Patrick Leahy

Mr. LEAHY

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

Mr. LEAHY. Madam President, would the Senator yield?

Mr. LEAHY. 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.

Mr. LEAHY. 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.

Mr. LEAHY. 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. LEAHY

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 Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. 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. LEAHY. 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. LEAHY. 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. LEAHY. 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. 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 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. LEAHY. 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. LEAHY

Mr. LEAHY. 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.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to express my opposition to the Coburn amendment. The legislative branch has a constitutional duty to make modifications and adjustments to the budget for the Federal Government. As a U.S. Senator and a member of the Appropriations Committee, I take very seriously the responsibility of the Senate to help craft the annual Federal budget. Members of Congress have a duty to their constituents to preserve their role in working with the executive branch, whether Democratic or Republican, about how, where, and in what manner Federal dollars are spent. The U.S. Constitution gives the responsibility of spending and taxation to the Congress, not to unelected bureaucrats in the executive branch. The notion that individuals who are completely unaccountable to the American people will make spending decisions undermines the most basic principle of democracy. Instead, the Founding Fathers correctly put this burden on the shoulders of individuals who have to answer to voters at the ballot box. Over the last few months, and particularly in the days since the election, some Members of Congress and Members-elect have been tripping over themselves to take a stronger position in opposition to so-called earmarks. Proponents of this amendment claim that it targets earmarks. I would argue otherwise. This amendment strikes at the heart of the balance that our Founding Fathers established between the executive and legislative branches of our government. Every single State would be shortchanged by the proposed moratorium on earmarks. The Founders knew better. They knew that a Washington bureaucracy would not always make decisions that were best for country, including people working and living in small towns and big cities across America. That also includes making better decisions for the men and women who serve in our military. There is no better example than the National Guard and Reserve Equipment Account. Republican and Democratic administrations alike have short-changed the Guard equipment budget for decades and have done so even as the Guard has been called to provide as much as half of the troops needed for operations in Iraq and Afghanistan. Without the National Guard and Reserve equipment account, our National Guard units would still be going into battle without equipment like body armor and blast-protected vehicles. Congress insisted on providing funding to our National Guard and that has saved countless lives and enabled them to carry out their missions more effectively. Adopting this amendment is a vote for less transparency. It is a vote for backroom dealing and less sunlight on how decisions regarding Federal spending are made. One need only look back to when Congress has in the past failed to pass the appropriations bills and the government operated under a continuing resolution for the year. Federal spending did not go down by a single dime. Instead, unelected administration appointees made decisions on which projects they wanted to see funded. It is my hope that before the next Congress a measure of sanity returns to discussion of the Federal budget. Everyone agrees that we must make serious changes to our Federal balance sheet and bring our fiscal house in order. But it was not earmarks that created our alarming Federal debt. Eliminating earmarks is not going to get our fiscal house in order. Instead it is going to expand the power of the executive branch and its employees. It also rolls back all of the transparency that Congress has embedded into its budget process. Congress and the administration need to work together to address our Federal deficit. Adopting this amendment banning earmarks is a publicity stunt that has serious ramifications that actually moves our country in the wrong direction toward solving our problems in an open and constructive way.

