S5642 CONGRESSIONAL RECORD — SENATE July 30, 2012 

able to go over and show the people 

what the truth was in this country. 

But Andrew Revkin, just before Copenhagen, on September 23, 2009, in the 

New York Times, acknowledged: 

The world leaders who met at the United 

Nations to discuss climate change . . . are 

faced with an intricate challenge: building 

momentum for an international climate 

treaty at a time when global temperatures 

have been relatively stable for a decade and 

may even drop for the next few years. 

I look at some of the things—incidentally, I kind of wish I had known my 

good friend from Vermont was going to 

be talking about this because I would 

have been delighted to join in and get 

a little bit better prepared. But I would 

say this as to the cost: When you talk 

about where this cost comes from, the 

$300 to $400 billion, the Kyoto Protocol 

and cap-and-trade cost—this is from 

the Wharton Econometrics Forecasting 

Associates I mentioned just a minute 

ago—Kyoto would cost 2.4 million U.S. 

jobs and reduce GDP by 3.2 percent or 

about $300 billion annually, an amount 

greater than the total expenditure on 

primary and secondary education. 

Oh, yes, let’s talk about polar bears. 

I am not sure my friend mentioned the 

polar bears, so I will skip that part. 

Anyway, let me just say this: It has become something that has been somewhat of a religion to talk about what is 

happening and the world is coming to 

an end. I would just suggest they are 

not winning that battle. 

In March 2010, in a Gallup poll, Americans ranked global warming dead 

last—8 out of 8—on environmental 

issues. That was not true 10 years ago. 

Ten years ago, it was No. 1, and everyone thought that. The more people sit 

back and look at it and study it, they 

decide: Well, maybe it is not true after 

all. 

In March 2010, a Rasmussen poll: 72 

percent of American voters do not believe global warming is a very serious 

problem. In a Rasmussen poll at the 

same time as to the Democrat base: 

Only 35 percent now think climate 

change is manmade. 

The global warmist Robert Socolow 

laments: 

We are losing the argument with the general public, big time . . . I think the climate 

change activists, myself included, have lost 

the American middle. 

In a way, I am kind of pleased it is 

coming back up and surfacing now. I 

thank my good friend, and he is my 

good friend. People do not understand—they really do not understand— 

what the Senate is all about. The 

House was not that way when I was in 

the House. But in the Senate, you can 

love someone and disagree with them 

philosophically and come out and talk 

about it. 

I have no doubt in my mind that my 

friend from Vermont is sincere in what 

he believes. I believe he would say he 

knows I am sincere with what I believe. 

That is what makes this a great body. 

But I will just say this: It is popular 

to say the world is coming to an end. 

When we look historically, I could go 

back and talk about what has happened 

over the years—over the centuries really—and going through these periods of 

time, and it is always that the world is 

coming to an end. 

Well, I am here to announce—and I 

feel very good being able to do it with 

20 kids and grandkids; I am happy to 

tell them all right now—the world is 

not coming to an end, and global 

warming—we are going through a 

cycle. We have gone through these cycles before, and every time we go 

through—in part of my book I talk 

about the hysterical things people are 

saying. 

Back during that period of time, I 

mentioned between 1895 and 1930 about 

how the world was coming to an end, 

and the same thing from 1930 to the 

end of the war. Then, of course, getting 

into the little ice age, all these things 

that were taking place, the little ice 

age from 1945—not the ice age but this 

cooling period—the cooling period that 

started in 1945 and lasted for 30 years 

was the time in our history where we 

had the greatest increase in carbon in 

the air, the greatest use of that. So it 

is inconsistent with what reality was. 

So I would say to my good friend, I 

have no doubt in my mind that the 

Senator from Vermont is sincere in 

what he says. While he and I are 

ranked at the extreme sides of the philosophical pendulum, I would say I 

know he is sincere. But I will also say 

this is a tough world we are in right 

now. When we look at the problems we 

have in this country and the problems 

we are having in the world and the cost 

that it has, I am very thankful those 

who are trying to pass the cap and 

trade, all the way from the Kyoto 

Treaty—which was never brought to 

the Senate, never brought because they 

knew they were not going to be able to 

pass it—up until the time when that 

ended in about 2009, I would say a lot of 

activists were out there, but I think 

people have now realized: Just look at 

the patterns. It gets colder, it gets 

warmer, it gets colder, it gets warmer. 

God is still up there. And I think that 

will continue in the future. 

I thank the Chair and yield the remainder of my time. 

The PRESIDING OFFICER (Mr. 

FRANKEN). The Senator from Vermont. 

Mr. SANDERS. Mr. President, I have 

talked for a long time on this issue, so 

I do not want to make a great speech 

and continue speaking at great length. 

I do want to say a few things. 

First of all, I want to thank Senator 

INHOFE for his kind words. Let me respond in the same way. He and I philosophically and politically come from 

very different places. I have never 

doubted for one moment the honesty or 

the sincerity of the Senator from Oklahoma. He is saying what he believes. 

He has the courage to get up here and 

say it, and I appreciate that. So we are 

good friends, and I hope we will continue to be good friends. 

I think, frankly, it does this Senate, 

and it does this country, good when 

people hear varied differences of opinion on an issue that I consider to be of 

enormous consequence. So what I 

would say to my friend is, I hope, in 

fact, this is the beginning of a resurgence of discussion about this issue, 

and I look forward to engaging in the 

discussion with my friend from Oklahoma. 

With that, Mr. President, I yield the 

floor. 

I suggest the absence of a quorum. 

The PRESIDING OFFICER. The 

clerk will call the roll. 

The legislative clerk proceeded to 

call the roll. 

Mr. FRANKEN. Mr. President, I ask 

unanimous consent that the order for 

the quorum call be rescinded. 

The PRESIDING OFFICER (Mr. 

WEBB). Without objection, it is so ordered. 

f 

EXECUTIVE SESSION 

NOMINATION OF ROBERT E. 

BACHARACH TO BE UNITED 

STATES CIRCUIT JUDGE FOR 

THE TENTH CIRCUIT 

The PRESIDING OFFICER. Under 

the previous order, the Senate will proceed to executive session to consider 

the following nomination, which the 

clerk will report. 

The legislative clerk read the nomination of Robert E. Bacharach, of 

Oklahoma, to be United States Circuit 

Judge for the Tenth Circuit. 

The PRESIDING OFFICER. Under 

the previous order, there will be 1 hour 

of debate equally divided and controlled in the usual form. 

Mr. LEAHY. Today’s debate and vote 

on the partisan filibuster of the Oklahoma judicial nominee, who has had 

the support of the Republican Senators 

from Oklahoma since President Obama 

nominated him 6 months ago, is another example of how extreme Senate 

Republicans have gone in their efforts 

to obstruct judicial confirmations. If 

they succeed in their partisan filibuster, it will be another first for 

them. Never before has the Senate filibustered and refused to vote on a judicial nominee with such strong bipartisan support, who was voted out of the 

Judiciary Committee with virtually 

unanimous support. 

Their partisan efforts to shut down 

Senate confirmations of qualified judicial nominees who have bipartisan support do not help the American people. 

This is a shortsighted policy at a time 

when the judicial vacancy rate remains 

more than twice what it was at this 

point in the first term of President 

Bush. Judicial vacancies during the 

last few years have been at historically 

high levels. Nearly one out of every 11 

Federal judgeships is currently vacant. 

Their shutting down confirmations for 

consensus and qualified circuit court 

nominees is not helping the overburdened Federal courts to which Americans turn for justice. 


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July 30, 2012 CONGRESSIONAL RECORD — SENATE S5643 

Over his 13-year career as a U.S. Magistrate Judge in the Western District of 

Oklahoma, Judge Robert Bacharach 

has handled nearly 3,000 civil and 

criminal matters, presided over 400 judicial settlement conferences, and 

issued more than 1,600 reports and recommendations. As an attorney in private practice, Judge Bacharach tried 10 

cases to verdict, argued 2 cases before 

the Tenth Circuit Court of Appeals, 

and briefed scores of other cases to the 

tenth circuit and the Oklahoma Supreme Court. The ABA Standing Committee on the Federal Judiciary has 

rated Judge Bacharach unanimously 

well qualified, the highest possible rating from its nonpartisan peer review. 

Judge Bacharach’s judicial colleagues in the Western District of 

Oklahoma stand strongly behind his 

nomination. Vicki Miles-LaGrange, 

Chief Judge of the U.S. District Court 

for the Western District of Oklahoma, 

has said of Judge Bacharach: 

He is an outstanding jurist and my colleagues and I enthusiastically and wholeheartedly recommend him for the Tenth Circuit position . . . We knew that we were 

lucky to have Bob as a Magistrate Judge, 

and he’s been remarkable in this position for 

over 12 years. He is an absolutely great Magistrate Judge. His research and writing are 

excellent, his temperament is superb, his 

preparation is top-notch, and he is a wonderful colleague to all of the judges and in general to the entire court family. . . . All of 

the other judges and I—Republicans and 

Democrats alike—enthusiastically and 

wholeheartedly recommend Judge Bob 

Bacharach for the Tenth Circuit position. All 

of us believe very strongly that Judge 

Bacharach would be a superb choice for the 

position. 

Throughout this very careful and deliberate process in which Judge Robert 

Bacharach has been thoroughly vetted, 

considered, and voted on by the Judiciary Committee, I have not heard a single negative word about him. There is 

no Senator that I know of who is opposed to his nomination on the merits. 

The only obstacle standing between 

Judge Bacharach being confirmed to 

serve the people of the tenth circuit is 

partisan obstruction. 

