Court Efficiency Act of 2013

Mr. President, what is the parliamentary situation?

Thank you, Mr. President.

I am glad to hear what my friend from Utah said about voting for this nominee because this is the second time this year the majority leader had to file cloture on one of President Obama's well-qualified nominees to the D.C. Circuit. Sri Srinivasan is not a nominee who should require cloture, and I am glad he is not going to now that cooler heads have prevailed, but neither was Caitlin Halligan. Caitlin Halligan is a woman who is extraordinarily well qualified and amongst the most qualified judicial nominees I have seen from any administration. It was shameful that Senate Republicans blocked an up or down vote on her nomination with multiple filibusters and procedural objections that required her to be nominated five times over the last three years.

Had she received an up or down vote, I am certain she would have been confirmed and been an outstanding judge on the United States Court of Appeals for the District of Columbia. Instead, all Senate Republicans but one supported the filibuster and refused to vote up or down on this woman, who is highly-qualified and would have filled a needed judgeship on the D.C. Circuit. Senate Republicans attacked her for legal advocacy on behalf of her client, the State of New York. It is wrong to attribute the legal positions a lawyer takes when advocating for a client with what that person would do as an impartial judge. That is not the American tradition. That is not what Republicans insisted was the standard for nominees of Republican Presidents but that is what they did to derail the nomination of Caitlin Halligan.

Also disconcerting were the comments by Republicans after their filibuster in which they gloated about payback. That, too, is wrong. It does our Nation and our Federal Judiciary no good when they place their desire to engage in tit-for-tat over the needs of the American people. I rejected that approach while moving to confirm 100 of President Bush's judicial nominees in just 17 months in 2001 and 2002.

Like Caitlin Halligan, Sri Srinivasan has had an exemplary legal career and has the support of legal professionals from across the political spectrum. Born in Chandigarh, India, he grew up in Lawrence, KS, and earned his B.A., with honors and distinction, from Stanford University. He also earned his M.B.A. from the Stanford Graduate School of Business along with his J.D., with distinction, from Stanford Law School, where he was inducted to the Order of the Coif. At Stanford Law School, Sri Srinivasan served as the Note Editor of the Stanford Law Review. After completing law school, he clerked for Judge J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit and for Justice Sandra Day O'Connor on the U.S. Supreme Court.

Sri Srinivasan has experience in private practice, where he served as a partner and chaired the Appellate Practice at O'Melveny & Myers LLP. He has also served in the Office of the Solicitor General during both the Bush and Obama administrations, where he is currently the Principal Deputy Solicitor General. He has argued more than 25 cases before the U.S. Supreme Court and several cases before the U.S. Courts of Appeal. The ABA Standing Committee on the Federal Judiciary unanimously rated him ``well qualified'' to serve on the D.C. Circuit, its highest rating. The Judiciary Committee reported him a week ago by a unanimous 18-to-0 vote. That means every single Republican on the committee who had a chance to review the nominee's record and to ask him questions supported him.

He was first nominated almost 1 year ago--a longer wait than any other current judicial nomination. His Committee hearing was delayed by 4 months from when I first planned on holding it, at the request of the Republicans. Sri Srinivasan has waited long enough, and, given his unanimous support in Committee, there was no reason to delay his confirmation. The Senate confirmed 18 of President Bush's circuit nominees within a week of being reported by the Judiciary Committee, while not a single one of President Obama's circuit nominees has received a floor vote within a week of being reported. Senate Democrats even allowed a vote on a controversial Fourth Circuit nominee within just 5 days of being reported. By that standard, there is no reason not to vote now on Sri Srinivasan. When confirmed, he will be the first Asian American in history to serve on the D.C. Circuit, and the first South Asian American to serve as a Federal circuit judge.

But, regrettably, even after their unwarranted filibuster of Caitlin Halligan, and even after their efforts to delay Sri Srinivasan's confirmation, Senate Republicans are expanding their efforts through a ``wholesale filibuster'' of nominations to the D.C. Circuit by introducing a legislative proposal to strip three judgeships from the D.C. Circuit.