Mr. LEAHY. Mr. President, the Senate is poised to pass the FDA Food Safety Modernization Act, which will take much needed and long overdue steps to protect Americans from unsafe food. I am disappointed that the Senate will not consider, however, an important amendment I proposed that would have held criminals who poison our food supply accountable for their crimes. My amendment would have greatly strengthened the ability to deter outrageous conduct that puts Americans at risk. It received unanimous, bipartisan support when it was reported by the Judiciary Committee as the Food Safety Accountability Act. It is unfortunate that, despite this bipartisan support in committee, Republican objections prevented the amendment from being considered by the full Senate. This legislative proposal would increase the sentences that prosecutors can seek for people who knowingly violate our food safety laws in those cases where there is conscious or reckless disregard of a risk of death or serious bodily injury. If it were passed, those who knowingly contaminate our food supply and endanger Americans could receive up to 10 years in jail. Just this summer, a salmonella outbreak caused hundreds of people to fall ill and triggered a national egg recall. The cause of the outbreak is still under investigation, but salmonella poisoning is too common and sometimes results from inexcusable knowing conduct. The company responsible for the eggs at the root of this summer's salmonella crisis had a long history of environmental, immigration, labor, and food safety violations. It is clear that fines are not enough to protect the public and effectively deter this unacceptable conduct. We need to make sure that those who knowingly poison the food supply will go to jail. This amendment would have done that in the most egregious cases. Current statutes do not provide sufficient criminal sanctions for those who knowingly violate our food safety laws. Knowingly distributing adulterated food is already illegal, but it is merely a misdemeanor right now, and the Sentencing Commission has found that it generally does not result in jail time. The fines and recalls that usually result from criminal violations under current law fall short in protecting the public from harmful products. Too often, those who are willing to endanger our children in pursuit of profits view such fines or recalls as merely the cost of doing business. Last year, a mother from Vermont, Gabrielle Meunier, testified before the Senate Agriculture Committee about her 7-year-old son, Christopher, who became severely ill and was hospitalized for 6 days after he developed salmonella poisoning from peanut crackers. Thankfully, Christopher recovered, but Mrs. Meunier's story highlighted improvements that are needed in our food safety system. No parent should have to go through what she experienced. The American people should be confident that the food they buy for their families is safe. After hearing Mrs. Meunier's account last year, I called on the Department of Justice to conduct a criminal investigation into the outbreak of salmonella that made Christopher and many others so sick. In that case, the outbreak was traced to the Peanut Corporation of America. The president of that company, Stewart Parnell, came before Congress and invoked his right against self-incrimination, refusing to answer questions about his role in distributing contaminated peanut products. These products were linked to the deaths of 9 people and have sickened more than 600 others. It appears that Mr. Parnell knew that peanut products from his company had tested positive for deadly salmonella, but rather than immediately disposing of the products, he sought ways to sell them anyway. The evidence suggests that he knowingly put profit above the public's safety. Our laws must be strengthened to ensure this does not happen again. My amendment would increase the chances that those who disregard the safety of Americans and commit food safety crimes will face jail time, rather than a slap on the wrist, for their criminal conduct. On behalf of the hundreds of individuals sickened by this summer's and last year's salmonella outbreaks, we must repair our broken food safety system. The House has already passed a provision similar to my amendment. I am sorry that partisan objections from a few Senators prevented the Senate from quickly adopting this important amendment. I will continue to try to pass this commonsense legislation even if it cannot be coupled with the FDA Food Safety Modernization Act, and I hope the Senate will act quickly to pass it separately.

