American Job Protection Act

Madam President, I rise today, along with my colleague from Tennessee, to discuss two pieces of legislation we introduced to restore liberty and to protect jobs. The first bill, S. 40, the American Liberty Restoration Act, would repeal ObamaCare's unconstitutional individual mandate. The second bill, S. 399, the American Job Protection Act, would repeal Obama's job-killing employer mandate. These two provisions were included in the President's health law for the purpose of raising revenues--an attempt to pay for all of the new spending under ObamaCare--and to garner support from the private insurance industry.

I would ask Senator Alexander, has the so-called Affordable Care Act lived up to the promises President Obama made during the health care reform debate to maintain personal freedom, reduce health care costs, and decrease unemployment?

Madam President, I agree with my colleague and thank him for his comments.

I would also argue the individual mandate is unconstitutional. When the law was being debated here in Congress, and later when it was being litigated in the courts, proponents repeatedly argued the individual mandate was constitutional under the commerce clause. Well, that simply isn't the case. While the Supreme Court ultimately upheld the law on other grounds, the majority of Justices agreed the individual mandate was not a proper exercise of Congress's power to regulate interstate commerce.

I have to say I agree with that conclusion. Indeed, I say it is simply common sense the power to regulate interstate commerce does not include the power to compel individuals to engage in commerce, which is precisely what the individual mandate does.

Despite the Court's overall decision, the American people see the individual mandate for what it is--an affront to individual liberty. Indeed, the vast majority of the American people know it violates our constitutional principles and that it cedes too much power to the Federal Government. That is why, in poll after poll, the majority of Americans support repealing the mandate.

I would also ask the distinguished Senator from Tennessee, Mr. Alexander, to share his views about the individual mandate, if he has any additional views.

I would say to the distinguished Senator from Tennessee that is certainly the case. There are various reports and analyses of this that indicate a significant number of employers would rather pay the penalty and not have to deal with the particular requirements the Affordable Care Act seems to require.

On top of the unconstitutional individual mandate, this job-killing employer mandate is a real problem. Under the President's health law, employers with more than 50 full-time employees are required to offer coverage, as the distinguished Senator said, that meets a minimum value or pay a penalty of $2,000 per employee. The distinguished Senator from Tennessee explained this well. If the employer does offer coverage but that coverage does not meet the minimum value, employers must pay $3,000 per employee. I have never heard such a ridiculous approach toward business. Not surprisingly, the penalty under this provision costs less than offering coverage. According to the Kaiser Family Foundation annual survey of employer-sponsored health insurance, average annual premiums are $5,615 for single coverage and $15,745 for family coverage. Once again, the penalty for an employer who doesn't offer health insurance is only $2,000 per employee. That being the case, the law does not incentivize employers to offer the employees health insurance. Instead, it does exactly the opposite. Rather than footing the full cost of providing health coverage, many employers are going to take the less expensive route and simply pay the penalty, as the distinguished Senator from Tennessee has mentioned. Even worse, many employers that currently do offer their employees health benefits under current law will likely drop the benefits and, instead, choose to pay the penalty.

Studies are already showing this is the case, and this will be the case. An employer survey done by McKinsey and Company found that ``30 percent of respondents who said their companies offered employer- sponsored health insurance said they would definitely or probably drop coverage in the years following 2014.''

So despite the President's claim to the contrary, ObamaCare has not preserved the employer-sponsored health insurance market. It dismantles it. As a result, the President's promise that those who like their health insurance would be able to keep it falls by the wayside.

I believe Senator Alexander is also concerned about the fact the President's law defines small employers as those with less than 50 employees. In addition, I thought this law was supposed to create jobs. The President claimed it would. So again, I would turn to my colleague from Tennessee and ask: Does he think that has been the case? Does he think the President has been right about that?

I have heard the same complaints by the restaurant industry, and by a lot of small businesses that are looking to not hire more than 50 people, and also are looking to cut their employees' work hours down to below 30 hours a week in order to avoid these massive costs that would incur to them.

The employer mandate is a drag on our economy, forcing too many of our Nation's job creators to stop hiring and growing their businesses in order to comply with the onerous provision in the President's health law. Instead of letting the Federal Government dictate how employers should allocate resources, we should repeal this job-killing mandate and let businesses freely manage their personnel needs.

I couldn't agree more with the distinguished Senator from Tennessee, and I ask unanimous consent to have printed at this point in the Record an article under Politico's banner, titled: ``Under ACA, Employer Mandate Could Mean Fewer Jobs.''

Again, I thank my colleague from Tennessee for working with me on these two critical issues that impact every American. I will conclude with a quote from a Utah employer. This is a small business owner who is concerned about what the company will do come January 1 if these mandates remain in place. This employer wrote to me saying this about ObamaCare:

We will have to choose who will work 30 or less hours a

week, which in turn is bad for our business because we have

to train more people to do one job. It is bad for our

customers because they will have to interact with different

employees who may not know the customer's needs as well, and

it is most devastating for the employee because the

employee's hours will be cut.

If we want to turn this economy around, government decrees such as the employer mandate must be repealed.

Our job creators cannot grow and innovate with these heavy-handed regulations coming from Washington bureaucrats who have no clue how to run a business.

We must work together on this important issue for the sake of the individuals working three jobs at a time to make ends meet, for employers trying to keep workers on the payroll and contributing to the economy, and for our Nation as a whole to put our economy on the right track and to keep us globally competitive. At least that is my viewpoint, and it is certainly the viewpoint of my small business colleagues there in Utah.

