Patrick Leahy

Mr. LEAHY

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

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

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

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

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

Mr. LEAHY. Mr. President, I ask unanimous consent that the Subcommittee on Consumer Protection, Product Safety, and Insurance of the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate, on December 6, 2011, at 10 a.m., in room 253 of the Russell Senate Office Building. The Committee will hold a hearing entitled, ``Contaminated Drywall: Examining the Current Health, Housing and Product Safety Issues Facing Homeowners.''

Mr. LEAHY

Mr. LEAHY. Madam President, I understand morning business will now close.

Mr. LEAHY

Mr. LEAHY. Madam President, some of the people I have heard who oppose Ms. Halligan were also some of the same people who successfully opposed an effort in the Congress to actually protect police officers a few years ago. So I want to put the opposition in context. It is probably why so many law enforcement groups support Ms. Halligan, because she stood up for law enforcement, unlike some of the groups we have heard about who oppose her, who sought to make the life of police officers more dangerous. Be that as it may, the Senate stands at a crossroads today. Voting to end the partisan filibuster of this judicial nomination is as important as it was when the Senate did so in connection with the nomination of Judge McConnell to the United States District Court of Rhode Island earlier this year. If we allow the partisan filibuster to go forward, then the Senate will be setting a new standard that no nominee can meet if they wish to be confirmed to the DC Circuit. Republican Senators who just a few years ago argued that filibusters against judicial nominees were unconstitutional and said that they would never support such a filibuster, and those who care about the judiciary in the Senate, need to step forward and do the right thing. You cannot say that filibusters against judicial nominees are unconstitutional when you have a Republican President but suddenly support a filibuster when you have a Democratic President. This goes even beyond the standards that have driven the approval rating of Congress to an all-time low for hypocrisy. We ought to end the filibuster now and proceed to vote on this extraordinarily well- qualified nominee. Ms. Halligan, nominated to fill one of three vacant seats on the important DC Circuit, is a highly regarded appellate advocate. She has the kind of impeccable credentials in both public service and private practice that have been looked for in the past by both Democratic and Republican Presidents. Her nomination reminds me of John Roberts, when he was confirmed by every single Democrat and every single Republican to the DC Circuit in 2003. I certainly did not agree with every position he had taken or argument he had made as a high-level lawyer in several Republican administrations, but I supported his nomination to the DC Circuit, as I did to the Supreme Court, because of his legal excellence and ability. It is frustrating to have Senators tell me privately they know Ms. Halligan is just as qualified as John Roberts was, but this lobby and that lobby are against her. Lobbyists come and go. The court is supposed to be the epitome of justice in this country. I trusted John Roberts' testimony that he would fairly apply the law if confirmed. If the standard we used for him is applied to Ms. Halligan, there is no question this filibuster will end and Caitlin Halligan will be confirmed. By any traditional standard, Caitlin Halligan is the kind of superbly qualified nominee who should easily be confirmed by the Senate. Yet, the Senate Republican leadership's filibuster of this nomination threatens to set a new standard that could not be met by anyone. It would not have been met by John Roberts. If this is the new standard, it is wrong, it is unjustified and it is dangerous. Overcoming it will take a handful of sensible Senate Republicans willing to buck their leadership and some single-issue lobbyists. They have done it before and they should again now. Those who care about the judiciary--and as important, those who care about the Senate--need to come forward and end this filibuster. From the beginning of the Obama administration, we have seen too many Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President. During the administration of the last President, a Republican, they insisted that filibusters of judicial nominees were unconstitutional. They threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes for each of President Bush's judicial nominations. Many Republican Senators declared that they would never support the filibuster of a judicial nomination. Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana. They tried to prevent an up or down vote on his nomination even though he was nominated by President Obama after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. The Senate rejected that unjustified filibuster and Judge Hamilton was confirmed with Senator Lugar's support. With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the DC Circuit virtually impossible for the future. Caitlin Halligan is a well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice. She served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice, currently serves as General Counsel at the New York County District Attorney's Office, and has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts. She clerked for Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on the DC Circuit, the court to which she has been nominated. No Senator has or can question her qualifications. I have reviewed her record carefully in the course of the Judiciary Committee's thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and in writing following the hearing. In my view, there is no legitimate reason or justification for filibustering her nomination. Yesterday, I put into the Record some of the many letters of support we have received from across the political spectrum for Ms. Halligan's nomination. These letters are a testament to both her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention. They attest to the fact she is not a closed-minded idealogue, but is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career. We should encourage nominees with the qualities of Ms. Halligan to engage in public service. We should welcome people like her to serve on the Federal bench, not denigrate them. Concocted controversies and a blatant misreading of Ms. Halligan's record as an advocate are no reason to obstruct this outstanding nomination. I also demonstrated yesterday that any so-called ``caseload'' concern is no justification for filibustering this nomination. This was not a concern we heard from Republicans when they voted to confirm President Bush's nominees to fill not only the 9th seat, but also the 10th seat and the 11th seat on this court a couple of years ago. They should not now use caseload as an excuse to filibuster President Obama's nomination to fill the ninth seat when the DC Circuit's caseload has increased. There are only two differences today than when President Bush's nominees to the DC Circuit were confirmed in 2005 and 2006: One, the caseload per active judge has increased, not decreased; and we have a Democratic President, not a Republican President. The DC Circuit is often considered the second most important court in the land because of the complex cases that it handles, cases that have grown in importance since the attacks of September 11. As noted in a recent Washington Post editorial: ``[Caseload numbers do] not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.'' I ask unanimous consent that a copy of this editorial and one from today's Boston Globe be printed in the Record at the conclusion of my remarks, along with letters to the editor of the Washington Post in support of Ms. Halligan's nomination.

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

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

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

Mr. LEAHY

Mr. LEAHY. I ask for the yeas and nays.