Nor is Judge Bacharach the only victim of this abuse. In a letter dated 

June 20, 2012, the president of the 

American Bar Association urged Senator REID and Senator MCCONNELL to 

work together to schedule votes on the 

nominations of William Kayatta and 

Richard Taranto, as well as Judge 

Bacharach. These are three consensus, 

qualified circuit court nominees awaiting Senate confirmation so that they 

may serve the American people. I ask 

that a copy of that letter be printed in 

the RECORD, along with an article from 

the Oklahoman on this nomination. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

AMERICAN BAR ASSOCIATION, 

Chicago, IL, June 20, 2012. 

Hon. HARRY REID, 

Majority Leader, U.S. Senate, 

Washington, DC. 

Hon. MITCH MCCONNELL, 

Republican Leader, U.S. Senate, 

Washington, DC. 

DEAR MAJORITY LEADER REID AND REPUBLICAN LEADER MCCONNELL: Amid concerns 

that the judicial confirmation process is 

about to fall victim to presidential election 

year politics through the invocation of the 

‘‘Thurmond Rule,’’ I am writing on behalf of 

the American Bar Association to reiterate 

our grave concern for the longstanding number of judicial vacancies on Article III courts 

and to urge you to schedule floor votes on 

three pending, noncontroversial circuit court 

nominees before July and on district court 

nominees who have strong bipartisan support on a weekly basis thereafter. 

Three of the four circuit court nominees 

pending on the Senate floor are consensus 

nominees who have received overwhelming 

approval from the Senate Judiciary Committee. Both William Kayatta, Jr. of Maine, 

nominated to the First Circuit, and Robert 

Bacharach of Oklahoma, nominated to the 

Tenth Circuit, have the staunch support of 

their Republican senators. Richard Taranto, 

nominated to the Federal Circuit, enjoys 

strong bipartisan support, including the endorsement of noted conservative legal scholars. All three nominees also have stellar professional qualifications and each has been 

rated unanimously ‘‘well-qualified’’ by the 

ABA’s Standing Committee on the Federal 

Judiciary. 

As you know, the ‘‘Thurmond Rule’’ is neither a rule nor a clearly defined event. While 

the ABA takes no position on what invocation of the ‘‘Thurmond Rule’’ actually means 

or whether it represents wise policy, recent 

news stories have cast it as a precedent 

under which the Senate, after a specified 

date in a presidential election year, ceases to 

vote on nominees to the federal circuit 

courts of appeals. We note that there has 

been no consistently observed date at which 

this has occurred during the presidential 

election years from 1980 to 2008. With regard 

to the past three election years, the last circuit court nominees were confirmed in June 

during 2004 and 2008 and in July during 2000. 

In deference to these historical cut-off dates 

and because of our conviction that the Senate has a continuing constitutional duty to 

act with due diligence to reduce the dangerously high vacancy rate that is adversely 

affecting our federal judiciary, we exhort 

you to schedule votes on these three outstanding circuit court nominees this month. 

We also urge you to continue to work together to move consensus district court 

nominees to the floor for a vote throughout 

the rest of the session, lest the vacancy crisis worsens in the waning months of the 

112th Congress. With five new vacancies arising this month and an additional five announced for next month, this is not just a 

possibility; it is a certainty, absent your 

continued commitment to the federal judiciary and steady action on nominees. 

Thank you for your past efforts and for 

your consideration of our views on this important issue. 

Sincerely, 

WM. T. (BILL) ROBINSON III, 

President. 

[From the Oklahoman, June 15, 2012] 

SENATE REPUBLICANS TO BLOCK VOTE ON

OKLAHOMA NOMINEE FOR FEDERAL APPEALS

COURT

(By Chris Casteel) 

WASHINGTON.—Senate Republicans won’t 

allow a vote before November’s presidential 

election to confirm U.S. Magistrate Judge 

Robert E. Bacharach to a federal appeals 

court, despite Bacharach’s credentials and 

support from both Oklahoma senators, Sen. 

Tom Coburn said Thursday. 

Coburn, R–Muskogee, said Senate Republican leader Mitch McConnell told him Republicans were following a tradition used by 

both parties to block votes on circuit court 

nominees a few months before a presidential 

election. 

That means a vote on Bacharach, whose 

nomination to the 10th U.S. Circuit Court of 

Appeals cleared the Senate Judiciary Committee last week, ‘‘is not going to happen,’’ 

Coburn said. 

Coburn said the nomination of John E. 

Dowdell to be a U.S. district judge in Tulsa 

still has a ‘‘great chance’’ of clearing the full 

Senate. 

Bacharach is ‘‘an awfully good candidate’’ 

for the circuit court position, said Coburn, 

who praised his character and judicial temperament. Bacharach, who has been a magistrate judge in Oklahoma City since 1999, 

was given a rating of ‘‘unanimously well 

qualified’’ for the appeals court position by 

the American Bar Association. 

Sen. Jim Inhofe, R–Tulsa, praised 

Bacharach during a committee hearing last 

month. 

But the selection and confirmation process 

moved too slowly to fill the vacancy on the 

appeals court—which is a step below the U.S. 

Supreme Court—given the political timetable in Washington. 

Though the position has been open since 

July 2010, the White House didn’t make a 

nomination until January, after spending 

months vetting candidates that weren’t 

going to be acceptable to Coburn and Inhofe. 

Then, it took more than three months to 

schedule a committee hearing for Bacharach 

as the staff conducted a background investigation; Coburn withheld his approval for a 

committee hearing until the committee investigation was completed. 

Ultimately, Bacharach may have just narrowly missed a full Senate vote. The Senate 

this week, over the objections of most Republicans, confirmed a nominee from Arizona for another circuit court. After that 

vote, McConnell told Republican senators no 

other votes on circuit judges would be held. 

McConnell’s office declined to comment on 

Thursday. 

Sen. Patrick Leahy, D–Vermont, chairman 

of the Senate Judiciary Committee, said 

Thursday, ‘‘This is really a challenge to the 

senators who have said that they will not 

support these filibusters and this kind of 

shutdown, and to those Republican senators 

who support the circuit court nominees from 

Maine and Oklahoma.’’ 

But Coburn said there wasn’t anything he 

could do about the situation. 

The delaying tactic on circuit court 

judges, which will likely extend to district 

court judges later this year, has become 

common practice for the party that doesn’t 

control the White House. 

This year, it means Republicans will block 

votes on nominees for appeals courts, which 

can have great influence on a wide range of 

legal issues since the Supreme Court agrees 

to hear relatively few cases. 

The aim of the tactic is to delay making 

lifetime appointments to federal courts in 

hopes their party will regain the White 

House and the power to fill judicial vacancies. Coburn said Bacharach could be cleared 

late this year if President Barack Obama 

wins re-election. If not, Coburn said, 

Bacharach would make a great nominee for a 

Republican president. 

Mr. LEAHY. The ABA president 

wrote: 


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S5644 CONGRESSIONAL RECORD — SENATE July 30, 2012 

Amid concerns that the judicial confirmation process is about to fall victim to presidential election year politics through the invocation of the ‘‘Thurmond Rule,’’ I am writing on behalf of the American Bar Association to reiterate our grave concern for the 

longstanding number of judicial vacancies on 

Article III courts and to urge you to schedule floor votes on three pending, noncontroversial circuit court nominees before 

July and on district court nominees who 

have strong bipartisan support on a weekly 

basis thereafter. 

This is the precise danger that was 

the reason for that letter. Including 

Judge Bacharach, William Kayatta of 

Maine, and Richard Taranto, there are 

currently 20 judicial nominees voted 

out of the Judiciary Committee and 

being blocked by Senate Republicans. 

During the Judiciary Committee 

meeting approving the nomination of 

Judge Bacharach, Senator COBURN

noted: 

I believe that Judge Bacharach will uphold 

the highest standards and reflect the best in 

our American judicial tradition by coming 

to the bench as a well-regarded member of 

the community. At a time when our country 

seems as divided as ever, it is important that 

citizens respect members of the judiciary 

and are confident they will faithfully and 

impartially apply the law. . . I believe Judge 

Bacharach would be an excellent addition to 

the Tenth Circuit. 

Senator INHOFE likewise has said: ‘‘I 

believe that Judge Bacharach would 

continue the strong service Oklahomans have provided the Tenth Circuit.’’ When asked last month about 

this effort to block a vote on Judge 

Bacharach’s nomination, Senator 

COBURN told The Oklahoman: ‘‘I think 

it’s stupid.’’ He is right. It is just obstruction. 

There is no good reason that the Senate should not vote on consensus circuit court nominees thoroughly vetted, 

considered and voted on and approved 

with nearly unanimous bipartisan support by the Judiciary Committee. 

There is no reason the Senate cannot 

vote on the nomination of William 

Kayatta of Maine to the first circuit, a 

nominee strongly supported by both of 

Maine’s Republican Senators and reported nearly unanimously by the committee 3 months ago and 2 months before considering Judge Bacharach’s 

nomination. This is the same person 

who Chief Justice John Roberts recommended to Kenneth Starr for a position in the Justice Department. He is 

widely respected in Maine. Republicans 

cannot seriously oppose his nomination 

on the merits or for ideological reasons. It is just more obstruction. 

There is also no reason the Senate 

cannot vote on Richard Taranto’s nomination to the Federal circuit. He was 

reported almost unanimously by voice 

vote nearly 4 months ago, and is supported by conservatives such as Robert 

Bork and Paul Clement. Republicans 

cannot seriously oppose his nomination 

to the Federal circuit on the merits or 

for ideological reasons. It is just more 

obstruction. 

Each of these circuit court nominees 

has been rated unanimously well qualified by the nonpartisan ABA Standing 

Committee on the Federal Judiciary, 

the highest possible rating. These are 

not controversial nominees. They are 

qualified and should be considered as 

consensus nominees and confirmed. 

Senate Republicans are blocking consent to vote on superbly qualified circuit court nominees with strong bipartisan support. This is a new and damaging application of the Thurmond 

rule. 