Once again I thank my colleague from Tennessee, and I am hoping that others will hear our call for support and join us in these two crucial efforts to protect individual freedom and to maintain our system of free enterprise which has built this country and made it the best in the world.

So I thank the Senator from Tennessee.

Correcting the Record

Madam President, I ask unanimous consent that we return to the Halligan nomination.

I also ask further unanimous consent that I be permitted to speak following the distinguished Senator from Maryland.

Madam President, we have before us one of the most activist judicial nominees we have seen in years.

Rather than choose a more consensus nominee, President Obama has chosen to again provoke a political confrontation.

This is unnecessary, divisive, and not in the best interests of either the judicial selection process or the judiciary.

The Constitution gives the power to appoint judges to the President, not to the Senate. I believe, therefore, that the Senate owes the President some deference with respect to nominees who are qualified by both legal experience and, more importantly, judicial philosophy.

A nominee whose record shows that she has an activist judicial philosophy is simply not qualified to sit on the Federal bench, and the Senate owes the President no deference under those circumstances.

That is the kind of nominee we have before us today.

Nothing has changed since a cloture motion failed on this nominee in December 2011.

Well, that might not be quite true.

One thing that has changed is that the need to fill another vacancy on the

D.C. Circuit is even less today than it was then.

Year after year, case filings decrease for the D.C. Circuit while they increase for the rest of the judiciary.

Year after year, the D.C. Circuit ranks last among the 12 geographical circuits in the number of appeals filed per three-judge panel.

The court has even cancelled argument days because of an insufficient docket.

And I would remind my friends on the other side of the aisle that the D.C. Circuit's caseload today is lower than when they used this argument to block President Bush's nominees to this court--which they did.

Looking at the nominee herself, Caitlin Halligan was a member of the New York City Bar's Committee on Federal Courts and signed its March 2004 report titled ``The Indefinite Detention of `Enemy Combatants': Balancing Due Process and National Security in the Context of the War on Terror.''

Based on policy rather than legal grounds, it makes left-wing arguments that courts and even the Obama administration itself have repudiated.

Although she tried to distance herself from the report's left-wing positions at her confirmation hearing, Halligan signed rather than abstained from the report, as four other committee members had done, and never repudiated it before her hearing.

If she were a Republican nominee, my friends on the Democratic side would call this a confirmation conversion.

Her report argued that the Authorization for the Use of Military Force, or AUMF, does not authorize indefinite detention of enemy combatants.

The Supreme Court rejected this in Hamdi v. Rumsfeld. The Obama administration has sought, and the D.C. Circuit has adopted, a broad construction of the AUMF.

Halligan's report argued that alien terrorists should be tried in Article III courts, with full constitutional protections, rather than in military commissions.

On March 7, 2011, President Obama signed an executive order re- establishing military commissions for enemy combatants held at Guantanamo Bay.

But Halligan's extreme record on these important issues goes beyond that report.

She also authored a legal brief in 2009 arguing that the AUMF does not authorize the seizure and long-term military detention of lawful permanent resident aliens.

This position again disregarded the Supreme Court's holding in Hamdi v. Rumsfeld and appears even to conflict with the Obama administration's justification of assassinating American citizen Anwar al-Awlaki.

She just won't take no for an answer when pushing such extreme views, not even from the D.C. Circuit or the Supreme Court itself.

That is the classic definition of judicial activism, trying to use the courts to advance a political agenda no matter what the law is.

As Solicitor General of New York, Halligan aggressively sought to hold gun manufacturers liable for criminal acts committed with handguns.

In one speech, she said that the Federal Protection of Lawful Commerce in Arms Act ``would nullify lawsuits. . . including one brought by my office. . . that might reduce gun crime or promote greater responsibility among gun dealers.''

The Senate voted overwhelmingly for this legislation in July 2005.

Once again, Halligan turned to the courts to push her personal political views, filing a legal brief challenging the law's constitutionality.

In New York v. Sturm & Ruger, she argued that gun manufacturers maintain a ``public nuisance'' of illegally possessed handguns.

The New York Court of Appeals rejected Halligan's activist approach, concluding that ``the Legislative and Executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.''

Attempting to address social problems in the judicial rather than the legislative branch is a hallmark of judicial activism.

Finally, other legal briefs she has filed similarly demonstrate extreme views that the Supreme Court has rejected.

In Scheidler v. NOW, Halligan argued that pro-life protesters should be prosecuted under the Federal racketeering statute because they somehow engage in extortion.

The Supreme Court voted 8-1 to reject that position.

And in Hoffman Plastics Compounds, Inc. v. NLRB, the Supreme Court rejected Halligan's position that the NLRB can grant backpay to illegal aliens.

As I said, the Senate owes the President some deference with regard to his nominees who are qualified by their legal experience and, more importantly, their judicial philosophy.

Republicans have consistently cooperated with the President and will continue to do so. But when a nominee's record clearly shows that she has a politicized view of the courts, I for one have to say no.

The political ends do not justify the judicial means.

I urge my colleagues to oppose this nominee.

I yield the floor.

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

Madam President, I ask unanimous consent to speak as in morning business for such time as I may consume.

Madam President, I also ask unanimous consent to use an oversized poster.

Madam President, there has been a lot made of the sequester and the things that may or may not happen associated with it. Having spent the last 8 years looking at the Federal Government, I wrote the Secretary of Agriculture a letter this week outlining some things they could do that would not put in jeopardy food inspection and other things.

In my 8 years of looking at the Department of Agriculture, there is extensive waste and duplication--the GAO has confirmed that--and those things should be cut first and eliminated and consolidated before staffs that are in critical positions are furloughed.

