Patrick Leahy

Mr. LEAHY

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. Madam President, last week I introduced bipartisan legislation with Senator Collins to combat the straw purchasing and trafficking of firearms. We were joined by other Senators from both sides of the aisle. We have made good progress since then. Last Thursday, the Senate Judiciary Committee voted for our bill as an amendment to the Stop Illegal Trafficking in Firearms Act, S. 54. This is the first legislative vote on measures related to gun violence in either the Senate or the House since the Newtown tragedy. Every Democratic Senator on the Committee voted in favor of our bill and we were joined in that support by the Committee's ranking Republican, Senator Grassley. I appreciate Senator Grassley's cooperation in getting our bill reported after weeks of consultation and I look forward to working closely with him as we move forward. The White House called the Judiciary Committee action ``an important bipartisan step'' that takes on ``the very serious problem of gun trafficking.'' At the signing of the Violence Against Women Reauthorization Act and Trafficking Victims Protection Reauthorization Act last Thursday, the President called the Judiciary Committee's action on our bill a ``big step'' and ``real progress.'' He noted that our bill ``would crack down on folks who buy guns only to turn around and funnel them to dangerous criminals.'' I want to continue to make progress on this legislation and other bills that can be effective in reducing illegal gun violence in our country. We have the strong support of several leading law enforcement organizations including the Fraternal Order of Police, the FBI Agents Association, the Major Cities Chiefs Association, the Federal Law Enforcement Officers Association, and the National Organization of Black Law Enforcement Executives. Last week I received a letter from the NAACP lending their strong support to our efforts. I thank all of these organizations for their assistance and support. Tomorrow, the Judiciary Committee will continue its work on three remaining gun violence measures that have been on our agenda for the past weeks: Senator Schumer's proposal to expand requirements for background checks, Senator Boxer's proposal to enhance the safety of our schools, and Senator Feinstein's bill to reinstitute an assault weapons ban. I aim by the end of the week to have completed Judiciary Committee action on these legislative proposals. At the bill signing last Thursday, the President observed that we were able finally to pass the Violence Against Women and Trafficking Victims Protection legislation on a bipartisan basis because the American people spoke up. That is what happened on VAWA when a group of House Republicans switched their position to support passing the VAWA bill that they had not supported last year. That is what is also needed in the context of gun violence legislation. Seven of the eight Republican Senators on the Judiciary Committee voted against closing the loophole in the law to combat straw purchasing and gun trafficking. If we are going to be able to close loopholes in our background check system, improve school safety with more resources for resource officers that include counselors and officers, and if we are going to outlaw straw purchasing and gun trafficking, the American people need to speak up and be heard. If Congress is going to place limits on high capacity clips, it will be because the American people demand such action. (The remarks of Mr. Leahy pertaining to the introduction of S. 517 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing bipartisan legislation that will help promote competition in the wireless industry and restore consumer choice. From 2006 until last year, an exemption to the Digital Millennium Copyright Act, DMCA, permitted cell phone users to ``unlock'' their cell phones when their contract expired, allowing them to change wireless providers and thereby promoting consumer choice. This exemption has enhanced competition in the cell phone market, but it was allowed to expire last year. Over the past few weeks and months, consumers have spoken clearly-- they want to retain the right to transfer their cell phones between wireless providers, if they so choose, when their contracts expire. I agree, which is why today I am pleased to introduce the Unlocking Consumer Choice and Wireless Competition Act, along with Senator Grassley, Senator Hatch, Senator Lee and Senator Franken, who chairs the Judiciary Committee's Subcommittee on Privacy, Technology and the Law. We are working closely with Chairman Goodlatte and members of the House Judiciary Committee to pass commonsense legislation and provide consumers with better choice. The Unlocking Consumer Choice and Wireless Competition Act reestablishes the Library of Congress's rule permitting cell phone unlocking. It also directs the Library to undertake a new proceeding to consider whether to broaden this exemption to allow unlocking of other wireless devices such as tablets. At a time when the line between phone and tablet is beginning to blur, it makes sense for the Library to consider extending this exemption to those devices as well. The DMCA maintains an important balance between protecting copyright owners and users. It was designed to be sufficiently flexible to meet the challenges of an ever-evolving digital copyright world. Every 3 years, the Library of Congress conducts its public review of the exemptions permitted under the DMCA to help promote that flexibility. Unfortunately, in its most recent proceeding, there was not a sufficient record for the Library to continue the cell phone exemption, despite the strong merits of the rule. Our legislation restores the important exemption that had been in effect in previous years. Although Congress has stepped in in this instance to restore an important policy objective, I urge parties in future rulemakings to provide a more full record so that the rulemaking process can proceed as it was designed. When I wrote the DMCA, the law was intended to allow choice and protect consumers. This straightforward restoring bill furthers that objective. When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use. They should not be forced to stay with their original provider due to software that restricts a phone to only one network. I am pleased that many wireless providers already sell unlocked phones, or will unlock phones for consumers once contracts expire, but that does not mean that consumers should face penalties under the DMCA for taking those same steps on their own. This bill will protect and promote competition in the wireless market by allowing consumers to bring their phones with them to the provider that best suits their needs. I urge all Senators to support this narrow, commonsense legislation to protect consumers and promote competition. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing bipartisan legislation that will help promote competition in the wireless industry and restore consumer choice. From 2006 until last year, an exemption to the Digital Millennium Copyright Act, DMCA, permitted cell phone users to ``unlock'' their cell phones when their contract expired, allowing them to change wireless providers and thereby promoting consumer choice. This exemption has enhanced competition in the cell phone market, but it was allowed to expire last year. Over the past few weeks and months, consumers have spoken clearly-- they want to retain the right to transfer their cell phones between wireless providers, if they so choose, when their contracts expire. I agree, which is why today I am pleased to introduce the Unlocking Consumer Choice and Wireless Competition Act, along with Senator Grassley, Senator Hatch, Senator Lee and Senator Franken, who chairs the Judiciary Committee's Subcommittee on Privacy, Technology and the Law. We are working closely with Chairman Goodlatte and members of the House Judiciary Committee to pass commonsense legislation and provide consumers with better choice. The Unlocking Consumer Choice and Wireless Competition Act reestablishes the Library of Congress's rule permitting cell phone unlocking. It also directs the Library to undertake a new proceeding to consider whether to broaden this exemption to allow unlocking of other wireless devices such as tablets. At a time when the line between phone and tablet is beginning to blur, it makes sense for the Library to consider extending this exemption to those devices as well. The DMCA maintains an important balance between protecting copyright owners and users. It was designed to be sufficiently flexible to meet the challenges of an ever-evolving digital copyright world. Every 3 years, the Library of Congress conducts its public review of the exemptions permitted under the DMCA to help promote that flexibility. Unfortunately, in its most recent proceeding, there was not a sufficient record for the Library to continue the cell phone exemption, despite the strong merits of the rule. Our legislation restores the important exemption that had been in effect in previous years. Although Congress has stepped in in this instance to restore an important policy objective, I urge parties in future rulemakings to provide a more full record so that the rulemaking process can proceed as it was designed. When I wrote the DMCA, the law was intended to allow choice and protect consumers. This straightforward restoring bill furthers that objective. When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use. They should not be forced to stay with their original provider due to software that restricts a phone to only one network. I am pleased that many wireless providers already sell unlocked phones, or will unlock phones for consumers once contracts expire, but that does not mean that consumers should face penalties under the DMCA for taking those same steps on their own. This bill will protect and promote competition in the wireless market by allowing consumers to bring their phones with them to the provider that best suits their needs. I urge all Senators to support this narrow, commonsense legislation to protect consumers and promote competition. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, will the Senator yield?

