[Congressional Record Volume 154, Number 35 (Monday, March 3, 2008)]
[Senate]
[Pages S1460-S1462]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, I would apologize for the lack of judicial
nominations on the Executive Calendar but for the fact that is has been
the refusal of Republicans to cooperate this year in reporting out
nominations that has lead to the current circumstance. The fact is that
we concluded last session by confirming each and every judicial
nomination that was reported out of
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the Judiciary Committee. None were carried over into this new year. And
despite my efforts in February, when the Judiciary Committee held two
hearings for seven judicial nominees, including a circuit nominee,
Republican members of the Judiciary Committee effectively boycotted our
business meetings in February and obstructed our ability to report
judicial nominations and high-ranking Justice Department nominations. I
adjourned both our February 14 and February 28 meetings for lack of a
quorum. At the first meeting only one Republican Senator was present.
At the latter, the ranking member chose to leave.
Despite the partisan posturing by the President and Senate
Republicans, I have continued to move forward and sought to make
progress but, I must admit, my patience is wearing thin. Two weeks ago,
during the congressional recess, I chaired our third nominations
hearing of the year. Included were three judicial nominations,
including that of Catharina Haynes of Texas to be a circuit judge on
the Fifth Circuit. I knew that this nomination was important to Senator
Cornyn. So in spite of her participation at the recent partisan
political rally and photo op at the White House, I proceeded with that
previously scheduled hearing.
Despite urging the President to work with us, 19 current judicial
vacancies--almost half--have no nominee. In addition, several of the
judicial nominations we have received do not have the support of their
home state Senators. Of the vacancies deemed by the Administrative
Office to be judicial emergencies, the President has yet to send us
nominees for seven of them, more than a third. Of the circuit court
vacancies, nearly a third are without a nominee and more than half of
the current circuit court nominees do not have the support of both home
State Senators.
If this President had worked with the Senators from Michigan, Rhode
Island, Maryland, California, New Jersey, and Virginia, we could be in
position to make more progress. Instead, we have lost precious time to
provocative and controversial nominations like that of Duncan Getchell
and Claude Allen of Virginia. Those nominations were both withdrawn by
the President after months of wasted time and effort. I, again,
encourage the White House to work with Senators Warner and Webb of
Virginia to send us consensus nominees for the two Virginia vacancies
on the Fourth Circuit.
The Getchell nomination is an example of the President's failure to
work with home State Senators to make consensus nominations. President
Bush nominated Duncan Getchell to one of Virginia's Fourth Circuit
vacancies over the objections of Senator Warner and Senator Webb. They
had submitted a list of five recommended nominations, and specifically
warned the White House not to nominate Mr. Getchell. As a result, this
nomination, which was opposed by home state Senators from the start,
was one that could not move.
The Republican complaints about nominations ring hollow in light of
the actual progress we have made. Despite the efforts of the Bush
administration to pack the Federal courts and tilt them sharply to the
right, the Judiciary Committee and the Senate have worked to approve an
overwhelming majority of President Bush's nominations for lifetime
appointments to the Federal bench. We have confirmed over 86 percent of
President Bush's judicial nominations, compared to less than 75 percent
for President Clinton's nominations.
The difference is even more stark when examining nominations to
influential circuit courts, to which nearly three quarters of President
Bush's nominations have been confirmed, compared to just over half of
President Clinton's. That means nearly half of President Clinton's
circuit nominations were not confirmed, many of them pocket
filibustered with anonymous objections, no hearings, and no
consideration. If we stopped now and did not consider another judicial
nominee all year, we would better the record Republicans established
with President Clinton.
We confirmed 40 judicial nominees last year, including six nominees
to the circuit courts. That total was more than were confirmed during
any of the three preceding years under Republican leadership and more
than were confirmed in 1996, 1997, 1999, and 2000, when a Republican-
led Senate was considering President Clinton's nominations. Indeed, in
three years that I have chaired the committee, the Senate has confirmed
140 of President Bush's lifetime appointments to our Federal courts.
That compares favorably to the total of 158 confirmations during the
more than 4 years that Republicans led the committee during this
Presidency. If we stopped now and did not consider another judicial
nominee, we would compare favorably to how Republicans have treated
this President's nominees, and we have already improved upon how they
treated President Clinton's nominees.
If the White House and the Senate Republicans were serious about
filling vacancies and not just seeking to score partisan political
points, the President would not make nominations opposed by home State
Senators of both parties. If they were serious about filling vacancies,
Republicans would not spend the rest of the Bush Presidency fighting
over a handful of controversial nominations rather than work with us to
make progress. If they were serious about filling vacancies,
Republicans on the committee would attend important business meetings
and help us make a quorum to report these nominations to the Senate.
I am surprised that today the ranking member has suggested that
judicial nominations were ``stymied'' when I first became chairman of
the Judiciary Committee under this President in 2001. Indeed, during
those 17 months, the Senate confirmed 100 judicial nominations. That
pace was never duplicated under either of the Republican chairmen that
followed me. During the 2 years under Senator Specter's chairmanship,
the Senate approved 54 confirmations.
I am surprised that the ranking member is suggesting the Senate
bypass the committee's process for considering nominations, and is
apparently calling for an end to the role of home State Senators. When
he was chairman of the Judiciary Committee, Senator Specter respected
the blue slip, which is the means by which home State Senators approve
or disapprove of a nomination before consideration of the nomination
proceeds. When he was chairman, he proceeded with hearings on
nominations that were controversial and were subsequently withdrawn.
