Floor Statements

Madam President, it is with deep sadness that I speak in memory of a dear friend, Ambassador Richard Holbrooke, who died Monday at the far-too-early age of 69.

I first met Dick years and years ago, long before he held his most recent post of Special Envoy for Afghanistan and Pakistan. We had so many conversations, meetings, and trips over the years, as his career progressed, particularly during the war in the former Yugoslavia.

Dick's skillful diplomacy that ended the siege of Sarajevo and finally ended that war is legendary. Nobody else could have done what he did. He was motivated above all by compassion, intent on stopping the suffering of innocent people who were being terrorized for no other reason than their ethnicity.

He combined the force of his convictions with the force of his personality, along with his boundless energy, to do what others had been unable to do. Ambassador Holbrooke did not accept no for an answer.

I remember meeting Dick in 1999. We had planned a meeting. I was in Macedonia, and he was in Kosovo. It was a very foggy, rainy day. We could not travel by helicopter, as we planned, so we met on a slippery, narrow road, with a several-hundred-foot cliff on one side. We sat together on the hood of a car and he described what he had observed. He told me what he believed needed to be done. It was fascinating because Dick put everything into perspective as only he could.

It is fair to say we took advantage of that unlikely meeting to reminisce and laugh about other times and places, some of which were just as unlikely. This was one of those rare conversations that makes an unforgettable impression on you--most of all because it was Dick Holbrooke. He was so passionate, so animated, yet with a determination and a sense of humor that made the challenge of solving the thorniest of problems hard to resist.

It was in his latest position that I heard most often from Dick, when he would call to keep me apprised of his efforts to try to get the most out of our aid to Afghanistan and Pakistan. It was not an easy task. He called me on weekends at my home in Vermont, and we would talk about it.

Dick led the reshaping of U.S. policy in South Asia during a difficult transition period. He charged headfirst into the maelstrom of Afghanistan and Pakistan 7 years after the conflict began, raising key and sometimes unpopular questions about our efforts there. Not infrequently, the press would report about his combative style and another heated exchange with some foreign leader. But in Dick's final hours, his wife Kati Marton received calls of sympathy from Afghan President Karzai and Pakistani President Zardari, which says a lot about Dick.

My thoughts and prayers are with Kati and Dick's sons and stepchildren and with Dick's loyal staff at the Department of State during this sad time. I and others here have lost a dear friend. The American people have lost one of the greatest diplomats of our time, an extraordinary man who loved this country and devoted his life to it as much as any person could.

I yield the floor.

Mr. President, for just the eighth time in this country's history, the Senate has voted to impeach and remove a Federal judge from the bench. Impeachment is a serious, constitutional act intended not as a form of punishment, but rather as means of protecting the integrity of our system of government. This is particularly true when we consider the impeachment of members of the judiciary. Public confidence in our courts is fundamental to the functioning of our democracy. When a judge engages in conduct that grossly violates the public trust, he or she not only becomes incapable of fulfilling the responsibilities of the office, but also brings disrepute to the entire judicial system.

Prior to the Senate's vote on December 8, I voted three times to convict a Federal judge. In each instance, I carefully considered the facts in the case, as well as my constitutional obligations and the precedent being set for future generations. I have no doubt that just as we looked back to past impeachments to guide our actions in this proceeding, we now leave new precedent that others will look to for guidance and wisdom. For this reason, I wanted to elaborate on the constitutional issues presented during this impeachment trial and explain my decision to vote to convict Judge Porteous on all four Articles of Impeachment.

First, I should note that the impeachment trial against Mr. Porteous was bipartisan, and, I believe, unquestionably fair. The Senate Impeachment Trial Committee held 5 days of evidentiary hearings, with testimony received from 26 fact and expert witnesses. The record before the Senate is well developed, and most of the facts underlying the allegations against Mr. Porteous are uncontested. These facts demonstrate that Mr. Porteous engaged in conduct that compromised the administration of justice, brought disrepute to his office, and required his removal from the bench.

The first article of impeachment alleges that as a Federal judge, Mr. Porteous failed to recuse himself in the bench trial of Lifemark Hospitals of Louisiana, Inc. v. Liljeberg Enterprises, despite having previously engaged in a corrupt scheme with one of the attorneys before the court. The House managers established that as a State judge, Mr. Porteous assigned curatorship cases to two attorneys, one of whom was before him in the Liljeberg case, and had a portion of the fees, totaling approximately $20,000, funneled back to him. Not only did Mr. Porteous fail to disclose these facts or recuse himself from the case, he proceeded to solicit and accept $2,000 cash from those attorneys while the Liljeberg case was still under his advisement.

Out of concern for the public's confidence in our court system, I have frequently expressed disappointment about the lack of recusals by judges with conflicts of interest. There should be no doubt that recusals go to the heart of a judge's impartiality. In gross violation of his judicial ethics, Mr. Porteous engaged in a corrupt scheme with attorneys, solicited and accepted money from attorneys with pending matters before his court, and deprived the public and litigants of his honest services by failing to recuse himself.

The defense argued that article I should be dismissed because of the Supreme Court's recent ruling in Skilling. I am familiar with the Court's ruling, and have authored legislation in response to it. The Supreme Court's holding was about a specific criminal statute, not judicial conduct or impeachment standards. No reasonable judge would believe that soliciting and accepting cash payments from an attorney with a pending case would be allowable or would not be an obvious ground for recusal.

The notion that was raised by the defense that corrupt judges could not be impeached ignores the purpose of impeachment as it relates to public confidence in our justice system. The Constitution did not list a specific set of conduct that would result in impeachment. Instead, Senators should determine for themselves what conduct renders one unfit to hold public office. We must consider the type of duties that the impeached official is called upon to perform and whether the conduct engaged in impairs the official's ability to perform those duties. This analysis differs depending on the office and responsibilities of the official before us.

Article II alleges that as a State court judge, Mr. Porteous took numerous things of value and accepted personal services from a bail bondsman, while setting favorable bonds for his company. As a Federal judge, Mr. Porteous continued to receive things of value in exchange for using ``the power and prestige of his office'' to help these bondsmen form corrupt relationships with State court judges. The evidence showed a pattern before and after his Federal confirmation of capitalizing on his position of power to receive improper gifts. Moreover, as Professor Michael Gerhardt, who served as Special Counsel to the Senate Judiciary Committee during the last two Supreme Court confirmations, testified before the House Task Force on Judicial Impeachment, the Constitution does not state that improper conduct must be committed during the tenure of the Federal office; rather, ``[t]he critical questions are whether Judge Porteous committed such misconduct and whether such misconduct demonstrates the lack of integrity and judgment that are required in order for him to continue to function [as a Federal judge].'' I agree with Professor Gerhardt on this fundamental question.

Certainly if the Senate learned after confirmation that a judge killed someone before he or she was confirmed, the Senate should not be prevented from later removing that judge. Similarly, the Senate should not be foreclosed from removing a judge for serious misconduct not revealed during the confirmation process that goes to the role of the judge. A lifetime appointment to the Federal judiciary does not entitle those unfit to serve to a lifetime of Federal salary and benefits. As chairman of the Judiciary Committee, I reject any notion of impeachment immunity if misconduct was hidden, or otherwise went undiscovered during the confirmation process, and it is relevant to a judge's ability to serve as an impartial arbiter.

With regard to the third article of impeachment, it is clear that Mr. Porteous knowingly and intentionally made material false statements and representations--including signing and filing under the name ``G.T. Orteous''--under penalty of perjury on his personal bankruptcy court filing. It is hard to imagine stronger evidence that this judge believed the law did not apply to him. A judge who lies under oath in court filings is unable to continue in an office that requires him to administer oaths and sit in judgment. Mr. Porteous's actions in his bankruptcy proceedings demonstrate a flagrant disregard for the courts as an institution, making him unfit to serve as a respected member of the judiciary.

The last article of impeachment against Mr. Porteous relates to his actions before the Senate Judiciary Committee. As chairman of the Senate Judiciary Committee, I take the word of judicial nominees that come before our committee very seriously. The process for aiding the Senate in considering these lifetime appointments relies on being able to trust and evaluate the information provided to us by nominees, so it requires their utmost candor.

Mr. Porteous knowingly made material false statements about his past to the Senate by responding ``no'' to questions on his Senate Judiciary Committee questionnaire, and to the FBI in connection with his background review, in order to obtain office. His defense to article IV is that his conduct was ``business as usual'' in New Orleans and, therefore, he believed his responses to be true. Whether he made false statements is not purely a subjective inquiry; and most certainly not where his ``belief'' in the truth of his

statements is in direct conflict with the factual knowledge on which it is based. I am convinced that Mr. Porteous's responses on the Senate questionnaire were material because had his solicitation and acceptance of cash and gifts from parties with matters before him been known to the Senate, he would not have been confirmed.

During the impeachment trial proceedings, I asked both the House managers and Mr. Porteous's defense attorneys the following question: ``The Senate Judiciary Committee requires a sworn statement as part of a detailed questionnaire by a nominee. Until this questionnaire is filed, neither the Judiciary Committee nor the Senate votes to advise and consent to the nomination. Would not perjury on that questionnaire during the confirmation process be an impeachable offense?'' Both sides unequivocally answered that perjury on the Senate questionnaire and during the confirmation process would be an impeachable offense.

As chairman of the Senate Judiciary Committee, I am particularly offended by Mr. Porteous's intentional dishonesty and disrespect for the office to which he was confirmed, and for the entire confirmation process. When a judicial nominee testifies before the Senate Judiciary Committee, they must be completely forthright and honor the promises or statements they make to us. Once confirmed, Federal judges have lifetime appointments. Impeachment is a drastic measure, but one we must take when a nominee conceals serious wrongdoing.

The House managers presented uncontested facts that Mr. Porteous engaged in conduct that violated the public trust and is now unfit to be a district court judge, or hold any other public office. Both sides were well represented in this proceeding, and I thank them for their advocacy and professionalism.

Mr. President, this morning, both the New York Times and the Washington Post published strong editorials condemning the delays in Senate consideration of the President's nominees. The Washington Post wrote about the extraordinary and damaging treatment of Jim Cole, who is nominated to serve as the No. 2 official at the Justice Department, a position with extensive responsibilities for national security and law enforcement. The New York Times wrote about the across-the-board objections to Senate consideration of judicial nominees, including dozens who have been reported without opposition by all Republicans and Democrats on the Judiciary Committee.

Two weeks ago, I came to the floor and asked unanimous consent that the Senate consider the long-pending nomination of Jim Cole to be the Deputy Attorney General, and that the Senate schedule for debate and a vote without further delay. Senator Sessions objected to my request and we continue to be prevented from acting on this critical national security nomination.

I will ask consent to have printed in the Record at the conclusion of my statement today's editorial from the Washington Post entitled, ``An Unacceptable Delay.'' The editorial notes:

James M. Cole appeared well on his way in July to filling

the important No. 2 slot at the Justice Department after

earning a favorable vote from the Senate Judiciary Committee.

But the full Senate has yet to vote on Mr. Cole's

nomination to what is essentially the post of chief operating

officer of the mammoth department. The five months between

committee and floor vote appear to be the longest delay

endured by any deputy attorney general nominee.