The USDA currently has 120,000 employees, and they have over 16,000 offices. Just thinking about 16,000 offices ought to give us some pause. Why would any agency, no matter what their requirements, need that number of offices? The agency notes on their Web site that if they were a private company, they would be the sixth largest private company in America. That is how big the USDA is and how diffusive.

Today, there is one USDA employee for every eight farmers--one USDA employee for every eight people employed in the farm area--or, overall, one USDA employee for every 18 farms, primary or otherwise. So weekend farmers have a USDA employee, and for regular farmers--people where it is their primary business--there is an employee for every eight of them.

At the end of 2012, USDA was sitting on $12 billion in unobligated Federal balances. In other words, that is money that is sitting in an account that has not been obligated to any purpose, sitting there waiting to be spent, where we have borrowed money--$12 billion--that they have not obligated.

One of the things my staff has discovered is the USDA has upcoming conferences in terms of food tasting and wine tasting on the west coast. Now, in normal times there would not be anything wrong with Federal employees traveling to the west coast to both encourage and assess where we are in terms of some of our agricultural production. But I would think maybe this is one of the things the U.S. Department of Agriculture ought to cancel, given where we are and the threat that has been put out there in terms of food safety that has been announced in terms of layoffs or time off for Agriculture Department employees.

Two USDA agencies--Rural Development and the Agricultural Marketing Service--are sponsoring the 26th annual California Small Farm Conference next week. In addition to speakers from the USDA agency, the gathering will feature field trips and tasting receptions. ``The Tasting Reception,'' according to their Web site, ``is the most well attended networking event of the conference and showcases the regional bounty from local farms, chefs, wineries, breweries, bakeries and other food purveyors.'' And ``special guest chefs will turn donated local agriculture products into tasty dishes to sample with exceptional local wines [provided].''

There is nothing wrong with that in normal times. There is plenty wrong with sending multiple employees to these types of conferences when we find ourselves in the position we find ourselves in today. These conferences, I am sure, are fun, interesting, and even educational getaways for USDA employees, but food inspecting rather than food tasting should be the USDA's priority at this time.

Not just to pick on them, but the thing is Americans are not aware of how expansive and duplicative many of these programs are. In the domestic food assistance programs, as shown on this chart, this is what GAO shows us we have running: 18 different Federal programs across three Departments that spend $60 billion a year.

According to the GAO, the availability of multiple programs with similar benefits helps ensure that those in need have access to nutritious food, but it also does increase the administrative costs of these programs.

So while our goal is great, with the fact that we have this many programs doing essentially similar work with similar overheads, the GAO's recommendation was to do consolidation. Fifteen of these programs are run by the Department of Agriculture, ranging from SNAP to the Fresh Fruit and Vegetable Program and the Special Milk Program.

According to the GAO, the effectiveness of 11 of these 18 programs is suspect. The reason it is suspect is nobody has done any oversight. No Member of Congress has done oversight on it--not the Budget Committee, not the Appropriations Committee, nor the Agriculture Committee.

We also have inside the USDA research and education activities within the Rural Development programs that duplicate, predominately, existing programs of almost every other agency in the Federal Government. Let me say that again. Almost every one of these programs is duplicated in another agency of the Federal Government. In other words, we are layering. They both have the same goals, the same hope for outcomes. One is run by one agency. Here are the ones that are run just by the

This was a letter I received in 2011 when we started raising the issue of duplication and making tough choices so that we could continue to provide benefits, we could continue to create and support a safety net for those who were truly dependent on it, but we do not waste money we do not have, spending it on things we do not absolutely need.

I would put forward that when we have a multitude of programs and they overlap, we as Members of Congress do not have an excuse for not fixing that, because the things that are critical in people's lives eventually are going to suffer. Every dollar we spend on low-priority duplication, every dollar we spend that does not have a metric to say it is doing what it is should be doing is eventually going to be a dollar that is not there to support a food stamp recipient or a Medicaid recipient or housing for the indigent or care for the homeless or implementing Justice grant programs for policing and tribal courts.

So it is not a matter of just solving the duplication problem, it is a matter of the arithmetic that is going to hit our country and that by delaying the time at which we decide we are going to address this multitude, which is now 1,400 programs through the first 2 years of reports from GAO and $367 billion of expenditures--and that does not count the other $800 billion that goes out of the Federal Government every year for grants that also address some of these same issues. So the time is now. Sequestration gives us a good time to start looking at priorities.

One of the things I am thankful for is that we have tremendous Federal employees. We are starting to hear them speak up now: What can be cut? What is wasteful? They now feel the freedom to not be criticized because they are going to take a critical eye to the way American taxpayer dollars are being spent in their own agency. We are starting to hear from them: Here are things we are doing that we should not be doing. Here are things that are not a priority. Rather than lay off a meat inspector, maybe we ought to do this: ``Cut this, not that.'' You know, we ought to cut out wine tastings for Federal employees and keep the meat inspectors employed.

There is no reason we need to furlough the first--with the waste in the Department of Agriculture, there is no reason that any significant program in the Department of Agriculture ought to suffer a furlough or layoff. There is no reason for it because there are billions of dollars there that are not wisely spent--well intended, not questioning motive, but poorly spent with poor return.

When there are two programs doing the same thing, let me describe what happens on the beneficiary end of that. People do not know where there is a need. What the requirement is in one program is a different requirement in another program. In terms of duplicative grants, what we have is people who apply for a grant and get it from one arm of the Department of Agriculture and then go over here and make the same application from another arm of the Department of Agriculture, get the same grant, and then go to one of the other agencies that is doing the same thing and get another grant for the same thing--all of them not knowing that each has given a grant for the same purpose. So it is just not good business practices, it is not good management, and it is not good stewardship for the future of our country.

