Floor Statements

Mr. President, I have had very friendly conversations with Senator Reid and Senator McConnell during the past couple of days. Having served with both of them for a long time, I know that when an agreement is made, it is an agreement we will stick to. I am aware of the agreement. I compliment both the Democratic leader and the Republican leader for their help in moving this forward.

Mr. President, yesterday I came to the floor to express my hope that Republicans would join together with Democrats to end the damaging filibusters of judicial nominations. With a judicial vacancies crisis that has lasted years, and nearly 1 in 10 judgeships across the Nation vacant, this is something the Senate needs to do. I hoped that we could work together to ensure that the Federal courts have the judges they need to provide justice for all Americans without needless delay.

Today there are 22 circuit and district court nominations ready for Senate consideration and a final confirmation vote. They were all reported favorably by the Judiciary Committee after thorough review. All but a handful are by any measure consensus nominations. There was never any good reason for the Senate not to proceed to votes on these nominations. It should not have taken cloture motions to get agreement to schedule votes on these qualified, consensus judicial nominations. A dozen of the nominations on which agreement has now been reached have been stalled for months and were reported last year.

These are qualified judicial nominees. They are nominees whose judicial philosophy is well within the mainstream. These are all nominees supported by their home State Senators, both Republican and Democratic. The consequence of these months of delays is borne by the nearly 160 million Americans who live in districts and circuits with vacancies that could be filled as soon as Senate Republicans agree to up-or-down votes on the 22 judicial nominations currently before the Senate awaiting a confirmation vote.

In light of the agreement reached between the leaders, the Senate will finally be allowed to consider the nomination of Judge Gina Groh of West Virginia. Her nomination has been stalled for more than 5 months. We will also finally be able to consider other long-stalled nominations like that of Michael Fitzgerald to fill a judicial emergency vacancy on the Central District of California, which has been ready for a vote for well over 4 months. The delays in confirmations mean justice delayed for millions of Americans.

I went back and checked my recollection of how we considered consensus Federal trial court nominees in President Bush's first term. Nearly 60 were confirmed within a week of being reported by the Senate Judiciary Committee. By contrast, there have only been two judicial nominees voted on so

promptly since President Obama took office. I said at the time we were able to vote on the Alabama nominee supported by Senator Sessions, who was at that time the committee's ranking Republican member, and on Judge Reiss of Vermont that I hoped they would become the model for regular order. Instead, they stand out as isolated exceptions to the months of delay Senate Republicans have insisted on before considering consensus Federal trial court nominees of this President.

I am glad that there is finally agreement to proceed, as well, with circuit nominees. Two delayed from last year are outstanding women: Stephanie Dawn Thacker of West Virginia, nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of California, nominated to fill one of the many judicial emergency vacancies on the Ninth Circuit. Ms. Thacker, an experienced litigator and prosecutor, has the strong support of her home State Senators, Senators Rockefeller and Manchin. Judge Nguyen, whose family fled to the United States in 1975 after the fall of South Vietnam, was confirmed unanimously to the district court in 2009 and would become the first Asian Pacific American woman to serve on a U.S. court of appeals. Both were reported unanimously by the Judiciary Committee last year and both should be confirmed by the Senate without additional damaging delays.

I am pleased that the majority leader and the Republican leader have now come to an understanding and a path forward on these important judicial nominations. Their agreement not only helps work through the backlog of nominations stalled before the Senate, it paves the way for votes on 14 of the 22 current judicial nominations and provides a pattern for continuing to make progress beyond those 14 and beyond the current 22. There are another 8 judicial nominees who have had hearings and are working their way through the committee process. In addition, there are another 11 nominations on which the committee should be holding additional hearings during the next several weeks. By working steadily and by continuing the resumption of the regular consideration of judicial nominations, I hope the understanding between the leaders' signals we can have a positive impact and reduce judicial vacancies significantly before the end of the year. In 2004 and 2008, both Presidential election years, by working together we were able to reduce judicial vacancies to the lowest levels in decades.

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hard-working Americans who turn to their courts for justice to suffer unnecessary delays. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait 3 years before a judge hears the case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.

Never before in the Senate's history have I seen the confirmation of qualified, consensus district court nominees supported by their home State Senators and reported by the Judiciary Committee blocked for months. We remain 40 confirmations and 9 months behind the pace we set during 2001 through 2004, during President Bush's first term. The judicial vacancy rate remains nearly double what it was at this time during his first term.

We 100 Senators stand in the shoes of over 300 million Americans. It is good to see the Senate agreeing to end the partisan stalling and schedule votes on these long-delayed and much-needed judges.

Will the Senator yield to me on that point?

Mr. President, when we talk about what the American people want, I am sure the majority leader--and I ask him this as a question-- is aware that there are 160 million Americans who are in judicial districts where there are vacancies, because even though they have gone through the Senate Judiciary Committee, the majority leader has been blocked from bringing them to the floor, so that 160 million Americans were denied a chance for justice, denied a chance to go to court? I ask the leader, was that

also one of the considerations he had on moving forward with these judges?

Mr. President, I listened with interest to the colloquy between my two friends, the distinguished majority and minority leaders. It is almost--and I think the American people see it as almost--a kabuki dance because the fact is, the majority leader is right to seek votes on these district court nominees. He seeks to secure Senate votes for 17 highly qualified Federal district court nominations favorably reported by the Judiciary Committee. They are being blocked by Senate Republicans.

I wish we could find a way to stop these damaging filibusters. They are totally unprecedented. It is greatly damaging the most respected court system in the world: our Federal court system. That means Americans are not getting the justice without delay they are entitled to. We must work together to ensure that the Federal courts have the judges they need to provide justice for all Americans without needless delay.

Federal district court judges are the trial court judges who hear cases from litigants across the country and preside over Federal criminal trials, applying the law to facts and helping settle legal disputes. They handle the vast majority of the caseload of the Federal courts and are critical to making sure our Federal courts remain available to provide a fair hearing for all Americans. Nominations to fill these critical positions, whether made by a Democratic or Republican President, have always been considered with deference to the home state Senators who know the nominees and their states best, and have always been confirmed quickly with that support.

I have been here 37 years, with Republican Presidents, Democratic Presidents, Republican majorities, Democratic majorities. Never in those 37 years have we seen district court nominees blocked for months as we have seen since President Obama was elected.

These kinds of consensus nominees are normally taken up within a few days or a week after being nominated and voted out of our Judiciary Committee, whether nominated by a Democratic or a Republican President. It was certainly the approach taken by Senate Democrats when President Bush sent us consensus nominees. As a result, we were able to reduce vacancies in the Presidential election years of 2004 and 2008 to the lowest levels in decades. That was also how we confirmed 205 of President Bush's judicial nominees in his first term.

For those who want to understand where the partisanship is, here is a little bit of history. For 31 months of the first 48 months of President Bush's first term, Republicans controlled the Senate, and for 17 months, Democrats controlled the Senate. To show that we wanted to set aside partisanship, in our 17 months that we were in control, Senate Democrats helped confirm 100 of President Bush's nominees. In the 31 months Republicans were in charge, they did 105, which was slightly more nominees. But the fact is, we actually moved a lot faster on President Bush's nominees than the Republicans did.

