Floor Statements

Mr. President, with the conclusion of the first session of the 112th Congress, the Senate Republican leadership has cost us the opportunity to take long overdue steps to address the serious vacancies crisis on Federal courts throughout the country. With one out of every ten Federal judgeships vacant we can and should be doing all that we can to consider and confirm judicial nominations without unnecessary delays. Regrettably, Senate Republicans have chosen instead to continue their tactics of unexplained delay and obstruction and to repeat their damaging decision at the end of last year to refuse to consent to votes on even consensus judicial nominations. Such delaying tactics are a disservice to the American people. The Senate should fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.

There are 21 judicial nominees awaiting final Senate action, all but two of them reported with significant bipartisan support, 16 of them unanimously. That means nearly every judicial nomination can and should be confirmed before the Senate adjourns. Yet, the Senate's Republican leadership is repeating the terrible practice at the end of last year in which 19 judicial nominees were blocked by Republicans and stalled at the end of the year. It then took until June to take action on 17 of those nominees.

The recent filibuster of the D.C. Circuit nomination of Caitlin Halligan, a highly-regarded appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit, set a new and damaging standard. By refusing to consent to votes on consensus nominees before the end of the session, Senate Republicans are setting another damaging standard that will make it difficult for future Presidents of either party to fill judicial vacancies.

I am speaking about the kinds of qualified, consensus nominees who in past years would have been considered and confirmed by the Senate within days of being reported with the support of every Democrat and every Republican on the Judiciary Committee. Yet, due to Republican refusal to give consent, it will take many months for the Senate to confirm them to start serving on the Federal bench. Meanwhile, millions of Americans who are served by the Federal courts in those districts and circuits are left with overburdened courts and unneceesary delays in having their cases determined.

All of these consensus nominees have been through an extensive evaluation process before being reported to the Senate for final approval. Senator Grassley and I have ensured all of these nominees were fully considered by the Judiciary Committee after a

thorough, fair process, including completing our extensive questionnaire and questioning at a hearing. Before each of these nominees was selected by the President, the White House worked with the nominees' home state Senators who support them, the FBI completed an extensive background review, and each nominee was reviewed by the American Bar Association's Standing Committee on the Federal Judiciary. When the nominations have been approved by the Judiciary Committee after this thorough process, there is no reason for the Senate failing to vote on them before the end of the session.

It is wrong to dismiss the delays resulting from the Senate Republicans' obstruction as merely political tit for tat. This is a new and damaging tactic Senate Republicans have devised. They are stalling action on noncontroversial nominees. Meanwhile, millions of Americans across the country who are harmed by delays in overburdened courts bear the cost of this obstruction. Nearly half of all Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations now pending on the Senate Executive Calendar. It is wrong to delay votes on these qualified, consensus judicial nominees. The Senate should be helping to fill these multiple, extended judicial vacancies before adjourning.

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 are seeking their day in court 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 for 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.

With almost one in nine Federal judgeships currently vacant, the Senate should have come together to address the serious judicial vacancies crisis on Federal courts around the country. Bill Robinson, the president of the American Bar Association, warned recently in a letter to Senate leaders that excessive vacancies and high caseloads ``deprive . . . our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.'' Justice Scalia, Justice Kennedy and Chief Justice Roberts have also warned of the serious problems created by persistent judicial vacancies. This is an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts.

If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have blocked us from voting to confirm consensus nominees to fill judicial emergency vacancies. They would have consented to consider the nomination of Judge Adalberto Jordan of Florida which was reported unanimously on October to fill a judicial emergency vacancy on the Eleventh Circuit. He is a well-respected Federal judge and his nomination is strongly supported by Florida's Republican Senator, Mr. Rubio. Yet, despite the judicial emergency Republicans continue to delay consideration of that nomination. If they were really concerned with caseloads, they would have consented to move forward to confirm Judge Jacqueline Nguyen of California, a well-qualified nominee to fill a judicial emergency vacancy on the Ninth Circuit, the busiest Federal appeals court in the country, with judges called upon to handle double the caseload of the other Federal circuit courts. Her nomination was reported unanimously by the Judiciary Committee and needs only a final vote by the Senate. Judge Nguyen is nominated to fill the judicial emergency vacancy that remains after the Republican filibuster of Goodwin Liu.

If they cared about caseloads, they should also have consented to votes on the nominations of David Nuffer to the District of Utah, Michael Fitzgerald to the Central District of California, Gregg Costa to the Southern District of Texas, and David Guaderrama to the Western District of Texas, all nominations to fill judicial emergency vacancies. Instead, those vacancies will not be filled for several more months.

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 secret holds and obstructive blocks remind 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 had gotten past these partisan tactics. I am disappointed after working for more than a decade to restore transparency and fairness to the process of considering judicial nominations that we see the Senate Republicans again using anonymous holds to block progress at filling judicial vacancies.

The actions of the Senate Republican leadership today to block action on 18 qualified, consensus judicial nominations mirrors their action last year when they stalled consideration of 19 judicial nominations that had been reported by the Judiciary Committee and were ready for final Senate action at the end of last year. That was an abusive exercise in unnecessary delay that I believe was without precedent with respect to such consensus nominees. In contrast, Democratic Senators proceeded to up or down votes on all 100 of President Bush's judicial nominations reported by the Judiciary Committee during his first two years in office, and all 100 were confirmed before the end of the 107th Congress.

I had hoped and urged that such damaging obstruction not be repeated. I had urged that before we adjourned the Senate at least consider the 18 judicial nominees voted on by the Judiciary Committee who are by any measure consensus nominees. With vacancies continuing at harmfully high levels, the American people and our Federal courts cannot afford these unnecessary and damaging delays. It took until June of this year, halfway into 2011, to consider and confirm 17 of the nominations that could and should have been considered before the end of 2010. Yet Senate Republicans are employing the same destructive tactics.

For the second year in a row, Republicans have rejected the Senate's traditional longstanding practice of considering all of the consensus nominations before the end of the Senate session, setting a standard that before they did it last year was without precedent. We consented to consider all of the consensus nominations at the end of President Reagan's third year in office and President George H.W. Bush's third year in office, when no judicial nominations were left pending on the Senate Calendar. That is what we did at the end of the 1995 session, President Clinton's third year in office, when only a single nomination was left pending on the Senate calendar.

That is also what we did at the end of President George W. Bush's third year. Although some judicial nominations were left pending, they were among the most controversial, extreme and ideological of President Bush's nominees. They had previously been debated extensively by the Senate. The standard then was 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 this year. Had we done so, another 18 judges would have been confirmed.

The Senate remains far behind where we should be in considering President Obama's judicial nominations. Nearly 3 years into his first term, the Senate has 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. That was a

higher percentage of judicial nominees confirmed than President Clinton achieved and is far higher than President Obama's nominees.

Despite Senate Democrats joining Senate Republicans in confirming a high percentage of President Bush's judicial nominees, Republican Senators continue to point to the handful of President Bush's nominees who were not confirmed to justify their across the board delays and obstruction of President Obama's nominees. During their filibuster last week of Caitlin Halligan, President Obama's first nominee to fill the 9th seat on the D.C. Circuit, we heard several Republicans seek to justify the misguided filibuster by pointing to the fact that Peter Keisler was not confirmed to fill the 11th seat on that same court. Their selective recollection omits that the Senate did confirm four of President Bush's D.C. Circuit nominees, twice filling the 10th seat and once the 11th.

In her recent column on the New York Times website, Linda Greenhouse wrote about how low the judicial confirmation process has sunk with the Caitlin Halligan filibuster and the disparate treatment of President Obama's nominees. She wrote:

But it seems to me that this tit-for-tat goes only so far.

President Bush succeeded in putting four decidedly

conservative nominees on the D.C. Circuit. Three remain there

today: Janice Rogers Brown, Thomas B. Griffith, and Brett M.

Kavanaugh. The fourth was John G. Roberts Jr. It was his

seat, which Chief Justice Roberts vacated on Sept. 29, 2005,

to which Ms. Halligan was nominated. True, the Republicans

didn't get everything they wanted. But they seem determined

to make sure that President Obama gets nothing.

I ask unanimous consent that a copy of Ms. Greenhouse's column be printed in the Record at the conclusion of my remarks.

Mr. President, we remain well behind the pace set by the Senate during President Bush's first term. By the end of his first term, the Senate had confirmed 205 district and circuit nominees, had already confirmed 168 by this point in his third year, and had lowered judicial vacancies to 46. In contrast, the Senate has confirmed only 124 of President Obama's district and circuit nominees, leaving judicial vacancies at more than 80. The vacancy rate remains nearly double what it had been reduced to by this point in the Bush administration. Senate action on the 18 consensus judicial nominations pending before the Senate as it ends it session would have gone a long way to helping resolve the longstanding judicial vacancies that are delaying justice for so many Americans in our Federal courts across the country.

When the Senate returns in January, I hope that Senate Republicans will abandon these destructive practices and join with us to confirm the qualified, consensus judicial nominations they have stalled. This cycle of unnecessary delays must end.

Exhibit 1

[From the New York Times, Dec. 14, 2011]

Rock Bottom

(By Linda Greenhouse)

Now that another highly qualified judicial nominee has been

left as road kill, the question is how much lower can the

confirmation process sink.

I'm referring to the defeat, by filibuster, last week of

Caitlin J. Halligan, President Obama's nominee to the United

States Court of Appeals for the District of Columbia Circuit.

I last wrote about Ms. Halligan back in April, at which point

her nomination had been pending for more than six months. Now

it's dead, on a nearly party-line vote, the Democratic

leadership having fallen six votes short of the 60 needed to

invoke cloture.

The only Republican to break ranks was Senator Lisa

Murkowski of Alaska, who won reelection as a write-in

candidate and so owes nothing to her Republican bosses. No

such independence was shown by the two Republican senators

from Maine, Olympia J. Snowe and Susan Collins, so-called

moderates whose efforts to explain their votes against

permitting Ms. Caitlin's nomination to come to a vote (a

simple majority would have approved it) were so contorted as

to be barely comprehensible. (Senator Collins mumbled

something about needing to shrink the appeals court, failing

to note that the Republicans invoked no such workload-related

compunctions when they filled not only the ninth seat, to

which Ms. Halligan was nominated, but the tenth as well.

There are now three vacancies on the 11-member court.)

Back in May, Senator Murkowski was also the only Republican

to vote to end the filibuster against Goodwin Liu, whom

President Obama had nominated to the United States Court of

Appeals for the Ninth Circuit, in San Francisco. (Now Justice

Liu, the former Berkeley law professor may have the last

laugh; Gov. Jerry Brown promptly named him to the California

Supreme Court.) At 41, Mr. Liu, a Rhodes scholar and former

Supreme Court law clerk, is a leading progressive legal

scholar of his generation. Although the Republicans came up

with other rationales for opposing him, including his Senate

Judiciary Committee testimony six years ago against the

Supreme Court confirmation of Samuel A. Alito Jr., the actual

reason was that they couldn't stand the thought of a young,

super smart, energetic liberal sitting on the appeals court,

in the launch position to become the first Asian-American on

the Supreme Court.

Mr. Liu is a friend of mine. I applauded his nomination and

was distressed at its fate. But since I don't believe that

judges are simply umpires who call balls and strikes, I get

the role of ideology in evaluating judicial nominees. What I

don't get is what happened to Ms.Halligan, whom I've met only

once or twice. She has no ideological markings other than

those that identify her with the mainstream of the New York

legal establishment, within which, following a clerkship with

Justice Stephen G. Breyer, she has made a spectacularly

successful career in both the public and private sectors. She

was solicitor general of New York State; head of the

appellate practice at a major law firm; and is now general

counsel to the Manhattan district attorney. She has argued

before the Supreme Court five times. Her 45th birthday was

Dec. 14.

This was not a fight over ideology. It was an effort to

keep the president from filling a seat on what is not just

another appeals court. The D.C. Circuit is not just a federal

court but a national one, with jurisdiction over federal

regulatory initiatives and habeas corpus appeals by

Guantanamo detainees. Next month, it will hear a potential

landmark case on the constitutionality of the Voting Rights

Act. Its caseload may not be huge, but its cases tend to be

dense, tough and vitally important.

When pressed on their treatment of Ms. Halligan,

Republicans typically invoke President George W. Bush's two

nominees whom the Democrats blocked from the D.C. Circuit,

Peter D. Keisler and Miguel A. Estrada, both highly qualified

and both prominent conservatives. (The classy Mr. Estrada

wrote to the Judiciary Committee in support of Ms. Halligan,

as did two dozen other members of leading law firms.)

But it seems to me that this tit-for-tat goes only so far.

President Bush succeeded in putting four decidedly

conservative nominees on the D.C. Circuit. Three remain there

today: Janice Rogers Brown, Thomas B. Griffith, and Brett M.

Kavanaugh. the fourth was John G. Roberts Jr. It was his

seat, which Chief Justice Roberts vacated on Sept. 29, 2005,

to which Ms. Halligan was nominated. True, the Republicans

didn't get everything they wanted. But they seem determined

to make sure that President Obama gets nothing.

Across the federal judiciary, confirmation has been

proceeding at a slow crawl. This week, the Judiciary

Committee held a scheduled confirmation hearing that could

have accommodated five nominees. But because Republican

senators claimed not to be finished reading the F.B.I. files

of four of the nominees, only one, Paul J. Watford, nominated

for the Ninth Circuit, was able to appear for his hearing.

Nominees who clear the committee without opposition have to

wait months for a floor vote because the Republicans won't

agree to a speedier schedule. Of 21 nominees now awaiting

floor votes, 18 had no committee opposition, but only a

handful, at most, will get a vote before the Senate recesses

for the year.