It is hard to see how this new application of the Thurmond rule is really 

anything more than another name for 

the stalling tactics we have seen for 

months and years. I have yet to hear 

any good reason why we should not 

continue to vote on well-qualified, consensus nominees, just as we did up 

until September of the last 2 Presidential election years. I have yet to 

hear a good explanation why we cannot 

work to solve the problem of high vacancies for the American people. I will 

continue to work to confirm as many 

of President Obama’s qualified judicial 

nominees as possible to fill the many 

judicial vacancies that burden our 

courts and the American people across 

the country. 

Senate Republicans have become the 

party of no—no help for the American 

people, no to jobs, no to economic recovery, no help to extend tax cuts for 

the middle class, and no to judges to 

provide Americans with justice in their 

Federal courts. Although the public announcement that they would be blocking qualified and consensus circuit 

court nominees was not until June, the 

truth is that Senate Republicans have 

been obstructing President Obama’s judicial nominees since the beginning of 

his Presidency, beginning with their 

filibuster of his first nominee. 

Senate Republicans used to insist 

that filibustering of judicial nominations was unconstitutional. The Constitution has not changed but as soon 

as President Obama was elected they 

reversed course and filibustered President Obama’s very first judicial nomination. Judge David Hamilton of Indiana was a widely respected 15-year veteran of the Federal bench nominated to 

the seventh circuit and was supported 

by Senator DICK LUGAR, the longestserving Republican in the Senate. They 

delayed his confirmation for 5 months. 

Senate Republicans then proceeded to 

obstruct and delay just about every 

circuit court nominee of this President, filibustering nine of them. They 

delayed confirmation of Judge Albert 

Diaz of North Carolina to the fourth 

circuit for 11 months. They delayed 

confirmation of Judge Jane Stranch of 

Tennessee to the sixth circuit for 10 

months. They delayed confirmation of 

Judge Ray Lohier of New York to the 

second circuit for 7 months. They delayed confirmation of Judge Scott 

Matheson of Utah to the tenth circuit 

and Judge James Wynn, Jr. of North 

Carolina to the fourth circuit for 6 

months. They delayed confirmation of 

Judge Andre Davis of Maryland to the 

fourth circuit, Judge Henry Floyd of 

South Carolina to the fourth circuit, 

Judge Stephanie Thacker of West Virginia to the fourth circuit, and Judge 

Jacqueline Nguyen of California to the 

ninth circuit for 5 months. They delayed confirmation of Judge Adalberto 

Jordan of Florida to the eleventh circuit, Judge Beverly Martin of Georgia 

to the eleventh circuit, Judge Mary 

Murguia of Arizona to the ninth circuit, Judge Bernice Donald of Tennessee to the sixth circuit, Judge Barbara Keenan of Virginia to the fourth 

circuit, Judge Thomas Vanaskie of 

Pennsylvania to the third circuit, 

Judge Joseph Greenaway of New Jersey 

to the third circuit, Judge Denny Chin 

of New York to the second circuit, and 

Judge Chris Droney of Connecticut to 

the second circuit for 4 months. They 

delayed confirmation of Judge Paul 

Watford of California to the ninth circuit, Judge Andrew Hurwitz of Arizona 

to the ninth circuit, Judge Morgan 

Christen of Alaska to the ninth circuit, 

Judge Stephen Higginson of Louisiana 

to the fifth circuit, Judge Gerard 

Lynch of New York to the second circuit, Judge Susan Carney of Connecticut to the second circuit, and 

Judge Kathleen O’Malley of Ohio to the 

Federal circuit for 3 months. 

As a recent report from the nonpartisan Congressional Research Service confirms, the median time circuit 

nominees have had to wait for a Senate 

vote has skyrocketed from 18 days for 

President Bush’s nominees to 132 days 

for President Obama’s circuit court 

nominees. This is the result of Republican foot dragging and obstruction. In 

most cases, Senate Republicans have 

been delaying and stalling for no good 

reason. How else do you explain the filibuster of the nomination of Judge 

Barbara Keenan of Virginia to the 

fourth circuit who was ultimately confirmed 99–0? And how else do you explain the needless obstruction of Judge 

Denny Chin of New York to the second 

circuit, who was filibustered for 4 

months before he was confirmed 98–0? 

The only change in their practices is 

that Senate Republicans have finally 

acknowledged that they are seeking to 

shut down the confirmation process for 

qualified and consensus circuit court 

nominees. Three of the five circuit 

court judges finally confirmed this 

year after months of unnecessary 

delays and a filibuster should have 

been confirmed last year. The other 

two circuit court nominees confirmed 

this year were both subjected to stalling and partisan filibusters, which were 

thankfully unsuccessful. 

The American people need to understand that Senate Republicans are 

stalling and filibustering judicial 

nominees supported by their home 

State Republican Senators. Just consider the States I have already mentioned as having circuit nominees supported by their home State Republican 

Senators unnecessarily stalled—Indiana, North Carolina, Utah, South Carolina, Georgia. Just last month we needed to overcome a filibuster to confirm 


smartinez on DSK6TPTVN1PROD with SENATE
July 30, 2012 CONGRESSIONAL RECORD — SENATE S5645 

Justice Andrew Hurwitz of the Arizona 

Supreme Court to the ninth circuit despite the strong support of Senators 

JON KYL and JOHN MCCAIN. Now it is 

nominees from Oklahoma and Maine 

who are being filibustered despite the 

support of their home State Republican 

Senators. 

The year started with the majority 

leader having to file cloture to get an 

up-or-down vote on Judge Adalberto 

Jordan of Florida to the eleventh circuit even though he was strongly supported by his Republican home State 

Senator. And every single one of these 

nominees for whom the majority leader 

was forced to file cloture this year was 

rated unanimously well qualified by 

the nonpartisan ABA Standing Committee on the Federal Judiciary, the 

highest possible rating. Most were to 

fill a judicial emergency vacancy. So 

when I hear some Senate Republicans 

say they are now invoking the Thurmond rule and have decided they are 

not going to allow President Obama’s 

judicial nominees to be considered, I 

wonder how the American people are 

supposed to be able to tell the difference from how they have been obstructing for the last 31⁄2 years. 

The minority’s stalling of votes on 

judicial nominees with significant bipartisan support is all to the detriment 

of the American people. This has been 

a tactic that they have employed for 

the last 31⁄2 years, despite repeated appeals urging them to work with us to 

help solve the judicial vacancy crisis. 

We have seen everyone from Chief Justice John Roberts, himself appointed 

by a Republican President, to the nonpartisan American Bar Association 

urging the Senate to vote on qualified 

judicial nominees who are available to 

administer justice for the American 

public. Sadly, Republicans insist on 

being the party of no. 

What the American people and the 

overburdened Federal courts need are 

qualified judges to administer justice 

in our Federal courts, not the perpetuation of extended, numerous vacancies. Today vacancies on the Federal 

courts are more than 21⁄2 times as many 

as they were on this date during the 

first term of President Bush. The Senate is more than 40 confirmations off 

the pace we set during President 

Bush’s first term. 

Because they cannot deny the 

strength of this comparison—using apples to apples by comparing first 

terms—Senate Republicans instead try 

to draw comfort by making comparisons to President Bush’s second term 

after we had already worked hard to reduce vacancies by 75 percent. In fact, 

during President Bush’s second term, 

the number of vacancies never exceeded 60 and was reduced to 34 near the 

end of his Presidency. In stark contrast, vacancies have long remained 

near or above 80, with little progress 

made in these last 31⁄2 years. Today, 

there are still 76 vacancies. Their tactics have actually led to an increase in 

judicial vacancies during President 

Obama’s first term—a development 

that is another sad first. 

But the real point is that their selective use of numbers does nothing to 

help the American people. We should 

be doing better. I know that we can because we have done better. During 

President Bush’s first term, notwithstanding the 9/11 attacks, the anthrax 

attack on the Senate, the ideologically 

driven selections of judicial nominees 

by President Bush, and his lack of outreach to home State Senators, we reduced the number of judicial vacancies 

down to 29 by this point during his first 

term and acted to confirm 205 circuit 

and district court nominees by the end 

of his first term. 

Another excuse from the minority 

comes across more as partisan score 

settling than anything else. They 

claim that having confirmed two Supreme Court Justices, the Senate cannot be expected to reach the 205 number of confirmations in President 

Bush’s first term. 

But those Supreme Court confirmation proceedings from years ago do not 

excuse the Senate from taking the actions it could now on the 20 judicial 

nominees voted out of the Judiciary 

Committee and ready for final Senate 

action. That second Supreme Court 

confirmation was in August 2010. That 

is almost 2 years ago and it was opposed by most Senate Republicans. 

Senate Republicans held down circuit 

and district court confirmations in 

President Obama’s first 2 years in office to historically low numbers—12 by 

the end of 2009 and another 48 in 2010 

for a total of only 60. They refused to 

act on 10 nominees ready at the end of 

2009 and on 19 as 2010 drew to a close. 

Last year they employed the same tactic in stalling action on another 19 judicial nominees at the end of 2011. Now 

it is 20 judicial nominees in this summer of 2012 that they are stalling. Had 

Republicans not stalled 19 nominations 

at the end of last year and dragged 

those confirmations out into May of 

this year, we the American people and 

the Federal courts would be much better off. As it is, however, the fact remains that there are 20 qualified judicial nominations that the Senate could 

be voting on without further delay. 