Mr. LEAHY. Mr. President, today the Senate has an opportunity to act in a bipartisan manner to end a filibuster against an outstanding nominee to the D.C. Circuit. Caitlin Halligan is an exceptional attorney 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. No one can seriously question her legal ability, her judgment, her character, her integrity, her ethics or her temperament. Those who seek to misrepresent her as a partisan or ideological crusader are wrong and unfair. Some have mischaracterized her record and distorted her views on executive authority and terrorism. Here is what she said about the 2004 New York City Bar report that some are using to inflame the debate: I was, frankly, taken aback by [this Report], for a couple of reasons. First of all, the Supreme Court has clearly said that indefinite detention is authorized by the AUMF statute. And so the notion that the President lacks that authority, I think, is clearly incorrect. I was also a little bit taken aback by the tone of the report. I think that the issues of indefinite detention and any issues in the national security realm are very serious ones, and I think that approaching those issues as respectfully as possible is the most productive way to proceed. But the bottom line is that the report does not represent my work. It does not reflect my views. I hope Senators who intend to make this a basis for filibustering this outstanding nominee are listening and understand. Again, she testified: ``[T]he bottom line is that the report does not represent my work. It does not reflect my views.'' This is no basis for opposing the nominee, let alone filibustering her consideration. The report does not represent her views; she flat out rejected them as a statement of law. During her hearing she testified that she only became aware of the 2004 New York Bar report in 2010 while preparing for her confirmation hearing. She even provided minutes from the City Bar Committee's meetings to show that she was not present and not part of the subcommittee that drafted the report. She rejected the views in the report, saying that it was ``clearly incorrect.'' So while she was one of 37 members of a larger Committee, she was not a member of the subcommittee that drafted the report. She did not participate in the drafting. To filibuster her nomination because of a report she did not write, has not endorsed and has, in fact, rejected, would be a great injustice to this outstanding woman. New York City's Police Commissioner Ray Kelly wrote in strong support of Caitlin Halligan again this week, saying: I want to reiterate [my] support, and to stress my confidence in her commitment to the vigorous prosecution of our ongoing fight against the threat of terrorism here in New York City. Any suggestion that Ms. Halligan would thwart efforts to protect our nation, and our city, against terrorist threats is absurd. For over three years, Ms. Halligan has served as Counsel to the New York County District Attorney. During that time, she has worked extensively on key anti-terrorism cases, including most recently the successful prosecution of Ahmed Ferhani, who pled guilty to very serious charges under New York State's anti-terrorism statute for a 2011 plot to blow up Manhattan synagogues and churches. I ask unanimous consent that the full letter be printed in the Record at the conclusion of my statement. This is not someone soft on terrorism. She has helped bring terrorists to justice. Police Commissioner Kelly is not endorsing someone soft on terrorism. Cyrus Vance, Jr., the New York County District Attorney, is not endorsing someone soft on terrorism. This is a woman and mother who lives in downtown New York. She was literally blocks away from the twin towers on September 11, 2001. She saw and experienced the devastation of the 9/11 terrorist attack on New York. By any traditional standard, Caitlin Halligan is the kind of superbly qualified nominee who should be considered and confirmed by the Senate. The Republican leadership's filibuster of this nomination threatens to set a new standard that could not be met by anyone. That is wrong, it is unjustified, and it is dangerous. It takes only a handful of sensible Senate Republicans to do the right thing. This is not a time to victimize Caitlin Halligan for some sort of political payback or to appeal to narrow special interests. I ask those Republican Senators who care about the judiciary and fairness to come forward, end this filibuster, and ratchet down the partisanship that threatens this institution, our courts and the country. A Republican Senator, who was a member of the ``Gang of 14'' in 2005, 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. I trust that Senator will apply the standard he articulated and vote to end this filibuster. Another Republican Senator said just last year in voting to end a filibuster against another circuit court nominee: [W]hen I became a Senator, Democrats were blocking an up- or-down vote on President Bush's judicial nominees. I said then that I would not do that and did not like doing that. I have held to that in almost every case since then. I believe nominees for circuit judges, in all but extraordinary cases, and district judges in every case ought to have an up-or-down vote by the Senate. If that Senator remains true to his principles, he will vote to end this filibuster. Republican Senators who signed that 2005 memorandum of understanding continue to serve here in the Senate. If they follow the standard set in that agreement, they will vote to end this filibuster. They demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations of President Bush to the D.C. Circuit. If that agreement and standard had any meaning, they should all be voting to end this filibuster. I urge all those who have said that filibusters of judicial nominations are unconstitutional to end this filibuster. I urge those who said they would never support a filibuster of a judicial nomination to end this filibuster. I urge those who said that they would only filibuster in ``extraordinary circumstances'' to end this filibuster. I urge all those who care about the judiciary, the administration of justice, the Senate and the American people to come forward and end this filibuster. I yield the floor.

Mr. LEAHY. Mr. President, I realize we have not gone in the regular order with the manager of the nomination speaking first. We are having a hearing right now with the Attorney General. So I ask unanimous consent, when the distinguished Senator finishes his speech, whatever length it is, and all time will have then been used up so there would not be any time reserved for the manager of this nomination, to speak for 2 minutes at the conclusion of Senator Grassley's remarks.

Mr. LEAHY. Madam President, I understand the Senator from New York will speak following my comments.

Mr. LEAHY

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 March 6, 2013, at 10 a.m. to conduct a hearing entitled ``The Department of Homeland Security at 10 Years: A Progress Report on Management.''

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 March 6, 2013, at 9:30 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Oversight of the U.S. Department of Justice.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on March 6, 2013, at 10 a.m. in room 345 of the Cannon House Office Building.