I was chairman of the committee, and I tried to do that to get us away from what we had seen where Republicans had pocket-filibustered 60 of President Clinton's nominees. I wanted to get back to where we took politics out of the Federal courts.

But we have seen now a complete reversal of this. Senate Republicans have ensured that nominees who in the past would have been confirmed promptly by the Senate are now blocked for months. An unprecedented number of President Obama's highly qualified men and women to district courts has been targeted for opposition and obstruction while extreme outside groups tar their records and reputations with invented controversies. It is unprecedented and it hurts our system of justice in this country.

Two weeks ago, at a meeting of the Senate Judiciary Committee, the Senator from Utah conceded that a ``new standard'' is being applied to President Obama's nominations. He was saying out loud what has been apparent from the start of President Obama's term--that Republican Senators have applied a different and unfair standard to President Obama's judicial nominees.

I was here with President Ford, President Carter, President Reagan, President George H.W. Bush, President Clinton, President George W. Bush, and now President Obama. I can attest that Republicans have set a different standard for President Obama than has been applied to any of the other Presidents I have known since I have been here. I have to ask myself, what is so different about this President that he is treated to a different, tougher standard than any of the Presidents before him? I just ask. President Obama's district court nominees have been forced to wait more than four times as long to be confirmed by the Senate as President Bush's district court nominees at this point in his first term, taking an average of 93 days after being voted on by the Senate Judiciary Committee.

When I hear Republican Senators claim there is no obstruction and there is no reason for the majority leader to push for votes on these nominations, I wonder if they have looked at our recent history.

I spoke of President Bush's first term. Mr. President, 57 of his district court nominations were confirmed within 1 week of being favorably reported by the Judiciary Committee--1 week. In stark contrast to those 57, only 2 of President Obama's district court nominations have been confirmed within 1 week of being reported--less than one twenty fifth the number of President Bush's. More than half of the nominations for which the leader has now filed cloture have been pending since last year--many months, not days. This must be the new standard the Senator from Utah has said Senate Republicans are using for President Obama's nominations--a different standard than all the Presidents before him. I will at least praise the Senator from Utah for his honesty.

Indeed, 10 of the nominations on which the Majority Leader has been required to file cloture in order to end the Republican filibuster and get a vote have been awaiting a vote since last year. Nine of them had the support of every Republican as well as every Democratic Senator serving on the Judiciary Committee. They all should have been considered and confirmed last year.

I understand and share the Majority Leader's frustration. He has been unable to obtain the usual cooperation from the minority to schedule debates and votes on these widely supported, consensus nominees. I regret that the Majority Leader has been forced to take this action but the millions of Americans seeking justice in their courts should not be forced to wait any longer.

To understand how unusual and wrongheaded this is, consider the following: Republicans are opposing judicial nominees they support. They are stalling Senate action for weeks and months on judicial nominees who they do not oppose and who they vote to confirm once their filibuster can be ended and the vote scheduled. That is what happened after a four-month filibuster when the Senate finally voted on the nomination of Judge Barbara Keenan. That is what happened when after a five-month filibuster, the Senate finally voted on the nomination of Judge Denny Chin. Once the Republican filibusters were ended, they were confirmed unanimously. That is what happened after an eleven-month delay before confirmation of Judge Albert Diaz of North Carolina. That is what happened after seven-month delays before confirmations of Judge Kimberly Mueller of California, Judge Catherine Eagles of North Carolina, Judge John Gibney, Jr. of Virginia, and Judge Ray Lohier of New York. That is what happened after six-month delays before the confirmations of Judge James Bredar and Judge Ellen Hollander of Maryland; Judge Susan Nelson of Minnesota, Judge Scott Matheson of Utah and Judge James Wynn, Jr. of North Carolina. That is what happened after five-month delays before confirmations of Judge Nannette Brown of Louisiana, Judge Nancy Torresen of Maine, Judge William Kuntz of New York, and Judge Henry Floyd of South Carolina. This is what happened after four-month delays before the confirmations of Judge Edmond Chang of Illinois, Judge Leslie Kobayashi of Hawaii, Judge Denise Casper of Massachusetts, Judge Carlton Reeves of Mississippi, Judge John Ross of Missouri, Judge Timothy Cain of South Carolina, Judge Marina Marmolejo of Texas, Judge Beverly Martin of Georgia, Judge Joseph Greenaway of New Jersey, Judge Mary Murguia of Arizona, and Judge Chris Droney of Connecticut.

So, too, I expect the district court nominee to fill a judicial emergency vacancy in Utah, supported by Senator Hatch, will not be controversial once the vote takes place. The district court nominees to fill judicial emergency vacancies in Texas, supported by Senator Hutchison and Senator Cornyn, should easily be confirmed. The nominees to judicial emergency vacancies in Illinois supported by Senator Kirk, should not be controversial. The district court nominee in Louisiana supported by Senator Vitter, should not be controversial. The district court nominee in Missouri supported by Senator Blunt, should not be controversial. The district court nominee in Arkansas supported by Senator Boozman, should not be controversial. The district court nominee in Massachusetts supported by Senator Brown, should not be controversial. The district court nominee

in South Carolina supported by Senator Graham, should not be controversial. The district court nominee in Ohio supported by Senator Portman, should not be controversial.

Senate Democrats never applied this standard to President Bush's district court nominees, whether we were in the majority or the minority. During his eight years in office, President Bush saw only five of his district court nominees have any opposition on the floor and that opposition had to do with doubts about those nominees' suitability to be Federal judges. After only three years, 19 of President Obama's district court nominees have already received opposition. Even though President Obama has worked with Republican and Democratic home state Senators to identify highly-qualified, consensus nominees, his district court nominees have already received more than five times as many ``no'' votes in three years as President Bush's district court nominees did in his eight years over his two terms. This is further proof of the Republicans' new standard.

I find that reprehensible. It means President Obama's nominees are being treated differently than any Presidents, Democratic or Republican, before him. It is no accident that 1 out of every 10 Federal judgeships remains vacant in the fourth year of President Obama's first term. It is not happenstance that judicial vacancies are nearly double what they were at this point in President Bush's first term. The extended crisis in judicial vacancies is the result of deliberate obstruction and delays by Senate Republicans.

A few years after Republican Senators insisted that filibusters of President Bush's judicial nominees were unconstitutional, they reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana, a widely-respected 15-year veteran of the Federal bench who had the support of the most senior and longest-serving Republican in the Senate, Senator Lugar. The Senate rejected that filibuster and Judge Hamilton was confirmed, but the pattern of partisan obstruction of President Obama's judicial nominees was set from the very start.

That is wrong--that is wrong--and that is turning your back on a majority of Americans who voted for President Obama in the last election, Americans from all across the country, of all backgrounds, of all races, of all religions--to turn your back on them by saying: You may have elected him, but we are going to hold him to a different standard. It is wrong.