I am almost tempted to suggest they amend their bill to make it effective whenever the next Republican President is elected. I say that to point out they had no concerns with supporting President Bush's four Senate-confirmed nominees to the D.C. Circuit. They did this even though for the previous President--a Democrat--they said we had too many judges there. But as soon as a Republican came in they suddenly found the need and did confirm four judges to the D.C. Circuit. Those nominees filled the very vacancies for the 9th, 10th, and even the 11th judgeship on the court that Senate Republicans are demanding be eliminated now that President Obama has been reelected by the American people. In other words, filling those seats was okay with a Republican President but not okay with a Democratic President. The target of this legislation seems apparent when its sponsors emphasize that it is designed to take effect immediately and acknowledge that ``[h]istorically, legislation introduced in the Senate altering the number of judgeships has most often postponed enactment until the beginning of the next President's term'' but that their legislation ``does not do this.'' It is just another one of their concerted efforts to block this President from appointing judges to the D.C. Circuit.

In support of this effort, Senate Republicans are citing a subcommittee hearing they held back in 1995 on the D.C. Circuit's caseload in an attempt to eliminate the 12th seat during President Clinton's tenure. They are fond of citing the testimony of Judge Laurence Silberman, a Reagan appointee, that he felt the 12th seat was not necessary. What Senate Republicans do not mention is that Judge Silberman believed that 11 judgeships was the proper number on that Circuit, and that the notion that the D.C. Circuit should have only nine judges was ``quite farfetched.'' I would echo those comments, and note that it is beyond farfetched that the same Senate Republicans who cite Judge Silberman's view on the 12th seat are ignoring the rest of his statement and seeking to reduce the court to eight seats. In fact, we have already acted to eliminate the 12th seat from the D.C. Circuit. What Senate Republicans are now proposing during this President's tenure is the elimination of the 11th, 10th, and 9th seats, as well.

In its April 5, 2013 letter, the Judicial Conference of the United States, chaired by Chief Justice John Roberts, sent us recommendations ``based on our current caseload needs.'' They did not recommend stripping judgeships from the D.C. Circuit but state that they should continue at 11. Four are currently vacant. According to the Administrative Office of U.S. Courts, the caseload per active judge for the D.C. Circuit has actually increased by 50 percent since 2005, when the Senate confirmed President Bush's nominee to fill the 11th seat on the D.C. Circuit. When the Senate confirmed Thomas Griffith--President Bush's nominee to the 11th seat in 2005--the confirmation resulted in there being approximately 119 pending cases per active D.C. Circuit judge. There are currently 188 pending cases for each active judge on the D.C. Circuit, more than 50 percent higher.

This falls into a larger pattern that we have seen from Senate Republicans over the past 20 years. While they had no problem adding a 12th seat to the D.C. Circuit in 1984, and voting for President Reagan and President George H.W. Bush's nominees for that seat, they suddenly ``realized'' in 1995, when a Democrat served as President, that the court did not need that judge. When Judge Merrick Garland was finally confirmed in 1997, many Senate

Republicans voted against him, because they had decided that the 11th seat was also unnecessary. Senate Republicans then refused to act on President Clinton's final two nominees to the D.C. Circuit, one of whom now serves on the Supreme Court.

In 2002, during the George W. Bush administration, the D.C. Circuit's caseload had dropped to its lowest level in the last 20 years. During that Republican administration, Senate Republicans had no problem voting to confirm President Bush's nominees to the 9th, 10th, and 11th seats. These are the same seats they wish to eliminate now that Barack Obama is President, even though the court's current caseload is consistent with the average over the past 10 years. Maybe they are suggesting people work harder and more effectively if there is a Democrat in the White House than a Republican, but I suspect they may have a different motive. Even on its own terms, it is apparent this has nothing to do with caseload; it has everything to do with who is President.

Contrary to what Senate Republicans are arguing, the D.C. Circuit does not even have the lowest caseload in the country. The circuit with the lowest number of pending appeals per active judge is currently the Eighth Circuit, to which the Senate recently confirmed a nominee from Iowa, supported by the ranking Republican on the Senate Judiciary Committee. I do not recall seeing any bills from Senate Republicans to eliminate that seat.

So I think it depends more on politics than on judicial independence, and that is not a path to follow. The Federal courts have been too politicized as it is. There have been more filibusters and more blocking of judicial nominations by President Obama, than of nominations by any President of either party in the past. It makes me wonder, what is different about this President from all these other Presidents that he is given such a more difficult time--even the blocking, the filibustering of judges supported by home State Republican Senators.

This kind of political falderal with our Federal judiciary has come at a price. The Federal judiciary is losing the perception of independence it had before because it is being seen as being politically manipulated, even though virtually every Federal judge I have met--almost every Federal judge I have met--nominated by either a Republican or a Democratic President has shown independence.