Mr. LEAHY

Mr. LEAHY. Mr President, I rise today to express my support for passage of the Pigford and Cobell Settlements. But before I address the need to pass this legislation, I would like to take a few minutes to congratulate the other side of the aisle for keeping their self imposed earmark ban for all of four days. Much like Captain Renault in Casablanca I am sure that my colleagues will be shocked, just shocked to know that there are earmarks embedded in the extraneous provisions that have been added to this bill. When I first heard that these water rights bills were being added to Pigford I assumed they simply contained agreements to settle long delayed disputes over water claims with American Indian tribes. And if that were indeed the case, I would offer no objection and encourage the speedy adoption of this package. But unfortunately that is only half the story. The reality is that these bills are laden down with pork, to use a phrase I know is a favorite of a few my colleagues. In fact, to single out one project in particular, this package of bills will send hundreds of millions of dollars to one tribe in Arizona to help them make snow at their ski resort, improve water flow to their casino and build fish hatcheries to improve local fish production. Now I am not an expert on the specifics of water rights claims in the West or what it costs to build a drinking water system in east central Arizona. To my knowledge I have never met any of the 15,000 members of the White Mountain Apache Tribe, which would benefit from this funding, and I hold nothing against them. Perhaps these projects are all crucial to helping provide economic opportunities for the tribe. But as a long time member of the Appropriations Committee, I do know an earmark when I see it. And this, my friends, is an earmark. What I find particularly fascinating about this earmark is that it goes to the very state whose Members of the House and Senate have been the loudest voices in opposing this type of spending. Over the last few months, and particularly in the days since the election, Members of the other side of the aisle have been tripping over themselves to take a stronger position in opposition of earmarks. As I noted previously, just this week the Senate Republican caucus took a position to support a complete ban on pursuing earmarks. Now that the Senate is considering directing millions of dollars to the needs of their constituents, they are nowhere to be found. And I am just having the hardest time understanding why. Because I also recall a report that two of our colleagues put together this past August on what they believed to be wasteful spending from the Recovery Act. In fact I have a vivid memory of how this report criticized an economic development project in Vermont that gave a loan for improvements at a ski area that needed to make upgrades to attract new business. I believe this report also took to task projects that supported economic activities related to casinos in Connecticut, Pennsylvania, and Mississippi. I bring this up not to rehash whether these projects are a good use of Federal funds, though I strongly support the Vermont project. I do so to recall the outrage of my colleagues over this spending on ski resorts and casinos and ask, where are they now? Where are the so called budget hawks who rail against what they see as wasteful spending now that their colleagues are pushing for an earmark for this same purpose? Where are the voices of those who have spoken so strongly against targeted spending in other States, but clearly have no problem with this spending now that it benefits their own constituents? The hypocrisy of the situation before us would be unbelievable if was not so predictable. I often advocate for projects that benefit Vermont within the budget framework that the Appropriations Committee has to work with each year. I am confident that the Vermont projects I have helped secure have improved our State's infrastructure, economy and quality of life. I am proud of that work and stand by each and every project I have brought back to Vermont. But I cannot remain quiet as the other side of the aisle demagogues this work when it helps one area of the country and then works behind the scenes to slip an earmark of their own through the Senate. It is my hope that before the next Congress a measure of sanity returns to discussion of the Federal budget. No one is claiming that changes to the budget should not be made. But the empty rhetoric blaming earmarks as the cause of the current budget deficits obscures the real issues that need to be addressed.

