[Congressional Record Volume 154, Number 57 (Thursday, April 10, 2008)]
[Senate]
[Pages S2833-S2836]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. SPECTER. Mr. President, there is a strong sentiment in the
Republican caucus that President Bush's nominees for judicial
confirmation have not been fairly treated. We have not had a single
confirmation of a Federal judge this year. I know we have some listed
today, but up until this moment there has not been a single
confirmation. There was no hearing for any circuit court nominee from
September of last year until February 21 of this year, and only one
circuit court nominee has had a hearing in over the past 6 months. This
is totally unacceptable.
In the last 2 years of President Clinton's administration, 15 circuit
judges and 54 district judges were confirmed; thus far in this
Congress, only 6 of President Bush's circuit judges and 34 district
judges have been confirmed. Even with confirmation of those on the list
today, President Bush is far behind where President Clinton stood.
The Fourth Circuit is a judicial emergency. The nominations of Judge
Conrad and Mr. Matthews are long overdue. Peter Keisler, a very
distinguished nominee for the DC Circuit, has languished for an
interminable period of time. There are not adequate reasons for failure
to move the nominees in Maryland, New Jersey, and Rhode Island, and I
am negotiating now with Senator Casey on the pending nomination of Gene
Pratter for the Third Circuit. Thomas Farr in North Carolina deserves
confirmation to the district court, as does Davis Dugas in Louisiana,
James Rogan in California, and William Powell in West Virginia.
So a number of Republican Senators will be coming to the floor today
to protest what has been going on. I believe the Republican caucus is
correct on this issue. I deviated from a Republican caucus position and
voted to confirm qualified nominees of President Clinton, and I was
prepared to stand up and to say that it is the constitutional
prerogative of the President to nominate and the constitutional
obligation of the Senate to consent or to dissent--to not consent--to
nominees, but not to hold them in limbo and not to fail to have
appropriate consideration of these judges.
There is a growing movement in the Republican caucus to hold up
legislation if we cannot move in any other way to get justice on the
confirmation of these judges. It is a time-honored practice in this
body to put holds on legislation or holds on nominations or otherwise
to delay legislation from being considered. I think that it is a very
problematic tactic myself, but it is used frequently by the minority to
get some action by the majority.
[[Page S2834]]
I think that it is only fair to note that in some quarters within the
Republican caucus there is consideration at the present time to holding
up the patent reform bill. Now, the patent reform bill is a very
important piece of legislation--very important--to reform the patent
laws and to protect intellectual property and to maintain American
competitiveness--very important legislation. But the confirmation of
Federal judges is also very important. Very important indeed.
Now, Senator Leahy, Senator Hatch, and I have been engaged in very
extensive discussions to try to come to agreement on the substance of a
patent reform bill. We have had many conversations. Every day for the
past many days--including yesterday--we have had several discussions
between myself and Senator Leahy, between myself and Senator Hatch, and
yet we do not have it right, in my judgment. We are very close on a
critical issue of inequitable conduct. We certainly have to stop the
surge of litigation where there is no reasonable basis to do so, and I
think the inequitable conduct provision, which I have been pressing
for, is indispensable. Perhaps we have agreement there, but it may be
conditioned on something else. The damage provision is not yet
satisfactory, and I think we have to get it right even if it takes
time.
Now, I am aware that the majority leader would like to move ahead
with a bill, with a window which may be open in the immediate future.
There is nothing to stop any other Senator from introducing the bill in
its present form and to take it up and to take up the disagreements we
have on damages, for example, and to vote on them. There is the issue
of cloture on a motion to proceed, and I would not anticipate
difficulty on that unless the Republican caucus moves ahead with a
judgment that we are not going to permit the patent reform bill to move
ahead, as a matter of leverage to get fair and equitable treatment on
the judges. At this moment, I am not prepared to say where I would be
on that issue. It would be my hope that we could work these matters out
and that Senators could come to an agreement on these matters.
