Floor Statements

As both Chairman and Ranking Member of the Judiciary Committee during the last several years, I have worked with Senate Republicans to consider judicial nominees well into presidential election years, I have made earnest efforts to make the confirmation process more transparent and fair, I have ensured that the President consults with home state Senators before submitting a nominee, and I have opened up the blue slip process to prevent abuses while continuing to respect it.

In the last two presidential election years, we were able to bring the number of judicial vacancies down to the lowest levels in the past 20 years. In 2004 at end of President Bush's first term, vacancies were reduced to 28 not the 77 we have today. In 2008, in the last year of President Bush's second term, we again worked to fill vacancies and got them down to 34, less than half of what they are today. In 2004, 25 nominees were confirmed between June and the presidential election, and in 2008, 22 nominees were confirmed between June and the presidential election.

In 2004, a Presidential election year, the Senate confirmed five circuit court nominees of a Republican President that had been reported by the Committee that year. This year we have confirmed only two circuit court nominees that have been reported by the Committee this year, and both were filibustered. By this date in 2004 the Senate had already confirmed 32 of President Bush's circuit court nominees, and we confirmed another three that year for a total of 35 circuit court nominees in his first term. So far, the Senate has only been allowed to consider and confirm 30 of President Obama's circuit court nominees five fewer, 17 percent fewer while higher numbers of vacancies remain, and yet the Senate Republican leadership wants to artificially shut down nominations for no good reason.

As Chairman of this Committee, I have also assiduously protected the rights of the minority in the judicial nomination process. I have only proceeded with judicial nominations supported by both home state Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. Nor did I accede to the Majority Leader's request to push a Nevada nominee through Committee who did not have the blue slip of the state's Republican Senator. In stark contrast, it was Senate Republicans and the Republican chairman who blatantly disregarded Senate Judiciary procedure by proceeding with nominations despite the objection of both home state Senators. And I have been consistent. I hold hearings at the same pace and under the same procedures whether the President nominating is a Democrat or a Republican. Others cannot say that. So those have been my rules respect for minority rights, transparency, deference to home state Senators, consistent application of policies and practices, and allowing for confirmations well into presidential election years for nominees with bipartisan support.

Personal attacks on me do nothing to help the American people who are seeking justice in our Federal courts. I am willing to defend my record but that is beside the point. The harm to the American people is what matters. What the American people and the overburdened Federal courts need are qualified judges to administer justice in our Federal courts, not the perpetuation of extended, numerous vacancies.

The judicial vacancy rate remains almost twice what it was at this point in the first term of President Bush. I wish Senate Republicans would think more about our responsibilities to the American people than some warped sense of partisan score settling. Vacancies have been near or above 80 for three years. Nearly one out of every 11 Federal courts is currently vacant. Their shutting down confirmations for consensus

and qualified judicial nominees is not helping the overburdened courts who cannot administer justice in an expedient fashion. It is not helping owners of small businesses.

Last week, after his nomination was reported with near unanimous voice vote by the Judiciary Committee approximately three months ago, the Senate was finally able to confirm Judge Kevin McNulty to the District of New Jersey. Despite vacancies still remaining near or above 80, Senate Republicans continue to obstruct and stall nominees on the Senate floor for no good reason. We could easily have confirmed both Judges Shipp and McNulty together three months ago. It is this type of across-the-board obstruction of judicial nominees by Senate Republicans that has contributed to the judicial vacancy crisis in our Federal courts.

Last week, I spoke about the novel excuses that some Senate Republicans have concocted for refusing to allow for votes on nominees. One excuse was that having confirmed two Supreme Court justices, the Senate cannot be expected to reach the 205 number of confirmations in President Bush's first term. Work on two Supreme Court nominations did not stop the Senate from working to confirm 200 of President Clinton's circuit and district nominees in his first term. Similarly, there were two Supreme Court confirmations in President George H.W. Bush's term, and that did not prevent Senate Democrats who were in the Senate majority from confirming 192 of his circuit and district nominees, including 66 in the election year of 1992 alone.

Last week we heard another self-serving misconception of more recent history from the Republican side of the aisle. They claimed that Democrats were responsible for growing judicial vacancies in 2008. The charge was as follows: ``[A]t the beginning of 2008 there were 43 vacancies. So the practice for Democrats who controlled the Senate during that last year of President Bush's term was to allow vacancies to increase by more than 37 percent.'' In fact, what we did in 2008 was to reduce vacancies back down to 34 in October 2008 when the Senate recessed for the year. The increase in vacancies after October and through the remainder of 2008 was not because Senate Democrats were obstructing Senate votes on qualified judicial nominees with bipartisan support as Senate Republicans are today. In November and December 2008 the Senate met on a few days only to address the financial crisis. There were no nominations pending on the Calendar after the election in 2008. Their charge is fallacious. Judicial vacancies have not been as low as 34 or 43 or even the 55 that they stood at when President Obama took office for years. Due to Republican obstruction, President Obama will be the first President in 20 years to complete his first term with more judicial vacancies than when he took office.

Last week Senate Republicans also contended that they have no responsibility for the lack of progress in 2009. In fact, that year ended with 10 judicial confirmations stalled by Senate Republicans. The obstructionist tactics they employed from the outset of the Obama administration had led to the lowest number of judicial confirmations in more than 50 years. Only 12 of President Obama's judicial nominations to Federal circuit and district courts were confirmed that whole year. The 12 were less than half of what we achieved during President Bush's first tumultuous year. In the second half of 2001, a Democratic Senate majority proceeded to confirm 28 judges. Despite the fact that President Obama began nominating judicial nominees two months earlier than President Bush, Senate Republicans delayed and obstructed them to yield an historic low in confirmations. Republicans refused to agree to the consideration of qualified, noncontroversial nominees for weeks and months. And as the Senate recessed in December, only three of the available 13 judicial nominations on the Senate Executive Calendar were allowed to be considered.

By contrast, in December 2001, the first year of President Bush's administration, Senate Democrats proceeded to confirm 10 of his judicial nominees. At the end of the Senate's 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002. By contrast, it took until May 2011, a year and a half later, to complete action on the judicial nominees who should have been confirmed in December 2009 but had to be renominated. Although noncontroversial, several were further delayed by filibusters before being confirmed unanimously. The lack of Senate action on those 10 judicial nominees in 2009 was attributable to Senate Republicans and no one else. Despite the fact that President Obama reached across the aisle to consult with Republican Senators, he was rewarded with obstruction from the outset of his administration. While President Obama moved beyond the judicial nominations battles of the past and reached out to work with Republicans and make mainstream nominations, Senate Republicans continued their tactics of delay.

For Senate Republicans to claim that ``only 13 [sic] judges were confirmed during President Obama's first year'' because of ``decisions made by the Senate Democratic leadership'' and that it was ``the choice of Democrats'' and ``not because of anything the Republican minority could do'' is ludicrous. Senate Democrats had cleared for confirmation the other 10 judicial nominees stalled by Republicans in 2009. Their assertion ignores the facts and the truth. Just as they cannot escape responsibility for their unwillingness to move forward with the 21 judicial nominees ready for a final up-or down vote now before the end of this year, they cannot escape responsibility for what they did in 2009.

Senate Republicans choose to offer weak excuses and blame everyone but themselves for the delays and obstruction in which they have excelled. Their sense of being justified by some view of tit-for-tat is distorted and should be beside the point while vacancies remain so high that the American people and our courts are overburdened. The way Senate Democrats helped reduce vacancies was not by limiting confirmations to one nominee per week, as Senate Republicans have. In September 2008, with Democrats in the majority, the Senate confirmed 10 of President Bush's nominees in a single day, all by voice vote. There were 10 consensus nominees pending on the Senate floor, and we confirmed all of them in minutes. Likewise, in 2002, Senate Democrats joined in confirming 18 of President Bush's nominees in a single day, again by voice vote. I wish Senate Republicans would duplicate that precedent and help clear the logjam of judicial nominees dating back to March who are still awaiting up-or-down votes.

While I am pleased that we will confirm Judge Shipp today, I wish that Senate Republicans would help us confirm the 20 additional judicial nominees who can be confirmed right now. Then we could make real progress in giving our courts the judges they need to provide justice for the American people, just as we did in 1992, 2004 and 2008.

After today's vote, I hope Senate Republicans will reconsider their ill-conceived partisan strategy and work with us to meet the needs of the American people. With more than 75 judicial vacancies still burdening the American people and our Federal courts, there is no justification for not proceeding to confirm the judicial nominees reported with bipartisan support by the Judiciary Committee this year.

Each day that Senate Republicans refuse because of their political agenda to confirm these qualified judicial nominees who have been reviewed and voted on by the Judiciary Committee is another day that a judge could have been working to administer justice. Every week lost is another in which injured plaintiffs are having to wait to recover the costs of medical expenses, lost wages, or other damages from wrongdoing. Every month is another drag on the economy as small business owners have to wait to have their contract disputes resolved. Hardworking and hard-pressed Americans should not have to wait years to have their cases decided. Just as it is with the economy and with jobs, the American people do not want to hear excuses about why Republicans in Congress will not help them. So let us do more to help the American people.

Exhibit 1

[From theatlantic.com, July 16, 2012]

William Kayatta and the Needless Destruction of the Thurmond Rule

(By Andrew Cohen)

Why do Republican leaders still play along with an informal Senate rule

that prevents up-or-down votes on even those judges who have strong

Republican support?

Meet William Kayatta, another one of America's earnest,

capable judges-in-waiting. Widely respected in his home state

of Maine, nominated by President Obama in January to fill a

vacancy on the 1st U.S. Circuit Court of Appeals, eagerly

endorsed by both of Maine's Republican senators, passed for

confirmation to the Senate floor by an easy voice vote in the

Senate Judiciary Committee, Kayatta's nomination instead has

become yet another victim of the Senate GOP's suicidal

tendencies.

The litigants of the 1st Circuit need Kayatta. There are no

serious arguments against him. Yet the Republican leadership

in the Senate has blocked a vote on the merits of his

nomination in obedience to the so-called ``Thurmond Rule,''

an informal practice as self-destructive as was its namesake.

The Thurmond Rule is typically invoked by the opposition

party in a presidential election year to preclude substantive

votes on federal judicial appointments within six months of

Election Day. It is the Senate's version of a sit-down

strike.

In April, just after the Judiciary Committee favorably

passed along Kayatta's nomination to the Senate floor for

confirmation, Maine's junior senator, Susan Collins, had

wonderful things to say about the nominee:

Bill is an attorney of exceptional intelligence, extensive

experience, and demonstrated integrity, who is very highly

respected in the Maine legal community. Bill's impressive

background makes him eminently qualified for a seat on the

First Circuit. His thirty-plus years of real world litigation

experience would bring a much-needed perspective to the

court. Maine has a long proud history of supplying superb

jurists to the federal bench. I know that, if confirmed, Mr.

Kayatta will continue in that tradition. I urge the full

Senate to approve his nomination as soon as possible.

And how did her fellow Republicans respond to her request?

