[Congressional Record Volume 154, Number 50 (Tuesday, April 1, 2008)]
[Senate]
[Pages S2285-S2286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, as I listened yesterday to the partisan 
rhetoric we continue to hear from Senate Republicans on nominations, I 
am disappointed that the Republican leader is ignoring the majority 
leader's statement from last May 10.
  Today is April Fools' Day. I do not think the American people are 
fooled or amused by continued partisan bickering over nominations. 
Indeed, with a massive subprime mortgage crisis that has left so many 
Americans in dire straights, fearful of losing their homes, the 
Republican efforts to create an issue over judicial nominees is 
misplaced. In fact, I have been working hard to make progress and have 
treated this President's nominees more fairly than Republicans treated 
those of President Clinton. Judicial nominations are not the most 
pressing problem facing the country. Indeed, we have worked hard to 
lower vacancies to the lowest levels in decades. We have cut circuit 
vacancies in half.
  It should be no surprise that the administration would rather focus 
on having a partisan political fight than the news that, in February, 
the United States lost 63,000 jobs. To make up for those and other job 
losses in recent months thanks to this President's policies, this 
country would need to create 200,000 jobs every month. This 
administration is apparently more worried about the jobs of a handful 
of controversial nominees, many without the necessary support of their 
home State senators, than the loss of jobs by thousands of American 
workers.
  Unemployment is up over 20 percent, the price of gas has more than 
doubled and is now at a record high average of over $3.20, trillions of 
dollars in budget surplus have been turned into trillions of dollars of 
debt with an annual budget deficit of hundreds of millions of dollars, 
and the trade deficit has nearly doubled to almost $1 trillion. Indeed, 
just to pay down the interest on the national debt and the massive 
costs generated by the disastrous war in Iraq--the fifth anniversary of 
which we tragically marked 2 weeks ago--costs more than $1 billion a 
day. That is $365 billion each year that would be better spent on 
priorities like health care for all Americans, better schools, and 
fighting crime and treating diseases at home and abroad.
  Perhaps the only thing that has gone down during the Bush Presidency 
is judicial vacancies. After the Republican Senate chose to stall 
consideration of circuit nominees and maintain vacancies during the 
Clinton administration in anticipation of a Republican Presidency, 
judicial vacancies rose to over 100. Circuit vacancies doubled during 
the Clinton years. Since I became Judiciary chairman in 2001, we have 
worked to cut those vacancies in half.
  In the Clinton 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. The number of circuit court vacancies rose 
to 32 with retirements of Republican appointed circuit judges 
immediately after President Bush took office.

  Then, as soon as a Republican President was elected they sought to 
turn the tables and take full advantage of the vacancies they prevented 
from being filled during the Clinton Presidency. They have been 
extraordinarily successful over the past dozen years. Currently, more 
than 60 percent of active judges on the Federal circuit courts were 
appointed by Republican Presidents, and more than 35 percent have been 
appointed by this President. The Senate has already confirmed three-
quarters of this President's circuit court nominees, compared to only 
half of President Clinton's.
  I was here in 1999 when the Republican chairman of the Judiciary 
Committee would not hold a hearing for a single judicial nominee until 
June. In contrast, we have scheduled 3 hearings on 11 nominees so far 
this year. We have a circuit nominee from Texas listed on the Judiciary 
Committee agenda this week. I wrote to the President during the last 
recess commending him for nominating someone for a Virginia vacancy to 
the Fourth Circuit who is supported by Senator Warner and Senator Webb, 
a Republican and a Democrat, and indicated that I would use my best 
efforts to proceed to that nomination as soon as the paperwork is 
submitted. I will ask that a copy of that letter be printed in the 
Record at the end of my statement. In that letter, I also informed the 
President that an anonymous Republican hold had prevented Senate 
confirmation of the President's nominees to be the Associate Attorney 
General, the No. 3 position at DOJ, and the Assistant Attorney General 
for the Civil Division.
  Since the resignations of the entire top leadership at the Department 
of Justice last year in the wake of the scandals of the Gonzales era, I 
have made restoring the leadership ranks at the Department a priority. 
Since September, the committee has held seven hearings on executive 
nominations, including a 2-day hearing for the Attorney General. The 
Attorney General and the new Deputy Attorney General have been 
confirmed. But for Republican delays in refusing to cooperate and make 
a quorum in February, and now the anonymous hold, the Senate would have 
confirmed two more high-level DOJ nominees.
  The partisan rhetoric on nominations rings especially hollow in light 
of the progress we have made. Last year, the Senate confirmed 40 
judges, including 6 circuit judges. The 40 confirmations were more than 
during any of the 3 preceding years with Republicans in charge. The 
Senate has now confirmed 140 judges in the almost 3 years it has been 
run by Democrats and only 158 judges in the more than 4 years it was 
run by Republicans.
  We continue to make progress. Four district court nominations are 
pending on the Senate's Executive Calendar. I have mentioned the 
nomination to the Fifth Circuit that is pending on the Judiciary 
Committee's agenda this week. I have already announced and noticed 
another hearing this Thursday for four more judicial nominees, two from 
Virginia and two from Missouri, and for the nominee to be the Assistant 
Attorney General for the Office of Legal Policy. This will be the 
Judiciary Committee's fifth confirmation hearing this year.
  With respect to the recent nomination of Steven Agee to a Virginia 
seat in the Fourth Circuit, it is regrettable that Justice Agee's 
nomination only comes after months of delay when the White House 
insisted on sending to the Senate the nomination of Duncan Getchell. 
That nomination did not have the support of either of the Virginia 
Senators and was withdrawn after the Virginia Senators objected 
publicly. In fact, the delay in filling that vacancy has lasted years 
because this President insisted on sending forward highly controversial 
nominations like William Haynes, Claude Allen, and Duncan Getchell.
  In my letter to the President, I wrote that I expect the Judiciary 
Committee and the Senate to proceed promptly to consider and confirm 
Justice Agee's nomination with the support of Senator Warner and 
Senator Webb, just as we proceeded last year to confirm the nomination 
of Judge Randy Smith to the Ninth Circuit, once the President had 
withdrawn his nomination for a California seat and resubmitted it for a 
vacancy from Idaho. I urged the President to use the Agee nomination as 
a model for working with home State senators and Senators from both 
sides of the aisle. Time is running short.
  Senate Democrats should not and have not acted the way Republicans 
did by pocket filibustering more than 60 of