Mr. President, I ask unanimous consent for 1 additional minute.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SPECTER. I would hope that there could be agreement on the issue
of judges, that we could find a way to deal with Peter Keisler, and
that we could find a way to deal with the nominations of Judge Conrad
and Mr. Matthews and others in the Fourth Circuit so that we do not
have to resort to using leverage like withholding consent on other
legislation, which would prevent moving ahead with cloture on a motion
to proceed. I am available to discuss this with Members on the other
side of the aisle.
So it is my hope that we will not tie up the patent bill, but that is
a possibility if we can't find some equitable way to handle this judge
issue. To repeat, I am available to discuss it with colleagues on both
sides of the aisle to find some sensible way to deal with it.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Texas.
Mr. CORNYN. Mr. President, I rise this morning to join my colleagues
because I share their concerns about the immediate need to schedule
hearings and then up-or-down votes on 10 highly qualified judicial
nominees currently pending before the Senate Judiciary Committee.
This immediate need for judicial confirmations is especially true in
the U.S. Court of Appeals for the Fourth Circuit, which serves the
residents of Virginia, Maryland, North Carolina, South Carolina, and
West Virginia. As a matter of fact, there are currently 19 judicial
emergencies across the United States, 9 including circuit court
judicial emergencies, and it is imperative that the Senate do its duty
to schedule hearings and then have votes on the nominees who have been
sent over by the White House.
The Fourth Circuit is currently operating without a third of its
judges. The Washington Post observed that:
The Senate should act in good faith to fill vacancies, not
as a favor to the President but out of respect for the
residents, the businesses, defendants and victims of crime in
the region the 4th Circuit covers.
I sincerely hope the distinguished chairman of the Judiciary
Committee will work with Republican Members to remedy this unfortunate
and untenable situation in the Fourth Circuit. Chairman Leahy and I
have a solid record of working together on a bipartisan basis on a
variety of issues, ranging from open Government to public corruption,
and I am hopeful we can add this to that list.
I am also grateful for his cooperation in dealing with two recent
Fifth Circuit nominees. The latest of these Fifth Circuit nominees is
Catharina Haynes, a distinguished member of the bar in Dallas, TX, and
former State court judge. In February, the chairman held a hearing for
Ms. Haynes. That hearing, by the way, was the first--and is still the
only--circuit nominee hearing that has occurred since last September.
Thus, the problem is painfully obvious. We need more hearings and more
markups of nominees and more votes on the floor.
Later today, the Senate will vote on Ms. Haynes's nomination and, I
hope, confirm her to the Federal bench. She is an outstanding circuit
court nominee, well qualified in terms of her legal ability, her
experience, and her judicial temperament. Her nomination has not been
contentious or controversial. I am pleased our colleagues on the other
side of the aisle have rejected manufactured criticism of her record
and the calls from the hard-left interest groups to stop her nomination
from moving forward. I can only assume that my Democratic colleagues
see these charges for what they are: reckless smears.
I am hopeful we can persuade our Democratic colleagues to reject
similarly spurious claims against the many well-qualified nominees who
deserve to have hearings and who deserve up-or-down votes in committee
and on the Senate floor.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. HATCH. Mr. President, one of my colleagues was recently quoted as
saying that facts are stubborn things.
The facts are that the majority has virtually shut down the judicial
confirmation process.
Some say that the process always shuts down in a Presidential
election year, so I checked every one since I was first elected.
By today, April 10, in each of those Presidential election years, the
Judiciary Committee had held hearings for multiple appeals court
nominees.
But this year, only one appeals court nominee has had a hearing, and
there is not another one on the schedule.
The Judiciary Committee held no confirmation hearing at all last
month, and last week's hearing was yet another one with no appeals
court nominee.
The facts are just as stubborn when we look at the entire 110th
Congress.
Since I was first elected, there have been seven Congresses like this
one that included a Presidential election year.
During each of these Presidential election Congresses, the Judiciary
Committee held hearings for an average of 25 appeals court nominees.
But today, more than 15 months into the 110th Congress, the Judiciary
Committee has held a hearing for only five appeals court nominees.
This amounts to just one-fifth of the average for previous
Presidential election seasons.
