[Congressional Record Volume 154, Number 60 (Wednesday, April 16, 2008)]
[Senate]
[Pages S3040-S3046]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL CONFIRMATIONS
Mr. DeMINT. Mr. President, over the past couple of weeks, there has
been a lot of talk about the lack of progress the Democrat majority in
the Senate has made on judicial confirmations in the last couple of
years, but I want to thank the majority leader for his promise last
night to confirm three judges by Memorial Day. This is certainly
welcome news. I hope at least one of those is the nominee for the
Fourth Circuit.
As we all know, our courts are in crisis. Currently, there are over
40 vacancies on the U.S. Circuit Court, and of those half are judicial
emergencies. The consequences of the majority's failure to act on these
nominations result in extended judicial vacancies, increased casework,
and a delay in verdicts. This obstruction is harmful for the American
judicial system and the American people.
One of the most important jobs we have here in the Senate is to offer
advice and consent to the President's judicial nominees. While I
believe all of these nominees deserve an up-or-down vote on the Senate
Floor, I rise today specifically to speak on the current judicial
vacancies on the Fourth Circuit Court of Appeals and the qualified
nominees waiting for a vote.
The Fourth Circuit of Appeals, which covers South Carolina, North
Carolina, Virginia, West Virginia, and Maryland, is one-third vacant.
Even though the Fourth Circuit is facing so many pronounced vacancies,
and there is a critical need for judges, the Democratic leadership has
made no effort to move any of the pending nominees.
In spite of the number of vacancies, the Fourth Circuit, run by Chief
Judge Karen Williams, continues to do a remarkable job. Many of the
cases brought before the Fourth Circuit are extremely complex, and the
judges must spend a longer amount of time on each of these cases before
issuing their opinion. Our judges will not sacrifice quality, but it
may take a lot longer for the court to issue its decision. We are lucky
that the Fourth Circuit has the leadership it has. They are dedicated
and hardworking, clearly, but we cannot continue with this high level
of vacancy.
I have heard firsthand about the impact these vacancies have on the
Fourth Circuit. Appellate courts must have enough judges to fill the
panel, and if a seat is vacant, they must fill it somehow. This means
judges from other circuits or judges from the district courts must take
time away from their families, their caseload, their administrative
tasks to fill the spot on the panel.
Two of the Fourth Circuit nominees, Mr. Steve Matthews of South
Carolina and Mr. Robert Conrad of North Carolina, have the support of
their home State Senators and are ready for a hearing in the Senate
Judiciary Committee. Despite these facts, both nominees have been
waiting for over 200 days for a hearing.
Let me quote an editorial from the Washington Post in December of
2007 in which they addressed the dire straits of the Fourth Circuit.
The Senate should act in good faith to fill vacancies--not
as a favor to the President but out of respect for the
residents, businesses, defendants, and victims of crime in
the region the Fourth Circuit covers. Two nominees--Mr.
Conrad and Steve A. Matthews--should receive confirmation
hearings as soon as possible.
On that note, I wish to spend a couple of minutes telling you about
Mr. Steve Matthews from South Carolina. President Bush nominated Steve
Matthews in September of 2007, but the Senate Judiciary Committee has
failed to hold a hearing on his nomination.
Matthews received his undergraduate degree from the University of
South Carolina and his law degree from Yale Law School. He is currently
the managing director of Haynesworth, Sinkler, and Boyd in Columbia,
SC.
Prior to joining the Columbia firm, Matthews practiced in the
Washington office of Dewey Ballantine and served
[[Page S3041]]
in the U.S. Department of Justice during President Reagan's second
term. During his time at the Department of Justice, Matthews advised
then Attorney General Ed Meese and President Reagan on the selection of
nominees for Federal judgeships, and served as special counsel to Meese
on the Iran Contra investigation.
I have personally met with Mr. Matthews several times and know he has
the experience, the intellect, and the integrity necessary to serve on
one of our Nation's highest courts.
We must fulfill our constitutional responsibility to vote on judicial
nominations and allow hearings, as well as plain up-or-down votes here
on the Senate Floor. The Senate Judiciary Committee has several
extraordinary nominees before it, and the Fourth Circuit desperately
needs their service.
Our courts are in critical need of judges and any inaction on these
nominees is irresponsible and puts our Nation's judicial system at
risk. Again, I thank the majority leader for committing to at least
three by Memorial Day, and I appreciate the opportunity to address this
issue.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I think the Senate is clearly in a
slowdown. It is not fulfilling its responsibility to evaluate and vote
on Presidential nominees for our courts in America.
We are now into the fourth month of 2008 and only one circuit judge,
Judge Haynes, who received an ABA rating of unanimously well
qualified--the highest rating by the bar--has been confirmed, and that
confirmation only happened last week, April 10. So we have gone quite a
long time here. We still have 10 pending nominations to the appeals
courts that need hearings, need votes out of the Judiciary Committee,
and need up-or-down votes on the Senate Floor.