Just when news on the judicial front could not get more

discouraging, I came across something truly bizarre, a

position paper by the new front-runner among Republican

presidential candidates, Newt Gingrich. Under the title

``Bringing the Courts Back Under the Constitution,'' Mr.

Gingrich launches a 28-page attack on ``lawless judges'' who

need to be reined in ``if we are going to retain American

freedoms and American identity.''

The document, he writes, ``serves as political notice to

the public and to the legislative and judicial branches that

a Gingrich administration will reject the theory of judicial

supremacy and will reject passivity as a response to Supreme

Court rulings that ignore executive and legislative concerns

and which seek to institute policy changes that more properly

rest with Congress.'' By rejecting passivity, Mr. Gingrich

means impeaching judges for ``unconstitutional'' rulings or,

failing to muster the two-thirds majority necessary for

impeachment, simply abolishing their positions.

Much of the document is a grab bag of long familiar right-

wing talking points (Judges who acknowledge foreign law? A

threat to ``American sovereignty!'') It is also just plain

sloppy, misspelling Justice Ruth Bader Ginsburg's name

throughout. But truly head-spinning is the tenuous hold that

this screed, from a onetime history professor, has on

American history.

Mr. Gingrich writes that the contemporary ``power grab by

the Supreme Court'' is a ``modern phenomenon and a dramatic

break from all previous American history.'' (Anyone remember

the court's response to the

New Deal?) Rebuking the court for substituting its will for

that of Congress is downright strange, given that it is the

Republicans who have run to the federal courts, imploring

judges to strike down the Congressionally enacted Affordable

Care Act.

Perhaps strangest of all is Mr. Gingrich's attack on Cooper

v. Aaron, the court's celebrated response to the Little Rock

school crisis of 1958. The unanimous opinion, signed

individually by all nine justices for emphasis, held that

Arkansas and all other states were bound by the court's

interpretation of the equal protection guarantee four years

earlier in Brown v. Board of Education. Cooper v. Aaron was,

as Justice Breyer writes in his recent book, ``Making Our

Democracy Work,'' essential in its time and part of the

``hard-earned victory for the rule of law'' that the Little

Rock story became. Newt Gingrich is unmoved. Cooper v.

Aaron's assertion of the Supreme Court's authority, he

writes, was ``factually and historically false.''

Thinking back to Ms. Halligan's failed nomination, I

actually don't disagree with everything in Mr. Gingrich's

manifesto. Four words in boldface type on page 20 caught my

attention: ``Electing the right Senators.''

Mr. President, Vermont and other the other States still reeling in the aftermath of Hurricane Irene have a huge stake in the misguided offset resolution sent to us by the House of Representatives. In fact, all Americans have a stake in this.

On the heels of unprecedented flooding this spring, the State of Vermont bore the full brunt of Irene in August. Our small State is stretched to the limit right now. Our people need the helping hand of Federal disaster recovery programs just as Vermonters, decade after decade, have always supported this safety net when other States have needed it.

These programs were already running on fumes before Irene and now the need is even greater in this tough year in which 48 States have had Federal disasters declared within their borders.

The Senate promptly started the effort to replenish the depleted disaster funds with a strong and responsible stand-alone bill in September. Our legislation is within the bounds of the budget agreement reached this summer, and after overcoming a partisan filibuster, we got that bill through the Senate in a bipartisan vote.

Now all these months later the House of Representatives sends us a smaller disaster aid bill along with a resolution that calls for the new disaster spending to be offset. In other words, undo the bipartisan budget agreement that we all agreed to back in August; change the long practice of Americans promptly helping fellow Americans in a disaster's aftermath; and pit disaster victims against those trying to get a loan to start their small business, those needing student loans, those needing nutrition and housing assistance, those developing alternative energy sources, or those performing cutting-edge research against disease.

The House resolution calling for disaster funding to be offset with across-the-board cuts is a weak and cynical response, and it should be rejected.

It is disappointing and incomprehensible that some in Congress continue to insist that assistance can only come at the cost of other programs relied upon by the American people. Some of these same voices had no problem with spending hundreds of billions of borrowed dollars on wars waged overseas, on rebuilding communities in Iraq and Afghanistan, and on giving tax breaks to the wealthiest among us. But now they insist on a different standard, different rules, for emergency recovery efforts desperately needed by Americans here at home. That is just wrong.

We need to come together as a country, as we always have in the past, to pass an emergency disaster bill that is adequate to the devastation faced by Vermonters and millions of other Americans. We are bound together as one nation, the United States. Americans help each other in time of need.

I know there are bipartisan majorities for passing a straightforward disaster relief package as we have for every other disaster in the past, but political point-scoring and my-way-or-no-way factionalism stand in the way. That is unconscionable.

Vermonters and countless others who are trying to get back on their feet after Irene and other calamities across our Nation do not have the luxury of time to waste on the temper tantrums of ideological factions in Congress. It is winter now; a harsh season in our part of the country. Some parts of Vermont already have seen over a foot of snow and more is on the way.

Statesmanship should never be out of season least of all, when our fellow Americans' livelihoods are at stake.

In the spirit of the holiday season, I continue to hope that reason and goodwill will prevail in the Senate on this ridiculous call to offset disaster relief, and on so many other issues before us that are critical to the American people.

Mr. President, again, with the indulgence of my colleagues, if I might, just for a moment, call to the attention of my colleagues the several provisions of the Defense authorization bill we are going to consider for final passage today. These provisions will have a major impact on our defense structure and performance in the years to come. These reforms were previously included in a bill I introduced with Senator Lindsey Graham in May, S. 1025, which Senator Graham and I nicknamed ``Guard Empowerment II.''

As cochair with Senator Graham of the Senate National Guard Caucus, I am pleased to report that the most important of these Guard empowerment reforms are included in the final version of the Defense authorization bill. They include a provision that will make the Chief of the National Guard Bureau a statutory member of the Joint Chiefs of Staff. The Joint Chiefs--our highest military policy council--has not added a member since 1978--and I remember that because I voted for it--when the Commandant of the Marine Corps was finally added as a full participant.

This is truly a historic day for the National Guard and for all the Guard does for our Nation. One might ask: Why now? Why is this change so important? Our Guard has been bravely serving in near constant rotation with Active-Duty Forces overseas for the last decade. Each of us has gone to Afghanistan or Iraq and seen our Guard serving. At the same time, these Guard troops have been the military's first responders at home. The Pentagon hasn't caught up with the institutional changes that have to accompany this. It is a whole different world for the National Guard today than what it was 20 years ago.

In fact, after all the National Guard has done over the past 10 years, we are hearing rumors the Air Force is already planning serious cuts to its Guard and Reserve components. General Schwartz, Air Force Chief of Staff, announced:

We're going to get smaller. Active duty, Guard, and

Reserve--we're going to get smaller together.

I question the logic of an across-the-board cut. I hope most of us would. That is why we have to have a Guard Chief on the Joint Chiefs of Staff to provide a vital voice, perhaps a dissenting voice, when it is needed most.

When I look at the Vermont Guard, it demonstrates why these kinds of cuts don't make sense. The Vermont Guard deployed nearly 1,500 troops to Afghanistan last year. Before that, the Vermont Guard deployed to Iraq during one of its most violent periods and made unspeakable sacrifices for this country. I know because I went to the funerals of Vermont Guard members and because we are such a small State, many times everybody knew the person who had died.

The Vermont Air Guard flew more than 100 consecutive days of air missions over New York City and Washington after the attacks of September 11 around the clock. If we properly man, train, and equip our State Guards, our military leaders will find them the peer of any Active-Duty unit. In fact, the Vermont Air Guard is one of the first three units to be considered to receive the F-35 Joint Strike Fighter. And not only will the service Chiefs find their reserve components ready to serve when called, they will find them a lot less expensive.

The Defense bill also includes several other provisions of our Guard empowerment bill. It reinstates the three-star Vice Chief of the Guard Bureau, it institutes the recommendations on Federal-State military integration offered by the Council of Governors, it includes a limited authorization of the State Partnership Program, it mandates the consideration of Guard generals for certain vacant positions at U.S. Northern Command, and on and on.

I think it is going to lay the groundwork for further collaboration between the Armed Services Committee, the Appropriations Committee, and the Senate National Guard Caucus. Our National Guard is a superb 21st- century military organization, but it has been trapped in a 20th- century Pentagon bureaucracy.

These reforms will help clear away the cobwebs.

It shows what happens when Democrats and Republicans work together. Sometimes it is not noted in the press, but a lot gets done around here when Democrats and Republicans work together. Senator Graham and I introduced a bill in May that has more than 70 cosponsors from both parties. We have accomplished a lot for our Guard with this bill, again, by having Democrats and Republicans work together. There is more to be done, but what a great start.

As I have said about Democrats and Republicans working together, I have to applaud the two Senators from Alaska. Because of their hard work, we have this nominee before us, and that is something every one of us should take pride in, the way the two have worked together.

Mr. President, I yield the floor.

Mr. President, how much time is remaining on the judgeship?

Mr. President, I want to reiterate what I said before about Senator Murkowski and Senator Begich for their support of this woman for the Ninth Circuit. I appreciate the work they have done on this nomination. I also appreciate the personal comments the senior Senator from Alaska made, going back to her law school days. I think sometimes we forget that these judicial nominees are real people and they have a real life and are a real part of the community. So I appreciate that.

I yield back the remainder of the time on our side.

Mr. President, the Senate today will pass the National Defense Authorization Act for the coming fiscal year. This vote is historic as Congress has enacted a national defense authorization act every year for the past half century. I commend the Senate for maintaining this steadfast support for our armed services, but this legislation will be remembered for reasons both bad and good. I regret the decision of the House and Senate conferees to include unnecessary and potentially harmful provisions related to the detention of terrorist suspects. However, I strongly support measures in the conference report that will empower the National Guard within the Department of Defense, enhance protections for military victims of sexual violence, increase transparency by limiting unnecessary exclusions from the Freedom of Information Act, improve mental health outreach to members of the National Guard and Reserves, and make many other changes to strengthen our national defense and take care of our men and women in uniform.

I continue to strongly oppose the detention related provisions in this conference report, which I believe are unwise and unnecessary. These provisions undermine our Nation's fundamental principles of due process and civil liberties and inject operational uncertainty into our counterterrorism efforts in a way that I believe harms our national security.

I strongly oppose section 1021 of this conference report, which statutorily authorizes indefinite detention. I am fundamentally opposed to indefinite detention and certainly when the detainee is a U.S. citizen held without charge. Indefinite detention contradicts the most basic principles of law that I subscribed to when I was a prosecutor, and it severely weakens our credibility when we criticize other governments for engaging in similar conduct.

Supporters of this measure will argue that this language simply codifies the status quo. That is not good enough. I am not satisfied with the status quo. Under no circumstances should the United States of America have a policy of indefinite detention. I fought against Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy. And I strongly opposed President Obama's executive Order on detention when it was announced last March because it contemplated, if not outright endorsed, indefinite detention.

This is not a partisan issue for me. I have opposed indefinite detention no matter which party holds the keys to the jailhouse. I fought to preserve habeas corpus review for those detained at Guantanamo Bay because I believe that the United States must uphold the principles of due process and should only deprive a person of their liberty subject to judicial review.

Today, I joined Senator Feinstein, Senator Lee, and others to introduce a bill titled the Due Process Guarantee Act. This bill will make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention. In the 2004 Supreme Court opinion in Hamdi v. Rumsfeld, Justice Sandra Day O'Connor stated unequivocally: ``We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.'' It is stunning to me that sponsors of the underlying Senate bill argued for the indefinite detention of U.S. citizens at Guantanamo Bay. We must make clear that our laws do not stand for such a proposition. We are a nation of laws, and we must adhere vigilantly to the principles of our Constitution. I urge all Senators to support this bipartisan effort to protect American values and cosponsor the Due Process Guarantee Act.

I am also deeply troubled by the mandatory military detention requirements included in section 1022 of this conference report. In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need, not limit those tools. But limiting them is exactly what this conference report does. Secretary Panetta has stated unequivocally that ``[t]his provision restrains the Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.'' Requiring terrorism suspects to be held only in military custody and limiting the available options in the field is unwise and unnecessary.

Supporters of the conference report claim that concerns about the mandatory military detention section are ``red herrings.'' They claim that they have modified the legislation in ways that give the President the flexibility he needs to apply the provisions without impeding investigations or undermining operations in the field. The changes are totally inadequate. The Statement of Administration Position, SAP, calls the mandatory military detention section ``unnecessary, untested, and legally controversial.'' The SAP goes on to state that ``applying this military custody requirement to individuals inside the United States . . . would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.''

Some supporters of the conference report also claim that the national security waiver provision is ``a mile wide'' and provides the administration with sufficient flexibility. The intelligence professionals who work every day to keep our Nation safe disagree. The Director of National Intelligence, James R. Clapper, wrote to Senator Feinstein that the ``detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military, and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks.''

As chairman of the Judiciary Committee, I am particularly concerned

that this provision fails to acknowledge or appreciate the vital role that law enforcement and the courts play in our counterterrorism efforts. In light of the hundreds of successful prosecutions of terrorism defendants in Federal courts, why would we want to remove this option from the table? As Jeh Johnson, the Pentagon's top lawyer, said recently, the Federal courts are ``well equipped to handle the prosecution of dangerous domestic and international terrorists,'' and ``the military is not the only answer.'' I could not agree more.

The implementation procedures required in the legislation are simply not enough to alleviate the potential for problems in the field. As Secretary Panetta stated in his recent letter to Senator Levin, this provision may ``needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.'' No one in the military, intelligence community, or law enforcement has asked for this provision, and rather than strengthening our national security, it makes us less safe.