The public gets a view otherwise, especially when they see a number of judicial vacancies where nominations have been made and even nominees who get through the Judiciary Committee unanimously or virtually unanimously then have to wait for months and months, even a year, to finally get a vote, and then only after we have either had a cloture vote or a threat of a cloture vote.

As I have said, I was Chairman of the Senate Judiciary Committee for 17 months at the beginning of President George Bush's term, and we put through 100 of his nominees. Now, in the other 30 months of his first term, with Republicans in charge, they did better. They put through 105. My point being, of course, that we actually moved his judges faster even than Republicans did when they were in the majority. But now the willingness to cooperate demonstrated there has broken down. Now the rules that worked for a Republican President, we are told, cannot apply for a Democratic President--especially this President.

Moreover, the unique character of the D.C. Circuit's caseload means that it is misleading to compare its caseload to that of the other Circuits as part of this effort to eliminate its judgeships. The D.C. Circuit Court of Appeals is often considered ``the second most important court in the land'' because of its special jurisdiction and because of the important and complex cases that it decides. The Court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11. These cases make incredible demands on the time of the judges serving on this Court. It is misleading to cite statistics or contend that hardworking judges have a light or easy workload. All cases are not the same and many of the hardest, most complex and most time- consuming cases in the Nation end up at the D.C. Circuit.

Former Chief Judge Harry Edwards has said:

[R]eview of large, multi-party, difficult administrative

appeals is the staple of judicial work in the D.C. Circuit.

This alone distinguishes the work of the D.C. Circuit from

the work of other Circuits; it also explains why it is

impossible to compare the work of the D.C. Circuit with other

Circuits by simply referring to raw data on case filings.

Former Chief Judge Patricia Wald has written:

The D.C. Circuit hears the most complex, time-consuming,

labyrinthine disputes over regulations with the greatest

impact on ordinary Americans' lives: clean air and water

regulations, nuclear plant safety, health-care reform issues,

insider trading and more. These cases can require thousands

of hours of preparation by the judges, often consuming days

of argument, involving hundreds of parties and interveners,

and necessitating dozens of briefs and thousands of pages of

record--all of which culminates in lengthy, technically

intricate legal opinions . . . The nature of the D.C.

Circuit's caseload is what sets it apart from other courts.

Judge Laurence Silberman has said: ``I very much agree . . . as to the unique nature of the D.C. Circuit's caseload, and therefore do not believe a direct comparison to the other circuits is called for.''

And Chief Justice Roberts, who formerly served on the D.C. Circuit, has noted that ``about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide,'' and that less time-consuming ``prisoner petitions which make up a notable portion of the docket nation-wide on other courts of appeals--are a less significant part of its work.'' He also described the ``D.C. Circuit's unique character, as a court with special responsibility to review legal challenges to the conduct of the national government.''

The arguments now being made by Senate Republicans to eliminate three seats on the D.C. Circuit are not based on the reality of that court's caseload. Even if we do make these misleading comparisons to other circuits, the arguments ultimately do not withstand scrutiny since other circuits have caseloads that are lower than the D.C. Circuit's. And most do not have the complexity of the cases that come to the D.C. Circuit. So the D.C. Circuit's need for judges will not be met by Sri Srinivasan alone. We must work hard to fill the three additional vacancies currently on that court so the D.C. Circuit can have its full complement of judges to decide some of the most important cases to the American people.

Some have called the D.C. Circuit a court second only to the Supreme Court in its importance. Let's not politicize it. Let's not say here is this rule that applies to a Republican President, and we want an entirely different one with a Democratic President. That does not do the court any good, it does not do the country any good, and it actually is beneath this great body, the U.S. Senate.

Sri Srinivasan is a superbly-qualified, consensus nominee. I am glad the Republican filibuster has come to an end and the Senate is being permitted to vote on this nomination. I will, again, vote in favor of confirmation.

Mr. President, I understand we have a vote scheduled for 2 o'clock.

Mr. President, I do not see anyone else seeking recognition.

I suggest the absence of a quorum.

Madam President, I yield back the remainder of my time and ask for the yeas and nays.

Mr. President, I rise in opposition to any motion to invoke cloture on nominees to the DC Circuit. I am somewhat disappointed that the Senate majority wants to turn to a very controversial nomination next rather than to continue on a path of cooperative confirmations or other important Senate business. It seems to me that scheduling such a controversial vote in the closing weeks of this session of Congress is designed simply to heat up the partisanship of judicial nominations.