Mr. LEAHY. Today the Senate will finally consider nominations to fill four vacancies on Federal district courts, all of which were reported by the Judiciary Committee unanimously in September and early October. All four nominees Edgardo Ramos and Andrew Carter, nominated to the Southern District of New York, James Rodney Gilstrap, nominated to fill a judicial emergency vacancy in the Eastern District of Texas, and Dana Christensen, nominated to the District of Montana are superbly qualified nominees with the strong support of their home state Senators. It should not have taken three months or more for the Senate to vote on their nominations. I thank the Majority Leader for securing a vote on these nominations, but I am disappointed that the Senate Republican leadership would not agree to a vote on the nomination of Jesse Furman to fill a third vacancy on the Southern District of New York. Like Edgardo Ramos, Andrew Carter and James Gilstrap, his nomination was reported by the Judiciary Committee on September 15 without opposition from a single member of the Committee, Democratic or Republican. Mr. Furman, an experienced Federal prosecutor who served as Counselor to Attorney General Michael Mukasey for two years during the Bush Administration, is a nominee with an impressive background and bipartisan support. There is no reason or explanation for why the Senate could not also consider his nomination today. There is also no reason or explanation why Republican leadership will not consent to consider the other 20 judicial nominations waiting for final Senate action, all but four of which were reported by the Committee without any opposition, all but two of them with significant bipartisan support. Senator Grassley and I have worked together to ensure that each of the 25 nominations now on the Senate Calendar was fully considered by the Judiciary Committee after a thorough, fair process, including completing our extensive questionnaire and questioning at a hearing. Before each of these nominees was selected by the President, the White House worked with the nominees' home state Senators who support them, the FBI completed an extensive background review, and each nominee was peer reviewed by the American Bar Association's Standing Committee on the Federal Judiciary. When the nominations have been favorably reported by the Judiciary Committee after this extensive and thorough process, there is no reason for months and months of further delay before they can start serving the American people. It is now December 5, with only weeks left in the Senate's 2011 session. I am concerned that we are not able to move more quickly at a time when we continue to hear from chief judges around the country about the overburdened courts in their districts and circuits. We need to consider at least eight judges every week in order to begin to catch up and erase the backlog that has developed from the delays in the consideration of consensus nominees caused by the Senate Republican leadership. We should not repeat the mistakes of last year, when the Senate Republican leadership refused to consent to consider 19 judicial nominations reported by the Judiciary Committee, an exercise in unnecessary delay I believe to be without precedent with respect to such consensus nominees. It took us until June of this year, halfway into 2011, to consider and confirm 17 of these nominations that could and should have been considered before the end of 2010. Before we adjourn this year, there is certainly no reason the Senate cannot at least consider the 17 judicial nominations reported unanimously by the Committee this session, who are by any measure consensus nominees. I hope that we do not see a repeat of the damaging decision by Senate Republican leadership at the end of last year to refuse to agree to votes on those nominations. That decision stood in stark contrast to the practice followed by the Democratic majority in the Senate during President Bush's first two years. Last year, Senate Republicans refused to use the same standards for considering President Obama's judicial nominees as we did when the Senate gave up or down votes to all 100 of President Bush's judicial nominations reported by the Committee in his first two years. All 100 were confirmed before the end of the 107th Congress, including two controversial circuit court nominations reported and then confirmed during the lame duck session in 2002. The Senate last year should not have been forced to adjourn with 19 judicial nominations still on the Senate calendar. With vacancies continuing at harmfully high levels, we cannot afford to repeat these unnecessary and damaging delays. There is no reason we cannot make significant progress this month and consider all of the consensus nominations now pending on the Senate calendar. That is what we did at the end of President Reagan's third year in office and President George H.W. Bush's third year in office, when no judicial nominations were left pending on the Senate Calendar. That is what we did at the end of the 1995 session, President Clinton's third year in office, when only a single nomination was left pending on the Senate calendar. That is also what we did at the end of President George W. Bush's third year, when seven of the nine judicial nominations left on the calendar by the Senate's Republican majority were among President Bush's most extreme ideological picks and had previously been debated extensively by the Senate. The standard has been that noncontroversial judicial nominees reported by the Judiciary Committee get Senate action before the end of the year. That is the standard we should follow this year. We remain well behind the pace set by the Senate during President Bush's first term. By the end of his first term, the Senate had confirmed 205 district and circuit nominees, and had already confirmed 167 by this point in his third year. So far, the Senate has confirmed only 119 of President Obama's district and circuit nominees. Senate action before adjournment on all 25 judicial nominations that are before the Senate today would go a long way to help resolve the longstanding judicial vacancies that are delaying justice for so many Americans in our Federal courts across the country. The 100 circuit and district court nominations we confirmed in President Bush's first two years leading to a vacancy total of 60 at the beginning of his third year is almost a complete reverse of the 60 the Senate was allowed to confirm in President Obama's first two years, leading to nearly 100 vacancies at the start of 2011. Yet, even following those years of real progress, in 2003 we proceeded to confirm more judicial nominations than there were vacancies at the start of that year, and reduced vacancies even further, down to 5 percent, half of where they stand today. Chief Justice Roberts, the Attorney General and the White House counsel have all spoken about the serious problems created by persistent judicial vacancies. More than half of all Americans over 167 million live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar. As many as 23 states are served by Federal courts with vacancies that would be filled by these nominations. Millions of Americans across the country are harmed by delays in overburdened courts. The Republican leadership should consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies before we adjourn for the year and not unnecessarily delay their consideration until next spring. The four nominees we consider today will all be confirmed, I expect, with significant bipartisan support. Edgardo Ramos is nominated to fill a vacancy on the District Court for the Southern District of New York. Since 2002, Mr. Ramos has been in private practice after serving for ten years as an Assistant U.S. Attorney in the Eastern District of New York, where he was promoted to Deputy Chief of the Narcotics Section. The ABA's Standing