So I would ask my colleagues to think about the great work the Government Accountability Office has done. They have done great work for us. We have failed to act on it. It is time we start acting. Come April 1, we will see the final report from the GAO where they now--over 4 years--will have looked at every program in the Federal Government. They are going to be able to give us a list. I have come out here with my big charts and shown the list of duplications. We are going to have three or four more charts that say the same thing. Think about how discouraging it is to the people at GAO who do all of this hard work and to the people who are trying to meet the needs in the individual agencies to know that we are actually duplicating things with poor results.

We are not meeting our requirements under our oath. We are not meeting the moral requirements to be prudent with the American taxpayers' money. In the long run, the people who will suffer for it will be the very people we intend to help because if, in fact, we do not respond in a way that creates a positive vision for our country in terms of growth again and a positive vision in terms of responsible behavior by Congress, ultimately the arithmetic swallows us up.

I will close with this: If you take today's budget, when the Federal Reserve starts unwinding the quantitative easing they have done--these very low, artificially low interest rates--or if something were to happen where the world economy would look at us and say: We do not think you are deserving of our AAA-minus rating--the difference in interest costs historically is about 3 to 4 percent. Let's take a conservative estimate; let's say it is 3. Our historical average is 5.83 percent, what we have borrowed money at historically over the last 50 years. We are borrowing at under 2 percent right now. Three percent times $17 trillion is $510 billion a year. We all lose when that happens. How do we lose? Because the dollar we are going to be spending on that additional interest cost is a dollar that is not going to help someone who is homeless, it is a dollar that is not going to provide food that needs to be provided for those who are depending upon us, and it is a dollar that is not going to go to match the FMAP for Medicaid. Consequently, the cuts we will make then will be much harsher than the cuts if we decide to do it proactively now.

You do not have to have partisan disagreement about the goal of a program, but certainly we should be able to come together and say: We do not want duplication. We want to have good outcomes. We want to put metrics on it to measure it to see if it is working.

There cannot be any disagreement on that. That is plain, good-old common horse sense. Yet there has been no action in 3\1/2\ years on any of these recommendations by the Government Accountability Office. Now, the administration has paid attention. I will give them credit. In a lot of areas where they have seen it, they have done what they can do, but we have not. I do not want the heritage of my time in the Senate to be when we were the Congresses that failed to meet the challenge.

I believe our country can cheat history. If you look at history, it is not great for republics. They have all failed. But we have the opportunity to cheat history, and the way we do it is by getting off our rears and starting to

do the job we were sent up here to do, which is oversight and legislate the elimination of waste, abuse, and duplication. We can do that, but it requires leadership. It requires leadership on the part of Senator Reid, on the part of Senator McConnell, every committee chair, every ranking member. It requires leadership that we are going to do that.

I am proud to say that Tom Carper, chairman of Homeland Security--we have a plan to oversight all of homeland security over the next 4 years, the whole thing, and the rest of the government as well because we do not really believe the rest of the committees are going to do it. So we are building our staffs for oversight to grab this information, to make cogent recommendations and legislation, where we can, that will actually address these problems. We are way past the starting point of when we should have begun. It is not too late, but it requires us to make a decision: Are we more interested in the parochial benefits of allowing programs that are not effective or duplicative to continue to run because we will not get any blowback or are we courageous enough to say that we are going to do what is right for the right reasons for the long-term well-being of our country?

I believe that is the feeling of most of the Members of the Senate. I just think we need the leadership to call us back.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, I ask unanimous consent for leave to engage in a colloquy with Senator Barrasso for a period of time not to exceed 15 minutes.

Mr. President, the President of the United States has spent the last few weeks campaigning around our great country at taxpayer expense, telling Americans about what he characterizes as the catastrophic impact of the sequester. He said, for example, that the sequester will visit hardship on a whole lot of people. He said it will jeopardize our military readiness, it will eviscerate job-creating investments in education and energy and medical research. He said the ability of emergency responders to help communities respond to and recover from disasters will be disregarded. Border Patrol agents will see their hours reduced. FBI agents will be furloughed. He said Federal prosecutors will have to close cases and simply let criminals go. Air traffic controllers and airport security will see cutbacks, which means more delays at airports across the country. He said thousands of teachers and educators will be laid off and that tens of thousands of parents will have to scramble to find childcare for their kids. And he also continued: Hundreds of thousands of Americans will lose access to primary care and preventive care such as flu vaccinations and cancer screenings.

Today we see the predictions of doom and gloom have not come to pass. We have seen that many of these statements have been severely exaggerated, if not disproven. People in my home State of Utah have found the effects of the sequester to be not quite what the President predicted. One of our local Utah news stations reported that ``there were no signs of sequester pain'' at the airports. When asked about sequestration, one Utahn responded: ``If they can't handle a 2 percent reduction in spending then I guess we need to get better and brighter,'' meaning we need to get better and brighter people running our government.

Other press reports indicate the administration's doomsday claims have misled the public. The Washington Post reported that the Education Secretary's claims about teacher layoffs turned out simply not to be true. And Politico recently published a story showing the President's claims about some capital staff getting pay cuts to be false.

I ask Senator Barrasso, after all these scare tactics over the last 2 weeks, does the President have a credibility problem with the American people when it comes to the sequester?