The slow crawl comes courtesy of some Senate Republicans

who question Mr. Cole's approach to terrorism cases and his

role as an independent monitor for struggling financial giant

American International Group (AIG). These concerns should not

derail Mr. Cole's confirmation--and they certainly should not

be used to block a vote.

Mr. Cole's nomination has been pending on the Senate's Executive Calendar since it was reported favorably by the Judiciary Committee in July. Those continuing to block this nomination from debate and a vote are wrong. As the editorial observes: ``There is no suggestion that Mr. Cole suffers from the kind of ethical or legal problems that would disqualify a nominee.'' If Senators disagree, they are free to vote against the nomination. But it is long past the time to end the stalling.

I noted 2 weeks ago that the letter from eight former Deputy Attorneys General of the United States who served in the administrations of President Reagan, President George H.W. Bush, President Clinton, President George W. Bush, as well as the current administration, correctly observed that ``the Deputy is also a key member of the president's national security team, a function that has grown in importance and complexity in the years since the terror attacks of September 11.'' They are right. This is a dangerous game that partisans are playing in stalling this important nomination in what is really an unprecedented way.

Mr. Cole's nomination has been pending five times longer than the longest-pending Deputy Attorney General nomination in the last 20 years. All four of the Deputy Attorneys General who served under President Bush were confirmed by the Senate by voice vote an average of 21 days after they were reported by the Judiciary Committee. In fact, we confirmed President Bush's first nomination to be Deputy Attorney General the day it was reported by the committee. We treated those nominations of President Bush with the ``enormous deference in executive branch appointments'' that the Post editorial today states that every President deserves.

Jim Cole served as a career prosecutor at the Justice Department for a dozen years, and has a well-deserved reputation for fairness, integrity and toughness. As he demonstrated during his confirmation hearing months ago, he understands the issues of crime and national security that are at the center of the Deputy Attorney General's job. Nothing suggests that he will be anything other than a steadfast defender of America's safety and security. His critics are wrong about Jim Cole's approach to terrorism. He has testified strongly that the President should use every power and weapon and tool he possesses in this fight.

His critics are also wrong to try to blame him for the actions of AIG. His role was limited to a monitor of other corporate functions and there is no showing he did not perform his assignment well. In fact, former Republican Senator Jack Danforth introduced him to the committee and gave him a strong endorsement. Let us hold those responsible at AIG accountable. Those who disagree are free to vote against the nomination of this good man if they choose, but they should end the holds and the stalling and let the Senate decide whether to consent to this nomination. As today's editorial concludes, ``have the decency to hold a floor vote and give him a thumbs down.'' I am confident that when allowed a vote, he will be confirmed. He should be confirmed with bipartisan support and that vote should have been taken months ago. The months of delay of this nomination have been unnecessary, debilitating and wrong.

I urge those Senators who are objecting to debate and a vote to turn away from their destructive approach so that we can consider and confirm Jim Cole immediately and he can finally begin his important work to help protect the American people.

For over a year now, I have been urging all Senators, Democrats and Republicans, to join together to take action to end the crisis of skyrocketing judicial vacancies now threatening the ability of Federal courts throughout the country to administer justice for the American people. That has not happened. I have asked that we return to longstanding practices that the Senate used to follow when considering nominations from Presidents of both parties. This has not happened. As a result, 38 judicial nominations that have been favorably reported by the Judiciary Committee continue to be stalled without final Senate action on the Senate's Executive Calendar.

I will ask consent to have printed in the Record at the end of my statement today's editorial from The New York Times entitled ``Advise and Obstruct.'' It rightly calls for an end to the across-the-board obstruction of President Obama's judicial nominations. The editorial notes that the Senate has been blocked from considering a single judicial nomination since September 13. In fact, the Senate has only considered five Federal circuit and district court nominations since the Fourth of July recess. Of the 80 judicial nominations reported by the Judiciary Committee and sent to the Senate for final action in order to fill Federal circuit and district court vacancies, only 41 have been considered. That is a historically low number and percentage. Meanwhile, dozens of judicial nominees with well-established qualifications and the support of their home state Senators from both parties have been ready and kept waiting for Senate consideration all year.

The editorial also points to the high costs of obstruction ``at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation's courts.'' The editorial is right. The vacancies on the Federal courts around the country have doubled over the last 2 years and now are at the historically high level of 111. Fifty-two of these vacancies are deemed judicial emergency vacancies by the nonpartisan Administrative Office of the U.S. Courts. The Senate has received letters from courts around the country calling for help to address their crushing caseloads, including letters from the Chief Judges of the Ninth Circuit Court of Appeals and the U.S. District Courts in California, Colorado, Illinois and the District of Columbia. They have pleaded with us to end the blockade and confirm judges to fill vacancies in their courts.

The Times editorial accurately portrays a grim picture of where we are in considering these nominations and also points the way forward:

At this point, the Senate has approved 41--barely half--of

President Obama's federal and district court nominees

reported by the Judiciary Committee. Compare that with the

first two years of the George W. Bush administration when the

Senate approved all 100 of the judicial nominations approved

by the committee. The final days of the lame-duck session are

a chance to significantly improve on this dismal record and

to lift the judicial confirmation process out of the partisan

muck.

The editorial calls for a vote on all 38 judicial nominations awaiting final action by the Senate. I agree and have been calling for votes on all of these nominations. We should do as we did during President Bush's first 2 years in office and consider every judicial nomination favorably reported by the Senate. During those two years the Judiciary Committee favorably reported 100 judicial nominations and the Senate confirmed every one of them, including controversial circuit court nominations reported during the lameduck session in 2002. In contrast, we have during President Obama's first 2 years favorably reported 80 circuit and district court nominations, but considered only 41, barely half.

I have been trying to end this obstruction, yet it continues. Agreements to debate and consider nominations have been sought repeatedly, but the Republican leadership has objected time and time again.

Of the 38 judicial nominations currently stalled on the Executive Calendar, 29 of them were reported unanimously, without a single negative vote from the 19 Republican and Democratic members of the committee. Another three were reported with strong bipartisan support and only a small number of no votes. Of these 32 bipartisan, consensus nominees, 17 of them were nominated to fill judicial emergency vacancies. They should all have been confirmed within days of being reported, not obstructed with weeks and months of delay. It will be a travesty if they are not all confirmed before the 111th Congress adjourns.

These consensus nominees include six unanimously reported circuit court nominees, and another circuit court nominee supported by 17 of the 19 Senators on the Judiciary Committee. The nomination of Judge Albert Diaz of North Carolina, a respected and experienced jurist who served in the Armed Forces, for a judicial emergency vacancy on the Fourth Circuit has been stalled for 11 months despite the support of his home state Senators from both parties. Judge Ray Lohier of New York would fill one of the four current vacancies on the U.S. Court of Appeals for the Second Circuit. He is another former prosecutor with support from both sides of the aisle. His confirmation has been stalled for no good reason for more than seven months. Scott Matheson is a nominee from Utah supported by Senator Hatch; he was reported without opposition over 6 months ago. Mary Murguia, a nominee from Arizona supported by Senator Kyl, was reported without opposition over 4 months ago. Judge Kathleen O'Malley of Ohio is nominated to the Federal Circuit and was reported without opposition nearly 3 months ago. Justice James Graves of Mississippi, whose nomination has the strong support of his home State Republican Senators, was reported unanimously to serve on the Fifth Circuit. Also pending is a seventh consensus circuit court nomination, Susan Carney of Connecticut, who was reported with strong bipartisan support to fill another judicial emergency vacancy on the Second Circuit.

The nominees currently being blocked from consideration also include 30 district court nominations, some reported as long ago as February. The Republican blockade of these nominations is a dramatic departure from the traditional practice of considering them expeditiously and with deference to the home State Senators. These 30 district court nominees include 23 nominees reported unanimously by the Judiciary Committee. Fifteen of these nominations are for seats designated as judicial emergencies. All of these nominees have well established qualifications and are at the top of the legal community in their home states. All have put their lives and practices on hold in an attempt to serve their country and their community. There is no cause for continuing to block the Senate from considering their nominations and no precedent for extending these delays further.

In addition, I have urged for many months that the Senate debate and a vote on those few nominees that Republican Senators decided to oppose in committee. These nominees include Benita Pearson of Ohio, William Martinez of Colorado, Louis Butler of Wisconsin, Edward Chen of California, John McConnell of Rhode Island, and Goodwin Liu of California. As I have said before, I have reviewed their records and considered their character,

background and qualifications. I have heard the criticisms of the Republican Senators on the Judiciary Committee as they have voted against this handful of nominees. I disagree, and believe the Senate would vote, as I have, to confirm them. Each of these nominees have been reported favorably by the Judiciary Committee, several of them two or three times, and each deserves an up-or-down vote. That they will not be conservative activist judges should not disqualify them from consideration by the Senate or serving on the bench.

All 38 of these judicial nominations should have an up-or-down vote, just as all 100 of President Bush's judicial nominations reported by the committee in his first 2 years had a vote in the Senate. Even if Republican Senators will not follow our example and treat President Obama's nominees as we treated President Bush's, even if they will not abide by the Golden Rule, they should at least listen to their own statements from just a few years ago. They said that every judicial nomination reported by the Senate Judiciary Committee was entitled to an up-or-down vote. They spoke then about the constitutional duty of the Senate to consider every judicial nomination. The Constitution has not changed; it has not been amended. The change from the days in which they made those statements is that the American people elected a new President and he is making the nominations. In fact, President Obama has reached out and worked with Senators from both sides of the aisle. We have not sought to proceed on one of his judicial nominees without the support of both home State Senators.

Time is running out in this Congress to turn away from the disastrous strategy of blocking nominations across the board. It is time to return to the Senate's longstanding traditions and reject this obstruction. The Federal courts and the American people who depend on the courts for justice are suffering.

Today, December 15, is the anniversary of the ratification of the Bill of Rights, the first 10 amendments to the Constitution of the United States. Let us renew our commitment to the Constitution, to our Bill or Rights, and to our liberty by turning away from the destructive partisanship that has delayed Senate consideration of these nominations. Let us act in the spirit of the Founders, in the spirit of the season, and move forward together to consider and vote on these important nominations of a Deputy Attorney General and U.S. judges.

Mr. President, I ask unanimous consent to have printed in the Record the articles to which I referred.

Mr. President, I strongly oppose the tax deal now before the Senate. While I support tax relief for working and middle-income Americans, I am not willing to add $858 billion to the national debt in order to give enormous tax breaks to multimillionaires. One of the biggest mistakes in the last administration was to wage two wars without paying for them while cutting taxes for the wealthiest. We should not repeat that mistake by rubberstamping this agreement between President Obama and congressional Republicans for a wholesale extension and expansion of the Bush-era tax cuts for 2 more years.

I voted against the Bush-era tax cuts that were tilted heavily toward the very wealthiest Americans. I also voted against going to war in Iraq. Those may not have been the most popular votes at the time, but the relative few in the Senate who cast them were voting for a path that would have averted much of the economic turmoil that has roiled the economy, the budget and the lives of ordinary American families since then.

