[Congressional Record Volume 153, Number 1 (Thursday, January 4, 2007)]
[Senate]
[Pages S27-S28]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. SPECTER. Madam President, finally, a brief comment on judicial
nominations. During the course of the 109th Congress, the Senate
confirmed two Supreme Court Justices, Chief Justice Roberts and Justice
Alito, 16 Court of Appeals judges, 35 District Court judges, and 1
Court of International Trade judge. At the close of the 109th Congress,
there were 13 District Court nominees on the Executive Calendar, but
were held up on a technicality.
I am pleased to say that Senator Leahy advised me earlier today he is
going to put those 13 nominees on the first executive session of the
Judiciary Committee next week, so they will be confirmed. There was no
objection raised to them in the last Congress, except they were tied up
on a concern raised by one Senator about a nominee for the Western
District of Michigan.
In the last Congress, we were also able to confirm a number of
judges--circuit judges, who have been held up for a long period of
time: Priscilla Owen, pending since 2001; Janice Rogers Brown, pending
since 2003; William Pryor, pending since 2003; Brett Kavanaugh, pending
since 2003.
I ask unanimous consent that my full statement be printed in the
Record at the conclusion of these extemporaneous remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Judicial Nominations
Mr. SPECTER. Madam President, I seek recognition today, to
discuss one of this body's most important responsibilities;
namely, our responsibility to provide advice and consent on
the President's judicial nominations.
At the outset, I would like to take a few moments to remind
my colleagues of the Judiciary Committee's success during the
last Congress in moving the President's judicial nominees
through the confirmation process in a timely manner.
During the last Congress, the Senate confirmed 54 Article
III judges, including the Chief Justice of the United States,
an Associate Justice of the Supreme Court, 16 Court of
Appeals judges, 35 District Court judges, and one Court of
International Trade judge. The Senate could have, and I
believe should have, confirmed 13 more District Court
nominees before the conclusion of the last Congress. All of
these qualified men and women were favorably reported by the
Judiciary Committee without a single dissenting vote. Many of
them are nominated to vacancies that have been deemed
judicial emergencies. I hope we can promptly move to confirm
all of these men and women in the new Congress. Failure to do
so will continue to delay justice in courts from Pennsylvania
to California. I have asked my friend and new Judiciary
Committee Chairman Senator Leahy to place these nominees on
our Committee's very first executive business meeting. I am
happy to report that he has agreed to do so.
I remind my colleagues that at the beginning of the last
Congress judicial confirmations, particularly to the Circuit
Courts, were at a virtual standstill with many nominees
subject to filibusters. Much of the debate in this chamber
during the first months of the 109th Congress involved
whether or not to invoke the so-called ``Constitutional
Option,'' whereby the rules of the Senate would be altered to
allow for a vote on Circuit Court nominees. Thankfully, the
Senate managed to avert a major showdown over this debate and
instead confirmed highly qualified nominees to the Courts of
Appeals, several of whom had been pending for many years.
These included Priscilla Owen (pending since 2001); Janice
Rogers Brown (pending since 2003); Bill Pryor (pending since
2003); and Brett Kavanaugh (pending since 2003).
So in the last Congress we managed to move to a vote on
many long languishing nominees. We also moved expeditiously
on new.nominations. It was my practice as Chairman to
schedule a prompt hearing on every judicial nomination as
soon as all necessary materials were received and the nominee
was prepared to move forward. Once given a hearing, every
nominee was placed promptly on the Committee's agenda for
consideration. I believe our practice, while avoiding
unnecessary delay, also ensured that each nomination was
thoroughly vetted so that the Senate had the information it
needed to come to a vote.
In short, the Judiciary Committee and the Senate, by
following regular order, carried out our Constitutional
responsibilities. As a result, the federal court vacancy rate
fell to as low as 4.8% during my tenure as Chairman. This is
among the lowest vacancy rates in the last 20 years.
Unfortunately, in part because of our failure to confirm the
13 district court nominees late in the last Congress, the
vacancy rates have increased during the fall and winter.
I cite this recent history and these statistics as examples
of what can be done in this body when we work hard and put
fairness ahead of partisanship. I committed myself to this
principle as Chairman of the Judiciary Committee and I am
hopeful we can continue to work in this vein during the 110th
Congress under the Chairmanship of Senator Leahy. Working
together, I believe we can avoid some of the acrimony that
has poisoned the nominations process in recent years.
In fact, I want to give Senator Leahy a good bit of credit.
He worked cooperatively with us to ensure that nominees were
moved during the 109th Congress. There were times when our
friends across the aisle could stymie our efforts to process
nominees, but Senator Leahy worked with me to enable the
Senate to carry out its constitutional responsibilities.
That is why I am troubled by recent suggestions that it is
appropriate to dramatically slow the confirmation process
during the last two years of a president's term. Our
Constitutional duties remain, despite the fact that we are
now beginning a Presidential election cycle. Past Congresses
have been very productive on judicial nominations during
Presidential elections cycles and we should be as well.
The record shows that the Senate has confirmed numerous
nominees during the last two years of every modern
president's term in office. For example, in the last two
years of the Carter Administration, the Senate confirmed 44
Circuit Court nominees and 154 District Court nominees.
During the last two years of the Reagan Administration, the
Senate confirmed 17 Circuit Court nominees and 66 District
Court nominees.
During the last two years of the George H.W. Bush
Administration, the Senate confirmed 20 Circuit Court
nominees and 100 District Court nominees.