At the end of each of the last two years, the Senate Republican leadership continued this obstruction by ignoring long-established precedent and refusing to agree to schedule votes on dozens of consensus judicial nominees before the December recess. Last year it took us until June to confirm nominees who should have been confirmed in 2010. This year we have had to end two more of the nine Republican filibusters of President Obama's judicial nominations to confirm nominees who should have been confirmed the year before and fully a dozen judicial nominees from last year remain to be considered. And here we are in the middle of March, having to fight to hold votes on 10 district court nominees who should have been confirmed last year.

This obstruction is purposeful and it is damaging. The people who bear the brunt of this Republican obstruction are the American people. The result of the Senate Republicans' obstruction is that the ability of our Federal courts to provide justice to Americans around the country is compromised. Millions of Americans, who are in overburdened districts and circuits, experience unnecessary delays in having their cases resolved. Nearly one hundred and sixty million Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans would just agree to vote on the nominations now pending on the Senate calendar. It is wrong to delay votes on qualified, consensus judicial nominees.

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who turn to their courts for justice to suffer unnecessary delays. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait three years before a judge hears the case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.

When Senate Democrats opposed some of President Bush's most ideological nominees, we did so openly, saying why we opposed them. At the same time, we continued to move consensus nominees quickly so they could begin serving the American people. That is what I did as Chairman for 17 months during the first two years of the Bush administration and how we were able to lower judicial vacancies by confirming 100 of his circuit and district court nominees. That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades, half of what they are now. That is how we had already confirmed 172 of President Bush's circuit and district nominees by this point in his first term, as compared to only 131 of President Obama's and being 40 confirmations and nine months behind the pace we set then. We did so because we put the needs of the American people before partisanship and obstruction.

We had another discussion of these matters in the Senate Judiciary Committee two weeks ago. Senator Coburn said that this is ``exactly what makes Americans sick of what we are doing.'' I agree. I have been saying for some time that this needless obstruction is what has driven approval ratings of Congress down to single digits. The Senator from Oklahoma observed that it would behoove us all to get back to the days when these lower court judicial nominations were not areas of partisan conflict. I agree. I have tried to do my part in that regard by treating Republican Senators fairly and protecting their rights. President Obama has done his part by consulting with Republican home state Senators and selecting moderate, well-qualified nominees. It is time for Senate Republicans to do their part and not abuse their rights under our Senate rules and procedures. It is time for them to end the partisan stalling. It is time for Senate Republicans to agree to schedule votes on these long-delayed and much-needed judges.

Once we have overcome these unprecedented filibusters of President Obama's district court nominations, I hope that it will not take more delays and more cloture petitions to end the filibusters against the five outstanding nominees by President Obama to fill vacancies on our Federal circuit courts. Two delayed from last year are outstanding women: Stephanie Dawn Thacker of West Virginia, nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of California, nominated to fill one of the many judicial emergency vacancies on the Ninth Circuit. Ms. Thacker, an experienced litigator and prosecutor, has the strong support of her home state Senators, Senators Rockefeller and Manchin. Judge Nguyen, whose family fled to the United States in 1975 after the fall of South Vietnam, was confirmed unanimously to the district court in 2009 and would become the first Asian Pacific American woman to serve on a U.S. Court of Appeals. Last week, The Sacramento Bee ran an editorial about Judge Nguyen's nomination that noted that ``for those of us in the real world particularly those seeking justice in the federal courts--it would be far, far better if these qualified jurists could get to work.'' I will ask unanimous consent that the article be printed in the Record. Both Ms. Thacker and Judge Nguyen were reported unanimously by the Judiciary Committee last year and both should be considered and confirmed by the Senate without additional damaging delays.

I hope Republicans and Democrats can join together to put an end to this damaging pattern of obstruction and filibusters. It hurts our Federal courts. It is a disrespect to the President of the United States. It goes way beyond partisanship. But it is wrong, and it demeans this great body we are all privileged to serve in. This is the sort of thing I never thought I would see in the Senate of the United States. I say that based on 37 years of experience with Senators I have admired and have publicly stated I have admired in both

parties. This is wrong. Let's go back and let the Senate be the conscience of the Nation, not a body that reflects some of the worst instincts of our Nation.

I ask unanimous consent that the article to which I refereed be printed in the Record.

I suggest the absence of a quorum.

Yes.

Mr. President, unless the Senator from California seeks recognition----

Mr. President, I yield for the Senator from California.

Mr. President, today, I am pleased to join Senators Harkin and Grassley in introducing the Protecting Older Workers Against Discrimination Act. This bipartisan bill seeks to restore crucial worker protections that have been cast aside by a narrow, 5 4 Supreme Court decision. The bill also reaffirms the contributions made by older Americans in the workforce and ensures that employees will be evaluated based on their performance and not by arbitrary criteria such as age.

Congress has long worked to enact civil rights laws to eliminate discrimination in the workplace. In 1967, Congress passed the Age Discrimination and Employment Act, ADEA, with the intent to extend protections against workplace discrimination to older workers. We strengthened these protections in the Civil Rights Act of 1991, which passed in the Senate 93 to five. These statutes established a clear legal standard and Congressional intent: an employer's decision to fire or demote an employee may not be motivated in whole or in part by the employee's age.

However, the 2009 Supreme Court decision in Gross v. FBL unilaterally erased that clear legal standard. A slim 5 4 majority threw out a jury verdict in favor Jack Gross, a 32-year employee of a major financial company, who sued under the ADEA. The jury had concluded that age was a motivating factor in the company's decision to demote Gross and reassign his duties to a younger, significantly less qualified worker. But a divisive Supreme Court ignored its own precedent and congressional intent.

Five justices decided that workers like Mr. Gross must now prove that age was the only motivating factor in a demotion or termination. The Court also required workers to essentially introduce a ``smoking gun'' in order to prove discrimination. By imposing such high standards, the Court sided with big business and made it easier for employers to discriminate on the basis of age with impunity so long as they could cloak it with another reason. As Mr. Gross stated during a Judiciary Committee hearing that I held shortly after this controversial decision was handed down, ``I feel like my case has been hijacked by the high court for the sole purpose of rewriting both the letter and the spirit of the ADEA.''

The Supreme Court's divisive holding has created much uncertainty in our civil rights laws and it is incumbent on Congress to clarify our intent and the statutory protections that all hardworking Americans deserve. The Protecting Older Workers Against Discrimination Act restores the original intent of the ADEA and three other Federal anti- discrimination statutes. It makes clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial. The bill re-establishes Congress' intent that age discrimination is unlawful even if it is only part of the reason to demote a worker. Under the bill, a worker would also be able to introduce any relevant admissible form of evidence to show discrimination, whether the evidence is direct or circumstantial.