If we are truly committed to helping our economy recover from the Great Recession and to putting our country back on the glide path to fiscal responsibility, then we should not extend all of the Bush-era tax cuts. These enormous tax cuts have led to record federal deficits, contributed to the government's current financial woes, and have not helped many Americans who face the greatest financial burdens. Assurances at the time to the contrary, the Bush tax cuts failed to ``trickle down'' to help those Americans most in need, while the wealthiest 2-percent of Americans benefited substantially.

As the Wall Street Journal reported on Friday, most of the wealthy beneficiaries of the Bush tax cuts have not plowed those dollars directly back into the economy to hire new workers or create new jobs. Rather than using their windfall to invest in our economy, corporations are building record cash reserves, and executive pay is through the roof once again. Why would anyone think that extending the tax cuts to the wealthiest will produce a different result now?

Sensible choices are necessary now to protect the public's interests and our national interests. Many of them will be far more difficult than this choice is. The responsible choice is to extend tax relief for the middle-income Americans who need it most, and not to renew tax cuts for the upper incomes of the wealthiest who have benefited the most for so long. If we maintain these unbalanced tax policies, our soaring federal debt will have devastating repercussions and shortchange many of the Nation's priorities.

I do think that Congress should provide directed tax relief that truly will help working families and that will improve our economy. For instance, I support extending such provisions in this package as the increase in the child tax credit, the elimination of the marriage penalty, and the 10-percent tax bracket. I also think we should retain many of the hiring incentives championed by President Obama that are providing needed assistance to Vermont small businesses looking to create job opportunities. These tax incentives have allowed Vermont companies to hire new workers and purchase new equipment for their business, thus creating demand for other new jobs to produce that equipment.

But now is not the time to extend tax breaks to the wealthiest Americans and to companies that are sending American jobs overseas. I am greatly concerned that if we maintain these policies, our soaring Federal debt will have devastating repercussions. We will become increasingly vulnerable to the foreign nationals who are collecting our debt. The ability to provide promised Social Security and Medicare benefits will be eroded. And our children and grandchildren will be left with an enormous debt that they cannot possibly afford.

I will support President Obama when he is right and oppose the President when he is wrong. I feel the President is wrong to make this deal. I am first and foremost a Vermonter, and the citizens of Vermont elected me to uphold my Vermont values. In this case, I believe the deal on tax cuts is wrong for most Vermonters and wrong for our country. That is why I am voting against this bill.

Mr. President, I have been urging Republicans and Democrats in the Senate to come together and take action to begin to end the vacancy crisis that is threatening the administration of justice by our Federal courts. I asked only that Senators follow the Golden Rule. Regrettably that has not happened. Now 38 judicial nominees whose qualifications are well established are being delayed. They should be confirmed before we adjourn.

Adherence to the Golden Rule, a simple step, would help us return to our Senate traditions, and allow the Senate to better fulfill its responsibilities to the American people and the Federal judiciary.

I was encouraged last week when Senator Sessions, the Judiciary Committee's ranking Republican, provided assurance that the many judicial nominees who have been stalled for months and months without Senate action will be confirmed before we adjourn. He is in a position to know. As the Republican leader on the committee, he works directly with the Republican leadership that continues to hold up virtually all judicial nominees, just as it has for months and months. At our Judiciary Committee business meeting on December 1, Senator Sessions said: ``The truth is except for a few nominees, the overwhelming majority have moved with bipartisan unanimous support and will be confirmed on the floor.'' He went on to predict that a number ``will clear before the session is over.'' I hope this assurance is true. I look forward to working with Senator Sessions to ensure that the Senate acts before adjourning.

He is right: The overwhelming majority of the judicial nominees awaiting final action have strong bipartisan support. This makes the Republican obstruction of their confirmation all the more mystifying. Twenty-nine of the judicial nominees whose confirmations are being stonewalled were not opposed by any Senator, Republican or Democrat, during Judiciary Committee consideration. Two others had only one or two votes in opposition. Committee Republicans voted in lockstep to oppose only 4 of the 38 pending nominations. I believe that if debated by the Senate, those nominations, too, would be confirmed.

Had we adhered to the Golden Rule, the judicial nominees who have been delayed for weeks and months would already be confirmed. That had been our practice and tradition. Democratic Senators did not stall the nominees of President Bush in this way. Senate Republicans should end their across the board blockade of noncontroversial judicial nominees. With 111 vacancies--a historically high number--plaguing our Federal courts today, the American people cannot afford this gamesmanship.

Despite these skyrocketing vacancies, the Senate has not been permitted by Republicans to consider a single judicial nomination since September 13, when we confirmed Jane Stranch of Tennessee to the Sixth Circuit. Only after 10 months of delay was the Senate permitted to act. The Stranch nomination was the only nomination we were permitted to consider that entire work period. In fact, the Republican blockade of judicial nominations has been so complete that the Senate has been permitted to confirm only five Federal circuit and district court nominations since the fourth of July recess. While one in eight Federal judgeships remains vacant, Senate Republicans consented to confirm only a single judicial nomination in July. They consented to consider only four judicial nominations before the August recess, despite 21 nominations then on the calendar. We have considered only the Stranch nomination since returning from that recess. I do not recall a time when one party so thoroughly prevented the Senate from acting on consensus nominees with bipartisan support.

I have been trying to end this obstruction, yet it continues. Democratic Senators have sought agreement on the floor to debate and consider nominations, but the Republican leadership has objected time and time again. The Democratic cloakroom has sought consent from the Republican cloakroom to move nominations, but there has been no consent.

The Judiciary Committee has favorably reported 80 of President Obama's

Federal circuit and district court nominees. Due to Republican obstruction we have been able to consider only 41 of these. That is barely half. This is in sharp contrast to the first 2 years of President Bush's first term when I was chairman of the Judiciary Committee and the Senate confirmed all 100 of the judicial nominations reported by the Judiciary Committee to the Senate. In 2002, we proceeded in the lameduck session after the election to confirm 20 of President Bush's judicial nominees.This year by contrast none have been considered since the November elections.

I have also urged for many months that the Senate debate and vote on those few nominees that some Republican Senators decided to oppose in committee. These nominees include Benita Pearson of Ohio, William Martinez of Colorado, Louis Butler of Wisconsin, Edward Chen of California, John McConnell of Rhode Island, and Goodwin Liu of California. I have reviewed their records and considered their character, background and qualifications. I have heard the criticisms of the Republican Senators on the Judiciary Committee as they have voted against this handful of nominees. I disagree, and believe the Senate would vote, as I have, to confirm them. Each of these nominees has been reported favorably by the Judiciary Committee, several of them two or three times, and each deserves an up or down vote. That they will not be conservative activist judges should not disqualify them from serving.

But that is not what is happening. We are not debating the merits of those nominations, as Democratic Senators did when we opposed the most extreme handful of nominees of President Bush. What is new and particularly damaging about this Republican strategy of obstruction is that dozens of nominees reported unanimously by the Senate Judiciary Committee, without Republican opposition, are still being delayed.

The Senate has received letters from Chief Judges of the Ninth Circuit Court of Appeals and the United States District Courts in California, Colorado, Illinois and the District of Columbia. They have all pleaded with us to end the blockade and confirm judges nominated to fill vacancies in their courts.

The vacancies on the Federal courts around the country have doubled over the last 2 years and now are at the historically high level of 111. Fifty-one of these vacancies have been deemed judicial emergency vacancies by the nonpartisan Administrative Office of the U.S. Courts. Due to the Republicans' obstruction, we have not been able to keep up with attrition over the last 2 years.

No one can accuse this President of selecting nominees to meet an ideological agenda. Senator Sessions has acknowledged that a vast majority of these nominees are consensus nominees. These are well- qualified nominees with the support of their home State Senators, both Republicans and Democrats. The Judiciary Committee has not proceeded with a single nominee who was not supported by both home State Senators, and I have worked with all Republican Senators to ensure that they were included in the process. Democrats have worked to restore comity to the process.

Regrettably, despite these efforts and the outstanding nominees before us, the Senate is not promptly considering judicial nominations. To the contrary, as the President has pointed out, nominees are being stalled who, if allowed to be considered, would receive unanimous or near unanimous support, be confirmed, and be serving in the administration of justice throughout the country.

The North Carolina Bar Association recently urged the Senate to consider one of the nominees who was reported by the Judiciary Committee in a unanimous rollcall vote--19 to zero. Republicans have objected to his consideration since January 28. For more than 10 months, Judge Albert Diaz, a respected and experienced jurist who served in the Armed Forces, has been prevented from serving the people of North Carolina and the Fourth Circuit. He is nominated to fill a judicial emergency vacancy on the Fourth Circuit. He has the support of both his home state Senators, one a Democrat and one a Republican. Senator Burr asked nearly a year ago that the Judiciary Committee ``look for an expedited review and referral to the full Senate so that that deficiency on the fourth circuit can be filled.'' The Senators who serve on the Judiciary Committee from South Carolina and Maryland, states also within the Fourth Circuit, also support him. The American Bar Association rated him well qualified. The North Carolina Bar Association describes him as ``very qualified and highly regarded.'' When will the blockade be lifted so that the Senate can confirm Judge Albert Diaz of North Carolina?

Judge Diaz and six other consensus nominees to the circuit courts are stalled on the Senate Executive Calendar. Judge Ray Lohier of New York would fill one of the four current vacancies on the United States Court of Appeals for the Second Circuit. He is another former prosecutor with support from both sides of the aisle. His confirmation has been stalled for no good reason for more than 6 months. Scott Matheson is a nominee from Utah supported by Senator Hatch; he was reported without opposition. Mary Murguia, a nominee from Arizona supported by Senator Kyl, was reported without opposition. Judge Kathleen O'Malley of Ohio is nominated to the Federal Circuit and was reported without opposition. Susan Carney of Connecticut was reported with the bipartisan support of 17 of the 19 Senators on the Judiciary Committee to serve on the Second Circuit. Justice James Graves of Mississippi was reported unanimously to serve on the Fifth Circuit. These are not nominees whose judicial philosophy Republicans even question.

The President noted in his September letter to Senate leaders that the ``real harm of this political game-playing falls on the American people, who turn to the courts for justice'' and that the unnecessary delay in considering these noncontroversial nominations ``is undermining the ability of our courts to deliver justice to those in need . . . from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.''

If the Senate were allowed to consider the 38 judicial nominees that are currently on the Senate's Executive Calendar, their confirmations would raise the total from the historically low level of 41, where it currently stands, to almost 80. That would be in the range of judicial confirmations during President George H.W. Bush's first 2 years, 70, while resting below President Reagan's first 2 years, 87, and pale in comparison to the 100 confirmed in the first 2 years of the George W. Bush administration or those confirmed during President Clinton's first 2 years, 127.

