing the hearing on this nomination. I congratulate the nominee and his family on his confirmation today.

Then we turn to the consideration of yet another nomination for a lifetime appointment to the Federal bench--the nomination of John A. Mendez for the Eastern District of California. Judge Mendez currently serves as a judge on the Sacramento County Superior Court. He previously served as the U.S. attorney for the Northern District of California and worked in private practice.

With this nomination, we continue our work toward building a more representative Federal judiciary. I am pleased that, when confirmed, Judge Mendez will be the 58th Hispanic judge currently serving on our Federal bench and would become the only currently active Hispanic judge in the Eastern District of California.

I thank Senators Feinstein and Boxer for their support of this nomination. I congratulate the nominee and his family on his confirmation today.

Mr. President, the Senate makes significant progress today by confirming yet another appointment to one of our important Federal circuit courts as well as four lifetime appointments of Federal district court nominations. The circuit court nomination we are considering is that of Judge Catharina Haynes of Texas. Her confirmation will fill the very last vacancy on the important court of appeals for the Fifth Circuit, but it is also a vacancy that has been listed as a judicial emergency.

I acknowledge the support of Senator Cornyn and his work with me to schedule her nomination. Senator Cornyn had the time to sit down and explain why she was important and brought her to my attention and helped me report it from the Judiciary Committee last week. I imagine Judge Haynes' first phone call if confirmed this afternoon, as I expect, will be to Senator Cornyn to say thank you.

Despite the progress we continue to make and will make today, some of the rhetoric from the other side of the aisle suggests that judicial confirmations is the most pressing and unsatisfied need facing our country. Now with an economic recession facing Americans, many would say already here, the massive job losses this year, and the home mortgage foreclosures and credit, any partisan effort to create an issue over judicial confirmations is greatly misplaced, and the American people can see through that facade.

The recent job loss reports from the Department of Labor are dramatic. In the first 3 months of this year the U.S. economy lost 232,000 jobs. March marked the greatest loss of jobs during 1 month in at least 5 years. Instead of adding the 100,000 new jobs we would need each month to prevent unemployment from rising further, we have experienced 3 months in a row of significant job losses. This year alone we are already half a million jobs behind where we need to be just to stay even and not lose economic ground.

Yet last week when I convened the Judiciary Committee to make progress on bills to help homeowners in bankruptcy and to improve the False Claims Act to better target fraud, the priority of the Republicans was none of these important legislative issues. Instead, they engaged in a back and forth on judicial nominations. This administration is apparently more worried about the jobs of a small handful of controversial nominees--many, incidentally, who are not supported by their home State Senators--than they are about the jobs and lives of hundreds of thousands of Americans. With that massive loss of jobs, the Nation's unemployment rate has risen dramatically to over 5.1 percent.

Let's take a look at where we are now. This is what has happened in this Presidency. Unemployment has gone up more than 21 percent during this Presidency. The price of gas has gone up more than 132 percent during the Bush Presidency. The number of uninsured has gone up 11 percent during the Bush Presidency. The budget deficit has increased $590 billion, going from a quarter of a trillion dollar surplus to a $354 billion deficit. The trade deficit has gone up 87 percent. All these things have gone up during the Bush Presidency. Meanwhile, judicial vacancies have gone down 46 percent, from 9.9 percent to 5.3 percent. And a lot of that, a significant part of that, happened during a time when Democrats were in charge.

Just think about that. Now it costs more than a billion dollars a day to pay down the interest on the national debt and the massive cost of the disastrous war in Iraq. Think about that, if you hear in your State you have a bridge that is somewhat dangerous but they can't afford to fix it. Think about that in your State, when you are told that Federal dollars to help law enforcement protect Americans from crime is no longer there because we have to send the money to the Iraqi police force, a police force that cannot account for thousands of the weapons that we gave them until some of them end up shooting at Americans. But somehow that money has to go to fix up Iraq, and we do not have it to fix up America. It has to go to Iraq while we are paying almost $4 a gallon for gasoline, and Iraq has a huge budget surplus from $100-a- barrel oil. They ask us to pay for the reconstruction, and to pay for it, we take the money from reconstructing America. That is a billion dollars a day, $365 billion this year that could be better spent not on Iraq but on priorities such as health care for all Americans, better schools, fighting crime, treating diseases at home and abroad.

In contrast, one of the few numbers going down as the President winds down his tenure is that of judicial vacancies. Judicial vacancies are less than half of what they were during the last Democratic administration, when the Republican majority in the Senate chose to stall consideration of scores of nominees and maintained these vacancies, when they pocket filibustered over 60 of President Clinton's nominees. They succeeded in doubling the number of circuit court vacancies during those years and those vacancies rose to a high of 32 with the resignations that accompanied the change of administration.

By contrast, Democrats have helped reduce circuit court vacancies across the country to as low as 13 in 2007. That is going to be the number of remaining circuit court vacancies today, after the confirmation of Judge Haynes. So that is half of what they were at the end of the last Democratic administration, when a Republican-led Senate was in charge.

During the last Democratic administration, the Republican chairman of the Judiciary Committee argued that the 103 vacancies that then existed did not constitute a vacancy crisis. I guess he meant that when you had a Democratic President, it was not a crisis. He also argued on numerous occasions that 67 vacancies meant full employment on the Federal courts, if you had a Democratic President. After today's confirmation, the Administrative Office of U.S. Courts will list 47 vacancies. That is 20 below what Republicans used to deem full employment, below half. We have cut in half the vacancy level they felt was appropriate for a Democratic administration. In the 17 months I chaired the Judiciary Committee during President Bush's first term, we acted faster and more favorably on more of this President's judicial nominees than any 17 months and either of the Republican chairmen who succeeded me.

During those 17 months the Senate confirmed 100 judicial nominations. When I reassumed the chairmanship last year, the committee and the Senate continued to make progress with the confirmation of 40 more lifetime appointments of judges to our Federal courts. That is more than were confirmed during any of the 3 preceding years under Republican leadership and certainly more than were confirmed in 1996, 1997, 1999, and 2000. What is the difference? A Democratic-led Senate did a lot better for a Republican President than a Republican-led Senate did for a Democratic President.

During this Presidency, while I have served as Judiciary chairman, the Senate will have proceeded after today to confirm 145 lifetime appointments in only 3 years, compared to 158 during the more than 4 years of Republican control. When the Senate confirms Judge Haynes today--here we are in April--we will have surpassed the total number of circuit judges confirmed by Republicans during the entire 1996 session. It was easy to do because a Republican majority refused to confirm even one of President Clinton's circuit nominees, not one. Indeed, the first confirmation of any judge that session didn't even take place until July 10, and that was a district court. So we are also 3 months ahead of the schedule followed by the Republican leadership during that presidential election year.

Some will undoubtedly repeat the partisan Republican talking point that the Senate must confirm 15 circuit judges for Congress to match a mythical statistical average of selected years. God love those mythical statistical averages. It is sort of like the man who puts one foot in boiling water and one foot in a block of ice and says: On average, I am pretty darn comfortable.

