[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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