Mr. LEAHY

Mr. LEAHY. Mr. President, in the aftermath of the November election returns, there was talk on all sides about working together. We can do so right now, without further delay, and in the interests of the American people. As of today there are more than 100 vacancies on the Federal courts around the country, 50 of them for vacancies deemed judicial emergencies by the Administrative Office of the U.S. Courts. The Senate has ready for consideration and confirmation 23 judicial nominees of the President, all of whom have had hearings before the Judiciary Committee and have been reported favorably to the Senate by a majority of that committee. Sixteen of these judicial nominees were reported unanimously. The Senate can confirm those 16 nominees today, and we can then schedule such debate as needed on the remaining seven. Our working together to do so would send the right message to the American people. Let's work together and approve these nominations without additional delay. Let's end the gridlock. Let's move forward. As the Senate recessed for the elections, we were not allowed to consider and confirm any of the 23 judicial nominations pending on the Senate Executive Calendar--this despite the judicial vacancies crisis in our Federal courts. As of today there are 108 current judicial vacancies. 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. Accordingly, the Federal judiciary is currently more than 180 judges short of those needed. At the end of September, the President of the United States sent a letter to Senate leaders expressing his justifiable concern with the pace of judicial confirmations. The President wrote that the American people and the Federal judiciary suffer from this inaction and that a minority of Senators has, in his words ``systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees--including nominees that have strong bipartisan support and the most distinguished records.'' All of these nominees have the backing of their home State Senators. Indeed, President Obama has worked hard with home State Senators regardless of party affiliation, and by so doing has done his part to restore comity to the process. Sixteen judicial nominees have been delayed despite the fact that they were reported without a single vote in opposition from the Senate Judiciary Committee. Regrettably, despite the President's efforts and his selection of outstanding nominees the Senate has not reciprocated by promptly considering 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. This 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, Goodwin Liu of California and Robert Chatigny of Connecticut. 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. 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 happening is that judicial confirmations are being stalled virtually across the board. What is new and particularly damaging is that 16 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 11 months ago, and still waits for 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 6 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. I want to put into the Record a letter we received this week from Ninth Circuit Chief Judge Alex Kozinski, a President Reagan appointee, and the other members of the Judicial Council of the Ninth Circuit writing ``to emphasize our desperate need for judges'' in the Nation's largest Federal circuit. They write that ``[c]ourts cannot do their work if authorized judicial positions remain vacant'' and urge ``that the Senate act on judicial nominees without delay.'' This letter echoes the serious warning I have previously spoken about issued by Justice Anthony Kennedy at the Ninth Circuit 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 noted that ``if judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.'' The District of Columbia suffers from four vacancies on its Federal District Court. Two nominees could help that court, but they are now being delayed from final consideration. 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. The distinguished Chief Judge of the District Court, Chief Judge Royce Lamberth sent a recent letter to Senate leaders urging prompt action on these nominations. 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 five consensus nominees to the circuit courts who are being stalled. 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 Murgaia is from Arizona and is supported by Senator Kyl and was reported without opposition. Finally, Judge Kathleen O'Malley of Ohio, nominated to the Federal circuit, was reported without opposition. Many of these nominees could have been considered and confirmed before the August recess. All of them could have been considered and confirmed before the October recess. They were not. They were not because of Republican objections that, I suspect, have nothing to do with the qualifications or quality of these nominees. These are not judicial nominations whose judicial philosophy Republicans 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.'' President Obama has reached out to Republican home State Senators regarding his judicial nominations. They should reciprocate. As the President said in his inaugural address calling for a new era of responsibility, he called for ``an end to the petty grievances . . . recriminations and worn-out dogmas that for far too long have strangled our politics.'' The President recalled the words of Scripture as he urged ``the time has come to set aside childish things.'' Let the Senate 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 their practice any longer. With more than 100 vacancies plaguing the Federal courts, we do not have the luxury of indulging in such games. The Senate is well behind the pace set by a Democratic majority in the Senate considering President Bush's nominations during his first 2 years in office. By this date in President Bush's second year in office, the Senate, with a Democratic majority, had confirmed 100 of his Federal circuit and district court nominations. They were all 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 2002, we proceeded in the lame duck session after the election to confirm 20 of President Bush's judicial nominees. This year there are 23 judicial nominations ready for Senate consideration and another 11 noncontroversial nominations on the committee's business agenda that could have been reported out yesterday. Those 11 nominations were needlessly held over another two weeks by Republican Senators but could be reported to the Senate at our next business meeting. That is more than 30 additional confirmations that could be easily achieved with a little cooperation from the minority. That would increase the confirmations from the historically low level of 41, where it currently stands, to between 70 and 75. That would be in the range of judicial confirmations during President George H.W. Bush's first 2 years, 70, while resting far 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. I come before the Senate today to make a proposal to end this impasse. This is a proposal the American people will understand and, I believe, support. It, too, has scriptural roots. I ask the Republican leadership to follow the Golden Rule with respect to these judicial nominations. This is not complicated. It is something we teach our children from a young age. It is a basic rule of good behavior. Do unto these nominations as you would have done to the nominations of a Republican President. Following this basic precept would lead to the confirmation without further delay of the nominations reported without opposition. They can be confirmed today. If someone wishes to ask for rollcall votes on these nominations, tell the majority leader so that he can schedule that vote without further delay. End this across the board stall on judicial nominations by allowing the many noncontroversial nominations to proceed without further objection, obstruction or delay. The new tactic of objecting to consideration of noncontroversial nominations is an escalation of the so-called ``judge wars.'' The attempted justification as some kind of tit-for-tat is wrong. But my proposal does not depend on whether you agree with me or side with partisans from across the aisle. While seeking to justify ``an eye for an eye'' would require a look back and a factual accounting, the Golden Rule is a rule of current and prospective behavior. I hope those on the other side will remember our shared values and adopt the Golden Rule going forward from this day. That would be a step toward returning to our Senate traditions and allow the Senate better to fulfill its responsibilities to the American people and the Federal judiciary. During these 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 its 25th hearing for President Obama's Federal circuit and district court nominees this week. 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 American 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. 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. 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 two years in office, the Senate proceeded to confirm 100 of his judicial nominees. 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 four 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, again, over 100 and, 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, the average time for the 41 Federal circuit and district and circuit 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. This vacancies crisis alarms the President of the United States. It alarms Supreme Court Justices. It alarms the Federal Bar Association. It alarms the American Bar Association. I ask unanimous consent that the President's September 30 letter, Chief Judge Lamberth's November 4 letter, and statements by the Federal Bar Association and American Bar Association be printed in the Record at the conclusion of my statement.