Well, it is true that during the last 2 years of this President's father's term, with a Democratic-led Senate, we confirmed an extraordinary number of circuit nominees: 20. It is true that during the last 2 years of the Reagan administration, a Democratic-led Senate confirmed 17 circuit court nominees. So what they are saying is, if we are going to use an average, we are going to use an average only when the Democrats are in charge.

Maybe it would be different if after we set those high records-- Democrats with a Republican President--that even a little bit of that had been reciprocated. Well, it was not. Instead, the Republican-led Senate, with a Democratic President, made sure that judicial vacancies skyrocketed to historic levels. It actually got to the point that Chief Justice Rehnquist, a conservative Republican, weighed in publicly to criticize the Republican-led Senate.

Republicans do not talk about what they did. I do not believe they can bear an accurate comparison of what we have accomplished and what they did not.

So I wonder when the Republican leader and others who come to the floor with accusations about slow-walking nominations will explain their roles during the Clinton years--especially the over 60 they pocket filibustered, something joined by every Republican member of the Senate Judiciary Committee.

Why was it that during the 1996 session--the end of President Clinton's first term--the Republican-led Senate refused to confirm a single circuit nomination?

Why was it that Bonnie Campbell, the former attorney general of Iowa, who was supported by both Senator Harkin, a Democrat, and Senator Grassley, a Republican, was never even allowed to be considered by the Judiciary Committee, to say nothing about the full Senate, after her hearing?

Why was it that Kent Markus, of Ohio, a law professor, a former high- ranking Department of Justice official, who was supported by both his home State senators--both Republicans, incidentally--was never considered by the Judiciary Committee or this Senate?

Why was it that so many circuit vacancies were left without any nominees considered during the last years of the last Democratic administration when Republicans controlled the Senate?

I remember one. When I asked them about that one, they said: Well, we can't have her. We are not sure of her qualifications. That nominee is now the dean of the Harvard Law School--one of the most prestigious legal positions in America.

So Republican Senators have many questions to answer before they level accusations of any kind. To any objective observer, the answer is clear. The Republican Senate chose to stall consideration of circuit nominees and maintain vacancies during the Clinton administration in hopes they would have a Republican Presidency. Vacancies rose to over 100. Circuit vacancies doubled. But as soon as a Republican President was elected, they sought to turn the tables and take full advantage of the vacancies they prevented from being filled. Well, they have been extraordinarily successful. Currently, more than 60 percent of active judges on the Federal circuit courts were appointed by Republican Presidents, and more than 35 percent have been appointed by this President.

Another way to look at their success and compare the better treatment shown to this President is to observe that the Senate has already confirmed more than three-quarters of this President's circuit court nominees, compared to only half of President Clinton's circuit nominees confirmed by a Republican-controlled Senate.

Now, as chairman of the Judiciary Committee, I have turned the other cheek. I have worked hard to improve the treatment of nominees. To make progress, I even chaired the Judiciary Committee's hearing on the circuit nomination before us today during a congressional recess. I said that we would treat this President's nominees more fairly than the Republicans treated President Clinton's, and we have. We have not pocket filibustered more than 60 of this President's judicial nominees, as was done to President Clinton's nominees. We have not opposed them in secret or anonymously. In fact, during my chairmanship, the views of home State senators, as reflected in the ``blue slips'' submitted to the committee, were made public for the first time. No more secret holds. We did not allow that. We have considered nominations openly and on the Record. We have proceeded with consideration of nominees whom I opposed, something that never happened under previous Republican leadership. If the Republican chairman opposed them, they never even got a consideration.

I am glad we have Judge Haynes here because if she is confirmed, then the Fifth Circuit will have no vacancies. I was almost worried whether she would get here.

Even though she was already on the Judiciary Committee's agenda, she appeared at a political, partisan function at the White House, where they were demanding that she be put on the agenda. Of course, she was already there. It had been noticed for a couple days. Then, when we were set to vote on her last week, Republicans almost filibustered her nomination. They talked so much, we virtually ran out of time, and I had to keep this committee in an extra 10 minutes; otherwise, she would not have been confirmed. It was then that I realized what was happening--just like in February, when they refused to show up and make a quorum throughout the whole month of February. If they had shown up, we would have passed out a number of judges. But they were planning to give speeches saying we are not passing out judges, so they would not show up to make sure that happened.

Mr. President, I will yield without losing my right to the floor.

That is right.

If the Senator will yield, they asked me several times, over a period of several weeks, to delay the vote.

Mr. President, I thank the distinguished Senator from Maryland, who has been a tremendous help and a key member of our committee.

As I said before, if Judge Haynes is confirmed today, the Fifth Circuit will have no vacancies. We have proceeded despite the fact that 12 of the 16 active judges on this court have been appointed by Republican Presidents. I did this notwithstanding the fact that Republicans blocked President Clinton's nominees. Judge Jorge Rangel, of Texas, Enrique Moreno, of Texas, and Alston Johnson, of Louisiana were all blocked. They were told they could not even have hearings because it was a Democratic President. We have not done that. Every one of these circuit court nominees has had a hearing and a vote. In fact, I have held hearings on all six of the Fifth Circuit nominees of this President during my chairmanship. With today's vote, the Senate will have voted on all of them.

Just understand this: Republicans would not hold hearings on President Clinton's nominees to that circuit. I have held hearings on them, and we have voted on them all. And we will hear these crocodile tears on the other side that: Oh, woe is me, we are not getting any circuit judges. Well, most of the time I have ignored it because it has been such balderdash that it is hard to think that anybody would believe it. But just in case somebody has been fooled by it, I thought we would put the numbers in the Record.

In fact, vacancies on the Fifth Circuit are at an alltime low--zero after today. Contrast this with the situation during the Clinton years, when the Chief Judge of the Fifth Circuit declared a circuit emergency because Republicans were pocket filibustering all of President Clinton's nominees. That circuit-wide emergency was due to multiple, simultaneous vacancies caused by the fact that the Republican-led Senate would not act on the nominees of a Democratic President.

Mr. President, I ask unanimous consent that, without losing my right to the floor, I be allowed to yield to the distinguished majority leader.

Mr. President, would the Senator yield?

No. 1, I can't tell my dear friend from Nevada how much what he has said has meant. He has told me similar things in private as well as in public. He and I have been close friends for well over 20 years, and he knows of my huge respect and affection for him.

I chuckled as he put his finger on the issue, as he always does--the man from Searchlight shines the light on what happens--and talked about this kabuki show we saw this morning on the floor, criticizing me especially for moving judges. It kind of reminds me of what happened in February where we had markups to confirm judges and the Republicans would not show up. We wondered, why wouldn't they show up for their own judges? Why wouldn't they show up when they were given a chance to get out these judges? And then I find out. They were all giving speeches saying it is terrible we are not getting out judges. Well, if they had shown up, of course, the speeches could not be given. It is kind of damned if you do and damned if you don't.