I thank my friend, Senator Barrasso. I find it interesting that what the Senator has observed on the streets of towns such as Evanston, Cheyenne, and Gillette in Wyoming is backed up by a recent poll conducted by Gallup. That poll shows Americans understand that a lot of money Washington spends is wasted. This Gallup poll shows that the average American believes Washington wastes 51 cents out of every $1 it spends--51 cents. More than half of every dollar that hard- working Americans earn and send to Washington gets wasted.

Congress and the President should be working together to target, reform, reduce, and eliminate wasteful spending

that the American people are noticing. They should be working to get rid of and reform ineffective programs.

Meanwhile, the President is threatening to make cuts to government spending as painful as it can possibly be. Instead of targeting waste, the President is using scare tactics to persuade Americans that cuts have to come first from important services such as law enforcement, national security, border patrol, first responders, and educators.

Just today, the administration announced it was going to furlough schoolteachers who educate the children of military families on U.S. military bases, recognizing, of course, that most school systems are operated at the State and local level. They are funded primarily at the State and local level. The administration started focusing on educators who teach on base to military families, suggesting that those teachers would have to be furloughed.

Republicans have a better idea. The Senate Budget Committee--and in particular the ranking Republican serving on the Senate Budget Committee--has found that the cost of President Obama's recent golf vacation with Tiger Woods cost Americans an amount of money that, if saved, would have allowed us to prevent the furlough of 341 Federal employees. Can the President cancel a vacation or two in order to avoid some of these furloughs? That is the question that has prompted us to start this information campaign that we refer to as ``Cut this, not that,'' as depicted in this graphic.

This graphic shows under ``Cut this,'' golf vacations by the President, and under the ``not that,'' it shows military base teachers. That is what we should be focusing on. That is where we ought to prioritize. We need to identify those areas where there could be a lower priority attached to something we are already spending money on. ``Cut this, not that'' sends a message to the President and the American people that Washington should be setting spending priorities rather than wasting their hard-earned tax dollars.

I ask the Senator--through the Chair--how can it be that this administration chooses to cut border law enforcement, first responders, and educators instead of the fraud and waste that is so rampant in the government?

I thank the Senator. It is important for us to recognize that all these observations draw back to one central conclusion, which is that the sequester and wasteful spending we see so rampant throughout our Federal Government is the natural product of the failure by the majority leadership in the Senate to work with Republicans to pass a budget.

Last year, in the Senate, Republicans proposed 3 different budgets and received as many as 42 votes. That is 42 more votes than the President's budget received in this body last year or the year before or in the House last year or the year before.

The majority party in the Senate--those in charge of this body and elected to lead in this body--have refused even to propose a budget for the country for more than 1,400 days.

We have spending priorities. I am sure my friends across the aisle have spending priorities as well. It is time we do the right thing for the American people. We need to sit down and have an open and honest dialog with the American people and with each other. We need to hammer out these ideas and come up with a budget that fairly and accurately represents the priorities of the American people. We need to pass a budget, and I urge my colleagues to do so.

I thank the Chair.

I yield the floor.

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

Madam President, I rise today to speak in opposition to the nomination of Caitlin Halligan to be a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit is arguably the most important Federal appellate court in our country's judicial system, with primary responsibility to review administrative decisions made by many Federal departments and executive branch agencies. It has also served, in many instances, as a stepping stone of sorts for judges later appointed to the U.S. Supreme Court. As a result, the Senate has a longstanding practice of carefully scrutinizing candidates to the D.C. Circuit.

When evaluating particular nominees, we also carefully consider the need for additional judges on that very court. In July 2006 President Bush nominated an eminently qualified individual named Peter Keisler to fill a seat on the D.C. Circuit. Mr. Keisler, whom I know personally, is among the finest attorneys in the country and is also among the finest individuals I know. Because of his nonideological approach to the law, Mr. Keisler enjoys broad bipartisan support throughout the legal profession. Despite these unassailable qualifications, Democratic Senators blocked Mr. Keisler's nomination. He did not receive any floor consideration whatsoever, not even a cloture vote, and his nomination languished in the Judiciary Committee. At the time a number of Democratic Senators sent a letter to the Judiciary Committee chairman arguing that a nominee to the D.C. Circuit ``should under no circumstances be considered--much less confirmed--before we first address the very need for that judgeship.'' These Senators specifically argued that the D.C. Circuit's comparatively modest caseload in 2006 did not justify the confirmation of an additional judge to that Court, even though this was a position that by law already existed.

More than 6 years have passed, and Ms. Halligan has been nominated once again to that very same seat on the D.C. Circuit--the same seat for which Peter Keisler was nominated--but the court's caseload remains just as minimal as it was then. According to the Administrative Office of the U.S. Courts, the D.C. Circuit caseload is so light that the number of appeals pending per judicial panel is 54 percent less than the average for Federal courts of appeal. With just 359 pending appeals per panel, the D.C. Circuit's average workload is less than half that of other similar appellate courts.

The D.C. Circuit caseload has actually decreased since the time Democrats blocked Mr. Keisler. Indeed, since 2005 the total number of appeals filed is down over 13 percent. The total number of appeals pending is down over 10 percent. Some have sought to make much of the fact that since 2005, two of the court's judges have taken senior status, leaving only seven active judges on the D.C. Circuit today. But the court's caseload has declined so much in recent years that even filings per active judge are only slightly higher than they were in 2005. Of course, that does not account for the six senior judges on the D.C. Circuit who continue to hear appeals and offer opinions on a regular basis. Their contribution--the contributions of the senior judges on that court--is such that the actual work for each active judge has declined and the caseload burden for D.C. Circuit judges is less than it was when Democrats blocked Mr. Keisler on the basis of a declining, insufficient caseload.