Why is this a problem? I will tell you. Because President Bush
campaigned on, and effectively, I believe, won the day on the argument
that judges should be, as now Chief Justice John Roberts said at his
confirmation hearing, neutral umpires. They are supposed to call the
balls and strikes. They are not supposed to be on one side or the
other. They are not supposed to be setting forth their personal
political agendas in the guise of ruling on disputes of law in a
courtroom. That is an abuse of the power of the judiciary. Members of
the Judiciary are given lifetime appointments. They cannot be removed
except through impeachment or death, and their salaries can not be
reduced. It is critical that those judges show restraint and remember
their proper role in our three branch system.
Now, the truth is that for many years my liberal activist colleagues
have delighted in having Federal judges, and sometimes State judges,
promote and affect a political agenda they could not win at the ballot
box. That is what it is all about. But we need judges who respect the
rule of law and who understand they are not policymakers. If they want
to set policy, let them run for Governor, let them run for President or
the Senate. So President Bush has consistently submitted nominees with
high ratings, even from the American Bar Association, which frequently,
I submit, is more activist than I would favor. Indeed, they meet and
have all these resolutions and pass these resolutions on issues with
which I do not agree. I am a member of the ABA, but I don't agree with
some of the positions they take in these resolutions. They meet in some
big conference, unrepresented by the members of the bar, and they do
these things.
I mention all that to say they have been rating these present
nominees very well. They have been giving them high ratings because
they are men and women of good legal ability, sound judgment, and
President Bush would not nominate them if they were not committed to
the proper role of a judge, in my view.
Circuit court vacancies--these are the 11 circuits we have. The
circuit courts are the first level of appellate courts above the
Federal district court, the trial courts. When you appeal a criminal
conviction or a civil judgment in America, you appeal first from the
district court to the circuit court. That is one step below the Supreme
Court. Then you can appeal from there to the U.S. Supreme Court, Chief
Justice Roberts and his team, right across the street. That is the way
the system works. These appellate courts are important because the
Supreme Court only takes 100 or so cases a year, and many of the
rulings of the circuit courts have become final. That is one reason
people consider them to be important. Ultimately, the Supreme Court
will rule.
Despite the fact that there are 10 nominees for the 13 vacancies in
the circuit courts, the Judiciary Committee, our committee, of which I
have been a member now for almost 12 years, has only given a hearing to
1, and that was over a year and a half ago when Senator Specter was
chairman, the Republican chairman.
Peter Keisler, the circuit nominee for the D.C. Circuit here in
Washington, was given a hearing in August 2006, but he has still not
been voted on, called up for a vote in the Judiciary Committee. He is a
fabulous nominee. One of the reasons he is being objected to is the
same reason they objected to Miguel Estrada, the same reason they
objected to a lot of other nominees--he is so capable, he would be on
the short list for the Supreme Court of the United States. If they can
kill them off at this level, they will not be considered sometime in
the future. That is just a fact. I have been here. I know how this
works. There is no reason Peter Keisler ought not to be confirmed. He
had a hearing in August 2006, and he still has not been brought up for
a vote in the committee.
Catharina Haynes was highly rated too. She was confirmed last week
after we began to complain about this. That was the first circuit court
nomination hearing since September of last year.
The Fourth Circuit is in a crisis. The vacancy rate is alarming. One-
third of the seats are vacant. Four nominees are pending for those
vacancies, but none has even been given a hearing.
Robert Conrad, former Federal prosecutor, has been waiting for a
hearing for 265 days. He is also, at this point, a Federal district
judge, a Federal district judge for the Western District of North
Carolina. He was nominated for a judicial emergency. He has the support
of both his home Senators, received a unanimous ABA rating of ``well
qualified,'' the highest rating you can get. He is a consensus nominee.
The Senate unanimously confirmed him for his current district judge
seat, and the ABA, then, ranked him unanimously ``well qualified.'' The
whole ABA 15-member committee voted him the highest rating,
unanimously. So why hasn't he been given a hearing?
Steve Matthews has been waiting over 205 days. We have others out
there who I think are being slowed down.
Mr. Conrad is an excellent nominee, in my opinion. He has a number of
qualifications. I remember he was given the duty to conduct one of the
investigations that occurred in the Department of Justice. He
testified. I remember him testifying because I liked the honesty and
directness in his testimony. He chose not to prosecute anybody for
those offenses, but by all accounts he examined it carefully and
fairly. Among other qualifications he had, he played point guard on the
Clemson University basketball team in the ACC where he was an academic
All-American basketball player, among the other things he did, which
has always impressed me.
I would say there has been talk about invoking the so-called Thurmond
Rule. The Thurmond Rule could sort of be, if you want it to be, an
excuse for slow-walking nominees and not approving the nominees who
ought to be approved just because there is a Presidential election on
the horizon. Majority Leader Harry Reid mentioned last night that the
so-called rule would be invoked in June. Senator Leahy has mentioned
before that he would invoke it in the second half of this year. Let me
say this about the Thurmond Rule. It is a myth. It does not exist.