If the partisan roles were reversed and the pace of hearings for
appeals court nominees had slowed to perhaps one-half or one-third of
the historic average, I can guarantee you that my friends across the
aisle would be down here raising the roof about how we were failing to
do our confirmation duty.
In fact, when I chaired the Judiciary Committee under the previous
President and the hearing pace was actually much faster than it is
today, they did complain early, loudly, and often.
But the pace today is worse than one-half, worse than one-third,
worse even than one-fourth of the historic average.
The current Judiciary Committee hearing pace for appeals court
nominees is the worst in decades.
In fact, there is no current pace at all.
Or look at what is going on or I should say what is not going on,
here on the Senate floor.
[[Page S2835]]
The current Judiciary Committee chairman in the past often insisted
that 1992 provides the standard for judicial confirmation progress.
Like today, his party controlled the Senate and a President Bush was
in the White House.
By this time that year, by April 10, 1992, the Senate had already
confirmed 25 nominees to the Federal bench.
It does not look like the Senate will confirm 25 judicial nominees
for the entire rest of the year.
This afternoon we will finally have the opportunity, the first
opportunity of the year, to vote on a few nominees to the Federal
bench.
The majority has stalled judicial confirmation votes longer this year
than in any Presidential election year since 1848.
Yes, you heard me right.
This is the latest start to judicial confirmations of any
Presidential election year in 160 years.
That was the century before last. That was before Utah even became a
territory, let alone a State.
The last time the Senate waited this long in a Presidential election
year to confirm Federal judges, James Polk, the 11th President, was in
the White House.
What could possibly explain such abject confirmation failure?
I might have missed it, but I am not aware of any domestic armed
conflict today that is disrupting the Senate's business.
Yet the Civil War did not stop the Senate in 1864 from confirming
seven judges before April 10.
Senators today do not have to use horses or carriages or travel on
dirt roads.
Yet slow, burdensome travel did not stop the Senate in 1884 from
confirming five judges before April 10.
The Great Depression did not stop the Senate in 1932 from confirming
14 judges before April 10.
The possibility of the Senate majority party capturing the White
House did not stop Republicans in 2000 from confirming seven judges,
including five appeals court judges, before April 10.
Today is April 10, 2008, and we will not confirm a single nominee to
the Federal bench until this afternoon and even this late start was
noticed only yesterday.
Facts are indeed very stubborn things.
The majority has already virtually shut down the judicial
confirmation process.
The Senate has not always operated this way.
The majority is refusing to do what the American people sent us here
to do because--I guess, simply--they can.
That may be the reason, but it certainly is no excuse.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Mr. KYL. Mr. President, in our country over the last couple of
hundred years, you never know what party is going to control the Senate
or the Presidency. As a result, in doing the people's business, both
parties have operated somewhat by tradition with respect to the
nomination and confirmation of judges. It is important because it
happens that, more often than not, in the last 2 years of a Presidency
the other party controls the Senate. That has been the case in the last
three Presidencies, and this Presidency. In this case a Republican is
the Chief Executive and the Democratic Party controls the Senate. That
has been the tradition.
As a result, and since we do not know whether a Republican or a
Democrat is going to be elected President next time or which party is
going to control the Senate, it has been understood by both parties
that you do not play politics when it comes to confirming judges
because, while you may be able to stop the other party's President's
nominations one time, they might be able to stop yours next time.
Besides which, it is not good government. It is not doing the people's
business. The President was elected fair and square. He has the right
to submit judicial nominees and it is the Senate's obligation under the
Constitution to act on those nominees.
That is why my colleagues and I have pointed out the historical
record, that, for example, since the Reagan and Clinton and first Bush
administrations, during the last 2 years of the administration, when
the other party controlled the Senate, the average for confirmation of
circuit nominees is 17. The last President was President Clinton,
Republicans controlled the Senate, but we confirmed 15 of his nominees
for circuit judge in his last 2 years.