Mr. LEAHY

Mr. LEAHY. Madam President, I ask unanimous consent that the Senate proceed to executive session to resume consideration of Executive Calendar No. 13, the nomination of Caitlin Halligan.

Mr. LEAHY. Madam President, tomorrow the Senate will have an opportunity to correct itself and complete action on the nomination of Caitlin Halligan to the DC Circuit. She was first nominated to a vacancy on the court in September 2010, almost 30 months ago. No one who knows her, no one who is familiar with her outstanding legal career can be anything but impressed by her experience, her intelligence, and her integrity. Hers is a legal career which rivals that of the DC Circuit judge she was nominated to succeed. I might mention that the judge she was nominated to succeed was John Roberts, who served on the DC Circuit. He is now Chief Justice of the United States. I voted for the confirmation of John Roberts to the DC Circuit. I voted for the confirmation of John Roberts to the Supreme Court. He and I do not share the same judicial philosophy or political party, but I voted for him because he was well qualified. I did not agree with every position he had taken or argument he made as a high-level lawyer in several Republican administrations, but I supported his nomination to the DC Circuit because of his legal excellence. Caitlin Halligan is also well qualified. Caitlin Halligan is as well qualified as John Roberts, whom I voted for, and her nomination deserves a vote. John Roberts was confirmed unanimously to the DC Circuit on the day the Judiciary Committee completed consideration of his nomination and reported it to the Senate. It is time for the Senate to consider Caitlin Halligan's nomination on her merits and end the filibuster that has extended over 2 years. What I am saying is that if we want to be honest in the Senate, we have to apply the same standard to her that we applied to the nomination of John Roberts. After being nominated and renominated four times over the course of the last 3 years, it is time for the Senate to accord this outstanding woman debate and vote on the merits she deserves. 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 DC Circuit. In fact, the ABA Standing Committee on the Federal Judiciary reviewed her nomination and gave her their highest possible rating. The judge for whom she clerked on the DC Circuit, former chief judge Pat Wald, urges her confirmation. Those who have worked with her all praise her. We have not heard a single negative comment on her legal ability, judgment, character, ethics, or her temperament. By the standard we have used for nominees of Republican Presidents, there is no question that Caitlin Halligan should be confirmed and this ill-advised filibuster should end. Earlier this month the Senate ended a filibuster against the nomination of Robert Bacharach and he was confirmed unanimously to the Tenth Circuit. We finally were allowed to complete action on the nomination of William Kayatta to the First Circuit. So, too, the Senate should now reconsider its prior treatment of Caitlin Halligan and confirm her nomination. She is a stellar candidate with broad bipartisan support. She is supported by law enforcement, with whom she worked closely while serving as a chief appellate lawyer in the State of New York and as general counsel for the Manhattan district attorney. That includes the support of New York City police commissioner, Ray Kelly; the New York Association of Chiefs of Police; and the National District Attorneys Association. Carter Phillips, who served as an assistant to the Solicitor General during the Reagan administration, describes her as one of those extremely smart, thoughtful, measured, and effective advocates and concluded that she would be a first-rate judge. She has the strong support of the New York Women in Law Enforcement, the National Center for Women and Policing, the National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, and the U.S. Women's Chamber of Commerce. I ask unanimous consent to have printed in the Record a list of letters in support for Ms. Halligan at the conclusion of my remarks. I have been here 38 years and occasionally see things that really disappoint me. This is one where I see that narrow special interest groups seek to misrepresent her as a partisan or ideological crusader. She is not. Everybody who knows her, everybody who has dealt with her, Republican and Democratic alike, says she is not. What they do say is that she is a brilliant lawyer who knows the difference between the roles of legal advocate and judge. She will be a fair, impartial, and outstanding judge. To oppose her for her work as an advocate would be like saying: We can't have this particular nominee be a judge because the nominee was appointed to defend a murderer and we are against murder. No. We are against the rule of law. We are against everybody who appears before a court having good representation whether we agree with their position or not. These kinds of arguments undermine our whole legal system. While serving as the solicitor general for the State of New York, she was an advocate, representing the interests of her client. How often have we heard Republican Senators say that what lawyers do and say in legal proceedings should not be used to undermine their judicial nominations? Chief Justice Roberts himself has made that point. As an attorney, Chief Justice Roberts advocated for positions where I disagreed with him, but he was supporting the position of the people for whom he was an advocate. At his confirmation hearing to join the United States Supreme Court, Judge Roberts said: [I]t's a tradition of the American Bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. He did that for a reason, because he wanted to show that the Revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. Our Founders thought that they were not being given their rights under the British system to which they were entitled, and by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it, and that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of the client, is critical to the fair administration of justice. That has always been our tradition--at least until now. This litmus test that would disqualify nominees because as lawyers they represented a legal position in a case is dangerous and wrong. Almost every nominee who had been a practicing lawyer would be disqualified by such a test. By the standard that is being applied to Caitlin Halligan, John Roberts could not have been confirmed to serve as a Federal judge let alone as the Chief Justice of the United States. Yet some have justified their filibuster because she was directed by the New York attorney general to draft an amicus brief challenging a Federal law that protected gun manufacturers from liability for crimes committed with their products. As New York's solicitor general she filed a brief in support of a class action lawsuit against anti-choice clinic protestors under the Hobbs Act. She filed a brief on behalf of New York in support of a lower court's decision to permit back pay to undocumented employees whose employers were violating Federal law. She filed a brief on behalf of New York and other States in support of the University of Michigan's affirmative action program. In all of these cases, she was representing her client, the State of New York. Note that her critics are not arguing that she was a bad lawyer. In essence, what they are contending is that because they disagree with the legal positions taken on behalf of her client, she should not get an up-or-down vote. That is wrong. When I voted for Chief Justice Roberts, I remember a number of Republicans told me, of course, that is the only thing you should do because you think he is qualified. Now I have Republicans who tell me they feel she is well qualified, but this special interest group or that special interest group is opposed to her. She took positions with which they disagree. That is not the issue. Is she qualified? Did she stand up for her clients the way an attorney should in our adversarial system? Her public service in the State of New York is commendable, and no reason to filibuster this nomination. Vote yes or vote no on this nomination. Voting to block it from coming to a vote is saying: I don't have the courage to stand up and vote yes or no; I want to vote maybe. It never comes to a vote if we filibuster it. I may vote maybe so I don't have to explain to people that she is far more qualified than people we voted for who were nominated by Republican Presidents. I didn't vote against her; I