In the 17 months I chaired the Judiciary Committee during President Bush's first 2 years in office, I scheduled 26 hearings for the judicial nominees of a Republican President and the Judiciary Committee worked diligently to consider them. During the 2 years of the Obama administration, I have tried to maintain that same approach. The committee held 25 hearings for President Obama's Federal circuit and district court nominees this Congress. I have not altered my approach and neither have Senate Democrats. What has changed is that Senate Republicans, who used to contend that every judicial nominee reported by the Judiciary Committee is entitled to a vote, have reversed themselves and reverted to the practices they followed in obstructing President Clinton's judicial nominees. The bottom line is that the Senate has been allowed to consider and confirm just 41 Federal circuit and district court nominees. That is less than half of the 100 such nominees we proceeded to confirm during President Bush's first 2 years.

When I became chairman of the Judiciary Committee midway through President Bush's first tumultuous year in office, I worked very hard to make sure Senate Democrats did not perpetuate the ``judge wars'' as tit-for-tat. By refusing to proceed on President Clinton's nominations while judicial vacancies skyrocketed during the 6 years they controlled the pace of nominations, Senate Republicans allowed judicial vacancies to rise to 110 by the end of the Clinton administration. As a result of their strategy, Federal circuit

court vacancies doubled. When Democrats regained the Senate majority halfway into President Bush's first year in office, we turned away from these bad practices. As a result, overall judicial vacancies were reduced during the Bush years from more than 10 percent to less than 4 percent. During the Bush years, the Federal court vacancies were reduced from 110 to 34 and Federal circuit court vacancies were reduced from a high of 32 down to single digits.

This progress has not continued with a Democratic President back in office. Instead, Senate Republicans have returned to the strategy they used during the Clinton administration of blocking the nominations of a Democratic President, again leading to skyrocketing vacancies. Last year the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years. This year we have yet to confirm 30 Federal circuit and district judges. We are not even keeping up with retirements and attrition. As a result, judicial vacancies are now at 111, again more than 10 percent.

Regrettably, the Senate is not being allowed to consider the consensus, mainstream judicial nominees favorably reported from the Judiciary Committee. It has taken nearly five times as long to consider President Obama's judicial nominations as it did to consider President Bush's during his first 2 years in office. During the first 2 years of the Bush administration, the 100 judges confirmed were considered by the Senate an average of 25 days from being reported by the Judiciary Committee. The average time for confirmed circuit court nominees was 26 days. By contrast, if the Senate were allowed to consider the 34 judicial nominees being stalled by Republican objection and they were all confirmed this week, the average time Federal circuit and district and circuit court judges have been forced to wait after being considered and favorably recommended by the Judiciary Committee since President Obama took office would be five times that of those confirmed during the first 2 years of the Bush administration.

Time is running out in this Congress for Republicans to turn away from the disastrous strategy of blocking nominations across the board. The Senate's longstanding traditions demand that we reject this practice of obstruction. The Federal courts are suffering from rising vacancies and crushing caseloads. The victims are the American people who depend on the courts for justice.

Mr. President, today, the Senate will finally pass the bipartisan Whistleblower Protection Enhancement Act of 2010, S. 372. I thank Senator Akaka and Senator Collins for their dedication to this legislation and for working with me and Senator Grassley on key changes to make the bill even stronger in its protection of whistleblowers. I have worked for years to protect whistleblowers from retaliation, whether by government or corporate employers, and this bill is an important step forward in that ongoing process.

Whistleblowers are instrumental in alerting the public and Congress to wrongdoing in Federal agencies. In many cases, their willingness to step forward has resulted in important governmental reform, and has even saved lives. Congress must encourage Federal employees with reasonable beliefs about government misconduct to report such fraud or abuse by offering meaningful protection to those who blow the whistle, rather than leaving them vulnerable to reprisals.

Unfortunately, whistleblower laws have been weakened by many court decisions that have ignored congressional intent and eroded employee protections. The Whistleblower Protection Enhancement Act will help restore and expand the protections for Federal employees envisioned by the original Whistleblower Protection Act of 1989.

Key provisions of the Whistleblower Protection Enhancement Act will offer additional methods to appeal whistleblower cases and provide additional protections to intelligence community employees and officers of the Transportation Security Administration. It will also correct the Federal circuit court's repeated misinterpretations of the whistleblower law and suspend that court's sole jurisdiction over Federal employee whistleblower cases for 5 years.

Whistleblowers have proven to be important catalysts for much needed government change over the years. From corporate fraud to governmental misconduct to media integrity, whistleblowers have played an integral role in galvanizing reform. In these difficult financial times, we must be especially vigilant to ensure that public resources are not lost to waste, fraud, and abuse. Restoring credibility to our whistleblower laws is an important part of that work. Before Congress adjourns, I hope the House of Representatives will quickly consider this legislation, and send it to the President to be signed into law.

Madam President, I have alerted the other side I am about to make a unanimous consent request on an important piece of legislation. Unfortunately, in the last couple of years we have gotten into this habit of: Nobody wants to vote yes or no, they want to vote maybe. It is easier to block things from even being considered.

Frankly, in my State of Vermont people expect if they elect you to the Senate that you have the courage to vote yes or no, but not maybe.

We just saw another example of this. We cannot even get a yes-or-no vote on Defense authorization at a time when our Nation is in two wars. We cannot get a yes-or-no vote; we get a maybe.

I find it frustrating. Over and over we have done it today. People are prepared to vote yes or no, but the other side says, no; it is easier to vote maybe. Then you never have to explain anything.

We all know what has happened in the Deepwater Horizon BP spill. A number of brave families' members were lost. I would note for the sake of the Senate, if they had been building the Deepwater Horizon drilling platform, and they were assembling it on land and something was negligently done and someone lost their life, they could recover for the value of the life. Because of a quirk in the law, because it happened at sea, even though it may have been caused by the same thing, these people--their lives are almost valueless. There is a way to fix them. We have drawn, after months of negotiation, a very tightly put together piece of legislation that will only affect the families of the 11 hard-working men who died when the Deepwater Horizon was destroyed. I am going to make this so we can vote yes or no and not maybe.

I ask unanimous consent that the Senate Committee on Commerce, Science and Transportation be discharged from further consideration of the Survivors Equality Act, S. 3463; that the Senate proceed to its immediate consideration; the Rockefeller-Leahy amendment that is at the desk be adopted; the bill, as amended, then be read a third time and passed; the motions to reconsider be laid upon the table; and all statements and the text of the amendment that has been hotlined for more than a week be printed in the Record.

Madam President, of course, this bill has been given an enormous amount of scrutiny by both Republicans and Democrats. Six months ago, I introduced the Survivors Equality Act, S. 3463, with Senator Durbin and Senator Whitehouse, to help the families of those who die on the high seas. In fact, the day of the hearing, we had Michelle Jones, pictured here, in our mind when we held that hearing.

That same day, June 8, the Judiciary Committee held a hearing on the liability cap that harms victims' families. We heard testimony from Michelle Jones's brother-in-law, Chris Jones. He is the brother of Gordon Jones, one of those who died aboard the Deepwater Horizon. It was very moving testimony. I think everybody, both parties, felt the emotion in that room.

A few weeks later, the Commerce Committee also held a hearing on the same matter. I think it is unfortunate and a slam to the families to say that this matter has not been vetted. The Commerce Committee also had a hearing. Then we had months and months of work, Republicans and Democrats meeting, trying to make as tightly drawn piece of legislation as possible.

After these months and months of work, I hope the Senate is finally going to do justice to the families of the men who died when the Deepwater Horizon exploded in the Gulf of Mexico. At least stand up and say yes or no. Vote either to give them justice or vote not to give them justice. Do not do this unfortunate habit we are getting into of voting maybe. Let's not vote on this bill. Let's not take a position one way or the other. We will object to the bill coming up.

It allows everybody to be a maybe. It allows people to go and say: Well, we are so sympathetic for your family. We wish we could help your family. Certainly, if the bill comes up, I may vote.

Well, we have a whole lot of people ready to vote for the bill. Vote yes; vote no. That is what I have been trying to do since that catastrophic event. We did have a lot of negotiations, and we did have to whittle it back at the request of people on the other side of the aisle. The proposal has been so narrow that it will help only the families of the 11 hard-working men who died when the Deepwater Horizon oil rig exploded last April.

So by saying there are a lot of things that can be done for them if one second before that oil rig left land when it was being constructed, if it exploded there and they lost their lives, but it is a different rule if you have gone 100 yards further, a few seconds later, and you are at sea.

That is why I came to the floor today to seek the Senate's consent to pass this legislation without further delay. It is designed to provide a more equitable remedy under the Death on the High Seas Act, the Jones Act, for the survivors of those killed on Deepwater Horizon. When I refer to it as the difference between when it is on land or on sea, as the law is now, the families will be given far less protection simply because their loved ones died on the open seas rather than if they had died in a well, for example, if they are working at a well and there is an explosion, but the well is on land.

That is not fair. It reminds me of an earlier era in our history. The law should be modernized for those families without further delay. Of course, I would like the modernization to be broader, to cover victims on cruise ships, for instance. Some here in this body have objected to covering victims on cruise ships.

That is why I said: OK. You might not be willing to cover victims in other accidents on the high seas, but at least the U.S. Senate should not turn its back on the families of these 11 men.

I am also concerned about timeliness. These victims' families' claims have been unnecessarily delayed because they are thoughtlessly lumped in with thousands of other claims for economic damage. It should be pretty easy to spot the 11 where the people died. This legislative proposal, on which I have worked with Senators Rockefeller, Whitehouse, and others, would ensure fairness and timeliness for these families. We have had strong bipartisan support. We have a number of Republicans who support this legislation. Senators on both sides of the aisle have heard from these families. They understand the inequities they face. The proposal has been circulating through the Senate for more than a week. It should not be stopped. Let us vote yes or no. If you don't like this legislation, vote against it. But don't vote maybe. Don't have the Senate give that kind of procedural slap in the face to these families by saying: We don't have the courage to vote yes or no so we are going to vote maybe.

Time is running out for these 11 families to know they are going to be treated fairly and not be forced to wait for years to see if their losses are addressed. The legislation only applies to the Deepwater Horizon disaster, the largest oil spill in our Nation's history. Let us act for the widows and children of these men before we head home to be with our own families during the holiday season. They need our help now. We should at least be able to agree to this limited fix. Again, vote yes or vote no. Don't vote maybe. Stop the months of delay. There is no justification for the failure to act on this deeply personal tragic issue. It has been pending for months. Both sides have been running hot lines on it for more than a week. It is a 5-page proposal. It is easy to understand.

I will never forget the testimony of Chris Jones before the Judiciary Committee. His father was sitting there. He talked about his brother losing his life and meeting his brother's widow Michelle Jones. Michelle has lost the love of her life, but her two young sons have lost their father.

This is not about politics. This should not be partisan. This is about justice for these kids who are facing a Christmas without their fathers, justice for widows who want closure, who are bravely fighting for their families.

Can we not at least once in this body not vote maybe but have the courage to vote yes or no, not hide behind an objection to a bill coming up that many Republicans and Democrats support, at least allow people to be on record?

Look at this family, say: I am going to vote yes or no, not, gee, I don't have time. We just voted maybe. I think it is unfortunate. It shows disdain for these families. I regret the objection.