They blew her off. There has been no vote on Kayatta's

nomination and none is scheduled. Instead, last month, Sen.

Mitch McConnell, the Senate Minority Leader, invoked the

``Thurmond rule'' to block floor consideration of

appointment--as well as up-or-down votes on the rest of

President Obama's federal appellate nominees (This in turn,

initially prompted Sen. Collins to blame the Obama

Administration for going too slow in nominating Kayatta in

the first place.)

In theory, the Thurmond Rule is something official

Washington defends as the price of divided government. In

reality, it's another outrageous example of how the Senate

has re-written the Constitution by filibuster. In practice,

in the Kayatta case and many more, the Thurmond rule is the

antithesis of good governance. Your Senate today perpetuates

a frivolous rule which, for the most cynical political

reasons, blocks qualified people from serving their nation.

It's not misfeasance. It's malfeasance.

Just because Strom Thurmond was willing to jump the Senate

off the bridge doesn't mean that today's Senate Republican

leaders had to do likewise.

In a more prudent and practical era in Senate history,

nominees like Kayatta would have been confirmed in days.

Fifty years ago, for example, when another bright Democratic

appointee with strong Republican support came to the Senate

seeking a judgeship, the Judiciary Committee took all of 11

minutes before it endorsed him. Byron ``Whizzer'' White then

served the next 31 years as an associate justice of the

United States Supreme Court. That's wholly unthinkable

today--even with lower federal court nominees.

Now even slam-dunk candidates like Kayatta linger in the

wings waiting for Senate ``consent'' long after the body

already has definitively ``advised'' the executive branch of

how great it thinks the nominee would be as a judge. Can you

imagine the uproar if the Senate ever used its filibuster

power to block the deployment of troops already endorsed by

the Armed Services Committee? Now please tell me the material

difference here. Surely, the judiciary needs judges as much

as the army needs soldiers.

There are currently 76 judicial vacancies around the

country. There are 31 districts and circuits designated as

``judicial emergencies'' because vacancies there have

lingered so long. In the 10th Circuit, what's happening to

Kayatta is happening to Robert Bacharach, who has the support

of Oklahoma's two Republican senators. The Senate also is

blocking Richard Taranto from a Federal Circuit spot even

though he breezed through the Judiciary Committee and has

been endorsed by Robert Bork and Paul Clement. The same goes

for Patty Shwartz in the 3rd Circuit.

This is unacceptable on every level. When we talk about

``false equivalence'' in modern politics the business of

these judges should be the lede. These nominations require no

great policy choices on the part of Congress. They don't come

with thousands of pages of ambiguous legalese disguised as

the language of a federal statute. There is no room for spin.

These nominees are either qualified, or they aren't, and when

they sail out of the Judiciary Committee with voice votes no

one can plausibly say they aren't qualified.

And yet here we are. It would be convenient to blame Strom

Thurmond, one of the most divisive politicians of the 20th

century, for one of the Senate's most divisive rules. But

Thurmond is long gone. And there was never anything about his

rule that demanded it be followed, session after session,

under both Democratic and Republican control. Just because

Strom Thurmond was willing to jump the Senate off the bridge,

in other words, doesn't mean that today's Senate Republican

leaders had to do likewise. But they have.

America has trouble enough today without a senseless Senate

rule that blocks highly skilled, highly competent public

servants from joining government. The nation's litigants in

federal court, burdened by judicial vacancies, already are

waiting long enough to have their corporate disputes decided.

This isn't gridlock. This is destruction. ``I think it's

stupid'' to block good judges from confirmation, Sen. Tom

Coburn said earlier this year. For once, he is right. And

Sen. Collins? Even she's come around. ``I have urged my

colleagues on both sides of the aisle to give Bill the direct

vote by the full Senate that he deserves,'' she said late

last month. Amen to that.

Mr. President, I ask unanimous consent to speak for 1 minute.

I have no objection. In fact, I will give a courtesy to the Senator from Iowa that he did not give to me, and I will be happy to yield 1 minute.

Usually, Mr. President, it has been my experience that in 37 years in this Senate, as the second most senior Member here, if a Senator wants to come and attack another Senator, they have the courtesy of giving him notice before they do. I am sorry my friend from Iowa didn't follow the normal courtesy.

Mr. President, how much time do I have remaining?

Mr. President, I yield to no Member of this body in the fact that I uphold not only the rules but the courtesies of this Senate. As chairman of the Senate Judiciary Committee, I have never cut off a Member of the other party who wished to speak, unlike some of the procedures they followed when they held the chair. I have never refused to have a Member of the other party bring up an amendment, contrary to the procedures they followed when they chaired it.

I believe in the Senate. I believe in the rules of the Senate, but especially I believe in the comity that Thomas Jefferson believed in, in this body; otherwise, the Senate would fall apart.

I yield the floor.

Mr. President, I ask for the yeas and nays.

Mr. President, while the distinguished Senator from Michigan is still on the floor--and she has done such commendable work here, as somebody who brought together the Senate Agriculture Committee on a very complex farm bill, and in a record amount of time got it passed with a heavy bipartisan majority--I think she would

agree with me that is the way we used to and should do legislation.

For the life of me, I cannot understand why any Senator would not be supporting the Senator from Michigan on the bill. We want jobs here in the United States. Everybody will say: We want jobs in the United States. Everybody says they want to have tax laws that actually help this country. So what do they do? By refusing to allow us to go forward, they vote to allow jobs to go overseas. But worse than that, it gives special tax breaks. It is almost like saying: Hey, this company of yours, these jobs you have, come on, I know a great place for you to go overseas. By the way, here is the airplane ticket. Here is the special deal. We are not going to give that to a small business owner in Vermont or Michigan, but we will give that to you to ship your jobs overseas.

Come on, let's get real. If you took a poll of the American people on this: Do you want to close loopholes for shipping jobs overseas or do you want to give encouragement to have jobs here in the United States? I guarantee you, it would be overwhelmingly passed. The U.S. Senate better wake up and say: We will pass it too.

So I thank the Senator from Michigan.

Release of Camp Lejeune Documents

Mr. President, the distinguished Presiding Officer and I are both from Vermont, where we have open and available government. He did in his role as mayor of our largest city. He has encouraged it all the way through.

We know that the ``right to know'' is a cornerstone of our democracy. During my three decades in the Senate, I have urged Democratic and Republican administrations alike to be open and transparent to the American people.

That is why in March I joined a bipartisan group of Members of Congress--Senator Grassley, Senator Burr, Senator Hagan, Senator Bill Nelson, and Senator Rubio--in writing to Secretary of Defense Panetta to request the release of government records regarding the contamination of drinking water that occurred over several decades at Camp Lejeune Marine Base, in North Carolina.

The drinking water contamination at Camp Lejeune was one of the worst environmental disasters in American history to occur at a domestic Department of Defense installation. Unfortunately, the Department of Defense initially refused to provide this important information to the Congress. But I am pleased to report that after I pursued it further with Secretary Panetta, the Department finally provided more than 8,500 files about this issue to the Judiciary Committee on July 9.

I commend Secretary Panetta for accommodating the committee's request for this information. But I believe that much more transparency is needed. I believe it as a U.S. Senator. I believe it as one who believes in transparency. I also believe it as a father of a Marine.

Today, thousands of active and retired Marines who lived on or near Camp Lejeune prior to 1987, and their family members, are extremely interested in learning more about what occurred, and why.

In my own State of Vermont, 402 Vermonters have signed in saying they are looking to their government to provide more information about this calamity.

Open government is neither a Democratic issue nor a Republican issue. It is an American value. It is a virtue that we all have to uphold.

It is in this bipartisan spirit that I announce I will make all the documents the Department of Defense has provided to the Judiciary Committee about what happened at Camp Lejeune available to the public. These documents can be seen on the Judiciary Committee's Web site. Go to www.judiciary.senate.gov. Find out what the documents say about what happened at Camp Lejeune.

To protect the personal privacy of our servicemembers and other private information, information that would be subject to the Privacy Act, has been redacted from these files. But the Marines and any other Americans who have been touched by this environmental disaster deserve complete candor from their government. Our uniquely American tradition of a government that is open, accountable, and accessible to its people demands nothing less.

Again, I thank Senator Grassley, the committee's distinguished ranking member, and Senators Burr, Hagan, Nelson, and Rubio for working closely with me on this important transparency issue.

I say to those Marines, we will find out what happened.

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

Mr. President, I remain concerned about the high price of gasoline that continues to disproportionately hurt working class families, especially those in rural States like Vermont. In Vermont, the average price of gasoline remains above the national average. Despite significant efforts to improve public transportation in the State, many Vermonters must still rely on their cars as the primary mode of transportation. More can and must be done to help families who are struggling to find jobs and put food on the table.

Crude oil accounts for the largest share of the price of gasoline. I am concerned that excessive speculation in the oil market has contributed to a significant rise in the price of gasoline. Congress included important protections to address excessive speculation

in the Dodd-Frank Wall Street Reform and Consumer Protection Act. As a conferee and strong advocate for that law, I have pushed the U.S. Commodity Futures Trading Commission to quickly implement the protections and rules to help curb these abuses.

At the same time, we must ensure that local and regional markets remain competitive and that oil companies do not engage in anticompetitive practices. While prices have eased somewhat nationally this summer, there have been concerns raised about price disparities in the cost of gasoline in Vermont. Vermont prices remain higher than the national average and residents of northern Vermont are paying even more than their neighbors just one or two towns to the south. I support the efforts by the State of Vermont, Senator Sanders and Federal regulators to look into whether these differences can be explained by market conditions, and to take action if they cannot. Such serious allegations should be properly investigated by the Oil and Gas Price Fraud Working Group at the U.S. Department of Justice and the Federal Trade Commission.

The largest oil companies raked in $137 billion in profits last year alone, while also taking in billions in taxpayer subsidies. Repeated efforts to repeal these ridiculous subsidies by myself and a majority of the Senate have been filibustered by friends of the big oil industry. It is these large oil companies and those working at the wholesale level that are reaping tremendous profits, while many of our independent and locally owned stations are struggling to make ends meet. Regrettably, many of these same local stations are forced to shutter their doors when the large oil chains undercut their business.

The real cost of high gas prices is more than just the bill at the pump. These prices force families to choose between filling their gas tanks and putting food on the table. And they mean rising food prices due to increased shipping costs. These are costs that working families, particularly in these difficult economic times, often cannot absorb. I will continue to push for creative, long-term solutions to relieve the pain at the pump.

Mr. President, I appreciate what the Senator from Rhode Island has done. He has been a champion on this not only in the public forum on this floor of the Senate, but he has been a champion in the cloakrooms, in the committee rooms; everywhere we have been speaking about it, he has been most consistent. The people of Rhode Island are very fortunate to have somebody with such a strong voice.

For the last two and a half years, the American people have seen the devastating effects of the Citizens United decision. That decision by five Supreme Court Justices overturned a century of laws--a century of laws that have been supported by Republicans and Democrats alike-- designed to protect our elections from corporate

spending. And what these five men did is they unleashed a massive flood of corporate money into our elections.