didn't vote for her; I voted maybe. That is not the way it should be. Our legal system is an adversarial system, predicated upon legal advocacy for both sides. There is a difference between serving as a legal advocate and as an impartial judge. She knows that. She is a woman of integrity. No one who fairly reviews her nomination has any reason to doubt her commitment to serve as an impartial judge. I always said when I practiced law that I didn't want to walk into a courtroom and say the case is going be determined by whether I was plaintiff or defendant, Republican or Democratic, but that the case would be determined on the facts and the law. We have been fortunate in Vermont that we have had many judges like this, judges who were appointed by Republican Governors, judges appointed by Democratic Governors, Federal judges appointed by Republican Presidents, Federal judges appointed by Democratic Presidents. In Vermont, we have been fortunate because no matter what their positions have been before, they turned out to be impartial judges, which is what this good woman will be. In fact, it is not only wrong but dangerous to attribute the legal position she took in representing her client, the State of New York, to her personally and then take the additional leap--and it is a huge leap--to contend that her personal views will override her commitment to evenhandedly apply the law. John Adams, one of our most revered Founders, wrote that his representation of the British soldiers in the controversial case regarding the Boston Massacre was ``one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.'' That is our tradition. The Senate should end this filibuster and vote to confirm a woman who has ably served as a public official representing the State of New York and the district attorney of Manhattan. The other justification Republican Senators used 2 years ago to justify their filibuster is gone. Some contended that the caseload in the DC Circuit was not sufficiently heavy to justify the appointment. There are now four vacancies on the DC Circuit. The vacancies have doubled during the last 2 years. The bench is more than one-third empty. This is reason enough for Senators to reconsider their earlier votes and end this filibuster. The Senate responded to this caseload concern in 2008 when we agreed to decrease the number of DC Circuit judgeships from 12 to 11. Caitlin Halligan is nominated to fill the 8th seat on the DC Circuit, not the 11th. Just a few years ago when the DC Circuit caseload per active judge was lower than it is now, all the Republican Senators voted to confirm nominees to fill the 9th seat, the 10th seat twice, and the 11th seat on this court. In fact, the DC Circuit caseload for active judges increased 50 percent from 2005--50 percent from when the Senate confirmed the nominee to fill the 11th seat on the DC Circuit bench. The caseload on the DC Circuit is also greater than the caseload on the Tenth Circuit, to which the Senate just confirmed Judge Robert Bacharach of Oklahoma last week. In her recent column in The Washington Post, Judge Wald explains why the work of the DC Circuit, with its unique jurisdiction over complex regulatory cases is different and more onerous than in other circuits and why the court needs to have its vacancies filled. She wrote: The number of pending cases per judge has grown from 119 in 2005 to 188 today. A great many of these are not easy cases. The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives: clean air and water regulations, nuclear plant safety, health-care reform, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record--all of which culminates in lengthy, technically intricate legal opinions. She also notes: ``The D.C. Circuit has 11 judgeships but only seven active judges. There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates.'' I ask that a copy of her article be included in the Record at this point. I urge all those who have said filibusters on judicial nominations are unconstitutional to end this filibuster. I urge those who have said here on this floor that they would never support a filibuster of a judicial nomination to end this filibuster. I urge those who said they would filibuster only in extraordinary circumstances to end this filibuster. I urge all those who care about the judiciary and the administration of justice, the Senate, and the American people to come forward and end this filibuster.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. LEAHY. Mr. President, last week, Congress failed to act to avoid indiscriminate across-the-board cuts from sequestration. These automatic cuts are in the tens of billions of dollars at a time when our economy is finally recovering but remains fragile. Among those who will have to endure these cuts are the overburdened Federal courts already suffering from longstanding vacancies that number almost 90 and have remained near or above 80 for almost 4 years. Budgetary cuts will mean more difficulty for the American people to get speedy justice from our Federal justice system. Two senior district judges, one appointed by President Reagan and one appointed by President Clinton, wrote last week in U.S. News and World Report that sequestration will ``devastate the judicial branch.'' They wrote: ``[C]ourts may need to close periodically, furlough employees, and cut security, thereby, delaying proceedings. These realities, combined with a reduction in supervision of persons on bond and convicted felons who are released from prison, compromise public safety.'' They conclude: ``[Our Federal courts provide access to justice, protect against abuses of power, and defend the Constitution. Failure to avert sequestration by March 1 undermines the ability of the Federal courts to fulfill this Constitutional mandate.'' I ask unanimous consent that this article be printed in the Record at the conclusion of my statement. As we hear these warnings from judges and other officials across our three branches of Government, I hope Senators understand that sequestration is bad for the courts, bad for the economy, and bad for the American people. Over the past 4 years, unprecedented obstruction by Senate Republicans has meant that all judicial nominees have become wrapped around the axle of partisanship. Senators from both sides of the aisle used to agree that Federal courts are supposed to be impartial and outside of politics. Yet, the actions of Senate Republicans over the last 4 years have undermined that principle of our constitutional system and hurt the integrity of the judiciary. I hear this from judges appointed by Republican Presidents and those appointed by Democratic Presidents. They say the unprecedented delays that nominees face politicize the courts and destroy the appearance of impartiality the Federal courts need. Supreme Court Justice Anthony Kennedy said last year that this extreme partisanship erodes the public's confidence in our courts and ``makes the judiciary look politicized when it is not, and it has to stop.'' This obstruction has also contributed to keeping judicial vacancies at a damagingly high level for over 4 years. Persistent vacancies mean that fewer judges have to take on growing caseloads and make it harder for Americans to have access to speedy justice. There are today 89 judicial vacancies across the country. By way of contrast, that is more than double the number of vacancies that existed at this point in the Bush administration. Senate Republicans chose to depart dramatically from well-established Senate practices from the moment President Obama took office in their efforts to delay and obstruct his judicial nominations. Until 2009, judicial nominees reported by the Judiciary Committee with bipartisan support were generally confirmed quickly. Until 2009, we observed regular order, we usually confirmed nominees promptly, and we cleared the Senate Executive Calendar before long recesses. Until 2009, if a nominee was filibustered, it was almost always because of a substantive issue with the nominee's record. We know what has happened since 2009. The average district court nominee has been stalled 4.3 times longer and the average circuit court nominee has been stalled 7.3 times as long as it took to confirm them during the Bush administration. No other President's judicial nominees had to wait an average of over 100 days for a Senate vote after being reported by the Judiciary Committee. Some Republicans have ignored the facts I just cited even though they came from the nonpartisan Congressional Research Service (CRS). No invented statistic can change the fact