Committee on the Federal Judiciary unanimously rated him ``well qualified'' to serve, its highest possible rating. The nomination of Mr. Ramos has the strong support of both his home state Senators, Senator Schumer and Senator Gillibrand, and was reported by the Judiciary Committee by voice vote with no dissent on September 15. The nomination of Judge Andrew Carter to fill a vacancy on the District Court for the Southern District of New York also has the strong support of the New York Senators and was also reported unanimously by voice vote on September 15. Since 2009, Judge Carter has been a Magistrate Judge for the Eastern District of New York. Prior to joining the bench, Judge Carter served for 13 years as a public defender in New York state and Federal and spent two years at the Ford Foundation as a Program Assistant in its Rights and Social Justice Program. James Rodney Gilstrap is nominated to fill a vacancy on the District Court for the Eastern District of Texas determined by the Administrative Office of the U.S. Courts to be a judicial emergency vacancy. His nomination has the support of both his Republican home state Senators, Senator Cornyn and Senator Hutchison. For 27 years Mr. Gilstrap has been a partner at the law firm of Smith & Gilstrap in Marshall, Texas. He has also served as a part-time County Judge for Harrison County, Texas. His nomination was reported unanimously by the Judiciary Committee by voice vote on September 15. Dana Christensen is nominated to fill a vacancy on the District Court for the District of Montana. Mr. Christensen has spent his 34-year legal career in private practice and is currently the president of the law firm of Christensen, Moore, Cockrell, Cummings & Axelberg, P.C. in Kalispell, Montana. The ABA Standing Committee on the Federal Judiciary unanimously rated Mr. Christensen ``well qualified'' to serve, its highest possible rating. His nomination has the support of both his home state Senators, Senator Baucus and Senator Tester, and was reported by the Judiciary Committee by voice vote with no dissent on October 6. I hope the Senate can build on today's progress to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country. Nomination of Caitlin Halligan Tomorrow the Senate should be holding an up-or-down vote on the long- delayed nomination of Caitlin Halligan to fill one of three vacancies on the Court of Appeals for the D.C. Circuit. Instead, for the seventh time since President Obama took office 34 months ago, we are required to overcome a Republican filibuster for the Senate to consider one of President Obama's superbly qualified judicial nominees. Ms. Halligan, President Obama's first nominee to the important D.C. Circuit, is the former Solicitor General for the State of New York. With an impressive record in private practice and public service, she is widely respected for the quality of her work as an advocate. Indeed, Ms. Halligan's nomination was greeted with bipartisan support and has since garnered endorsements from law enforcement officials and organizations, women's organizations, law school deans and professors, judges and preeminent lawyers from across the political spectrum. The Judiciary Committee favorably reported Ms. Halligan's nomination nearly nine months ago. By any traditional standard, she is the kind of superbly qualified nominee who should easily have been confirmed by the Senate months ago with the support of both Republicans and Democrats. I am disappointed that yet again instead of seeing bipartisan cooperation we are required to seek cloture. From the beginning of the Obama administration, we have seen some Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President. During the administration of the last President, a Republican, Republican Senators insisted that filibusters of judicial nominees were unconstitutional. They threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes for each of President Bush's judicial nominations. Senator McConnell, then the Republican whip, said: ``Any President's judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote. . . . It's time to move away from advise and obstruct and get back to advise and consent. The stakes are high. . . . The Constitution of the United States is at stake.'' Many Republican Senators declared that they would never support the filibuster of a judicial nomination--never. Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana. David Hamilton was a widely respected 15-year veteran of the Federal bench. President Obama nominated Judge Hamilton in March 2009, after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. Rather than welcome the nomination as an attempt by President Obama to step away from the ideological battles of the past, some Senate Republicans ignored Senator Lugar's support, caricatured Judge Hamilton's record and filibustered his nomination. After the Senate rejected that filibuster, Judge Hamilton was confirmed. The partisan delays and opposition to President Obama's judicial nominations have continued since. Senate Republicans have required cloture motions to be filed on judicial nominations that ultimately won unanimous support from the Senate. Earlier this year they filibustered the nomination of Professor Goodwin Liu of California, who was supported by both his home state Senators to fill a judicial emergency vacancy on the Ninth Circuit. That successful filibuster of a brilliant lawyer and a good man prevented the Senate from having an up-or-down vote on his nomination and prevented an outstanding nominee from serving the American people on the Federal bench. They attempted to justify that filibuster on ideological grounds. There is no such justification here, in connection with the nomination of Caitlin Halligan who is a mainstream lawyer and public servant from New York. Senate Republican leadership took the virtually unprecedented step this year of requiring cloture to be filed on a district court nomination. That effort to ratchet up the judge wars was rejected when 11 Republican Senators joined to ensure an up-or-down vote on the nomination of Jack McConnell to the District of Rhode Island. With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the D.C. Circuit virtually impossible for the future. Caitlin Halligan is well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice. I have reviewed her record carefully in the course the Judiciary Committee's thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and in writing following the hearing. In my view, there is no legitimate reason or justification for filibustering her nomination. Caitlin Halligan is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career. We should encourage nominees with the qualities of Ms. Halligan to engage in public service and we should welcome them on the Federal bench, not denigrate them. Concocted controversies and a blatant misreading of Ms. Halligan's record as an advocate are no reason to obstruct this outstanding nomination. We must reject these misguided arguments. This filibuster against this qualified woman will set a standard that could not be met by judicial nominees of Presidents of either party. I trust that, as with the nomination of Jack McConnell, sensible Republican Senators will, again, join in preventing such an outcome. It is time to edge away from this dangerous precipice. When Democratic Senators cooperated to confirm John Roberts to the D.C. Circuit in 2003, it broke the stalemate created by the Republicans refusal for years to even consider President Clinton's nominees to that Court. Like John Roberts, Caitlin Halligan is a highly regarded appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit. She should be confirmed, not unjustifiably filibustered. Ms. Halligan served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice. She is currently General Counsel at the New York County District Attorney's Office, an office that