Now, many of us in the Congress and around the country were worried at the time of the Citizens United decision that it turned on its head the idea of government of, by, and for the people. We worried that the decision created new rights for Wall Street at the expense of people on Main Street. We worried that powerful corporate megaphones could drown out the voices and interests of individual Americans. I wish I didn't have to say this, but two and a half years later, it is clear these worries were supremely valid, and the damage is devastatingly real.

Since the Citizens United decision struck down longstanding prohibitions on corporations from direct spending in political campaigns, hundreds of millions of dollars from undisclosed and unaccountable sources have flooded the airwaves with a barrage of negative advertisements. Nobody who has watched our elections or even tried to watch television since the Citizens United decision can deny the enormous impact that decision has had on our political process. Everywhere I go in Vermont, people say: Who is behind these ads? Many of them find them offensive in Vermont.

They say: Who is behind these ads?

I say: I don't know.

They say: Well, you are a U.S. Senator. What do you mean you don't know?

I say: Because the Supreme Court has allowed people to hide who is paying for them, even though they are doing it to advance their economic interests, often to the exclusion of everybody else's; even though they are wanting to give themselves an advantage that all the rest of the people won't have.

Nobody who has strained to hear the voices of the voters lost among the flood of noise from super PACs can deny that by extending first amendment rights in the political process to corporations, the Supreme Court put at risk the rights of individual Americans to speak to each other and, crucially, to be heard. Yet, just last month, without a hearing--without even allowing Americans' voices to be heard--the same five Justices who in Citizens United ran roughshod over longstanding precedent to strike down key provisions of our bipartisan campaign finance laws doubled down on Citizens United when they summarily struck down a 100-year-old Montana State law barring corporate contributions to political campaigns--a State law that had been enacted by the people of Montana because they had seen the pervasive and sometimes evil effects of these corporate contributions. In doing so, they broke down the last public safeguards preventing corporate megaphones from drowning out the voices of hard-working Americans.

There is no doubt about it. In our State of Vermont, we have a town meeting day. People come in. They can express any view they want, but you know who is expressing it. You know whether it is John Jones or Mary Smith. You know if it is the head of a local company or somebody speaking for a workers union. You know who is speaking, and you know that you have just as much right and ability to answer as they did in speaking. Now we are saying: No, no; unless you are a wealthy corporation willing to hide who is speaking, you are not going to be heard.

The Supreme Court decisions not only go against longstanding laws and legal precedence but also common sense. Contrary to at least what one candidate has said, corporations are not people. Corporations are not the same as individual Americans. Corporations do not have the same rights, the same morals, or the same interests. Corporations cannot vote in our democracy. We could elect General Eisenhower as President, but General Electric and General Motors cannot serve as the President. But if you go to the logic of these Supreme Court decisions, it virtually says: Let's elect General Electric or General Motors as President. The fact is, these are artificial legal constructs meant to facilitate business. The Founders understood this. The Founders knew we were not going to allow corporations either to vote or to take over our electoral process. Vermonters and Americans across this great country have long understood this. Apparently five members of the Supreme Court did not understand this.

Like most Vermonters, Republicans and Democrats alike, I strongly believe something must be done to address the divisive and corrosive decision of the Supreme Court in Citizens United. That decision was wrong, the damage must be repaired, and the harmful ways it is skewing the democratic process must be fixed. That is why I held the first congressional hearing on that terrible decision in the weeks after it was issued. That is why we have scheduled a hearing next week in the Senate Judiciary Committee's constitution subcommittee, led by the distinguished Senator from Illinois, Mr. Durbin, to look at proposals for constitutional amendments to address Citizens United.

But today, without waiting the years and years and years that a constitutional amendment might take, the Senate can take action. By passing the DISCLOSE Act, we can restore transparency and accountability to campaign finance laws by ensuring that all Americans know who is paying for campaign ads. It is a crucial step toward restoring the ability of Vermonters and all American voters to be able to speak, be heard and to hear competing voices, and not be drowned out by powerful corporate interests. For any of us who are in an election, we expect our opponent to be able to speak out, and the public expects it. They want to hear from both of us. And they should. That is why we have debates. That is why we have candidate forums. But it all becomes irrelevant if you have a huge megaphone, paid for by anonymous donors, anonymous corporations.

When I cosponsored the first DISCLOSE Act after the Supreme Court's decision in 2010, I hoped Republicans would join with Democrats to mitigate the impact of the Citizens United decision. From the depths of the Watergate scandal forward, until only recently, the principle of disclosure was a bipartisan value. A clear-cut reform such as the DISCLOSE Act would have easily drawn bipartisan support in those days after Watergate. I hoped that Senate Republicans, like my friend from Arizona, Senator John McCain, who once championed the bipartisan McCain-Feingold campaign finance law, which I supported, would join with us to help ensure that corporations could not abuse their newfound constitutional rights. Regrettably, every single Republican joined to successfully filibuster the DISCLOSE Act in 2010, and despite a majority in the House and a majority in the Senate and the American people voting and being in favor of passing this disclosure law, it fell one vote short from breaking a Republican filibuster in the Senate--one vote, but not a single Republican would stand and help us restore some of the core disclosure aspects of McCain-Feingold.

Senate Republicans are continuing their filibuster of this commonsense legislation. By filibustering it, they deny the American people an open, public, and meaningful debate on the importance of transparency and accountability in our elections. Last night they again filibustered this bill even though a majority in this Senate voted in favor of it. In fact, they refused to even proceed to debate on the bill in the Senate.

Despite the clear impact of waves of unaccountable corporate campaign spending that has led Senator McCain to now concede that super PACs are ``disgraceful,'' a minority in the Senate, consisting exclusively of Republicans, continue to prevent passage of this important law. Why are they against this bill? Why, when so many Senators of both parties used to champion disclosure laws and Senators of both parties used to support knowing who is paying for campaign ads, do they continue to prevent us from having a debate? Why, when the Supreme Court made clear even in the Citizens United decision that disclosure laws are constitutional, does the Senate Republican leadership insist on stalling the reform?

What happened to those Americans who said that our elections should be open? What happened to those Americans who said we ought to know who is involved in these elections? There should be only one thing secret in our elections: your secret vote, your right to vote in secret--one person, one vote. But nothing should say that there

should be a powerful, hidden, secret hand overwhelming the voters of America in telling them how they should vote.

We know disclosure laws can work because they do work for individual Americans donating directly to political campaigns. Mr. President, when you or I give money directly to a political candidate, our donation is not hidden. It is publicly disclosed. And that candidate--people can look at who has supported him or her, and that goes into their thoughts as to whether they will vote for them. Yet those who oppose the DISCLOSE Act are standing up for special rights for corporations and wealthy donors--rights, Mr. President, you and I do not have.

We have seen since Citizens United that the line the Supreme Court imagined existed between individual campaigns and the super PACs is an all but meaningless one, as super PACs have poured more and more money into influencing election campaigns. In reality, super PACs have simply become a way to funnel secret, massive, nondisclosed donations to political campaigns. The Citizens United decision has allowed corporations and large donors to evade the disclosure laws that apply to you and me by giving money to groups that then fund super PACs, as a way of laundering the money and keeping secret the real funders of these campaign ads.

If the average Vermonter wants to contribute to my campaign or my opponent's campaign, that is going to be public. People are going to know, and they will make their decisions. Part of their decision will be based on who supports us. But when you have a secret--a secret-- wealthy entity supporting you, nobody knows who it is. And none of these entities use their real names. They are always for good government, for clean air, for motherhood and apple pie, for the sun rising in the east and setting in the west. There is no reason those funding these super PACs should not be bound by the same disclosure rules for giving directly to campaigns. Public disclosure of donations to candidates has never chilled campaign funding, and it has never prevented millions of Americans from participating openly. I follow a rule of releasing every single donor to my campaign, and I think we had one for 85 cents once that got disclosed.

We have seen some on the other side of this debate disgracefully compare the attempt we are making--to ensure that the same disclosure laws that apply to you and me also apply to corporations--to the shameful effort in the 1950s and 1960s to keep African Americans from exercising their right to vote. There the chilling effect often took the form of violence. We all remember the bridge at Selma and the blood that was spilled in the long effort for voting rights that led to the Voting Rights Act. At a time when we are seeing a renewed effort to deny millions of Americans their right to vote through voter purges and voter ID laws that serve as modern-day poll taxes, the comparison some have made between our effort to bring sunlight and those evil days is as shameful as it is wrong.

When the race is on for secret money and election campaigns are won or lost by who can collect the largest amount of secret donations, it puts at risk government of, by, and for the people. Now, our ballots should be secret but not massive corporate campaign contributions.

I can tell you what I am fighting for. While too many Vermonters and other Americans are still looking for work, we need to continue looking for ways to spur job growth and economic investment in this country. We have to continue our efforts to increase jobs, reduce unemployment, and support hard-working American families struggling to keep food on the table and a roof over their heads. We have to protect Americans' access to clean air and clean water. We have to fight for their economic security by protecting Social Security, Medicare, and Medicaid. We need to work together to move forward with reasonable policies to bolster economic growth and development and by ending the Bush tax cuts for the wealthiest Americans--the tax cuts we cannot afford that contributed to the financial crisis facing us today.

That is what I am fighting for and I will keep on fighting for those things. What are the secret sources of funding for the super PACs fighting for? What do they expect to gain from hundreds of millions in campaign ads? And why are they hiding?

Vermont is a small State. It would not take more than a tiny fraction of the corporate money flooding the airwaves in other States to outspend all of our local candidates combined. I know that the people of Vermont, like all Americans, take seriously their civic duty to choose wisely on election day. That is why more than 60 Vermont towns passed resolutions on Town Meeting Day calling for action to address Citizens United. Like all Vermonters, I cherish the voters' role in the democratic process and am a staunch believer in the first amendment. The rights of Vermonters and all Americans to speak to each other and to be heard should not be undercut by corporate spending.

I hope that Republicans who have seen the impact of waves of unaccountable corporate campaign spending reconsider their filibuster of a debate on this important legislation. I hope Republican Senators will let us vote on the DISCLOSE Act and help us take an important step to ensure the ability of every American to be heard and to be able to meaningfully participate in free and fair elections.

Mr. President, I yield to Senator Whitehouse.

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

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

Mr. President, what is the current parliamentary situation?

I thank the distinguished Presiding Officer, the Senator from New Mexico.

Vermont National Guard

Mr. President, let me begin by noting that this morning, while watching ``The Today Show,'' I saw a piece about the Vermont National Guard. We have called them the Green Mountain Boys from the time of Ethan Allen. It was fascinating to watch Savannah Guthrie, who is one of the anchors of the morning program ``The Today Show.'' Her brother is a colonel with the Vermont National Guard who flies F-16s. She got to ride on the plane with her brother, which I thought was remarkable. I had the opportunity to fly with them before. For those of us who are usually confined to flying on airlines, this is a little bit different, both in takeoff, visibility, and maneuvers. I have never been on a commercial airplane where I was pulled anywhere from 5 to 9 Gs, as that flight was.