My opposition is based on a number of factors.

First, an objective review of the court's workload makes clear that the workload simply does not justify adding additional judges, particularly when additional judgeships cost approximately $1 million-- $1 million--every year per judge.

Second, given that the caseload does not justify additional judges, you have to ask why the President would push so hard to fill these seats. It appears clear that the President wishes to add additional judges to this court in order to change judicial outcomes.

Third, the court is currently comprised of four active judges appointed by a Republican President and four active judges appointed by a Democratic President. There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.

I will start by providing my colleagues with a little bit of history regarding this particular seat on the DC Circuit.

It may come as a surprise to some, but this seat has been vacant for over 8 years. It became vacant in September 2005, when John Roberts was elevated to Chief Justice.

In June of 2006, President Bush nominated an eminently qualified individual for this seat, Peter Keisler. Mr. Keisler was widely lauded as a consensus bipartisan nominee. His distinguished record of public service included service as Acting Attorney General. Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote. The vote never happened.

When he was nominated, Democrats objected to even holding a hearing for the nominee based upon concerns about the workload of the DC Circuit.

First, I would like to remind my colleagues that in 2006 Democrats argued that the DC Circuit caseload was too light to justify confirming any additional judges to the bench. Since that time, do you know what happened. The caseload has continued to decrease.

In terms of raw numbers, the DC Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals. In 2005 that number was 1,379. Last year it was 1,193--a decrease of 13.5 percent.

There are a lot of different ways to look at these numbers, but perhaps the best numbers to examine are the workload per active judge. The caseload has decreased so much since 2005 that even with two fewer active judges, the filing levels per active judge are practically the same. In 2005, with 10 active judges, the court had 138 appeals filed per active judge. Today, with only 8 active judges, it has 149. This makes the DC Circuit caseload levels the lowest in the Nation and less than half the national average.

It has been suggested that there are other circuits, namely the Eighth and the Tenth, that have lighter caseloads than the DC Circuit. That is inaccurate. The DC Circuit has fewer cases filed and fewer cases terminated than either the Eighth or the Tenth Circuit.

Cases filed and cases terminated measure the amount of appeals coming into the court and being resolved. Some of my colleagues have been arguing that the Eighth and the Tenth Circuits are similar to the DC Circuit based upon the comparison of pending cases. But cases pending does not measure how many cases are being added and removed from the docket.

When looking at how many cases are added or filed per active judge, the DC Circuit is the lowest with 149. It is lower than the Eighth Circuit's 280 and the Tenth Circuit's 217. When looking at the number of cases being terminated by each court, the DC Circuit is once again the lowest at 149. Again, the Eighth Circuit and the Tenth Circuit courts are much higher at 269 and 218.

Let me mention one other important point about pending appeals and the statistics my colleagues use. Several of my colleagues said on the floor yesterday that in 2005 there were only 121 pending appeals per active judge. That number seemed a little odd to me, so we looked into it a bit further, what the situation was in 2005. In order to arrive at that number, my colleagues appear to be taking the total appeals for 12 months ending June 30, 2005, and dividing them by 11 active judges.

As it turns out, there were only 9 active judges for almost that entire 12-month period. Janice Rogers Brown was sworn in on June 10, 2005, and Judge Griffith was sworn in June 29, 2005. As a result, during that 12-month period there were 10 active judges for a total of only 19 days. There were 11 active judges on the DC Circuit for a grand total of 1 day.

A few months later in 2005, the court was back down to nine after Judge Roberts was elevated to the Supreme Court and Judge Edwards took senior status.

This is how hard pressed the other side is to refute what everyone knows to be true: The caseload of the DC Circuit is lower now than it was back in 2005. In order to have a statistic that supports their judgment, the other side is claiming there were 11 active judges for that 12-month period, while that claim was true for only a total of 1 day.

The bottom line is this: The objective data clearly indicates the DC Circuit caseload is very low and that the court does not need additional active judges. That is especially true if you use the standard Senate Democrats established when they blocked Mr. Keisler.

In addition to the raw numbers, in order to get a firsthand account, several months ago I invited the current judges of that court to provide a candid assessment of their caseload. What they said should not surprise anyone who has looked at this closely. The judges themselves confirmed that the workload on the DC Circuit is exceptionally low, stating, ``The court does not need additional judges.'' And, ``If any more judges were added now, there wouldn't be enough work to go around.''