They refuse to acknowledge that in 

addition to confirming two Supreme 

Court Justices in President Clinton’s 

first term, the Senate was able to confirm 200 circuit and district court 

judges. And in 1992, at the end of President George H.W. Bush’s term, the Senate with a Democratic majority was 

able to confirm 192 circuit and district 

court judges despite confirming two 

Supreme Court Justices. Republicans 

have kept the Senate well back from 

those numbers by only allowing the 

Senate to proceed to confirm 154 of 

President Obama’s circuit and district 

court nominees. That is a far cry from 

what we have been able to achieve in 

addition to our consideration of Supreme Court nominations when the 

Senate was being allowed to function 

more fairly and to consider judicial 

nominees reported with bipartisan support. 

Nor are the nominees about whom we 

are concerned recently nominated. 

These are not nominees dumped on the 

Senate in scores at the end of a Presidential term. These are, instead, nominations that date back to October of 

last year. Most were nominated before 

March. In fact the circuit court nominees who Republicans are refusing to 

consider date back to October and November of last year and January of this 

year. William Kayatta was voted on by 

the committee and placed before the 

Senate by mid-April and could have 

been confirmed then. Richard Taranto 

and Judge Patty Shwartz have been 

stalled before the Senate even longer, 

since March. The truth is that Senate 

Republicans have shut down confirmations of circuit court judges not just in 

July but, in effect, for the entire year. 

The Senate has yet to vote on a single 

circuit court nominee nominated by 

President Obama this year. Since 1980, 

the only Presidential election year in 

which there were no circuit nominees 

confirmed who was nominated that 

year was in 1996, when Senate Republicans shut down the process against 

President Clinton’s circuit nominees. 

The fact that Republican stalling tactics have meant that circuit court 

nominees that should have been confirmed in the spring—like Bill Kayatta, 

Richard Taranto and Patty Shwartz— 

are still awaiting a vote after July 4th 

is no excuse for not moving forward 

this month to confirm these circuit 

nominees. 

The American people who are waiting 

for justice do not care about excuses. 

They do not care about some false 

sense of settling political scores. They 

want justice, just as they want action 

on measures the President has suggested to help the economy and create 

jobs rather than political calculations 

about what will help Republican candidates in the elections in November. 

When Republican Senators try to 

take credit for the Senate having 

reached what they regard as their 

‘‘quota’’ for confirmations this year, 

they should acknowledge their strenuous opposition and attempts to filibuster many of the nominations for 

which they now take credit. As recently as 2008, Senate Republicans denied there was a Thurmond rule. They 

used to say that any judicial nominee 

reported by the Senate was entitled to 

an up-or-down vote and that they 

would never filibuster judicial nominees. Well, the majority leader has had 

to file 30 cloture petitions to end their 

filibusters of judicial nominees. Now 

they are flip-flopping on their own call 

for up-or-down votes. 

What they are doing now is a first. As 

I have noted, in the past 5 Presidential 

election years, Senate Democrats have 

never denied an up-or-down vote to any 

circuit court nominee of a Republican 

President who received bipartisan support in the Judiciary Committee. They 


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are denying votes not only to Robert 

Bacharach, a nominee from Oklahoma 

supported by his conservative home 

State Republican Senators but also to 

William Kayatta, a universally respected nominee from Maine supported 

by his home State Republican Senators, and Richard Taranto, whose 

nomination to the Federal circuit received virtually unanimous support. 

Even Judge Patty Shwartz, whose 

nomination to the third circuit received a split rollcall vote, has the bipartisan support of New Jersey Governor Chris Christie. 

Personal attacks on me, taking 

quotes out of context, trying to repackage their own actions as if following the Thurmond rule or what they 

seek to dub the Leahy Rule do nothing 

to help the American people who are 

seeking justice in our Federal courts. I 

am willing to defend my record but 

that is beside the point. The harm to 

the American people is what matters. 

Republicans are insisting on being the 

party of no even when it comes to judicial nominees who home State Republican Senators support. 

As chairman and when I served as the 

ranking member of the Judiciary Committee, I have worked with Senate Republicans to consider judicial nominees 

well into Presidential election years. I 

have taken steps to make the confirmation process more transparent 

and fair. I have ensured that the President consults with home State Senators before submitting a nominee. I 

have opened up what had been a secretive, blue-slip process to prevent 

abuses. All the while I have protected 

the rights of the minority, of Republican Senators. If Republicans want to 

talk about the Leahy rules, those are 

the practices I have followed. And I 

have been consistent. I hold hearings 

at the same pace and under the same 

procedures whether the President 

nominating is a Democrat or a Republican. Others cannot say that. 

Senate Republicans are fond of taking quotes of things I have said out of 

context. But look at my record as 

chairman. I have not filibustered nominees with bipartisan support in July of 

Presidential election years. As chairman of this committee, I have steadfastly protected the rights of the minority. I have done so despite criticism 

from Democrats. I have only proceeded 

with judicial nominations supported by 

both home State Senators. I will put 

my record of consistent fairness up 

against that of any chairman and remind Senate Republicans that it is 

they who blatantly disregarded evenhanded practices when they were ramming through ideological nominations 

of President George W. Bush. They 

would proceed with nominations despite the objection of both home State 

Senators. 

So those are the Leahy rules—respect 

for and protection of minority rights, 

increased transparency, consistency, 

and allowing for confirmations well 

into Presidential election years for 

nominees with bipartisan support. 

And what were the results? In the 

last two Presidential election years, we 

were able to bring the number of judicial vacancies down to the lowest levels in the past 20 years. In 2004, at the 

end of President Bush’s first term, vacancies were reduced to 28, not the 76 

we have today. In 2008, in the last year 

of President Bush’s second term, we 

again worked to fill vacancies and got 

them down to 34, less than half of what 

they are today. In 2004, 25 nominees 

were confirmed from June 1 to the 

Presidential election. In 2008, 22 nominees were confirmed between June 1 

and the Presidential election. So far, 

since June 1 of this year, only eight 

judges have been confirmed and five required the majority leader to file cloture to end Republican filibusters. 

In 2004, the Senate confirmed five circuit court nominees of a Republican 

President that had been reported by 

the committee that year. This year we 

have confirmed only two circuit court 

nominees that have been reported by 

the committee this year, and we had to 

overcome Republican filibusters in 

both cases. By this date in 2004 the 

Senate had already confirmed 35 of 

President Bush’s circuit court nominees. So far, the Senate has only been 

allowed to consider and confirm 30 of 

President Obama’s circuit court nominees—5 fewer, 17 percent fewer—while 

higher numbers of vacancies remain, 

and yet the Senate Republican leadership demands an artificial shutdown on 

confirmation of qualified, consensus 

nominees for no good reason. 

In fact, during the last 20 years, only 

four circuit nominees reported with bipartisan support have been denied an 

up-or-down vote during a Presidential 

election year by the Senate; all four 

were nominated by President Clinton 

and blocked by Senate Republicans. 

While Senate Democrats have been 

willing to work with Republican Presidents to confirm circuit court nominees with bipartisan support, Senate 

Republicans have repeatedly obstructed the nominees of Democratic 

Presidents. In the previous 5 Presidential election years, a total of 13 circuit court nominees have been confirmed after May 31. Not surprisingly, 

12 of the 13 were Republican nominees. 

Clearly, this is a one-way street in 

favor of Republican Presidents’ nominees. 

Senate Republicans, on the other 

hand, have repeatedly asserted that the 

Thurmond rule does not exist. For example, on July 14, 2008, the Senate Republican caucus held a forum and said 

that the Thurmond rule does not exist. 

At that meeting, the senior Senator 

from Kentucky, the Republican leader 

stated: ‘‘I think it’s clear that there is 

no Thurmond rule. And I think the 

facts demonstrate that.’’ Similarly, the 

Senator from Iowa, my friend who is 

now serving as ranking member of the 

Judiciary Committee, stated that the 

Thurmond rule was in his view ‘‘plain 

bunk.’’ He said: ‘‘The reality is that 

the Senate has never stopped confirming judicial nominees during the 

last few months of a President’s term.’’ 

We did not in 2008 when we proceeded 

to confirm 22 nominees over the second 

half of that year. 

So at the end of President Bush’s second term, and at the beginning of his 

first term as well, Senate Democrats 

worked to confirm consensus nominees 

and reduce the judicial vacancy rate. 

Despite the pace we set during President Bush’s first term for reducing vacancies, vacancies have remained near 

or above 80 for most of President 

Obama’s first term and little comparative progress has been made during the 

three and a half years of President 

Obama’s first term. As contrasted to 29 

vacancies in July 2004, there are still 76 

vacancies in July 2012. If we could 

move forward to Senate votes on the 20 

judicial nominees ready for final action, the Senate could reduce vacancies 

to less than 60 and make some 

progress. We were 9 months later in 

confirming the 150th circuit or district 

judge to be appointed by President 

Obama. Another way to look at our relative lack of progress and the burden 

the Republican obstruction is placing 

on the American people seeking justice 

is to note that by mid-November 2002 

we had already reduced judicial vacancies to below where we are now. In fact, 

when on November 14, 2002, the Senate 

proceeded to confirm 18 judicial nominees, vacancies went down to 60 

throughout the country. We effectively 

worked twice as efficiently and twice 

as fast. By that measure, the Senate is 

almost 20 months behind schedule. This 

is hardly then the time to be shutting 

down the process. 

In a letter to Senators COBURN and 

INHOFE dated July 19, 2012, the American Bar Association’s State Delegate 

for Oklahoma urged the Republican 

Senators to rise above politics and to 

end this filibuster of Judge Bacharach. 

I ask unanimous consent that a copy of 

this letter be printed in the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

AMERICAN BAR ASSOCIATION, 

Oklahoma City, OK, July 19, 2012. 

Senator JAMES M. INHOFE, 

Russell Senate Office Building, Washington, 

DC. 

Senator TOM COBURN, 

Russell Senate Office Building, Washington, 

DC. 