I ask unanimous consent that the draft of the Rockefeller, Leahy, and Schumer amendment be printed in the Record.

Madam President, the Senator is absolutely correct. When we held these hearings, he was an indispensable part. This is an inexplicable anomaly of the law that reflects a different era. Had they been assembling, for example, this oil rig, had they had it on land and it exploded, they would be able to recover as anybody could. If it was an onshore oil rig--of course, we have many in this country and throughout the world--if they had been working on that and there had been an explosion and they lost their lives, there would have been remedies available. But because it was at sea and even if it is just barely at sea, the remedies are entirely different. To put it in laymen's terms, they are basically limited to the value of what is left. Of course, there is nothing left.

The Senator is correct. Basically what the Senate has said is, we will protect British Petroleum and Halliburton over the rights and needs of the families of 11 men who died because of negligence. Is this what the Senate has come to? Is this what it has come to? By our failure to even vote, our unwillingness to stand up and vote, our effort to do a maybe instead of a yes or no, we are sending a Christmas present. I suppose we should say Merry Christmas, British Petroleum, Merry Christmas, Halliburton. We protected you and saved you from having to pay for your negligence. That is a pretty cold signal to send to these families of the 11 men who died.

Frankly, as I have often said, the Senate should be the conscience of the Nation. How do we express our conscience when we don't even have the courage to vote yes or no on a matter of this significance?

Mr. President, on October 15, 2010, we learned that next year Social Security beneficiaries will not receive a cost of living adjustment for the second year in a row because of the economic deflation, rather than inflation, our economy experienced in 2010. At a time when the economy continues to lag and seniors in Vermont and around the country will struggle to afford heat, food, and other daily living expenses, I believe strongly that Congress needs to act to help seniors who depend upon Social Security benefits.

For decades, Social Security has represented a strong commitment to our Nation's seniors. Ever since Ida May Fuller of Vermont received the first Social Security check issued, vulnerable seniors have had a safety net to fall back on in retirement and to supplement individual retirement savings or pensions. Nearly 70 percent of beneficiaries depend on Social Security for at least half of their income, and Social Security is the sole source of income for 15 percent of recipients.

I was proud to join Senator Sanders once again in cosponsoring the Emergency Senior Citizens Relief Act, which would provide all Social Security recipients, railroad retirees, SSI beneficiaries and adults receiving veterans' benefits with a one-time additional check for $250 in 2010, similar to the payment beneficiaries received as a part of the American Recovery and Reinvestment Act. Today, we have the opportunity to move to debate this important emergency relief for America's seniors.

This legislation would benefit 58 million Americans and over 120,000 Vermonters, far too many of whom have seen a decline in their living standards as the economy worsened. The National Committee to Preserve Social Security and Medicare Foundation and the Economic Policy Institute issued a report this fall that showed similar payments included in the Recovery Act to seniors stimulated the economy and was an effective job creator. A minority of Senators, however, plan on once again blocking this legislation from a full debate in the Senate. The minority party seems content to bend over backwards to pass an extension of tax cuts to the wealthiest Americans, which will add hundreds of billions of dollars to the deficit, but helping seniors in tough economic times is just too costly a proposition. That is unfortunate, and I hope for enough support in the Senate to move this legislation forward.

By supporting this bill, Senators have the opportunity to express our continued commitment to providing a safety net to our Nation's seniors and those with disabilities in this uncertain economy. I urge my fellow Senators to support the motion to invoke cloture on the Emergency Senior Citizens Relief Act.

Mr. President, November and December bring with them a contagious holiday spirit. During a time when many Vermonters are struggling to feed their families and heat their homes, community members across Vermont are stepping forward to provide a helping hand to their neighbors. I am proud that Vermont takes to heart our country's great tradition of offering a helping hand to those in need.

While many of us were at home with our families this Thanksgiving, the

staff and volunteers at the Vermont Boys & Girls Clubs of America were busy organizing food donations and cooking meals for the holiday to provide hot meals to those who might not otherwise have had a Thanksgiving dinner at all. In Rutland alone, the Boys & Girls Club cooked enough food to feed 100 people, with many of the ingredients donated by local farms. In Montpelier, the Washington County Youth Service Bureau and Boys & Girls Clubs staff and volunteers prepared turkey dinners to feed homeless Vermonters and financially secure residents alike, producing a real community dinner.

In these tough economic times, community resources are vital to the well-being of all Vermonters. As these resources become scarcer, donations and volunteers become indispensible. Rutland and Montpelier are just a few examples of where Vermonters are volunteering in their communities this holiday season. I am proud to call Vermont home and to count these volunteers among my friends and neighbors. I commend them and all those who donated food for Thanksgiving meals, and I applaud all those who voluntarily step forward throughout the year to take the time to attend to the support and safety of Vermont's children and families.

I ask unanimous consent that press articles detailing the work of the Vermont Boys & Girls Clubs and volunteers be printed in the Record. These articles include ``Boys and Girls Club serves local Thanksgiving dinner'' published by the Rutland Herald on November 24, 2010, and ``Thanksgiving Volunteers deliver--with community spirit--in Montpelier,'' published by the Times Argus on November 26, 2010.

Madam President, with the Bush-era tax cuts from 2001 set to expire at the end of the year, the whole debate about what to do next needs to be based on fairness and honesty. Any additional tax relief we provide now must be targeted to those who need it most like those Vermont businesses looking to grow and expand their workforces and those Vermonters struggling to pay their bills, heat their homes, and put food on the table this winter. We must recognize the enormous cost of making these tax cuts permanent as even a short, 2-year extension of all tax cuts would cost us over $400,000,000,000 and the cost of extending tax cuts to those making more than $250,000 annually balloons to $700,000,000,000 over the next decade. We also must acknowledge that with a finite amount of Federal resources we will be forced to shortchange important government services for millions of Americans if we provide extravagant tax cuts to a handful of millionaires and large corporations.

Like it or not, taxes are an essential way for Federal, State, and local governments pay for important services and projects that we access and use daily. Taxes pay for our schools and teachers; they maintain our roads and bridges; they support our military and veterans; and they sustain a host of other programs from food assistance to unemployment benefits to and medical care that help all Americans. It is the responsibility of Congress to make sure that the federal tax rates are fair and justified. Our tax system must strike an appropriate balance that allows hard-working Americans to keep much of their income to spend as they choose while still providing the government with enough revenue to pay for the important programs we rely upon.

Unfortunately, over the past decade the U.S. Government has increasingly spent more money than it has received from taxes, causing our national debt to grow to unsustainable levels. Under the previous administration, for instance, we saw our Federal debt triple as President Bush pushed for trillions in tax cuts and two wars without offering a way to pay for them. I opposed these policies because I was concerned then, as I am now, that our soaring Federal debt will have devastating repercussions.

I have serious concerns that fully extending all of the Bush-era tax cuts would be a major mistake if we are truly committed to helping our economy recover from the Great Recession and to putting our country back on the glide path to fiscal responsibility. The Bush tax cuts of 2001 and 2003 have led to record Federal deficits, contributed to the government's current financial woes, and have not helped many Americans who face the greatest financial burdens. Most disappointingly, the Bush tax cuts failed to ``trickle down'' to help those Americans most in need, while the wealthiest 2 percent of Americans benefited substantially. Unfortunately, many of these wealthy beneficiaries of the Bush tax cuts have not injected that money directly into the economy to hire new workers or create new jobs. Why do we think that extending the income tax cuts to the top wage earners now will produce a different result now?

I do think that Congress should make directed tax relief to help working families and to improve the economy. For instance, there are some Bush-era tax cuts that I support keeping on the books such as the increase in the child tax credit, the elimination of the marriage penalty, and the 10-percent tax bracket. In addition, I think we should retain many of the hiring incentives championed by President Obama that are providing needed assistance to small businesses in Vermont that looking to create job opportunities. These tax breaks have allowed Vermont companies to hire new workers and purchase new equipment for their business, thus creating demand for other new jobs to produce that equipment.

But now is not the time to extend tax breaks to the wealthiest Americans and to companies that are sending American jobs overseas. I am greatly concerned that if we maintain these policies, our soaring federal debt will have devastating repercussions. We will become increasingly vulnerable to the foreign nationals who are collecting our debt. Our ability to provide promised Social Security and Medicare benefits will be jeopardized severely. And, our children and grandchildren will be left with an enormous debt that they cannot possibly be able to afford.

That is why I will support the two cloture motions we are voting on today. While I prefer capping the tax cuts at $250,000, in the spirit of compromise I am willing to extend the relief to those with incomes under $1,000,000. These are both more fiscally responsible ways of moving forward than a blanket extension for a small group of millionaires. If the last election was a public outcry to restore fiscal sanity to Washington, then the last, major accomplishment of this Congress should not be putting billions more in debt on the American credit card.

Mr. President, the Removal Clarification Act of 2010 is an important piece of legislation that will

clarify a Federal agency or officer's ability to remove State judicial proceedings to Federal court. The bill has strong support from both sides of the aisle, and was passed by the House of Representatives without opposition. I have worked with Senator Sessions on an amendment to further clarify the rules governing removal to Federal court of State judicial proceedings when judicial orders including subpoenas are issued to Federal agencies or officials.

Existing law allows removal to Federal court of any ``civil action or criminal prosecution'' that is ``commenced in a State court'' against a Federal agency or officer. However, there is a question whether a subpoena directed toward a Federal agency or officer itself constitutes a ``civil action or criminal prosecution'' that allows removal under section 1442. While some courts have allowed removal in these situations, others have not. Compare Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 413-15, D.C. Cir. 1995 with Indiana v. Adams, 892 F.Supp. 1101, S.D. Ind. 1995, Alabama v. Stephens, 876 F.Supp. 263, M.D. Ala. 1995, Price v. Johnson, 600 F.3d 460, 5th Cir. 2010 (dismissing appeal of district court's refusal to allow removal of subpoena proceeding against congresswoman).

The Removal Clarification Act of 2010 resolves this split in authority by amending section 1442 to clarify that the section allows removal of any proceeding in which a judicial order, including a subpoena for testimony or documents, is sought from or issued to a Federal agency or officer.

Earlier versions of this bill did not expressly address whether removal under the new statute would be limited to just the subpoena proceeding, in a case that is otherwise purely between private litigants but in which a Federal agency or officer has been subpoenaed, or whether the whole case would be removed. Members in both the House and Senate agree that in cases involving only the issuance of a subpoena to a Federal agency or officer, only the subpoena proceeding should be removed and the remainder of the civil action or criminal prosecution should remain in State court.

Some courts that currently allow removal of a subpoena proceeding have made it their practice to remove only that proceeding if the rest of the case is not otherwise removable. I cite e.g., Pollock v. Barbarosa Group, Inc., 478 F. Supp.2d 410, W.D.N.Y. 2007; In re Subpoena in Collins, 524 F.3d 249, D.C. Cir. 2008; Colorado v. Rodarte, 2010 WL 924099, D. Colo. 2010. Other courts, however, have held that the entire case should be removed, even if no Federal officer was a defendant in the underlying suit and the case is not otherwise removable. I cite e.g., Swett v. Schenk, 792 F.2d 1447, 1450-51, 9th Cir. 1986; Ferrell v. Yarberry, 848 F.Supp. 121, E.D. Ark. 1994. Moreover, while these cases at least hold that the district court may remand the case to the State court once the subpoena proceeding is resolved, other courts hold that once a case is removed under section 1442, there is no authority to remand the case to the State court even after the Federal issue is resolved. I cite e.g., Jamison v. Wiley, 14 F.3d 222, 238-39, 4th Cir. 1994.