I said when I became chairman the first time and again the second time I would not do to them, or to President Bush, what they did to President Clinton and to us, and I have not. I do not intend to. I told the President that. But I would like to see a little bit of cooperation from the White House in working with home State Senators and in working with us not to get

idealogues that fit well in a fundraising letter, but instead to nominate people who are good for the Federal court.

So I can't tell the distinguished leader enough how much I appreciate his constant support throughout this whole thing.

Mr. President, as I said to the leader, I would still rather see us work with the President on the selection of nominees the Senate can proceed to confirm than waste precious time fighting about controversial nominees to score political points. I will give an example. We have a State with a highly respected Republican Senator and a highly respected Democratic Senator, and they worked together to make recommendations that were completely out of any kind of partisan politics. They sent a list of several people who had gone through the screening committee, talked to everybody on the bar--Democrats, Republicans, people with no political affiliations--and said: Look, here is a list of the best people we could possibly find in our State. White House, you go ahead and pick whomever you want out of this group. We are happy with them.

They came and talked to me, and I said fine. I have huge respect for both the Republican Senator and the Democratic Senator, and I am sure we can move them through. Do my colleagues know what happened. The White House rejected that and sent up a totally controversial person. Again, the fundraising letters went out touting how we have to have this person. Both of the Senators said they would not return a positive blue slip; they wouldn't support this. It was not somebody they wanted to have on their record as supporting.

The White House finally withdrew that name. It went back to those Senators, and I am told by the Senators they have a nomination now that both will support for the circuit court of appeals, and that person will go charging through.

I recall another nomination this White House had made, strongly opposed by the two Senators, one of the more senior Members of the Senate, from their State. Those Senators said they did not want this nomination to go through and it did not. I still hear how terrible it was we did not confirm that nomination, even after the nominee pled guilty to criminal fraud.

I can think of other examples of people whom my Republican colleagues came and said: We really don't want to go with this person because of their situation back home--without going into a further description.

Now, Judge Catharina Haynes--and I see my friend, the distinguished Senator from Texas on the Senate floor, Senator Cornyn--Judge Catharina Haynes is a former Texas State trial judge in the 191st District Court for the State of Texas. She currently works as a partner at the law firm of Baker Botts in Dallas--an excellent firm. The Fifth Circuit has played an extraordinarily historic role in the protection of civil rights in this country. As we moved from that terrible time in our history of segregation into civil rights for all, some of those judges were among the most courageous this Nation has known.

I wish I knew more about Judge Haynes's attitude about civil rights than her record and testimony reveal. But I listened to what the distinguished Senator from Texas said, and I vote in favor of confirmation with the hope that she will treasure and follow the example of earlier judges in that court who made such a passionate commitment to the rights of all Americans.

So I congratulate her and her family on what I expect will be her confirmation today.

We have five nominations. I had been told the leadership has been talking about having rollcalls. We still have a fair amount of time on both sides; am I correct?

Mr. President, because I have been asked by both Republican and Democratic Senators, with the American Airlines snafu and other things as we are trying to get flights out of here, I might ask the distinguished Senator from Pennsylvania how soon he would be willing to start votes if I were to yield back all time.

Mr. President, I am going to talk to the Senators who have proposed these nominations. I have been a little bit more lengthy than normal, but that is after several hours that have been spent on the floor of the Senate being critical of me--I did not respond to that until now--just as a great deal of time was spent in the Senate Judiciary Committee being critical of me which I did not respond to; otherwise, we would not have Judge Haynes on the floor today because the Republicans would have filibustered her nomination.

So I will not quite yet withhold the balance of time. I am prepared, if people want, to begin these votes within the next 5 minutes and to work with--I understand a couple of the proponents of a couple of these judges are not going to require rollcall votes.

I want to be able to confirm that. If that is the case, I am prepared to begin in the next 5 minutes or so. I withhold the remainder of my time.

To answer that question, the Senator from Pennsylvania is one of the most articulate, best trial attorneys in this place. He could do in a minute what others would take an hour to do. I did try to take far less time than was used to attack me this morning.

Mr. President, will the Senator yield for a unanimous consent request so we can move on?

Mr. President, I ask unanimous consent that the Senate call up the nomination of Catharina Haynes of Texas to be United States Circuit Judge for the Fifth Circuit, that the nomination be confirmed and sent to the President.

The Senator is talking about ways to move forward. I am asking by consent that we confirm by voice vote Calendar No. 515, Catharina Haynes to be a Fifth Circuit Judge.

Mr. President, is the Senator going to object?

Mr. President, I ask unanimous consent that both sides yield back their time and we begin with a vote on Brian Stacy Miller of Arkansas, which will be a rollcall vote, and if rollcall votes are required on the subsequent nominations, that they be 10-minute rollcalls.

No. I should advise, I will ask, if time is all yielded back, for the yeas and nays on Brian Stacy Miller, but if the yeas and nays are requested on the subsequent nominees, that they be 10-minute rollcalls, although subsequent to the Brian Stacy Miller, the first one.

Why don't we begin with this nomination, and the distinguished ranking member, who is one of the closest friends I have in this body, and I may discuss that during that rollcall vote.

We just confirmed Senator Cornyn's nomination. Does he want us to undo that?

Let me do this. I ask unanimous consent that at 5 minutes of 6, all time be yielded back and the Senate go to a vote on the nomination of Brian Stacy Miller of Arkansas.

I ask unanimous consent that the yeas and nays be ordered on Brian Stacy Miller.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that 3 minutes be yielded to the Senator from Texas.

I thank the Senator from Texas.

I believe we are ready to vote.

Vote on the Nomination of Brian Stacy Miller to be United States

District Judge

Mr. President, today the Senate is poised to confirm two more nominations for lifetime appointments to the Federal bench: Cathy Seibel for the Southern District of New York and Glenn T. Suddaby for the Northern District of New York. These nominees each have the support of the New York Senators, who worked with the White House to identify a slate of consensus nominees. I thank both Senator Schumer and Senator Clinton for their work in connection with these nominees.

When these nominees are confirmed, that will bring the number of judicial nominees confirmed by the Senate during the slightly more than three years I have served as the Chairman of the Judiciary Committee to 158. Coincidentally, the number of President Bush's judicial nominees confirmed by the Senate during the almost four and one-half years of Republican control totaled 158.

I have always said that we would treat this President's nominees more fairly than Republicans treated President Clinton's. And we have. Indeed, we have matched the confirmation record that Republicans achieved for a President from their own party. We have not pocket filibustered more than 60 of this President's nominees. We are not going to return 17 circuit court nominees without action to this President as the Republican-led Senate did to President Clinton. We have not doubled the judicial vacancies and forced them above 100 nationwide, nor have we doubled the number of circuit court vacancies. To the contrary, we have cut judicial vacancies by more than half, and reduced circuit court vacancies by more than two-thirds from a high point of 32, to a low of just nine throughout all 13 Federal circuits.

