[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)]
[Senate]
[Pages S4099-S4100]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      JUDICIAL NOMINATIONS AND THE NOMINATION OF MICHAEL SEABRIGHT

  Mr. LEAHY. Mr. President, so far this year the Senate Republican 
leadership has called up one judicial nomination. That is right, 
despite the fact that other nominations are on the Senate Executive 
Calendar and ready to be confirmed, it is the Republican leadership of 
the Senate that is delaying action on judicial nominations.
  When the Senate finally turned to the nomination of Paul Crotty to be 
a U.S. district court judge for the Southern District of New York on 
April 11, that nomination was confirmed 95 to 0. All Democrats present 
voted in favor of confirmation. Indeed, Senator Schumer and Senator 
Clinton came to the floor to speak in favor of the nominee. That is the 
only judicial nomination Senate Republicans have been willing to 
consider all year. There has been no filibuster of judicial nominees. 
Instead, it is the Senate Republican leadership that, through its 
deliberate inaction, is keeping judgeships unnecessarily vacant for 
months. With the Crotty nomination, I was the one asking for months for 
the nomination to be considered, debated, voted on and confirmed.
  At the time, I noted that another noncontroversial nomination was 
ready for Senate action. More than a week ago, I called upon the 
Republican leadership to proceed to the confirmation of Michael 
Seabright to the District Court of Hawaii. I renew that plea.
  All Democrats on the Judiciary Committee have been prepared to vote 
favorably on this nomination for some time. We were prepared to report 
the nomination last year but it was not listed by the then-chairman on 
a committee agenda. I thank Chairman Specter for including Mr. 
Seabright at our meeting on March 17. The nomination was unanimously 
reported and has been on the Senate Executive Calendar for more than a 
month. It is Senate Republicans who are resisting a vote on this 
judicial nominee, not Democrats. I understand that Mr. Seabright has 
the support of both of his home State Senators, both distinguished and 
highly respected Democratic Senators.
  Once confirmed, Mr. Seabright will be the 206th of 216 nominees 
brought before the full Senate for a vote to be confirmed. That means 
that 830 of the 875 authorized judgeships in the Federal judiciary, or 
95 percent, will be filled. As late as it is in the year, we would 
still be back on pace with that set by the Republican majority in 1999, 
when President Clinton was in the White House. That year, the Senate 
Republican leadership did not allow the Senate to consider the first 
judicial nominee until April 15. Two judges were confirmed in April and 
the third was not confirmed until June.
  Of the 46 judicial vacancies now existing, President Bush has not 
even sent nominees for 28 of those vacancies, more than half. I have 
been encouraging the Bush administration to work with Senators to 
identify qualified and consensus judicial nominees and do so, again, 
today. The Democratic leader and I sent the President a letter in this 
regard on April 5, but have received no response.
  It is now the third week in April, we are more than one-quarter 
through the year and so far the President has sent only one new nominee 
for a Federal court vacancy all year--only one. Instead of sending back 
divisive nominees, would it not be better for the country, the courts, 
the American people, the Senate and the administration if the White 
House would work with us to identify, and for the President to 
nominate, more consensus nominees like Michael Seabright who can be 
confirmed quickly with strong, bipartisan votes?
  I commend the Senators from Hawaii for their efforts to work 
cooperatively to fill judicial vacancies. I only wish Republicans had 
treated President Clinton's nominees to vacancies in Hawaii with 
similar courtesy. Had they, there would not have been the vacancies on 
the Ninth Circuit and on the district court. The work of the Senators 
from Hawaii is indicative of the type of bipartisan efforts Senate 
Democrats have made with this President and remain willing to make. We 
can work together to fill judicial vacancies with qualified, consensus 
nominees. The vast majority of the more than 200 judges confirmed 
during the last 3\1/2\ years were confirmed with bipartisan support.
  The truth is that in President Bush's first term, the 204 judges 
confirmed were more than were confirmed in either of President 
Clinton's two terms, more than during the term of this President's 
father, and more than in Ronald Reagan's first term when he was being 
assisted by a Republican majority in the Senate. By last December, we 
had reduced judicial vacancies from the 110 vacancies I inherited in 
the summer of 2001 to the lowest level, lowest rate and lowest number 
in decades, since Ronald Reagan was in office.
  The Hawaii judgeship at issue here has been vacant for more than 4 
years, since December of 2000 when Judge Alan Kay took senior status. 
President Clinton made a nomination to that seat in advance of the 
vacancy, but the Republicans in control of the Senate refused to act on 
it. They preserved the vacancy for a Republican President.
  In 2002, President Bush nominated James Rohlfing to the vacancy. That 
nomination failed, however, because in the view of his home State 
Senators and the American Bar Association, he was not qualified for the 
position. It took the White House more than two additional years to 
agree. Finally, in May 2004 that nomination was withdrawn by President 
Bush.
  The administration finally got it right after consultation with the 
Hawaii Senators. The President sent Michael Seabright's name to the 
Senate last September. An outstanding attorney who has experience in 
private practice as well as a sterling reputation as an assistant U.S. 
attorney, Mr. Seabright merited consideration and swift confirmation. 
Despite his reputation as a law-and-order Republican, Republicans would 
not move on Mr. Seabright's nomination last Congress. The President 
took his time renominating Mr. Seabright and even then it took repeated 
requests to get his nomination included on the agenda of the committee. 
When he was considered on March 17 he was reported with unanimous 
support. Senate Democrats have long supported and requested action on 
this nomination.