To make clear that removal of a subpoena proceeding, or other minor proceeding, is limited only to that proceeding if the case is not otherwise removable, the Senate amendment to this bill adds a second sentence to section 1442(c) that provides: ``If removal is sought for a proceeding described in the previous sentence, and there is no other basis for removal, only that proceeding may be removed to the district court.''

The language of 1442(c) is intended to be broad because it seeks to encompass not only subpoenas for testimony or documents, but also any other kind of judicial process that state courts could direct to Federal officers in relation to the performance of their official duties. The parenthetical clause in the first sentence of 1442(c) specifying that the proceeding need not be ancillary is added because some states allow subpoenas to be issued, or direct other judicial orders toward persons, before a complaint has even been filed. This was the situation in the Price v. Johnson case, which occurred earlier this year. When such pre-suit proceedings occur, they cannot be described as ancillary because there is nothing for them to be ancillary to.

Although the language in the first sentence of section 1442(c) is broad, I should make clear that it does not encompass all judicial proceedings. A proceeding in which a ``judicial order . . . is sought or issued'' means a minor proceeding, such as a subpoena proceeding, but does not include the complaint for relief itself. The second sentence of section 1442(c) would therefore not apply to a case in which a complaint for relief or a criminal prosecution has been brought against a Federal agency or officer, or a case that is removable under any other section of the United States Code. If the Federal agency or officer is a defendant in the underlying case, the normal rule, as described in section 3726 of Wright & Miller's Federal Practice and Procedure, would continue to apply:

Because Section 1442(a)(1) authorizes removal of the entire

case even if only one of the controversies it raises involves

a federal officer or agency, the section creates a species of

statutorily-mandated supplemental subject-matter

jurisdiction. The district court can exercise its discretion

to decline jurisdiction over the supplemental claims if the

federal agency drops out of the case, or even if the federal

defendant remains a litigant. Whether the supplemental claims

should be remanded if the federal officer's ``anchor'' claim

is dismissed or settled, or if the supplemental claims have

been asserted against non-federal parties, depends on

considerations of comity, federalism, judicial economy, and

fairness to litigants.

Changes made by this bill to section 1442 are not intended to displace ``the requirement that federal officer removal must be predicated on the allegation of a colorable federal defense.'' I cite Mesa v. California, 489 U.S. 121, 129, 1989. This legislation also does not displace the settled rule that ``the invocation of removal jurisdiction by a Federal officer does not revise or alter the underlying law to be applied. In this respect, it is a purely derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties.'' I cite Arizona v. Manypenny, 451 U.S. 232, 242, 1981.

The new time limit created by section 1446(g) allows a Federal agency or officer subpoenaed to seek removal either within 30 days of receiving, through service, notice of when the subpoena is requested or issued or 30 days of receiving, through service, notice of when the same subpoena is sought to be enforced. This new subsection allows a Federal agency or officer to remove a pre-suit subpoena proceeding to Federal court before any complaint is filed, and also effectively allows a Federal officer who has been subpoenaed to wait until the subpoena is sought to be enforced before seeking removal.

I thank Senator Sessions for working with me to clarify the House's bipartisan bill. I also thank Representative Hank Johnson for working with us to explain the purposes and intricacies of this procedural issue.

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

Madam President, in a letter sent yesterday to Senate leaders, former Deputy Attorneys General of the United States who served in both Republican and Democratic administrations urged the Senate to consider the nomination of James Cole to be the Deputy Attorney General without further delay.

The Deputy Attorney General is the No. 2 position at the Department of Justice. It is a critical national security and Federal law enforcement position. These former officials who served with distinction in that post write that the deputy is ``the chief operating officer of the Department of Justice, supervising its day-to-day operations'' and that ``the deputy is also a key member of the President's national security team, a function that has grown in importance and complexity in the years since the terror attacks of September 11.'' These former Deputy Attorneys General are right. I thank them for speaking out to urge the Senate to complete consideration of this important nomination.

I ask unanimous consent that their letter be printed in the Record at the end of my statement.

Incidentally, the Deputy Attorneys General who served in both Republican and Democratic administrations who signed this letter were Donald Ayer, Carol Dinkins, Mark Filip, Jamie Gorelick, Philip Heymann, Paul McNulty, David Ogden, and Larry Thompson.

Mr. Cole's nomination has been pending on the Executive Calendar for 4\1/2\ months, since it was reported favorably by the Judiciary Committee in July. I have a hard time remembering any time, in either a Democratic or Republican administration, that the Deputy Attorney General has been held up like this.

Those Republican Senators who continue to block us from considering this well-qualified nominee should come forward and explain why they feel it is justified to continue to leave America without a crucial resource we need to combat terrorism and to keep the country safe. Instead of doing this anonymously, the Senators ought to step forward and say why we cannot confirm this Deputy Attorney General, the No. 2 law enforcement position for the whole United States of America.

Today, I will seek unanimous consent for a time agreement to debate this nomination and finally have a vote in the full Senate. I have alerted the distinguished ranking member of the Judiciary Committee of this request. Those who oppose the nomination are free to say why and they can vote no, but let's end the stalling.

You have Senators say that they don't want to vote yes and that they don't want to vote no, but that they want to vote maybe. This is what is happening now with the nomination for the No. 2 law enforcement official of the country.

Madam President, we were all elected for 6-year terms, with the responsibility to vote yes or no in the best interests of the United States. Voting maybe does not serve those interests.

President Obama nominated Jim Cole to be Deputy Attorney General on May 24. That was 6\1/2\ months ago. I thank the Judiciary Committee ranking member, Senator Sessions, for working with me to schedule a hearing on the Cole nomination while the committee was preparing for Justice Kagan's confirmation hearing.

The problem was not with the Senator from Alabama. He helped me move forward with that hearing in the committee, and I wish we could have proceeded in the same spirit in the Senate. As the former Deputy Attorneys General wrote, ``Because of the responsibilities of the position of Deputy Attorney General, votes on nominations to fill this position usually proceed quickly.'' They also note that of the 11 nominations to fill this position over the last 20 years, from both Democratic and Republican Presidents, ``none remained pending for longer than 32 days.'' Indeed, all four of the Deputy Attorneys General who served under President Bush, three of whom signed the letter we received yesterday, were confirmed by the Senate by voice vote an average of 21 days after they were reported by the Judiciary Committee. In fact, we confirmed President Bush's first nominee to be Deputy Attorney General the very same day it was reported by the committee.

We should treat the nomination of Jim Cole with the same urgency and seriousness with which we treated President Bush's nominations of Larry Thompson, James Comey, Paul McNulty, and Mark Filip. We should reject the strategy of some Senate Republicans of elevating their partisan goal to weaken the Obama administration over taking actions to keep us safe.

In November, over 4 months after Mr. Cole responded to written questions following his confirmation hearing, only two Senators sent him additional followup questions on a topic covered extensively during the earlier questioning. Two weeks ago, Mr. Cole promptly answered even these additional questions. There is no reason for Republicans to continue blocking the Senate's consideration of this nomination.

Jim Cole served as a career prosecutor at the Justice Department for a dozen years and has a well-deserved reputation for fairness, integrity, and toughness. He served under both Republican and Democratic Presidents. He clearly demonstrated during his confirmation hearing months ago that he understands the issues of crime and national security that are at the center of the Deputy Attorney General's job.

The nomination received strong endorsement from Republican and Democratic public officials, and from high-ranking veterans of the Justice Department, including the letter to the Senate leaders yesterday from eight former Deputy Attorneys General who served in the administrations of President Reagan, President George H.W.

Bush, President Clinton, President George W. Bush, as well as the current administration. Former Republican Senator Jack Danforth, who worked with Jim Cole for more than 15 years, described Mr. Cole to the committee as someone without an ideological or political agenda.

The months of delay of this nomination have been unnecessary, debilitating and wrong.

Exhibit 1

December 1, 2010.

Hon. Harry Reid,

Senate Majority Leader,

Washington, DC.

Hon. Addison Mitchell McConnell,

Senate Minority Leader,

Washington, DC.

Dear Leaders Reid and McConnell: We are a bipartisan group

of former Deputy Attorneys General of the United States. We

write to urge the expeditious consideration by the Senate of

the nomination of James Cole to be Deputy Attorney General.

The Cole nomination was received by the Senate on May 24,

2010, and reported favorably from the Judiciary Committee on

July 20, 2010, so the nomination has been pending before the

Senate for more than one hundred and twenty days. Because of

the responsibilities of the position of Deputy Attorney

General, votes on nominations for this position usually

proceed quickly. Over the past twenty years, presidents of

both parties nominated eleven individuals to serve as Deputy

Attorney General. Their nominations were pending on the

Senate calendar for an average of twelve days, and none

remained pending for longer than thirty-two days. Nine of the

eleven nominees were confirmed by voice vote or unanimous

consent.

The position of Deputy Attorney General is an important

position in the federal government. The Deputy Attorney

General functions as the chief operating officer of the

Department of Justice, supervising its day-to-day operations.

As such, the Deputy plays a central role in ensuring

effective enforcement of federal laws, including laws against

mortgage fraud, health care fraud, organized crime and child

exploitation. The Deputy is also a key member of the

president's national security team, a function that has grown

in importance and complexity in the years since the terror

attacks of September 11. He or she supervises the work of the

Department's National Security Division, and is called upon

to make crucial, time sensitive decisions to protect the

American people.

There is a capable individual currently serving as Acting

Deputy Attorney General, but it is important to the proper

functioning of the Department that there be a confirmed

official in this position. Only a Deputy appointed by the

President may formally and automatically assume all of the

duties of the Attorney General when that Cabinet official is

unavailable for one reason or another. And there is at least

one critical statutory responsibility that an Acting Deputy

cannot perform--signing applications to the Foreign

Intelligence Surveillance Court.

We strongly urge that the Senate vote on the nomination of

James Cole as soon as possible.

Sincerely,

Donald B. Ayer,

Carol E. Dinkins,

Mark R. Filip,

Jamie S. Gorelick,

Philip B. Heymann,

Paul J. McNulty,

David W. Ogden,

Larry D. Thompson.

At this time--and I note that my colleague from Alabama is in the Chamber--I propound the following unanimous-consent request:

I ask unanimous consent, as if in executive session, that at a time to be determined by the majority leader, following consultation with the Republican leader, that the Senate proceed to executive session to consider Calendar No. 1002, the nomination of James Michael Cole to be Deputy Attorney General; that there be 2 hours of debate with respect to the nomination, with the time equally divided and controlled between the chairman and ranking member of the Judiciary Committee; that upon the use or yielding back of such time, the Senate proceed to vote on confirmation of the nomination; that upon confirmation, the motion to reconsider be considered made and laid upon the table; and that the President be immediately notified of the Senate's action, and the Senate then resume legislative session.