The 100 nominations we confirmed in only 17 months in 2001 and 2002, while working with a most uncooperative White House, reduced the vacancies by 45 percent by the end of 2002. With 40 additional confirmations last year, and another 18 this year, the Senate under Democratic leadership has now confirmed 158 lifetime appointments to the Federal bench nominated by President Bush. Nearly half of the judicial nominees the Senate has confirmed while I have served as the chairman of the Judiciary Committee have filled vacancies classified by the Administrative Office of the Courts as judicial emergency vacancies. Eighteen of the 27 circuit court nominees confirmed while I have chaired the committee filled judicial emergency vacancies, including nine of the 10 circuit court nominees confirmed this Congress. This is another aspect of the problem created by Republicans that we have worked hard to improve. When President Bush took office there were 28 judicial emergency vacancies. Those have been reduced by more than half.

In the 2 full years that preceded my returning as chairman of the Judiciary Committee in 2007, with a Republican chairman and a Republican Senate majority working to confirm the judicial nominees of a Republican President, 54 nominations were confirmed. After the two confirmations today, we will reach 58 judicial confirmations for this Congress. Truth be told, President Bush's judicial nominees have been confirmed faster by the Democratic majority than by the previous Republican majority of the Senate.

Judicial vacancies have been reduced from 10 percent as we made the transition to the Bush administration to 4.5 percent today. I wish we could say the same about unemployment, the cost of gasoline, food prices, health care costs, about inflation and the national debt, but all those indicators have been moving in the wrong direction, as is consumer confidence and the percentage of Americans who see the country as on the wrong track.

Republican critics ignore the progress we have made on judicial vacancies. They also ignore the crisis that they had created by not considering circuit nominees in 1996, 1997 and 1998. They ignore the fact that they refused to confirm a single circuit nominee during the entire 1996 session. They ignore the fact that they returned 17 circuit court nominees without action to the White House in 2000. They ignore the public criticism of Chief Justice Rehnquist to their actions during those years. They ignore the fact that they were responsible for more than doubling circuit court vacancies during their pocket filibusters of Clinton nominees or that we have reduced those circuit court vacancies by more than two thirds.

In fact, as the Presidential elections in 2000 drew closer, and when the judicial vacancy rate stood at 7.2 percent, then-Judiciary Committee Chairman Orrin Hatch declared that ``There is and has been no judicial vacancy crisis,'' and that 7.2 percent was a ``rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.'' As a result of Republican inaction, the vacancy rate continued to rise, reaching 10 percent when the Democrats took over the Senate majority in 2001.

Democrats have reversed course. We have cut circuit court vacancies by more than two-thirds, from a high of 32. With the confirmation of two nominees today, the judicial vacancy rate will be just 4.5 percent.

I have yet to hear praise from a single Republican for our work in lowering vacancies. I also have yet to hear in the Republican talking points any explanation for their actions during the 1996 congressional session, when the Republican Senate majority refused to allow the Senate to confirm even one circuit court judge. I have yet to hear explanations for why they did not proceed with the nominations of Bonnie Campbell, Allen Snyder and so many others.

I hope the American people will not witness another week in which Senate Republicans attempt to make a partisan, election-year issue out of the confirmation of judicial nominations. This is the one area where the numbers have actually improved during the Bush presidency while the life of hardworking Americans has only gotten more difficult. The Treasury Secretary has been quite sobering about the financial difficulties still ahead. Inflation is now on the rise, jobs are being lost, gas prices have skyrocketed, food prices have soared, health care is unaffordable and yet Republicans want come to the floor to pick a partisan fight about the pace of judicial confirmations while the Senate proceeds to confirm two more judges.

Americans have seen the unemployment rate rise to 5.5 percent and trillions of dollars in budget surplus have turned into trillions of dollars of debt. Last week General Motors announced layoffs. The annual budget deficit is in the hundreds of millions of dollars, the dollar has lost half its value, and the costs of the Iraq war and interest on the national debt amounts to $1.5 billion a day.

When President Bush took office, the price of gas was $1.42 a gallon. Today, it is over $4.00 a gallon. The housing crisis and mortgage crisis threatens the economy. The stock market dropped 2,000 points in the first six months of the year and went under 11,000.

Hardworking Americans trying to do the best they can for their families are more concerned about critical issues they face in their lives each day. They are concerned about affording to heat their homes this winter. They are concerned about gas prices that have skyrocketed so high they do not know how they will afford to drive to work. They are concerned about the steepest decline in home values in two decades. More and more Americans are affected by rising unemployment, with job losses for the first six consecutive months of this year tallying over 438,000. Americans are worried about soaring health care costs, rising health insurance costs, the rising costs of education and rising food prices. The partisan, election-year rhetoric over judicial nominations, at a time when judicial vacancies have been significantly reduced, is a reflection of misplaced priorities.

Our progress today in confirming two more nominations for lifetime appointments shows that when the President works with home State Senators to identify consensus, well-qualified nominees, we can make progress, even this late in an election year. I congratulate the nominees and their families on their confirmations today.

The Federal judiciary is the one arm of our Government that should never be political or politicized, regardless of who sits in the White House. I will continue in this Congress, and with a new President in the next Congress, to work with Senators from both sides of the aisle to ensure that the Federal judiciary remains independent and able to provide justice to all Americans, without fear or favor.

Last week the Senate Judiciary Committee was scheduled to consider a number of bipartisan measures. Several are important items on which Republicans had already delayed consideration since June. They include the bipartisan bill to reauthorize the Juvenile Justice and Delinquency Prevention Act, a bipartisan OPEN FOIA bill and the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act. In addition, we had before us the Fairness in Nursing Home Arbitration Act, the Fugitive Information Networked Database Act, the Methamphetamine Production Prevention Act and the National Guard and Reservists Debt Relief Act.

I had hoped that last week we would be able to report these measures. A few words about one of them--the legislation to reauthorize the William Wilberforce Trafficking Victims Protection Act. This bill would strengthen our efforts to stop the abhorrent practice of human trafficking around the world. Our bill enhances protections for victims of these terrible crimes. Human trafficking is a modern-day form of slavery, involving victims who are forced, defrauded or coerced into sexual or labor exploitation. These practices continue to victimize hundreds of thousands around the world, mostly women and children, and we must do all that we can to be more effective in confronting this continuing problem. I thank Senator Biden for his leadership. Unfortunately, Republican partisan antics have gotten in the way of progress on this front and delayed the Judiciary Committee and the Senate from acting on this measure.

Rather than meet and work on the human trafficking bill and the others, a number of the Republican Senators who serve on the Judiciary Committee came to the Senate floor while Republicans objected to the committee meeting. That was too bad. It set back our legislative agenda.

Republicans previously boycotted business meetings for the month of February when we were trying to report judicial nominations. That only slowed our progress. Then, when we tried to expedite consideration of two circuit court nominations in May, they objected. Those judicial nominations were finally confirmed late in June.

I look forward to a time when Senators from the other side of the aisle return to work with us on the important legislative business of the Judiciary Committee and the Senate. It would be refreshing if they recognized the progress we have made on filling judicial vacancies.

When they do, when they show cooperation, when we are able to make progress on our legislative agenda, at that point I will be able to turn my attention from concentrating on that legislative agenda and consider, along with the majority leader, whether there are additional judicial nominees we might be able to consider and confirm this year. It will be difficult to do so, especially in connection with nominees recently received for whom we do not have an ABA peer review rating at this time.