DEAR SENATORS INHOFE AND COBURN: The 

undersigned, Oklahoma’s current delegates 

to the American Bar Association (ABA) (less 

two judge members who abstain from this 

letter), are writing to ask you respectfully to 

press the Republican Senate leadership for a 

floor vote, before the traditional August recess, on the nomination of Judge Robert 

Bacharach to the Tenth Circuit Court of Appeals vacancy. 

As you probably know, the ABA wrote to 

the Senate leaders of both parties on June 

20, 2012, after Senator McConnell announced 

his party’s intention to invoke the so-called 

‘‘Thurmond Rule’’ and block floor consideration of any more nominees to any federal 

circuit court vacancies, including those, like 

Judge Bacharach, that: (1) have passed 

through the Judiciary Committee; (2) 


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present no controversy on their qualifications; and (3) have the support of their home 

state senators. 

We appreciate your role in the selection of 

Judge Bacharach and your public support for 

his nomination. As you know, he has been 

rated ‘‘unanimously well qualified’’ by the 

ABA panel that reviewed his qualifications. 

We understand that both political parties 

have engaged in a variety of stalling tactics, 

including the threat of a filibuster, regarding 

judicial nominations in the past. However, 

this ignores the fact that this Oklahoma slot 

on the Tenth Circuit has now been vacant for 

over two years. 

Therefore, we are asking you (1) to use 

your considerable influence within the Senate and urge the leadership of both parties to 

schedule a floor vote on Judge Bacharach’s 

nomination before the August recess, and (2) 

to publicly announce your willingness to 

vote to end any filibuster preventing a vote 

on the merits of the nomination, if necessary. 

Respectfully, 

JIMMY GOODMAN, 

ABA State Delegate for Oklahoma. 

For himself and also for: Cathy M. 

Christensen, OBA (OK Bar Assoc.) President; 

William G. Paul, ABA Past President; 

Dwight L. Smith, ABA Division Delegate; 

James T. Stuart, OBA President-Elect; M. 

Joe Crosthwait, Jr., Okla. County Bar Delegate; Mark A. Robertson, ABA Section Delegate; Peggy Stockwell, OBA Vice President; 

Robert S. Farris, Tulsa County Bar Delegate; 

Jennifer Kirkpatrick, Young Lawyer Delegate. 

Mr. LEAHY. Mr. President, it is time 

for reasonable and independent thinking Senators to end this needless and 

damaging filibuster on Judge 

Bacharach’s nomination and confirm 

him. With judicial vacancies remaining 

at such high levels for so long, we need 

to continue confirming judicial nominees. At a time when judicial vacancies 

remained historically high for 3 years, 

with 40 more vacancies and 40 fewer 

confirmations than at this point in 

President Bush’s first term, the Senate 

Republican leadership should reconsider its obstruction and work with us 

to fill these longstanding judicial vacancies in order to help the American 

people. We have well-qualified, consensus nominees with bipartisan support who can fill these vacancies. It is 

only partisan politics and continued 

tactics of obstruction that stand in the 

way. 

Mr. FRANKEN. Mr. President, I ask 

unanimous consent that any time in a 

quorum call be equally divided. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. FRANKEN. Mr. President, I suggest the absence of a quorum. 

The PRESIDING OFFICER. The 

clerk will call the roll. 

The legislative clerk proceeded to 

call the roll. 

Mr. GRASSLEY. Mr. President, I ask 

unanimous consent that the order for 

the quorum call be rescinded. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. GRASSLEY. Mr. President, for 

the last few weeks, it has been routine 

practice here in the Senate that we 

vote on consensus district court nominees most Mondays. We have done so 

quite a number of times in this Congress. We could have done so again tonight. Instead, the majority leader has 

decided to pursue another course. 

Rather than confirm what would have 

been the 155th judge tonight, the majority will instead engage in a political 

activity. Make no mistake, it is purely 

and simply a political posturing situation. It is really unfortunate. 

It is well known that the practice 

and tradition of the Senate is to stop 

confirming circuit nominees in the 

closing months of a Presidential election year. That is what we have done 

during the last number of Presidential 

election years. That started in 1980, I 

believe. So that would be 32 years. In 

fact, today is July 30. You would have 

to go back that number of years to find 

a Presidential election year when we 

approved a circuit court judge this 

late. 

Of course, the rationale has been that 

this close to an election, whoever wins 

that election should be the one to pick 

these lifetime nominees who will run 

our judiciary system. It is true that 

there were some votes in relation to 

circuit nominations in July during the 

last two election years. The only problem, of course, is that those were cloture votes on outstanding nominees 

the Democrats were filibustering. 

For example, in July 2004—remember, that was a Presidential election 

year—cloture votes were held on four 

outstanding circuit nominees the 

Democrats were filibustering. Those included Miguel Estrada, nominated for 

the D.C. Circuit; Richard Griffin, nominated to the sixth circuit court; David 

McKeagh, nominated to the sixth circuit; and Henry Saad, also nominated 

to the sixth circuit. 

I would note that at the time the 

sixth circuit alone had a 25-percent vacancy rate. And every one of those vacancies was designated as judicial 

emergencies. 

That, of course, didn’t matter to the 

other side. Despite the fact that the 

sixth circuit was in dire straits, the 

other side filibustered every one of 

those nominees. 

I don’t recall too much concern from 

my friends on the other side of the 

aisle about the need to confirm those 

judges. 

And now, when our side seeks to enforce the rule the other side helped create and perfect, all we hear are complaints. 

Mr. President, if ever there was an 

example of ‘‘crocodile tears,’’ this is it. 

In 2008, the other side was at it again. 

Once again, they closed-up shop on Circuit nominations in June. This time, it 

was the Fourth Circuit that was in dire 

straits. 

Despite the fact that the Fourth Circuit was 25 percent vacant, the Democrats refused to even process four outstanding consensus nominees. 

Those nominees included Judge Robert Conrad, even though he had already 

been confirmed unanimously as a U.S. 

Attorney and District Court Judge. 

Democrats refused to process Judge 

Glen Conrad even though he had strong 

bipartisan home state support. Steve 

Matthews also had strong home-state 

support yet the Democrats in Committee refused to give him a vote. To 

show you the incredible lengths the 

Democrats were willing to go, they 

even tried to justify blocking the nomination of U.S. Attorney Rod Rosenstein to the fourth circuit by claiming 

he was doing ‘‘too good of a job’’ as 

U.S. Attorney to be promoted. 

By refusing to give these nominees a 

vote in Committee, the Democrats engaged in what amounted to a ‘‘pocket 

filibuster’’ of all four of these candidates to the fourth circuit. 

And again, this was at a time when 

the fourth circuit’s vacancy rate was 

over 25 percent, similar to the Sixth 

Circuit vacancy rate in 2004. But that 

didn’t matter to the other side. In 2008, 

just like in 2004, they simply refused to 

process any more circuit nominees 

after June. 

At the end of the day, based on any 

fair and objective metric, the suggestion that we today are operating any 

differently than Democrats did in 2004 

and 2008 is simply without merit. 

Democrats stalled and blocked numerous highly qualified circuit nominees 

during those Presidential election 

years including even nominees with bipartisan support. 

The Democratic leadership has invoked repeatedly what has been called 

the ‘‘Thurmond Rule’’ to justify stalling nominees—even those with bipartisan support. And now they don’t want 

us to play by the same set of rules. The 

Democratic leadership doesn’t want us 

to enforce the rule that they helped establish. 

Let me quote from a CRS report on 

this subject: 

The Senator who most frequently has asserted the existence of a Thurmond rule has 

been the current chairman of the Judiciary 

Committee. 

The CRS report noted that on March 

7, 2008, the Chairman recalled: 

When President Reagan was running for 

President and Senator Thurmond, then in 

the Republican minority as ranking member 

of the Judiciary Committee, instituted a policy to stall President Carter’s nominations. 

That policy, known as the ‘‘Thurmond 

Rule,’’ was put in when the Republicans were 

in the minority. It is a rule that we still follow, and it will take effect very soon here. 

Again, this was in March of that 

Presidential election year, not June or 

July. 

CRS went on to note the strong support the majority leader has expressed 

for the so-called Thurmond rule. According to CRS: 

Senator Harry Reid, the Senate majority 

leader, has expressed agreement with Senator Leahy about the existence of a Thurmond rule. In April 10, 2008, floor remarks, 

Senator Reid said, ‘‘In a Presidential election year, it is always very tough for judges. 

That is the way it has been for a long time, 

and that is why we have the Thurmond rule 

and other such rules.’’ 

Five days later, the Majority Leader 

said: 


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You know, there is a Thurmond doctrine 

that says: After June, we will have to take a 

real close look at judges in a Presidential 

election year. 

These quotes indicate not only the 

expectation, but in fact a support for 

slowing down and cutting off the confirmation of judges in a Presidential 

election year. 

Senate Republicans are invoking this 

practice in a more narrow fashion, and 

after more confirmations than Democrats did in the past. 

Setting aside the so-called LeahyThurmond rule, by any objective measure, this President has been treated 

fairly and consistent with past Senate 

practices. 

For example, with regard to the total 

number of confirmations, this President is well ahead of his predecessor. 

We have confirmed 154 of this President’s district and circuit nominations. 

We have also confirmed 2 Supreme 

Court nominations during President 

Obama’s first term. When Supreme 

Court nominations are pending in the 

Committee, all other nominations 

work is put on hold. 

The last time the Senate confirmed 

two Supreme Court nominees was during President Bush’s second term. And 

during that term the Senate confirmed 

a total of only 119 district and circuit 

court nominees. 

Let me put it another way, under 

similar circumstances, we have confirmed 35 more district and circuit 

nominees for President Obama than we 

did for President Bush. 

During the last Presidential election 

year, 2008, the Senate confirmed a total 

of 28 judges—24 district and 4 circuit. 