[[Page S2286]]

President Clinton's nominees. 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 
who he selects in order to score political points. I would also rather 
see the Senate focus on addressing the real priorities of the country 
rather than catering only to an extreme wing of the Republican base 
with controversial nominees.
  Mr. President, I ask unanimous consent that the letter to which I 
referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                   Washington, DC, March 20, 2008.
     Hon. George W. Bush,
     The White House,
     Washington, DC.
       Dear Mr. President: I write again, as I did last November, 
     to demonstrate my willingness to work constructively with you 
     in accordance with the Senate's important role in the 
     consideration of your nominees to high-ranking positions in 
     the executive branch and to lifetime appointments on our 
     Federal courts.
       Since last September, the Senate Judiciary Committee has 
     been hard at work seeking to help restore the Department of 
     Justice. The leadership ranks at the Department of Justice 
     were decimated by the scandals of the Gonzales era. The 
     Judiciary Committee's hearing last week was the seventh 
     hearing we have held since September on executive 
     nominations. The Senate has proceeded to confirm a new 
     Attorney General, a new Deputy Attorney General, and numerous 
     other nominations to fill high-ranking positions at the 
     Justice Department.
       I regret to inform you that we were stalled last week in 
     our efforts to fill two other critical positions at the 
     Department, when an anonymous Republican hold blocked 
     confirmation of Kevin O'Connor to be the Associate Attorney 
     General, and Gregory Katsas to be the Assistant Attorney 
     General in charge of the Civil Division. I was particularly 
     disappointed with this unexpected development. We had worked 
     hard to expedite these nominations, holding a hearing on the 
     first day of this session of Congress. After a nearly month-
     long delay, when Republican Members of the Judiciary 
     Committee effectively boycotted our business meetings in 
     February, we were able to report these nominations to the 
     Senate in early March. They were set for confirmation before 
     the Easter recess, until the last-minute Republican objection 
     stalled them. They join your nomination of Michael Sullivan 
     to be the Director of the Bureau of Alcohol, Tobacco, 
     Firearms and Explosives as among those stymied by Republican 
     objections. I trust at any future White House event on the 
     status of nominations you will point out that several of your 
     high-level executive nominations are being stalled by 
     Republican objections.
       With respect to judicial nominations, I want to commend you 
     for working with Senators Warner and Webb to identify a 
     nominee from those they recommended to you to fill a Virginia 
     Fourth Circuit vacancy.
       Your previous nominations from Virginia, William Haynes, 
     Claude Allen and Duncan Getchell, were controversial and did 
     not proceed. Following your withdrawal of the Getchell 
     nomination earlier this year, I urged you to work with the 
     Virginia Senators. I now thank you for doing so.
       I expect your nomination of Steven Agee to be considered 
     promptly following completion of the necessary paperwork. I 
     want to encourage meaningful consultation with Senators of 
     both parties. Just as we proceeded last year to confirm your 
     nomination of Judge Randy Smith to the Ninth Circuit, once 
     you had withdrawn his nomination for a California seat and 
     resubmitted it for a vacancy from Idaho, I expect the 
     Judiciary Committee and the Senate to proceed to confirm 
     Justice Agee with the support of Senator Warner and Senator 
     Webb. I urge you to work with Senators from other states, as 
     well, so that we might make progress before time runs out on 
     your Presidency and the Thurmond Rule precludes additional 
     confirmations.
       Your judicial nominations have fared far better than those 
     of your Democratic predecessor. Nearly 90 percent of your 
     nominations have been confirmed to lifetime appointments. 
     Approximately three-quarters of your circuit nominations, 
     compared to little more than half of President Clinton's 
     circuit court nominations, have been confirmed. We have 
     succeeded in reducing overall vacancies and circuit court 
     vacancies to as few as half as many as during President 
     Clinton's term. With four more judicial nominations on the 
     Senate's Executive Calendar and another pending on the Senate 
     Judiciary agenda, I am proceeding to notice another hearing 
     for judicial nominees for the week immediately following the 
     Easter recess. That will be our fifth nominations hearing so 
     far this year.
           Respectfully,
                                                    Patrick Leahy,
     Chairman.

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