I was glad to see not only Colonel Guthrie recognized, but also all the men and women of the Vermont National Guard. This is a group who, in the hours after 9/11--the tragedies of 9/11--immediately took to the air and guarded the skies over New York City.

I recall when our adjutant general called me to tell me that the Green Mountain Boys were protecting New York City around the clock.

I asked her: Where are you basing them from?

She said: Vermont.

I said: Well, how long does it take you to get to New York City?

She told me: With the after burners, a matter of minutes.

I have never been quite able to make that flight on a commuter plane from Burlington, VT, to New York City. But they can be refueled in midair.

Everybody, whether on vacation or not, showed up at the Vermont National Guard--our mechanics, flight administrators, and pilots, of course. They kept those planes going around the clock for weeks. They did not miss a single day of their mission, or a single minute of their mission--even with all the calibration of weapons and radar and everything else. It was a remarkable scene.

I am glad to see them recognized this morning, and as a Vermonter, I am extraordinarily proud of our Vermont National Guard, both our Army Guard and our Air Guard. They do all the people of our State proud.

Mr. President, I wish to speak on another matter, and I ask as in morning business.

Mr. President, small businesses and working families throughout Vermont and around the country are facing incredibly challenging times. These problems are especially acute in my State, where we rely so heavily on small businesses to create jobs for our citizens and to make Vermont the desirable place to live and to visit that it is.

The Federal Government has rightly recognized the important role small businesses play in our economy. From SBA loans, to USDA Rural Development grants, to small business set-asides on government contracts, a variety of targeted Federal programs join with small businesses to help them grow and prosper.

This Congress has enacted several job-creating steps. Just last year, I was able to lead the effort here in the Senate to enact a major overhaul of our Nation's outdated patent laws. The Leahy-Smith America Invents Act is going to create jobs, but also, and very importantly, it is going to help unleash more American innovation, and it does not add a penny to our deficit. In fact, last year Vermont was awarded more patents per capita than any State in the Union. Of course, those patents mean more jobs for Vermonters.

And 2 weeks ago we made further progress by passing a transportation funding bill that will make vital investments in our Nation's roads, bridges, and transit systems, and a student loan bill that will lower the costs of college borrowing for thousands of students and their families.

I might say, these student loans are extremely important. I remember the one I had when I was in law school--a 10-year loan. Two things happened the year of that last payment, that 10th payment on my student loan from law school: first, the satisfaction my wife, Marcelle, and I had in paying off the loan, and second, it was that same year I was sworn into the U.S. Senate. I wonder if I would have been here had we not had the money to pay for school.

But I think we can and must do more to help our struggling small businesses and working families.

That is why I strongly support the bill before us today that will provide small businesses with tax incentives to begin hiring again. The bill is a multipronged strategy for spurring job creation. First, it would create a tax credit for businesses to hire new workers or increase wages for their current

workers. In other words, instead of saying that we just give a tax break to extraordinarily wealthy people and somehow jobs will be created, we say: Let's see the jobs. Show me the jobs. Show me the jobs. If you have a tax credit for businesses that hire new workers or increase wages for their current workers, then that is a good use of our Tax Code. Second, it would allow businesses to immediately write off all of the major purchases they make this year. That is a tangible incentive for new investments and new hires, right away.

I do not support this bill just because the President supports it, or the Democratic leader supports it, or most of the Members of my side of the aisle support it. They all do stand behind this effort, and I am grateful for that. I support this bill because I have heard from small business owners in Vermont, Democratic and Republican alike, who tell me they would make capital improvements and put people to work immediately if this bill were signed into law. And I suspect the same would be true in virtually every other State in this country.

On the shores of Lake Champlain, in the northern border town of Highgate, VT, sits one of America's most genuine and beautiful family resorts: the Tyler Place Family Resort. Year after year, families flock to the resort to spend time with their families, swimming and boating and enjoying a summer campfire. It is the kind of place that draws the same families year after year, where multigenerational families take time to enjoy each other's company as well as the great food and the magnificent views. It is easy to forget, especially when you are sitting there watching the sunset over the beautiful, great big Lake Champlain, that it is one of the millions of small businesses that keep America's economy moving forward and Americans at work.

Last year I heard from the owners of the resort, including Pixley Tyler Hill, a dogged advocate for Vermont, for Vermont's tourism industry, and for Lake Champlain, about their interest in seeing an extension of the bonus depreciation provision that expired in December.

Her brother Ted Tyler summed it up by saying:

These changes in the tax law make all the difference in the

world in decisions whether to spend money, and thereby

stimulate the economy and increase employment in the process.

For example, consider a resort deciding whether to add tennis

courts, put in a new sewer system, upgrade roads or do major

landscaping work--say, at an anticipated cost of $300,000.

Absent bonus depreciation the company will have paid $300,000

but it can only deduct $20,000 that year as an expense for

tax purposes. True enough that over the next 14 years, the

business can continue to write off $20,000. But how many

small businesses can afford to wait that long to recoup the

$280,000 they no longer have?

Pixley and Ted had me sold the minute they explained that this tax incentive was the difference between making new investments and hiring someone, and sitting on their hands waiting for things to change. Extending this provision alone is reason enough to pass the bill.

This bill is full of a million other reasons why we should be working with all the determination we can muster and promptly pass it. Pass it now when the economy needs it. It is a good, solid reason for each of the jobs it would create for working families and businesses all over America.

I urge all Senators to work without delay on this important legislation. Businesses in each of our 50 States are waiting for us to lend another helping hand to the economic recovery act.

Violence Against Women Reauthorization Act

Mr. President, it has been nearly 3 months since the Senate passed the bipartisan Leahy-Crapo Violence Against Women Reauthorization Act-- 3 months. We are no closer to enacting this bill into law than we were in April when 68 Senators, Republican and Democratic Senators alike, voted for this critical legislation to protect women from domestic and sexual abuse.

I am concerned that politics threatens to get in the way of passing this critical legislation this year. Protecting every victim of domestic and sexual violence should be above politics. Members of Congress in both Chambers, set aside the political rhetoric. Act swiftly to reauthorize this landmark legislation and save countless lives.

Time is running out. There are only a few weeks left in this session before election-year politics take over and Congress comes to a standstill. There are critical improvements in the Leahy-Crapo reauthorization bill that will not take effect unless Congress acts. We cannot simply say: Well, if we do not enact it, maybe we can do it next year or the year after. There are a lot of major programs that can only be enacted in this bill, not in appropriations, not any other way.

Sexual assault programs will not receive the added support they need unless we pass our bill into law. The legislation's emphasis on increasing housing protection for victims and preventing homicides connected to domestic and sexual violence will not have an opportunity to help vulnerable victims across the country. Important improvements in campus safety and prevention programs for teens will not occur. Immigrant victims, Native women, and LGBT victims will continue to remain without the services and protection they need and deserve.

The legislation is too important to wait. I hear from victims and the professionals who work on their behalf. They say they need the improvements made by the Leahy-Crapo bill and they need them today.

The legislation is particularly important during difficult economic times because the economic pressures facing many Americans can pose additional hurdles in leaving abusive relationships. Active community networks are needed to provide support to victims in these circumstances, yet budget cuts result in fewer available services, such as emergency shelters, transitional housing, and counseling.

Late last month, I had the opportunity to speak at the VAWA National Days of Action rally, where survivors and professionals in the field-- those who have dedicated their lives to helping victims all over the country--gathered together to send Congress a message. They told me they are very frustrated by the lack of progress in passing VAWA, and rightfully so, because they and the victims they serve are the ones who are affected by Congress's inaction. They were so inspired when this body came together and 68 of us voted to pass it. Now they ask when are we going to finish.

Their message to Congress was loud and clear: Do your job. Pass VAWA now. Supporting the work of these tireless advocates, and the victims they help, should be our priority.

Victims should not be forced to wait any longer. They will not benefit from the improvements we made in the Senate bill unless both Houses of Congress vote to pass this legislation. The problems facing victims of domestic and sexual violence are too serious for Congress to delay. Domestic and sexual violence knows no political party. Its victims are Republican and Democratic, rich and poor, young and old. As I said so many times, a victim is a victim is a victim. Helping these victims, all of these victims, should be our goal.

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

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

Mr. President, I see the distinguished senior Senator from Tennessee on the floor, and I will make sure he has plenty of time to speak. If not, I will ask unanimous consent for extra time for him.

Today we will vote on only 1 of the 16 judicial nominations reported favorably by the Judiciary Committee that have been stalled for no reason from receiving a Senate vote. Regrettably, Senate Republicans are following through on their partisan opposition to the President by seeking to slam the door on qualified, consensus judicial nominees who have bipartisan support. In doing so, they seek to take advantage of the delaying tactics that they have been employing for the last 3\1/2\ years. This is all to the detriment of the American people.

I am disappointed that Senate Republicans are choosing politics over the needs of the American people and seek to justify their actions with a warped sense of payback. This is not the time for settling imaginary scores. Their self-interested approach is what contributes to the low opinion the American people have of Congress. What the American people and the overburdened Federal courts need are qualified judges to administer justice. They are not helped by these partisan games. Following the most extended period of historically high vacancy rates in the history of our district courts, nearly 1 in every 11 Federal judgeships remains vacant. This is more than twice the vacancy rate by this date during the first term of President Bush.

This chart, available at http://www.leahy.senate.gov/imo/media/doc/ BushObama%20-%20Judicial%20-%207-10-12%20-%20Area%20-%201st%20term .pdf, should help people understand how far behind we remain in filling the judicial vacancies to provide the Federal judges that the American people need to get justice in our Federal courts. This compares judicial vacancies during the first terms of President Bush and President Obama. It shows the stark contrast to the way in which we moved to reduce judicial vacancies during the last Republican Presidency.

This chart shows that the Senate can do better because it has done better. During President Bush's first term we reduced the number of judicial vacancies by almost 75 percent. When I became chairman in the summer of 2001, there were 110 vacancies. As chairman, I worked with the administration and Senators from both sides of the aisle to confirm 100 judicial nominees of a conservative Republican President in 17 months.

We continued when in the minority to work with Senate Republicans and confirm President Bush's consensus judicial nominations well into 2004, a Presidential election year. At the end of that Presidential term, the Senate had acted to confirm 205 circuit and district court nominees. By July 2004 we had reduced judicial vacancies to 29.

By comparison, vacancies have long remained near or above 80, while little comparative progress has been made during the 4 years of President Obama's first term. There are still 77 vacancies as of July 2012--that is more than 2\1/2\ times the number of vacancies at this point in President Bush's first term.

Each day that Senate Republicans refuse because of their political agenda to confirm these qualified judicial nominees who have been reviewed and voted on by the Judiciary Committee is another day that a judge could have been working to administer justice. Every week lost is another in which injured plaintiffs are having to wait to recover the costs of medical expenses, lost wages, or other damages from wrongdoing. Every month is another drag on the economy as small business owners have to wait to have their contract disputes resolved. Hard-working and hard-pressed Americans should not have to wait years to have their cases decided. Just as it is with the economy and with jobs, the American people do not want to hear excuses about why Republicans in Congress will not help them. More importantly, they do not want to hear that the supposed justification is partisan. This is precisely the reason why Congress's approval rating among the American people is so low.