There is no reason for stopping the confirmation of judicial nominees
in the second half of a year in which there is a Presidential election.
I remind my colleagues that our now chairman of the Judiciary
Committee, Chairman Leahy, when he assumed control over the committee,
stated he would institute the Thurmond Rule starting the spring of this
year. He said:
[[Page S3042]]
The Thurmond rule, in memory of Senator Strom Thurmond--he
put this in when the Republicans were in the minority--which
said in a Presidential election year, after spring, no judges
would go through except by the consent of both Republican and
Democratic leaders. I want to be bipartisan. We will
institute the Thurmond rule.
Those were his remarks at Georgetown University Law School in
December 2006.
In May 2007, he reiterated that the Thurmond Rule would kick in next
April. Senator Leahy said:
Obviously the Thurmond rule kicks in.
But let's be very clear about it. The Thurmond Rule as interpreted is
a false myth. Senator Leahy, before the statements he made in 2006 and
2007 during the Bush Presidency, has admitted as much. In fact, as
Senator Leahy said in 2000, when the situation was somewhat different--
during President Clinton's final year in office, like this is President
Bush's last year:
There is a myth that judges are not traditionally confirmed
in Presidential election years. That is not true. Recall that
64 judges were confirmed in 1980; 44 in 1984; 42 in 1988,
when a Democratic majority in the Senate confirmed the Reagan
nominees and, as I have noted, 66 in 1992, when a Democratic
majority in the Senate confirmed 66 Bush nominees.
Those are not my words. Those are Senator Leahy's words.
I see the distinguished ranking member of the Judiciary Committee is
here. It is time for him to speak. I will just say that we, as Members
of this Senate, have a Constitutional responsibility to move judicial
nominees. We should not be playing games. Good nominees with strong
support ought to be moved forward. A lot of these nominees have not
been treated fairly. It is time to move them forward.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania is
recognized.
Mr. SPECTER. Mr. President, I begin by thanking my distinguished
colleague from Alabama for his cogent, timely comments about the need
to process the confirmation of judges. Republicans have reserved time
in our period for morning business to speak to this issue in order to
acquaint the American people with the importance of proceeding with the
confirmation of Federal judges. The process has been slowed down very
materially during the final two years of Presidential terms when the
White House is controlled by one party and the Senate the other, as the
White House is now controlled by Republicans and the Senate by
Democrats.
As I have said on the Senate floor, this is a problem that has been
going on for the past two decades. In the last two years of President
Reagan's administration, there was a slowdown when Democrats were in
charge of the Senate. The slowdown continued during the term of
President Bush, the 41st President. Then, Republicans retaliated during
the term of President Clinton by slowing down the process. We have had
very major disputes--I would even call them bitter disputes.
Notwithstanding the disrepute of the word ``bitter,'' sometimes it is
applicable, and I think it is certainly applicable to the filibusters
of 2005. During that confrontation between the parties, filibusters
were used repeatedly by Democrats. Republicans retaliated in kind with
the threat of a so-called nuclear or constitutional option.
As I have said on the floor on previous occasions, the fault lies, in
my judgment, with both parties. I thought the Republican caucus was
wrong in its response to President Clinton's nominees, and I backed up
my opinion with my votes. I voted in support of President Clinton's
qualified nominees.
It is my hope that we can find a resolution to this issue, that we
can reach across the aisle. There is no doubt the American people are
sick and tired of party bickering. There is also no doubt that the
American people want prompt justice in our courts. Where you have
judicial emergencies, as you have in many courts where nominees have
been pending for protracted periods of time, failing to fill vacancies
does great harm to the litigants who are waiting to have their cases
heard. As a simple illustration, I'll use an automobile accident case.
If somebody has this type of case in court, first you look to the
jurisdiction, which is a judicial emergency, and there is no district
judge to try the case. The litigant waits and waits. You do not have to
emphasize the consequences of that situation. People are perhaps out of
work from their injuries as their medical bills are rising. They ought
to have their day in court to have the matter adjudicated. If the
matter is finally tried, then an appeal is taken in the courts of
appeals, and there are judicial emergencies there. Again, the litigant
waits and waits. The problem is clear. It is my hope we would move
ahead here and process judicial nominees.
I am pleased to note that some progress has been made, as announced
by the majority leader after consultation with Senator McConnell, the
Republican leader. There is an arrangement to have three circuit judges
confirmed before Memorial Day. That is a step in the right direction,
providing that the right judges are confirmed.
It has been announced similarly that finally, at long last, after
protracted disputes, there is an agreement between the White House and
the Michigan Senators on the nomination of two circuit judges for the
Sixth Circuit.
It is my hope that the confirmations will be directed to three of the
nominees who have been ready for hearings or committee votes and have
been waiting the longest time.