During floor debate over the Senate bill, FBI Director Mueller wrote that the mandatory military provision would adversely affect the Bureau's ability to conduct counterterrorism investigations and inject ``a substantial element of uncertainty'' into its operations. He argued that the provision fails to take into account ``the reality of a counterterrorism investigation.'' The conference report modified the mandatory military detention section to preserve the existing law enforcement and national security authorities of the FBI, but the effect of that new language remains unclear. At our Judiciary Committee hearing on December 14, the FBI Director stated that the modified text ``does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case.'' The FBI Director is particularly concerned with how the legislation will affect the Bureau's ability to gain the cooperation of suspects. The FBI has a long and successful track record in the cultivation and use of cooperating witnesses. But as Director Muller stated, ``The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.'' I cannot understand why the authors of this conference continue to insist upon language that will undermine the FBI in its use of this critical counterterrorism authority.

The language in the detention subtitle of this conference report is the product of a process that has lacked transparency from the start. These measures directly affect law enforcement, detention, and terrorism matters that have traditionally been subject to the jurisdiction of the Senate Judiciary Committee and the Senate Select Committee on Intelligence, but neither committee was consulted about these provisions in July when the legislation was first considered by the Armed Services Committee, nor was either committee consulted earlier this month when it was modified. I also can see no reason why these provisions were rushed through the committee without the input of the Defense Department and Federal intelligence and law enforcement agencies that will be directly affected if this language is enacted. On issues of such national significance, the American people deserve an open and transparent process.

Supporters of the detention provisions in the conference report continue to argue that such measures are needed because, they claim, ``we are a nation at war.'' That does not mean that we should be a nation without laws or a nation that does not adhere to the principles of our Constitution. We should prosecute those who commit crimes and terrorist acts and sentence them to long terms in prison. The Department of Justice has prosecuted more than 440 terrorists since September 11, 2001. We have a very strong record and nothing to fear from choosing a course that upholds American values and the rule of law. That is why I also oppose some of onerous funding and certification restrictions that make it virtually impossible to transfer individuals out of Guantanamo or to prosecute individuals detained there in Federal courts.

I also strongly oppose section 1029 of the conference report, which requires the Attorney General to consult with the Director of National Intelligence and Secretary of Defense before seeking an indictment of certain terrorism suspects. This provision was not considered or debated by the Senate and certainly not by the Senate Judiciary Committee, which I chair. I oppose this provision because it needlessly undermines the authority of the Attorney General and is an unprecedented infringement on the prosecutorial independence of the Department of Justice.

Regrettably, the detention language in this conference report remains fundamentally flawed. The detainee provisions will codify a practice of indefinite detention that has no place in the justice system of any democracy. They will cause further damage to our reputation as a nation that respects the fundamental right of due process, harm the efforts of intelligence and law enforcement officials in the field, and may limit their ability to track down terrorists and bring them to justice. My support for the Defense bill should not be construed as support for its detention provisions, which I oppose in the strongest possible terms.

Instead, my support for the bill reflects the inclusion of the National Guard Empowerment Act, a bill I drafted with Senator Lindsey Graham, as an amendment to its underlying text. The Guard empowerment provisions have been understandably overshadowed by the debate on other, more contentious provisions in the bill, but I nevertheless believe that these provisions will set the stage for dramatic changes to our military force structure in the years to come.

Beginning in May, a new national security consensus quietly formed in Congress around an issue at the core of our national security. Seventy- one senators from both parties steadily added their support to S. 1025, the bill that Senator Graham and I called Guard Empowerment II. The provisions of our bill built upon the first Guard empowerment bill that I introduced with Senator Kit Bond of Missouri. That measure became law in 2008 and elevated the Chief of the National Guard Bureau to the rank of four-star general. This year's bill had as its headlining provision an effort to make the Chief a statutory member of the Joint Chiefs of Staff. Despite the vociferous opposition of Active component generals in the Pentagon--including all six sitting Joint Chiefs of Staff--a bipartisan congressional consensus formed around S. 1025 and Guard empowerment. I was pleased that the Senate included its provisions in our version of the National Defense Authorization Act late last month and that the conferees retained a majority of those provisions in the conference report.

The new consensus on the National Guard comes as the budget debates of this Congress have fractured the Cold War national security consensus of the last half century. While those fractures were an inevitable outcome of the end of the Soviet empire, what will replace the Cold War consensus remains unclear. Some Members of Congress argue for diplomatic and military retrenchment from every corner of the globe back to Fortress America. Others believe that we must expand, not shrink, our international footprint. Yet nearly everyone agrees that budgetary factors must mean a change in the way the Pentagon does business--and that change cannot wait.

The seeds of that change were sown a decade ago. In the days and weeks following 9/11, the former ``strategic reserve'' became, of necessity, fully operational. The National Guard and Reserve components, once a Cold War failsafe, were called into regular rotation in the wars in Iraq and Afghanistan. Our country simply could not field the forces we needed without calling on the Guard and Reserve. Simultaneously, America experienced domestic disasters on an unprecedented scale. In each situation, the President called on the National Guard as the military first responders to help citizens in need. Today, the metamorphosis from a strategic reserve to an operational reserve is complete.

Yet entrenched bureaucratic interests still resist what most Americans now accept as an accomplished fact. The Joint Chiefs fought our efforts to bring the Chief of the Guard Bureau into the ``Tank'' not because they misunderstand the value of the Guard and

Reserve, but precisely because they fear that value proposition may threaten the size and budget of their Active components in the years to come.

Nevertheless the Active component must shrink, both as a consequence of our current budgetary reality and to reflect the constitutional vision the Framers had of a small standing Army augmented by a larger cadre of citizen soldiers. Simultaneously, the Guard and Reserve must grow so that those cuts to the Active force can be quickly and easily reversed if the circumstances demand it. Just a year ago, no one predicted our operations to oust Muammar Qadhafi. In a world where military needs change day by day, we must not hollow out the force. To avoid that outcome in a period of austere budgets, we must depend more and more on the National Guard and Reserve.

To that end, the conferees included section 512 in this Defense bill which adds the Chief of the National Guard Bureau to the Joint Chiefs of Staff. It also reinforces the duties and responsibilities of the Chief as listed in 10 U.S.C. Sec. 10502 in accordance with the listing of responsibilities of the Chief already in that section. This provision is historic and will dramatically improve the advice that the President and Secretary of Defense receive on matters of national security and the defense budget.

Section 511, ``Leadership of the National Guard Bureau,'' reestablishes the Vice Chief of the National Guard Bureau as a lieutenant general and excludes the positions of the Chief and the Vice Chief of the National Guard Bureau from limitations on the number of general and flag officers in the Department of Defense. Reinstating the Deputy position at the National Guard Bureau will give the Chief flexibility at a time when he sorely needs it and providing a third star for the position will give it more institutional clout.

Section 515 implements the outcomes of a negotiation between the Council of Governors and the Department of Defense by authorizing the President to order the Federal Reserve component to Active Duty to provide assistance in response to a major disaster or emergency. In addition to authorizing a Reserve forces callup for domestic disasters and emergencies, it codifies the dual-status title 10 and title 32 commander as the usual and customary command relationship for military operations inside the United States, a key victory for Federal-State integration of military command and control.

Section 518, ``Consideration of Reserve Component Officers for Appointment to Certain Command Positions,'' is a modified version of a provision of S. 1025 which would have reserved the positions of commander, Army North, and commander, Air Force North, for National Guard officers with an emphasis on the consideration of current and former adjutants general. Instead, the section requires that Guard and Reserve officers be considered for these positions whenever they are vacant.

Section 1085, ``Use of State Partnership Program Funds for Certain Purposes,'' includes a limited authorization of the State Partnership Program which is the major vehicle for the National Guard of the States to participate in international security assistance and capacity building missions at the request of the State Department chief of mission and geographic combatant commander.

Last but certainly not least, section 1080A, ``Report on Costs of Units of the Reserve Components and the Active Components of the Armed Forces,'' institutes the ``similar unit'' cost report proposed by S. 1025 with some added detail and while retaining the Comptroller General evaluation of the Department's report. That last requirement is important to keep the Department of Defense honest in its assumptions and analysis leading to conclusions about the relative cost of Active and Reserve units.

The Reserve component cost report will undergird efforts by the Senate National Guard Caucus in the years to come. While it has long been common knowledge that the National Guard and Reserves are cheaper to maintain in dwell than Active-Duty Forces, the report will prove that colloquial wisdom and bolster the arguments of the Congress in a future push to reduce the size of the Active component as we draw down from Iraq and Afghanistan while growing the size of the Reserve components.

I am also pleased that the conferees included my language to narrow the Freedom of Information Act, FOIA, exemption in the bill for Department of Defense critical infrastructure security information. This improvement adds a public interest balancing test requiring that the Secretary of Defense consider whether the public interest in the disclosure of this information outweighs the government's need to withhold the information when evaluating FOIA requests. The addition of this measure to the National Defense Authorization Act will help ensure that FOIA remains a viable tool for access to Department of Defense information that impacts the health and safety of the American public.

As I said at the outset, this National Defense Authorization Act will be remembered both for changing our process of detaining and prosecuting suspected terrorists and for empowering the National Guard. I continue to oppose the changes the act will make to our counterterrorism legal regime. But I nevertheless support how the act will improve the sourcing and fielding of military forces in the years to come. I will look to fix the former and further improve the latter in future legislation.

Madam President, I have actually voted for a balanced budget. Democrats in this Chamber and in the other Chamber voted for one and it passed. Not a single Republican voted for it. During the Clinton administration, we were able to balance the budget and start paying down the debt. A huge surplus was left to his successor and it was squandered by that administration.

We should not enshrine the extreme provisions in the current proposal in our Constitution. We should not make it more difficult for Congress to respond to economic and natural disasters. Proponents of this amendment say: Let's let the courts make these decisions. Let us not transform our courts into budget-cutting bodies. They are not equipped to perform that role. Even Justice Scalia, testifying before our committee, laughed at the idea that they could do that.

The Hatch-McConnell proposal will do nothing to spur economic growth or ease the partisan gridlock in the Congress. It will do the opposite. It will enshrine bad fiscal policy in the Constitution. A vote for this proposal is a vote for dramatic cuts in Social Security, Medicare, and veterans' benefits.

Partisan efforts like this may be good bumper-sticker politics, but they are bad solutions. I wish those who say they revere the Constitution would show it the respect it deserves rather than treating it like a blog entry.

I urge Senators to oppose this radical and ill-considered proposal to amend our Constitution.

Mr. President, the House Republicans have sent us a payroll tax bill that is more of a political campaign commercial than a piece of serious legislation. Extending this tax break for ordinary Americans evidently has been a tough sell in the other body, unlike the eagerness found there for even more tax relief for the very wealthy. Among the many unrelated, controversial provisions they have attached as sweeteners is one that would force the President to approve the Keystone XL tar sands oil pipeline. Proponents of this tar sands project provision argue that it belongs on this bill because building the pipeline would create jobs.

Any construction project creates jobs. We could create thousands of jobs by investing in clean solar and wind energy, as the Chinese have done. And people can disagree about building the Keystone Pipeline, but there is a lot more to it than the short-term jobs it would create, and trying to jam it through Congress on this bill in the waning hours of the session is little more than a political stunt.

It was about 15 months ago that I first learned about the plan to build a pipeline to transport crude oil from tar sand strip mines in Alberta across the U.S.-Canada border and down through the Midwestern United States to refineries and ports in Texas.

Tar sands are a particularly dirty source of petroleum, from extraction to refinement. As I looked into this issue I saw some of the photographs of the boreal forest area where it is extracted, and I was shocked. Anyone who is interested in this issue, whether or not you think building the pipeline is a good idea, should look at the photographs. They depict an extraordinarily beautiful landscape that has been ravaged by heavy machinery, vast ponds filled with polluted water and sludge, and a scared wasteland where forests used to be. It is one of the more graphic examples of how our collective, insatiable thirst for oil has pillaged the fragile environment of this planet. Our demand for fossil fuels will continue to grow exponentially unless we come up with a comprehensive, national energy plan and have the will to implement it.

We all know that the extraction of oil, minerals, timber, and other natural resources often harms the environment. But there are degrees of harm. Removing the tops of mountains and dumping the refuse in rivers and ravines or extracting heavy oil from tar sands are among the most energy intensive and destructive.

Under the law, the State Department has the responsibility to approve or disapprove the pipeline because it crosses an international boundary. More than a year ago, I and 10 other Senators sent a letter to the State Department raising concerns about the

proposed pipeline and the impact of tar sands oil on global warming and asking a number of questions about the Department's decisionmaking process. Eight months later we received a response, which answered some of our questions and raised others.

I and other Senators sent two additional letters to the Department about the pipeline, most recently about reports of a possible conflict of interest between the contractor that performed the environmental review, Cardno/Entrix, and the energy company, TransCanada.

There have also been e-mails indicating a less-than-arm's-length relationship between a State Department official at the U.S. Embassy in Ottawa and a lobbyist for TransCanada. And a month ago the State Department's inspector general announced the beginning of an investigation into whether conflicts of interest tainted the environmental review process.

What began as basic questions and fundamental concerns about the pipeline has evolved into a significant controversy regarding the impact the pipeline will have upon our Nation's energy policy and continuing dependence on fossil fuels, the irreversible harm to the environment and the acceleration of climate change, and the potential for oilspills that could contaminate a key aquifer underlying an area of critical agricultural importance that hundreds of thousands of midwesterners depend on for irrigation and drinking water.