Let me give you some flavor of how petty the obstructionism from Republicans has become. I introduced at the request of the Chief Justice a bill to extend authorization for the Supreme Court police to remain in operation, S. 3296. I have been trying to clear this measure for passage since June 19. Although our Ranking Republican on the Committee cosponsored, he has not been able to clear it on his side of the aisle.

I have been seeking for months to find a way to extend the EB-5 investor visa pilot program that brings benefits

not only to Vermont but to Pennsylvania and Iowa, and elsewhere. Authority for this worthwhile program that leads to investments here in the United States expires in September. My efforts to clear H.R. 5569, a bill to extend the program for 5 years, have been stymied by Republicans who insist on using this bill as a vehicle for other immigration-related matters and have ensnarled it in a series of competing concerns.

More broadly, the Judiciary Committee has worked throughout this Congress to advance the priorities of Americans. We have reported legislation to support local law enforcement to make our cities and towns safe from crime that has now gone back up after consistent declines in the 1990s, like the COPS Improvements Act, S. 368, and my bill to extend the Bulletproof Vest Partnership Grant Act, S. 2511. We have reported legislation to combat fraud and corruption, like the War Profiteering Prevention Act, S. 119, and the Public Corruption Prosecution Improvements Act, S. 1946. We have reported legislation to protect the civil rights and voting rights of Americans, like the Emmett Till Unsolved Civil Rights Crime Act, S. 535, and Senator Obama's Deceptive Practices and Voter Intimidation Prevention Act of 2007, S. 453. We have reported legislation to protect Americans' data privacy like my Personal Data Privacy and Security Act, S. 495. We have reported measures to provide the Federal judiciary with increased resources both in terms of salary restoration and additional judgeships, S. 1638 and S. 2774. We have reported intellectual property measures like the Shawn Bentley Orphan Works Act, S. 2913. And, of course, we have reported the bill to confront the OPEC cartel, NOPEC, S. 879. I look forward to a time when Republicans work with us on these matters instead of obstructing us at every turn.

Legislation with broad bipartisan support that I have managed to move through the Judiciary Committee has then been stalled on the Senate floor by the obstruction of a few Republicans. Of the bills that have been reported from the Judiciary Committee this Congress, Republicans have blocked legislation to support runaway and homeless young people, S. 2982; to help law enforcement cope with mentally ill offenders, S. 2304; to support the investigation and prosecution of civil rights era murders left unsolved for too long, S. 535; and to protect our children from the scourges of drugs, child pornography, and child exploitation, such as S. 1210, S. 1738 and S. 2344. I joined the Majority Leader in introducing a measure yesterday that combines some of these Committee- approved and House-passed bipartisan measures into one bill, S. 3297. These should have been consent items and already been considered and passed by the Senate.

The list goes on. I say, again, Republican obstructionists have blocked legislation to ensure that law enforcement officers can obtain bulletproof vests, to give much needed resources to State and local law enforcement, to break the grip of the OPEC cartel on oil prices, to prohibit war profiteering, to train prosecutors, and to teach children to use the internet safely, just to reiterate a few examples. And that is just legislation reported by the Judiciary Committee. Every Committee in the Senate has seen simple legislation intended to help the American people in difficult times stymied by Republican obstruction.

Republicans have become masters of true obstruction, boycotting business meetings of the Judiciary Committee and cutting short important hearings, including a hearing at which two courageous women from Pennsylvania were testifying about severe injuries they suffered to help us understand the plight of hardworking Americans whose legitimate grievances have been rejected by a pro-business Supreme Court. When Republicans obstructed a meeting last week where we could have made progress on reducing youth violence, protecting women and children from human trafficking, and helping those who serve our country to cope with unmanageable debt, that was just the latest example of a pattern that has become all too familiar.

Sadly, we have seen Republican obstructionism since the beginning of this Congress, with Republicans using filibuster after filibuster to thwart the will of the majority of the Senate from doing the business of the American people. Republican filibusters prevented Senate majorities from passing the climate change bill; the Employee Free Choice Act; the Lilly Ledbetter Fair Pay Act; the DC Voting Rights Act; the Renewable Fuels, Consumer Protection, and Energy Efficiency Act of 2007; the Renewable Energy and Job Creation Act of 2008; the Medicare Improvements for Patients and Providers Act of 2008; and the Consumer- First Energy Act.

These are critical pieces of legislation to address urgent priorities like the energy crisis, the environment, voting rights, health care, and fair wages for working men and women. All of them had the support of the majority of the Senate. And all were blocked by a minority of Republican Senators bent on preventing us from making progress. Republicans have now filibustered more than 80 pieces of legislation in this Congress. We can only imagine what we could have accomplished in this Congress with cooperation rather than obstruction.

This long list of priorities unaddressed because of the Republicans in Congress would be even longer if we were to include the many important bills President Bush has vetoed since the beginning of this Congress. This list includes legislation to fund stem cell research to fight debilitating and deadly diseases, to extend and expand the successful State Children's Health Insurance Program that would have provided health insurance to more of the millions of American children without it, to set a timetable for bringing American troops home from the disastrous war in Iraq, and to ban waterboarding and help restore America as a beacon for the rule of law.

The American people are going through increasingly difficult times, and their Congress should be working to make their lives better. Time is running short in this Congress. It is past time for Republicans to stop their foot stomping and work with us to get things done. That is what I have been trying to do throughout this Congress. I hope, despite their recent antics, that Republicans will reconsider and join with me to make progress on legislative matters of concern to the American people.

Well, Mr. President, I am not quite sure about that. I am quite sure that I waited here for 40 minutes for somebody to appear to start this debate, and I am quite sure we have heard very extensive discussion by the Democrats, but my practice is to be brief. I believe I will speak no more than 15 minutes, perhaps 20 at the outside. I hate to so understate it, but I don't think it takes a whole lot of time to refute what the chairman and the majority leader have said. So I think we are ready to start fairly soon. If we had some indication as to how many rollcall votes we will have--if we have five, which will take us several hours, I might be a little more disposed to be even briefer, if I had some indication of that.

Mr. President, I ask the chairman if his willingness to begin in 5 minutes would leave me 5 or, perhaps, 3 minutes. The Senator from Georgia wants 4 minutes, and I would only have 1 minute. My question to the chairman would be, as a vocal, outspoken, voluminous proponent of fairness, if he thinks 1 minute would be sufficient to reply to the better part of an hour, which he has taken. Perhaps I can answer that myself. I don't think it would be sufficient.

Well, we have heard the magnanimity of the chairman on this one circuit nominee. So far this year, we have not confirmed any Federal judges. We have heard the magnanimous comments by the chairman about Catharina Haynes. We might not have had one. We didn't have a hearing from September 25 to February 21. I don't think an argument of being magnanimous pertains.

I don't blame the chairman for departing the Chamber. He might not like to hear what I have to say in response; although, I sat through his entire speech. I will not comment on his departure beyond what I have already said.