If we were to do the same thing with regard to President Bush, we
would have to confirm nine more circuit judges because there have only
been six confirmed last year--none this year. The pace at which circuit
judges are acted on ordinarily is a relatively slow pace. We would have
to do two a month for the remaining time we are in session in order to
achieve that. In fact, that would include the months of August and
September, when we are not likely to be here in August and September is
not likely to be a month where we would confirm judges. So we literally
would have to confirm about three a month in order to achieve the same
number as Clinton.
Why are those numbers important? Not just because it is what we
should be doing. The President has made nominations. The Judicial
Conference says many of these are judicial emergencies, meaning we have
vacancies in the circuits that need to be filled because there are not
enough judges to do the people's business. We should do it because we
should do it; it is our responsibility. But even if you only look at it
from a political standpoint, the reality is that if this tradition is
broken--of 15, 16, 17 judges in the last 2 years of the
administration--then clearly we are going to devolve into a situation
where, for political purposes, the party in power decides not to
support--not even to have votes on--the nominees of the President. That
is very bad.
It is important that we maintain this tradition of doing at least
15--and we should do more than that--circuit judges in the last 2
years.
My colleagues have spoken to different judges. Arlen Specter, the
senior Senator from Pennsylvania, who is the ranking Republican on the
Judiciary Committee, specifically mentioned Peter Keisler, who has been
pending the longest. He has been pending for almost 2 years. In fact,
he was nominated to the District of Columbia Circuit Court in June of
2006 and received a hearing in August of that year. He is widely
regarded as well qualified, fair minded, and has received support from
all over the political spectrum. He is a graduate magna cum laude from
Yale University. He received his law degree from Yale Law School. He
clerked for a judge on the DC Circuit and for a Justice in the U.S.
Supreme Court. He served in the White House Counsel's Office, has been
in private practice, joined the Justice Department where he was
assistant attorney general for the civil division and was even Acting
Attorney General during a brief time between the time that Judge
Gonzales left the Attorney General's position and Judge Mukasey took
his place.
The American Bar Association has rated him ``unanimously well
qualified.'' You cannot get a higher rating than that. The Washington
Post--no particular friend of this administration--editorialized in
favor of Keisler, describing him as a ``highly qualified nominee'' who
``certainly warrants confirmation.''
Keisler was also the subject of an editorial from the Los Angeles
Times, which called him a ``moderate conservative,'' and supported his
nomination.
There have been some who say we should not fill the last seat on the
DC Circuit because it doesn't have as many cases as other circuits.
There was a point in time when that was true and I even noted that. But
the reality is that today its caseload is increasing. It needs to be
filled and Peter Keisler is one of the nominees who should be
supported.
I urge my colleagues to find a way to hold the hearings and to bring
these nominees to the floor so the Senate can do its business and act
on the nominees of the President for the circuit courts.
The ACTING PRESIDENT pro tempore. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I join my colleagues in saying that
this is the time for us to move. I am delighted to see the majority
leader and the majority whip here on the floor as well, to talk,
because there is a practical effect of what is soon to take place
around here if we don't start moving judges soon, and specifically
circuit court judges. This is something
[[Page S2836]]
I don't want to see taking place, but I think you heard from the
Senator from Pennsylvania--a respected, open-minded Member of this
body--that if we do not start approving some circuit court judges in
some significant numbers--I think my colleague from Arizona mentioned
hitting some of the historic averages, or at least getting close to
it--I think you are going to see people start to jam the body down and
say that unless we start approving some circuit court judges, business
is not going to happen around here.
I think people will understand why. Circuit court judges are
positions that are significant, that are long lasting, that are needed,
and yet nominees are not being approved. Why are they not being
approved? We have qualified nominees who are in the queue who have been
waiting for a long period of time. I have one to talk about here, Judge
Robert Conrad in the Fourth Circuit. The seat to which he has been
nominated is a judicial emergency. We have a third of the positions on
the Fourth Circuit that are open. It is a judicial emergency. His
nomination is supported by both home State Senators. They want this
position. In North Carolina, Senator Burr and Senator Dole both support
this nominee. He is highly qualified. The ABA says this is a highly
qualified nominee, meeting their highest standard of ``unanimously
well-qualified.'' This is an individual who has been previously
approved by this body for a Federal judgeship, and has now been
nominated to move from the Federal district court bench to the circuit
court bench. It is a judicial emergency. Yet Judge Conrad's nomination
languishes and has languished for over 250 days.