From the beginning, I have expressed misgivings about the State Department's ability to conduct a thorough, credible investigation of a project of this complexity that involves issues about which it has limited expertise. There are reports of inexperienced staff handling the lion's share of the work, and it is not surprising that the Environmental Protection Agency and the Department of Energy have raised concerns and identified flaws in the State Department's analysis.

It is my impression that the State Department, from the outset, approached this with a sense of inevitability. What they did not anticipate was the strong reaction of Members of Congress of both parties, including several from Midwestern States that have been coping with multiple oilspills from the original Keystone Pipeline that company officials have treated as inconsequential. They also did not anticipate the strong opposition from ordinary Americans who pay close attention to environmental and energy policy issues, for whom tar sands oil is particularly repugnant.

Concerns about the consequences of this project have united not only those living along the proposed route but people across the Nation, including in Vermont, as well as in Canada, who care about the environment, both in this country and in Canada, and who understand the need to wean our Nation from oil and other fossil fuels and to invest in renewables and energy efficiency.

Every President since the 1970s has spoken of the need to reduce our dependence on fossil fuels and particularly foreign oil. But despite all the speeches, year after year we are more dependent on these finite, polluting sources of energy than ever before.

Today, energy companies are spending staggering amounts of money in search of new sources of oil and gas in some of the most inhospitable places on Earth, where its extraction involves great risks to the people involved, the environment, and endangered species. We even send our young service men and women halfway around the world to fight wars, in part to ensure our continued access to a ready supply of oil. It has become a national security priority.

We have lost valuable time, and there are no quick fixes. No matter what we do today, later this week, or later this month, this country will be dependent on fossil fuels for many years to come. But simply replacing Middle Eastern oil with Canadian oil without creating new, dependable sources of renewable energy and improving efficiency in the energy we use does not alleviate the national security and economic risks associated with a global oil market that is vulnerable to manipulation and disruption.

There is also much more we could do to make use of what we have by wasting less, improving end-use efficiency, and increasing our use of renewable sources of energy. While TransCanada and its supporters extol the virtues of the Keystone XL Pipeline, as the minority leader and others have done, simply by reducing waste we could eliminate entirely the need for the energy produced from the oil that would flow through the pipeline.

I come from a State that shares a border with Canada. My wife's family is Canadian. I have a great fondness for that ``giant to the north.'' But this issue is not about U.S. relations with Canada. We are inseparable neighbors, friends, and allies. There are strong views about this pipeline, pro and con, in both countries. As Americans, we have to do what is right for our country's energy future, for the environment, for our citizens.

Some have argued that if this pipeline is not built, TransCanada will simply build a pipeline to the coast of British Columbia and export the oil to China. But there are significant obstacles and no indication that such an alternative route is a viable option. Others maintain that the carbon emissions from extracting and refining this oil would not appreciably exceed those from oil shipped by tanker from the Middle East, but they do not address the environmental harm and pollution caused by the strip mining and separation process.

TransCanada has flooded the media with dire warnings about the American jobs that will be lost if the pipeline is rejected, which our Republican friends have echoed, trying to turn this into a campaign issue. But most of these are construction jobs that will disappear once the pipeline is built. And the choice is not between jobs or no jobs. They do not mention the tens or hundreds of thousands of American jobs that could be created by investing in other cleaner, renewable sources of energy, which, unlike tar sands oil, will not be used up in a few short decades.

Last month, in response to concerns about the sensitive and crucial aquifer that the pipeline would traverse in the Midwest, the White House announced that the State Department will consider alternative routes through Nebraska and that this would delay a decision on the pipeline until 2013. This is positive, but it ignores the many other reasons to reject this project altogether.

It is my hope that on further reflection, the President will treat the debate over the Keystone XL Pipeline as an opportunity to draw a line between our past and future energy policies.

Fossil fuels are finite, inefficient, and dirty. The cost we pay at the gas pump bears no resemblance to the long-term environmental and health costs borne by society as a whole.

We cannot lessen our reliance on fossil fuels by simply talking about it. We cannot do it by putting our goals for a better future under the pillow and leaving any real action to future generations. We cannot do it by hoping that a scientific genius will suddenly discover an unlimited source of energy that costs pennies and does not pollute, nor should we do it by spending huge amounts of money, time, talent and American ingenuity to search the farthest reaches of the globe for every last drop of oil, regardless of how dangerous or harmful to the environment.

Will the Keystone XL tar sands oil pipeline have the cataclysmic consequences that some of its opponents predict? No one can say for sure. If anyone had asked officials at British Petroleum on April 9, 2010, about the probability of a disaster like the one that occurred the next day when the Deepwater Horizon exploded in the Gulf of Mexico, they likely would have dismissed it as farfetched. It turns out they were violating multiple safety regulations.

Are we going to change the pipeline's route to avoid the aquifer, only to continue to act as if global warming is nothing to worry about, that we can continue to burn more and more fossil fuels, emitting more and more carbon into the atmosphere, and destroying the landscape while we are at it?

This pipeline would perpetuate a costly dependence that has gone on for a century, for which we all share in the blame. Keystone XL would once again do nothing to address the problems associated with fossil fuels. It would virtually assure more oilspills, it would do nothing to promote conservation and reduce waste, and it would do

nothing to spur investment in clean energy alternatives.

Most important, it would provide yet another excuse for once again punting the urgent, national security imperative of developing a sustainable energy policy for this country. That is what the decision about the Keystone XL tar sands oil pipeline has come to represent regardless of what route it takes.

Mr. President, it occurs to me that all Senators swear an oath to support and defend the Constitution of the United States. I carry a copy around with me. It is our duty. It is our responsibility. But the pending amendments to the Constitution that are on the floor of the Senate threaten the constitutional principles that have sustained our democracy for more than 200 years.

In addressing the Nation's debt and deficit, what is lacking are not phrases in our Constitution. What is lacking is the seriousness within today's Congress to act, and the willingness in Congress to cooperate in forgoing solutions that meet the real needs of our country and its people. These are human failures, not the failure of our constitutional framework. Nor are these failures insoluble or inherent. We balanced the budget and even created budget surpluses less than two decades ago.

Now we are being asked to put the problem once again under the pillow for another day--this radical partisan proposal would be out of place in our national charter.

Never in our history have we amended the Constitution--the work of our Founders--to impose budgetary restrictions that require supermajorities for passing legislation. Yet now it seems every Member on the other side of the aisle has joined to put forth a radical proposal to burden our Constitution with both of these kinds of strictures.

The Hatch-McConnell proposal is different in kind than any other amendment to our Constitution. It is not consistent with the design of our founding document or the stance taken by our Founding Fathers.

It is a bad idea to write fiscal policy into our Nation's most fundamental charter. It is simply unnecessary. We do not need a balanced budget amendment to balance a budget. A vote for this amendment does absolutely nothing to get our fiscal house in order. Congress can work to continue our economic recovery. We can pass the appropriate legislation that leads to a Federal balanced budget, just as we did in the early 1990s.

I remember that very well because I was here. I remember, in this body, not a single Republican voted to balance the budget. It took the Democrats in the Senate and the Vice President of the United States to pass that balanced budget. Not a single Republican voted for a balanced budget in the House. They gave a lot of speeches on the floor that if we passed that balanced budget amendment, everything would come to a screeching halt. Actually, what happened was we passed it, and President Clinton was able to leave his successor a huge surplus.

With a growing economy, with what we did by votes in the House and the Senate--not by a constitutional amendment--we were able to create significant budget surpluses and pay down the debt until those surpluses were squandered. We have done it before. We can do it again. We need only work together to make the tough decisions, not to pass something that is a feel-good, bumper-sticker kind of item which kicks the can down the road and binds future Congresses to a fiscal proposal that is fundamentally unsound and the consequences of which are not understood.

The Republican proposal in the Senate is significantly more radical than the version the House of Representatives rejected in a bipartisan vote last month. In fact, the Hatch-McConnell constitutional amendment is the most extreme of all the pending proposals. The proposal, by its terms, will neither balance the budget nor pay down the Nation's debt, something everybody says they want. Instead, at a time of partisan brinksmanship that has led to the first-ever downgrading of our country's credit rating this summer and when ideological gridlock is the Republicans' operating principle, it would require supermajorities to pass legislation for the first time in our Nation's history. It would require a supermajority to raise the debt ceiling in times of economic crisis. Did we learn nothing from the disaster we went through last summer, which should have been a routine lifting of the debt ceiling and became a political free-for-all for weeks and months, cost the American taxpayers billions of dollars and caused people to lose their retirement money in the stock market? Do we want to do that again? I hope the Senate rejects this proposal.

Two weeks ago, the Judiciary Committee's Subcommittee on the Constitution held a hearing to examine the Hatch-McConnell proposal. All those witnesses, including those who were invited by the measure's cosponsors, presented thoughtful critiques of this extreme proposal and voiced serious concerns about its wording. Even Republican cosponsors discussed possible changes to the language in order to better achieve their goals. This is not the proposal that Senator Hatch previously favored. This is one of more than two dozen pending versions. In fact, we were not told which of the many versions of the proposal would be pending until yesterday. This proposal has not been considered by the Constitution Subcommittee or the Judiciary Committee. The House of Representatives has already voted down a less-extreme version of this proposal by a bipartisan majority. Yet here is the Senate of the United States, being forced to vote on some proposal for a constitutional amendment without doing any of the hard work or the votes that are expected to accompany an amendment to America's Constitution. This is no way for the Senate to proceed on a proposed constitutional amendment. This is not some feel-good resolution. We are talking about amending America's charter.

The Hatch-McConnell proposal contains many problematic provisions and it leaves many significant questions unanswered. Section 10 of this proposal relies on estimates for outlays and receipts. We know that economists' estimates and recommendations do not always agree. So what do these proposed constitutional provisions really mean? We know that estimates are not static but ever changing. What if during the course of a fiscal year, there was a natural disaster, a terrorist attack, or a shift in the economy? What then? What if estimates were recalculated or revised, as employment statistics are every month? Would that make every penny expended by the Government over a revised estimate unconstitutional? Would that mean we could not help disaster victims or could not respond to a terrorist attack?

Another provision would limit total outlays for each fiscal year to 18 percent not 16, not 20, not 17.9 of the previous year's Gross Domestic Product (GDP). But who is to decide what the ``GDP'' was for a particular time period? What is to be included and what is not? How often do those estimates and artificial constructs get revised? Since when do economic surveys and shifting estimates belong in the Constitution? And what policy decision justifies the constitutional permanence of the number 18? I note that not even the budget proposed this year by Representative Ryan and the House Republicans, with all its draconian cuts and the end of Medicare as we know it, would satisfy this arbitrary 18 percent of GDP limit. None of the budgets proposed by or passed under President Reagan, not one, would have satisfied this proposal. At the end of the Bush

administration we survived the worst economic downturn since the Great Depression and are now in economic recovery. This is not the time to enact such a measure which would take us in the wrong direction. We cannot ``cut'' our way to a balanced budget without imposing great suffering. It would tank the economy rather than aid our continuing recovery.

Besides its arbitrary nature, limiting outlays to 18 percent of the previous year's GDP would leave Congress unable to respond swiftly and effectively to economic downturns and natural disasters. The Hatch- McConnell proposal would require a two-thirds supermajority to spend in excess of 18 percent of the previous year's GDP for a specific purpose. Filibusters and requirements for supermajorities have become routine to the detriment of the American people. They have stymied congressional action on behalf of the American people. This proposal would give a minority in Congress even more power to hold the country and our economy hostage. Have we not seen what that can mean? Have the lessons of the last year been lost on the Senate?

The Hatch-McConnell proposal would make permanent bad policy choices. Section 4 is a transparent attempt to enshrine tax breaks for millionaires and wealthy corporations by requiring a two-thirds supermajority to impose any new tax or even to close existing tax loopholes. We need a balanced approach to fix the deficit problem. And the wealthiest among us are those who least need a heavy hand on the scales in favor of their interests.

Let's look at what has happened. We have fought two unfunded wars. It is the first time in our history that we not only did not pass a tax to pay for a war we are in but actually passed a tax cut and borrowed money to pay for these wars. We squandered the surpluses the last administration inherited, ran up deficits and the national debt.

I would remind everybody, we can achieve a balanced budget. We have done it before. Working with President Clinton, Democrats in Congress voted for a balanced budget. But I don't want to hear lectures from the other side, when every single Republican voted no the last time we had a successful balanced budget. Our strong economy in the Clinton years led to budget surpluses. If we are serious about reducing the deficit and paying down our debt, we need to get to work improving our economy, getting Americans back to work, and continuing to recover from the worst economic conditions since the Great Depression.

One of the most glaring problems with this proposal is it provides no clear enforcement mechanism or standards for enforcement. Section 8 of the Hatch-McConnell proposal expressly prohibits courts from increasing revenues to enforce the amendment, but remains silent on judicial enforcement of the amendment by cutting spending. This proposal assumes our Federal courts are equipped to enforce this amendment. Do we want to say we will simply relinquish Congress's constitutional power of the purse to an unelected judiciary with no budget experience--something no Congress, Republican or Democratically controlled--has ever done before? Do we want judges deciding fiscal policy? Do we want judges to decide whether we cut Social Security or Medicare?

I recently asked Justice Scalia at a hearing before the Senate Judiciary Committee whether the Federal judiciary was equipped to handle such a task--the same task my friends on the other side of the aisle want the Federal judiciary to do. Do you know how he answered? He laughed. He indicated that budget issues and determining the allocation of resources is not the judiciary's proper role. Of course he is right, and I expect this is one area where all nine members of the Supreme Court would have answered the same. The proponents of this effort to transform courts into budget-cutting bodies are wrong. The Republican proposal does not even make clear who, if anyone, has standing to bring such challenges in court. None of these questions has been adequately debated or considered. Such a drastic change to the time-honored role of the judicial branch of our government should not be written into our Constitution presumptuously.