Peter Keisler, nominee for the District of Columbia Circuit Court of
Appeals, has been waiting for more than 650 days. There has been some
talk about the D.C. Circuit not needing an additional judge. That is
simply not factually correct. Mr. Keisler has been lauded by newspaper
editorials--The Washington Post, the Los Angeles Times--and is
preeminently well qualified to be confirmed to that position.
Judge Robert Conrad, Chief Judge of the U.S. District Court in North
Carolina, has been waiting for over 270 days, and he is nominated to
fill a judicial emergency. There is no blue-slip problem with Judge
Conrad; the Senators from North Carolina are both urging his
confirmation.
Similarly, with the nomination of Steve Matthews of the Fourth
Circuit, he has been waiting for more than 220 days. And, again, both
the blue slips have been returned. So, it is my hope we will move
quickly to confirm Mr. Keisler, Judge Conrad, and Mr. Matthews. They
are the ones who have been ready for committee action the longest and
are most pressing.
By letter dated April 10, I wrote to Senator John McCain, Senator
Hillary Clinton, and Senator Barack Obama, asking for their positions
on prospective motions, which I intend to pursue in the Senate, to
discharge from the Senate Judiciary Committee the nominations of Judge
Conrad, Mr. Keisler, and Mr. Matthews.
There are procedures where we can take the matters from the committee
and take them to the floor for action by the entire body. The
Constitution provides that confirmations will be handled by the Senate;
there is no provision for committee action. In my judgment, when the
controversies have raged for this period of time, the nominees ought to
come to the full Senate.
I have also written to the interrogators of the debate, which is
scheduled for this evening at the convention center of Philadelphia,
Mr. George Stephanopoulos of ABC News and Mr. Charles Gibson of ABC
News, suggesting that these would be appropriate questions for Senator
Clinton and Senator Obama during the course of the discussion this
evening.
I ask unanimous consent that the text of the letters to Senator
McCain, Senator Clinton, Senator Obama and Mr. Stephanopoulos and Mr.
Gibson be included in the Record following my remarks.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). Without objection, it
is so ordered.
(See Exhibit 1.)
Mr. SPECTER. Now, in these letters to the three Senators, dated April
10, I said I would not make the disclosure of them public until April
15, in order to give them an opportunity to reply before these letters
were released to the press. I said:
I do not plan to make the news media aware of my inquiries
until April 15th in order to give you ample opportunity to
advise me of your response.
Yesterday evening, I did receive a response from Senator Obama. I
think it is worthwhile to read this into the Record. Senator Obama
writes:
I am responding to your letter of April 10, 2008, regarding
several pending judicial
[[Page S3043]]
nominations. As a former constitutional law instructor, I
fully appreciate the important work that our Federal judges
do and the need to fill judicial vacancies. However, I have
great respect for the Senate's constitutional advice and
consent role in the confirmation of these judges.
The concerns you have raised in your letter are important
ones. However, since I am not a member of the Judiciary
Committee, I would defer to Chairman Leahy on the scheduling
of any committee votes on these pending nominations, and I
would defer to Senator Reid on the scheduling of any floor
votes.
Moreover, I am confident that we can work in a bipartisan
fashion to continue to fill vacancies. Just last week, the
Senate confirmed five judicial nominations. And today,
Chairman Leahy has announced a resolution reached with the
Administration over Sixth Circuit nominations. Those events
highlight a desire on all sides to ensure that vacancies on
the bench are filled.
Thank you for seeking my views on this issue. Sincerely,
Barack Obama, United States Senator.
I begin by thanking Senator Obama for his reply. But, I disagree with
him, disagree respectfully, on the position he has taken. When he says
he is not a member of the Judiciary Committee, I believe his standing
as a Member of the Senate is the determinative membership, and under
the Constitution of the United States, the Senate has the
constitutional responsibility to consent or not on pending nominations.
When Senator Obama says that ``I would defer to Chairman Leahy on the
scheduling of any committee votes on these nominations,'' and, ``I
would defer to Senator Reid on the scheduling of any floor votes,''
again, I disagree, respectfully.
A Senator's duties are not delegated. No Senator can delegate to
anyone else his constitutional responsibilities. The Constitution does
not refer to the Judiciary Committee. The Constitution does not refer
to the majority leader. Even if it did, that would not provide a basis
for a Senator, duly elected and sworn to uphold the Constitution, as I
took an oath on five occasions and as Senator Obama has taken an oath
and as every Member of this body has taken an oath, not to uphold the
Constitution.
The Constitution says: The Senate confirms. The Constitution says:
Senators vote. You cannot delegate your constitutional
responsibilities. There is an abundance of case law on this subject in
a myriad of contexts, and so, I would respectfully ask my colleague,
Senator Obama, to reconsider.
I would also ask, respectfully, for Senator McCain to respond and for
Senator Clinton to respond. Further, when Senator Obama talks about his
confidence that we can work out, in a bipartisan fashion, an agreement
to fill the current vacancies, I think that confidence is misplaced.
When Senator Obama makes note of the fact that there were
confirmations last week, he does not make note of the fact that these
were the first confirmations this year, and that there was no hearing
on any circuit judge from September 25, 2007, until February 21, 2008.