Those are powerful statements from the sitting judges in that circuit. Given these concerns, it is difficult to see why we would be moving forward with additional nominations, especially in a time when we are operating under budget constraints. Unfortunately, the justification for moving forward with additional DC Circuit nominees appears to be a desire and an intent to stack the court in order to determine the outcome of cases this court hears.

It is clear the President wants to fill this court with ideological allies for the purposes of reversing certain policy outcomes. This is not just my view. It has been overtly stated as an objective of this administration.

I would quote along this line a Washington Post article, ``Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.''

We have a President who says: If Congress will not, I will. How do you stop that? The courts are the check on that. Even a member of the Democratic leadership admitted on the Senate floor that the reason they need to fill these seats was because, as he saw it, the DC Circuit was ``wreaking havoc with the country.''

This is perplexing, given the current makeup of the court. Currently, there are four Republican-appointed judges, and, with the most recent confirmation, there are now four Democratic-appointed judges. Apparently some on the other side want to make sure they get a favorable outcome of this court.

I have concerns regarding filling seats on this court which clearly has a very low caseload. I have greater concerns about this President's agenda to stack the court and to upset the current makeup simply in order to obtain favorable judicial outcomes because: If Congress will not, I will.

Given the overwhelming lack of a need to fill these seats based upon caseload and especially considering the cost to the taxpayers of over $1 million per judge per year, I cannot support this nomination and urge my colleagues to reject it as well.

I yield the floor.

Mr. President, I wish to share some thoughts about the filling of the District of Columbia Circuit Court of Appeals judgeships. I have been involved in that issue for well over a decade. We started looking at the case numbers when President Clinton was in office. I, along with Senator Chuck Grassley, both Republicans, blocked President Bush from filling a vacancy, because that court did not need another judge and they wanted to fill it. Let's be frank. Presidents want to fill the DC Circuit Court of Appeals because they think they can shift the balance there and be able to advance their agenda throughout the judicial process because a lot of key cases are filed there, and lobbyists and outside forces that care about judges want the Presidents to put their kind of people in those positions--maybe even their law partner or their friend or their political buddy on that court. But there are some great judges on the court. But I am Ranking Republican on the Budget Committee also. I serve on the Judiciary Committee and on the Budget Committee. We have no money in this country to fund a judgeship that is not needed.

The last time we were able to move one of those judges to the Ninth Circuit where the position was needed. Today, it is clear that the caseload for the DC Circuit continues to fall. The number of cases per judge in the DC Circuit continues to decline. Senator Grassley has been a champion of this issue for years. He chaired the court subcommittee of the Judiciary Committee. I chaired it after he did. We have seen these numbers.

Senator Durbin says, Oh, it is a shame. It is a shame these nominees don't get confirmed. As Senator McConnell noted, it was a shame that Peter Keisler, a fabulous nominee, didn't get confirmed. But, in all honesty, the court didn't need that slot filled and they don't need any of the three slots today that are vacant. They do not need to be filled. Congress has no responsibility to fill a vacancy that is not needed, and we shouldn't do it. Each one costs about $1 million a year. That is what it costs to fill a judgeship.

We have needs around the country. We have certain needs around the country, and we are going to have to add judges. Why would we fill slots with judges we don't need and not fill slots with judges we do need? That is my fundamental view about it. I will just say this: It is not going to happen. We are not going to fill these slots. This country is in deep financial trouble.

The majority basically is saying: Oh, the Budget Control Act and, oh, we have cut to the bone. We can't find another dime in savings. Do you know what the problem is, America? You haven't sent us enough money. If you would just send more money to Washington, we could spread it around and everything would be fine.

This is basically what we are hearing from the leadership: No more cuts. In fact, the Budget Control Act reduced spending too much. Oh, this is critically important. Every dollar we spend is critically important and we can't reduce a dime of it or even the growth of it. That is what we have been hearing: Send more money to Washington. We want to raise taxes. We are open about demanding increases in taxes to fund whatever it is we want to spend.

Is there any waste and abuse in this government? There absolutely is. Look at this chart. Senator Durbin is on the Judiciary Committee. He has been involved in this. He knows these numbers. There is nothing phony about what I am showing my colleagues today. This is absolute fact: Total appeals filed per active judge. These are the judges on the court today. The DC Circuit has eight judges. They have eight judges. The number of appeals filed per judge in their court is 149, and the average per circuit judge in America is 383. The average is 2\1/2\ times that number. We do not need to fill these slots.