In addition to all these concerns, the American people need to understand what the real-world effect of such an amendment would be on their daily lives. In the Senate Judiciary Committee, we received alarming testimony from the president-elect of AARP, warning of the damaging effects such a constitutional amendment would have on Social Security, Medicare, and Medicaid. He testified that if such a constitutional amendment were in place today, the average Social Security benefit would be cut by 27 percent. Maybe that is what Members of this body want to do, cut Social Security by 27 percent. I do not. Do they want to balance the budget on the backs of hard-working, lower income, and elderly Americans by drastically cutting the safety net? I would say that is not the answer to our economic challenges, especially as we continue to give tax breaks to millionaires and continue to fight unfunded wars.

The notion of amending the Constitution to require a balanced budget is not new. The Senate rejected balanced budget amendments in 1995, 1996, and 1997. We proved after the Reagan and Bush administrations had tripled the national debt that we could through hard work and legislation, balance the budget. That is what Congress did in the late 1990s. We helped create hundreds of millions of dollars in surpluses that were paying down the national debt. Those surpluses were squandered by tax cuts for the wealthy and two unfunded wars. That is the cause of our budget imbalance.

We should not, for the first time in American history, amend the Constitution to set fiscal policy. It is a bad idea. It is even more irresponsible to consider doing so when we do not yet understand the full weight of the consequences of who is going to bear the burden.

I have never seen the solemn duty of protecting the Constitution treated in such a cavalier manner as it is today. I have heard many say they revere the Constitution. Let us show it the respect it deserves rather than treating it like a blog entry or a bumper-sticker slogan. Let us not be so vain in this body to think we know better than our Founders and better than the constitutional Framers who preserved our liberties for more than 200 years.

Our constitutional principles have served the test of time. They deserve protection. I will stand with the Constitution. I will stand with the Constitution of this country, and I will oppose this ill- conceived proposal to amend it.

I ask unanimous consent to have printed in the Record my full statement, and I yield the floor.

Madam President, I understand morning business will now close.

Madam President, some of the people I have heard who oppose Ms. Halligan were also some of the same people who successfully opposed an effort in the Congress to actually protect police officers a few years ago. So I want to put the opposition in context. It is probably why so many law enforcement groups support Ms. Halligan, because she stood up for law enforcement, unlike some of the groups we have heard about who oppose her, who sought to make the life of police officers more dangerous.

Be that as it may, the Senate stands at a crossroads today. Voting to end the partisan filibuster of this judicial nomination is as important as it was when the Senate did so in connection with the nomination of Judge McConnell to the United States District Court of Rhode Island earlier this year. If we allow the partisan filibuster to go forward, then the Senate will be setting a new standard that no nominee can meet if they wish to be confirmed to the DC Circuit.

Republican Senators who just a few years ago argued that filibusters against judicial nominees were unconstitutional and said that they would never support such a filibuster, and those who care about the judiciary in the Senate, need to step forward and do the right thing. You cannot say that filibusters against judicial nominees are unconstitutional when you have a Republican President but suddenly support a filibuster when you have a Democratic President. This goes even beyond the standards that have driven the approval rating of Congress to an all-time low for hypocrisy. We ought to end the filibuster now and proceed to vote on this extraordinarily well- qualified nominee.

Ms. Halligan, nominated to fill one of three vacant seats on the important DC Circuit, is a highly regarded appellate advocate. She has the kind of impeccable credentials in both public service and private practice that have been looked for in the past by both Democratic and Republican Presidents. Her nomination reminds me of John Roberts, when he was confirmed by every single Democrat and every single Republican to the DC Circuit in 2003. I certainly did not agree with every position he had taken or argument he had made as a high-level lawyer in several Republican administrations, but I supported his nomination to the DC Circuit, as I did to the Supreme Court, because of his legal excellence and ability.

It is frustrating to have Senators tell me privately they know Ms. Halligan is just as qualified as John Roberts was, but this lobby and that lobby are against her. Lobbyists come and go. The court is supposed to be the epitome of justice in this country.

I trusted John Roberts' testimony that he would fairly apply the law if confirmed. If the standard we used for him is applied to Ms. Halligan, there is no question this filibuster will end and Caitlin Halligan will be confirmed.

By any traditional standard, Caitlin Halligan is the kind of superbly qualified nominee who should easily be confirmed by the Senate. Yet, the Senate Republican leadership's filibuster of this nomination threatens to set a new standard that could not be met by anyone. It would not have been met by John Roberts. If this is the new standard, it is wrong, it is unjustified and it is dangerous. Overcoming it will take a handful of sensible Senate Republicans willing to buck their leadership and some single-issue lobbyists. They have done it before and they should again now. Those who care about the judiciary--and as important, those who care about the Senate--need to come forward and end this filibuster.

From the beginning of the Obama administration, we have seen too many Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President. During the administration of the last President, a Republican, they insisted that filibusters of judicial nominees were unconstitutional. They threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes for each of President Bush's judicial nominations.

Many Republican Senators declared that they would never support the filibuster of a judicial nomination. Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana. They tried to prevent an up or down vote on his nomination even though he was nominated by President Obama after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. The Senate rejected that unjustified filibuster and Judge Hamilton was confirmed with Senator Lugar's support.

With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the DC Circuit virtually impossible for the future. Caitlin Halligan is a well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice. She served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice, currently serves as General Counsel at the New York County District Attorney's Office, and has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts. She clerked for Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on the DC Circuit, the court to which she has been nominated. No Senator has or can question her qualifications. I have reviewed her record carefully in the course of the Judiciary Committee's thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and in writing following the hearing. In my view, there is no legitimate reason or justification for filibustering her nomination.

Yesterday, I put into the Record some of the many letters of support we have received from across the political spectrum for Ms. Halligan's nomination. These letters are a testament to both her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention. They attest to the fact she is not a closed-minded idealogue, but is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career. We should encourage nominees with the qualities of Ms. Halligan to engage in public service. We should welcome people like her to serve on the Federal bench, not denigrate them. Concocted controversies and a blatant misreading of Ms. Halligan's record as an advocate are no reason to obstruct this outstanding nomination.

I also demonstrated yesterday that any so-called ``caseload'' concern is no justification for filibustering this nomination. This was not a concern we heard from Republicans when they voted to confirm President Bush's nominees to fill not only the 9th seat, but also the 10th seat and the 11th seat on this court a couple of years ago. They should not now use caseload as an excuse to filibuster President Obama's nomination to fill the ninth seat when the DC Circuit's caseload has increased. There are only two differences today than when President Bush's nominees to the DC Circuit were confirmed in 2005 and 2006: One, the caseload per active judge has increased, not decreased; and we have a Democratic President, not a Republican President.

The DC Circuit is often considered the second most important court in the land because of the complex cases that it handles, cases that have grown in

importance since the attacks of September 11. As noted in a recent Washington Post editorial: ``[Caseload numbers do] not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.'' I ask unanimous consent that a copy of this editorial and one from today's Boston Globe be printed in the Record at the conclusion of my remarks, along with letters to the editor of the Washington Post in support of Ms. Halligan's nomination.

Madam President, I suggest the absence of a quorum, and I ask unanimous consent that the time during the quorum be equally divided.

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

I see the distinguished Senator from New York on the floor, and I have a feeling that she will have a statement of support of this superb nominee.

I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on December 6, 2011, at 2:15 p.m. in S-115.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on December 6, 2011, at 10 a.m., to conduct a hearing entitled ``Continued Oversight of the Implementation of the Wall Street Reform Act.''

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on December 6, 2011, at 10:00 a.m., in room HVC-210 of the Capitol Visitor Center, to conduct a hearing entitled ``Tax Reform and the Tax Treatment of Financial Products.''

Mr. President, I ask unanimous consent that the Ad Hoc Subcommittee on Contracting Oversight of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on December 6, 2011, at 10:00 a.m. to conduct a hearing entitled, ``Whistleblower Protections for Government Contractors.''

Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts, be authorized to meet during the session of the Senate, on December 6, 2011, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Access to the Court: Televising the Supreme Court.''

Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy, and Consumer Rights, be authorized to meet during the session of the Senate, on December 6, 2011, at 2:30 p.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``The Express Scripts/Medco Merger: Cost Savings for Consumers or More Profits for the Middleman?''

Mr. President, I ask unanimous consent that the Subcommittee on Consumer Protection, Product Safety, and Insurance of the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate, on December 6, 2011, at 10 a.m., in room 253 of the Russell Senate Office Building.

The Committee will hold a hearing entitled, ``Contaminated Drywall: Examining the Current Health, Housing and Product Safety Issues Facing Homeowners.''

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

Today the Senate will finally consider nominations to fill four vacancies on Federal district courts, all of which were reported by the Judiciary Committee unanimously in September and early October. All four nominees Edgardo Ramos and Andrew Carter, nominated to the Southern District of New York, James Rodney Gilstrap, nominated to fill a judicial emergency vacancy in the Eastern District of Texas, and Dana Christensen, nominated to the District of Montana are superbly qualified nominees with the strong support of their home state Senators. It should not have taken three months or more for the Senate to vote on their nominations.

I thank the Majority Leader for securing a vote on these nominations, but I am disappointed that the Senate Republican leadership would not agree to a vote on the nomination of Jesse Furman to fill a third vacancy on the Southern District of New York. Like Edgardo Ramos, Andrew Carter and James Gilstrap, his nomination was reported by the Judiciary Committee on September 15 without opposition from a single member of the Committee, Democratic or Republican. Mr. Furman, an experienced Federal prosecutor who served as Counselor to Attorney General Michael Mukasey for two years during the Bush Administration, is a nominee with an impressive background and bipartisan support. There is no reason or explanation for why the Senate could not also consider his nomination today.

There is also no reason or explanation why Republican leadership will not consent to consider the other 20 judicial nominations waiting for final Senate action, all but four of which were reported by the Committee without any opposition, all but two of them with significant bipartisan support. Senator Grassley and I have worked together to ensure that each of the 25 nominations now on the Senate Calendar was fully considered by the Judiciary Committee after a thorough, fair process, including completing our extensive questionnaire and questioning at a hearing. Before each of these nominees was selected by the President, the White House worked with the nominees' home state Senators who support them, the FBI completed an extensive background review, and each nominee was peer reviewed by the American Bar Association's Standing Committee on the Federal Judiciary. When the nominations have been favorably reported by the Judiciary Committee after this extensive and thorough process, there is no reason for months and months of further delay before they can start serving the American people.

It is now December 5, with only weeks left in the Senate's 2011 session. I am concerned that we are not able to move more quickly at a time when we continue to hear from chief judges around the country about the overburdened courts in their districts and circuits. We need to consider at least eight judges every week in order to begin to catch up and erase the backlog that has developed from the delays in the consideration of consensus nominees caused by the Senate Republican leadership.

We should not repeat the mistakes of last year, when the Senate Republican leadership refused to consent to consider 19 judicial nominations reported by the Judiciary Committee, an exercise in unnecessary delay I believe to be without precedent with respect to such consensus nominees. It took us until June of this year, halfway into 2011, to consider and confirm 17 of these nominations that could and should have been considered before the end of 2010. Before we adjourn this year, there is certainly no reason the Senate cannot at least consider the 17 judicial nominations reported unanimously by the Committee this session, who are by any measure consensus nominees.

I hope that we do not see a repeat of the damaging decision by Senate Republican leadership at the end of last year to refuse to agree to votes on those nominations. That decision stood in stark contrast to the practice followed by the Democratic majority in the Senate during President Bush's first two years. Last year, Senate Republicans refused to use the same standards for considering President Obama's judicial nominees as we did when the Senate gave up or down votes to all 100 of President Bush's judicial nominations reported by the Committee in his first two years. All 100 were confirmed before the end of the 107th Congress, including two controversial circuit court nominations reported and then confirmed during the lame duck session in 2002. The Senate last year should not have been forced to adjourn with 19 judicial nominations still on the Senate calendar.

With vacancies continuing at harmfully high levels, we cannot afford to repeat these unnecessary and damaging delays. There is no reason we cannot make significant progress this month and consider all of the consensus nominations now pending on the Senate calendar. That is what we did at the end of President Reagan's third year in office and President George H.W. Bush's third year in office, when no judicial nominations were left pending on the Senate Calendar. That is what we did at the end of the 1995 session, President Clinton's third year in office, when only a single nomination was left pending on the Senate calendar. That is also what we did at the end of President George W. Bush's third year, when seven of the nine judicial nominations left on the calendar by the Senate's Republican majority were among President Bush's most extreme ideological picks and had previously been debated extensively by the Senate. The standard has been that noncontroversial judicial nominees reported by the Judiciary Committee get Senate action before the end of the year. That is the standard we should follow this year.

We remain well behind the pace set by the Senate during President Bush's first term. By the end of his first term, the Senate had confirmed 205 district and circuit nominees, and had already confirmed 167 by this point in his third year. So far, the Senate has confirmed only 119 of President Obama's district and circuit nominees. Senate action before adjournment on all 25 judicial nominations that are before the Senate today would go a long way to help resolve the longstanding judicial vacancies that are delaying justice for so many Americans in our Federal courts across the country.

The 100 circuit and district court nominations we confirmed in President Bush's first two years leading to a vacancy total of 60 at the beginning of his third year is almost a complete reverse of the 60 the Senate was allowed to confirm in President Obama's first two years, leading to nearly 100 vacancies at the start of 2011. Yet, even following those years of real progress, in 2003 we

proceeded to confirm more judicial nominations than there were vacancies at the start of that year, and reduced vacancies even further, down to 5 percent, half of where they stand today.