Madam President, I am disappointed. The Republicans are saying there is a double standard. All of the Deputy Attorneys General nominated by Republican presidents have been confirmed, most by voice vote, within a month. This one has waited on the floor for over 4 months and we still cannot even get a vote. As Senators, we should all at least have the courage to vote yes or to vote no. Eventually, we have to stop voting maybe. It allows everybody to go home and say: I may be here on an issue or I may be there. We are Senators and we must have the courage to vote yes or to vote no. We cannot continue to vote maybe, especially on the No. 2 law enforcement officer of the United States. President Bush's first deputy, was confirmed within 24 hours of being reported from Committee, while James Cole has waited 6 months for a vote. Voting maybe is not a profile in courage in the Senate.

I yield to the Senator from Maryland.

I certainly have no objection. That is a fair request.

Madam President, would the Senator yield?

Madam President, in a way, the Senator is making my point. If he has questions about Mr. Cole, let him argue them, debate them, set a time, and then vote yes or vote no. Particular issues come up in the Senate, such as nominees, and Republicans hold them up so they never come to a vote. Then the Senators can take any position they want to back home.

All I am saying is that we must vote yes or no and not maybe. We have too many issues in the Senate, whether it is tax matters, don't ask, don't tell, or nomination, where we continue to delay a vote.

I know the distinguished Senator from Alabama has never hesitated to vote yes or no in committee, and I commend him on that. Many times we agree, and a number of times we disagree, but he states his position as a yes or no. He and I have voted on this issue in committee and stated a position. I just hope everybody else can as well.

I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on December 2, 2010, at 9 a.m.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on December 2, 2010, at 10 a.m., in room 215 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Tax Reform: Historical Trends in Income and revenue.''

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on December 2, 2010 at 3 p.m.

Mr. President, I ask unanimous consent that the Subcommittee on Aviation Operations, Safety, and Security of the Committee on Commerce, Science, and Transportation be authorized to hold a meeting during the session of the Senate on December 2, 2010, at 2:15 p.m. in room 253 of the Russell Senate Office Building. The Subcommittee will hold a hearing entitled ``International Aviation Screening Standards.''

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 2, 2010, at 10 a.m., in room 253 of the Russell Senate Office Building. The Committee will hold a hearing entitled, ``Oversight of the Consumer Product Safety Commission: Product Safety in the Holiday Season.''

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security be authorized to meet during the session of the Senate on December 2, 2010, at 10 a.m. to conduct a hearing entitled, ``Finding Solutions to the Challenges Facing the U.S. Postal Service.''

Mr. President, 2 weeks ago, before the Thanksgiving Day recess, I urged Republicans and Democrats in the Senate to come together and take action to begin to end the vacancy crisis that is threatening our Federal courts. My call was not extreme nor radical nor partisan. I asked only that Senators follow the Golden Rule. Regrettably, that did not happen, and that is really too bad for the country.

There are now 38 judicial nominees being delayed who could be confirmed before we adjourn--38 judicial nominees who have had their hearings and whose qualifications are well established.

Two weeks ago, I asked the Republican leadership to treat President Obama's nominees as they would have those of a Republican President. I asked for nothing more than that we move forward together in the spirit that we teach our children from a young age by referring to a nearly universal rule of behavior that extends across most major religions and ethical behavior systems.

I urged adherence to the Golden Rule as a way to look forward and make progress. I had hoped that we could remember our shared values. That simple step would help us return to our Senate traditions and allow the Senate to better fulfill its responsibilities to the American people and the Federal judiciary.

Yesterday, I listened to my dear friend, the senior Senator from Connecticut, Mr. Dodd. He gave a lesson similar to others I have heard from Senators over the years--it could have been said by Senators of either party--about why in the Senate we need to work together on certain shared issues. We have 300 million Americans, but only 100 of us have the privilege to serve in this body to represent all 300 million. Senators should certainly stand up for their political positions, but there are certain areas in which the American people expect us to come together. They certainly do not expect us to stall judicial nominations for the sake of stalling, especially nominations that have the strong support of both Republicans and Democrats and that come out of the Judiciary Committee unanimously.

Had we adhered to the Golden Rule, 16 of the judicial nominees being held hostage without a vote, who were each reported unanimously by all Republicans and Democrats on the Judiciary Committee, would have been confirmed before Thanksgiving. So too would an additional nominee supported by all but one of the committee's 19 members. They would be on the Federal bench and Federal judicial vacancies would have been reduced to less than 100. Instead, the across-the-board stalling of judicial nominations that I have been trying to end has continued. We have noncontroversial nominations being delayed and obstructed for no good reason. There is no good reason to hold up consideration for weeks and months of nominees reported without opposition from the Judiciary Committee. I have been urging since last year that these consensus nominees be considered promptly and confirmed. If Senators would merely follow the Golden Rule, that would have happened.

As the Senate recessed, the Washington Post and the Charlotte Observer each criticized the stalling of noncontroversial judicial nominees in editorials published the weekend of November 19. The Washington Post entitled its editorial ``Unconscionable Delays for President Obama's Court Picks'' and recognized that ``even nominees without a whiff of opposition are being blocked'' and concluded ``the hold-up of nominees who have garnered unanimous, bipartisan support is particularly offensive.'' The Charlotte Observer entitled its editorial ``Senate Must End Games, Confirm Strong N.C. Judges'' and called what is going on ``infantile political gamesmanship'' and ``partisan high jinks'' in its comments about the delays in considering Judge Albert Diaz and Judge Catherine

Eagles. In an opinion column in Politico, a former judge appointed by a Democratic President and one appointed by a Republican joined together to call for the Senate to address the judicial vacancies crisis. They cited the use of ``secret holds and filibusters to block the votes'' and observed:

Fewer nominees have been confirmed during the Obama

administration than at any time since President Richard Nixon

was in office. These tactics are, as one senator noted,

``delay for delay's sake.'' They are creating an

unprecedented shortfall of judicial confirmations and,

ultimately, a shortage of judges available to hear cases. For

many Americans, this means justice is likely to be

unnecessarily delayed--and often denied.

I will ask that copies of these pieces be printed in the Record at the end of my statement.

In addition to letters from the President of the United States, the Chief Judge of the United States Court of Appeals for the Ninth Circuit, the Chief Judge of the United States District Court for the District of Columbia, and the American Bar Association that I placed in the record with my statement on November 18, I have now received a copy of the November 19 letter to Senators Reid and McConnell from the Federal Bar Association that I will ask also be print in the Record at the conclusion of my statement.

The Federal Bar Association President notes that ``the large number of judicial vacancies prevents the prompt and timely administration of justice'' and that this ``is causing unnecessary hardship and increased costs on individuals and businesses with lawsuits pending in the federal courts.'' She also notes that seven of the judicial nominees who were reported with near unanimity but are being stalled would fill judicial emergency vacancies: Albert Diaz of North Carolina, Kimberly Mueller of California, Ray Lohier of New York, John Gibney of Virginia, Susan Nelson of Minnesota, Mary Murguia of Arizona and Charlton Reeves of Mississippi.

As of today there are 110 vacancies on the Federal courts around the country; 50 of them are for vacancies deemed judicial emergencies by the nonpartisan Administrative Office of the U.S. Courts. We already know of 20 future vacancies. In addition, the Senate has not acted on the request by the Judicial Conference of the United States to authorize 56 additional judges, which will allow the Federal judiciary to do its work. So we are currently more than 190 judges short of those needed. I urged, before the last Presidential election, that we pass legislation to create additional judgeships, but unfortunately it was blocked.

The vast majority of the President's judicial nominees are consensus nominees and should be confirmed by large bipartisan majorities. Many of them will be confirmed unanimously. These are well-qualified nominees with the support of their home State Senators, both Republicans and Democrats. I have not proceeded in the Judiciary Committee with a single nominee who is not supported by both home State Senators. I have worked with all Republican Senators to make sure they were included in this process. President Obama has worked hard with home State Senators regardless of party affiliation, and by doing so has done his part to restore comity to the process, as have I as chairman.

Regrettably, despite our efforts and the President's selection of outstanding nominees, the Senate is not being allowed to promptly consider his consensus nominees. To the contrary, as the President has pointed out, nominees are being stalled who, if allowed to be considered, would receive unanimous or near unanimous support, be confirmed, and be serving in the administration of justice throughout the country.

We have had nominees on whom we have had to file cloture to get to a vote, then the rollcall vote is 100 to 0 or 99 to 0. This makes no sense. It breaks with every tradition in this body. I speak as one who has been here 36 years. There is only one Member of this body who served here longer than I have. I know both Republican and Democratic leaders and Republican and Democratic Presidents and we have never seen this happen. It is counterproductive.

Like the President, I welcome debate and a vote on those few nominees that some Republican Senators would oppose. Nominees like Benita Pearson of Ohio, William Martinez of Colorado, Louis Butler of Wisconsin, Edward Chen of California, John McConnell of Rhode Island, and Goodwin Liu of California. I have reviewed their records and considered their character, background and qualifications. I have heard the criticisms of the Republican Senators on the Judiciary Committee as they have voted against this handful of nominees. I disagree, and believe the Senate would vote, as I have, to confirm them. That they will not be conservative activist judges should not disqualify them from serving.

But that is not what is happening. Republican Senators are not debating the merits of those nominations, as Democratic Senators did when we opposed the most extreme handful of nominees of President Bush. What is happening is that judicial confirmations are being stalled virtually across the board.

What is new and particularly damaging is that 26 judicial nominees who were all reported unanimously by the Senate Judiciary Committee, without Republican opposition, are still being delayed. These nominees include Albert Diaz and Catherine Eagles of North Carolina. They are both supported by Senator Hagan and Senator Burr. Sadly, Senator Burr's support has not freed them from the across the board Republican hold on all judicial nominees. Judge Diaz was reported unanimously in January, almost 12 months ago, and still waits for an agreement from the minority in order for the Senate to consider his nomination so that he may be confirmed.

Also being delayed for no good reason from joining the bench of the most overloaded Federal district in the country in the Eastern District of California is Kimberly Mueller, whose nomination was reported last May, more than seven months ago, without any opposition. Her nomination is one of four circuit and district nominations to positions in the Ninth Circuit currently on the Executive Calendar that Republicans are blocking from Senate consideration. In addition to the Liu and Chen nominations, the nomination of Mary Murguia from Arizona to the Ninth Circuit has been stalled since August despite the strong support of Senator Kyl, the assistant Republican leader.

Justice Anthony Kennedy, a Republican nominated by a Republican President, spoke to the Ninth Circuit Judicial Conference about skyrocketing judicial vacancies in California and throughout the country. He said:

It's important for the public to understand that the

excellence of the federal judiciary is at risk.

He added:

If judicial excellence is cast upon a sea of congressional

indifference, the rule of law is imperiled.