To avoid future misreading of congressional intent, I encourage Federal courts to take particular note of the carefully negotiated ``Findings and Purposes'' section in this bipartisan bill. The bill unequivocally rejects the Supreme Court's reasoning in Gross not only in age discrimination cases but in all cases where courts have applied this case as binding precedent. In other words, Gross is not the proper legal standard for anti-discrimination statutes, whether or not a particular statute is directly amended by this bill.

I commend Senator Harkin for his efforts over the past three years to negotiate a bipartisan bill to restore the civil rights protections that all Americans deserve in the workplace. I also thank Senator Grassley, the Ranking Member of the Judiciary Committee, for his commitment to this issue. I urge my fellow Senators to join this bipartisan effort and show their commitment to ending age discrimination in the workplace. In these difficult economic times, hardworking Americans deserve our help. We must not allow a thin majority of the Supreme Court to eliminate the protections that Congress has enacted for them.

Mr. President, today, I am pleased to join Senators Harkin and Grassley in introducing the Protecting Older Workers Against Discrimination Act. This bipartisan bill seeks to restore crucial worker protections that have been cast aside by a narrow, 5 4 Supreme Court decision. The bill also reaffirms the contributions made by older Americans in the workforce and ensures that employees will be evaluated based on their performance and not by arbitrary criteria such as age.

Congress has long worked to enact civil rights laws to eliminate discrimination in the workplace. In 1967, Congress passed the Age Discrimination and Employment Act, ADEA, with the intent to extend protections against workplace discrimination to older workers. We strengthened these protections in the Civil Rights Act of 1991, which passed in the Senate 93 to five. These statutes established a clear legal standard and Congressional intent: an employer's decision to fire or demote an employee may not be motivated in whole or in part by the employee's age.

However, the 2009 Supreme Court decision in Gross v. FBL unilaterally erased that clear legal standard. A slim 5 4 majority threw out a jury verdict in favor Jack Gross, a 32-year employee of a major financial company, who sued under the ADEA. The jury had concluded that age was a motivating factor in the company's decision to demote Gross and reassign his duties to a younger, significantly less qualified worker. But a divisive Supreme Court ignored its own precedent and congressional intent.

Five justices decided that workers like Mr. Gross must now prove that age was the only motivating factor in a demotion or termination. The Court also required workers to essentially introduce a ``smoking gun'' in order to prove discrimination. By imposing such high standards, the Court sided with big business and made it easier for employers to discriminate on the basis of age with impunity so long as they could cloak it with another reason. As Mr. Gross stated during a Judiciary Committee hearing that I held shortly after this controversial decision was handed down, ``I feel like my case has been hijacked by the high court for the sole purpose of rewriting both the letter and the spirit of the ADEA.''

The Supreme Court's divisive holding has created much uncertainty in our civil rights laws and it is incumbent on Congress to clarify our intent and the statutory protections that all hardworking Americans deserve. The Protecting Older Workers Against Discrimination Act restores the original intent of the ADEA and three other Federal anti- discrimination statutes. It makes clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial. The bill re-establishes Congress' intent that age discrimination is unlawful even if it is only part of the reason to demote a worker. Under the bill, a worker would also be able to introduce any relevant admissible form of evidence to show discrimination, whether the evidence is direct or circumstantial.

To avoid future misreading of congressional intent, I encourage Federal courts to take particular note of the carefully negotiated ``Findings and Purposes'' section in this bipartisan bill. The bill unequivocally rejects the Supreme Court's reasoning in Gross not only in age discrimination cases but in all cases where courts have applied this case as binding precedent. In other words, Gross is not the proper legal standard for anti-discrimination statutes, whether or not a particular statute is directly amended by this bill.

I commend Senator Harkin for his efforts over the past three years to negotiate a bipartisan bill to restore the civil rights protections that all Americans deserve in the workplace. I also thank Senator Grassley, the Ranking Member of the Judiciary Committee, for his commitment to this issue. I urge my fellow Senators to join this bipartisan effort and show their commitment to ending age discrimination in the workplace. In these difficult economic times, hardworking Americans deserve our help. We must not allow a thin majority of the Supreme Court to eliminate the protections that Congress has enacted for them.

Mr. President, today the Senate will vote on the confirmation of two highly qualified, consensus nominees to the Federal bench: Mary Elizabeth Phillips to the U.S. District Court for the Western District of Missouri and Thomas Owen Rice to the U.S. District Court for the Eastern District of Washington. I thank the majority leader for pressing for these votes. These are nominees who were reported unanimously by the Senate Judiciary Committee last October, almost 5 months ago. They are both supported by their home State Senators, Democrats and Republicans, as are all of the judicial nominations of this President been who have been voted on by the Senate Judiciary Committee.

Last month the majority leader had to file cloture petitions to end a 4-month and 2-day filibuster of the confirmation of Judge Adalberto Jordan of Florida and to end the 5 month filibuster of the nomination of Jesse Furman, a former counselor to Attorney General Mukasey. The majority leader should not have had to file cloture petitions for the Senate to vote on these outstanding judicial nominees. Senate Republicans have filibustered nine of President Obama's judicial nominations despite the fact that he has reached out to both Republican and Democratic home State Senators and nominated qualified, ideologically moderate men and women to fill vacancies on our Federal courts.

From the start of President Obama's term, Republican Senators have applied a double standard to this President's nominees. Last week, at a meeting of the Judiciary Committee, the Senator from Utah conceded that a ``new standard'' is being applied to President Obama's nominations. Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home State Senators. Instead, an unprecedented number of President Obama's highly qualified district court nominees have been targeted for opposition and obstruction.

The nominations the Senate considers today did not receive a single negative vote in the Judiciary Committee. Still, they have been stalled from confirmation for almost 5 months. It is good that Senate Republicans are finally allowing them to be considered. But we need to do much more. These are only 2 of the 14 remaining judicial nominations voted on by the Judiciary Committee last year that have been stalled by Senate Republicans for months. They all should have been considered and confirmed last December. President Obama's nominees are being treated differently than those of any President, Democratic or Republican, before him.

Of those 14 judicial nominations still on the calendar from last year, none are the kind of divisive ideological nominees that should lead to the kinds of delay we have seen, let alone filibusters. President Obama should be praised by Republicans and Democrats for making consensus picks like his two nominations to fill vacancies on Federal Circuit courts, Stephanie Dawn Thacker of West Virginia, nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of California, nominated to fill one of the many judicial emergency vacancies on the Ninth Circuit. Ms. Thacker, an experienced litigator and prosecutor, has the strong support of her home State Senators, Senators Rockefeller and Manchin. Judge Nguyen, whose family fled to the United States in 1975 after the fall of South Vietnam, was confirmed unanimously to the district court in 2009 and would become the first Asian Pacific American woman to serve on a U.S. court of appeals. Both were reported unanimously by the Judiciary Committee last year, and both should be considered and confirmed by the Senate without additional damaging delays.