This Presidential election year we have 

already exceeded those numbers, having confirmed a total of 32 judges. So 

those who say that this President is 

being treated differently either fail to 

recognize history, or want to ignore 

the facts, or both. 

While this President has not been 

treated differently than previous Presidents, he certainly has behaved differently with regard to nominations. 

He has been slow to send nominees to 

the Senate, and he abused his recess 

appointment authority. If President 

Obama hasn’t gotten as many confirmations as he could have, it is because he has been slow to nominate 

and he has abused his recess appointment power. 

Let me take just a moment to discuss how slow the President has been 

with his nominations. 

When President Obama took office, 

there were 59 judicial vacancies. One 

year earlier, at the beginning of 2008, 

there were only 43 vacancies. So, during the last year of President Bush’s 

second term, when the Democrats controlled the Senate, and during a time 

when they refused to process four 

nominees for the fourth circuit, they 

allowed the vacancy rate to increase by 

more than 37 percent. 

By mid-March 2009, when the first 

Obama judicial nomination was sent up 

to the Senate, there were 70 judicial 

vacancies. Over the next 3 months, 

only five more circuit nominations 

were sent to the Senate. By the end of 

June, when the Senate received its 

first district nomination, there were 80 

vacancies. 

The failure or delay in submitting 

nominations for vacancies has been the 

practice of this administration and it 

still continues to this day. 

By the end of 2009, there were 100 vacancies, with only 20 nominees. In December 2010, more than half of the 108 

vacancies had no nominee. At the beginning of this year, only 36 nominees 

were pending for the 82 vacancies. And 

it continues to this day, more than half 

of the 76 vacancies have no nominee. 

I just want to remind my colleagues 

that all of this begins with the White 

House. So if someone wants to complain about judicial vacancies, they 

should mail those complaints to 1600 

Pennsylvania Avenue. 

Now, I also mentioned that the President could have had a few more district 

court nominees at the end of last Congress. 

Our side offered to confirm quite a 

number of district court nominees who 

were on the Executive Calendar, If the 

President would provide his assurances 

that he wouldn’t bypass the Senate 

with recess appointments. The President refused to provide those assurances, and we found out why a couple 

weeks later when the President unconstitutionally bypassed the Senate. 

I want everyone to understand that. 

At the end of last Congress we offered 

to confirm quite a few district court 

nominees. But the President wouldn’t 

take ‘‘Yes’’ for an answer. Rather than 

choosing a path that led to more 

progress and a greater number of confirmations, the President chose the 

path to more confrontation and fewer 

confirmations. 

The same thing happened last week. 

Once again, our side offered to confirm 

additional district court nominees. 

But, once again, the other side refused 

to take ‘‘Yes’’ for an answer. Rather 

than choosing the path that led to cooperation and additional confirmations, the other side chose more confrontation and fewer confirmations. 

They would rather waste precious time 

on a vote to nowhere, than spend the 

little time we have left on getting 

more nominations done. So here we are 

engaged in this political theater. 

I urge my colleagues to vote ‘‘No’’ on 

cloture. 

I yield the floor and suggest the absence of a quorum. 

The PRESIDING OFFICER. The 

clerk will call the roll. 

The legislative clerk proceeded to 

call the roll. 

Mr. MCCONNELL. Mr. President, I 

ask unanimous consent that the order 

for the quorum call be rescinded. 

The PRESIDING OFFICER (Mr. 

TESTER). Without objection, it is so ordered. 

Mr. MCCONNELL. Mr. President, it is 

almost August. We are just a few weeks 

away from the political parties’ nominating conventions. At this point in 

past Presidential election years, the 

Senate is diligently working on things 

such as appropriations bills or the Defense authorization bill but not this 

year in the Senate. 

Our Democratic colleagues refuse to 

do the basic work of government. Even 

though Chairman INOUYE has said he 

would like to pass some of the nine appropriations bills his committee has 

worked hard to complete, we haven’t 

taken up a single one. Our Democratic 

colleagues will not bring the Defense 

authorization bill to the floor either, 

even though both the chairman and the 

ranking member of the Armed Services 

Committee are ready to work on this 

important legislation as well. And they 

refuse to work with us to help the 

economy or to prevent a looming tax 

hike on nearly 1 million small businesses at the end of the year. 

Instead, they prefer to waste valuable time on a vote they have argued 

for many years shouldn’t take place 

this close to a Presidential election. 

Now that there is a Democrat in the 

White House, they refuse to follow past 

practice on postponing the consideration of circuit court nominations this 

late in a Presidential election year so 

the American people can decide whom 

they want to make these important appointments. This practice is known as 

the Leahy-Thurmond rule. It is a custom they vigorously defended when 

there was a Republican in the White 

House. 

So let’s take a look at recent history. 

In 2004, the unemployment rate was 

only 5.4 percent. On our circuit courts, 

however, back in 2004, there were nine 

declared judicial emergencies. That 

didn’t matter to our Democratic colleagues. The Senate stopped—stopped— 

circuit court nominations in June of 

that year, even though we had nine judicial emergencies. In 2008, the unemployment rate wasn’t much higher, at 

6.1 percent. In our circuit courts, there 

were almost as many judicial emergencies. But in the Fourth Circuit 

things were much worse: Fully onefourth of the seats were empty, even 

though there were qualified nominees 

to fill them. Our Democratic colleagues didn’t care then either. In the 

name of Senate custom and practice— 

by which I mean the Leahy-Thurmond 

rule—they pocket-filibustered several 

outstanding circuit court nominees in 

committee. 

It didn’t matter to our Democratic 

friends that these nominees enjoyed 

strong home State support, including 

bipartisan home State support, or that 

they had outstanding credentials or 

that they would fill declared emergencies on our circuit courts. The Senate couldn’t process them—they told us 

again and again and again—because it 

was June and that was—to quote the 

chairman of the Judiciary Committee—‘‘way past the time’’ of the 

Leahy-Thurmond rule. 

Today, it is August, not June, that is 

upon us. The country’s unemployment 


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rate is, unfortunately, much higher 

than it was in either 2004 or 2008. It is 

now at 8.2 percent. But the situation on 

our circuit courts is much better than 

it was in either 2004 or 2008. There are 

now fewer judicial emergencies. In 

terms of what the Senate can do about 

it, as opposed to the President’s failure 

to nominate people, we have confirmed—we have confirmed—every 

nominee whom the President has submitted to fill a judicial emergency on 

our circuit courts, save one—only one. 

That is right. The Senate has confirmed every nominee the President 

has sent to fill an emergency on our 

circuit courts, save one, and that one 

nominee isn’t on the Senate floor. 

In fact, the Senate has already confirmed as many or more circuit court 

nominees this year than it did in 2004 

or 2008. It has confirmed a much higher 

percentage of circuit court nominations and it has confirmed those nominations faster than during the Bush administration. 

On that last point, although we will 

not hear our Democratic friends acknowledge it, the average time from 

nomination to confirmation—the average time from nomination to confirmation—of a circuit court nominee for 

President Obama is over 1 month faster 

than it was for President Bush in his 

first term. Again, the time from nomination to confirmation for President 

Obama is over 1 month faster for a circuit court nominee than in President 

Bush’s first term, and it is over 100 

days faster than it was for President 

Bush’s circuit court nominees overall. 

So the situation with our economy is 

worse now than it was in 2004 or 2008, 

while the situation on our circuit 

courts is better. The economy is worse, 

but the situation on circuit courts is 

better. So what do you think our 

Democratic colleagues are going to 

focus on? Are they going to do the 

basic work of government—fund the 

government, for example? It doesn’t 

look like it. Are they going to reauthorize important programs for our Nation’s defense? I am told it has been 50- 

some-odd-years since the Defense authorization bill hasn’t passed—no sign 

of it this year. Are they going to work 

with us to fix the economy or prevent 

a looming tax hike? I don’t see any evidence of it yet. 

What they want to do, instead, is violate the custom in Presidential election years that the Congressional Research Service says they have been the 

biggest proponents of. This is not me 

saying this, this is the Congressional 

Research Service. They want to violate 

the custom in Presidential election 

years that the CRS says they have been 

the biggest proponents of. 

The CRS does not say the biggest 

proponent of the Leahy-Thurmond rule 

is me or Ranking Member GRASSLEY or 

even Senator Thurmond. Rather, the 

CRS says the most frequent proponent 

of the rule ‘‘is the current chairman of 

the Senate Judiciary Committee.’’ 

No doubt we will hear some post hoc, 

gerrymandered rationale from our 

Democratic friends as to why the rule 

the CRS says they have been the biggest proponents of somehow doesn’t 

apply to them. They will ignore the 

pocket filibusters of people who would 

have filled judicial emergencies during 

a Republican administration. But, of 

course, that is par for the course. 

Whether it is pro forma sessions to 

prevent recess appointments, or judicial filibusters, or the Leahy-Thurmond rule, our friends don’t want the 

practices they have pioneered or been 

the biggest proponents of to apply to 

them. They don’t want the practices 

they have been the pioneers of and the 

biggest proponents of to apply to them. 

Now it is pretty convenient for them, 

but that is not the way the Senate is 

supposed to work. 

In sum, on the subject of the LeahyThurmond rule, we have been more responsible in deciding to invoke it in 

this year than our Democratic colleagues were in either 2004 or 2008. I 

would urge my friends to oppose this 

double standard and to oppose cloture. 

Let me repeat. This is not about the 

individual who has been nominated. It 

wasn’t, in many respects, about the individuals to be nominated in 2004 or 

2008. What this is is a bipartisan timeout—bipartisan in the sense that it has 

been used by both sides—a timeout 

within, this year, 6 months of an election; in 2008, it was within 8 months of 

the end of a term—but within 6 months 

of an election to these important lifetime jobs to see who the next President 

may be. 