that no president's nominees have ever waited as long for a vote as President Obama's. Senate Republicans have also claimed that President Bush had only 74 percent of his nominees confirmed during his first term. This is also not true. President Bush nominated 231 men and women to serve as circuit and district judges; of them, 205 were confirmed. That is a confirmation rate of 89 percent. During President Obama's first term, only 173 district and circuit judges were confirmed, and a much lower percentage. Contrary to the claims of Senate Republicans the Senate has confirmed far fewer of President Obama's nominees and confirmed them at a significantly lower rate at the same points in his and President Bush's administrations. Senate Republicans talk about how much progress we made during the 112th Congress, when we confirmed 113 of President Obama's circuit and district nominees. But they ignore the fact that 19 of those nominees could and should have been confirmed during the 111th Congress, and the fact that the 60 confirmations they allowed in the 111th Congress was the lowest total for a new president in over 30 years. They ignore the fact that in President Obama's first year in office they allowed just 12 of his circuit and district nominees to be confirmed, which, according to CRS, was the lowest one-year confirmation total since the Eisenhower administration when the Federal bench was barely one-third the size it is today. We have yet to make up the ground we lost during those first 2 years. Looking only at the confirmation total from last Congress while ignoring the historic obstruction of nominations that preceded it and the backlog that was created provides an incomplete and misleading picture. There can be no question about the effect of the unprecedented effort by Senate Republicans to obstruct President Obama's judicial nominations. Despite bipartisan calls to address longstanding judicial vacancies, the delays and obstruction of judicial confirmations have led to judicial vacancies to the remaining near or above 80 for almost 4 years. During the vote on Judge Bacharach last week, some Senators defending the filibuster that blocked his confirmation for 7 months claimed that it was just the usual Senate practice in a presidential election year. During the filibuster last year of Judge Bacharach, there was not even a pretense of any substantive concern--Senate Republicans just decided to shut down the confirmation process and contorted the ``Thurmond Rule.'' But personal attacks on me, trying to repackage their own actions as if following the Thurmond Rule, do not change the facts. The fact is that in the past six presidential election years, Senate Democrats have never denied an up-or-down vote to a consensus circuit nominee; Senate Republicans cannot say that. Until last year, no circuit nominee with bipartisan Judiciary Committee support had ever been successfully filibustered. Senators claiming to be upholding Senate tradition while engaging in a filibuster that had no precedent in Senate history are not supported by the facts. After last year's filibuster, Judge Bacharach waited another 7 months before being allowed a vote on the merits. The outcome of that vote was that he was confirmed unanimously. It is hard to understand why 7 months of delay were necessary. During the 7 months of additional unnecessary delay since his filibuster, Judge Bacharach could have been working on behalf of the people of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. Likewise there is no reason to delay further the confirmation of Caitlin Halligan, whose nomination to the D.C. Circuit was first reported nearly 2 years ago. Senate Republicans justified their filibuster of her nomination a year ago by arguing that the Circuit did not need another judge. Since that time, the number of vacancies on that court has doubled, and it is now more than one-third vacant. It needs Caitlin Halligan. She is the kind of moderate, superbly qualified nominee who should easily be able to be confirmed under any standard by which the Senate has considered judicial nominees in the past. It is well past time to walk back from the precipice marked by the wrongheaded filibuster of Ms. Halligan. The continued filibuster of her nomination does harm to the Senate, to the important D.C. Circuit, and to the American people. At a time when judicial vacancies have again risen to almost 90, we must do more for our overburdened courts. It is past time for the partisan obstruction to end. We have a long way to go. After 4 years of delay and obstruction, we remain far behind the pace of confirmations we set during President Bush's administration, and there remain far too many judicial vacancies that make it harder for Americans to have their day in court. During President Bush's entire second term, the 4 years from 2004 through 2008, vacancies never exceeded 60. Since President Obama's first full month in office, and as far into the future as we can see, there have never been fewer than 60 vacancies, and for much of that time many, many more. The Senate must do much more to fill these vacancies and make real progress. Senate Republicans claim that we cannot do more because President Obama has not made a sufficient number of nominations. But it is Senate Republicans themselves, and their unwillingness to work with a President who has reached out to them to submit recommendations and to work with him, that has delayed many nominations. Unlike his predecessor, President Obama has worked hard to solicit recommendations from home State Senators, including those from the other party. This President has consistently selected qualified, mainstream nominees. For the judicial vacancies in States with 2 Republican Senators, just 11 percent have a nominee. I urge Senate Republicans to do a better job providing consensus recommendations and fulfilling their own constitutional responsibility to ``advise'' the President on nominations and work with President Obama to fill these vacancies. The Senate today will finally vote on the nominations of Pamela Chen and Katherine Failla. Both nominees should have been confirmed last year. Pamela Chen is nominated to fill a judicial emergency vacancy on the U.S. District Court for the Eastern District of New York. She has worked as an Assistant U.S. Attorney for the district to which has now been nominated to be a judge for all but one of the last 14 years, rising from a line prosecutor to serve as chief of Civil Rights Litigation, deputy chief of the Public Integrity Section, and chief of the Civil Rights Section, Criminal Division. Between January and April 2008, she served as the deputy commissioner for enforcement at the New York State Division of Human Rights. Previously, she spent 7 years as a trial attorney and senior trial attorney in the Special Litigation Section of the Civil Rights Division of the U.S. Department of Justice. She began her legal career as an associate in private practice. She earned her B.A., with honors, from the University of Michigan, and her J.D. from Georgetown University Law Center. When confirmed, Pamela Chen will be only the second female Chinese-American in U.S. history to serve on a Federal district court. She will also be one of only a few openly gay Federal judges. Katherine Failla is nominated to serve on the U.S. District Court for the Southern District of New York. Since 2000, she has served as an Assistant United States Attorney in that division, and since 2008 she has served as the chief of the office's Criminal Appeals Unit. Prior to her government service, she was an associate in the New York office of Morgan Lewis & Bockius LLP. In her career, she has tried 10 trials to verdict. After law school, she clerked for the Honorable Joseph E. Irenas, U.S. District Judge for the District of New Jersey. She graduated with honors from the College of William & Mary, and Harvard Law School. After today's votes, there are still another 15 judicial nominees pending before the Senate. All of these nominees had to be renominated after being returned at the end of the last Congress. It is unusual to have such a backlog so early in a Congress, and this is the result of Senate Republicans' refusal to allow votes on 11 nominees at the end of last year, almost all of whom had been reported with bipartisan support, and their refusal to consider another 4 who had hearings and could have been expedited. I urge that the Senate act quickly on these long-pending nominations. Further delay does not serve the interests of the American people. Hardworking Americans deserve better.