Chief Justice Roberts, the Attorney General and the White House counsel have all spoken about the serious problems created by persistent judicial vacancies. More than half of all Americans over 167 million live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar. As many as 23 states are served by Federal courts with vacancies that would be filled by these nominations. Millions of Americans across the country are harmed by delays in overburdened courts. The Republican leadership should consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies before we adjourn for the year and not unnecessarily delay their consideration until next spring.

The four nominees we consider today will all be confirmed, I expect, with significant bipartisan support. Edgardo Ramos is nominated to fill a vacancy on the District Court for the Southern District of New York. Since 2002, Mr. Ramos has been in private practice after serving for ten years as an Assistant U.S. Attorney in the Eastern District of New York, where he was promoted to Deputy Chief of the Narcotics Section. The ABA's Standing Committee on the Federal Judiciary unanimously rated him ``well qualified'' to serve, its highest possible rating. The nomination of Mr. Ramos has the strong support of both his home state Senators, Senator Schumer and Senator Gillibrand, and was reported by the Judiciary Committee by voice vote with no dissent on September 15.

The nomination of Judge Andrew Carter to fill a vacancy on the District Court for the Southern District of New York also has the strong support of the New York Senators and was also reported unanimously by voice vote on September 15. Since 2009, Judge Carter has been a Magistrate Judge for the Eastern District of New York. Prior to joining the bench, Judge Carter served for 13 years as a public defender in New York state and Federal and spent two years at the Ford Foundation as a Program Assistant in its Rights and Social Justice Program.

James Rodney Gilstrap is nominated to fill a vacancy on the District Court for the Eastern District of Texas determined by the Administrative Office of the U.S. Courts to be a judicial emergency vacancy. His nomination has the support of both his Republican home state Senators, Senator Cornyn and Senator Hutchison. For 27 years Mr. Gilstrap has been a partner at the law firm of Smith & Gilstrap in Marshall, Texas. He has also served as a part-time County Judge for Harrison County, Texas. His nomination was reported unanimously by the Judiciary Committee by voice vote on September 15.

Dana Christensen is nominated to fill a vacancy on the District Court for the District of Montana. Mr. Christensen has spent his 34-year legal career in private practice and is currently the president of the law firm of Christensen, Moore, Cockrell, Cummings & Axelberg, P.C. in Kalispell, Montana. The ABA Standing Committee on the Federal Judiciary unanimously rated Mr. Christensen ``well qualified'' to serve, its highest possible rating. His nomination has the support of both his home state Senators, Senator Baucus and Senator Tester, and was reported by the Judiciary Committee by voice vote with no dissent on October 6.

I hope the Senate can build on today's progress to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.

Nomination of Caitlin Halligan

Tomorrow the Senate should be holding an up-or-down vote on the long- delayed nomination of Caitlin Halligan to fill one of three vacancies on the Court of Appeals for the D.C. Circuit. Instead, for the seventh time since President Obama took office 34 months ago, we are required to overcome a Republican filibuster for the Senate to consider one of President Obama's superbly qualified judicial nominees.

Ms. Halligan, President Obama's first nominee to the important D.C. Circuit, is the former Solicitor General for the State of New York. With an impressive record in private practice and public service, she is widely respected for the quality of her work as an advocate. Indeed, Ms. Halligan's nomination was greeted with bipartisan support and has since garnered endorsements from law enforcement officials and organizations, women's organizations, law school deans and professors, judges and preeminent lawyers from across the political spectrum. The Judiciary Committee favorably reported Ms. Halligan's nomination nearly nine months ago.

By any traditional standard, she is the kind of superbly qualified nominee who should easily have been confirmed by the Senate months ago with the support of both Republicans and Democrats. I am disappointed that yet again instead of seeing bipartisan cooperation we are required to seek cloture.

From the beginning of the Obama administration, we have seen some Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President. During the administration of the last President, a Republican, Republican Senators insisted that filibusters of judicial nominees were unconstitutional. They threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes for each of President Bush's judicial nominations. Senator McConnell, then the Republican whip, said: ``Any President's judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote. . . . It's time to move away from advise and obstruct and get back to advise and consent. The stakes are high. . . . The Constitution of the United States is at stake.''

Many Republican Senators declared that they would never support the filibuster of a judicial nomination--never. Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana.

David Hamilton was a widely respected 15-year veteran of the Federal bench. President Obama nominated Judge Hamilton in March 2009, after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. Rather than welcome the nomination as an attempt by President Obama to step away from the ideological battles of the past, some Senate Republicans ignored Senator Lugar's support, caricatured Judge Hamilton's record and filibustered his nomination. After the Senate rejected that filibuster, Judge Hamilton was confirmed.

The partisan delays and opposition to President Obama's judicial nominations have continued since. Senate Republicans have required cloture motions to be filed on judicial nominations that ultimately won unanimous support from the Senate. Earlier this year they filibustered the nomination of Professor Goodwin Liu of California, who was supported by both his home state Senators to fill a judicial emergency vacancy on the Ninth Circuit. That successful filibuster of a brilliant lawyer and a good man prevented the Senate from having an up-or-down vote on his nomination and prevented an outstanding nominee from serving the American people on the Federal bench. They attempted to justify that filibuster on ideological grounds. There is no such justification here, in connection with the nomination of Caitlin Halligan who is a mainstream lawyer and public servant from New York. Senate Republican leadership took the virtually unprecedented step this year of requiring cloture to be filed on a district court nomination. That effort to ratchet up the judge wars was rejected when 11 Republican Senators joined to ensure an up-or-down vote on the nomination of Jack McConnell to the District of Rhode Island.

With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the D.C. Circuit virtually impossible for the future. Caitlin Halligan is well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice. I have reviewed her record carefully in the course the Judiciary Committee's thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and

in writing following the hearing. In my view, there is no legitimate reason or justification for filibustering her nomination.

Caitlin Halligan is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career. We should encourage nominees with the qualities of Ms. Halligan to engage in public service and we should welcome them on the Federal bench, not denigrate them. Concocted controversies and a blatant misreading of Ms. Halligan's record as an advocate are no reason to obstruct this outstanding nomination.

We must reject these misguided arguments. This filibuster against this qualified woman will set a standard that could not be met by judicial nominees of Presidents of either party. I trust that, as with the nomination of Jack McConnell, sensible Republican Senators will, again, join in preventing such an outcome. It is time to edge away from this dangerous precipice.

When Democratic Senators cooperated to confirm John Roberts to the D.C. Circuit in 2003, it broke the stalemate created by the Republicans refusal for years to even consider President Clinton's nominees to that Court. Like John Roberts, Caitlin Halligan is a highly regarded appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit. She should be confirmed, not unjustifiably filibustered.

Ms. Halligan served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice. She is currently General Counsel at the New York County District Attorney's Office, an office that investigates and prosecutes 100,000 criminal cases annually in Manhattan. Ms. Halligan has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts. Just as John Roberts had served in government and clerked for the Supreme Court, she clerked for Supreme Court Justice Stephen Breyer. She also clerked for Judge Patricia Wald on the D.C. Circuit, the court to which she has been nominated. The American Bar Association's Standing Committee on the Federal Judiciary, which Republican Senators often cite, unanimously rated Ms. Halligan ``Well- Qualified'' to serve on the D.C. Circuit. That is the highest rating that can be received from its non-partisan peer review.

The letters of support we have received for Ms. Halligan's nomination from a broad range of people and organizations is a testament both to her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention.

Twenty-one prominent appellate advocates from across the political spectrum who have worked with Caitlin Halligan, including Miguel Estrada and Carter Phillips, endorsed her nomination, writing:

``We believe that Caitlin is an outstanding selection for

the D.C. Circuit. She is a first-rate lawyer and advocate.

She is well respected and highly regarded as a leader of the

profession. Caitlin has an ideal judicial temperament. She

brings reason, insight and judgment to all matters. Even

those of us who have been on the opposite sides of Caitlin in

litigation have been greatly impressed with her ability and

character. We have no doubt she would serve with distinction

and fairness.''

When Ms. Halligan was nominated, Carter Philips, a preeminent Supreme Court advocate who served as Assistant to the Solicitor General during the Reagan administration, described her as ``one of those extremely smart, thoughtful, measured and effective advocates'' and concluded that she ``will be a first-rate judge.'' Judge Albert Rosenblatt, who was appointed to serve on New York's highest court by former Republican Governor George Pataki, wrote in praise of Ms. Halligan's work as New York's Solicitor General, concluding that ``her sense of fairness and balance is among the best--if not the best--that I have ever seen in my 34 years as a judge and a prosecutor.'' This is not a nomination that should be filibustered. To do so will set a destructive standard that no one will be able to meet. If someone of Caitlin Halligan's outstanding credentials, character and experience cannot be confirmed, no one can be.

The nomination of Ms. Halligan has likewise received significant support from law enforcement officials and organizations. The National District Attorneys Association has called Caitlin Halligan's background ``impressive,'' stating that she ``would be an outstanding addition'' to the D.C. Circuit. District Attorneys from the State of New York, including Republicans Derek Champagne, Daniel Donovan, Jr., William Fitzpatrick, James Reams and Scott Burns, support her nomination, as do the New York Association of Chiefs of Police and the New York State Sheriff's Association. New York City Police Commissioner Raymond Kelly has said that Ms. Halligan has the ``three qualities important for a nominee: intelligence, a judicial temperament, and personal integrity.'' Legendary New York County District Attorney Robert Morgenthau, endorsing her nomination in the ``strongest of terms,'' described Ms. Halligan as ``qualified in terms of intellect, ability and temperament.'' This is not someone to be filibustered and blocked from serving as a Federal judge.

More than 20 former United States Supreme Court clerks, including clerks who worked for conservative Justices such as former Chief Justice Rehnquist, Justice Scalia and Justice Kennedy, wrote that they ``retain a distinct appreciation of Caitlin's sharp intelligence and her ability to cooperate with others in resolving difficult legal problems.'' They concluded their letter of support by praising her ``reasonableness and collegiality,'' and calling her a ``fair-minded colleague who was a pleasure to work with in a sophisticated and demanding legal setting.'' This is not a closed minded ideologue. Caitlin Halligan is an outstanding lawyer who will be an outstanding judge.

Ms. Halligan's nomination has received support from numerous women's law enforcement, business, and legal organizations, including the New York Women in Law Enforcement, the National Center for Women and Policing, the National Conference of Women's Bar Associations, and the Women's Bar Association of the District of Columbia. The U.S. Women's Chamber of Commerce asked the Senate to confirm Ms. Halligan, describing her as ``exceptionally well-qualified'' with ``outstanding legal credentials and legal experience that is both broad and deep.'' The National Conference of Women's Bar Associations, which supports Ms. Halligan because her ``broad experience, public service and intellect make her well suited to the federal appellate bench,'' also notes that ``her appointment would add much needed diversity to the federal court, where only three women are among the active judges on the DC Circuit.'' More than 100 women who are deans and professors at top law schools throughout the country strongly support the nomination because ``Ms. Halligan has won accolades for her judgment, legal acumen, and expertise in appellate litigation,'' and because her ``legal credentials, experience and accomplishments make her exceptionally well-qualified to serve'' on the D.C. Circuit. They also echo the need for bringing gender diversity to this critical court, noting that, ``women have been historically underrepresented on this court, as only five of the fifty-seven judges to serve there have been women.'' This outstanding nominee is a leader and role model whose career should not be short-circuited by petty partisanship.

I ask unanimous consent that some of these letters of support be printed in the Record at the conclusion of my remarks.

Exhibit 1

March 4, 2011.

Hon. Patrick J. Leahy,

Chairman, Senate Judiciary Committee, Dirksen Senate Office

Building, Washington, DC.

Hon. Charles E. Grassley,

Ranking Member, Senate Judiciary Committee, Dirksen Senate

Office Building, Washington, DC.

Dear Chairman Leahy and Senator Grassley: We write in

enthusiastic support of the nomination of Caitlin Halligan to

be a judge on the United States Court of Appeals for the

District of Columbia Circuit. We are lawyers who have worked

with Caitlin in various capacities. We believe that Caitlin

is an outstanding selection for the D.C. Circuit. She is a

first-rate lawyer and advocate. She is well respected and

highly regarded as a leader of the profession. Caitlin also

has an ideal judicial temperament. She brings reason, insight

and judgment to all matters. Even those of us who have been

on opposite

sides of Caitlin in litigation have been greatly impressed

with her ability and character. We have no doubt that she

would serve with distinction and fairness.

Sincerely yours,

Clifford M. Sloan, Skadden, Arps, Slate, Meagher & Flom

LLP; Sri Srinivasan, O'Melveny & Myers LLP; Miguel A.

Estrada, Gibson, Dunn & Crutcher LLP; Carter G.

Phillips, Sidley Austin LLP; Seth P. Waxman,

WilmerHale; Walter Dellinger, O'Melveny & Myers LLP;

David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans

& Figel, P.L.L.C.; Andrew J. Levander, Dechert LLP;

Richard J. Davis, Weil, Gotshal & Manges LLP; Michele

Hirshman, Paul, Weiss, Rifkind, Wharton & Garrison LLP;

Dietrich L. Snell, Proskauer Rose LLP; Paul M. Smith.

Jenner & Block LLP; Patricia Ann Millett, Akin Gump

Strauss Hauer & Feld LLP; Kathleen M. Sullivan, Quinn

Emanuel Urquhart & Sullivan, LLP, Stanford Law School;

Thomas W. Brunner, Wiley Rein LLP; Meir Feder, Jones

Day; Evan M. Tager, Mayer Brown LLP; Philip K. Howard,

Covington & Burling LLP; Ira M. Millstein, Weil,

Gotshal & Manges LLP; Roy L. Reardon, Simpson Thacher &

Bartlett LLP; Michael H. Gottesman, Georgetown

University Law Center.