Indeed, the average filings per panel--perhaps the truest measure of the actual workload per judge in the U.S. Court of Appeals--is down almost 6 percent since that time.

In each of the last several years, the D.C. Circuit has cancelled regularly scheduled argument dates due to the lack of pending cases. Those who work at the courts suggest that in reality the workload isn't any different today than it has been in the past.

According to the Democrats' own standards, and particularly when there are judicial emergencies in other courts across the country, now is not the time to confirm another judge to the D.C. Circuit. It is certainly not the time for us to consider confirming a controversial nominee with a record of extreme views with regard to the law and the Constitution.

Make no mistake, Ms. Halligan is not what we would call a consensus nominee. The Senate has already considered and rejected her nomination. Nothing material has changed since that time.

Many of my colleagues have discussed a wide range of Ms. Halligan's views, so I will limit myself to one example. In 2003, while serving as Solicitor General for the State of New York, Ms. Halligan approved and signed a legal brief arguing that handgun manufacturers, wholesalers, and retailers should be held liable for criminal actions that individuals commit with those guns. Three years later, in 2006, Ms. Halligan filed another brief arguing that handgun manufacturers were guilty of creating a public nuisance.

Such arguments amount to an invitation for the courts to engage in sweeping judicial activism. The positions she took are both bewildering and flatly inconsistent with the original understanding of the second amendment rights all Americans enjoy.

In conclusion, as measured by the Democrats' own standards and their own prior actions, now is not the time to confirm another judge to the D.C. Circuit, and it is certainly not the time to consider such a controversial nominee for that very important court. The Senate has already spoken and rejected Ms. Halligan's nomination. I urge my colleagues once again to oppose her confirmation.

Madam President, I am taking this time on the floor to speak in support of the nomination of Caitlin Halligan to be U.S. Circuit judge for the U.S. Court of Appeals for the District of Columbia Circuit.

I think my comments are at the right time, following Senator Alexander's comments about the difficulty we have had in the past confirming judicial nominees and the use of the filibuster that blocked the consideration of Presidential nominees.

Senator Alexander pointed with pride to an accommodation that was reached a few years ago, before I got to the Senate, that the filibuster would only be used in ``extraordinary circumstances.''

Ms. Halligan was first nominated by President Obama in September 2010, after that accommodation had been reached. I am disappointed that her nomination was filibustered, nearly on a party-line vote, in December of 2011. I urge my colleagues to allow an up-or-down vote on Ms. Halligan's nomination.

I would challenge my colleagues who oppose an up-or-down vote to come to the floor and explain the extraordinary circumstances that would prevent an up-or-down vote on Ms. Halligan's nomination. She is extremely well qualified for this position, and I will support her nomination.

The Senate Judiciary Committee favorably reported her nomination last month. The American Bar Association's Standing Committee on the Federal Judiciary unanimously rated Ms. Halligan ``well qualified'' to serve on the DC Circuit--the highest rating from its nonpartisan peer review.

Ms. Halligan received her A.B. from Princeton University and her J.D. from Georgetown University Law School. After law school, she clerked for Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on the DC Circuit, the court to which she has now been nominated.

After working in private practice, Ms. Halligan joined the New York State attorney general's office. She began working in the office as the first chief of the office's Internet Bureau, where she worked to protect consumers against Internet fraud and safeguard online privacy. She was ultimately promoted to the position of solicitor general, a position she held for 6 years. The solicitor general is basically the top attorney for the State of New York.

In that capacity she managed a staff of nearly 50 appellate attorneys litigating in State and Federal appellate courts. Her responsibility included handling cases of public corruption and judicial misconduct.

She then became a leading appellate lawyer in private practice at a national law firm, serving as counsel of record for a party or amicus curiae in nearly 50 matters before the U.S. Supreme Court.

She is well qualified for the position to which President Obama has nominated her.

She is currently general counsel at the New York County district attorney's office, an office that investigates and prosecutes 100,000 criminal cases annually in Manhattan. In her current position, she is focused on reducing crime, protecting victims of domestic

and sexual violence, and reviewing so-called cold cases that remain unsolved.

Most of Ms. Halligan's career has been dedicated to public service and law enforcement. She has also made time over the years to devote substantial time to pro bono work, including representing the evacuees from Hurricanes Katrina and Rita who were in danger of losing their rental assistance benefits.

She has also served as pro bono counsel to the Board of Lower Manhattan Development Corporation, the entity that is overseeing the rebuilding of Lower Manhattan following the terrorist attacks of September 11, 2001.

She has her priorities straight. She is an outstanding attorney. She has used a lot of her time to help people less fortunate receive free legal services as a result of her participation.

Ms. Halligan has received widespread support from law enforcement and legal professionals across the political spectrum which I understand will be made part of the Record, so I will not repeat those statements now.

I have heard only two substantial reasons in opposition to her nomination. Let's review those two points that have been raised to see whether they are extreme circumstances that warrant a vote to support a filibuster. Last time we had over 40 Senators who supported the filibuster basically blocking an up-or-down vote. We had an accommodation that would only be used for extraordinary circumstances. Let's take a look at the two cases that have been made about why those extraordinary circumstances may exist--and, I will submit, they do not exist.

One argument is that Ms. Halligan is a liberal advocate who cannot set aside her personal views on issues, including the second amendment. The other argument is that the D.C. Circuit has too low a caseload to justify additional judges.