Look at the Eleventh Circuit. They have vacancies, but at this point they are doing almost 800 cases per judge per year. Think about that. In the Second Circuit, which is Manhattan--a very important circuit with very complex cases--there are more than 2\1/2\ times the number of cases than the DC Circuit. Remember, this is the current number of judges, I say to my colleagues. This isn't if we were to add three more judges. If we added three more judges, it would be a little over 100 cases per judge, not 149. This is absolute fact. They take the entire summer off. No other circuit does this. They have canceled oral arguments they had scheduled because there were no cases to argue. They take the summer off.

I talked to one circuit judge in another circuit who said: At least one of

the judges in the DC Circuit goes around the country sometimes and helps out, but none of our judges can because we are so busy we don't have time to do it.

Most of our judges are working very hard. I am a total believer in the integrity and the value of the Federal judiciary. I respect them greatly. They do important work. But it has just so happened in the course of our American system that the DC Circuit is at a point where it has the lowest caseload per judge in decades, of any circuit and it needs to be fixed and the number of cases continues to decline.

So what I would say to my colleagues is I believe we should give deference to the President in the nomination of judges. I voted for, I am sure, close to 90 percent of the nominations the President has submitted. I voted for almost 90 percent, I would suggest. But I am not going to support three judges we don't need. The last thing we need to be doing is burning on the Mall of the United States of America $3 million a year to fund judgeships we don't need. There are other places in this government we can cut wasteful spending as well, but this one highlights the situation.

I suggest to my colleagues this is a test to this Senate. This is a test for all of the Members of the Senate. If we say there is no place to save money in Washington; if we say we have found every bit of waste, fraud, and abuse there is--well, look at this court.

I am not condemning any of the nominees. I am not complaining about their quality or their ability. I am saying the taxpayers of America should not have extracted from them another $3 million a year to fund three judges that absolutely are not needed, particularly when we have legitimate needs in other courts around the country that need more judges.

Look at the Eleventh Circuit, my circuit: Almost 800 cases per judge filed. This circuit, the DC Circuit, 149, and they want three more judges--not so.

I believe we have a 10-minute limit. How much time remains?

So, in conclusion, I appreciate the opportunity to be here. It looks as though we will vote on the Millett nomination maybe later today. With no personal criticism of that nominee in any way, I think it is important for us to say we just don't need these slots. We are not going to fill them. Not one of the three needs to be filled. We are not going to fill any of them. We are going to honor the finances of the American people.

Once again, I express my appreciation to Senator Chuck Grassley, the ranking member of the Judiciary Committee, who has led the fight on this issue for a number of years. I have worked with him on it. We have legislation to transfer these judgeships to other places. That is what we should be doing, moving them to where they are needed. It has been great to work with Senator Grassley.

I thank the Chair and yield the floor.

Mr. President, if the Senator will yield for an inquiry, under the UC were we going to divide 30 minutes per side? Was that the intent of the unanimous consent request I made earlier?

In the usual form. All right.

Madam President, I voted for this nominee out of committee. I will vote for this nominee on the floor of the Senate. He is well qualified for this position.

I come to the floor not to repeat what a lot of other people have said about this nominee, but the process that was connected with arranging the vote for today's vote. Basically I want to speak about the needless shenanigans that have gone on before we get to this point where we vote at 2 o'clock.

Today's nominee for the D.C. Circuit was voted out of committee 1 week ago, on May 16, a unanimous vote of 18 to 0. He was placed on the Executive Calendar 3 days ago, on Monday, May 20. One day later, on May 21, the Republicans cleared this nominee to have an up-or-down vote when we returned from the Memorial Day recess, but the majority leader was not content to take yes for an answer. One day after this nominee was placed on the Executive Calendar and after Republicans agreed to an up-or-down vote, the majority leader chose to file cloture.

Why file cloture? Why would the majority leader do that on a nominee whom the minority party, the Republicans, were ready and willing to vote on, backed up by the fact that every Republican on the committee voted for this nominee?

There is only one plausible answer: That is part of the majority's attempt to create the appearance of obstruction where no obstruction ever existed. It is pure nonsense. It is a transparent attempt to manufacture a crisis, a crisis that does not exist. The fact of the matter is there is no obstruction and particularly no obstruction on this nominee, and the other side knew it before they filed cloture.

This morning in his opening remarks the majority leader tried to argue he has had to file cloture 58 times. But what the majority leader did this week illustrates precisely why that claim is completely without merit.

What the Majority Leader did fits neatly into the Democratic Majority's playbook.