Mr. INHOFE. Mr. President, will the 

Senator yield? 

Mr. MCCONNELL. I yield to my 

friend from Oklahoma. 

Mr. INHOFE. Let me first say it is 

awkward that one of the best nominees, Robert Bacharach, is the one subject to this. I regret that is the case. 

The problem is this would be the latest 

confirmation of a circuit court nominee during an election year in 20 years. 

I was thinking today that I cannot 

vote against this guy, but I sure can 

vote present. If we have a 20-year 

precedent that was put in there by the 

Democrats and the Republicans alike, I 

wouldn’t want to be the one to break 

that precedent. We are within 4 months 

of an election right now. It is very important that we do what we have done 

over the last 20 years and allow the 

new administration to come in. 

The nomination of Robert Bacharach 

has been up there for 2 years before any 

action. You have to be a little suspicious as to why is he coming up right 

now. So I may end up voting present. 

Mr. MCCONNELL. I thank my friend 

from Oklahoma. He confirms that this 

is not about the nominee, who apparently is well qualified. This is about an 

approach that has developed over several decades called the Leahy-Thurmond rule, under which it has been the 

practice to kind of call a timeout within rather close proximity to an election. In 2008, the timeout was called in 

June. We are going to enter August at 

the end of this week. 

I would say also to my friend from 

Oklahoma, we have confirmed for the 

President in this election year five circuit court nominees. President Bush in 

2008 got four; President Bush in 2004 

got five. We have not been unfair to the 

administration. And it is certainly no 

reflection on what is apparently an 

outstanding nominee from your State. 

Mr. President, I yield the floor. 

The PRESIDING OFFICER. The Senator from Illinois. 

Mr. DURBIN. Mr. President, I hope 

the American people are witnessing 

this moment in the Senate. We are 

about to make history. We are going to 

make history here in a few minutes 

when we have a rollcall vote on U.S. 

Magistrate Judge Robert Bacharach to 

the Tenth Circuit Court of Appeals. 

This fine man who has been nominated 

to this high position in the Federal judiciary has the support of both Senators of his home State. They are both 

Republicans. 

Listen to what Senator TOM COBURN

said of Mr. Bacharach: A stellar candidate. Listen to what Senator INHOFE

said about this same nominee from his 

State: A great guy. 

I listened to these comments. Then I 

reflect on the fact this man was reported out of the Senate Judiciary 

Committee on a voice vote. There was 

so little controversy because of his outstanding record, he was reported out on 

a voice vote. 

The Democratic majority leader has 

offered to bring to the floor of the Senate a nominee approved by both Republican Senators from Oklahoma, and 

now you hear Senator MCCONNELL

come to the floor and explain why the 

Republicans will have to filibuster and 

stop this man from being appointed to 

the court. Is it something about him? 

No. It is all about politics and it is all 

about the Presidential campaign. 

If the Republicans sustain this filibuster and stop this good man from his 

service on the circuit court, it will be 

the first time in the history of the Senate that an appeals court nominee with 

bipartisan committee support has ever 

been filibustered on the floor of the 

Senate. But how can we be surprised? 

This will be the 86th Republican filibuster this Congress. 

It is said that if the only tool you 

own is a hammer, every problem looks 

like a nail. If you happen to be a Republican leader in the Senate, every 

day looks like another chance for a filibuster. Eighty-six filibusters. Now 

they are filibustering judicial nominees approved nearly unanimously by 

the committee and approved by both 

Republican Senators. The President is 

prepared to assign this man into this 

position—a critically important position in the judiciary—and who is stopping him? The Republicans in the Senate, the 86th Republican Senate filibuster in this Congress. No surprise 

that it comes from Senator MCCONNELL, who very openly and candidly, 

and I assume honestly, said, My biggest job in the Senate is to make sure 


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S5650 CONGRESSIONAL RECORD — SENATE July 30, 2012 

Barack Obama is a one-term President. 

That is how he welcomed President 

Obama to the White House. 

So they have piled filibuster on top 

of filibuster to stop the rare possibility 

that this President would give this 

good man, this exceptional man, a 

chance to serve his country. Listen to 

the background of this man who is 

about to become a victim of the 86th 

Republican filibuster: 

For 13 years he has served as a federal magistrate. He has handled an impressive caseload, including almost 

3,000 civil and criminal matters, and 

400 judicial settlement conferences. He 

is the type of consensus nominee we 

look for in every single State. He has 

been given the highest possible rating 

by the American Bar Association. No 

questions asked, this is a good man and 

a good candidate for this job. In the 

American Bar Association’s nonpartisan peer review, every single reviewer said this magistrate is well 

qualified to serve as a circuit court 

judge in the Tenth Circuit Court of Appeals. And where are the politics there? 

The politics are that the Democratic 

majority leader has offered to the two 

Republican Senators from Oklahoma a 

chance for this good man to serve, and 

now they are going to stop him with a 

Republican filibuster. 

If you are looking for evidence of a 

dysfunctional Senate, hold on tight. In 

just a few moments we will start a rollcall, and you will watch as Republican 

after Republican comes and votes to 

kill this man’s nomination for the 

Tenth Circuit Court of Appeals. President Obama will be the first President 

in 20 years to complete his first term 

with more judicial vacancies than 

when he took office. They have dragged 

their feet every step of the way with 

filibusters and delays to stop this 

President from appointing the judges 

he was elected to appoint. And good 

people—good people such as U.S. Magistrate Judge Robert Bacharach—who 

submit their names in this process, 

who go through extensive background 

investigations, who put their lives on 

hold wondering if they are going to 

make it, end up getting caught in a political game that is being played here 

on the floor. 

I hope there is a handful—five, six, or 

seven—Republican Senators who will 

give this man a fair break and will give 

him a chance to serve his country as a 

circuit judge for the Tenth Circuit 

Court of Appeals. Please, let us not 

make history today by stopping a highly qualified bipartisan nominee, well 

qualified by the American Bar Association, from serving this circuit. The Republican Senators from Oklahoma are 

right—he is a stellar candidate and, by 

every measure, a great guy. Please 

don’t make him a victim of lastminute political campaigning in this 

last week before the recess we take for 

our Democratic national convention 

and the Republican national convention. He shouldn’t be a victim of this 

Presidential campaign. He deserves a 

chance to serve. 

Mr. President, I yield the floor. 

The PRESIDING OFFICER. The Senator from Alabama. 

Mr. SESSIONS. Mr. President, I 

don’t like to get involved in the back 

and forth on this issue. It bothers me. 

Chairman LEAHY goes into all these 

numbers, and they are distorted for the 

most part in connection with the reality. I have said that I simply will 

not, however, stand by and see the 

record misconstrued and the picture 

painted as something other than it is. 

President Bush’s judicial nominees 

were filibustered extraordinarily, unlike anything we had ever seen before. 

And this is the way it happened. I was 

here, I remember it very distinctly. 

President Bush was elected President. 

In 2001, shortly after he was elected, 

the New York Times reported that a 

group of well-known liberal law professors, including Laurence Tribe, Cass 

Sunstein, and Marsha Greenberger, 

met with Democratic Senators in a retreat. They proposed to the Democratic 

conference, who were then in the minority in the Senate—they didn’t have 

the majority. President Bush was going 

to be nominating judges, and they decided to change the ground rules of judicial confirmation. That is a fact. 

After that, they aggressively executed 

a plan of unprecedented obstruction of 

judicial nominees. 

In a totally unprecedented use of the 

filibuster, the Senate confirmed only 6 

of 25 of President Bush’s circuit court 

nominees. Two of those six were prior 

Clinton nominees President Bush, in an 

act of good faith, renominated. Of 

course they were immediately confirmed. Yet the majority of President 

Bush’s first nominees to the circuit 

court waited years for confirmation. 

Many were never confirmed. 

Perhaps the most disturbing story 

was that of Miguel Estrada, which has 

come up recently in the confirmation 

of Supreme Court Justices in which 

some of my Democratic colleagues basically acknowledge that he was unfairly treated. He is an outstanding appellate lawyer, supremely qualified to 

serve on the District of Columbia Circuit Court. He waited 16 months for a 

hearing. They would not give him a 

hearing. 

This was all after 2000, in their determination to change the ground rules. 

Before that, filibusters had not been 

utilized against nominees, not to any 

degree. Almost never, actually. We had 

a fight over it. I spoke on maybe half a 

dozen or a dozen times about Mr. 

Estrada. There were seven cloture 

votes—seven attempts—by the Republicans to get a vote on Mr. Estrada so 

he could be confirmed. He was a superb 

nominee, and he was treated very poorly. It was not the right thing, and people have acknowledged it since. 

Mr. President, is there a time agreement on the vote to commence? 

The PRESIDING OFFICER. The time 

for the minority leader just expired. 

Mr. SESSIONS. Mr. President, I ask 

unanimous consent to have one additional minute. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Let me just say this: In the last 20 

years, going back even before this dispute began in 2000, when Democrats 

changed the ground rules of confirmations and started filibustering systematically qualified nominees, not one 

circuit judge has been confirmed after 

this day. That has been the tradition of 

the Senate. It has been referred to as 

the Thurmond rule. Maybe it would be 

even more appropriate to say the 

Leahy rule. 

Others have talked about the quotes 

that have been made from Senator 

REID and Senator LEAHY on the floor. 

This is the tradition of the Senate that 

when someone is up for reelection, 

after this day, to get their nominees 

confirmed, they have to win reelection. 

If President Obama is successful in 

being reelected, I am sure he will have 

a high likelihood of getting this nominee and others confirmed. 

I thank the Chair, yield the floor, 

and note the absence of a quorum. 

The PRESIDING OFFICER (Mr. 

MANCHIN). The clerk will call the roll. 

The assistant legislative clerk proceeded to call the roll. 