During the last two years of the Clinton Administration,
the Senate confirmed 15 Circuit Court nominees and 57
District Court nominees.
In many of these cases the Senate was controlled, sometimes
by a substantial margin, by a different party than that which
controlled the White House. I see no reason why this Senate
should not be at least as productive as the Republican
controlled Senate which confirmed 15 Circuit Court nominees
during President Clinton's final two years in office.
I would also like to address what has been called the
``Thurmond Rule.'' Some have suggested that this so-called
rule holds that the Senate should dramatically curtail
confirmations after the spring of a presidential election
year. Review of the historical record suggests that this rule
is more myth than reality.
It does not appear that Senator Thurmond, for whom the
purported rule is named, ever publicly asserted that
nominations should be delayed due to an impending
presidential election. The only comment that could be so
construed was made after the Committee approved ten nominees
at a September 17, 1980 markup. He stated, ``[L]et me make
the point [that] the Minority has tried to be more than fair
in considering all of the nominees that have appeared before
this Committee. I would remind [the Committee] it is just
about six weeks before the election, and I want to say that
for a year and a half before the last election, there was no
action taken on judges when we had a Republican President.''
However, because Senator Thurmond used this as a point of
contrast, the natural implication seems to be that he
considered blocking nominations in the lead up to an election
unfair.
The fact of the matter is that the Senate has regularly
confirmed judges in presidential election years. In the
election year of 1980, when it is asserted Senator Thurmond
inaugurated the so-called rule, the Senate confirmed ten
Circuit Court nominees and 53 District Court nominees.
Several of the Circuit Court nominations were high profile
[[Page S28]]
nominees with well-known credentials. Many of these nominees
were confirmed relatively late in the year.
Between June 1 and September 1, 1980, the Senate confirmed
four Circuit Court nominees and 15 District Court nominees,
including then-ACLU General Counsel Ruth Bader Ginsburg, who
was confirmed June 18, 1980.
After September 1, 1980, the Senate confirmed two more
Circuit Court nominees and eleven District Court nominees.
The first Circuit Court nominee, Stephen Reinhardt of the
Ninth Circuit, who is now thought to be one of nation's most
liberal jurists, was confirmed on September 11, 1980.
More remarkable is the second Circuit Court nominee, that
of Stephen Breyer to the First Circuit. Justice Breyer was
then Senator Kennedy's Chief Counsel. He was nominated by
President Carter on November 13, 1980, after Carter had lost
the election to Ronald Reagan. The Senate, which was also
about to switch party control, held a swift confirmation
hearing and voted to confirm Breyer on December 9, 1980.
The presidential election year of 1980 was not an
aberration, the pattern continued in subsequent election
years. In 1988, President Reagan's last year in office, the
Senate confirmed seven Circuit Court nominees and 33 District
Court nominees. In 1992, President George H.W. Bush's last
year in office, the Senate confirmed eleven Circuit Court
nominees and 53 District Court nominees. In 2000, President
Clinton's last year in office, the Senate confirmed eight
Circuit Court nominees and 31 District Court nominees.
Furthermore, many of these presidential election year
confirmations occurred late in the year. Since 1980, 110
judges were confirmed after July 1st of a presidential
election year, 17 of those were confirmed to Circuit Courts.
In the same period, 63 judges were confirmed after September
1st of presidential elections years, twelve of those to
Circuit Courts. In short, there does not appear to be any
historical basis for the so-called ``Thurmond Rule.'' The
Senate has confirmed numerous nominees during presidential
election years, and I expect that with Senator Leahy and I
working together, we will do so again next year.
In fact, I think it's time to move beyond some of the more
acrimonious judicial battles of the past. I think the country
is served best when the Senate fulfills its constitutional
duty and votes on the President's nominees.
I have called on the White House to consult with Senator
Leahy and Leader Reid during the nomination process. I have
also worked to ensure that judicial nominees are afforded
prompt consideration and fair treatment by the Judiciary
Committee. I plan to continue to do that as the Ranking
Member and am confident that under Senator Leahy's
leadership, our Committee will fairly and expeditiously
consider judicial nominees.
Aside from the responsibility the Senate has to vote up or
down on the President's nominees, we cannot forget that these
people, who have agreed to undertake important government
service, have family considerations and professional lives
that are often adversely impacted when their careers are out
on hold because of a pending nomination. We should never
forget that these nominees, whether a Member decides
ultimately to support them or not, are deserving of our
thanks for their willingness to undergo this process and to
offer their services to the American people. They deserve
fair treatment by this body.
I trust that during the 110th Congress the Senate will work
productively to ensure that nominees are treated fairly and
that judicial vacancies are filled as soon as possible. I
look forward to working with the White House and with
Chairman Leahy to that end.
I yield the floor.
Mr. SPECTER. Madam President, in the absence of any other Senator on
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. LEAHY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, what is the parliamentary situation?
The PRESIDING OFFICER. The Senate is in morning business, with
Senators permitted to speak therein for up to 10 minutes.
The Senator from Vermont is recognized.
Mr. LEAHY. I thank the Chair.
(The remarks of Mr. Leahy are printed in today's Record under
``Morning Business.'')
Mr. LEAHY. Madam President, I realize I have gone over the
appropriate time, and I appreciate the Chair not calling me on it.
I yield the floor, and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Lincoln). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KYL. Madam President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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