The nonpartisan American Bar Association has been sounding the alarm for some time that we need to do better with respect to the judicial vacancy crisis. The president of the ABA wrote the Senate leaders again on June 20 urging them to work together to schedule votes for three consensus, qualified circuit court nominees awaiting Senate confirmation so that they may serve the American people. The response was more excuses from the Republican leadership rather than any positive action. In the past, the Senate has worked together to confirm consensus circuit court nominees, especially during times of high vacancies. For example, Senate Democrats confirmed 11 circuit court nominees of President George H.W. Bush in 1992. The only exception to the practice of confirming consensus circuit court nominees in Presidential elections years with high vacancies was when Senate Republicans shut down the process of a Democratic President in 1996. The Republican leadership is apparently planning to stick with its shutdown of confirmations just as it did in 1996 when they prevented the confirmation of circuit court nominees for an entire year-long session of the Senate. It was wrong then and it is wrong now.

Since May 31, Senate Republicans have consented to consideration of only five judicial nominees. That is a far cry from the 30 confirmed in the last months of 2004 at the end of President Bush's first term that brought his total of circuit and district court confirmations to 205. It is also a far cry from the 22 confirmed in the last months of 2008 at the end of President Bush's second term. They are continuing the obstruction that has unnecessarily delayed confirmation of consensus circuit and district court nominees for months and resulted in our being more than 40 confirmations behind the pace we set in President Bush's first term.

Like so many matters on which they have flip-flopped since the American people elected President Obama--everything from the individual mandate for private health insurance that they originated and used to favor to the deficit reduction commission--they now contend that they are invoking the Thurmond rule even though they denied its existence when President Bush was in office. Just 4 years ago the current Republican leader said that ``there is no Thurmond rule'' and the current ranking Republican on the Judiciary Committee called it ``plain bunk.'' The Senate Republican caucus held a forum to demonstrate that no such practice or rule existed and that judicial confirmations should continue in the last several months of a Presidential term. With President Obama, they have chosen to flip-flop and use the so-called

Thurmond rule as an excuse for shutting down Senate confirmations. Election year politics should not trump the needs of Americans seeking to obtain justice in our Federal courts. Senate Republicans' newly stated reliance on the Thurmond rule is really just another excuse for more of the stalling tactics that we have been seeing since President Obama was elected.

Nor is this the first time that they have been urged to work with us to confirm consensus judicial nominees to address the vacancy crisis. In his 2010 year-end report on the federal judiciary, Chief Justice Roberts called attention to the problem of overburdened courts across- the-country and the need to fill judicial vacancies. That followed in the tradition of Chief Justice Rehnquist who called out the obstruction of President Clinton's judicial nominees. These are not Democratic partisans. Each served in Republican administrations and was appointed by a Republican President because of their conservative credentials and each has been a deeply conservative Supreme Court Justice.

What Senate Republican leaders now contend has been ``exceptionally fair treatment'' of President Obama's judicial nominees has, in fact, amounted to months of unnecessary delays and their having expanded contentiousness to include judicial nominees who should be noncontentious. Their practice has been a virtual across-the-board stalling of judicial nominees. That is what has led to the backlog in confirmations and the months of delays in the consideration of consensus nominees, which has been demonstrated over and over again.

Let us take a look at how they have been stalling circuit court nominees. The nonpartisan Congressional Research Service in its recent report confirms what I have been saying. I also have prepared this chart, which is taken from the CRS report, and is available at http:// www.leahy.senate .gov/imo/media/doc/CRS%20chart%20-%20my%20version.pdf.

They report that the median time circuit court nominees have had to wait before a Senate vote has skyrocketed from 18 days for President Bush's circuit court nominees to 132 days for President Obama's circuit court nominees. Any objective observer would concede that President Obama has made a significant effort to work with home State Senators from both parties and that his nominees have been less ideological and should be less controversial than his predecessor's. Yet the result of Republican foot dragging and obstruction is that they are nonetheless delayed and stalled. They have filibustered nominations that they then turn around and support like that of Judge Barbara Keenan of Virginia to the Fourth Circuit who was ultimately confirmed 99 to 0 and Judge Denny Chin of New York to the Second Circuit, who was filibustered for 4 months before he was confirmed 98 to 0.

Those interested in the Tennessee nominee today will remember how hard we had to work for almost 10 months, despite the support of Senator Alexander and Senator Corker, to get Senate Republicans to allow consideration of the nomination of Judge Jane Stranch to the Sixth Circuit. Despite being approved by a bipartisan majority of the Judiciary Committee, Judge Stranch's nomination nevertheless languished on the floor for nearly 10 months because of Republican obstruction. I personally had to come before the Senate to take the extraordinary step of propounding a unanimous consent request to consider her nomination, with the support of the senior Senator from Tennessee. So it is hard to see any difference between this supposed application of the Thurmond rule and how Senate Republicans have treated nearly all of President Obama's circuit court nominees since the President took office-- including those with support of Republican home State senators.

Among the circuit court nominees they are blockading now are two from States with Republican home State Senators' support: William Kayatta from Maine and Judge Robert Bacharach from Oklahoma, as well as a nominee to the Federal Circuit who had the support of virtually all the Republican Senators on the Judiciary Committee.

While Senate Democrats have been willing to work with Republican Presidents to confirm circuit court nominees with bipartisan support, Senate Republicans have repeatedly obstructed the nominees of Democratic Presidents including those with the support of Republican home State Senators. During the last 20 years, only 4 circuit nominees reported with bipartisan support have been denied an up-or-down vote during a Presidential election year by the Senate. All four were nominated by President Clinton and blocked by Senate Republicans. Senate Republicans are threatening to add the current circuit nominees pending before the Senate to that list. In the previous 5 Presidential election years, a total of 13 circuit court nominees has been confirmed after May 31. It is notable that 12 of the 13 were nominees of Republican Presidents.

When Republican Senators try to take credit for the Senate having reached what they regard as their ``quota'' for circuit confirmations this year, they should remember that the Senate would not even have had an up-or-down vote on three of the five of them without the majority leader first having to file for cloture to overcome Republican obstruction--Adalberto Jordan of Florida to the Eleventh Circuit, Paul Watford of California to the Ninth Circuit and Andrew Hurwitz of Arizona to the Ninth Circuit. And the other two, Stephanie Dawn Thacker of West Virginia to the Fourth Circuit and Jacqueline Nguyen of California to the Ninth Circuit, were unnecessarily stalled since last year until the leader forced the issue by filing for cloture on 17 judicial nominees, ultimately reaching a deal with the Republican leader to vote on only some of the many long-stalled nominees. That is not cooperation. That is stalling, and it is why the Senate has yet to vote on a single circuit court nominee nominated by President Obama this year.

Adalberto Jordan, Stephanie Thacker and Jacqueline Nguyen had all been reported with bipartisan support from the Judiciary Committee last year but their confirmations were stalled by Republicans into this year. In my view, they could and should have been confirmed last year. Senate Republicans broke from the longstanding tradition of confirming consensus judicial nominees at the end of last year. Indeed, Senate Republicans broke from this tradition the last 2 years. When it comes to confirming consensus judges for the benefit of the American people, they choose to ignore tradition.

The two other circuit nominees who were confirmed this year--Paul Watford and Andrew Hurwitz of the Ninth Circuit had their hearings and committee votes delayed at the request of Senate Republicans. If not for this stalling by Senate Republicans, these circuit nominees could also could have been confirmed last year.

Since 1980, the only Presidential election year in which no circuit nominee who was nominated that year and confirmed that year was in 1996, when Senate Republicans shut down the process against President Clinton's circuit nominees. So when the American people hear Senate Republicans crowing about how they have cooperated to confirm five circuit court nominees this year, they should know the truth.

The fact that Republican stalling tactics have meant that circuit court nominees that should have been confirmed in the spring are still awaiting a vote after July 4 is no excuse for not moving forward this month to confirm the circuit nominees who were voted out of the Judiciary Committee with bipartisan support. That was the point of the letter to Senate leaders from the ABA last month when the Republicans' partisan plan to stall out the rest of the year was first publicly acknowledged.

We remain far behind in filling judicial vacancies to provide the Federal judges that American people need to get justice in our Federal courts, as the previous chart demonstrates. Comparisons of judicial vacancies during the first terms of President Bush and President Obama show just how far behind we really are.

Judicial vacancies during President Obama's first term long remained near or above 80, while little comparative progress was made for years. There are still 77 vacancies as of July 2012. By this time during President Bush's first term we had reduced 110 vacancies down to 29. By this time during President Bush's first term the Senate had

confirmed 44 more circuit and district court nominees than the Senate has during this Presidential term.

Despite these facts, certain Senate Republicans contend that their resistance should be excused because two Supreme Court justices, who most of them opposed, were confirmed in President Obama's first term. This is another hollow excuse and is no justification for not moving ahead with the confirmations of William Kayatta, Judge Bacharach, Judge Shwartz, and Richard Taranto to circuit vacancies or with the nearly two dozen judicial nominees that we could easily consider and confirm this year. The American people who are waiting for justice do not care about excuses. They do not care about some false sense of settling political scores. They want justice. Just as they want action on measures the President has suggested to help the economy and create jobs rather than political calculations about what will help Republican candidates in the elections in November.

Indeed, despite confirming two Supreme Court justices in President Clinton's first term, the Senate was able to confirm 200 circuit and district court judges by the end of 1996. And in 1992, at the end of President George H.W. Bush's term, the Senate was able to confirm 192 circuit and district court judges despite confirming two Supreme Court Justices. At this point, Republicans have allowed the Senate to confirm only 153 of President Obama's circuit and district court nominees. That is a far cry from what we have been able to achieve in addition to our consideration of Supreme Court nominations when the Senate was being allowed to proceed to consider judicial nominees reported with bipartisan support. This artificial ceiling on confirmations is Republicans imposing a new standard for partisan purposes.

Likewise, Republicans' newfound affection for the Thurmond rule ignores the facts. In the Presidential election year of 1992, for example, with a Republican President, the Democratic majority in the Senate proceeded to confirm 66 new judges including 11 circuit judges. Republicans have no good justification for not proceeding to confirm the judicial nominees reported with bipartisan support by the Judiciary Committee this year. We can and we should be doing more to help the American people.

The American people do not want to hear excuses from Senate Republicans about why the Senate cannot proceed to confirm judges who are well-qualified and have received significant bipartisan support. There is no good reason that the Senate should not vote on the circuit court nominees thoroughly vetted, considered and voted on by the Judiciary Committee. There is no reason the Senate cannot vote on the nomination of William Kayatta of Maine to the First Circuit, a nominee strongly supported by both of Maine's Republican Senators and reported nearly unanimously by the committee 2 months ago. There is no reason the Senate cannot vote on the nomination of Judge Robert Bacharach of Oklahoma to the Tenth Circuit, who was supported by Senator Coburn during committee consideration, and also by the State's other Republican Senator, Senator Inhofe.