In listening to the presentation by the Senator from Vermont, I would have thought he was running for President. He had this big, flamboyant chart about the Bush Presidency. The chart had statistics on the unemployment rate going up, gas prices going up, the budget deficit going up, the trade deficit going up, and the number of uninsured people going up. For a moment, I thought I was listening to Senator Hillary Clinton. And then, I thought I might be listening to Senator Obama. Had either of those Senators been making that speech, I could understand the purpose, but it is a little hard to understand the purpose of the comments by the chairman.

When the chairman talks about Republicans not showing up for committee meetings, he is in fantasyland, as are a good many of his comments.

I ask unanimous consent to have printed in the Record a detailed rebuttal. It would take considerable time to answer specifically, but this can be in

the Record to demonstrate proof and to establish the fantasy of the chairman's assertions that Republicans didn't show up.

Now, when the majority leader came to the floor and talked about turning the Constitution on its head with the constitutional option, he glossed over the point pretty fast and missed most of the salient points--that there was enormous provocation that led some Republicans--and I say ``some'' Republicans--to consider raising the constitutional option. What we have seen is a practice going on now for two decades--20 years--since 1986, so it is 22 years now--starting with the last 2 years of the Reagan administration, 1987 and 1988, when the Democrats had control, nominations were slowed down to a crawl. And then the same thing occurred during the last 2 years of the first President Bush. Then Republicans retaliated with gusto in kind, exacerbating the problem.

The one thing I agree with the Senator from Vermont on is that the Clinton nominees were not treated fairly.

That is true. They were not treated fairly, and I said so at the time. I crossed party lines to support qualified Clinton nominees. But, what is happening in this body is just ratcheting it up again and again. And then, after President Clinton's term, we had the virtual disintegration of institutional prerogatives around here due to filibusters that were conducted by the Democrats on the Bush nominees in 2004 and 2005.

The majority leader talks about the constitutional option. Well, the constitutional option was not pursued by Republicans. There were sufficient Republicans to have put the constitutional, or nuclear option, into operation. There were sufficient Republicans to do that. Under the plan, it would have taken 51, but the Republicans did not do that, notwithstanding the Democrats' provocation.

The majority leader said, ``We have been fair to Republicans.'' That comment sort of approaches this issue as if it is a private boxing match between Republicans and Democrats and an issue of fairness between Republicans and Democrats. Well, that is not the issue. The issue is what is fair to the American people. We are not here to spar, to argue or to fight; we are here to do the people's business. How fair is it to the American people to have these nominations delayed where there are judicial emergencies in the courts of the United States? This is not Arlen Specter's idea. The Judicial Conference determines what is a judicial emergency.

There is a judicial emergency in the Fifth Circuit, the court to which Catharina Haynes is nominated and up for a vote today. How long has she waited? It has been over 260 days. Now, I don't consider it relevant as to whether it is fair to Republicans; I consider the question whether it is fair to Americans--the people who live in the Fifth Circuit who have had to wait for decisions to be made by an understaffed court. It may be a statistic to those of us who hold lofty positions--and it is a great privilege to be a Senator. It may be a statistic to us, but if somebody has filed a lawsuit who has been injured, say, in an automobile accident. Someone who has doctor bills and loss of wages, and that person has to wait and wait for the case to come up, finally to be tried, and then to be appealed and waits and waits--that is where the issue is.

Take a look at the waiting periods: Robert Conrad in the Fourth Circuit, a judicial emergency, waiting over 260 days; Raymond Kethledge in the Sixth Circuit, a judicial emergency, waiting over 650 days; Stephen Murphy also in the Sixth Circuit and a judicial emergency, waiting over 650 days. Shalom Stone in the Third Circuit, a judicial emergency, has been waiting over 250 days. Tom Farr in the District Court of North Carolina has been waiting over 490 days. James Rogan has been waiting over 450 days. The list goes on and on. Peter Keisler is a very distinguished nominee who has an extraordinary record, and I ask unanimous consent that his resume be printed in the Record.

Mr. President, Peter Keisler has waited for 650 days, and soon, it will be the 2-year anniversary of his nomination. So the real question is not fairness to Republicans; it is a question of fairness to the American people. The American people have not been treated fairly, and they have not been treated fairly by the Democrats, and they weren't treated fairly by Republicans when President Clinton sent nominees to this floor.

It is high time this stops. That is why I have introduced a resolution that would establish a protocol. The protocol would be, after a nominee is

nominated, there be a hearing and then there is a committee vote. Then, the nominee comes before the full Senate and we start to follow the Constitution. There is nothing in the Constitution about filibusters. The Constitution talks about the President's prerogatives to nominate and the Senate's duty to consent or not to consent.

The majority leader made a big to-do about its being a matter of quality, not a matter of quantity. Well, if the majority doesn't like the quality, all they have to do is vote the nominee down. All I am asking for is up-or-down votes. If they don't like the quality, say so. Say so. I think that, on an examination of the record, there would be no real issue about quality. These are quality people. But, if I am wrong, and their judgment is to the contrary, I will abide by that. Vote no. Don't consent. Follow the Constitution and don't consent.

We have real problems with going forward when the chairman talks about judicial vacancies not being the most pressing problem in comparison to unemployment, the economy, and Iraq. I agree there are problems of greater immediacy. But, we have time to handle them all. We might have to work on Mondays and Fridays. A lot of Americans work on Saturdays. We could come in a little earlier, and we could use the floor time a little more efficiently.

I do believe it is time we took stock in what we are doing in this body. You can cite the statistics in many different directions, but I think the real critical statistics are what has happened in the last 2 years during President Bush's Administration in comparison to President Clinton's final two years. There is a decisive discrepancy there. A Republican Senate confirmed 15 of President Clinton's circuit judges in his final two years in comparison to 6 for President Bush before the nominees are considered today. I hope it will go up to 7. President Clinton had 57 district judges and President Bush had 34, and I expect it will go up to 38 today. Over the 8-year terms of the two Presidents, President Clinton had 65 circuit judges and President Bush had 57; President Clinton had 305 district court judges, and President Bush had 237 judges.

So I hope we can move through the morass we find ourselves in. If we don't, there is going to be an election this year, and there may be a Democrat in the White House. I don't know what is going to happen. It is a close matter. The American people will decide that.

At some point, there will be another Democrat in the White House, if not on this election, and there will be retaliation because one insult begets another. As one side exacerbates, so does the other. The 20-year record is not a good record as to what we have here. I urge a truce.

On a personal level, no two Senators in this body have a closer relationship than Senator Leahy and myself. It goes back a long time when we had important jobs--when he was a prosecuting attorney and I was the same. We have worked together very closely, but we have a disagreement on this issue.

I believe the Republican caucus is right today in its position, and I am prepared to lead the caucus on the issue. That is my job in my capacity as ranking member. When the Republican caucus was wrong, I said so, and I voted with the Democrats on the Clinton nominees.

Surely.

Vote on the Nomination of Catharina Haynes to be United States Circuit

Judge

Mr. President, I don't understand the import of that question.

Mr. President, Senator Leahy and I have something on which to agree. I agree.