I fear that what is behind this misguided filibuster attempt is a continuation of a decades-long attempt by some Senate Republicans to play politics with the Federal court and, in particular, to engage in a rear guard action to preserve the D.C. Circuit as a Republican bastion, despite the fact that the American people elected a Democratic President. A recent Washington Post editorial urging the Senate to confirm Ms. Halligan's confirmation, suggested as much, stating: ``GOP senators are grasping at straws to block Ms. Halligan's ascension, perhaps in hopes of preserving the vacancy for a Republican president to fill.'' Yet again, we see some Senate Republicans shifting the standards they use and the arguments they make based on the party of the President making the nominations. They say one thing when President Clinton is in office, flip when the President is a Republican, and flop when the American people elect President Obama.

When President Clinton nominated qualified moderates to vacancies on the D.C. Circuit, Republicans refused to proceed. The last of three Clinton nominees to the D.C. Circuit was confirmed in 1997, after being nominated in 1995 and stalled through the 1996 session when not a single circuit nominee was confirmed by the Senate Republican majority. When Senate Republicans stalled the nomination of Merrick Garland to the D.C. Circuit beyond the 1996 election, even Senator Hatch became frustrated, and in March 1997 he proclaimed that the way that Republicans were opposing judicial nominees was ``playing politics with judges,'' was ``unfair'' and that he was ``sick of it.'' He was right. Merrick Garland, like Caitlin Halligan, was superbly qualified, and was only being obstructed for partisan political gain.

But once the blockade against Judge Garland was broken by President Clinton's reelection, Senate Republicans erected an impenetrable wall around the D.C. Circuit. Neither of President Clinton's two other nominees were allowed a Senate vote, or even Judiciary Committee consideration. That escalation in the judge wars was untoward, it was wrong. It hurt the court and was unfair to both Allen Snyder and Elena Kagan, President Clinton's outstanding nominees. Allen Snyder had served as a clerk to Justice Rehnquist and was an experienced and respected litigator. Elena Kagan went on to become Dean of the Harvard Law School and win confirmation to the United States Supreme Court. These were unquestionably qualified nominees. The fact is that for the rest of President Clinton's second term, virtually his entire second four years, given that Judge Garland had actually first been nominated in his first term, Senate Republicans would not consider another nominee to the D.C. Circuit. They just blocked and pocket filibustered outstanding nominees because they could.

Republican Senators pretended to justify their refusal to proceed on President Clinton's D.C. Circuit nominees not by arguing against the nominees, but by arguing that the caseload of the D.C. Circuit did not justify the confirmation of any more judges. They were contending that the 11th and 12th judgeships on the D.C. Circuit should not be filled. They argued that 10 judges were enough.

But what happened when George W. Bush became President? Republican Senators set aside those arguments when considering the nominations of a Republican President to the same court even as the caseload numbers went down, Senate Republicans abandoned their hollow caseload arguments to press for confirmation of multiple Bush nominees to the D.C. Circuit. Their actions showed that they were not really concerned with a caseload justification. Their reversal now to readopt a caseload argument is not consistency of principle, but relates to the principal who is making the nomination and appears political.

Despite the unwillingness of Senate Republicans to act on President Clinton's nominees to the D.C. Circuit for years, Senate Democrats did proceed to consider President Bush's nominations. The first confirmation, for which I voted, was of now-Chief Justice John Roberts to be a judge on the D.C. Circuit. At the time, John Roberts had been Allen Snyder's junior and his partner at Hogan and Hartson. He was the first judge confirmed to the circuit in six years.

The Senate then confirmed a series of questionable nominees to the D.C. Circuit: Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh. The same Republican Senators who blocked President Clinton's nominations from even being considered by the Judiciary Committee supported every nomination of President Bush's to the D.C. Circuit, as they filled the ninth seat, twice filled the 10th seat on the court and went on to fill the 11th seat that they had said was unnecessary when a Democratic President was doing the nominating. With the change of administration, Republican Senators have now dusted off an old obstructionist argument about the D.C. Circuit's caseload, something they ignored for eight years as President Bush's nominees were confirmed to fill the 10th seat twice and also the 11th judgeship. But they have ratcheted up their partisan opposition and now oppose even filling the ninth judgeship. With three vacancies on the D.C. Circuit, that is the judgeship that Caitlin Halligan would be filling not the 11th that Senate Republicans filled just recently, or the 10th that they voted twice to fill, but the ninth. This is not a basis on which to oppose as qualified a nominee as Caitlin Halligan, who has widespread support from law enforcement and the legal community.

The so-called ``caseload'' concern is no justification for filibustering this nomination. The D.C. Circuit is now more than one- quarter vacant, with three judicial vacancies. In fact, the Senate has acted on the so-called caseload argument. We have already eliminated effective in 2008 the 12th judgeship on that court. In so doing, the Senate and the Congress reaffirmed the authorization of 11 judges needed for the important D.C. Circuit. This court is often considered the second most important court in the land because of the complex cases that it handles. The court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11. As noted in the recent Washington Post editorial: ``[Caseload numbers do] not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.''

The D.C. Circuit's cases have only increased in importance and the court's caseload has not gone down since Republican Senators supported every one of President Bush's nominations to that court. According to the Administrative Office of U.S. Courts, the caseload per active judge has increased by one third since 2005, when the Senate confirmed President Bush's nomination of Thomas Griffith to fill the 11th seat on the D.C. Circuit. That is right--the D.C. Circuit's caseload has actually increased. Judge Griffith's confirmation resulted in there being approximately 121 pending cases per active D.C. Circuit judge. There are currently 161 pending cases for each active judge on the D.C. Circuit, one-third higher. If Ms. Halligan were confirmed to the ninth seat, there would be approximately 143 pending cases for each active D.C. Circuit judge, still significantly higher than after the Senate confirmed President Bush's nominee to the 11th seat in 2005. In addition, according to the Administrative Office of the U.S. Courts, written decisions per active judge have risen 20 percent since 2007. By any objective measure the

work of the D.C. Circuit has grown and the multiple vacancies should be filled, not preserved and extended for partisan purposes.

Of course, if Republican Senators seeking to use caseload figures to justify their opposition to this nomination were serious, they would not be continuing their refusal to consent to the Senate considering the nominations of Morgan Christen of Alaska to the Ninth Circuit, and Judge Adalberto Jordan of Florida to the Eleventh Circuit, the two circuits with the highest number of cases per active judge. They would not be doing everything they can to delay filling vacancies on the Ninth Circuit, a court burdened by multiple vacancies and the largest caseload in the Nation, and we would instead take up and confirm the nomination of Jacqueline H. Nguyen who is nominated to fill the judicial emergency vacancy that remains open after the Republican filibuster of Goodwin Liu. I have repeatedly urged the Senate to take up and consider these nominations, which are supported by home state Senators, yet Republicans have refused to consider them for months. In fact, courts throughout the country are in need of more confirmed judges and more judgeships to handle high and increasingly complicated caseloads, yet we currently have 25 judicial nominations favorably reported by the Judiciary Committee awaiting final action by the Senate. Republicans concerned about caseload should join with us to consider these nominations.

The Senate should not filibuster but should be voting to confirm the nomination of Caitlin Halligan to fill a vacancy on a critical court that is one quarter vacant with only eight active judges and higher caseloads than when Republicans voted to confirm President Bush's nominees fill the ninth, 10th and 11th judgeships on this court just a couple of years ago.

Some have sought to criticize Ms. Halligan for positions she advocated on behalf of the State of New York while serving as its Solicitor General. At her confirmation hearing, Ms. Halligan made clear she filed briefs under the direction of New York's Attorney General, arguing on behalf of the State of New York, not based on her personal views. Yet some outside groups and even some Senators ignore this and seek to use those advocacy positions as a basis to filibuster her nomination.

These arguments are particularly hard to accept for anybody who understands the role of advocates in our legal system. Our legal system is an adversary one, predicated upon legal advocacy for both sides. Nominees such as Chief Justice John Roberts have said lawyers do not stand in the shoes of their clients. Since when do we impose a litmus test for nominees that they can never have been legal advocates? If we were to do that, we would have no judges. Almost every nominee who had been a practicing lawyer would be disqualified by one side or the other. This is especially hard to understand for any Senators who support the rights of states to defend their interests in courts, the duty Caitlin Halligan owed to New York as its Solicitor General.

Some have pointed to her role as New York's Solicitor General acting at the direction of New York's Attorney General in tort lawsuits against gun manufacturers as suggesting that she will not uphold the Second Amendment if confirmed as a judge. As a strong supporter of the Second Amendment, I asked her during her hearing whether as a judge she would faithfully follow and apply the Supreme Court's precedent from District of Columbia v. Heller and McDonald v. Chicago, which held that the Second Amendment protects an individual right to keep and bear arms for self defense. She testified that she would. When asked by Senator Grassley whether the rights conferred under the Second Amendment are fundamental, Ms. Halligan answered: ``That is clearly what the Supreme Court held and I would follow that precedent, Senator.''

In her personal capacity, Ms. Halligan has never challenged or otherwise criticized the Protection of Lawful Commerce in Arms Act (PLCAA) or been critical of the Second Amendment. As New York State's Solicitor General, she prepared an amicus brief at the direction of the New York Attorney General in a case where New York City challenged the PLCAA, seeking to safeguard New York's police powers. The arguments made in the brief were made on behalf of New York State. In the amicus brief, New York State argued that the PLCAA should be struck down as an unconstitutional exercise of Congress's legislative power that infringed on states' rights to exercise the police power within their borders. The amicus brief did not make a single reference to the Second Amendment. Any criticism of the PLCAA in New York State's brief or in the speech she gave as a surrogate for and on behalf of New York Attorney General Spitzer reflected New York State's federalism concerns. It is hardly surprising that New York State--like many other states--advocated for a position that supported state powers.

As Solicitor General for the State of New York, Caitlin Halligan vigorously advocated for New York's interests, in particular the right to govern in traditional state law areas. For example, in the Grutter v. Bollinger affirmative action case, New York joined 20 other states in arguing that they ``must have the freedom and flexibility'' to set their own education policy. I assume that position does not raise concerns for those seeking a basis for opposing her nomination. Nor I assume did her defense as New York's Solicitor General of the constitutionality of the death penalty.

Indeed, Ms. Halligan's time as Solicitor General shows all the hallmarks of serious advocacy consistent with the interests of her ``client''. When New York municipal attorneys requested advice as to whether clerks could issue marriage licenses to same-sex couples, Ms. Halligan carefully analyzed New York's statutory law and concluded that the state legislature did not intend to authorize marriage licenses to be given to same-sex couples, even though the statutory language is gender neutral. After observing that this interpretation raised ``constitutional questions,'' she outlined the current case law and stated that it was for the courts to resolve the issue. This measured response is no basis on which to caricature her record.

Most disconcerting of all are the attacks from some on the outside suggesting that Ms. Halligan lacked candor in the answers she provided to the Judiciary Committee. I hope that we do not see any Senators repeating these baseless charges to create another false controversy. Ms. Halligan has been honest and forthcoming throughout the confirmation process, providing the Committee with her entire record and giving detailed, accurate, and clear answers to over 150 questions from Judiciary Committee members at her hearing and in written follow- up questions on a wide range of topics, such as judicial philosophy, constitutional interpretation, the Tenth Amendment, the Second Amendment, the Commerce Clause, the Eighth Amendment and the death penalty, military commissions and indefinite detention, tort liability, Federal preemption, and standing. In my view, Ms. Halligan's answers to questions from Committee members were detailed and substantive, and show an impressive depth and breadth of knowledge on complex legal issues. There is no lack of record or failure to respond as there was, unfortunately, when the Bush administration would not make information available to Senators in connection with the nomination of Miguel Estrada. There is no lack of forthrightness, as there was when Brett Kavanaugh was manipulating the confirmation process as a political crony and insider during the Bush administration.

Those concerned with a 2004 report that questioned the indefinite detention of enemy combatants issued by the Association of the Bar of the City of New York's Committee on Federal Courts at a time when she served on the Committee continue to ignore Ms. Halligan's repeated testimony that she had no role in preparing the report, that she was not aware of the report until preparing for her nomination and that report ``does not reflect [her] views.'' At no time during Ms. Halligan's hearing or in the Committee's consideration of her nomination did any Senator question Ms. Halligan's candor or thoroughness in answering questions. I hope that no Senator does so now to attempt to justify this unjustifiable filibuster.

Given Caitlin Halligan's impeccable credentials and widespread support,

this should be the kind of consensus nomination supported by Senators of both parties who seek to ensure that the Federal bench continues to attract the best and brightest. Certainly, her nomination should not be subject to a filibuster. Regrettably, however, the Senate's Republican leadership seems intent on continuing with the practices they began when President Obama first took office, engaging in narrow, partisan attacks on his judicial nominations. They seem intent on setting a new standard that could not be met by the judicial nominees of Presidents of either party.

Republican Senators who just a few years ago protested that the filibuster of any judicial nomination was unconstitutional, Republican Senators who joined in a bipartisan memorandum of understanding to head off the ``nuclear option'' and agreed that nominees should only be filibustered under ``extraordinary circumstances,'' abandoned all that they said they stood for and joined together in an attempt to prevent an up-or-down vote on President Obama's very first judicial nominee, David Hamilton. There were certainly no ``extraordinary circumstances'' to justify the Republican filibuster of Judge Hamilton, and several Republican Senators joined together with Democratic Senators in rejecting that filibuster. I trust that they will do so, again, and reject this unjustifiable filibuster of Caitlin Halligan.

