[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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