investigates and prosecutes 100,000 criminal cases annually in Manhattan. Ms. Halligan has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts. Just as John Roberts had served in government and clerked for the Supreme Court, she clerked for Supreme Court Justice Stephen Breyer. She also clerked for Judge Patricia Wald on the D.C. Circuit, the court to which she has been nominated. The American Bar Association's Standing Committee on the Federal Judiciary, which Republican Senators often cite, unanimously rated Ms. Halligan ``Well- Qualified'' to serve on the D.C. Circuit. That is the highest rating that can be received from its non-partisan peer review. The letters of support we have received for Ms. Halligan's nomination from a broad range of people and organizations is a testament both to her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention. Twenty-one prominent appellate advocates from across the political spectrum who have worked with Caitlin Halligan, including Miguel Estrada and Carter Phillips, endorsed her nomination, writing: ``We believe that Caitlin is an outstanding selection for the D.C. Circuit. She is a first-rate lawyer and advocate. She is well respected and highly regarded as a leader of the profession. Caitlin has an ideal judicial temperament. She brings reason, insight and judgment to all matters. Even those of us who have been on the opposite sides of Caitlin in litigation have been greatly impressed with her ability and character. We have no doubt she would serve with distinction and fairness.'' When Ms. Halligan was nominated, Carter Philips, a preeminent Supreme Court advocate who served as Assistant to the Solicitor General during the Reagan administration, described her as ``one of those extremely smart, thoughtful, measured and effective advocates'' and concluded that she ``will be a first-rate judge.'' Judge Albert Rosenblatt, who was appointed to serve on New York's highest court by former Republican Governor George Pataki, wrote in praise of Ms. Halligan's work as New York's Solicitor General, concluding that ``her sense of fairness and balance is among the best--if not the best--that I have ever seen in my 34 years as a judge and a prosecutor.'' This is not a nomination that should be filibustered. To do so will set a destructive standard that no one will be able to meet. If someone of Caitlin Halligan's outstanding credentials, character and experience cannot be confirmed, no one can be. The nomination of Ms. Halligan has likewise received significant support from law enforcement officials and organizations. The National District Attorneys Association has called Caitlin Halligan's background ``impressive,'' stating that she ``would be an outstanding addition'' to the D.C. Circuit. District Attorneys from the State of New York, including Republicans Derek Champagne, Daniel Donovan, Jr., William Fitzpatrick, James Reams and Scott Burns, support her nomination, as do the New York Association of Chiefs of Police and the New York State Sheriff's Association. New York City Police Commissioner Raymond Kelly has said that Ms. Halligan has the ``three qualities important for a nominee: intelligence, a judicial temperament, and personal integrity.'' Legendary New York County District Attorney Robert Morgenthau, endorsing her nomination in the ``strongest of terms,'' described Ms. Halligan as ``qualified in terms of intellect, ability and temperament.'' This is not someone to be filibustered and blocked from serving as a Federal judge. More than 20 former United States Supreme Court clerks, including clerks who worked for conservative Justices such as former Chief Justice Rehnquist, Justice Scalia and Justice Kennedy, wrote that they ``retain a distinct appreciation of Caitlin's sharp intelligence and her ability to cooperate with others in resolving difficult legal problems.'' They concluded their letter of support by praising her ``reasonableness and collegiality,'' and calling her a ``fair-minded colleague who was a pleasure to work with in a sophisticated and demanding legal setting.'' This is not a closed minded ideologue. Caitlin Halligan is an outstanding lawyer who will be an outstanding judge. Ms. Halligan's nomination has received support from numerous women's law enforcement, business, and legal organizations, including the New York Women in Law Enforcement, the National Center for Women and Policing, the National Conference of Women's Bar Associations, and the Women's Bar Association of the District of Columbia. The U.S. Women's Chamber of Commerce asked the Senate to confirm Ms. Halligan, describing her as ``exceptionally well-qualified'' with ``outstanding legal credentials and legal experience that is both broad and deep.'' The National Conference of Women's Bar Associations, which supports Ms. Halligan because her ``broad experience, public service and intellect make her well suited to the federal appellate bench,'' also notes that ``her appointment would add much needed diversity to the federal court, where only three women are among the active judges on the DC Circuit.'' More than 100 women who are deans and professors at top law schools throughout the country strongly support the nomination because ``Ms. Halligan has won accolades for her judgment, legal acumen, and expertise in appellate litigation,'' and because her ``legal credentials, experience and accomplishments make her exceptionally well-qualified to serve'' on the D.C. Circuit. They also echo the need for bringing gender diversity to this critical court, noting that, ``women have been historically underrepresented on this court, as only five of the fifty-seven judges to serve there have been women.'' This outstanding nominee is a leader and role model whose career should not be short-circuited by petty partisanship. I ask unanimous consent that some of these letters of support be printed in the Record at the conclusion of my remarks. Exhibit 1 March 4, 2011. Hon. Patrick J. Leahy, Chairman, Senate Judiciary Committee, Dirksen Senate Office Building, Washington, DC. Hon. Charles E. Grassley, Ranking Member, Senate Judiciary Committee, Dirksen Senate Office Building, Washington, DC. Dear Chairman Leahy and Senator Grassley: We write in enthusiastic support of the nomination of Caitlin Halligan to be a judge on the United States Court of Appeals for the District of Columbia Circuit. We are lawyers who have worked with Caitlin in various capacities. We believe that Caitlin is an outstanding selection for the D.C. Circuit. She is a first-rate lawyer and advocate. She is well respected and highly regarded as a leader of the profession. Caitlin also has an ideal judicial temperament. She brings reason, insight and judgment to all matters. Even those of us who have been on opposite sides of Caitlin in litigation have been greatly impressed with her ability and character. We have no doubt that she would serve with distinction and fairness. Sincerely yours, Clifford M. Sloan, Skadden, Arps, Slate, Meagher & Flom LLP; Sri Srinivasan, O'Melveny & Myers LLP; Miguel A. Estrada, Gibson, Dunn & Crutcher LLP; Carter G. Phillips, Sidley Austin LLP; Seth P. Waxman, WilmerHale; Walter Dellinger, O'Melveny & Myers LLP; David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.; Andrew J. Levander, Dechert LLP; Richard J. Davis, Weil, Gotshal & Manges LLP; Michele Hirshman, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Dietrich L. Snell, Proskauer Rose LLP; Paul M. Smith. Jenner & Block LLP; Patricia Ann Millett, Akin Gump Strauss Hauer & Feld LLP; Kathleen M. Sullivan, Quinn Emanuel Urquhart & Sullivan, LLP, Stanford Law School; Thomas W. Brunner, Wiley Rein LLP; Meir Feder, Jones Day; Evan M. Tager, Mayer Brown LLP; Philip K. Howard, Covington & Burling LLP; Ira M. Millstein, Weil, Gotshal & Manges LLP; Roy L. Reardon, Simpson Thacher & Bartlett LLP; Michael H. Gottesman, Georgetown University Law Center.