First, file cloture for no apparent reason, none whatsoever. And then immediately turn around and claim: See, look everybody, we had to file cloture.

The fact is, we are confirming the President's nominee--all nominees--at a near-record pace. After today, the Senate will have confirmed 193 lower court nominees. We have defeated only two. That is 193 to 2, which in baseball terms is a .990 batting average. Anybody would agree that is an outstanding record. Who could complain about 99 percent?

After today--this year alone, the first year of the President's second term--the Senate will have confirmed 22 judicial nominees. Let's compare that to the previous President's first year of his second term--President Bush--when there was a Democratic Congress. In that same period of time in 2005, the Senate had only confirmed four nominees. So that is a record of 22--the first year of this President's second term--compared to only 4 for the first year of President Bush's second term.

If we were treating this President in the same way the Senate Democrats treated President Bush in 2005, we would not be confirming the 22nd nominee, we would be confirming only the 4th. So it should be clear to everyone that these are needless shenanigans.

Anyway, based on that record, what can the Senate Democrats possibly complain about? The bottom line is they can't complain--or they shouldn't complain. That is not based upon rhetoric but based on the record of 22 so far this year and 193 total confirmations for this President versus 2 disapprovals.

Of course, because the record is so good, the other side needs to manufacture a crisis, and that is why the other side filed cloture on this nomination just 1 day after it appeared on the Executive Calendar.

Yesterday, when the majority leader was pressed on why he chose to file cloture 1 single day after his nomination appeared on the Executive Calendar, he pointed to the fact that the nominee was first nominated in the year 2012. But apparently the majority leader was unaware that the chairman of the Judiciary Committee made no effort to schedule a hearing on this nominee until late last year.

Apparently, the majority leader was unaware that by January of this year, we learned the nominee was potentially involved in the quid pro quo that Mr. Perez--the President's nominee for Labor Secretary-- orchestrated between the Department of Justice and the city of St. Paul.

I spoke on this issue last week regarding the deal Mr. Perez struck, where he agreed the Department would decline two False Claims Act cases in exchange for the city of St. Paul withdrawing a case from the Supreme

Court. I am not going to go into those details again, but that is a very serious issue. The Department--and as it turns out Mr. Perez in particular--bartered away a case worth about $200 million of taxpayers' money to come back into the Federal Treasury under the False Claims Act. To have that case withdrawn is a pretty serious matter.

As it turns out, the nominee before us today happened to be the lawyer in the Solicitor General's Office who handled the case Mr. Perez desperately wanted withdrawn from the Supreme Court.

So, as would be expected, any Member of the Senate--particularly those who have the responsibility in the minority--needed to know what the nominee knew about the quid pro quo and what Mr. Perez told the committee about that deal.

We needed the documents about this issue, and we needed to speak with the witnesses involved, but the Department was desperate to keep those documents from Congress. They were desperate to keep the witnesses from being involved and interviewed.

The bottom line is that the Department of Justice dragged its feet for months. If the Department of Justice had turned over those documents and made witnesses available way back when we asked for them, the hearing for this nominee could have been one of the first we had this year. Instead, the Department of Justice chose to try their best to keep Congress from getting to the bottom of that quid pro quo, and, frankly, Mr. Perez's involvement in that matter.

If the majority wishes to complain about the nominee having his hearing in April rather than February, they should pick up the phone and call those in charge at the Department of Justice and ask: Why didn't you give Congress the information they needed?

It wasn't the Senate Republicans who withheld the documents, it was the Department of Justice. It wasn't Senate Republicans who held up the nominee's hearing, it was the Department of Justice.

The bottom line is that the Senate is processing the President's nominees exceptionally fairly. I will not repeat those statistics because I have already gone through them in this speech and in previous speeches.

This President is being treated much more fairly than Senate Democrats treated President Bush in 2005.

The fact is this: Filing cloture on this nominee--who will probably pass unanimously--was nothing but a transparent attempt to create the appearance of obstruction.

As I said, I intend to support this nominee, just as I did in committee, and I encourage my colleagues to support the nomination as well.

But as we move forward on these nominees, I wish we could stop these needless shenanigans. I wish the other side would stop shedding those crocodile tears. The statistics of approval by this Senate of judicial nominees, which is 193 to 2, is no justification for any crocodile tears whatsoever.

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

Mr. President, just a parliamentary inquiry: I have 10 minutes allocated to me?

Thank you very much, Mr. President.