Ms. Halligan was questioned about her views on the second amendment issues during her Senate Judicial Committee hearing. She testified, both at her hearing and in response to written questions, that she would faithfully follow and apply the Supreme Court precedent from the District of Columbia v. Heller and McDonald v. Chicago, which held the second amendment protects an individual right to keep and bear arms for self-defense.

When asked by Senator Grassley whether the rights conferred under the second amendment are fundamental, Ms. Halligan answered: ``That is clearly what the Supreme Court held and I will follow that precedent, Senator.''

Some have also criticized her for her position she advocated while solicitor general for the State of New York. In her confirmation hearing, she made it clear she filed these briefs at the direction of the New York attorney general--arguing on behalf of New York State, not her own views. It was her responsibility as solicitor general to represent her client, the State of New York.

Of course, she has worked on controversial issues before the State of New York, such as affirmative action, the death penalty, and same-sex marriage. As New York solicitor general, she argued in support of affirmative action and in defense of the constitutionality of the death penalty because that is what her client's position was and she represented her client. That is what she is supposed to do. That is what a lawyer does, represent her client as best as she can, and she did that well on behalf of her client, the State of New York.

But I will remind my colleagues what Chief Justice Roberts said during his Supreme Court confirmation hearing in terms of attributing the views of a client to an attorney. Chief Justice Roberts testified that:

It's a tradition of the American Bar that goes back before

the founding of the country that lawyers are not identified

with the positions of their clients.

We should apply the same standard when considering Ms. Halligan's nomination, as our legal system requires vigorous advocacy by both sides of a dispute.

I quote Chief Justice Roberts here in part because Ms. Halligan, quite remarkably, has been nominated in 2013 to fill Chief Justice Roberts' former seat in the D.C. Circuit, which became vacant in 2005.

This brings me to the second argument that has been used. I urge my colleagues to consider whether this is an extraordinary circumstance that justifies a vote in support of a filibuster.

The second argument is that this court has a low caseload, which is just not the case. Chief Justice Roberts was elevated from the D.C. Circuit to the Supreme Court in 2005. His seat has been vacant for 8 years, one of the longest circuit vacancies in the country. The D.C. Circuit has four vacancies on the 11-member court. That is one-third of the court that is currently unfilled.

Ms. Halligan has been nominated by the President for the seat formerly held by Chief Justice Roberts, so, of course, the Senate should act as quickly as possible to fill this seat.

The D.C. Circuit is often referred to as the second most important court in the land due to the complexity and importance of its caseload. The court regularly reviews highly technical decisions and rulemaking of Federal agencies that are based in Washington, often without a lower court decision of a Federal district court.

The D.C. Circuit proclaims the final law of the land for many environmental, health, labor, financial, civil rights, and terrorist cases. The Supreme Court only accepts a handful of cases each year, so the D.C. Circuit is often the last word in these cases.

According to the Administrative Office of the U.S. Court, the caseload per active judge in the D.C. Circuit has increased 50 percent since 2005, when this vacancy was created. It was also the year the Senate confirmed President Bush's nominee to fill the 11th seat on the court. Let me repeat that. We in 2005 confirmed President Bush's 11th seat of the 12-seat court. Justice delayed is justice denied.

To remind my colleagues, the Senate confirmed President Bush's nominees for the 9th, 10th, and 11th seats on the D.C. Circuit. Ms. Halligan is President Obama's first nominee to the District Circuit to fill the eighth seat. The Senate confirmed four of President Bush's nominations to the D.C. Circuit, twice filling the 10th seat and once filling the 11th seat.

So there is no extraordinary circumstance that exists. Let's be clear about that. A vote against moving forward is filibustering a judicial nominee in an effort to kill the nominee and not allow an up-or-down vote. There are no extraordinary circumstances that would justify the delay and not allowing us to have an up-or-down vote.

I urge my colleagues to vote for us proceeding and not using the filibuster; to adhere to the agreement that was reached. Again, it was before I got to the Senate. It was the right agreement, that there should truly be an extraordinary circumstance that prevents an up-or- down vote on a judge. It does not exist in this case. President Obama's nominee is well qualified. The court is in desperate need of additional judges, being four seats short today, only two-thirds of the bench having been appointed and confirmed to date. I urge my colleagues to vote in favor of proceeding and then, after we have the nominee before us, I hope my colleagues will join me in supporting the confirmation. I think Ms. Halligan will make an outstanding member of the D.C. Circuit.

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

Mr. President, first let me compliment my colleague from Delaware not only for his typically excellent remarks today but also for his vigilance on these issues. He is a relatively newer member of the Judiciary Committee, but he has jumped into these issues with tremendous eagerness, intelligence, balance, and effectiveness. So I thank him for his great remarks.

I too rise today in enthusiastic support of the nominee to the Court of Appeals for the DC Circuit, Caitlin Halligan. Ms. Halligan has been waiting 23 months for an up-or-down vote. More importantly, the entire country has been waiting to fill this position--a judgeship on the second most important court of the Nation--for 23 months.

The question we are going to answer tomorrow is, Can we take some of our bipartisan good will, our desire to legislate and get things done for the country, and apply it to a nominee who is the very picture of moderation and mainstream legal thinking, a nominee who has dedicated her entire career to public service, and a nominee who would be only the sixth woman to join this court in its 212-year history? That is right--there have only been five women to serve on the DC Circuit in 212 years.

The D.C. Circuit is currently one-third vacant. Four of its 11 slots--37 percent--are without active judges. Ms. Halligan is one of the two nominees for these four slots.