That they be voice votes?

May I inquire of the distinguished chairman if he intends to ask for the yeas and nays on the other nominees?

I respect the chairman's right not to answer. The Senator from Georgia has been waiting for a considerable period of time. I agree with whatever Senator Leahy has had to say. I ask that the Senator be given--how much time would the Senator like?

Mr. President, today I am pleased again to join my friend and colleague Senator Kit Bond of Missouri in bringing to the Senate another matter of importance to the missions of the National Guard and to the dedicated men and women of the Guard who perform these missions.

Today we are introducing the National Guard Empowerment and State- National Defense Integration Act of 2008. We introduce this legislation on behalf of the 91-member U.S. Senate National Guard Caucus, which we co-chair. The military is still not structured properly to respond to the domestic emergencies that we know will come again. This legislation would take us tangible steps forward in correcting that. Our bill would sharpen the Defense Department's focus on helping the National Guard respond to domestic emergencies.

This legislation is a new phase in our bipartisan and bicameral drive to empower the Guard for successfully meeting the challenges that our States and the Nation are asking the Guard to meet. It would clear away bureaucratic cobwebs in the Defense Department's organizational structure to improve decision making on homeland defense issues that involve the Guard. This bill builds on some of the strong provisions enacted from the previous version of the Guard Empowerment Bill in the recently enacted fiscal year 2008 Defense Authorization Bill. By empowering the National Guard through more responsibilities, authorities, and new lines of control, this bill focuses the Defense Department's attention on this critical realm of domestic defense. The bill structures potential military operations within the U.S. in a way outlined by the Constitution, ensuring local and State control--not Federal control--in these emergencies.

We know that the military--the active duty force, the National Guard, and the Reserves--has an important role in responding to emergencies at home, events like natural disasters. The events of Hurricane Katrina and so many other situations have amply underscored that reality. Our civilian authorities will continue to want to tap into the resources, personnel, and expertise, and there is no question that we need a system that permits that. The debate taking place, mostly behind the scenes and within the walls of the Pentagon, has been about how we structure that response. The goal must be an effective response in line with the Constitution. Our national charter protects our basic liberties and places sovereignty in the hands of the people through government with adequate checks and balances, splitting administration among Federal, State, and local levels.

This Empowerment Bill would be effective because it drives to enhance the National Guard, our first military responders. This force has stepped up during dire situations time and time again. The National Guard takes its responsibility to carry out relief missions at home as seriously as it takes its missions abroad as the nation's primary military reserve. The National Guard is a locally based force, spread out in armories and readiness centers across the country. The Guard can flow forces among States through the Emergency Management Assistance Compacts process, which helped make the force one of the few shining lights in the darkness of the response to Hurricane Katrina. The National Guard has units that specialize in civil support, including highly trained, full-time teams located in every one of our States. The bottom line is that the Guard has shown that it can do this mission and do it superbly.

The approach of the Empowerment Bill is constitutional because it properly involves every layer of Government. It is our mayors, our public safety chiefs, and our Governors who are responsible for the security of their communities. Under our governmental system, they are the ones that should be in control of emergency situations and any Federal assets that come in should be strictly in support of them-- certainly not the other way around. The Guard is a State force that works closely with these civilian authorities all the time. The Guard, which serves under the command of the Governors, is part and parcel of the community. The Guard knows that it is civilians, including their elected leaders and the populace, who are the ultimate decision-makers in these situations.

Our bill includes several key provisions. To improve the quality of advice at the highest levels, the Chief of the National Guard Bureau would gain a full seat on the Joint Chief of Staff, a key advisory body where insufficient attention is paid to homeland defense matters. The bill would ensure that U.S. Northern Command remains a Federal military headquarters that truly supports the Governors and the initial Guard response in an emergency, providing for the Governors to have tactical control over any active duty and Reserve assets that might be operating in their home State during an emergency. The National Guard Bureau is enhanced in another section which specifically gives the National Guard a separate budget to purchase domestic defense-oriented items. The Bureau would carry out its responsibilities in close cooperation with a newly

established planning committee and council that integrally involves the States' Adjutants General. And the bill assigns several key command and deputy command positions to National Guard officers who have experience in homeland defense and domestic emergency response matters.

This fiscal year 2008 Defense Authorization Bill ushered in several improvements to the National Guard, including an elevation of the Bureau Chief to the rank of four-star general. The National Guard Bureau is now more a joint agency than a sub-branch of the Army and the Air Force, though the Guard remains a key part of the Army and Air Force's Total Force. The Deputy Commander or Commander of U.S. Northern Command now must come from the ranks of the National Guard. These are far-reaching steps, though I remain concerned that the Department has yet to implement these provisions, not even filling the four-star position yet.

Together, last year's enacted organizational changes and those put forth in this bill will fundamentally improve our preparations for an emergency, and ensure an effective, swift, and constitutional response when another emergency occurs.

Our National Guard has never let our country down, and--once again-- we cannot let our Guard down. I urge prompt attention and action on this vital legislation.

Mr. President, I ask unanimous consent that the text of the bill and supporting material be printed in the Record.

Mr. President, today, I join with Senator Hatch to introduce a bipartisan bill to address the resource needs of our men and women on the Federal judiciary and people around the country by authorizing additional U.S. courts of appeals and district court judgeships. It has been 18 years since the last time a comprehensive judgeship bill was enacted to address the growth in the workload of the Federal judiciary by adding new Federal judgeships. That legislation established 11 additional circuit court judgeships and 61 permanent and 13 temporary district court judgeships.

Since 1990, case filings in our Federal appellate courts have increased by 55 percent and case filings on our district courts have risen by 29 percent. Without a comprehensive bill, Congress has proceeded to authorize only a few additional district court judgeships and extend temporary judgeships when it could. For instance, in 2002 we were able to provide for 15 new judgeships in the Department of Justice authorization bill. However no additional circuit court judgeships have been created since 1990 despite their increased workload.

In 2006, the weighted number of filings in district courts, which takes into account an assessment of case complexity, were 464 per judgeship, well above the Judicial Conference's standard. The same year, the national average circuit court caseload per three-judge panel approached the record number of 1,230 cases, recorded a year earlier.

Our Federal judges are working harder than ever, but in order to maintain the integrity of the Federal courts and the promptness that justice demands, judges must have a manageable workload. The bill that we are introducing today would add 12 permanent circuit court judgeships, 38 permanent district court judgeships, and convert five existing temporary judgeships into permanent positions. These additional judgeships would address the significant increase in caseloads that the Federal courts have seen over the nearly two decades since the last comprehensive judgeship bill was enacted. It is based on the recommendations of the Judicial Conference and its analysis of caseloads and needs.

Our bipartisan bill would also add 14 temporary district court judgeships, two temporary circuit court judgeships, and extend one existing temporary district court judgeship. These additional temporary judgeships allow Congress some flexibility with regard

to future judgeship needs. If caseloads continue to increase, Congress has the option to introduce legislation making permanent or renewing these temporary judgeships.

By providing that these new judgeships become effective the day after the inauguration of the next President, we attempt to insulate this effort from partisan politics.