The Advisory Board of the Ninth Circuit sent a letter last week to the majority and minority leaders urging action on pending nominations to address the growing vacancy crisis in that circuit. The Board writes: ``Allowing the current judicial vacancy crisis to continue and expand--as it inevitably will if nothing changes--is unacceptable. The current situation places unreasonable burdens on sitting judges and undermines the ability of our federal courts to serve the people and businesses of the Ninth Circuit.'' I will ask that this letter be printed in the Record at the conclusion of my statement.

The District of Columbia suffers from four vacancies on its Federal District Court. We have four outstanding nominees who could help that court, but they are now being delayed. Beryl Howell was reported by the committee unanimously. She is well known to many of us from her 10 years of service as a counsel on the Senate Judiciary Committee. She is a decorated former Federal prosecutor and the child of a military family. Robert Wilkins was also reported without opposition. James Boasberg and Amy Jackson could have been reported before Thanksgiving, but were needlessly delayed in Committee for another 2 weeks.

John Gibney of Virginia, James Bredar and Ellen Hollander of Maryland, Susan Nelson of Minnesota, Edmond Chang of Illinois, Leslie

Kobayashi of Hawaii, and Denise Casper of Massachusetts are the other district court nominees reported unanimously from the Judiciary Committee and could have been confirmed as consensus nominees long ago.

Another district court nominee is Carlton Reeves of Mississippi, who is supported by Senator Cochran and is a former president of the Magnolia Bar Association. Only Senator Coburn asked to be recorded as opposing his nomination. I believe Mr. Reeves would receive a strong bipartisan majority vote for confirmation.

Counting Judge Diaz, there are seven consensus nominees to the circuit courts who are being stalled on the Senate Executive Calendar. Judge Ray Lohier of New York would fill one of the four current vacancies on the United States Court of Appeals for the Second Circuit. He is another former prosecutor with support from both sides of the aisle. His confirmation has been stalled for no good reason for more than 6 months, as well. Scott Matheson is a Utah nominee with the support of Senator Hatch who was reported without opposition. Mary Murguia is from Arizona and is supported by Senator Kyl and was reported without opposition. Judge Kathleen O'Malley of Ohio, nominated to the Federal Circuit, was reported without opposition. Susan Carney of Connecticut was reported with 17 bipartisan votes by the Judiciary Committee to serve on the Second Circuit. James Graves of Mississippi was reported unanimously to serve on the Fifth Circuit.

Many of these nominees could have been considered and confirmed before the August recess. 23 of them could have been considered and confirmed before the October recess. They could and should have been confirmed before the Thanksgiving recess. They were not. They are being held in limbo. They do not know where their life should be at this point, and their courts are empty.

They were not considered because of Republican objections that, I suspect, have nothing to do with the qualifications or quality of these nominees. These are not judicial nominees whose judicial philosophy Republicans question. Most of them were voted for by every single Republican on the Senate Judiciary Committee.

The President noted, in his September letter to Senate leaders, that the ``real harm of this political game-playing falls on the American people, who turn to the courts for justice,'' and that the unnecessary delay in considering these noncontroversial judicial nominations ``is undermining the ability of our courts to deliver justice to those in need . . . from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment of perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.''

I think the Senate should end this across-the-board blockade against confirming noncontroversial judicial nominees. Democrats did not engage in such a practice with President Bush, and Republicans should not continue in their practice any longer. With 110 vacancies plaguing the Federal courts, we do not have the luxury of indulging in these kinds of games.

The Senate is well behind the pace set by the Democratic majority in the Senate considering President Bush's nominations during his first 2 years in office. In fact, at the end of President Bush's second year in office, the Senate, with a Democratic majority, had confirmed 100 of his Federal circuit and district court nominations. I know because they all, every one of them, were considered and confirmed during the 17 months I chaired the Senate Judiciary Committee. Not a single nominee reported by the Judiciary Committee remained pending on the Senate's Executive Calendar at the end of the Congress.

In sharp contrast, during President Obama's first 2 years in office, the minority has allowed only 41 Federal circuit and district court nominees to be considered by the Senate. In fact, in 2002, we proceeded in the lameduck session after the election to confirm 20 more of President Bush's judicial nominees. There are 34 judicial nominees ready for Senate consideration and another 4 noncontroversial nominations on the committee's business agenda. That is 38 additional confirmations that could be easily achieved with a little cooperation from Republicans. That would increase the confirmation from the historically low level of 41 where it currently stands, to almost 80. That would be in the range of judicial confirmations during President George H.W. Bush's first 2 years, 70, while resting below President Reagan's first 2 years, 87, and pale in comparison to the 100 confirmed in the first 2 years of the George W. Bush administration or those confirmed during President Clinton's first 2 years, 127.

During the 17 months I chaired the Judiciary Committee during President Bush's first 2 years, I scheduled 26 hearings for the judicial nominees of a Republican President and the Judiciary Committee worked diligently to consider them. During the 2 years of the Obama administration, I have tried to maintain that same approach. The committee held 25 hearings for President Obama's Federal circuit and district court nominees this Congress. I have not altered my approach and neither have Senate Democrats.

One thing that has changed is that we now receive the paperwork on the nominations, the nominee's completed questionnaire, the confidential background investigation and the America Bar Association, ABA, peer review almost immediately after a nomination is made, allowing us to proceed to hearings more quickly. During 2001 and 2002, President Bush abandoned the procedure that President Eisenhower had adopted and that had been used by President George H.W. Bush, President Reagan and all Presidents for more than 50 years. Instead, President George W. Bush delayed the start of the ABA peer review process until after the nomination was sent to the Senate. That added weeks and months to the timeline in which hearings were able to be scheduled on nominations.

I was puzzled to hear the ranking Republican on the Senate Judiciary Committee say a few weeks ago that ``President Obama's nominees have fared better and moved better than President Bush's nominees.'' I have worked with the ranking Republican in connection with our consideration and confirmation of the President's two nominees to the Supreme Court, Justice Sotomayor and Justice Kagan. He opposed both, but agreed that the process was fair. I have worked with him on procedures to consider the President's other nominees and with some exceptions we have been able to have the Judiciary Committee consider and report them. In terms of comparisons, however, we actually reviewed far more of President Bush's nominees during his first 2 years than we have been allowed to consider during President Obama's first 2 years.

The comparison is that I held 26 hearings for 103 of President Bush's Federal circuit and district court nominees and the committee favorably reported 100 of them. All 100 were confirmed by the Senate. We did that in 17 months. By comparison, during the 19 months the committee has been holding hearings on President Obama's Federal circuit and district court nominees, we have held 25 hearings for 80 nominees. Of the 75 favorably reported, only 41 have been considered by the Senate. Several required cloture petitions and votes to end unsuccessful Republican filibusters. There were no Democratic filibusters of President Bush's nominees during the first 2 years of his Presidency.

In sum, the bottom line is that the Senate has been allowed to consider and confirm less than half of the Federal circuit and district court nominees we proceeded to confirm during President Bush's first 2 years. Forty-one confirmations does not equal or exceed the 100 confirmations we achieved during the first 2 years of the Bush administration. For that matter, the 75 Federal circuit and district court nominees voted on and favorably reported on by the Senate Judiciary Committee does not equal the 100 we reported out in less time during the Bush administration. How the ranking Republican can contend that President Obama's nominees ``have fared better and moved faster than President Bush's nominees'' during their first 2 years in office is beyond me.

When I became chairman of the Senate Judiciary Committee midway through President Bush's first tumultuous year in office, I worked hard to

make sure Senate Democrats did not perpetuate the judge wars as a tit- for-tat. Despite the fact that Senate Republicans pocket-filibustered more than 60 of President Clinton's judicial nominations and refused to proceed on them while judicial vacancies skyrocketed during the Clinton administration, in 2001 and 2002, during the 17 months I chaired the committee during President Bush's first 2 years in office, the Senate proceeded to confirm 100 of his judicial nominees.

This chart shows where we were. President Clinton became president and in the first couple of years we went from the 109 vacancies down to 49. Then the Republicans took over, they started pocket-filibustering, and the vacancies went up to 110.

Democrats were in charge for 17 months with a Republican President. We said we were not going to play the games that they did with President Clinton. We brought judicial vacancies down to 60 under President Bush. We actually moved judges faster for President Bush than the Republicans did when they regained control of the Senate.

Towards the end of President Bush's presidency, we got the vacancies down to 34. However, since President Obama has been in power, confirmations have been held up, and vacancies again reached 110. That might sound good in some kind of fund-raising letter. It doesn't sound good if you are the one trying to have your case heard in a court. It does not sound very good if you are the prosecutor and you want a criminal prosecuted and the judge is not there.

What I cannot understand is why, having worked with President Bush to bring the Federal court vacancies down from 110 to 34, and the Federal circuit vacancies which were at a high of 32, down to single digits, judges are still being blocked. It looks like old habits die hard.

By refusing to proceed on President Clinton's nominations while judicial vacancies skyrocketed during the 6 years they controlled the pace of nominations, Senate Republicans allowed vacancies to rise to more than 110 by the end of the Clinton administration. As a result of their strategy, Federal circuit court vacancies doubled. When Democrats regained the Senate majority halfway into President Bush's first year in office, we turned away from these bad practices. As a result, overall judicial vacancies were reduced during the Bush years from more than 10 percent to less than 4 percent. During the Bush years, the Federal court vacancies were reduced from 110 to 34 and Federal circuit court vacancies were reduced from a high of 32 down to single digits.

This progress has not continued with a Democratic President back in office. Instead, Senate Republicans are returning to the strategy they used during the Clinton administration of blocking the nominations of a Democratic President, again leading to skyrocketing vacancies.

Last year, the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years. The judiciary is not supposed to be political or politicized. When litigants are in a Federal court, they assume they will get impartial justice, regardless of whether they are a Republican or a Democrat. But this kind of game playing, of holding up nominees of a Democratic President, hurts the whole administration of justice.

This year we have yet to confirm 30 Federal circuit and district judges. We are not even keeping up with retirements and attrition. As a result, judicial vacancies are again at 110, more than 10 percent.

There are also the personal consequences. We have highly qualified people who get nominated for the Federal court, with backing from the Republican and Democratic Senators from their State. They are in a law practice, and everybody congratulates them. However, their firms are limited in what cases they can take if the nominee stays on, and they end up in limbo.

Many of those people are taking a huge cut in pay to go on the Federal bench. Suddenly, they are forced to wait for 6, 7, 8 months, without being able to earn anything. Then eventually they are confirmed 100 to 0. This needs to change.

Regrettably, the Senate is not being allowed to consider the consensus, mainstream judicial nominees favorably reported from the Judiciary Committee. It has taken nearly five times as long to consider President Obama's judicial nominations as it did to consider President Bush's during his first 2 years in office. During the first 2 years of the Bush administration, the 100 judges confirmed were considered by the Senate an average of 25 days from being reported by the Judiciary Committee. The average time for confirmed circuit court nominees was 26 days. By contrast, the average time for the 41 Federal circuit and district court judges confirmed since President Obama took office is 90 days and the average time for circuit nominees is 148 days--and that disparity is increasing.

Mr. President, I ask unanimous consent that the materials to which I referred be printed in the Record.