What is required to move the process along is for Senators to
discharge their duty. In proposing to bring these matters to the floor
for action by the full Senate, it is my view that every Senator ought
to stand up and say whether he agrees with what is going on today
because I think we have an electorate that is concerned.
And, the purpose of this discussion today is to fully acquaint the
electorate with what is happening. As we have seen in prior elections,
obstructionism costs at the ballot box. I would prefer not to resort to
the political process. I would prefer not to make this a campaign or an
election issue. I would prefer to see the Senate decide this on the
merits.
Again, I emphasize the need for independent judgments. I do not think
it is sufficient for a Senator to say: I am going to defer to the
chairman. I do not that it is sufficient for a Senator to say: I am
going to defer to the majority leader.
When I disagreed with the chairman of the Judiciary Committee--and we
had a very distinguished chairman, Senator Hatch, sitting beside me--I
said to Senator Hatch: Orin, I respectfully disagree. I am going to
vote that way. Let the Record show Senator Hatch is nodding in the
affirmative.
The PRESIDING OFFICER. The time for morning business has expired.
Mr. SPECTER. I ask unanimous consent for 1 more minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. When I disagreed with the majority leader, I said so. I
would ask other Senators to do the same.
Mr. President, we have the Senator from South Carolina on the floor.
He arrived in the middle of my remarks. I would ask that he be
permitted to speak, and also Senator Hatch, be permitted to speak for
up to 5 minutes each.
The PRESIDING OFFICER. Is there objection?
Mrs. BOXER. Reserving the right to object, we are laying down our
bill. Senator DeMint has been waiting for his amendment. He has a time
problem. So I am willing to give another 3 minutes to our Republican
friends. But, seriously, we need to get going on this bill. We have
been on this bill now for 3 days.
We finally have an amendment. We would like to hear it. So I would
agree to 3 minutes more.
Mr. SPECTER. Mr. President, I renew my request for 5 minutes for the
two Senators who are on the floor.
Mr. DeMINT. I thank the Senator. I have spoken on judges. I will
defer to Senator Hatch and make my comments later.
The PRESIDING OFFICER. Without objection, it is so ordered.
Exhibit 1
U.S. Senate,
Washington, DC, April 10, 2008.
Hon. Hillary Rodham Clinton,
U.S. Senate,
Washington, DC.
Dear Senator Clinton: I write seeking your position on a
prospective motion to discharge from the Senate Judiciary
Committee the pending nominations of Mr. Peter Keisler,
nominee to the Court of Appeals for the D.C. Circuit, Judge
Robert Conrad of North Carolina, nominee to the Court of
Appeals for the Fourth Circuit, and Mr. Steve Matthews of
South Carolina, nominee to the Court of Appeals for the
Fourth Circuit.
Mr. Keisler's nomination has been on the agenda since June
29, 2006, without a Committee vote despite his excellent
credentials. He graduated magna cum laude from Yale
University and then received his Juris Doctor from Yale Law
School. In addition to clerking for Supreme Court Justice
Anthony Kennedy, Mr. Keisler has held several high level
positions in the Department of Justice. Most recently, he
served as Acting Attorney General, providing much needed
leadership after the resignation of Attorney General
Gonzales. Prior to that, Mr. Keisler served as the Assistant
Attorney General managing the Civil Division of the Justice
Department. He is currently a partner in the D.C. office of
Sidley Austin LLP. The American Bar Association has awarded
him its highest rating, a ``unanimous well qualified,'' and
the editorial boards of the Los Angeles Times and The
Washington Post have called him a ``moderate conservative,''
a ``highly qualified nominee,'' and someone who ``certainly
warrants confirmation.''
The only objections raised to Mr. Keisler's nomination have
nothing to do with his qualifications or suitability to sit
on the D.C. Circuit. Instead, the objections concern whether
the Senate needs to fill the 11th seat on the D.C. Circuit,
the seat to which Mr. Keisler is nominated. On the contrary,
there is recent precedent of the Senate confirming a nominee
to fill the 11th seat on the D.C. Circuit. In 2005, the
Senate voted to confirm Thomas Griffith to fill the 11th seat
on the D.C. Circuit. Judge Griffith was voted out of the
Judiciary Committee and confirmed with bipartisan support,
including the support of Senators Biden, Feinstein, Durbin,
Kohl, and Schumer. In addition, Congress recently validated
the 11th seat of the D.C. Circuit when it passed the Court
Security Improvement Act last year. Further, arguments
against filling the 11th seat based on the decrease in the
D.C. Circuit's caseload since 1997 are premature due to the
recent addition of detainee cases to the circuit's
jurisdiction and the possibility of an increase in
administrative law cases due to choice of venue options.
I include Judge Conrad and Mr. Matthews in the proposed
motion due to the critical need to expeditiously fill the
vacancies on the Court of Appeals for the Fourth Circuit.