Mr. LEAHY. I fear that what is behind this misguided filibuster attempt is a continuation of a decades-long attempt by some Senate Republicans to play politics with the Federal court and, in particular, to engage in a rear guard action to preserve the D.C. Circuit as a Republican bastion, despite the fact that the American people elected a Democratic President. A recent Washington Post editorial urging the Senate to confirm Ms. Halligan's confirmation, suggested as much, stating: ``GOP senators are grasping at straws to block Ms. Halligan's ascension, perhaps in hopes of preserving the vacancy for a Republican president to fill.'' Yet again, we see some Senate Republicans shifting the standards they use and the arguments they make based on the party of the President making the nominations. They say one thing when President Clinton is in office, flip when the President is a Republican, and flop when the American people elect President Obama. When President Clinton nominated qualified moderates to vacancies on the D.C. Circuit, Republicans refused to proceed. The last of three Clinton nominees to the D.C. Circuit was confirmed in 1997, after being nominated in 1995 and stalled through the 1996 session when not a single circuit nominee was confirmed by the Senate Republican majority. When Senate Republicans stalled the nomination of Merrick Garland to the D.C. Circuit beyond the 1996 election, even Senator Hatch became frustrated, and in March 1997 he proclaimed that the way that Republicans were opposing judicial nominees was ``playing politics with judges,'' was ``unfair'' and that he was ``sick of it.'' He was right. Merrick Garland, like Caitlin Halligan, was superbly qualified, and was only being obstructed for partisan political gain. But once the blockade against Judge Garland was broken by President Clinton's reelection, Senate Republicans erected an impenetrable wall around the D.C. Circuit. Neither of President Clinton's two other nominees were allowed a Senate vote, or even Judiciary Committee consideration. That escalation in the judge wars was untoward, it was wrong. It hurt the court and was unfair to both Allen Snyder and Elena Kagan, President Clinton's outstanding nominees. Allen Snyder had served as a clerk to Justice Rehnquist and was an experienced and respected litigator. Elena Kagan went on to become Dean of the Harvard Law School and win confirmation to the United States Supreme Court. These were unquestionably qualified nominees. The fact is that for the rest of President Clinton's second term, virtually his entire second four years, given that Judge Garland had actually first been nominated in his first term, Senate Republicans would not consider another nominee to the D.C. Circuit. They just blocked and pocket filibustered outstanding nominees because they could. Republican Senators pretended to justify their refusal to proceed on President Clinton's D.C. Circuit nominees not by arguing against the nominees, but by arguing that the caseload of the D.C. Circuit did not justify the confirmation of any more judges. They were contending that the 11th and 12th judgeships on the D.C. Circuit should not be filled. They argued that 10 judges were enough. But what happened when George W. Bush became President? Republican Senators set aside those arguments when considering the nominations of a Republican President to the same court even as the caseload numbers went down, Senate Republicans abandoned their hollow caseload arguments to press for confirmation of multiple Bush nominees to the D.C. Circuit. Their actions showed that they were not really concerned with a caseload justification. Their reversal now to readopt a caseload argument is not consistency of principle, but relates to the principal who is making the nomination and appears political. Despite the unwillingness of Senate Republicans to act on President Clinton's nominees to the D.C. Circuit for years, Senate Democrats did proceed to consider President Bush's nominations. The first confirmation, for which I voted, was of now-Chief Justice John Roberts to be a judge on the D.C. Circuit. At the time, John Roberts had been Allen Snyder's junior and his partner at Hogan and Hartson. He was the first judge confirmed to the circuit in six years. The Senate then confirmed a series of questionable nominees to the D.C. Circuit: Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh. The same Republican Senators who blocked President Clinton's nominations from even being considered by the Judiciary Committee supported every nomination of President Bush's to the D.C. Circuit, as they filled the ninth seat, twice filled the 10th seat on the court and went on to fill the 11th seat that they had said was unnecessary when a Democratic President was doing the nominating. With the change of administration, Republican Senators have now dusted off an old obstructionist argument about the D.C. Circuit's caseload, something they ignored for eight years as President Bush's nominees were confirmed to fill the 10th seat twice and also the 11th judgeship. But they have ratcheted up their partisan opposition and now oppose even filling the ninth judgeship. With three vacancies on the D.C. Circuit, that is the judgeship that Caitlin Halligan would be filling not the 11th that Senate Republicans filled just recently, or the 10th that they voted twice to fill, but the ninth. This is not a basis on which to oppose as qualified a nominee as Caitlin Halligan, who has widespread support from law enforcement and the legal community. The so-called ``caseload'' concern is no justification for filibustering this nomination. The D.C. Circuit is now more than one- quarter vacant, with three judicial vacancies. In fact, the Senate has acted on the so-called caseload argument. We have already eliminated effective in 2008 the 12th judgeship on that court. In so doing, the Senate and the Congress reaffirmed the authorization of 11 judges needed for the important D.C. Circuit. This court is often considered the second most important court in the land because of the complex cases that it handles. The court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11. As noted in the recent Washington Post editorial: ``[Caseload numbers do] not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.'' The D.C. Circuit's cases have only increased in importance and the court's caseload has not gone down since Republican Senators supported every one of President Bush's nominations to that court. According to the Administrative Office of U.S. Courts, the caseload per active judge has increased by one third since 2005, when the Senate confirmed President Bush's nomination of Thomas Griffith to fill the 11th seat on the D.C. Circuit. That is right--the D.C. Circuit's caseload has actually increased. Judge Griffith's confirmation resulted in there being approximately 121 pending cases per active D.C. Circuit judge. There are currently 161 pending cases for each active judge on the D.C. Circuit, one-third higher. If Ms. Halligan were confirmed to the ninth seat, there would be approximately 143 pending cases for each active D.C. Circuit judge, still significantly higher than after the Senate confirmed President Bush's nominee to the 11th seat in 2005. In addition, according to the Administrative Office of the U.S. Courts, written decisions per active judge have risen 20 percent since 2007. By any objective measure the work of the D.C. Circuit has grown and the multiple vacancies should be filled, not preserved and extended for partisan purposes. Of course, if Republican Senators seeking to use caseload figures to justify their opposition to this nomination were serious, they would not be continuing their refusal to consent to the Senate considering the nominations of Morgan Christen of Alaska to the Ninth Circuit, and Judge Adalberto Jordan of Florida to the Eleventh Circuit, the two circuits with the highest number of cases per active judge. They would not be doing everything they can to delay filling vacancies on the Ninth Circuit, a court burdened by multiple vacancies and the largest caseload in the Nation, and we would instead take up and confirm the nomination of Jacqueline H. Nguyen who is nominated to fill the judicial emergency vacancy that remains open after the Republican filibuster of Goodwin Liu. I have repeatedly urged the Senate to take up and consider these nominations, which are supported by home state Senators, yet Republicans have refused to consider them for months. In fact, courts throughout the country are in need of more confirmed judges and more judgeships to handle high and increasingly complicated caseloads, yet we currently have 25 judicial nominations favorably reported by the Judiciary Committee awaiting final action by the Senate. Republicans concerned about caseload should join with us to consider these nominations. The Senate should not filibuster but should be voting to confirm the nomination of Caitlin Halligan to fill a vacancy on a critical court that is one quarter vacant with only eight active judges and higher caseloads than when Republicans voted to confirm President Bush's nominees fill the ninth, 10th and 11th judgeships on this court just a couple of years ago. Some have sought to criticize Ms. Halligan for positions she advocated on behalf of the State of New York while serving as its Solicitor General. At her confirmation hearing, Ms. Halligan made clear she filed briefs under the direction of New York's Attorney General, arguing on behalf of the State of New York, not based on her personal views. Yet some outside groups and even some Senators ignore this and seek to use those advocacy positions as a basis to filibuster her nomination. These arguments are particularly hard to accept for anybody who understands the role of advocates in our legal system. Our legal system is an adversary one, predicated upon legal advocacy for both sides. Nominees such as Chief Justice John Roberts have said lawyers do not stand in the shoes of their clients. Since when do we impose a litmus test for nominees that they can never have been legal advocates? If we were to do that, we would have no judges. Almost every nominee who had been a practicing lawyer would be disqualified by one side or the other. This is especially hard to understand for any Senators who support the rights of states to defend their interests in courts, the duty Caitlin Halligan owed to New York as its Solicitor General. Some have pointed to her role as New York's Solicitor General acting at the direction of New York's Attorney General in tort lawsuits against gun manufacturers as suggesting that she will not uphold the Second Amendment if confirmed as a judge. As a strong supporter of the Second Amendment, I asked her during her hearing whether as a judge she would faithfully follow and apply the Supreme Court's precedent from District of Columbia v. Heller and McDonald v. Chicago, which held that the Second Amendment protects an individual right to keep and bear arms for self defense. She testified that she would. When asked by Senator Grassley whether the rights conferred under the Second Amendment are fundamental, Ms. Halligan answered: ``That is clearly what the Supreme Court held and I would follow that precedent, Senator.'' In her personal capacity, Ms. Halligan has never challenged or otherwise criticized the Protection of Lawful Commerce in