This bill has the support of the Judicial Conference and Senators on both sides of the aisle. I thank Senators Feinstein and Schumer for joining us in this effort. A comprehensive bill to respond to the increasing workload of our Federal judiciary is long overdue.

Mr. President, I ask unanimous consent that text of the bill be printed in the Record.

Mr. President, I am pleased to introduce the Medicare Rural Health Access Improvement Act of 2008.

The purpose of this legislation is to continue ongoing efforts to ensure that Americans in rural areas have access to health care services. Much has been done in the past to improve access to rural providers such as hospitals and doctors. Much more still needs to be done.

I hold town meetings in each of the 99 counties in the great State of Iowa every year. As many know, Iowa is largely a rural State, and a significant concern that I consistently hear during these meetings is the difficulty my constituents experience in accessing health care services. As the former chairman and currently the ranking member of the Finance Committee, it has, therefore, been a priority for me to improve the availability of health care in rural areas.

In Iowa, as in many rural areas across the country, hospitals are often

not only the sole provider of health care in rural areas, but also employers and purchasers in the community. Moreover, the presence of a hospital is essential for purposes of economic development because businesses check to see if a hospital is in the community in which they might set up shop. As you can see, it is vital that these institutions are able to keep their doors open.

In previous legislation, Congress has been able to improve the financial viability of rural hospitals. For instance, the creation and subsequent improvements to the Critical Access Hospital designation has greatly improved the financial health of certain small rural hospitals and ensured that community residents have access to health care.

However, there are still a group of rural hospitals that need help. I am referring to what are known as ``tweener'' hospitals, which are too large to be Critical Access Hospitals, but too small to be financially viable under the Medicare hospital prospective payment systems. These facilities are struggling to stay afloat despite their tireless efforts. Like in many communities across the country, the staff of tweener hospitals and their community residents take great pride in the quality of care at these facilities. I have heard countless stories of the exemplary work tweener hospitals in Iowa perform not only as providers of essential health care, but also as responsible members of their communities. It is for this reason that many provisions in this bill are intended to improve the financial health of tweener hospitals and ensure that people have access to health care.

Most tweener hospital are currently designated as Medicare Dependent Hospitals and Sole Community Hospitals under the Medicare program. There are provisions, both temporary and permanent, included in this bill that would improve Medicare payments for both types of hospitals. This includes improvements to the payment methodologies so that inpatient payments to these facilities would better reflect the costs they incur in providing care. Improvements are also proposed in this bill to Medicare hospital outpatient payments for both Medicare Dependent Hospitals and Sole Community Hospitals so they would both share the benefit of hold harmless payments and add-on payments.

Also, a major driver of the financial difficulties that tweener hospitals face is the fact that many have relatively low volumes of inpatient admissions. This bill would improve the existing low-volume add-on payment for hospitals so that more rural facilities with low volumes would receive the assistance they desperately need.

Over the years, many have commented that it is simply unfair for many rural hospitals to receive only a limited amount of Medicare Disproportionate Share Hospital, or DSH, payments while many urban hospitals are not subject to such a cap. This bill would eliminate the cap for DSH payments for those rural hospitals for a 2-year period.

There are also other provisions that would continue to help rural hospitals. The rural flexibility program would be extended for an additional year. Certain rural hospitals that are paid on a cost basis for the outpatient laboratory services they provide would continue to do so on a permanent basis. And Critical Access Hospitals that provide outpatient laboratory services would be paid 101 percent of their costs regardless of whether the specimen was collected from a patient of the CAH or whether the specimen was collected in a skilled nursing facility or clinic associated with the CAH.

This legislation also seeks to improve incentives for physicians located in rural areas and increase beneficiaries' access to rural health care providers. It includes provisions designed to reduce inequitable disparities in physician payment resulting from the Geographic Practice Cost Indices, or adjusters, known as GPCIs. Medicare payment for physician services varies from one area to another based on the geographic adjustments for a particular area. Geographic adjustments are intended to reflect cost differences in a given area compared to a national average of 1.0 so that an area with costs above the national average would have an index greater than 1.0, and an area below the national average would have an index less than 1.0. There are currently three geographic adjustments: for physician work, practice expense, and malpractice expense.

Unfortunately, the existing geographic adjusters result in significant disparities in physician reimbursement which penalize, rather than equalize, physician payment in Iowa and other rural states. These geographic disparities in payment lead to rural states experiencing significant difficulties in recruiting and retaining physicians and other health care professionals due to their significantly lower reimbursement rates.

These disparities have perverse effects when it comes to realigning Medicare payment to reward quality of care. Let me put that into context. Iowa is widely recognized as providing some of the highest quality health care in the country yet Iowa physicians receive some of the lowest Medicare reimbursement due to these inequitable geographic adjustments. Medicare reimbursement for some procedures is at least 30 percent lower in Iowa than payment for those very procedures in other parts of the country. That is a significant disincentive for Iowa physicians who are providing some of the best quality care in the country, and it is fundamentally unfair. Congress needs to reduce these disparities in payment and focus on rewarding physicians who provide high quality care.

The inequitable geographic payment formulas have also exacerbated the problems that rural areas face in terms of access to health care. Rural America today has far fewer physicians per capita than urban areas. The GPCI formulas are a dismal failure in promoting an adequate supply of physicians in States such as Iowa, and more severe physician shortages in rural areas are predicted in the future.

The legislation I am introducing today makes changes in the GPCI formulas for work and practice expense to reverse this trend. It establishes a 1.0 floor for the physician work and practice expense adjustments. It also revises the calculation of the work and practice expense formulas to reduce payment differences and more accurately compensate physicians in rural areas for their true practice costs. We must act now to help rural States recruit and retain more physicians so that beneficiaries will continue to have access to needed health care.

Congress has previously enacted a number of other provisions to improve Medicare payment for health care professionals and providers in rural areas that will expire soon. This bill extends the five percent incentive payments for primary care and specialty physicians in scarcity areas through December 2009. It also extends the existing payment arrangements which allow independent laboratories to bill Medicare directly for certain physician pathology services.

The bill includes several new provisions to improve beneficiary access to health care services. It increases rural ambulance payments by 5 percent for the next 18 months. It permanently increases the payment limits for rural health clinics. It allows hospital-based renal dialysis centers and skilled nursing facilities to provide telehealth services. It also allows physician assistants to order post-hospital extended care services and to serve hospice patients.

Finally, the bill would protect rural areas from being adversely affected by the new Medicare competitive bidding program for durable medical equipment. It would ensure that home medical equipment suppliers who provide equipment and services in rural areas and small metropolitan statistical areas, MSAs, with a population of 600,000 or less can continue to serve the Medicare program by exempting these areas from competitive bidding. We must ensure that rural areas continue to have medical equipment suppliers available to serve beneficiaries in these areas.

Mr. President, as you can see, we still have much to do when it comes to ensuring access to health care in rural America. I look forward to working with my colleagues on this important matter.

Mr. President, I ask unanimous consent to have printed in the Record a summary of the bill.