Currently, one-third of the seats on the Fourth Circuit are
vacant, leaving the court inexcusably understaffed. Judge
Conrad and Mr. Matthews are also exceptional appellate court
nominees. Judge Conrad is the Chief Judge of the Western
District of North Carolina, a position to which he was
unanimously confirmed in 2005. Prior to his service on the
bench, he had a long career as a federal prosecutor, working
in both Republican and Democratic administrations. He has the
support of both his home state senators, and the ABA has
rated him unanimously ``well qualified.'' The vacancy to
which Judge Conrad has been nominated has been declared a
``judicial emergency'' by the nonpartisan Administrative
Office of the Courts. In fact,
[[Page S3044]]
there is a protracted history to this particular seat, which
has been vacant since 1994. However, Judge Conrad has been
waiting for a hearing for over 260 days.
Mr. Matthews is another outstanding circuit court nominee.
A graduate of Yale Law School, Mr. Matthews has had a
distinguished career in private practice in South Carolina.
He also served for several years in appointed positions in
the Department of Justice, including positions in the Civil
Division, the Civil Rights Division, the Office of Legal
Policy, and the Office of the Attorney General. He has been a
shareholder of a prominent South Carolina law firm since
1991, and from 2004 to 2008 served as the managing director.
He has the strong support of both of his home state senators.
Despite his impressive and varied professional credentials,
Mr. Matthews has been waiting for a hearing for over 200
days. Notwithstanding my repeated requests, no Committee
action is planned at this time on any of the aforementioned
nominees.
Another nominee, Justice Stephen Agee of Virginia was
recently nominated to fill another judicial emergency on the
Fourth Circuit. I remain hopeful that Justice Agee will be
listed on a hearing agenda and acted on by the Committee in
the very near future. If the Committee delays in processing
his nomination, I may return to him, given the judicial
emergency on the Fourth Circuit.
I write to find out how you would vote on the proposed
discharge petition, but also, candidly, to focus the public's
attention on these nominations. I know you are aware of the
ongoing controversy as to whether the Judiciary Committee is
processing nominations with appropriate dispatch. This type
of delay has been a recurrent problem during the last two
years of every President's Administration for the past two
decades when the White House is controlled by one party and
the Senate by the other.
I am also seeking the responses of Senator Obama and
Senator McCain on this subject. I do not plan to make the
news media aware of my inquiries until April 15th in order to
give you ample opportunity to advise me of your response.
Thank you very much for your consideration of this request.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Washington, DC, April 10, 2008.
Hon. John McCain,
U.S. Senate,
Washington, DC.
Dear Senator McCain: I write seeking your position on a
prospective motion to discharge from the Senate Judiciary
Committee the pending nominations of Mr. Peter Keisler,
nominee to the Court of Appeals for the D.C. Circuit, Judge
Robert Conrad of North Carolina, nominee to the Court of
Appeals for the Fourth Circuit, and Mr. Steve Matthews of
South Carolina, nominee to the Court of Appeals for the
Fourth Circuit.
Mr. Keisler's nomination has been on the agenda since June
29, 2006, without a Committee vote despite his excellent
credentials. He graduated magna cum laude from Yale
University and then received his Juris Doctor from Yale Law
School. In addition to clerking for Supreme Court Justice
Anthony Kennedy, Mr. Keisler has held several high level
positions in the Department of Justice. Most recently, he
served as Acting Attorney General, providing much needed
leadership after the resignation of Attorney General
Gonzales. Prior to that, Mr. Keisler served as the Assistant
Attorney General managing the Civil Division of the Justice
Department. He is currently a partner in the D.C. office of
Sidley Austin LLP. The American Bar Association has awarded
him its highest rating, a ``unanimous well qualified,'' and
the editorial boards of the Los Angeles Times and The
Washington Post have called him a ``moderate conservative,''
a ``highly qualified nominee;'' and someone who ``certainly
warrants confirmation.''
The only objections raised to Mr. Keisler's nomination have
nothing to do with his qualifications or suitability to sit
on the D.C. Circuit. Instead, the objections concern whether
the Senate needs to fill the 11th seat on the D.C. Circuit,
the seat to which Mr. Keisler is nominated. On the contrary,
there is recent precedent of the Senate confirming a nominee
to fill the 11th seat on the D.C. Circuit. In 2005, the
Senate voted to confirm Thomas Griffith to fill the 11th seat
on the D.C. Circuit. Judge Griffith was voted out of the
Judiciary Committee and confirmed with bipartisan support,
including the support of Senators Biden, Feinstein, Durbin,
Kohl, and Schumer. In addition, Congress recently validated
the 11th seat of the D.C. Circuit when it passed the Court
Security Improvement Act last year. Further, arguments
against filling the 11th seat based on the decrease in the
D.C. Circuit's caseload since 1997 are premature due to the
recent addition of detainee cases to the circuit's
jurisdiction and the possibility of an increase in
administrative law cases due to choice of venue options.