With 1 out of nearly every 10 Federal judgeships vacant, the Senate should be acting on all of the judicial nominations approved by the Senate Judiciary Committee but that Republican objections are stalling from final action. Regrettably, delay and obstruction have stalled action on President Obama's judicial nominees since the beginning of his administration. After the first year of President Obama's first term, only 12 Federal circuit and district court judges were confirmed, the lowest total in 50 years. Senate Republicans allowed the Senate to confirm only 48 circuit and district court nominations the next year. That set a modern record for fewest judicial nominations confirmed during a President's first 2 years in office, the lowest in 35 years. As a result, judicial vacancies rose again over 110 and stayed around 90 for the longest period of historically high vacancies in 35 years. This is in stark contrast to the 100 confirmations that I oversaw during the last 17 months of President Bush's first 2 years in office. That action led to a significant reduction in judicial vacancies.

The truth is that the actions of Senate Republicans in stalling judicial nominations during President Obama's administration has led to what the Congressional Research Service documented as the longest period of historically high judicial vacancy rates in modern times. At the end of President Obama's second year and again at the end of last year, Senate Republicans opted to obstruct final confirmation votes on consensus judicial nominees for no good reason. Last year it took us until June to make up the ground we lost when Senate Republicans refused to complete action on judicial nominees at the end of 2010. This year the Senate started with 19 judicial nominees pending on the Senate's calendar, all but 1 of them reported with significant bipartisan support, and 16 of them unanimously. To date, the Senate has only been allowed to work its way through five. This means that it could again be summer before the Senate is allowed to work its way through the judicial nominees who could, and should, have been confirmed the year before.

The result of the Senate Republicans' obstruction is that the ability of our Federal courts to provide justice to Americans around the country is compromised. Millions of Americans, who are in overburdened districts and circuits, experience unnecessary delays in having their cases resolved. One hundred and thirty million Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans would just agree to vote on the nominations now pending on the Senate calendar. It is wrong to delay votes on these qualified, consensus judicial nominees.

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hard-working Americans who turn to their courts for justice to suffer unnecessary delays. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait 3 years before a judge hears the case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.

In his ``2010 Year-End Report on the Federal Judiciary,'' Chief Justice Roberts rightly called attention to the problem of overburdened courts across the country. Unfortunately, the unprecedented obstruction of consensus judicial nominations by Senate Republicans who dramatically departed from the Senate's longstanding tradition of regularly considering consensus, noncontroversial nominations, marked a new chapter in what Chief Justice Roberts calls the ``persistent problem'' of filling judicial vacancies.

If Republican Senators were concerned about ensuring that our courts have the judges they need to administer justice for the American people, they would not have refused consent for the Senate to consider these consensus judicial nominees. The obstruction reminds me of the Republican pocket filibusters that blocked more than 60 of President Clinton's judicial nominations from Senate consideration.

When I became chairman in 2001 and made the committee blue slip process public for the first time and worked to confirm 100 judicial nominees of a conservative Republican President in 17 months, I hoped we were past these partisan tactics. I am disappointed that, after working for more than a decade to restore transparency and fairness to the process of considering

judicial nominations, we see the Senate Republicans again using obstruction to block progress at filling judicial vacancies.

I wish that the Republican Senators who came to the Senate and the Senate Judiciary Committee in 2003 and decried what they characterized as a broken judicial confirmation process would acknowledge the 100 confirmations in 17 months that we accomplished in 2001 and 2002 when President Bush was not consulting closely with home State Senators and, instead, insisted on sending the Senate ideological nominees. I have done my part to fix and to improve the process.

By contrast, those Republicans who deemed filibusters unconstitutional and demanded up-or-down votes for every judicial nominee just a few years ago have now filibustered nine of President Obama's judicial nominees. What happened to their principle that a partisan minority should not be allowed to frustrate the will of the majority? They used to say that judicial nominees ``should not be required to serve an indefinite period of time in the stocks as targets for these special interest groups that attack them on a regular basis.'' Now these same Republican Senators obstruct votes on qualified, consensus nominees and allow reputations to be savaged without good cause.

In 2005, the so-called Gang of 14 adopted a standard for filibusters that require ``exceptional circumstances.'' That standard was abandoned by Republicans who filibustered the nomination of Caitlin Halligan last year. The Washington Times' banner headline on December 7, 2011, noted what had long been apparent to me: ``GOP Ends Truce on Judicial Hopefuls.''

It is wrong to dismiss the delays resulting from the Senate Republicans' obstruction as merely political tit for tat. These are new and damaging tactics that Senate Republicans have devised. The standard had been that noncontroversial judicial nominees reported by the Judiciary Committee were confirmed by the Senate before the end of the year. That is the standard we should have followed in 2010 and 2011, but Senate Republicans did not. Senate Republicans set a new and destructive standard to hold up qualified, consensus judicial nominees for no good reason. A New York Times editorial from January 4, 2011, refers to Senate Republicans' ``refusal to give prompt consideration to noncontroversial nominees'' a ``terrible precedent.'' In a column last week, the president of the American Bar Association reiterated the call for a ``sustained, concerted and bipartisan effort'' to ``make meaningful progress toward filling vacancies on the federal bench.

While consensus judicial nominations are stalled without a final vote by the Senate, millions of Americans across the country are being harmed by delays. The American people and our Federal courts cannot afford these unnecessary and damaging delays. As the ABA president noted last week:

Backlogs mean justice delayed in cases involving protection

of individual rights, advancement of business interests,

compensation of injured victims and enforcement of federal

laws.

Longstanding vacancies on courts with staggering caseloads

impede access to the courts. They create strains that, if not

eased, threaten to reduce the quality of our justice system.

They erode confidence in the courts' ability to uphold

constitutional rights and render fair and timely decisions.

Delay at the federal courts puts people's lives on hold

while they wait for their cases to be resolved. Businesses

face uncertainty and costly holdups, preventing them from

investing and creating jobs. In sum, judicial vacancies kill

jobs.

Justice delayed, as the famous maxim goes, is justice

denied. It's bad for business, it's unfair to individuals,

and it slows government enforcement actions, which ultimately

costs taxpayers money.

The Senate remains far behind where we should be in considering President Obama's judicial nominations. The Senate had confirmed a lower percentage of President Obama's judicial nominees than those of any President in the last 35 years. The Senate has confirmed just over 70 percent of President Obama's circuit and district nominees, with more than one in four not confirmed. In stark contrast, the Senate confirmed nearly 87 percent of President George W. Bush's nominees, nearly 9 out of every 10 nominees he sent to the Senate over two terms.

The Senate remains well behind the pace set during President Bush's first term. By the end of President Bush's first term, the Senate had confirmed 205 district and circuit nominees. To date now in the fourth year of President Obama's first term, the Senate has confirmed only 129 district and circuit nominees. By this date in 2004, the Senate had confirmed 170 district and circuit nominees. Today the total is more than 40 confirmations shy of the mark.

Another way to think about this is that during President Bush's first term, the Senate confirmed the 130th nominee to our circuit and district courts in early June of his third year in office. Here we are, approaching the spring of President Obama's fourth year, nearly 9 months later, and we are just reaching that milestone--9 months later. It has taken us far too long to reach this point. That is why the judicial vacancy rate remains nearly double what it was at this point in the Bush administration.