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

Mr. LEAHY

Mr. LEAHY. Of course.

Mr. LEAHY. Mr. President, I thank the majority leader for what he said on these nominations. As he knows, we have an awful lot of them that have come out, and then every time he has tried to move them quickly on the Senate floor there has been opposition from the other side. It has been frustrating when we actually had nominations that waited months, or will have a cloture vote, and then they will get 90 or 95 votes for confirmation.

Mr. LEAHY. Mr. President, it would be hard to state it any better than the Senator from Nevada has. But so many of the issues we grapple with every single day on this floor--regulatory issues, issues that affect the various departments of government--when there are appeals of those issues, when there are questions of what the Departments do, they invariably go to the DC Circuit. They don't go to the U.S. Supreme Court. The U.S. Supreme Court, as the distinguished Presiding Officer and the distinguished majority leader know, takes only a tiny percentage of cases that are appealed. But every one of these major legal issues that are appealed are heard by the DC Circuit, and it is frustrating to know there is a concerted effort on the other side to try to stop having a balance in the DC Circuit. Every one of us as lawyers would hope we could come into a courtroom and know that if we have a good case, we would win it; and if we have a bad case, we would lose but that the cards aren't stacked against us because we are a Republican or Democrat. Because of the makeup of the DC Circuit, more and more people are getting the view--rightly or wrongly--it is stacked. The efforts of the Republican Party to block anybody else from going down there except for people they have vetted increase that impression that the court is stacked. That doesn't help the system of justice in the United States. It actually doesn't help whether you are a Republican or a Democrat because it destroys the idea of the impartiality of the courts.

Mr. LEAHY. Of course.

Mr. LEAHY. Mr. President, the Senator from Nevada is absolutely correct. I would even argue that in some areas it is more important than the Supreme Court because on so many of the issues that go there, they will have the final word. The Supreme Court could never hear all of the requests for appeals from the DC Circuit, and they become the final word. So on the issues that involve average Americans based on what their government does, they will be decided in that circuit court, not in the Supreme Court. So it is extraordinarily important that we have a balanced court there. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

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

Mr. LEAHY

Mr. LEAHY. Today I am proud to introduce modified legislation to combat the practice of straw purchasing and illegal trafficking in firearms. Since my initial introduction of the Stop Illegal Trafficking in Firearms Act at the very beginning of the 113th Congress on January 22, I have had productive conversations with several Senators who share my goal of reducing this destructive criminal conduct. Today I am pleased to be joined by Senator Collins, Senator Durbin, Senator Kirk, Senator Gillibrand, and Senator Blumenthal. These Senators understand the weaknesses in our current law and the challenges faced by law enforcement officials. I thank them for their commitment to this legislation, for their support of law enforcement, and for their cooperation in making progress in our collective efforts to prevent and reduce gun violence. I hope that as other Senators on both sides of the aisle become more familiar with our bipartisan proposal, they will understand how it provides law enforcement with the tools they need to go after those who engage in the straw purchasing and illegal trafficking of firearms. The practice of straw purchasing is used for one thing to put firearms into the hands of those that are prohibited by law from having them. Many are then used to further violent crimes. I have heard again and again from Senators on both sides of the aisle that keeping guns away from those who should not have them is a goal worth pursuing. This bill will further that effort and help answer the call from Gabrielle Giffords and so many Americans for us to take action. I want to commend the senior Senator from Maine, Senator Collins, for her leadership on this matter and for her willingness to work across the aisle to make real progress. She helped unite us to get this done. Without her, we would not have made the progress we have, or be in position to consider this comprehensive response to what law enforcement has told us they need. This week, the Senate Judiciary Committee will continue our consideration of four measures to reduce gun violence. The issue of gun trafficking and straw purchasing is before the Committee. I will amend my original trafficking bill that is pending on the Committee agenda with the text of this bipartisan compromise, which combines the proposals that I put forward with Senator Durbin at the beginning of this Congress as well as proposals that have been championed by Senator Gillibrand and Senator Kirk. Our substitute amendment will improve the language already pending before the Committee. As I did before introducing any measure related to gun violence this year, I also hope to continue my outreach to the Judiciary Committee's Ranking Member. I invite Senator Grassley and other members of the Committee from both sides of the aisle to join with us so that I can report this measure with strong bipartisan support and without delay for consideration by the Senate. Law enforcement officials have complained for years that they lack the legal tools necessary effectively to combat illegal straw purchasing and firearms trafficking. Congressional inquiry during the last Congress put a spotlight on the very difficult legal environment within which law enforcement officials currently operate. In fact, one of the whistleblowers who testified about the misguided tactics used by Federal law enforcement in firearms trafficking investigations in Arizona described the current laws as ``toothless.'' If we are to address gun violence, we should respond to this clear vulnerability that is being exploited by criminals. The Stop Illegal Trafficking in Firearms Act will make important changes to Federal firearms statutes that will better equip law enforcement officials to investigate and prosecute the all-too-common practices of straw purchasing and illegal trafficking of firearms. Straw purchases typically involve a person, who is not prohibited by Federal law, purchasing a firearm on behalf of a prohibited person, or at the direction of a drug trafficking or other criminal organization. These practices result in the support of larger criminal organizations, and the illegally obtained guns are often sold and re-sold across state lines. This trafficking in firearms results in the proliferation of illegal firearms and gun violence in our communities. Straw purchasers circumvent the purposes of the background check system, and they put law enforcement officials and law-abiding firearms dealers in difficult positions. Gun trafficking and straw purchasing make our communities less safe. Under current law, there is no specific statute that makes it illegal to act as a straw purchaser of firearms. Nor is there a law directly on point to address the illegal trafficking of firearms. As a result, prosecutors must cobble together charges against a straw purchaser using so-called ``paperwork'' violations such as misrepresentations on a Federal form. These laws are imperfect, and do not give prosecutors the leverage needed to encourage straw buyers, often the lowest rungs on a ladder in a criminal enterprise, to provide the information needed for investigators and prosecutors to go after those directing and profiting from such activity. The bipartisan bill we introduce today will add two new provisions to our Federal criminal code to specifically prohibit serving as a straw purchaser of firearms and trafficking in firearms. The bill establishes tough penalties for these offenses in an effort to punish and importantly, deter this conduct. We need a meaningful solution to this serious problem. Talk about prosecuting mere paperwork offenses is no answer. Under current law, it is a crime to transfer a firearm to another with the knowledge that the firearm will be used in criminal activity. This bill would strengthen this existing law by prohibiting such a transfer where the transferor has ``reasonable cause to believe'' that the firearm will be used in criminal activity. We listened to concerns about family members who give firearms as gifts and other transfers that are not designed to get around the existing background check system. As a result, the bill contains important exemptions for the innocent transfer of a firearm as a gift, or in relation to a legitimate raffle, auction or contest. Another key provision of our bipartisan bill is that it complements existing law that makes it a crime to smuggle firearms into the United States by specifically prohibiting the smuggling of firearms out of the United States. In light of what we know is occurring, particularly on our Southwest border, this is an important improvement to current law and another tool that was needed but missing over the last few years. The provisions laid out in our legislation are focused, commonsense remedies to the very real problems of firearms trafficking and straw purchasing. Our bill does not affect lawful purchases from Federal firearms licensees, and in no way alters their rights and responsibilities as sellers of a lawful commodity. I hope Federal firearms licensees welcome a stronger deterrent to keep criminal straw purchasers out of their business. The problems of gun trafficking and straw purchasers, particularly along the Southwest border, are matters we have been talking about for years. Senator Durbin chaired a hearing on border violence back in early 2009. Law enforcement officials have called for a firearms trafficking statute that can be effective to go after straw purchasers. That is something agents did not have when they initiated Operation Wide Receiver during the Bush administration and later the disastrous Fast and Furious effort. Their frustration with the limits of the current law contributed to their looking for another way to make a difference in their fight against gun trafficking. Their initiative was a failure. What we need to do now is to create better law enforcement tools. I hope that those who have been concerned about Fast and Furious, whose investigation established that it was the local ATF agents in Arizona who initiated and so poorly implemented that effort, will join with us to close the loophole in the law that Mexican drug cartels are continuing to exploit. Our bill was drafted at the request of law enforcement. It will provide needed tools to fight against the drug cartels and other criminals who threaten our communities. It will not undermine the Second Amendment rights of lawful gun owners. It has the support of many law enforcement organizations--both leadership and rank and file. Indeed, the original bill I introduced with Senator Durbin has been supported by the National Fraternal Order of Police, the National Law Enforcement Partnership to Prevent Gun Violence, the Federal Law Enforcement Officers Association, the International Association of Chiefs of Police, the Major Cities Chiefs Association, the National District Attorneys Association, and the Police Executive Research Forum. I urge everyone who cares about keeping firearms out of the hands of criminals to join in this effort. We have an obligation to find solutions to reduce gun violence and I thank these Senators for their strong leadership. We can do this in a way consistent with the rights guaranteed by the Second Amendment. I believe our bipartisan legislation meets those goals. As Chairman of the Judiciary Committee, a Senator, a Vermonter, an American, a father and a grandfather, I look forward to continuing our progress on this important legislation.