There is also no reason the Senate cannot vote on Richard Taranto's nomination to the Federal Circuit. He was reported almost unanimously by voice vote nearly 3 months ago, and is supported by conservatives such as Robert Bork and Paul Clement. He is also nominated to the Federal Circuit, which has never before been a controversial court.

The one circuit court nominee who was reported out of committee with a split rollcall vote--Judge Patty Shwartz of New Jersey--should not have been controversial. She has been a Federal magistrate judge for the last 8 years and was a Federal prosecutor for 14 years, where she rose to become chief of the Criminal Division. She also has the bipartisan support of New Jersey's Republican Governor, Chris Christie.

Each of these circuit court nominees has been rated unanimously well qualified by the nonpartisan ABA Standing Committee on the Federal Judiciary, the highest possible rating. These are not controversial nominees. Senate Republicans are blocking consent to vote on superbly qualified circuit court nominees with strong bipartisan support.

Today, the Senate will vote on the nomination of John Fowlkes to fill a judicial vacancy in the U.S. District Court for the Western District of Tennessee. Judge Fowlkes has the support of his home State Republican Senators, Senator Lamar Alexander and Senator Bob Corker. His nomination was reported with near unanimous voice vote by the Judiciary Committee nearly 3 months ago, with the only objection coming from Senator Lee's customary protest vote. Judge Fowlkes was rated unanimously well-qualified by the ABA Standing Committee on the Federal Judiciary, the highest possible rating.

Judge Fowlkes currently serves as a criminal court judge in the 30th Judicial District at Memphis, Tennessee, where he has been a judge for approximately 5 years. He previously held several positions in public service, including as a Federal prosecutor for 13 years and as an assistant district attorney general in Shelby County for 10 years. Judge Fowlkes also served briefly as an assistant public defender at the Shelby County Public Defender's Office. His diverse range of experience makes him particularly well qualified to serve on the Federal bench.

Once we confirm Judge Fowlkes, I hope that Senate Republicans will reconsider their ill-conceived partisan strategy and work with us to meet the needs of the American people. There is no reason the Senate cannot vote to confirm the other 15 well-qualified judicial nominees reported by the Committee. There is no good reason we cannot work together to help solve the problem of high judicial vacancies and better serve the American people.

I see the two distinguished Senators from Tennessee on the floor.

I yield the floor and reserve the remainder of my time.

The PRESIDING OFFICER (Mr. Tester.) The senior Senator from Tennessee.

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

Mr. President, I ask for the yeas and nays on the nomination.

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

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

Mr. President, I ask unanimous consent to have printed in the Record a letter dated June 28, 2012, to the Majority leader from myself and Senator Grassley.

Mr. President, I am dismayed that the final conference report on the surface transportation reauthorization bill did not include funding and continued authorization for the Land and Water Conservation Fund, LWCF, program, despite the fact that this provision was included in the Senate-passed bill. This short-sighted decision is counterproductive and ultimately, harmful to America.

The LWCF program represents a promise that was made to the American people almost 50 years ago to invest in conservation and outdoor recreation. The LWCF Program has long been a successful bipartisan program that has touched all 50 States and nearly every county in America. I strongly believe that the LWCF provision, that was included in the Senate bill and which was passed in the Senate by a vote of 76 to 22, should have been included in the final conference report.

Over the course of half a century, the LWCF program has protected natural resource lands, outdoor recreation opportunities, and working forests across America. The program is so successful, in fact, that every part of the LWCF Program is oversubscribed, with the demand for State and local recreational needs, access for sportsmen, and working lands opportunities far exceeding the funds that have been available.

The LWCF Program has been extremely important to Vermont. Two successful Vermont examples are the Green Mountain National Forest and the Silvio O. Conte National Wildlife Refuge. Among the most visited lands in the National Forest System, the Green Mountain National Forest has provided accessible and affordable recreation for millions of residents in the densely populated Northeast. Likewise, the Silvio O. Conte National Wildlife Refuge, which stretches across Vermont, New Hampshire, Massachusetts, and Connecticut, is a revolutionary project that has helped to conserve prime fish and wildlife habitat across the 7.2 million-acre Connecticut River watershed.

By failing to include the LWCF Program in the final conference report, I believe that we are squandering a critical opportunity to protect America's precious natural resource lands and grow the economy. The Outdoor Industry Association estimates that outdoor recreation is an overlooked economic giant, generating $646 billion in direct consumer spending, supporting 6.1 million direct jobs, and producing $80 billion in Federal, State, and local tax revenue each year. This amount dwarfs total spending in other sectors such as pharmaceuticals and motor vehicles, which respectively account for $331 billion and $340 billion in direct spending.

I am extremely disappointed that the final conference report did not include the bipartisan-supported LWCF Program. This will hurt all Americans today and for generations to come. I urge my colleagues to come together and right this wrong. The benefits of the LWCF Program are clear and we owe it to the American people to provide funding for this essential and successful program.

Mr. President, I thank the Chair and yield the floor and note the absence of a quorum.

Mr. President, would the leader yield for a question?

Mr. President, I know the distinguished majority leader has been working very hard to accommodate Senators in a vote. I know he has the support of every member of our caucus in doing that. I believe I heard the distinguished leader say we will come in at 10.

The Senator anticipated my next question. I appreciate that.

Mr. President, I want to commend three outstanding Vermont companies that were recently singled out for recognition at the 2012 Fancy Food Show in Washington, D.C. These vendors were among the select 110 Silver Finalists for the show's coveted Specialty Outstanding Food Innovation, sofi, gold awards, widely considered to be one of the top honors in the specialty food industry. The sofi Awards, from the National Association for the Specialty Food Trade (NASFT), recognize the best in specialty food and beverage and are a coveted industry honor. This year's contest was the most competitive in the history of the awards, with a record 2,520 entries.

Two of the vendors, Vermont Butter and Cheese Creamery, located in Websterville, and Big Picture Farm L3C, located in Townshend, won the gold sofi in their categories, while Grafton Village Cheese, located in Grafton, represented Vermont proudly as a finalist in the category for outstanding cheese or dairy products for their new cheese, Cave Aged Leyden.

Vermont Butter and Cheese Creamery's owners, Allison Hooper and Bob Reese, deserve well-earned congratulations for winning three gold sofi Awards, including Best Product Line, Best Cheese or Dairy Product for their aged goat cheese Bonne Bouche, and Best Perishable Food Service Product for their Sea Salt Crystal Cultured Butter. Allison and Bob's extraordinary achievement demonstrates, beyond a doubt, that Vermont Butter and Cheese Creamery has succeeded at building a high quality, superior brand that reflects the values and ethos of Vermont.

Congratulations are due as well to Big Picture Farm's owners, Louisa Conrad and Lucas Farrell, for winning a gold sofi Award in the Confectionary Category for their Farmstead Goat Milk Caramels. When I met this young couple last week, I was taken with their energy and excitement for both their goats and their award winning caramels. Earlier this year, Louisa and Lucas received a U.S. Department of Agriculture Value Added Producer Grant which helped them expand their farm, hire additional staff members,

and expand their business plan. The Value Added Producer Grant, together with Big Picture Farm's hard work and commitment to their vision, helped to catapult this new business to a sofi Award after less than two years in business. That is quite an achievement. I can't wait to see what challenges this young couple will tackle next.

Recognition should go, too, to Bob Allen, Christine Damour, and Wendy Levy, co-owners of Grafton Village Cheese. This year, Grafton Village Cheese was a sofi finalist in the category of Outstanding Cheese or Dairy Products. Vermont Butter and Cheese Creamery also competed in this category and to have not one, but two great Vermont companies competing as finalists in the same category is an outstanding achievement for any State, much less one as small as Vermont.

I always enjoy seeing Vermonters in Washington, and was pleased to visit them at the 2012 Fancy Food Show. These companies create Vermont jobs and grow Vermont's economy. During these tough economic times, this kind of work is vital to restoring the American way of life and getting the country back on track. I am extremely proud of the hard work, dedication, entrepreneurial spirit, and innovation of these exceptional Vermont companies.

Mr. President, the Republican efforts to shutdown Senate confirmations of qualified judicial nominees who have bipartisan support do not help the American people. This is a shortsighted policy at a time when the judicial vacancy rate remains almost twice what it was at this point in the first term of President Bush. Judicial vacancies during the last few years have been at historically high levels. Nearly one out of every 11 Federal judgeships is currently vacant. Their talk of shutting down confirmations for consensus and qualified circuit court nominees is not helping the overburdened Federal courts to which Americans turn for justice.

In a letter dated June 20, 2012, the president of the American Bar Association urged Senator Reid and Senator McConnell to work together to schedule votes on the nominations of William Kayatta, Judge Robert Bacharach and Richard Taranto, three consensus, qualified circuit court nominees awaiting Senate confirmation so that they may serve the American people. I ask unanimous consent that a copy of his letter be printed in the Record.

He writes:

Amid concerns that the judicial confirmation process is

about to fall victim to presidential election year politics

through the invocation of the ``Thurmond Rule,'' I am writing

on behalf of the American Bar Association to reiterate our

grave concern for the longstanding number of judicial

vacancies on Article III courts and to urge you to schedule

floor votes on three pending, noncontroversial circuit court

nominees before July and on district court nominees who have

strong bipartisan support on a weekly basis thereafter.

He observes that ``the Senate has a continuing constitutional duty to act with due diligence to reduce the dangerously high vacancy rate that is adversely affecting our federal judiciary.''

There is no good reason that the Senate should not vote on consensus circuit court nominees thoroughly vetted, considered and voted on by the Judiciary Committee. There is no reason the Senate cannot vote on the nomination of William Kayatta of Maine to the First Circuit, a nominee strongly supported by both of Maine's Republican Senators and reported nearly unanimously by the Committee 2 months ago. This is the same person who Chief Justice John Roberts recommended to Kenneth Starr for a position in the Justice Department.

There is no reason the Senate cannot vote on the nomination of Judge Robert Bacharach of Oklahoma to the Tenth Circuit, who was supported by Senator Coburn during Committee consideration, and also by the State's other Republican Senator, Senator Inhofe. Senator Coburn said that Judge Bacharach would make a great nominee for a Republican president. So why is the Republican leadership playing politics with his nomination?

There is also no reason the Senate cannot vote on Richard Taranto's nomination to the Federal Circuit. He was reported almost unanimously by voice vote nearly 3 months ago, and is supported by conservatives such as Robert Bork and Paul Clement.

And the one circuit court nominee who was reported out of Committee with a split rollcall vote--Judge Patty Shwartz of New Jersey--should not have been controversial, as seen by the bipartisan support she has received from New Jersey's Republican Governor Chris Christie.