Today we can finally confirm these two highly qualified, consensus nominees. Mary Elizabeth Phillips has been nominated to the U.S. District Court for the Western District of Missouri. Ms. Phillips is the first woman to serve as the U.S. attorney for the Western District of Missouri. Her nomination has the bipartisan support of both of her home State Senators, Democratic Senator Claire McCaskill and Republican Senator Roy Blunt. Ms. Phillips previously worked in private practice and as a local prosecutor Jackson County, MO. The ABA's Standing Committee on the Federal Judiciary unanimously rated her ``well qualified'' to serve on the U.S District Court, its highest possible rating.

Thomas Owen Rice has been nominated to the U.S. District Court for the Eastern District of Washington. Currently the first assistant U.S. attorney in the Eastern District of Washington, Mr. Rice has spent his entire career in public service as a Federal prosecutor, including as chief of the Criminal Division in the Eastern District of Washington. Both of Washington's Senators Senators Murray and Cantwell--support Mr. Rice's nomination. Both of these nominations were reported by the Judiciary Committee by voice vote with no dissent nearly 5 months ago in October 2011.

I thank the majority leader for his efforts to break through the Republicans' obstructionist tactics. Last Tuesday, several other Democratic Senators also came before the Senate to talk about the need for more action to fill the judicial vacancies that have remained historically high for far too long. I thank Senators Durbin, Schumer, Feinstein, Coons, Cardin, and Klobuchar for their involvement and their thoughtful statements.

Last Thursday, we had a discussion before the Judiciary Committee, as well. I commended Senator Coburn for the statement he made at that time in which he called upon Senators to step back and return to the practice of moving forward on consensus nominees and that we need to build bridges instead of burn them.

It is important that we confirm these two nominees so they can serve the people of Missouri and Washington, but we need to do much more. The Senate needs to proceed without delay to consider all 20 of the judicial nominees currently before it and to promptly consider those being sent to the Senate by the Judiciary Committee. That is how we can fulfill our responsibilities to the American people. That is how we can begin to restore the American's people's confidence in this institution.

Mr. President, today, I am pleased to join with Senator Grassley to introduce the Drug Free Communities Reauthorization Act of 2012, a bill to reauthorize the successful Drug Free Communities Program. It is crucial that communities around the country have the support and resources needed to respond to serious drug problems in a comprehensive and coordinated manner. Drug Free Community, DFC, coalitions have been proven to significantly lower substance abuse rates in our communities nationwide.

The DFC program encourages local citizens to become directly involved in solving their community's drug issues through grassroots organizing and data-driven approaches. Since the program's inception, DFC grants, which must be matched dollar for dollar, have helped to fund nearly 2,000 coalitions and have mobilized nearly 9,000 community volunteers. Today's legislation will reauthorize the DFC Program for an additional 5 years, at a reduced rate to reflect current fiscal realities. The community coalition model has proven extremely effective and has achieved impressive outcomes. It is critical that today's bill become law.

The DFC Program strategically invests Federal anti-drug resources at the community level with those who have the most power to reduce the demand for drugs--parents, teachers, business leaders, local media, religious leaders, law enforcement, youth, and others in the community. Grantees execute collaborative strategies to address their communities' unique substance use and abuse issues. This is the optimal way to ensure that the entire community benefits from prevention. I have consistently supported funding for these coalitions, and was pleased that last year, eight Vermont coalitions were awarded Drug Free Community grants totaling $946,852.

In Vermont, we have felt the presence of drug abuse and drug-related crime in our communities, and prescription drug abuse is on the rise. The myth persists that drug abuse and drug-related crime are only big- city problems, but rural America is also coping with these issues. I have brought the Judiciary Committee to Vermont several times to examine these problems and gain perspectives to help shape solutions. One thing is clear. Law enforcement, while crucial, cannot solve the problem on its own. Reducing substance abuse requires a comprehensive approach with equal attention to law enforcement, prevention and education, and treatment, all with active community buy-in.

We see significant results in the fight against youth drug abuse when we have people working together at the local, State, and Federal levels, and in the law enforcement, prevention, and treatment fields. We have seen success driven by DFC coalitions in Vermont and throughout the country, but there is more work to be done. Drug abuse and drug- related crime is a persistent problem in major metropolitan areas and rural communities alike. I hope all Senators will support this bipartisan bill so that communities nationwide can sustain effective community coalitions to reduce youth drug use.

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

Mr. President, today, I am pleased to join with Senator Grassley to introduce the Drug Free Communities Reauthorization Act of 2012, a bill to reauthorize the successful Drug Free Communities Program. It is crucial that communities around the country have the support and resources needed to respond to serious drug problems in a comprehensive and coordinated manner. Drug Free Community, DFC, coalitions have been proven to significantly lower substance abuse rates in our communities nationwide.

The DFC program encourages local citizens to become directly involved in solving their community's drug issues through grassroots organizing and data-driven approaches. Since the program's inception, DFC grants, which must be matched dollar for dollar, have helped to fund nearly 2,000 coalitions and have mobilized nearly 9,000 community volunteers. Today's legislation will reauthorize the DFC Program for an additional 5 years, at a reduced rate to reflect current fiscal realities. The community coalition model has proven extremely effective and has achieved impressive outcomes. It is critical that today's bill become law.

The DFC Program strategically invests Federal anti-drug resources at the community level with those who have the most power to reduce the demand for drugs--parents, teachers, business leaders, local media, religious leaders, law enforcement, youth, and others in the community. Grantees execute collaborative strategies to address their communities' unique substance use and abuse issues. This is the optimal way to ensure that the entire community benefits from prevention. I have consistently supported funding for these coalitions, and was pleased that last year, eight Vermont coalitions were awarded Drug Free Community grants totaling $946,852.

In Vermont, we have felt the presence of drug abuse and drug-related crime in our communities, and prescription drug abuse is on the rise. The myth persists that drug abuse and drug-related crime are only big- city problems, but rural America is also coping with these issues. I have brought the Judiciary Committee to Vermont several times to examine these problems and gain perspectives to help shape solutions. One thing is clear. Law enforcement, while crucial, cannot solve the problem on its own. Reducing substance abuse requires a comprehensive approach with equal attention to law enforcement, prevention and education, and treatment, all with active community buy-in.

We see significant results in the fight against youth drug abuse when we have people working together at the local, State, and Federal levels, and in the law enforcement, prevention, and treatment fields. We have seen success driven by DFC coalitions in Vermont and throughout the country, but there is more work to be done. Drug abuse and drug- related crime is a persistent problem in major metropolitan areas and rural communities alike. I hope all Senators will support this bipartisan bill so that communities nationwide can sustain effective community coalitions to reduce youth drug use.