I include Judge Conrad and Mr. Matthews in the proposed
motion due to the critical need to expeditiously fill the
vacancies on the Court of Appeals for the Fourth Circuit.
Currently, one-third of the seats on the Fourth Circuit are
vacant, leaving the court inexcusably understaffed. Judge
Conrad and Mr. Matthews are also exceptional appellate court
nominees. Judge Conrad is the Chief Judge of the Western
District of North Carolina, a position to which he was
unanimously confirmed in 2005. Prior to his service on the
bench, he had a long career as a federal prosecutor, working
in both Republican and Democratic administrations. He has the
support of both his home state senators, and the ABA has
rated him unanimously ``well qualified.'' The vacancy to
which Judge Conrad has been nominated has been declared a
``judicial emergency'' by the nonpartisan Administrative
Office of the Courts. In fact, there is a protracted history
to this particular seat, which has been vacant since 1994.
However, Judge Conrad has been waiting for a hearing for over
260 days.
Mr. Matthews is another outstanding circuit court nominee.
A graduate of Yale Law School, Mr. Matthews has had a
distinguished career in private practice in South Carolina.
He also served for several years in appointed positions in
the Department of Justice, including positions in the Civil
Division, the Civil Rights Division, the Office of Legal
Policy, and the Office of the Attorney General. He has been a
shareholder of a prominent South Carolina law firm since
1991, and from 2004 to 2008 served as the managing director.
He has the strong support of both of his home state senators.
Despite his impressive and varied professional credentials,
Mr. Matthews has been waiting for a hearing for over 200
days. Notwithstanding my repeated requests, no Committee
action is planned at this time on any of the aforementioned
nominees.
Another nominee, Justice Stephen Agee of Virginia was
recently nominated to fill another judicial emergency on the
Fourth Circuit. I remain hopeful that Justice Agee will be
listed on a hearing agenda and acted on by the Committee in
the very near future. If the Committee delays in processing
his nomination, I may return to him, given the judicial
emergency on the Fourth Circuit.
I write to find out how you would vote on the proposed
discharge petition, but also, candidly, to focus the public's
attention on these nominations. I know you are aware of the
ongoing controversy as to whether the Judiciary Committee is
processing nominations with appropriate dispatch. This type
of delay has been a recurrent problem during the last two
years of every President's Administration for the past two
decades when the White House is controlled by one party and
the Senate by the other.
I am also seeking the responses of Senator Clinton and
Senator Obama on this subject. I do not plan to make the news
media aware of my inquiries until April 15th in order to give
you ample opportunity to advise me of your response.
Thank you very much for your consideration of this request.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Washington, DC, April 10, 2008.
Hon. Barack Obama,
U.S. Senate,
Washington, DC.
Dear Senator Barack Obama: I write seeking your position on
a prospective motion to discharge from the Senate Judiciary
Committee the pending nominations of Mr. Peter Keisler,
nominee to the Court of Appeals for the D.C. Circuit, Judge
Robert Conrad of North Carolina, nominee to the Court of
Appeals for the Fourth Circuit, and Mr. Steve Matthews of
South Carolina, nominee to the Court of Appeals for the
Fourth Circuit.
Mr. Keisler's nomination has been on the agenda since June
29, 2006, without a Committee vote despite his excellent
credentials. He graduated magna cum laude from Yale
University and then received his Juris Doctor from Yale Law
School. In addition to clerking for Supreme Court Justice
Anthony Kennedy, Mr. Keisler has held several high level
positions in the Department of Justice. Most recently, he
served as Acting Attorney General, providing much needed
leadership after the resignation of Attorney General
Gonzales. Prior to that, Mr. Keisler served as the Assistant
Attorney General managing the Civil Division of the Justice
Department. He is currently a partner in the D.C. office of
Sidley Austin LLP. The American Bar Association has awarded
him its highest rating, a ``unanimous well qualified,'' and
the editorial boards of the Los Angeles Times and The
Washington Post have called him a ``moderate conservative,''
a ``highly qualified nominee,'' and someone who ``certainly
warrants confirmation.''
The only objections raised to Mr. Keisler's nomination have
nothing to do with his qualifications or suitability to sit
on the D.C. Circuit. Instead, the objections concern whether
the Senate needs to fill the 11th seat on the D.C. Circuit,
the seat to which Mr. Keisler is nominated. On the contrary,
there is recent precedent of the Senate confirming a nominee
to fill the 11th seat on the D.C. Circuit. In 2005, the
Senate voted to confirm Thomas Griffith to fill the 11th seat
on the D.C. Circuit. Judge Griffith was voted out of the
Judiciary Committee and confirmed with bipartisan support,
including the support of Senators Biden, Feinstein, Durbin,
Kohl, and Schumer. In addition, Congress recently validated
the 11th seat of the D.C. Circuit when it passed the Court
Security Improvement Act last year. Further, arguments
against filling the 11th seat based on the decrease in the
D.C. Circuit's caseload since 1997 are premature due to the
recent addition of detainee cases to the circuit's
jurisdiction and the possibility of an increase in
administrative law cases due to choice of venue options.