Each of these circuit court nominees has been rated unanimously well qualified by the nonpartisan ABA Standing Committee on the Federal judiciary, the highest possible rating. These are not controversial nominees. They are qualified and should be considered as consensus nominees and confirmed. Senate Republicans are blocking consent to vote on superbly qualified circuit court nominees with strong bipartisan support. This is a new and damaging application of the Thurmond Rule.

It is hard to see how this new application of the Thurmond Rule is really anything more than another name for the stalling tactics we have seen for months and years. I have yet to hear any good reason why we should not continue to vote on well-qualified, consensus nominees, just as we did up until September of the last two Presidential election years. I have yet to hear a good explanation why we cannot work to solve the problem of high vacancies for the American people. I will continue to work with the Senate leadership to try to confirm as many of President Obama's qualified judicial nominees as possible to fill the many judicial vacancies that burden our courts and the American people across the country.

Last week, I spoke about the announcement from Senate Republican leadership that they would be shutting down the confirmation process for qualified and consensus circuit court nominees for the rest of the year. As I noted, Senate Republicans have become the party of ``no''-- no help for the American people, no to jobs, no to economic recovery and no to judges to provide Americans with justice in their Federal courts. Although the public announcement that they would be blocking qualified and consensus circuit court nominees is recent, the truth is that Senate Republicans have been obstructing President Obama's judicial nominees since the beginning of his Presidency, beginning with their filibuster of his first nominee.

Senate Republicans used to insist that filibustering of judicial nominations was unconstitutional. The Constitution has not changed but as soon as President Obama was elected, they reversed course and filibustered President Obama's very first judicial nomination. Judge David Hamilton of Indiana was a widely respected 15-year veteran of the Federal bench nominated to the Seventh Circuit and was supported by Senator Dick Lugar, the longest-serving Republican in the Senate. They delayed his confirmation for 5 months. Senate Republicans then proceeded to obstruct and delay just about every circuit court nominee of this President, filibustering nine of them. They delayed confirmation of Judge Albert Diaz of North Carolina to the Fourth Circuit for 11 months. They delayed confirmation of Judge Jane Stranch of Tennessee to the Sixth Circuit for 10 months. They delayed confirmation of Judge Ray Lohier of New York to the Second Circuit for 7 months. They delayed confirmation of Judge Scott Matheson of Utah to the Tenth Circuit and Judge James Wynn, Jr. of North Carolina to the Fourth Circuit for 6 months. They delayed confirmation of Judge Andre Davis of Maryland to the Fourth Circuit, Judge Henry Floyd of

South Carolina to the Fourth Circuit, Judge Stephanie Thacker of West Virginia to the Fourth Circuit, and Judge Jacqueline Nguyen of California to the Ninth Circuit for 5 months. They delayed confirmation of Judge Adalberto Jordan of Florida to the Eleventh Circuit, Judge Beverly Martin of Georgia to the Eleventh Circuit, Judge Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit, Judge Denny Chin of New York to the Second Circuit, and Judge Chris Droney of Connecticut to the Second Circuit for 4 months. They delayed confirmation of Judge Paul Watford of California to the Ninth Circuit, Judge Andrew Hurwitz of Arizona to the Ninth Circuit, Judge Morgan Christen of Alaska to the Ninth Circuit, Judge Stephen Higginson of Louisiana to the Fifth Circuit, Judge Gerard Lynch of New York to the Second Circuit, Judge Susan Carney of Connecticut to the Second Circuit, and Judge Kathleen O'Malley of Ohio to the Federal Circuit for 3 months.

As a recent report from the nonpartisan Congressional Research Service confirms, the median time circuit nominees have had to wait before a Senate vote has skyrocketed from 18 days for President Bush's nominees to 132 days for President Obama's circuit court nominees. This is the result of Republican foot dragging and obstruction. In most cases, Senate Republicans have been delaying and stalling for no good reason. How else do you explain the filibuster of the nomination of Judge Barbara Keenan of Virginia to the Fourth Circuit who was ultimately confirmed 99-0? And how else do you explain the needless obstruction of Judge Denny Chin of New York to the Second Circuit, who was filibustered for 4 months before he was confirmed 98-0?

The only change in their practices is that Senate Republicans have finally acknowledged that they are seeking to shut down the confirmation process for qualified and consensus circuit court nominees. Three of the five circuit court judges finally confirmed this year after months of unnecessary delays and a filibuster should have been confirmed last year. The other two circuit court nominees confirmed this year were both subjected to stalling and partisan filibusters, which were thankfully unsuccessful.

The American people need to understand that Senate Republicans are stalling and filibustering judicial nominees supported by their home State Republican Senators. Just consider the states I have already mentioned as having circuit nominees supported by their home State Republican Senators unnecessarily stalled--Indiana, North Carolina, Utah, South Carolina, Georgia, and Arizona. Just 2 weeks ago we needed to overcome a filibuster to confirm Justice Andrew Hurwitz of the Arizona Supreme Court to the Ninth Circuit despite the strong support of Senators Jon Kyl and John McCain.

This year started with the Majority Leader having to file cloture to get an up-or-down vote on Judge Adalberto Jordan of Florida to the Eleventh Circuit even though he was strongly supported by his Republican home State Senator. And every single one of these circuit nominees for whom the Majority Leader was forced to file cloture this year was rated unanimously well qualified by the nonpartisan ABA Standing Committee on the Federal Judiciary, the highest possible rating. And every one of them was nominated to fill a judicial emergency vacancy. So when I hear some Senate Republicans say they are now invoking the Thurmond Rule and have decided they are not going to allow President Obama's judicial nominees to be considered, I wonder how the American people are supposed to be able to tell the difference from how they have been obstructing for the last 3\1/2\ years.

Personal attacks on me, taking quotes out of context, trying to repackage their own actions as if following the Thurmond Rule or what they seek to dub the Leahy rule do nothing to help the American people who are seeking justice in our Federal courts. I am willing to defend my record but that is beside the point. The harm to the American people is what matters. Republicans are insisting on being the party of no even when it comes to judicial nominees who home State Republican Senators support.

As Chairman and when I served as the ranking member of the Judiciary Committee, I have worked with Senate Republicans to consider judicial nominees well into Presidential election years. I have taken steps to make the confirmation process more transparent and fair. I have ensured that the President consults with home State Senators before submitting a nominee. I have opened up what had been a secretive blue slip process to prevent abuses. All the while I have protected the rights of the minority, of Republican Senators. If Republicans want to talk about the Leahy rules, those are the practices I have followed. And I have been consistent. I hold hearings at the same pace and under the same procedures whether the President nominating is a Democrat or a Republican. Others cannot say that.

And what were the results? In the last two Presidential election years, we were able to bring the number of judicial vacancies down to the lowest levels in the past 20 years. In 2004, at end of President Bush's first term, vacancies were reduced to 28, not the 74 at which they are today. In 2008, in the last year of President Bush's second term, we again worked to fill vacancies and got them down to 34, less than half of what they are today. In 2004, 25 nominees were confirmed from June 1 to the Presidential election. In 2008, 22 nominees were confirmed between June 1 and the Presidential election. So far, since June 1 of this year, only 4 judges have been confirmed and all required the majority leader to file cloture to end Republican filibusters.

In 2004, a Presidential election year, the Senate confirmed five circuit court nominees of a Republican President that had been reported by the committee that year. We have confirmed only two circuit court nominees that have been reported by the committee this year, and we had to overcome Republican filibusters in both cases. By this date in 2004 the Senate had already confirmed 35 of President Bush's circuit court nominees. So far, the Senate has only been allowed to consider and confirm 30 of President Obama's circuit court nominees--five fewer, 17 percent fewer--while higher numbers of vacancies remain, and yet the Senate Republican leadership demands an artificial shutdown on confirmation of qualified, consensus nominees for no good reason.

The nonpartisan Congressional Research Service recently released a report confirming that judicial nominees continue to be confirmed in the Presidential election years. The exceptions are when Republicans shut down the process because the President is a Democrat. In five of the last eight Presidential election years, the Senate has confirmed at least 22 circuit and district court nominees after May 31. The notable exceptions were during the last years of President Clinton's two terms in 1996 and 2000 when Senate Republicans would not allow confirmations to continue. In the 1996 session, Senate Republicans did not allow any circuit court nominees to be confirmed at all. Vacancies at the end of the Clinton years stood at 75 at the end of 1996 and 67 at the end of 2000. The third exception was in 1988, at the end of President Reagan's Presidency, when vacancies were at 28. According to CRS, the Senate confirmed 32 judges after May 31 in 1980; 28 in 1984; 31 in 1992; 28 in 2004 at the end of President George W. Bush's first term; and 22 after May 31 in 2008 at the end of President Bush's second term. So far since May 31 of this year, only 4 judges have been confirmed and all required the Majority Leader to file cloture to end Republican filibusters.

In the past five Presidential election years, Senate Democrats have never denied an up-or-down vote to any circuit court nominee of a Republican President who received bipartisan support in the Judiciary Committee. That is what Senate Republicans are now seeking to do by blocking votes on William Kayatta, Judge Bacharach and Richard Taranto. In fact, during the last 20 years, only four circuit nominees reported with bipartisan support have been denied an up-or-down vote during Presidential election year by the Senate; all four were nominated by

President Clinton and blocked by Senate Republicans. While Senate Democrats have been willing to work with Republican Presidents to confirm circuit court nominees with bipartisan support, Senate Republicans have repeatedly obstructed the nominees of Democratic Presidents. In the previous five Presidential election years, a total of 13 circuit court nominees have been confirmed after May 31. Not surprisingly, 12 of the 13 were Republican nominees. Clearly, this is a one-way street in favor of Republican Presidents' nominees.

Senate Republicans are fond of taking quotes of things I have said out of context. Look at what I have done. I have not filibustered nominees with bipartisan support after May of Presidential election years. As chairman of this committee, I have steadfastly protected the rights of the minority. I have done so despite criticism from Democrats. I have only proceeded with judicial nominations supported by both home State Senators. That has meant that we are not able to proceed on current nominees from Arizona, Georgia, Nevada, and Louisiana. I even stopped proceedings on a circuit court nominee from Kansas when the Kansas Republican Senators reversed themselves and withdrew their support for the nominee. I had to deny the Majority Leader's request to push a Nevada nominee through Committee because she did not have the support of Nevada's Republican Senator. I will put my record of consistent fairness up against that of any judiciary chairman and remind Senate Republicans that it is they who blatantly disregarded evenhanded practices when they were ramming through ideological nominations of President George W. Bush. They would proceed with nominations despite the objection of both home State Senators.

So those are the Leahy rules--respect for and protection of minority rights, increased transparency, consistency, and allowing for confirmations well into Presidential election years for nominees with bipartisan support.

Senate Republicans, on the other hand, have repeatedly asserted that the Thurmond Rule does not exist. For example, on July 14, 2008, the Senate Republican caucus held a hearing and said that the Thurmond Rule does not exist. At that hearing, the senior Senator from Kentucky, the Republican leader stated: ``I think it's clear that there is no Thurmond Rule. And I think the facts demonstrate that.'' Similarly, the Senator from Iowa, my friend who is now serving as ranking member of the Judiciary Committee, stated that the Thurmond rule was in his view ``plain bunk.'' He said: ``The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president's term.'' We did not in 2008 when we proceeded to confirm 22 nominees over the second half of that year.