Mr. LEAHY

Mr. LEAHY. Today I am proud to introduce modified legislation to combat the practice of straw purchasing and illegal trafficking in firearms. Since my initial introduction of the Stop Illegal Trafficking in Firearms Act at the very beginning of the 113th Congress on January 22, I have had productive conversations with several Senators who share my goal of reducing this destructive criminal conduct. Today I am pleased to be joined by Senator Collins, Senator Durbin, Senator Kirk, Senator Gillibrand, and Senator Blumenthal. These Senators understand the weaknesses in our current law and the challenges faced by law enforcement officials. I thank them for their commitment to this legislation, for their support of law enforcement, and for their cooperation in making progress in our collective efforts to prevent and reduce gun violence. I hope that as other Senators on both sides of the aisle become more familiar with our bipartisan proposal, they will understand how it provides law enforcement with the tools they need to go after those who engage in the straw purchasing and illegal trafficking of firearms. The practice of straw purchasing is used for one thing to put firearms into the hands of those that are prohibited by law from having them. Many are then used to further violent crimes. I have heard again and again from Senators on both sides of the aisle that keeping guns away from those who should not have them is a goal worth pursuing. This bill will further that effort and help answer the call from Gabrielle Giffords and so many Americans for us to take action. I want to commend the senior Senator from Maine, Senator Collins, for her leadership on this matter and for her willingness to work across the aisle to make real progress. She helped unite us to get this done. Without her, we would not have made the progress we have, or be in position to consider this comprehensive response to what law enforcement has told us they need. This week, the Senate Judiciary Committee will continue our consideration of four measures to reduce gun violence. The issue of gun trafficking and straw purchasing is before the Committee. I will amend my original trafficking bill that is pending on the Committee agenda with the text of this bipartisan compromise, which combines the proposals that I put forward with Senator Durbin at the beginning of this Congress as well as proposals that have been championed by Senator Gillibrand and Senator Kirk. Our substitute amendment will improve the language already pending before the Committee. As I did before introducing any measure related to gun violence this year, I also hope to continue my outreach to the Judiciary Committee's Ranking Member. I invite Senator Grassley and other members of the Committee from both sides of the aisle to join with us so that I can report this measure with strong bipartisan support and without delay for consideration by the Senate. Law enforcement officials have complained for years that they lack the legal tools necessary effectively to combat illegal straw purchasing and firearms trafficking. Congressional inquiry during the last Congress put a spotlight on the very difficult legal environment within which law enforcement officials currently operate. In fact, one of the whistleblowers who testified about the misguided tactics used by Federal law enforcement in firearms trafficking investigations in Arizona described the current laws as ``toothless.'' If we are to address gun violence, we should respond to this clear vulnerability that is being exploited by criminals. The Stop Illegal Trafficking in Firearms Act will make important changes to Federal firearms statutes that will better equip law enforcement officials to investigate and prosecute the all-too-common practices of straw purchasing and illegal trafficking of firearms. Straw purchases typically involve a person, who is not prohibited by Federal law, purchasing a firearm on behalf of a prohibited person, or at the direction of a drug trafficking or other criminal organization. These practices result in the support of larger criminal organizations, and the illegally obtained guns are often sold and re-sold across state lines. This trafficking in firearms results in the proliferation of illegal firearms and gun violence in our communities. Straw purchasers circumvent the purposes of the background check system, and they put law enforcement officials and law-abiding firearms dealers in difficult positions. Gun trafficking and straw purchasing make our communities less safe. Under current law, there is no specific statute that makes it illegal to act as a straw purchaser of firearms. Nor is there a law directly on point to address the illegal trafficking of firearms. As a result, prosecutors must cobble together charges against a straw purchaser using so-called ``paperwork'' violations such as misrepresentations on a Federal form. These laws are imperfect, and do not give prosecutors the leverage needed to encourage straw buyers, often the lowest rungs on a ladder in a criminal enterprise, to provide the information needed for investigators and prosecutors to go after those directing and profiting from such activity. The bipartisan bill we introduce today will add two new provisions to our Federal criminal code to specifically prohibit serving as a straw purchaser of firearms and trafficking in firearms. The bill establishes tough penalties for these offenses in an effort to punish and importantly, deter this conduct. We need a meaningful solution to this serious problem. Talk about prosecuting mere paperwork offenses is no answer. Under current law, it is a crime to transfer a firearm to another with the knowledge that the firearm will be used in criminal activity. This bill would strengthen this existing law by prohibiting such a transfer where the transferor has ``reasonable cause to believe'' that the firearm will be used in criminal activity. We listened to concerns about family members who give firearms as gifts and other transfers that are not designed to get around the existing background check system. As a result, the bill contains important exemptions for the innocent transfer of a firearm as a gift, or in relation to a legitimate raffle, auction or contest. Another key provision of our bipartisan bill is that it complements existing law that makes it a crime to smuggle firearms into the United States by specifically prohibiting the smuggling of firearms out of the United States. In light of what we know is occurring, particularly on our Southwest border, this is an important improvement to current law and another tool that was needed but missing over the last few years. The provisions laid out in our legislation are focused, commonsense remedies to the very real problems of firearms trafficking and straw purchasing. Our bill does not affect lawful purchases from Federal firearms licensees, and in no way alters their rights and responsibilities as sellers of a lawful commodity. I hope Federal firearms licensees welcome a stronger deterrent to keep criminal straw purchasers out of their business. The problems of gun trafficking and straw purchasers, particularly along the Southwest border, are matters we have been talking about for years. Senator Durbin chaired a hearing on border violence back in early 2009. Law enforcement officials have called for a firearms trafficking statute that can be effective to go after straw