  I have been urging this President and Senate Republicans for years to 
work with all Senators and engage in genuine, bipartisan consultation. 
That process leads to the nomination, confirmation and appointment of 
consensus nominees with reputations for fairness. The Seabright 
nomination, the bipartisan support of his home State Senators, and the 
committee's action by a unaimous, bipartisan vote is a perfect example 
of what I have been urging.
  I have noted that there are currently 28 judicial vacancies for which 
the President has delayed sending a nominee. In fact, he has sent the 
Senate

[[Page S4100]]

only one new judicial nominee all year. I wish he would work with all 
Senators to fill those remaining vacancies rather than through his 
inaction and unnecessarily confrontational approach manufacture 
longstanding vacancies. It is as if the President and his most partisan 
supporters want to create a crisis.
  Over the last weeks we have heard some extremists call for mass 
impeachments of judges, court-stripping and punishing judges by 
reducing court budgets. Now we are seeing an effort at religious 
McCarthyism by which Republican partisans inject religion into these 
matters. Rather than promote crisis and confrontation, I urge this 
President to disavow the divisive campaign and do what most others have 
and work with us to identify outstanding consensus nominees. It ill 
serves the country, the courts and most importantly the American people 
for this administration and the Senate Republican leadership to 
continue down the road to conflict.
  The Seabright nomination shows how unnecessary that conflict really 
is. Let us join together to debate and confirm these consensus nominees 
to these important lifetime posts on the federal judiciary.
  It is the Federal judiciary that is called upon to rein in the 
political branches when their actions contravene the Constitution's 
limits on governmental authority and restrict individual rights. It is 
the Federal judiciary that has stood up to the overreaching of this 
administration in the aftermath of the September 11 attacks.
  It is more and more the Federal judiciary that is being called upon 
to protect Americans' rights and liberties, our environment and to 
uphold the rule of law as the political branches under the control of 
one party have overreached. Federal judges should protect the rights of 
all Americans, not be selected to advance a partisan or personal 
agenda. Once the judiciary is filled with partisans beholden to the 
administration and willing to reinterpret the Constitution in line with 
the administration's demands, who will be left to protect American 
values and the rights of the American people?
  The Constitution establishes the Senate as a check and a balance on 
the choices of a powerful President who might seek to make the Federal 
judiciary an extension of his administration or a wholly owned 
subsidiary of any political party. Today, Republicans are threatening 
to take away one of the few remaining checks on the power of the 
executive branch by their use of what has become known as the nuclear 
option. This assault on our tradition of checks and balances and on the 
protection of minority rights in the Senate and in our democracy should 
be abandoned. Eliminating the filibuster by the nuclear option would 
destroy the Constitution's design of the Senate as an effective check 
on the Executive. The elimination of the filibuster would reduce any 
incentive for a President to consult with home State Senators or seek 
the advice of the Senate on lifetime appointments to the Federal 
judiciary. It is a leap not only toward one-party rule but to an 
unchecked Executive.
  Rather than blowing up the Senate, let us honor the constitutional 
design of our system of checks and balances and work together to fill 
judicial vacancies with consensus nominees. The nuclear option is 
unnecessary. What is needed is a return to consultation and for the 
White House to recognize and respect the role of the Senate 
appointments process.
  The American people have begun to see this threatened partisan power 
grab for what it is and to realize that the threat and the potential 
harm are aimed at our democracy, at an independent and strong Federal 
judiciary and, ultimately, at their rights and freedoms.

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