Arms Act (PLCAA) or been critical of the Second Amendment. As New York State's Solicitor General, she prepared an amicus brief at the direction of the New York Attorney General in a case where New York City challenged the PLCAA, seeking to safeguard New York's police powers. The arguments made in the brief were made on behalf of New York State. In the amicus brief, New York State argued that the PLCAA should be struck down as an unconstitutional exercise of Congress's legislative power that infringed on states' rights to exercise the police power within their borders. The amicus brief did not make a single reference to the Second Amendment. Any criticism of the PLCAA in New York State's brief or in the speech she gave as a surrogate for and on behalf of New York Attorney General Spitzer reflected New York State's federalism concerns. It is hardly surprising that New York State--like many other states--advocated for a position that supported state powers. As Solicitor General for the State of New York, Caitlin Halligan vigorously advocated for New York's interests, in particular the right to govern in traditional state law areas. For example, in the Grutter v. Bollinger affirmative action case, New York joined 20 other states in arguing that they ``must have the freedom and flexibility'' to set their own education policy. I assume that position does not raise concerns for those seeking a basis for opposing her nomination. Nor I assume did her defense as New York's Solicitor General of the constitutionality of the death penalty. Indeed, Ms. Halligan's time as Solicitor General shows all the hallmarks of serious advocacy consistent with the interests of her ``client''. When New York municipal attorneys requested advice as to whether clerks could issue marriage licenses to same-sex couples, Ms. Halligan carefully analyzed New York's statutory law and concluded that the state legislature did not intend to authorize marriage licenses to be given to same-sex couples, even though the statutory language is gender neutral. After observing that this interpretation raised ``constitutional questions,'' she outlined the current case law and stated that it was for the courts to resolve the issue. This measured response is no basis on which to caricature her record. Most disconcerting of all are the attacks from some on the outside suggesting that Ms. Halligan lacked candor in the answers she provided to the Judiciary Committee. I hope that we do not see any Senators repeating these baseless charges to create another false controversy. Ms. Halligan has been honest and forthcoming throughout the confirmation process, providing the Committee with her entire record and giving detailed, accurate, and clear answers to over 150 questions from Judiciary Committee members at her hearing and in written follow- up questions on a wide range of topics, such as judicial philosophy, constitutional interpretation, the Tenth Amendment, the Second Amendment, the Commerce Clause, the Eighth Amendment and the death penalty, military commissions and indefinite detention, tort liability, Federal preemption, and standing. In my view, Ms. Halligan's answers to questions from Committee members were detailed and substantive, and show an impressive depth and breadth of knowledge on complex legal issues. There is no lack of record or failure to respond as there was, unfortunately, when the Bush administration would not make information available to Senators in connection with the nomination of Miguel Estrada. There is no lack of forthrightness, as there was when Brett Kavanaugh was manipulating the confirmation process as a political crony and insider during the Bush administration. Those concerned with a 2004 report that questioned the indefinite detention of enemy combatants issued by the Association of the Bar of the City of New York's Committee on Federal Courts at a time when she served on the Committee continue to ignore Ms. Halligan's repeated testimony that she had no role in preparing the report, that she was not aware of the report until preparing for her nomination and that report ``does not reflect [her] views.'' At no time during Ms. Halligan's hearing or in the Committee's consideration of her nomination did any Senator question Ms. Halligan's candor or thoroughness in answering questions. I hope that no Senator does so now to attempt to justify this unjustifiable filibuster. Given Caitlin Halligan's impeccable credentials and widespread support, this should be the kind of consensus nomination supported by Senators of both parties who seek to ensure that the Federal bench continues to attract the best and brightest. Certainly, her nomination should not be subject to a filibuster. Regrettably, however, the Senate's Republican leadership seems intent on continuing with the practices they began when President Obama first took office, engaging in narrow, partisan attacks on his judicial nominations. They seem intent on setting a new standard that could not be met by the judicial nominees of Presidents of either party. Republican Senators who just a few years ago protested that the filibuster of any judicial nomination was unconstitutional, Republican Senators who joined in a bipartisan memorandum of understanding to head off the ``nuclear option'' and agreed that nominees should only be filibustered under ``extraordinary circumstances,'' abandoned all that they said they stood for and joined together in an attempt to prevent an up-or-down vote on President Obama's very first judicial nominee, David Hamilton. There were certainly no ``extraordinary circumstances'' to justify the Republican filibuster of Judge Hamilton, and several Republican Senators joined together with Democratic Senators in rejecting that filibuster. I trust that they will do so, again, and reject this unjustifiable filibuster of Caitlin Halligan. By the standard utilized in 2005 to end filibusters and vote on President Bush's controversial nominees, this filibuster should be ended and the Senate should vote on the nomination. Those Senators who claim to subscribe to a standard that prohibits filibusters of judicial nominees except in ``extraordinary circumstances'' cannot support this filibuster. There are no ``extraordinary circumstances'' here. The 14 Senators who signed the Memorandum of Understanding in 2005, the then ``Gang of 14,'' wrote about their ``responsibilities under the Advice and Consent Clause of the United States Constitution'' and that fulfilling their constitutional responsibilities in good faith meant that nominations `` should only be filibustered under extraordinary circumstance.'' Here there are none. In 2005, Senator Graham, a member of the ``Gang of 14'' described his view of what comprises the ``extraordinary circumstances'' justifying a filibuster. He said: ``Ideological attacks are not an `extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.'' Caitlin Halligan has no ``character problem,'' no ``ethics problem,'' and there is no justification for this filibuster. Caitlin Halligan is a superbly qualified nominee whose personal integrity, temperament and abilities have been attested to by lawyers and judges from both sides of the aisle. The many leading lawyers who have worked with Ms. Halligan, law enforcement officials and organizations supporting her nomination have all attested to Ms. Halligan's ``temperament,'' ``fairness'' and ``balance'' in addition to her legal judgment and qualifications for the D.C. Circuit. Hollow contentions about the caseload of the quarter-vacant D.C. Circuit fall well short of any standard of ``extraordinary circumstances.'' The signers of that 2005 Memorandum of Understanding, and the Senate, demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations. The Senate invoked cloture on the nomination of Janice Rogers Brown to the D.C. Circuit, the circuit to which Caitlin Halligan has been nominated. As a Justice on the California Supreme Court, Janice Rogers Brown was a nominee with a consistent and extensive record, both on the bench and off, of using her position as a member of the court to put her views above the law. This was not a question of one case or one issue on which Democrats differed with the nominee--I have voted for hundreds of nominees of Republican and Democratic Presidents which whom I differ on many issues. But this was a nominee with views so extreme she was opposed not just by her home state Senators, but also by more than 200 law school professors from around the Nation who wrote to the Committee expressing their opposition. Her record in numerous decisions as a judge showed that she was willing to put her personal views above the law on issue after issue, including a willingness to roll back the clock 100 years on workers' and consumers' rights, to undermine clean air and clean water protections for Americans and their communities, laws providing affordable housing, zoning laws that protect homeowners, and protections against sexual harassment, race discrimination, employment discrimination, and age discrimination. In fact, while serving on the California Supreme Court, Justice Brown had argued that Social Security is unconstitutional, a position clearly at odds with well established law. She went so far as to say ``today's senior citizens blithely cannibalize their grandchildren.'' Despite her ideological extremism and willingness to implement her radical personal views as a judge without regard to the existing law, she was confirmed to the D.C. Circuit, her nomination judged not to present ``extraordinary circumstances'' supporting a filibuster. There is no justification under the standard applied to the nomination of Janice Rogers Brown for a filibuster of the nomination of Caitlin Halligan, a widely respected nominee with a clear devotion to the rule of law and no record of ideological extremism. Under the Gang of 14's Memorandum of Understanding, the Senate also agreed to invoke cloture on the nomination of Priscilla Owen to the Fifth Circuit, a nominee whose rulings on the Texas Supreme Court were so extreme they drew the condemnation of other conservative judges on that court. Alberto Gonzales, President Bush's White House counsel and later his Attorney General, went so far as to describe one of her opinions as advocating ``an unconscionable act of judicial activism.'' Her nomination was determined not to present ``extraordinary circumstances.'' Neither was the nomination of Thomas Griffith to the D.C. Circuit, despite his decision to practice law without a license for a good part of his career, which I felt should be disqualifying. Yet his nomination was not judged to present ``extraordinary circumstances'' and he was confirmed to fill the 11th seat on the D.C. Circuit. There is no question under the standard Republicans applied to the nomination of Thomas Griffith, Caitlin Halligan should be confirmed to fill the ninth judgeship on that court. I urge Republican and Democratic Senators to come together and end this misguided filibuster of Caitlin Halligan's nomination to the D.C. Circuit. There is no basis under any standard for blocking her nomination from having an up-or-down vote. To the contrary, Caitlin Halligan's impeccable credentials and record as an accomplished advocate make her nomination worthy of bipartisan support. I look forward to ending this filibuster and voting to confirm Caitlin Halligan to the D.C. Circuit.