purchasers. That is something agents did not have when they initiated Operation Wide Receiver during the Bush administration and later the disastrous Fast and Furious effort. Their frustration with the limits of the current law contributed to their looking for another way to make a difference in their fight against gun trafficking. Their initiative was a failure. What we need to do now is to create better law enforcement tools. I hope that those who have been concerned about Fast and Furious, whose investigation established that it was the local ATF agents in Arizona who initiated and so poorly implemented that effort, will join with us to close the loophole in the law that Mexican drug cartels are continuing to exploit. Our bill was drafted at the request of law enforcement. It will provide needed tools to fight against the drug cartels and other criminals who threaten our communities. It will not undermine the Second Amendment rights of lawful gun owners. It has the support of many law enforcement organizations--both leadership and rank and file. Indeed, the original bill I introduced with Senator Durbin has been supported by the National Fraternal Order of Police, the National Law Enforcement Partnership to Prevent Gun Violence, the Federal Law Enforcement Officers Association, the International Association of Chiefs of Police, the Major Cities Chiefs Association, the National District Attorneys Association, and the Police Executive Research Forum. I urge everyone who cares about keeping firearms out of the hands of criminals to join in this effort. We have an obligation to find solutions to reduce gun violence and I thank these Senators for their strong leadership. We can do this in a way consistent with the rights guaranteed by the Second Amendment. I believe our bipartisan legislation meets those goals. As Chairman of the Judiciary Committee, a Senator, a Vermonter, an American, a father and a grandfather, I look forward to continuing our progress on this important legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join with my friend from California, Senator Feinstein, in introducing the Cluster Munitions Civilian Protection Act of 2013. It is identical to the bill that she and I have introduced in prior years, and I commend her for her persistence on this important humanitarian issue. I come to this issue having devoted much effort over many years to shining a spotlight on and doing what can be done to help innocent victims of war. In the last century, and continuing into this new century, noncombatants increasingly have borne the brunt of the casualties in armed conflicts across the globe. Limiting the use of weapons that are inherently indiscriminate, such as landmines, and that have indiscriminate effects, such as cluster munitions, are tangible, practical, meaningful things we can do to reduce these unnecessary casualties. Cluster munitions, like any weapon, have some military utility. But anyone who has seen the indiscriminate devastation that cluster munitions cause over wide areas understands the unacceptable threat they pose to noncombatants. These are not the laser guided weapons the Pentagon showed destroying their targets during the invasion of Baghdad. To the contrary. Cluster munitions can kill and maim anyone within the 360 degree range of flying shrapnel. There is the horrific problem of cluster munitions that fail to explode as designed and remain as active duds, like landmines, until they are triggered by whoever comes into contact with them. Often it is an unsuspecting child, or a farmer. Even now, in Laos today people are still being killed and maimed by millions of U.S. cluster munitions left from the 1970s. That legacy, resulting from years of secret bombing of a peaceful, agrarian people who posed no threat to the United States, contaminated more than a third of Laos' agricultural land and cost countless innocent lives. It is shameful that we have contributed less in the past 35 years to clean up these deadly remnants of war than we spent in a few days of bombing. Current law prohibits U.S. sales, exports and transfers of cluster munitions that have a failure rate exceeding 1 percent. The law also requires any sale, export or transfer agreement to include a requirement that the cluster munitions will be used only against military targets. The Pentagon continues to insist that the United States should retain the ability to use millions of cluster munitions in its arsenal which have estimated failure rates of 5 to 20 percent. It has pledged to meet the 1 percent failure rate for U.S. use of cluster munitions in 2018. Like Senator Feinstein I reject the notion that the United States can justify using antiquated weapons that so often fail, so often kill and injure innocent people including children, and which many of our allies have renounced. That is not the kind of leadership the world needs and expects from the United States. If we have learned anything from Afghanistan it is that harming civilians, even unintentionally, creates enemies among those whose support we need, and undermines the mission of our troops. Senator Feinstein's and my bill would apply the 1 percent failure rate to U.S. use of cluster munitions beginning on the date of enactment. However, our bill permits the President to waive the 1 percent requirement if the President certifies that it is vital to protect the security of the United States. I would hope the Pentagon would recognize that this is in its best interest, and will work with us by supporting this reasonable step. Since December 3, 2008, when the Convention on Cluster Munitions opened for signature in Dublin, at least 111 countries have signed the treaty including Great Britain, Germany, Canada, Norway, Australia and other allies of the United States. However, the Bush Administration did not participate in the negotiations that culminated in the treaty, and the Obama Administration has not signed it. Some have dismissed the Cluster Munitions Convention as a pointless exercise, since it does not yet have the support of the United States and other major powers such as Russia, China, Pakistan, India and Israel. These are some of the same critics of the Ottawa treaty banning antipersonnel landmines, which the United States and the other countries I named have also refused to sign. But that treaty has dramatically reduced the number of landmines produced, used, sold, and stockpiled--and the number of mine victims has fallen sharply. Any government that contemplates using landmines today does so knowing that it will be condemned by the international community. I suspect it is only a matter of time before the same is true for cluster munitions. It is important to note that the United States today has the technological ability to produce cluster munitions that meet the requirements of our bill, as well as of the treaty. What is lacking is the political will to act. There is no excuse for continuing to use cluster munitions that cause unacceptable harm to civilians. I urge the Obama administration to review its policy on cluster munitions and put the United States on a path to join the treaty as soon as possible. In the meantime, our legislation would be an important step in the right direction. I want again to thank and commend Senator Feinstein, who has shown such passion and steadfastness in raising this issue and seeking every opportunity to protect civilians from these indiscriminate weapons.