We remain far behind in filling the judicial vacancies to provide the Federal judges that American people need to get justice in our Federal courts. A comparison of judicial vacancies during the first terms of President Bush and President Obama shows a stark contrast to the way in which we moved to reduce judicial vacancies during the last Republican presidency.

During President Bush's first term we reduced the number of judicial vacancies by almost 75 percent. When I became chairman in the summer of 2001, there were 110 vacancies. As chairman, I worked with the administration and Senators from both sides of the aisle to confirm 100 judicial nominees of a conservative Republican President in 17 months.

We continued when in the minority to work with Senate Republicans and confirm President Bush's consensus judicial nominations well into 2004, a Presidential election year. At the end of that presidential term, the Senate had acted to confirm 205 circuit and district court nominees. By June 2004 we had reduced judicial vacancies to 43 on the way to 28 that August.

By comparison, vacancies have long remained near or above 80 and while little comparative progress has been made during the 4 years of President Obama's first term. As contrasted to 43 vacancies in June 2004, there are still 74 vacancies in June 2012. If we could move forward to Senate votes on the 17 judicial nominees ready for final action, the Senate could reduce vacancies below 60 and make some progress. I noted last week that, compared to our progress under President Bush, we were 9 months later in confirming the 150th circuit or district judge to be appointed by President Obama. Another way to look at our relative lack of progress and the burden the Republican obstruction is placing on the American people seeking justice is to note that by mid-November 2002 we had reduced judicial vacancies to below where we are now with 74 vacancies. We effectively worked twice as efficiently and twice as fast. By that measure, the Senate is almost 20 months behind schedule. This is hardly then the time to be shutting down the process. In fact, when on November 14, 2002, the Senate proceeded to confirm 18 judicial nominees, vacancies went down to 60 throughout the country.

This is a true comparison of similar situations. The nonpartisan Congressional Research Service in its recent report likewise compares the first years of Presidential administrations. False comparisons are to take the end of a second term of a Presidency, when vacancies have already been significantly reduced and to contend that confirmation numbers for that period can be fairly compared to the beginning of a Presidential term when vacancies are high.

Today, the Senate will vote on the nomination of Robin Rosenbaum to fill a judicial emergency vacancy in the U.S. District Court for the Southern District of Florida. Judge Rosenbaum has the ``support of her home State Senators, Democratic Senator Bill Nelson and Republican Senator Marco Rubio. Her nomination was reported with near unanimous voice vote by the Judiciary Committee nearly 3 months ago, with the only objection coming from Senator Lee's customary protest vote. Judge Rosenbaum was rated unanimously ``well qualified'' by the ABA Standing Committee on the Federal judiciary, the highest possible rating.

Judge Rosenbaum is currently a United States Magistrate Judge in the district in which she has been nominated, and has served in that position for almost 5 years. She previously served for 9 years as a Federal prosecutor, including 5 years as a chief of the economic crimes section. After graduating from law school, she spent four years as a trial attorney in the civil division of the U.S. Department of Justice before serving as staff counsel in the office of the independent counsel for the investigation of former U.S. Secretary of Commerce Ron Brown. Judge Rosenbaum clerked for Judge Stanley Marcus of the Eleventh Circuit Court of Appeals. She is a terrific nominee and she has my support.

Last week, the Judiciary Committee also voted Judge Brian Davis out of committee favorably for a judicial emergency vacancy in the Middle District of Florida. Judge Davis is an exceptional nominee with a distinguished career in public service. He has been a State court judge for 18 years, and has also served as a prosecutor for 9 years. The ABA Standing Committee on the Federal judiciary has unanimously rated Judge Davis well qualified to serve on the district court, its highest possible rating. Judge Davis was selected based on a nonpartisan judicial selection commission appointed by Senators Nelson and Rubio, and both of the home State Senators have supported moving forward with consideration of this nomination. We should move to confirm him without delay so that he can get to work for the people of Florida.

After today's vote, we need to continue confirming nominees. At a time when judicial vacancies remained historically high for 3 years, with 30 more vacancies and 30 fewer confirmations than at this point in President Bush's first term, I would hope the Senate Republican leadership would reconsider and work with us on filling these longstanding judicial vacancies to help the American people. We have well-qualified, consensus nominees with bipartisan support who can fill these vacancies. It is only partisan politics and continued tactics of obstruction that stand in the way.

Madam President, I am pleased that Congress will finally send to the President the bipartisan Food and Drug Administration Safety and Innovation Act, FDASIA. This legislation previously received overwhelming support in the Senate and was passed by the House of Representatives by a voice vote just last week. This final action by the Senate will reauthorize the prescription drug user fee program and medical device user fee which are set to expire on October 1, 2012. It will also authorize two new provisions to allow the FDA to review and approve generic drugs and biosimilar drugs in a timely manner. Importantly, this bill includes several provisions that I have supported to prevent access to dangerous drugs.

Passage of the FDASIA will help stop drug shortages that affect thousands of Americans. I have heard from a number of Vermonters concerned about the uncertainty of availability of lifesaving drugs and devices. While the FDASIA will not stop all drug shortages, I hope it will give Vermonters who depend on these medications relief knowing more steps are being taken to ensure these shortages don't happen.

This legislation also includes an important provision I have been proud to author to address the problem of counterfeit drugs. In March, the Senate passed by unanimous consent bipartisan legislation that I introduced with Senator Grassley to deter the sale of counterfeit drugs. The Counterfeit Drug Penalty Enhancement Act, S. 1886, has the support of groups such as the Alliance for Safe Online Pharmacies, the Easter Seals, and the U.S. Chamber of Commerce. The legislation is consistent with recommendations from the Intellectual Property Enforcement Coordinator and the administration's Counterfeit Pharmaceutical Interagency Working Group. I am pleased that a compromise version of this legislation will become law as part of S. 3187.

I am also glad that the final bill includes important provisions addressing the issue of synthetic drugs. These provisions correspond to three bills that the Senate Judiciary Committee passed last year--the Combating Dangerous Synthetic Stimulants Act, S. 409; the Combating Designer Drugs Act, S. 839; and the Dangerous Synthetic Drug Control Act, S. 605. I was glad to move these bills through the committee last year and to work to try to pass them in the full Senate. They address substances commonly known as ``bath salts'' and other synthetic drugs that have no legitimate use and can too easily be obtained under current law. Bath salts have resulted in a number of reports of individuals acting violently in the United States, including in Vermont, and have led to injuries to those using them and to others.

I thank Senators Klobuchar, Grassley, Portman, and Schumer for their leadership on this issue. I was glad to be able to work with them and with Senator Harkin to support including these important provisions in the FDA bill and keeping them there in negotiations with the House. It is good that we are able to make real progress in this area.

I am also glad that we are moving forward on this issue in a responsible way after appropriate consideration. Adding chemicals to schedule I of the Controlled Substances Act has serious consequences and is not a step that we should undertake without careful consideration. We will continue to study this issue and consult with the DEA, FDA, and others going forward.

I note also that Senator Paul has expressed serious concerns about the mandatory minimum sentences contained in the Controlled Substances Act, mandatory sentences that are expanded every time we schedule new substances. I appreciate those concerns. As more and more of our criminal justice budget goes to housing more and more people in prison for ever longer periods of time, rather than supporting prevention programs and law enforcement which can more efficiently and effectively reduce crime, we have to rethink our reliance on mandatory minimum sentences, particularly for nonviolent drug offenses. In the future, I intend to work with Senator Paul and others on this vital issue.

Finally, I am pleased that the final FDASIA includes language to protect the public's ability to access information under the Freedom of Information Act, FOIA. This bill will allow the Food and Drug Administration, FDA, to obtain important information about drug inspections and drug investigations undertaken by foreign governments, while at the same time ensuring that the American public has access to information about potential health and safety dangers. This provision carefully balances the need for the government to keep some information confidential, with the need to ensure free flow of information in our democratic society. A number of Senators, including Senator Harkin and Senator Enzi, and a number of open government and consumer groups, including OpenTheGovernment.org and Public Citizen, worked with me to protect the public's access to FDA information in this bill.

Sending this legislation to the President's desk will save lives. The Senate's action will also mitigate the uncertainty facing the FDA should these user fees expire. I am pleased to support this legislation and urge other Senators to do so as well.

Mr. President, on July 4, the Nation will celebrate the 46th anniversary of the enactment of the Freedom of Information Act, FOIA. The ``right to know'' is a cornerstone of our Democracy. For five decades, Americans have counted on FOIA to help shed light on the activities of their government.

As we reach this important milestone, there are many victories to celebrate. This week the Senate will enact the Food and Drug Administration Safety and Innovation Act, which includes important language that I helped craft to protect the public's ability to access information under FOIA. Section 710 of that bill will allow the Food and Drug Administration, FDA, to obtain information about drug inspections and drug investigations undertaken by foreign governments, while at the same time ensuring that the American public has access to information about potential health and safety dangers. I thank Senators Harkin and Enzi and the many open-government and consumer groups-- including OpenTheGovernment.org and Public Citizen--who worked with me to enact this FOIA provision.

Last year the Senate unanimously passed the Faster FOIA Act, a bill that I cosponsored with Republican Senator John Cornyn. This legislation would create a bipartisan panel of government and outside experts to make recommendations on improving the FOIA process. Sadly, despite the overwhelming and bipartisan support for this good- government legislation, this bill has been languishing in the House of Representatives for almost a year.

During the 3 years since President Obama made a historic commitment to restoring the presumption of openness in our government, the Obama administration has also taken steps to strengthen FOIA. I especially want to commend the Office of Government Information Services--and the inaugural Director of the OGIS, Miriam Nisbet--for working with the Environmental Protection Agency and the Department of Commerce to develop an online FOIA Module designed to help agencies better meet their requirements under the FOIA. This new FOIA program reaffirms the President's commitment to transparency in our government and will make government information more accessible to the American people.

While these and other FOIA accomplishments give us good reasons to celebrate, many other threats to the public's right to access information under FOIA remain. In the coming weeks the Senate is expected to consider several legislative exemptions to FOIA in relation to cybersecurity legislation. As this legislative process unfolds, I intend to work with Members on both sides of the aisle to ensure that the American public's ability to access information about threats to their health and safety in cyberspace is protected.

Securing our Nation's critical infrastructure information is a pressing national priority. So, too, is protecting the rights of Americans to know what their government is doing. We must strike a careful balance between security and openness in our cybersecurity policies. The anniversary of FOIA's enactment provides a timely reminder of just how important it is for the Congress to get that balance right.

As I have said many time before, open government is neither a Democratic issue, nor a Republican issue--it is truly an American value and virtue that we all must uphold. It is in this bipartisan spirit that I will continue to work to fulfill FOIA's promise of openness in our government and that I join all Americans in celebrating the 46th anniversary of the Freedom of Information Act.