Mr. LEAHY. 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 follow the Golden Rule, that would happen without further delay. I ask unanimous consent that the Judicial Council letter be printed in the Record. There being no objection the material was orderd to be printed in the Record, as follows: November 15, 2010. Hon. Harry Reid, Majority Leader, U.S. Senate, Washington, DC. Hon. Mitch McConnell, Minority Leader, U.S. Senate, Washington, DC. Hon. Patrick J. Leahy, Chair, Senate Judiciary Committee, U.S. Senate, Washington, DC. Hon. Jeff Sessions, Ranking Member, Senate Judiciary Committee, U.S. Senate, Washington, DC. Gentlemen: We write on behalf of the courts of the Ninth Circuit. As you know, the Ninth Circuit is by far the largest federal circuit in the country, encompassing the 9 western states, plus the territory of Guam and the Commonwealth of the Northern Mariana Islands. Approximately one fifth of the population of the United States lives within the borders of the Ninth Circuit. Our case-load reflects the diversity of our territory and the people that inhabit it and is heavily impacted by increased immigration enforcement, drug interdiction activities, prison litigation, bankruptcy and environmental cases--to name just a few of the most active areas. In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented (See attached March 2009 Judicial Conference Recommendations for Additional Judgeships). Courts cannot do their work if authorized judicial positions remain vacant. While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies--some of which have been open for several years and declared ``judicial emergencies''--were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay. Sincerely, Alex Kozinski, Chief Judge, Ninth Circuit; Sidney R. Thomas, Circuit Judge, Ninth Circuit; Ronald M. Gould, Circuit Judge, Ninth Circuit; Audrey B. Collins, Chief Judge, Central District of California; Vaughn R. Walker, Chief Judge, Northern District of California; Procter Hug, Jr., Senior Judge, Ninth Circuit; Raymond C. Fisher, Circuit Judge, Ninth Circuit; Johnnie B. Rawlinson, Circuit Judge, Ninth Circuit; Roger L. Hunt, Chief Judge, District of Nevada; Robert H. Whaley, Senior Judge, Eastern District of Washington. chief judges, u.s. district courts of the ninth circuit Ralph R. Beistline, Chief Judge, District of Alaska; Irma E. Gonzalez, Chief Judge, Southern District of California; Susan Oki Mollway, Chief Judge, District of Hawaii; Richard F. Cebull, Chief Judge, District of Montana; Lonny R. Suko, Chief Judge, Eastern District of Washington; Anthony W. Ishii, Chief Judge, Eastern District of California; Frances Marie Tydingco-Gatewood, Chief Judge, District of Guam; B. Lynn Winmill, Chief Judge, District of Idaho; Ann L. Aiken, Chief Judge, District of Oregon; Robert S. Lasnik, Chief Judge, Western District of Washington.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, the Senate passed the Animal Crush Video Prohibition Act of 2010. I thank Senators Kyl, Merkley and Burr for their leadership on this important legislation, which bans the creation, sale and distribution of obscene animal crush videos. We worked together on a bipartisan basis to ensure that the bill respects the first amendment and the role of our court system, while at the same time giving law enforcement a valuable and necessary tool to stop obscene animal cruelty. Earlier this year, in United States v. Stevens, the Supreme Court struck down a Federal statute banning depictions of animal cruelty because it held the statute to be overbroad and in violation of the first amendment. Animal crush videos, which can depict obscene, extreme acts of animal cruelty, were a primary target of that legislation. Several months ago, in response to the Stevens decision, the House overwhelmingly passed a narrower bill banning animal crush videos on obscenity grounds. The Senate Judiciary Committee regularly looks at questions raised by Supreme Court decisions and the first amendment, and the House bill was referred to the Senate Judiciary Committee for consideration. The version of the bill passed today reflects a carefully crafted compromise between the House and Senate