Executive Session

Floor Speech

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Mr. LEAHY. Madam President, today, we are voting on the nominations of Debra Brown and Gregory Woods to fill vacancies on the District Courts of Mississippi and New York. If confirmed, Ms. Brown would be the first African-American woman to serve as a Federal judge in Mississippi. I am proud that together we will reach a landmark moment in diversity on the Federal bench, and I commend President Obama, Senator Wicker, and Senator Cochran for their important efforts.

These nominations come at a trying time for the Federal courts. We have more than 90 judicial vacancies, and 37 of these vacancies have been designated as emergency vacancies due to high caseloads by the nonpartisan Administrative Office of the U.S. Courts. While it is a sign of progress that we will vote to confirm two additional judges today, it is essential that the Senate move faster to confirm those judges that the Federal judiciary so urgently needs.

Last week, when debating whether we would be allowed to have an up-or-down vote on the nomination of Patricia Millett to the DC Circuit, there was a lot of talk by Senate Republicans that Senate Democrats should be concerned with filling judicial emergency vacancies rather than the DC Circuit, which they claim does not need more judges. We all know that their arguments about the DC Circuit have nothing to do with caseload and everything to do with the political party of the President nominating. As one of only three members of my caucus who have served in the Senate since the 1970s, and having served both in the majority and the minority, I have cautioned against changing the rules. However, if the filibuster rules continue to be abused by my Republican colleagues I will have no option but to reconsider my longstanding opposition to such a change.

I also find the Senate Republicans' newfound concern about judicial emergency vacancies particularly rich with irony given their role in preventing this President from filling many of those vacancies. In fact, nearly half of the emergency vacancies are empty because of Republican obstruction. First, there are 15 judicial nominees pending before the full Senate, including 7 nominees who would fill judicial emergency vacancies if the Republicans would allow us to vote on them today: Elizabeth A. Wolford, to be U.S. district judge for the Western District of New York; Brian Morris, to be U.S. district judge for the District of Montana; Susan P. Watters, to be U.S. district judge for the District of Montana; Brian J. Davis, to be U.S. district judge for the Middle District of Florida; James Donato, to be U.S. district judge for the Northern District of California; Beth Labson Freeman, to be U.S. district judge for the Northern District of California; and Pedro A. Delgado Hernandez, to be U.S. district judge for the District of Puerto Rico. Instead, Republicans continue to force many of these nominees to wait needlessly on the Senate floor.

Moreover, Republicans are obstructing nominees from filling these judicial emergency vacancies in other ways that the public is less aware. Much of these delay tactics occur earlier in the process, and include the refusal to return blue slips and the refusal to provide recommendations to the President for district court nominees from their State that they would be willing to support. In fact, there are judicial emergency vacancies that have persisted for years because certain Republican Senators refuse to either return their blue slip or provide a recommendation to the President. So I take these hollow accusations about focusing on judicial emergency vacancies from Senate Republicans with a grain of salt. This is advice I will heed once Senate Republicans demonstrate through their actions that they care about filling vacancies.

It is good news for New York and Mississippi that the Senate will vote today to confirm two excellent nominees. Yet I believe that the Senate should have acted sooner on these nominations. These nominees are uncontroversial and have remained on the Senate floor for far too long. The unnecessary and irresponsible government shutdown did serious harm to our Federal courts, which was already operating on fumes as a result of sequestration and the high levels of judicial vacancies.

Gregory Woods is nominated to a vacancy on the U.S. District Court for the Southern District of New York. Since 2012, Mr. Woods has served as the general counsel for the U.S. Department of Energy. He previously served for 3 years as deputy general counsel at the Department of Transportation, and in private practice for 11 years at Debevoise & Plimpton LLP, first as an associate, and later as a partner. Following law school, he worked for 4 years as a trial attorney in the Commercial Litigation Branch of the Civil Division at the Department of Justice. Mr. Woods earned his B.A., with honors, from Williams College and his J.D. from Yale Law School. He has the support of both of his home State Senators, Senator Schumer and Senator Gillibrand. The Judiciary Committee approved his nomination by voice vote more than 3 months ago.

Debra Brown is nominated to a vacancy on the U.S. District Court for the Northern District of Mississippi. Since 2012, Debra Brown has been a shareholder in the law firm Wise Carter Child & Caraway. She previously worked at the law firm Phelps Dunbar LLP for over 15 years, first as an associate, then as a partner, and finally as a counsel. While earning a reputation as an excellent litigator, she stayed involved in her community, providing pro bono legal services through the Mississippi Volunteer Lawyers Project and serving on the Board of Directors for the Mississippi Center for Justice. Ms. Brown earned her B.A. from Mississippi State University, and her J.D. from the University of Mississippi School of Law. Her nomination has the support of both her home State Senators, Senator Wicker and Senator Cochran. The Judiciary Committee approved her nomination by voice vote more than 3 months ago.