Two years ago, when Halligan was first filibustered, many of my colleagues decided they could not support a cloture motion because she would have been the tenth judge on an 11-member court, a court they perceived as understaffed and overworked. I take issue with the fundamental premise. The D.C. Circuit hears many of the most complex and important cases in the country. The court hears appeals from virtually every regulatory agency, reviews statutes, has jurisdiction over numerous terrorism cases, including those from Guantanamo Bay. But even if I were to accept the faulty premise that the court somehow needs fewer judges than it ever had, the court that hears the most complex cases, the court is now near a crisis point. There are only seven active judges currently sitting. What is more, the caseload per judge has risen by 21 percent--21 percent since the last judge was confirmed, and that was under President Bush's administration.

I think there is now more than compelling evidence that the caseload- based argument against Halligan is gone, and you would have thought our colleagues on the other side of the aisle

would say: OK, four vacancies, the last vacancy filled under Bush, we can now move to support her. But they do not.

What else could possibly prevent a vote on Halligan? Is it her ideology? I submit to my colleagues it cannot possibly be her ideology. If zero is extremely liberal and 10 is extremely conservative, Halligan falls right in the sweet spot of judges who both President Obama and President Clinton have generally nominated, 5s and 4s, maybe even a 6 or two. Opposing Halligan on her ideology, opposing even a cloture vote based on her ideology, can mean only one of two things:

First, that some of my colleagues have misread her record. Let me clear up a few things today. Halligan is not anti-gun nor anti-second amendment. She has clearly said at her hearing she fully supports the individual second amendment right to bear arms as the Supreme Court decided in Heller. Her briefs for the State of New York--which were product liability cases, not second amendment cases--were briefs for a client and not her own views, just as Chief Justice Roberts described his work for clients. In fact, Hallligan, like many of my colleagues, enjoys shooting and does so from time to time on weekends. Anyone who accepted a meeting with her would have discovered this.

Halligan is not anti-law enforcement in any way. She spent most of her career in law enforcement. New York Police Department Commissioner Ray Kelly, hardly a shrinking violet, hardly a wallflower--he is a tough-on-crime guy; that is why I like him so much, and he is one of the most respected law chiefs in the country--has written a letter in full support of her.

Specifically, Halligan has lived with the consequences of terrorism. She lives not far from the World Trade Center site, and she represented the Redevelopment Corporation there in its post-9/11 efforts. She has personally handled terrorism cases in the New York Manhattan office. In her hearing she stated her beliefs regarding the executive's power to detain terrorism suspects.

I have heard evasive nominees. She was not evasive. She gave completely clear answers to every single question that was asked.

The second possible reason my colleagues might decide to oppose cloture for such a reasonable candidate and such a gifted lawyer is that they want to put their own judges on the D.C. Circuit and they would rather leave it vacant than move Halligan. In other words, it is not that Halligan is extreme--unacceptably extreme in her views; it is simply that she doesn't share all their views. It is one thing to fight against certain judicial nominees with the sincere belief that they are outside the judicial mainstream. It is another for my colleagues to fight against a nominee because they disagree with him or her.

I always look for judges, when I nominate them, who are moderate. I don't like judges too far right. That is obvious. But I equally do not like judges too far left. My judicial panel will tell you, if I think a judge is too far left I will not nominate them, because judges at the extremes, whichever extreme, tend to want to make law, not interpret law. The best judges are those who see things clearly and fairly, not through an ideological lens, whether that lens is colored red or blue. Those are judges who understand the law, understand the role of each branch of government, understand the proper balance between State and Federal power, and understand the people who come before the bench.

I say one other thing to my colleagues. I just finished working with a bunch, four of us on each side, on coming up with a compromise so we could work together better. I want to let my colleagues know--I have done it personally with a few--that this vote, the desire to actually filibuster Caitlin Halligan, is causing a lot of consternation on our side. Clearly, this is a judge who deserves an up-or-down vote. One of the reasons that many of my colleagues--myself included--thought we ought to change the rules was because a judge such as Caitlin Halligan, a nominee such as Caitlin Halligan, should not be filibustered. I have respect for my friends on the other side of the aisle, but when they say--one of my colleagues I heard say this morning--that this one brief she signed with a bunch of others was extraordinary circumstances, that did not ring true. If that is extraordinary circumstances, wearing the wrong color tie or the wrong color blouse would be extraordinary circumstances.

She has a long record. They can hardly find anything. They come up with this one brief. They may not like it. But to say it is extraordinary circumstances? No.

I say to my colleagues, I plead with them--we are trying to start off on a good foot here. We are working together better than we have worked in a long time. Each side has to give. Part of the deal is amendments. They are going to get a lot of amendments on the other side of the aisle. But part of our deal is not to block things for the sake of blocking them or because there is another agenda. That goes not just for blocking legislation but for blocking nominees.

It is true in the deal we made, the agreement we made, it was only for district court judges. That could go seriatim. But the spirit of our compromise applies to this court of appeals nominee, and I have not heard a single good reason why she should be filibustered.

People disagree with her. I voted against some of George Bush's nominees because I thought their views were not quite mine, even if they were not extreme. And everyone on the other side of the aisle has the right to do the same. But not filibuster.

This court is a very important court. We know it makes lots of decisions about government. But that does not give license to block a nominee on what seem to be trivial grounds, inconsequential grounds, given her long career.

So again I urge, plead with my colleagues, please reconsider this cloture vote. Please give her the 60 votes she needs so she can come to the floor and get the up-or-down vote she has waited 23 months for. It violates fairness. It violates the comity we are trying to restore in this body. It violates simple justice to vote no on cloture and to filibuster Caitlin Halligan.

I yield the floor.