By the standard utilized in 2005 to end filibusters and vote on President Bush's controversial nominees, this filibuster should be ended and the Senate should vote on the nomination. Those Senators who claim to subscribe to a standard that prohibits filibusters of judicial nominees except in ``extraordinary circumstances'' cannot support this filibuster. There are no ``extraordinary circumstances'' here. The 14 Senators who signed the Memorandum of Understanding in 2005, the then ``Gang of 14,'' wrote about their ``responsibilities under the Advice and Consent Clause of the United States Constitution'' and that fulfilling their constitutional responsibilities in good faith meant that nominations `` should only be filibustered under extraordinary circumstance.'' Here there are none.

In 2005, Senator Graham, a member of the ``Gang of 14'' described his view of what comprises the ``extraordinary circumstances'' justifying a filibuster. He said: ``Ideological attacks are not an `extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.'' Caitlin Halligan has no ``character problem,'' no ``ethics problem,'' and there is no justification for this filibuster. Caitlin Halligan is a superbly qualified nominee whose personal integrity, temperament and abilities have been attested to by lawyers and judges from both sides of the aisle. The many leading lawyers who have worked with Ms. Halligan, law enforcement officials and organizations supporting her nomination have all attested to Ms. Halligan's ``temperament,'' ``fairness'' and ``balance'' in addition to her legal judgment and qualifications for the D.C. Circuit. Hollow contentions about the caseload of the quarter-vacant D.C. Circuit fall well short of any standard of ``extraordinary circumstances.''

The signers of that 2005 Memorandum of Understanding, and the Senate, demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations. The Senate invoked cloture on the nomination of Janice Rogers Brown to the D.C. Circuit, the circuit to which Caitlin Halligan has been nominated.

As a Justice on the California Supreme Court, Janice Rogers Brown was a nominee with a consistent and extensive record, both on the bench and off, of using her position as a member of the court to put her views above the law. This was not a question of one case or one issue on which Democrats differed with the nominee--I have voted for hundreds of nominees of Republican and Democratic Presidents which whom I differ on many issues. But this was a nominee with views so extreme she was opposed not just by her home state Senators, but also by more than 200 law school professors from around the Nation who wrote to the Committee expressing their opposition.

Her record in numerous decisions as a judge showed that she was willing to put her personal views above the law on issue after issue, including a willingness to roll back the clock 100 years on workers' and consumers' rights, to undermine clean air and clean water protections for Americans and their communities, laws providing affordable housing, zoning laws that protect homeowners, and protections against sexual harassment, race discrimination, employment discrimination, and age discrimination. In fact, while serving on the California Supreme Court, Justice Brown had argued that Social Security is unconstitutional, a position clearly at odds with well established law. She went so far as to say ``today's senior citizens blithely cannibalize their grandchildren.''

Despite her ideological extremism and willingness to implement her radical personal views as a judge without regard to the existing law, she was confirmed to the D.C. Circuit, her nomination judged not to present ``extraordinary circumstances'' supporting a filibuster. There is no justification under the standard applied to the nomination of Janice Rogers Brown for a filibuster of the nomination of Caitlin Halligan, a widely respected nominee with a clear devotion to the rule of law and no record of ideological extremism.

Under the Gang of 14's Memorandum of Understanding, the Senate also agreed to invoke cloture on the nomination of Priscilla Owen to the Fifth Circuit, a nominee whose rulings on the Texas Supreme Court were so extreme they drew the condemnation of other conservative judges on that court. Alberto Gonzales, President Bush's White House counsel and later his Attorney General, went so far as to describe one of her opinions as advocating ``an unconscionable act of judicial activism.'' Her nomination was determined not to present ``extraordinary circumstances.''

Neither was the nomination of Thomas Griffith to the D.C. Circuit, despite his decision to practice law without a license for a good part of his career, which I felt should be disqualifying. Yet his nomination was not judged to present ``extraordinary circumstances'' and he was confirmed to fill the 11th seat on the D.C. Circuit. There is no question under the standard Republicans applied to the nomination of Thomas Griffith, Caitlin Halligan should be confirmed to fill the ninth judgeship on that court.

I urge Republican and Democratic Senators to come together and end this misguided filibuster of Caitlin Halligan's nomination to the D.C. Circuit. There is no basis under any standard for blocking her nomination from having an up-or-down vote. To the contrary, Caitlin Halligan's impeccable credentials and record as an accomplished advocate make her nomination worthy of bipartisan support. I look forward to ending this filibuster and voting to confirm Caitlin Halligan to the D.C. Circuit.

Mr. President, I suggest the absence of a quorum but ask unanimous consent that the time be equally divided.

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

Mr. President, we are soon going to a rollcall vote on Edgardo Ramos, of Connecticut, to be U.S. district judge for the Southern District of New York. We also have three others on here: Andrew L. Carter, Jr., of New York, to be U.S. district judge for the Southern District of New York; James Rodney Gilstrap, of Texas, to be U.S. district judge for the Eastern District of Texas; and Dana L. Christensen, of Montana, to be U.S. district judge for the District of Montana.

I ask unanimous consent that following the rollcall vote for Edgardo Ramos, Andrew L. Carter, Jr., James Rodney Gilstrap, and Dana L. Christensen be considered by voice vote.

Mr. President, what is the regular order?

I ask for the yeas and nays.

Mr. President, I understand we are still in morning business?

I ask unanimous consent I be recognized for another 5 minutes as in morning business, and the distinguished Senator from Illinois be recognized for 10 minutes as in morning business.

Mr. President, earlier this week, one of this bill's lead sponsors said here on the floor of the United States Senate that the bill's detention subtitle would authorize the indefinite detention of U.S. citizens at Guantanamo Bay. That is a stunning statement. We should all pause to consider the ramifications of passing a bill

containing such language. Supporters of the detention provisions in the bill continue to argue that such measures are needed because, they claim, ``we are a nation at war.'' That does not mean that we should be a Nation without laws, or a Nation that does not adhere to the principles of our Constitution.

One of the provisions in this bill, Section 1032, runs directly contrary to those principles. Section 1032 requires the military to detain terrorism suspects, even those who might be captured on U.S. soil. This provision is opposed by the very intelligence, military, and law enforcement officials who are entrusted with keeping our Nation safe--including the Secretary of Defense, the Director of National Intelligence, the Attorney General, the Director of the FBI, and the President's top counterterrorism advisor. As Chairman of the Judiciary Committee, I support the efforts of Senator Feinstein, the chair of the Senate Intelligence Committee, to modify Section 1032 so that it does not interfere with ongoing counterterrorism efforts or undermine our constitutional principles.

In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need. But the mandatory military detention provision in Section 1032 actually limits those tools by tying the hands of the intelligence and law enforcement professionals who are fighting terrorism on the ground, and by creating operational confusion and uncertainty. This is unwise and unnecessary.

On Monday, Director Mueller warned that Section 1032 would adversely affect the Bureau's ability to continue ongoing international investigations. Secretary Panetta has also stated unequivocally that ``[t]his provision restrains the Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.'' These are not partisan objections, but rather the significant operational concerns voiced by the Secretary of Defense and the Director of the FBI--both of whom were confirmed by this body with 100-0 votes. And yet these are the voices that supporters of this bill would ignore.

Supporters of this bill have argued that the new national security waiver and implementation procedures in this section provide the administration with the flexibility it needs to fight terrorism. The intelligence and law enforcement officials who are actually responsible for fighting terrorism and keeping our Nation safe, however, could not disagree more. As Director Mueller stated in his letter, these provisions are still problematic and ``fail to recognize the reality of a counterterrorism investigation.'' Director of National Intelligence Clapper has stated that ``the various detention provisions, even with the proposed waivers, would introduce unnecessary rigidity'' in the intelligence gathering process. Put differently, Lisa Monaco, the Assistant Attorney General for the National Security Division, recently stated that ``agents and prosecutors should not have to spend their time worrying about citizenship status and whether and how to get a waiver signed by the Secretary of Defense in order to thwart an al- Qaida plot against the homeland.''

We should listen to the intelligence and law enforcement professionals who are entrusted with our Nation's safety, and we should fix this flawed provision.

Senator Feinstein's amendment would ensure that the requirement of military detention of terrorism suspects does not apply domestically. As Chairman of the Judiciary Committee, I am proud to be a cosponsor of this amendment, and I urge all Senators to support its adoption.

I know Senator Durbin is next, but I now understand from Senator Durbin the distinguished Senator from Missouri is going next.

In any event, I yield the floor and thank my colleagues for their courtesy.

Mr. President, I am pleased that the Senate has unanimously adopted my Freedom of Information Act, FOIA, amendment to the National Defense Authorization Act. This measure appropriately narrows the overbroad exemptions to FOIA contained in the bill and will help ensure that the American public has access to important information about potential threats to their health and safety at or near Department of Defense facilities.

I thank Senator Levin and Senator McCain for working with me on this issue and including this language, with our agreed-to modifications, in the managers' package for this bill. I also thank the many open government groups from across the political spectrum that support this amendment, including OpentheGovernment.org, the Liberty Coalition, the Sunlight Foundation and the American Library Association.

For more than 45 years, the Freedom of Information Act has been a cornerstone of open government and a hallmark of our democracy, ensuring that the American people have access to their Government's records. The addition of this measure to the National Defense Authorization Act will help ensure that FOIA remains a viable tool for access to Department of Defense information that impacts the health and safety of the American public.

I am particularly pleased that the language adopted by the Senate includes a public interest balancing test that requires the Secretary of Defense to consider whether the Government's interests in withholding critical infrastructure information are outweighed by other public interests. This improvement to the bill will help ensure that truly sensitive information is protected, while allowing the public to obtain important information about potential health and safety concerns.

This language adopted by the Senate strikes an appropriate balance between safeguarding the ability of the Department of Defense to perform its vital mission and the public's right to know. I am pleased that this measure has been included in this important legislation with the unanimous support of the Senate.

Mr. President, in 2008, I was proud to join Senator Durbin in support of the National Guard and Reservists Debt Relief Act, which President Bush signed into law. This last week I have been able to arrange on behalf of the Senate Judiciary Committee for expedited action on the bill's extension, and that the Senate is passing unanimously. I commend Chairman Lamar Smith and the House Judiciary Committee for moving this legislation, and Representative Cohen, the bill's author, for his leadership and attention to the issue. Without this measure, the authority we provided to help our Guard and Reserve families would expire. By taking this action we preserve the assistance this authority provides.

It is a privilege to work on behalf of the men and women who serve in the Vermont National Guard. They have and continue to make all Vermonters proud. I cannot say enough about the men and women who serve in the National Guard and Reserve. They and their families deserve the full support of Congress for the sacrifices they make. Especially now, where multiple conflicts have demanded even more of them, when so many have been called into active service, we need to keep them foremost in our thoughts.

Extending the protections of the National Guard and Reservists Debt Relief Act for another 4 years is the right thing to do. The bill the Senate passes today will exempt qualifying members of the Guard and Reserve from the harsh means test imposed in our bankruptcy laws a few years ago. As a result of Congress's enactment of a 2005 bankruptcy measure, passed at the behest of large banks and credit card companies, Americans who must make the difficult decision to seek the protection of the bankruptcy court now face onerous requirements to demonstrate that they are experiencing sufficient hardship to enter chapter 7 bankruptcy. Under the National Guard and Reservists Debt Relief Extension Act, qualifying members of the Guard and Reserve will be protected against the burden of this requirement for another 4 years.

In my view, no American, particularly in times of such economic hardship, should have this burdensome requirement of the so-called means test imposed upon them. The bankruptcy system was established to protect Americans and give them a fresh start. The 2005 enactment turned the law on its head. I opposed this provision in the Senate in 2005, and continue to have serious misgivings about a policy that presumes that Americans facing extreme financial hardships are abusing the bankruptcy process.

Passage of the National Guard and Reservists Debt Relief Extension Act is a step forward toward correcting our current policy.

I also note that passage of this legislation is another example of the good cooperation that exists between the Senate and House Judiciary Committees operating across the aisle and across the Capitol. Last night, the Senate passed H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act, a bill sponsored by Chairman Smith to bring clarity to the operation of Federal jurisdictional and venue statutes, thereby helping to reduce wasteful litigation over these issues. This bipartisan bill was cosponsored in the House by Representatives by Howard Coble, ranking member John Conyers, Jr., and Hank Johnson of Georgia. Companion legislation was introduced in the Senate by Senator Klobuchar, who chairs the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts, and was cosponsored by Senator Sessions, the ranking member on the subcommittee.

These two bills are just the most recent examples of legislation I have worked with Chairman Smith to enact. Of course, we worked together to enact the Leahy-Smith America Invents Act to revitalize our patent laws. We worked together on authorizing the extension of the term of FBI Director Mueller, which required a statutory exception, and on reauthorizing the USA PATRIOT Act.

Other examples include H.R. 368, Representative Hank Johnson's bill to clarify removal provisions for matters filed in State courts against Federal agencies and officers; H.R. 398, Representative Lofgren's bill to toll certain time periods for those in active service to our country; S.1637, Senator Klobuchar's bill to clarify how time is calculated under the Federal Rules; and H.R. 2944, Chairman Smith's bill to extend the authority of the U.S. Parole Commission.

In addition to these nine measures, we are continuing to work on a number of additional bills, including: S. 1639, Senator Tester's bill to amend the American Legion charter; and S. 1541, Senator Bennet's bill to revise the Blue Star Mothers' charter.

I look forward to our continued collaborative relationship. Our successful efforts across the aisle and across the Capitol show that the partisan gridlock

that has become all too prevalent these days does not govern everywhere.