I think clearly what we are setting up right now is for not much to
happen in the Senate. I think what you are going to see starting to
take place--and we are serving notice here today, if we do not start
moving these nominees at some regular pace--qualified people who fit
the criteria, who should move on through, business is going to slow
down in this body. It may come to a complete standstill if we do not
start getting some judges.
We should not go that route. I urge my colleagues, I urge the
chairman of the committee and the ranking member, to sit down and say:
OK, what can we work out on circuit court judges? District court
judges? What can we get worked out so the business of the Senate can
move forward? Without that, things are going to slow down here. Things
are not going to get done. It is going to be because we are not getting
anywhere close to reasonable numbers of circuit court judges approved.
I want to say that clearly. That is where this is all headed.
The majority party can choose to go that route. That is what is going
to end up taking place. It is going to be about judges. We are going to
have a big debate then across the country on that. Meanwhile, the whole
Nation wants us to get work done and we are not getting it done because
judges are not being approved.
I hope the majority party would sit up and say we are going to
approve this many, that many, we are going to get these moving through
in some reasonable fashion so the body can do its job. Judge Conrad is
one of those who deserves a hearing. If there are challenges to him on
the basis that we don't think he is qualified, we don't like what he
said here or there--fine, hold a hearing so we can get those out in the
air. Clearly, if we do not start moving some judges in reasonable
numbers, you are going to start seeing this body start to not move much
through, as we begin to protest not getting judges approved.
We should not go that route. I hope we do not have to.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I have sat here and listened and I have
some outline notes from which to speak, but I am not sure we should.
The very thing we are talking about is what America wants to spit out,
in terms of their elected representatives. The Senate has an obligation
to offer advice and consent. There is no question judges are important.
That is why you are here, seeing a demonstration from the minority
today, of judicial committee members, because we know it is important.
It is important across the country because making law from the bench is
something that is the antithesis of what most freedom-loving Americans
want. The idea that we want to have judges who know their role, know
the role of interpreting law rather than making law, is something with
which the vast majority of Americans agree.
But I am struck by the fact that gamesmanship is taking place--not
just in terms of the majority but also the minority. We are in a game
now. How do we move this? How do we leverage this? How do we force it?
My disheartenment comes from the fact--why are we here in the first
place? Why did we get here, when we know what the role of the Senate is
in terms of advice and consent.
My hope is we do not see a devolution to parliamentary maneuvering,
to raise the issue above where it should be.
I am reminded of the fact that the majority had problems with four of
President Bush's nominees, starting in January. He withdrew those. In a
gesture of good will, he withdraw four nominees who were not--although
they were well qualified, they were not acceptable to movement down the
road. Now we have highly qualified judges in districts that are
judicial emergencies that get actually slandered by the chairman of the
committee about supposedly an anti-Catholic statement--when they are
Catholic in their faith. So we offer criticism to somebody and never
offer them a venue in which to defend themselves.
That is not what America expects of this body. That is not what it
expects of the Judiciary Committee. My hope is the majority leader will
say: There is a deal to be struck here. Let's do what we can so we
don't spend our time on the business of creating wedge issues that
don't further the best interests of this country. Give President Bush
five or six more, seven or eight more district court nominees, all of
which are qualified, bring them to the floor. Let's get it done so it
doesn't interfere with other important work. It is time for the Senate
to make good on promises. It is time for it to reciprocate for what
President Bush did in terms of withdrawing the four nominations. My
hope is we will think about what is in the best long-term interest of
the country and not the next election.
I thank the Chair.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ALEXANDER. I ask unanimous consent that the order for the quorum
call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. REID. Mr. President, I ask if the distinguished Senator from
Tennessee is ready to make his remarks, we should do it now. The two
managers are not here, but I am sure they would not care. Then when you
complete your remarks, we will go forward.
Mr. ALEXANDER. I am prepared to go ahead.
____________________