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

Mr. President, I am pleased that the Senate will act today to combat the increasing problem of counterfeit pharmaceuticals. I thank Senators Grassley and Bennet, and the other cosponsors, along with the bipartisan sponsors of the House companion bill. This is important legislation to deter the influx of counterfeit medication. The bill will not only support the American economy and job creation by protecting American intellectual property, but it will protect the health and safety of American consumers.

The illegal counterfeit pharmaceutical trade is a multi-billion dollar criminal industry. The Alliance for Safe Online Pharmacies wrote in support of this legislation that ``criminals are drawn to counterfeit drugs because of the significantly higher profits in comparison to the very low risks and penalties.''

We cannot allow the counterfeiting of life-saving medicine to be just one more low-risk venture from which international organized criminals can profit. The Counterfeit Drug Penalty Enhancement Act raises the maximum sentences for trafficking in counterfeit pharmaceutical products and requires the United States Sentencing Commission to consider amending its guidelines to account for the harm to the public and need for an effective deterrent.

We should not expect that enactment of this or any legislation will completely deter the serious problem of counterfeit medication entering the American supply chain, but it is an important step in the fight.

Passage of this legislation today by the Senate is also evidence that Congress can work together in a bipartisan manner to protect American consumers and promote American industries. I urge the House of Representatives to act quickly on this legislation and send it to the President's desk.

The Senate is considering a bipartisan bill that would reauthorize critical infrastructure investments and that will protect an estimated 1.8 million jobs if enacted before the end of this month. Unfortunately, in order to move forward on this important legislation, my friends on the other side of the aisle have demanded that we first consider an amendment entirely unrelated to transportation or even job creation. We have now spent the past 2 days considering a Republican amendment that would roll back access to health care for millions of Americans.

Access to health care for women has come under attack in recent weeks after the Department of Health and Human Services announced it would follow the recommendations of the nonpartisan Institute of Medicine and require that under the Affordable Care Act, health plans must cover a range of preventative services for women, including contraception. This is not a novel solution. Twenty-eight States, including Vermont, already require such coverage. The new rule will also include no-cost preventative coverage of a range of services for women including mammograms, prenatal screenings, cervical cancer screenings, flu shots, and much more.

Some religious institutions were apprehensive about the policy and, in response, the Obama administration made further accommodations to address these concerns. The new policy strikes a reasonable balance and is a solution that continues to recognize the obvious truth that women have a right to affordable and comprehensive health care, just as men do. One thing we all should agree on is that availability of birth control has improved women's health and reduced the number of teen pregnancies and the rates of abortion. This should be applauded.

Unfortunately, this compromise did not satisfy some who insist on politicizing women's health. At a House Oversight and Government Reform Committee hearing a few weeks ago, a thoughtful Georgetown law student was prevented from testifying about her experiences because she was deemed not ``appropriate and qualified'' to testify at the hearing by its Republican chairman. Not surprisingly, the all-male panel failed to raise any first-hand concern about women's health care needs. Rather than demonizing women who speak out on behalf of the millions who use contraception, we should be having a principled debate about access to health care. Last year, Congress nearly shut down the government over funding for Planned Parenthood and other title X providers. States have recently followed suit by passing laws limiting women's access to health care services. Our focus should be on improving access to quality and affordable health care for all Americans, not arbitrarily restricting important services needed by millions of women.

The Republican amendment marks just the latest overreach and intrusion into women's health care. While this debate began as one focused on access to birth control, the amendment has a far greater reach and jeopardizes virtually any health care service that an employer or insurance plan deems contrary to its undefined ``moral conviction''--whether the employer is a religious institution or not. For example, any plan or insurer could deny coverage of vaccinations or HIV/AIDS treatment based on a moral or religious objection. The pending amendment would allow any employer or insurer to refuse contraceptive coverage, annual well-women visits, gestational diabetes screening, and domestic violence screenings. This amendment could allow an insurance provider to refuse coverage of health care services to an interracial couple or single mom because of a religious or moral objection.

At the core of the Affordable Care Act was the principle that all Americans, regardless of health history or gender, have the right to access health care services. This amendment turns that belief around and would take decisions out of the hands of patients and doctors and place them with businesses and insurance plans. This serves only to put businesses and insurance companies in the driver's seat, allowing them to capriciously deny women coverage of health care services. The amendment is a direct attack on women's health that would have public health consequences for all Americans.

Today marks the first day of Women's History Month. Instead of considering legislation that might promote women's equality such as the Paycheck Fairness Act or the Fair Pay Act, we are being forced to vote on the amendment that undermines the ability of women to access basic health care. I will vote today in favor of the health of women and against the proposed amendment. I urge my fellow Senators to do the same.

Mr. President, I am proud to join Senator Kohl and have long supported the No Oil Producing and Exporting Cartels Act, NOPEC. We were able to pass this NOPEC bill as a response to the OPEC oil cartel by a vote of 70 to 23 a few years ago. The Senate should pass it again. This time, the House should also adopt this sensible application of our antitrust laws to those who fix prices and manipulate the oil market to the detriment of American consumers.

We should be doing what we can to ensure that oil prices are not artificially inflated. That affects gas prices at the pump. This NOPEC amendment will hold accountable the collusive behavior that artificially reduces supply and increases the price of fuel. The rise and fall of oil and gas prices has a direct impact on American consumers and our economy. We should increase accountability and take away the profits of those who manipulate prices and supply to their benefit and unfairly prey upon consumers.

On Monday, the U.S. Energy Information Administration reported that prices for regular gas rose 13 cents per gallon last week to a nationwide average of $3.78. Gasoline pump prices are up 34 cents a gallon over last year. The Senate Judiciary Committee held a hearing on the skyrocketing price of oil in May 2008, but these recent increases in price have led to renewed calls for investigation into their causes. We already know one significant cause: anticompetitive conduct by oil cartels.

The artificial pricing scheme enforced by OPEC affects all of us. Fuel prices are on the rise and American consumers and businesses are feeling the pain at the pump. This week Vermonters are paying $ 3.79 for a gallon of regular gasoline; last week, Vermonters were paying $3.70--a price jump of 9 cents in just 1 week. In 2011, the price for certain fuels rose by as much as one-third from 2010, according to the Vermont Department of Public Service. These prices affect everyone. These high fuel prices hit Vermonters especially hard in even the most mild of winters.

In rural States such as Vermont, the cost of simply getting to work or to the grocery store because of high gas prices can further hurt already strapped household incomes. Vermont farmers shoulder the burden of surging fuel prices year-round, regardless of the season. Higher fuel prices can add thousands of dollars in yearly costs to a 100-head dairy operation in the Northeast.

As we head into the summer months, when gas prices typically increase, soaring prices at the pump can affect the tourism industry, an economic driver in vacation destinations such as Vermont. As our summer months approach, many families in and around Vermont are going to find that OPEC has put an expensive crimp in their plans. Some are likely to stay home, others will pay more to drive or to fly so that they can visit their families or take their well-deserved vacations.