That took time away from those nominations on which we might have been
able to make progress together.
Requiring the support of home State Senators is a traditional
mechanism to encourage the White House to engage in meaningful
consultation with the Senate. Many of this President's current nominees
do not have the support of the home State Senators. That is why his
nomination of Duncan Getchell was finally withdrawn. That is why the
nomination of Gene Pratter to the Third Circuit has not been
considered. That is also the current situation for both nominees to the
Third Circuit, the two current nominees to the Sixth Circuit, a nominee
to the Fourth Circuit and the nominee to the First Circuit. Of the 11
circuit court nominations that have been pending before the Senate this
year, 8 have not had the support of home State Senators. Indeed, more
than half of the 28 nominations listed by Senator Specter in his recent
letter to me do not currently have blue slips signaling support from
home State Senators. He knows that. That information is public.
This process was abused when the Republican-controlled Senate pocket-
filibustered President Clinton's nominees with anonymous holds and no
public opposition. One of my first acts when I became chairman in 2001,
with a Democratic-led Senate considering President Bush's nominees, was
to open up the nominations process for the first time, making blue
slips public for the first time. We have drawn open the curtains on the
process. Republicans, during the Clinton administration, cloaked it in
secrecy and, to this day, will not explain their actions. I have not
treated this President's nominees in that way. We have considered
nominations openly and on the record. We have considered nominations I
do not support, something that was never done by a Republican chairman.
Much of the problem remains with this President and his insistence on
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nominating controversial nominees. I extended another olive branch to
him by my letter last November. I have received no response.
I had consulted with the senior Senator from Pennsylvania, and we had
earlier exchanged letters. He knows from my January 22 letter what the
situation is. As a former chairman he knows. He knows the history of
the Thurmond Rule, by which Republicans, then in the minority, insisted
that judicial vacancies in the last year of a President's term remain
vacant in order to be filled with the nominations of the next
President. He understands the dynamics in the last year of a
President's term. And no modern President has been as divisive as this
President on these issues.
The Republican chairman serving during the end of President Clinton's
term noted many times that judicial confirmations slow in a President's
last year. I do not intend to return more than 60 nominations to this
White House without action, or return 17 circuit court nominations
without action. But much depends on the cooperation of the President
and Senate Republicans.
It is hard to consider partisan complaints about the pace of judicial
nominations when those same voices criticize me for holding hearings on
judicial nominations. Damned if I do and damned if I don't. Indeed,
when I went out of my way to hold a hearing for judicial nominations
during the last recess period, I was roundly criticized by Republicans.
It reminded me of the time in 2001 when I previously chaired a recess
hearing for another circuit court nominee of this President and I was
criticized by a Republican Senator for proceeding expeditiously. It
only goes to prove the truth of the saying that around here, when it
comes to judicial nominations, no good deed goes unpunished.
The record is that during the 1996 session, the last of President
Clinton's first term, the Republican-led Senate confirmed not a single
circuit nomination. If we are able to proceed and confirm just one
circuit nominee this year, we will better that record.
Republicans returned 17 circuit nominations to President Clinton
without action at the end of his presidency. The treatment of President
Clinton's nominees contrasted markedly with that accorded by Democrats
to the nominations of Presidents Reagan and Bush in the Presidential
election years of 1988 and 1992, when nine circuit court nominees were
confirmed on average. Regrettably, the Republican Senate reversed that
course in its treatment of President Clinton's circuit court
nominations, confirming none during the 1996 session and an average of
only four in Presidential election years.
The Republican Senate chose to stall consideration of circuit
nominees and maintain vacancies during the Clinton administration. In
those years, Senator Hatch justified the slow progress by pointing to
the judicial vacancy rate. When the vacancy rate stood at 7.2 percent,
Senator Hatch declared that ``there is and has been no judicial vacancy
crisis'' and that this was a ``rather low percentage of vacancies that
shows the judiciary is not suffering from an overwhelming number of
vacancies.'' Because of Republican inaction, the vacancy rate continued
to rise, reaching nearly 10 percent at the end of President Clinton's
term, including 26 circuit vacancies.
By contrast, we have helped cut circuit court vacancies across the
country in half, reducing the number to 13 in 2007. In fact, circuit
court vacancies reached a high water mark of 32 early in President
Bush's first term, with a number of retirements by Republican-appointed
judges. Indeed, the current judicial vacancy rate is around 5 percent.
That is half of what it was at the end of President Clinton's term, and
significantly lower than when Senator Hatch described the vacancy rate
as acceptably low. If we applied Senator Hatch's standard, we would
have no more hearings or consideration of any of the remaining
nominations.
Because of the success of the Republicans at stacking the courts and
their success in preventing votes on nominees, the current situation on
the circuit courts is that more than 60 percent of active judges were
appointed by Republican presidents and more than 35 percent were
appointed by this President. If we did not act on another nominee,
Republican presidents' influence over the circuit courts is already out
of balance.
I would rather see us work with the President on the selection of
nominees that the Senate can proceed to confirm than waste precious
time fighting about controversial nominees. That is why I have urged
the White House to work with Senators Warner and Webb to send to the
Senate without delay nominees to the Virginia vacancies on the Fourth
Circuit. That is why I have urged the White House to work with all
Senators from States with vacancies on the Federal bench. We may still
be able to make progress, but only with the full cooperation of this
President, and Republican Members of this Senate.
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