The PRESIDING OFFICER. The Senator from Alabama. 

Mr. SESSIONS. Mr. President, I ask 

unanimous consent that the quorum 

call be rescinded. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. SESSIONS. Mr. President, I yield 

back all time prior to the vote. 

CLOTURE MOTION

The PRESIDING OFFICER. Under 

the previous order, pursuant to rule 

XXII, the Chair lays before the Senate 

the pending cloture motion, which the 

clerk will report. 

The assistant legislative clerk read 

as follows: 

CLOTURE MOTION

We, the undersigned Senators, in accordance with the provisions of rule XXII of the 

Standing Rules of the Senate, hereby move 

to bring to a close debate on the nomination 

of Robert E. Bacharach, of Oklahoma, to be 

United States Circuit Judge for the 10th Circuit. 

Harry Reid, Patrick J. Leahy, Thomas R. 

Carper, Tom Udall, Robert Menendez, 

Kirsten E. Gillibrand, Dianne Feinstein, Kent Conrad, Christopher A. 

Coons, Herb Kohl, Amy Klobuchar, 

Jack Reed, Ron Wyden, Richard J. Durbin, Jeff Merkley, Richard Blumenthal, 

Sherrod Brown. 

The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 

call has been waived. 

The question is, Is it the sense of the 

Senate that debate on the nomination 

of Robert E. Bacharach, of Oklahoma, 

to be United States Circuit Judge for 

the Tenth Circuit, shall be brought to 

a close? 

The yeas and nays are mandatory 

under the rule. 

The clerk will call the roll. 

The assistant legislative clerk called 

the roll. 

Mr. COBURN (when his name was 

called). Present. 


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July 30, 2012 CONGRESSIONAL RECORD — SENATE S5651 

Mr. HATCH (when his name was 

called). Present. 

Mr. INHOFE (when his named was 

called). Present. 

Mr. KYL. The following Senators are 

necessarily absent: the Senator from 

New Hampshire (Ms. AYOTTE), the Senator from South Carolina (Mr. 

DEMINT), the Senator from South Carolina (Mr. GRAHAM), the Senator from Illinois (Mr. KIRK), the Senator from 

Utah (Mr. LEE), the Senator from Arizona (Mr. MCCAIN), and the Senator 

from Alaska (Ms. MURKOWSKI). 

The PRESIDING OFFICER (Mrs. 

HAGAN). Are there any other Senators 

in the Chamber desiring to vote? 

The yeas and nays resulted—yeas 56, 

nays 34, as follows: 

[Rollcall Vote No. 186 Ex.] 

YEAS—56 

Akaka 

Baucus 

Begich 

Bennet 

Bingaman 

Blumenthal 

Boxer 

Brown (MA) 

Brown (OH) 

Cantwell 

Cardin 

Carper 

Casey 

Collins 

Conrad 

Coons 

Durbin 

Feinstein 

Franken 

Gillibrand 

Hagan 

Harkin 

Inouye 

Johnson (SD) 

Kerry 

Klobuchar 

Kohl 

Landrieu 

Lautenberg 

Leahy 

Levin 

Lieberman 

Manchin 

McCaskill 

Menendez 

Merkley 

Mikulski 

Murray 

Nelson (NE) 

Nelson (FL) 

Pryor 

Reed 

Reid 

Rockefeller 

Sanders 

Schumer 

Shaheen 

Snowe 

Stabenow 

Tester 

Udall (CO) 

Udall (NM) 

Warner 

Webb 

Whitehouse 

Wyden 

NAYS—34 

Alexander 

Barrasso 

Blunt 

Boozman 

Burr 

Chambliss 

Coats 

Cochran 

Corker 

Cornyn 

Crapo 

Enzi 

Grassley 

Heller 

Hoeven 

Hutchison 

Isakson 

Johanns 

Johnson (WI) 

Kyl 

Lugar 

McConnell 

Moran 

Paul 

Portman 

Risch 

Roberts 

Rubio 

Sessions 

Shelby 

Thune 

Toomey 

Vitter 

Wicker 

ANSWERED ‘‘PRESENT’’—3 

Coburn Hatch Inhofe 

NOT VOTING—7 

Ayotte 

DeMint 

Graham 

Kirk 

Lee 

McCain 

Murkowski 

The PRESIDING OFFICER. On this 

vote, the yeas are 56, the nays are 34, 3 

Senators responded ‘‘present.’’ Threefifths of the Senators duly chosen and 

sworn not having voted in the affirmative, the motion is rejected. 

Mr. COBURN. We just disallowed one 

of the best candidates for the appellate 

court in my 8 years since I have been in 

the Senate. Magistrate Judge Bob 

Bacharach is a stellar individual rated 

‘‘very highly qualified’’ by the American Bar Association. What has happened is we are in the position today 

because of games that are being played, 

political games. 

Let me just put into the RECORD

what is going on. There are three 

judges ahead of Bob Bacharach in line. 

We have had a Leahy-Thurmond rule 

for some 20 years. I have been quoted 

saying I think it is a stupid rule. But 

the background is that protecting the 

prerogative of the Senate is one of the 

most important things the majority 

leader can do. 

What we have seen happen with the 

lack of agreement this last holiday 

season over the moving forward of 

judges and their approval was the unconstitutional usurpation of power by 

the President of the United States in 

the appointment, during our pro forma 

sessions, of four individuals, one to 

CFPB and three to the NLRB. 

Quite frankly, if we look at what 

Madison wrote in Federalist 51: 

The great security against a gradual concentration of the several powers in the same 

branch of government consists in giving to 

those who administer each branch the necessary constitutional means and personal 

motives to resist encroachment of the others. Ambition must made to counteract ambition. The interest of the man must be connected with the constitutional rights of the 

place. 

So started the saga in January of 

this past year, where the reaction of 

my colleagues on my side of the aisle 

was to shut down, in response to the 

President’s move, all circuit court confirmations. 

I stood in my caucus and fought that. 

I thought it was the wrong action then. 

I still think it would have been the 

wrong action. But I convinced my caucus not to go that direction. To do 

that, I agreed I would consent to the 

Leahy-Thurmond rule in this election 

cycle. But I hope this is the last election cycle we use the Leahy-Thurmond 

rule. 

Because on the other side of the constitutional issues is that a duly elected 

President does have the right to have 

their nominees considered, whether I 

agree with them or not. To prove this, 

that this was a stunt rather than anything other than that, and Bob 

Bacharach becomes the pawn in that, 

is that we had an agreement on judges. 

Then we had cloture filed on fourteen 

district court judges, of which there 

was no real controversy. 

All of those district court judges, 

after that cloture was filed on them 

and then withdrawn, have henceforth 

been approved. To the American public, 

the game is politics and not policy for 

our country. To me, it saddens me. It 

frustrates me that we are at this state 

because it is not a whole lot different 

than what we see in the playground at 

a kindergarten. 

The person who most has spoken in 

favor of the Leahy-Thurmond rule is 

the chairman of the Judiciary Committee. Yet we find this impasse today. 

So what we ought to all do, every 

Member of the Senate and the Judiciary Committee during the break after 

this election, is work together to try to 

resolve this so this does not happen to 

any other President and does not do 

damage to the Senate and the integrity 

of the Senate and the game on judges. 

The President gets elected, with their 

home State Senators, they make a selection. We should not use the filibuster, unless a judge is highly questionable or biased in their viewpoint. 

I regret that we are in this position. 

I think this was just a vote to delay 

Bob Bacharach’s eventual confirmation. If President Obama wins the election, I fully expect Judge Bob 

Bacharach will be approved. If he does 

not win the election, I plan on standing 

and fighting for this judge for this 

same position under a Republican 

President because he is exactly what 

we want on a court, someone who is 

right down the middle in terms of what 

the law means, what the Constitution 

means. He has stellar intellectual capabilities, and he has the qualities we 

all would want, both from the right 

and the left, as a fair decider of the 

facts. That is what we want in judges. 

He will make an ideal appellate judge, 

regardless of his political affiliation. 

If we cannot get there then what that 

says is the partisan politics of today, 

as everybody outside Washington recognizes, is killing our country. 

f 

LEGISLATIVE SESSION 

The PRESIDING OFFICER. Under 

the previous order, the Senate will resume legislative session. 

f 

CYBERSECURITY ACT OF 2012 

The PRESIDING OFFICER. Under 

the previous order, the motion to proceed to S. 3414 is agreed to and the 

clerk will report the measure. 

The assistant legislative clerk read 

as follows: 

A bill (S. 3414) to enhance the security and 

resiliency of the cyber and communications 

infrastructure of the United States. 

The PRESIDING OFFICER. The majority leader. 

Mr. REID. Madam President, I ask 

unanimous consent that there now be a 

period of debate only on S. 3414, and 

that this will go forward until 2:15 p.m. 

on Tuesday, July 31; further, that at 

2:15 p.m. on that date, Tuesday, I be 

recognized. 

The PRESIDING OFFICER. Is there 

objection? 

Mr. COBURN. Madam President, reserving the right to object. 

The PRESIDING OFFICER. The Senator from Oklahoma. 

Mr. COBURN. Just a question 

through the Chair to the majority leader. I had planned to make a statement 

on Judge Bacharach, and the Senator 

is saying we will have debate only. Will 

that preclude a unanimous consent for 

speaking as in morning business? 

Mr. REID. The Senator can do that. 

It is totally appropriate. 

Mr. COBURN. I thank the Senator. 

I have no objection. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

The Senator from New Hampshire. 

Mrs. SHAHEEN. Madam President, if 

the majority leader is finished, I ask 

unanimous consent to speak as in 

morning business. 

The PRESIDING OFFICER. Is there 

objection? 

Without objection, it is so ordered. 

Mr. REID addressed the Chair. 


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