To me, the path forward is simple. Nominees such as the ones being voted on today and the other uncontroversial, qualified nominees currently pending before the full Senate should be confirmed immediately so that they can get to work for the American people. Now that this shutdown has ended, we must work together to make sure that our Federal judiciary, a coequal and independent branch of government, has the resources it needs to be working at full strength and with a full complement of judges. Only then will we have a judicial system worthy of the American people.

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Mr. LEAHY. Madam President, I won't go on so much on the numbers, but I did hear my friend say there is a question whether President Obama has been treated differently than President Bush. I would note that when President Bush nominated John Roberts for the ninth seat to the DC Circuit, he was confirmed by every single Republican and Democrat voting for him.

Patricia Millett, with exactly the same credentials as he for the Ninth seat, was filibustered by the Republicans. Were they treated differently? Yes. That happened last week, so it is fresh in our memories. But I wish to talk about a different issue.

Today, Senators are finally going to have a chance to cast their vote and put on the record where every Senator stands on the fundamental issue of fairness. The Employment Non-Discrimination Act will help bring this great Nation one step closer to the goal of equal rights for all Americans.

I have long believed that American workers should be evaluated based on how they perform, not on irrelevant considerations such as gender, race, gender identity, or sexual orientation, but on how they do the job. If they do the job, they ought to be praised for it. In these difficult economic times, ensuring equal protection in the workplace is even more critical. We have to do better. We shouldn't question if people should be treated the same in the workplace, but that is what has happened in parts of this country. Maintaining the status quo would keep in place a system that supports a second class of workers in a majority of States. This runs counter to the values on which America was founded. It has to end.

The Employment Non-Discrimination Act would prohibit workplace discrimination and make it illegal to fire, refuse to hire, or refuse to promote employees simply based on an individual's sexual orientation or gender identity. Currently, Federal law protects against employment discrimination on the basis of race, gender, religion, national origin, or disability--as it should. But it doesn't stop discrimination based on sexual orientation or gender identity. It is long overdue for Congress to extend these protections to all American workers.

I am a native of Vermont. I am proud to represent the State of Vermont, as I have for almost four decades, in this body. One reason I am proud to represent Vermont is our State has led the country on so many civil rights issues. Vermonters believe in individual rights, in fairness, and in equality. More than two decades ago, our State of Vermont added sexual orientation to the list of protected categories in its antidiscrimination employment law, and Vermont expanded its protections to include gender identity protection 6 years ago. Yet in 29 States, an employer can fire employees based on their sexual orientation, and in 33 States, they can be fired based on their gender identity. This is not right. I might also point out, Vermont has one of the lowest unemployment rates of any State in the country.

Many employers have taken this issue into their own hands, making up for Congress's inaction by implementing important antidiscrimination policies. As of April of this year, 88 percent of the Fortune 500 companies had nondiscrimination policies that included sexual orientation, and 57 percent had policies including gender identity.

I wish to mention two Vermont companies in particular, Fletcher Allen Health Care and Green Mountain Coffee Roasters, for showing real leadership on this issue; they banned discrimination in the workplace based on gender identity and sexual orientation.

I also applaud companies such as IBM, Microsoft, General Electric, and Time Warner for doing the right thing. Two of these companies have a major presence in Vermont. These corporations know that treating all their employees equally is not only fair--it also makes good business sense. They know that. It is time that we in Congress know that too.

Workplace discrimination hurts families, and the hatred that drives discrimination has no place in a nation continually striving to form a more perfect union. So I thank Chairman Harkin for making this bipartisan legislation a priority in his committee, and for conducting the groundwork in creating the record we need to ensure this important bill's passage. The bipartisan team of Senator Merkley and Senator Collins brought together Members by their thoughtfulness and tenacity.

A dear friend of mine used to sit in the back, and was in the Senate when I came here. I learned so much from him. I am speaking of Ted Kennedy. I have to think he is looking down on this Chamber tonight as we try to pass legislation he worked so hard to craft in his final years in the Senate. I was happy to work on this civil rights legislation with him then and with his partner on this effort, a former Vermont Senator, Jim Jeffords. We honor their leadership tonight with this vote.

I am encouraged States and employers are moving forward where we have not. But I believe ending discrimination must also be a priority for Congress. I look at the distinguished Presiding Officer, and I think of her predecessor--another dear friend of mine for nearly four decades--and the discrimination he faced when he came out of the service, having lost an arm, and having received the Medal of Honor for this country, and was still told in some places in America that he couldn't walk into their establishment. I am sure each of us can think of times of discrimination of all sorts.

Let's pass legislation that bans all discrimination in the workplace, whatever it is. Until we do that, we will fail to achieve the motto engraved in Vermont marble above the Supreme Court building that declares ``Equal Justice Under Law.'' Let's make sure all Americans have the equal rights they deserve.

I urge my fellow Senators to come together and support this important bipartisan bill without delay, and the other body to have the courage to stand up for America--standing up for all Americans, every single American--and vote for this legislation.

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

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