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

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

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

Mr. LEAHY. Mr. President, what is the regular order?

Mr. LEAHY

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

Mr. LEAHY

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

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

Mr. LEAHY. Mr. President, earlier this week, one of this bill's lead sponsors said here on the floor of the United States Senate that the bill's detention subtitle would authorize the indefinite detention of U.S. citizens at Guantanamo Bay. That is a stunning statement. We should all pause to consider the ramifications of passing a bill containing such language. Supporters of the detention provisions in the bill continue to argue that such measures are needed because, they claim, ``we are a nation at war.'' That does not mean that we should be a Nation without laws, or a Nation that does not adhere to the principles of our Constitution. One of the provisions in this bill, Section 1032, runs directly contrary to those principles. Section 1032 requires the military to detain terrorism suspects, even those who might be captured on U.S. soil. This provision is opposed by the very intelligence, military, and law enforcement officials who are entrusted with keeping our Nation safe--including the Secretary of Defense, the Director of National Intelligence, the Attorney General, the Director of the FBI, and the President's top counterterrorism advisor. As Chairman of the Judiciary Committee, I support the efforts of Senator Feinstein, the chair of the Senate Intelligence Committee, to modify Section 1032 so that it does not interfere with ongoing counterterrorism efforts or undermine our constitutional principles. In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need. But the mandatory military detention provision in Section 1032 actually limits those tools by tying the hands of the intelligence and law enforcement professionals who are fighting terrorism on the ground, and by creating operational confusion and uncertainty. This is unwise and unnecessary. On Monday, Director Mueller warned that Section 1032 would adversely affect the Bureau's ability to continue ongoing international investigations. Secretary Panetta has also stated unequivocally that ``[t]his provision restrains the Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.'' These are not partisan objections, but rather the significant operational concerns voiced by the Secretary of Defense and the Director of the FBI--both of whom were confirmed by this body with 100-0 votes. And yet these are the voices that supporters of this bill would ignore. Supporters of this bill have argued that the new national security waiver and implementation procedures in this section provide the administration with the flexibility it needs to fight terrorism. The intelligence and law enforcement officials who are actually responsible for fighting terrorism and keeping our Nation safe, however, could not disagree more. As Director Mueller stated in his letter, these provisions are still problematic and ``fail to recognize the reality of a counterterrorism investigation.'' Director of National Intelligence Clapper has stated that ``the various detention provisions, even with the proposed waivers, would introduce unnecessary rigidity'' in the intelligence gathering process. Put differently, Lisa Monaco, the Assistant Attorney General for the National Security Division, recently stated that ``agents and prosecutors should not have to spend their time worrying about citizenship status and whether and how to get a waiver signed by the Secretary of Defense in order to thwart an al- Qaida plot against the homeland.'' We should listen to the intelligence and law enforcement professionals who are entrusted with our Nation's safety, and we should fix this flawed provision. Senator Feinstein's amendment would ensure that the requirement of military detention of terrorism suspects does not apply domestically. As Chairman of the Judiciary Committee, I am proud to be a cosponsor of this amendment, and I urge all Senators to support its adoption. I know Senator Durbin is next, but I now understand from Senator Durbin the distinguished Senator from Missouri is going next. In any event, I yield the floor and thank my colleagues for their courtesy.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate has unanimously adopted my Freedom of Information Act, FOIA, amendment to the National Defense Authorization Act. This measure appropriately narrows the overbroad exemptions to FOIA contained in the bill and will help ensure that the American public has access to important information about potential threats to their health and safety at or near Department of Defense facilities. I thank Senator Levin and Senator McCain for working with me on this issue and including this language, with our agreed-to modifications, in the managers' package for this bill. I also thank the many open government groups from across the political spectrum that support this amendment, including OpentheGovernment.org, the Liberty Coalition, the Sunlight Foundation and the American Library Association. For more than 45 years, the Freedom of Information Act has been a cornerstone of open government and a hallmark of our democracy, ensuring that the American people have access to their Government's records. The addition of this measure to the National Defense Authorization Act will help ensure that FOIA remains a viable tool for access to Department of Defense information that impacts the health and safety of the American public. I am particularly pleased that the language adopted by the Senate includes a public interest balancing test that requires the Secretary of Defense to consider whether the Government's interests in withholding critical infrastructure information are outweighed by other public interests. This improvement to the bill will help ensure that truly sensitive information is protected, while allowing the public to obtain important information about potential health and safety concerns. This language adopted by the Senate strikes an appropriate balance between safeguarding the ability of the Department of Defense to perform its vital mission and the public's right to know. I am pleased that this measure has been included in this important legislation with the unanimous support of the Senate.