American consumers should not be held as economic hostages to the whim of those who collude unfairly for their gain. We should not permit anyone to manipulate oil prices in an anticompetitive manner. The collusive behavior of certain oil producing nations has artificially and drastically reduced the supply and inflated the price of fuel. Put simply, the behavior of these oil cartels, which would be illegal under antitrust laws, harms American consumers and businesses and our recovering economy.

Authorizing action against illegal oil price fixing and taking that action without delay is one thing we can do without additional obstruction or delay. Our amendment would allow the Justice Department to crack down on illegal price manipulation by oil cartels. This bill will allow the Federal Government to take legal action against any foreign state, including members of OPEC, for price fixing and artificially limiting the amount of available oil. While OPEC actions remain sheltered from antitrust enforcement, the ability of the governments involved to wreak havoc on the American economy remains unchecked.

Our antitrust laws have been called the ``Magna Carta of free enterprise.'' If OPEC were simply a foreign business engaged in this type of behavior, it would already be subject to them. It is wrong to let OPEC producers off the hook just because their anticompetitive practices come with the seal of approval of national governments.

In the past, our NOPEC legislation has had bipartisan support. A few years ago it passed overwhelmingly. By passing this legislation, we can say no to OPEC.

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

The PRESIDING OFFICER (Mr. Merkley.) The clerk will call the roll.

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

Mr. President, am I correct that the order is such that the vote will be at 5:30?

Mr. President, I ask unanimous consent that the vote be at 5:30.

Mr. President, certainly if the ranking member comes to the floor and wishes to change that, I would not object.

Earlier this month the Senate finally ended a four-month and two-day filibuster of the confirmation of Judge Adalberto Jordan and he is now the first Cuban-American to serve on the Eleventh Circuit. We also finally ended the five-month filibuster of the nomination of Jesse Furman, a former counselor to Attorney General Mukasey, and he is now a confirmed Federal trial judge in the Southern District of New York.

The Majority Leader should not have had to file cloture petitions for the Senate to vote on these outstanding judicial nominations. Senate Republicans have filibustered nine of President Obama's judicial nominations despite the fact that he has reached out to both Republican and Democratic home state Senators and nominated qualified, ideologically moderate men and women to fill vacancies on our Federal courts.

Before I turn to the nomination of Margo Brodie, another nomination that should have been confirmed last year after being reported by the Senate Judiciary Committee unanimously in October, I want to spend a moment reflecting on Senate Republicans' treatment of Jesse Furman. Judge Furman was a Federal prosecutor who also served as a top legal advisor to Attorney General Michael Mukasey during the George W. Bush administration. He was involved with the prosecutions of the Times Square bomber, the infamous Russian spies, and a Pakistani scientist with ties to Al Qaeda whose actions were responsible for the 1998 bombings of the U.S. embassies in Kenya and Tanzania. He has impeccable credentials including having clerked for Justice David Souter on the United States Supreme Court. Based on his superior qualifications and bipartisan support, the Senate Judiciary Committee reported his nomination last September unanimously, without a single Republican Senator dissenting.

His nomination, like so many others, was then subjected to obstruction and delay. From the start of his term, Republican Senators have applied a double standard to President Obama's nominees. Senate Republicans have chosen to depart dramatically from the long tradition of deference to home state Senators on district court nominees. Instead, an unprecedented number of President Obama's highly-qualified district court nominees have been targeted for opposition and obstruction. That approach is a serious break from the Senate's practice of advice and consent. Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate. Of these 2,100 nominees, only six have been reported by party-line votes-- only six total in the last 65 years. Five of those six party-line votes have been by Republican Senators against President Obama's highly- qualified district court nominees. In fact, only 22 of those 2,100 district court nominees were reported by any kind of split roll call vote at all, and eight of those, more than a third, have been by Republican Senators choosing to oppose President Obama's nominees. President Obama's nominees are being treated differently than those of any President, Democratic or Republican, before him.

Despite his qualifications and bipartisan supporters, Jesse Furman's nomination was stalled for more than five months by Senate Republicans. When the Majority Leader was able to break through and schedule debate and a vote, I saw something else I have not seen until recently. Republican Senators who had supported the nomination after studying it for months when it was before the Judiciary Committee for a hearing and vote, flipped and changed their votes.

In total, 34 Republican Senators voted against this highly-qualified nominee. I am at a loss as to why. It appears that Senators decided to ignore Jesse Furman's record and be swayed by mischaracterizations of a brief he had written in a religious freedom case or by something he wrote as an 18-year old freshman in college. I urge Senators, as I have for years, not to listen to the extreme special interests but to make their own judgments. I suspect that in this case it was the last-minute campaign by narrow special interests groups that accounted for the number of negative votes.

Today the Senate will vote on the confirmation of another highly- qualified, consensus nominee to the Federal bench. Margo Brodie has practiced law for 20 years including working as a Federal prosecutor in Brooklyn for the last 12. She has risen from the ranks of Assistant U.S. Attorney to Deputy Chief of General Crimes to Deputy Chief of the Criminal Division. Ms. Brodie has successfully prosecuted numerous cases on matters ranging from violent crimes and drug offenses to white collar crimes. She has also led public corruption cases, successfully prosecuting criminals who embezzled funds and tried to bribe government agencies in her home state of New York.

Ms. Brodie has the support of both her home state Senators and was reported by the Senate Judiciary Committee on October 6, 2011, without a single dissent. She has demonstrated her commitment to the rule of law, her legal abilities and knowledge of the law. It is past time for the Senate to confirm this outstanding African-American woman to the Federal bench.

Margo Brodie is one of 20 judicial nominations approved by the Senate Judiciary Committee still awaiting a final vote. Fifteen of these nominations have been pending since last year and should have been confirmed before the end of last year. Eighteen of these nominees received strong bipartisan support from the Senate Judiciary Committee.

These nominees should be confirmed without further delay. Now in the fourth year of President Obama's first term, the number of judicial vacancies remains at 85. That is nearly double what they were at this point in President Bush's administration. One hundred and thirty million Americans live in circuits or districts with a judicial vacancy that could be filled if Senate Republicans would vote on judicial nominees that have already been voted on by the Senate Judiciary Committee and are stalled awaiting final Senate consideration.

The Senate is more than 40 confirmations behind the pace we set confirming President Bush's judicial nominees in 2001 through 2004. For the second year in a row, the Senate Republican leadership ignored long-established precedent and refused to allow votes before the December recess on the nearly 20 consensus judicial nominees who had been favorably reported by the Judiciary Committee.

Ultimately, it is the American people who pay the price for Senate Republican's unnecessary and harmful delay in confirming judges to our Federal courts. It is unacceptable for hardworking Americans who are seeking their day in court to find seats on one in 10 of those courts vacant. When an injured plaintiff sues to help cover the cost of medical expenses, that plaintiff should not have to wait for years before a judge hears his or her case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.

I, again, urge Senate Republicans to stop the destructive delays that have plagued our nominations process. I urge them to stop the slow- walking of highly-qualified, consensus nominees. The American people deserve no less.

Mr. President, have the yeas and nays been ordered?

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