that strikes the right balance between the first amendment and the needs of law enforcement, while adhering to the separation of powers enshrined in our Constitution. There are a few well-established exceptions to the first amendment. The United States has long prohibited the interstate sale of obscene materials, and the Supreme Court recognized this exception to the first amendment in 1957. Earlier this year, the Judiciary Committee held a hearing focused on the obscene nature of many animal crush videos. We heard testimony from experts who confirmed that many animal crush videos depict extreme acts of animal cruelty which are designed to appeal to a specific, prurient, sexual fetish. Indeed, these animal crush videos are patently offensive, lack any redeeming social value, and can be banned consistent with the Supreme Court's obscenity jurisprudence. Courts and juries play an important role in determining what is obscene, and I worked hard with Senator Sessions, and the bill sponsors, to make sure that the law passed today respects the role of both. The United States also has a history of prohibiting speech that is integral to criminal conduct. The acts of animal cruelty depicted in many animal crush videos violate State laws, but these laws are hard to enforce. The animal cruelty is often committed in a clandestine manner that allows the perpetrators to remain anonymous. The nature of the videos makes it extraordinarily difficult to establish the jurisdiction necessary to prosecute the crimes. Given the severe difficulties that State law enforcement agencies have encountered in investigating the underlying conduct, today Congress has taken an important step towards combating the crimes of extreme animal cruelty that obscene animal crush videos depict. I have long been a champion of first amendment rights. As the son of Vermont printers, I know firsthand that the freedom of speech is the cornerstone of our democracy. This is why I have worked hard to pass legislation like the SPEECH Act, which protects American authors, journalists and publishers from foreign libel lawsuits that undermine the first amendment. Today's success demonstrates that Congress can work on a bipartisan basis to pass legislation that is the focus of many competing interests. I commend the coalition that worked hard, alongside the Humane Society and first amendment experts, to strike the proper balance between the needs of law enforcement and the first amendment, and I am pleased that, once the President signs this bill into law, obscene animal crush videos will no longer threaten animal welfare.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate today has taken up and passed bipartisan legislation to make a number of improvements to the way in which the Copyright Office functions, to clarify areas in copyright law that have become unclear, and make technical changes to current law. The Copyright Office provided important recommendations that are included in this legislation, and I thank them for their input and guidance on these issues. The changes made by this legislation are commonsense improvements that will make the copyright system more efficient. Bills such as this underscore the point that when Congress works together in a bipartisan, bicameral fashion, we can pass good pieces of legislation. I appreciate the Senate acting quickly to pass this bill, and I look forward to the President signing it into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on November 17, 2010, at 9:30 a.m.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate on November 17, 2010.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on November 17, 2010, at 10 a.m., to conduct a hearing entitled ``Securing Critical Infrastructure in the Age of Stuxnet.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on November 17, 2010, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Judicial and Executive Nominations.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Subcommittee on Communications, Technology, and the Internet of the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on November 17, 2010, at 2:30 p.m., in room 253 of the Russell Senate Office Building.