I rise to address the candidacy of Congressman Mel Watt to be Director of the Federal Housing Finance Agency as well.

Let me preface my comments by making it very clear. I know Congressman Mel Watt. He is a good man. I served with him in the House. We served on the Banking Committee together. I know for many years he has been and continues to be a passionate advocate for increasing taxpayer subsidies for housing finance, and I have never once doubted his sincerity, his commitment, or his passion for working for his constituents and also for disadvantaged people generally. Having said that, while Mel Watt is certainly a good man, I think this is the wrong job for this good man, and I want to explain why.

I think it is useful to first consider the massive size of the institutions that the Federal Housing Finance Agency, the FHFA, regulates. Fannie Mae, Freddie Mac, the Federal Home Loan Banks combined are enormous.

Fannie and Freddie together hold 48 percent of all the outstanding mortgages in the United States of America. Last year, they guaranteed almost 80 percent of all the new mortgages that were issued. Combined, Fannie and Freddie have assets that are nearly $5.2 trillion--this is much larger than the Federal Reserve--which have just made themselves into an enormous institution. Combined, Fannie and Freddie are more than twice as big as JPMorgan Chase, the biggest bank in America. In addition to being very large, they are enormously complex, and they are at the center--in fact, they are the housing finance market of the United States of America.

So they are enormously large, they are enormously complex. And the post we are talking about here--the directorship of the regulator--has virtually unchecked powers. The legislation that creates this post, that creates this agency and the head of this agency, empowers the Director enormously. Let me quote from the statute. The Director's powers include ``all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director'' of the entity. In plain English that means this person has the power of the entire board of directors, the CEO and all the management, and the regulatory agency that controls it all. There is no parallel in our country for an institution where so much power is concentrated in one person.

In addition, there is no congressional oversight. The FHFA does not depend on Congress for appropriations. It gets its money from fees from the entities it regulates. So Congress has no control, no authority, once a person is confirmed in this post, and they are confirmed for a 5-year term and can only be removed for cause. So it is unchecked power on an enormous scale.

Now, precisely because of the unchecked power over these enormously large, important, powerful, and complex institutions--precisely for that reason--the statute stipulates very clearly that the person holding this post has to be someone who is technically competent because of their own history, because they have been a practitioner in this field. The legislation demands that, and for good reason. Specifically, the law insists that the Director shall have a ``demonstrated

understanding of financial management or oversight, and have a demonstrated understanding of capital markets, including the mortgage securities markets and housing finance.''

So we are not talking about being automatically qualified by virtue of being a Member of Congress. One needs to be a practitioner. I will give you one quick example of many why central to the management of the enormous complexity of these institutions is the use of complex derivatives, which manage the interest rate risk inherent in these portfolios. Fannie and Freddie are the world's biggest users of derivatives for this risk management purpose. Understanding how these work, the risks that are inherent in them, and how it affects the broader capital markets is absolutely essential. Yet in December 2011, Mel Watt said this. I quote Congressman Watt:

For all of the last term of Congress, I sat in the

Financial Services Committee, and a lot of these arguments

that I am hearing today are the same arguments that I heard

about derivatives. Well, I didn't know a damn thing about

derivatives. I am still not sure I do.

Derivatives are central to the management of these institutions.

There is another reason why this statute insists on an experienced practitioner and a technocrat rather than a politician, and that is because pursuing a political agenda at these institutions is enormously dangerous. Look at the damage that it did the last time. Congressman Watt was an advocate for all of the policies that helped to drive Fannie and Freddie into the conservatorship that cost taxpayers so much money. He supported lower capital standards, lower downpayments, lower underwriting standards, loan forgiveness. He was opposed to tougher regulations, even when it was becoming clear that these institutions were on a downward spiral and soon would need a massive bailout.

Unfortunately, Congressman Watt still supports these policies. And if he were confirmed as the Director, with all of these powers, he could unilaterally reinstitute these policies.

Now, fortunately, at the moment, we have a Director who understands that his obligation to the taxpayer precludes these misguided policies. I am deeply concerned that if confirmed, Congressman Watt would reverse that practice and reinstitute some of these very damaging and dangerous policies.

So for these reasons and, I would say, in respect and in honoring the clear language of the statute, we have an obligation to not confirm Congressman Mel Watt. While I know he is a very good man, I think he is the wrong person for this job. So I would urge my colleagues to vote no on cloture later today.

I yield the floor.

The Nomination of Mel Watts