Mr. LEAHY

Mr. LEAHY. Mr. President, in 2008, I was proud to join Senator Durbin in support of the National Guard and Reservists Debt Relief Act, which President Bush signed into law. This last week I have been able to arrange on behalf of the Senate Judiciary Committee for expedited action on the bill's extension, and that the Senate is passing unanimously. I commend Chairman Lamar Smith and the House Judiciary Committee for moving this legislation, and Representative Cohen, the bill's author, for his leadership and attention to the issue. Without this measure, the authority we provided to help our Guard and Reserve families would expire. By taking this action we preserve the assistance this authority provides. It is a privilege to work on behalf of the men and women who serve in the Vermont National Guard. They have and continue to make all Vermonters proud. I cannot say enough about the men and women who serve in the National Guard and Reserve. They and their families deserve the full support of Congress for the sacrifices they make. Especially now, where multiple conflicts have demanded even more of them, when so many have been called into active service, we need to keep them foremost in our thoughts. Extending the protections of the National Guard and Reservists Debt Relief Act for another 4 years is the right thing to do. The bill the Senate passes today will exempt qualifying members of the Guard and Reserve from the harsh means test imposed in our bankruptcy laws a few years ago. As a result of Congress's enactment of a 2005 bankruptcy measure, passed at the behest of large banks and credit card companies, Americans who must make the difficult decision to seek the protection of the bankruptcy court now face onerous requirements to demonstrate that they are experiencing sufficient hardship to enter chapter 7 bankruptcy. Under the National Guard and Reservists Debt Relief Extension Act, qualifying members of the Guard and Reserve will be protected against the burden of this requirement for another 4 years. In my view, no American, particularly in times of such economic hardship, should have this burdensome requirement of the so-called means test imposed upon them. The bankruptcy system was established to protect Americans and give them a fresh start. The 2005 enactment turned the law on its head. I opposed this provision in the Senate in 2005, and continue to have serious misgivings about a policy that presumes that Americans facing extreme financial hardships are abusing the bankruptcy process. Passage of the National Guard and Reservists Debt Relief Extension Act is a step forward toward correcting our current policy. I also note that passage of this legislation is another example of the good cooperation that exists between the Senate and House Judiciary Committees operating across the aisle and across the Capitol. Last night, the Senate passed H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act, a bill sponsored by Chairman Smith to bring clarity to the operation of Federal jurisdictional and venue statutes, thereby helping to reduce wasteful litigation over these issues. This bipartisan bill was cosponsored in the House by Representatives by Howard Coble, ranking member John Conyers, Jr., and Hank Johnson of Georgia. Companion legislation was introduced in the Senate by Senator Klobuchar, who chairs the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts, and was cosponsored by Senator Sessions, the ranking member on the subcommittee. These two bills are just the most recent examples of legislation I have worked with Chairman Smith to enact. Of course, we worked together to enact the Leahy-Smith America Invents Act to revitalize our patent laws. We worked together on authorizing the extension of the term of FBI Director Mueller, which required a statutory exception, and on reauthorizing the USA PATRIOT Act. Other examples include H.R. 368, Representative Hank Johnson's bill to clarify removal provisions for matters filed in State courts against Federal agencies and officers; H.R. 398, Representative Lofgren's bill to toll certain time periods for those in active service to our country; S.1637, Senator Klobuchar's bill to clarify how time is calculated under the Federal Rules; and H.R. 2944, Chairman Smith's bill to extend the authority of the U.S. Parole Commission. In addition to these nine measures, we are continuing to work on a number of additional bills, including: S. 1639, Senator Tester's bill to amend the American Legion charter; and S. 1541, Senator Bennet's bill to revise the Blue Star Mothers' charter. I look forward to our continued collaborative relationship. Our successful efforts across the aisle and across the Capitol show that the partisan gridlock that has become all too prevalent these days does not govern everywhere.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I am proud to introduce the bipartisan Violence Against Women Reauthorization Act of 2011 and to be joined by Senator Crapo in doing so. For almost 18 years, the Violence Against Women Act, VAWA, has been the centerpiece of the Federal Government's commitment to combat domestic violence, dating violence, sexual assault, and stalking. We should reauthorize and strengthen these programs. Since VAWA'S passage in 1994, no other law has done more to stop domestic and sexual violence in our communities. The resources and training provided by VAWA have changed attitudes toward these reprehensible crimes, improved the response of law enforcement and the justice system, and provided essential services for victims struggling to rebuild their lives. It is a law that has saved countless lives, and it is an example of what we can accomplish when we work together. As a prosecutor in Vermont, I saw firsthand the destruction caused by domestic and sexual violence. Those were the days before VAWA, when too often people dismissed these serious crimes with a joke, and there were few, if any, services for victims. We have come a long way since then, but there is much more we must do. Over the last few years, the Senate Judiciary Committee has held several hearings on VAWA in anticipation of this reauthorization. We have heard from people from all around the country, and they have told us the same thing I hear from service providers, experts, and law enforcement officers in Vermont: While we have made great strides in reducing domestic violence and sexual assault, these difficult problems remain, and there is more work to be done. The victim services funded by VAWA play a particularly critical role in these difficult economic times. The economic pressures of a lost job or home can add stress to an already abusive relationship and can make it even harder for victims to rebuild their lives. At the same time, state budget cuts are resulting in fewer available services. Just this summer, Topeka, Kansas, took the drastic step of decriminalizing domestic violence because the city did not have the funds needed to prosecute these cases. We can and must do better than that. Budgets are tight, but we cannot simply turn our backs on these victims. For many, the programs funded through the Violence Against Women Act are nothing short of a life line. In Vermont, VAWA funding helped the Vermont Network Against Domestic and Sexual Violence provide services to more than 7,000 adults and nearly 1,400 children last year alone. These women and men, and girls and boys, received shelter, counseling, legal advocacy and access to transitional housing--lifesaving services to help them recover from unspeakable trauma and abuse. In one case, a mother of three children living in rural Vermont endured a long and abusive marriage in which she was not allowed to get an independent job or even a driver's license. For most of her adult life, she was subjected to physical, sexual and emotional abuse by her husband. After she summoned the courage to call a domestic violence hotline, her husband was arrested. Advocates helped her find temporary housing and gain access to a lawyer who helped her navigate the criminal process and establish supervised visitation for her children. Because of funding provided by VAWA, she and her children are safe and living independently. The lives of this woman and her children are just a few examples of how VAWA is having a real impact in our communities. I have heard stories like this time and again from victims and advocates in Vermont and across the country. Without this critical funding, state and local programs like the Vermont Network Against Domestic and Sexual Violence will not be able to provide their services to victims in desperate need. The reauthorization bill that I am introducing with Senator Crapo reflects Congress's ongoing commitment to end domestic and sexual violence. It seeks to expand the law's focus on sexual assault, to ensure access to services for all victims of domestic and sexual violence, and to address the crisis of domestic and sexual violence in tribal communities, among other important steps. It also responds to these difficult economic times by consolidating programs, reducing authorization levels, and adding accountability measures to ensure that Federal funds are used efficiently and effectively. The Violence Against Women Act has been successful because it has consistently had strong bipartisan support for nearly two decades. Today, we build on that foundation. I hope that Senators from both parties will join us to quickly pass this critical reauthorization, which will provide safety and security for victims across America.