I include Judge Conrad and Mr. Matthews in the proposed
motion due to the critical
[[Page S3045]]
need to expeditiously fill the vacancies on the Court of
Appeals for the Fourth Circuit. Currently, one-third of the
seats on the Fourth Circuit are vacant, leaving the court
inexcusably understaffed. Judge Conrad and Mr. Matthews are
also exceptional appellate court nominees. Judge Conrad is
the Chief Judge of the Western District of North Carolina, a
position to which he was unanimously confirmed in 2005. Prior
to his service on the bench, he had a long career as a
federal prosecutor, working in both Republican and Democratic
administrations. He has the support of both his home state
senators, and the ABA has rated him unanimously ``well
qualified.'' The vacancy to which Judge Conrad has been
nominated has been declared a ``judicial emergency'' by the
nonpartisan Administrative Office of the Courts. In fact,
there is a protracted history to this particular seat, which
has been vacant since 1994. However, Judge Conrad has been
waiting for a hearing for over 260 days.
Mr. Matthews is another outstanding circuit court nominee.
A graduate of Yale Law School, Mr. Matthews has had a
distinguished career in private practice in South Carolina.
He also served for several years in appointed positions in
the Department of Justice, including positions in the Civil
Division, the Civil Rights Division, the Office of Legal
Policy, and the Office of the Attorney General. He has been a
shareholder of a prominent South Carolina law firm since
1991, and from 2004 to 2008 served as the managing director.
He has the strong support of both of his home state senators.
Despite his impressive and varied professional credentials,
Mr. Matthews has been waiting for a hearing for over 200
days. Notwithstanding my repeated requests, no Committee
action is planned at this time on any of the aforementioned
nominees.
Another nominee, Justice Stephen Agee of Virginia was
recently nominated to fill another judicial emergency on the
Fourth Circuit. I remain hopeful that Justice Agee will be
listed on a hearing agenda and acted on by the Committee in
the very near future. If the Committee delays in processing
his nomination, I may return to him, given the judicial
emergency on the Fourth Circuit.
I write to find out how you would vote on the proposed
discharge petition, but also, candidly, to focus the public's
attention on these nominations. I know you are aware of the
ongoing controversy as to whether the Judiciary Committee is
processing nominations with appropriate dispatch. This type
of delay has been a recurrent problem during the last two
years of every President's Administration for the past two
decades when the White House is controlled by one party and
the Senate by the other.
I am also seeking the responses of Senator Clinton and
Senator McCain on this subject. I do not plan to make the
news media aware of my inquiries until April 15th in order to
give you ample opportunity to advise me of your response.
Thank you very much for your consideration of this request.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, April 15, 2008.
Mr. George Stephanopoulos,
ABC News.
Dear George: On April 10, 2008, I wrote to Senator John
McCain, Senator Hillary Clinton and Senator Barack Obama
seeking their positions on a prospective motion to discharge
from the Senate Judiciary Committee the pending nominations
of Mr. Peter Keisler to the Court of Appeals for the D.C.
Circuit, Judge Robert Conrad of North Carolina to the Court
of Appeals for the Fourth Circuit, and Mr. Steve Matthews of
South Carolina to the Court of Appeals for the Fourth
Circuit.
With this letter, I am enclosing copies of those letters. I
suggest you may find this subject a matter for questioning
Senator Clinton and Senator Obama during tomorrow's debate in
Philadelphia.
Sincerely,
Arlen Specter.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, April 15, 2008.
Mr. Charles Gibson,
ABC's World News.
Dear Charles: On April 10, 2008, I wrote to Senator John
McCain, Senator Hillary Clinton and Senator Barack Obama
seeking their positions on a prospective motion to discharge
from the Senate Judiciary Committee the pending nominations
of Mr. Peter Keisler to the Court of Appeals for the D.C.
Circuit, Judge Robert Conrad of North Carolina to the Court
of Appeals for the Fourth Circuit, and Mr. Steve Matthews of
South Carolina to the Court of Appeals for the Fourth
Circuit.
With this letter, I am enclosing copies of those letters. I
suggest you may find this subject a matter for questioning
Senator Clinton and Senator Obama during tomorrow's debate in
Philadelphia.
Sincerely,
Arlen Specter.
Mr. HATCH. Mr. President, last week an event occurred that was a long
time coming.
I am not talking about the grand opening of the Newseum a few blocks
from here down Pennsylvania Avenue.
No, last week the Senate finally voted on and confirmed a few
nominees to the Federal bench.
This event is of historical proportions because not since 1848 had
the Senate taken this long to confirm a Federal judge in a Presidential
election year.
You heard me right.
The first judicial confirmation of 2004 was on January 28, the first
one in 2000 was on February 10, and the first one in 1996 was on
January 2.
One of my Democratic colleagues was here on the floor last week
trying to shuffle the historical chairs on the judicial confirmation
deck by talking about the 1996 session rather than 1996 itself because
the second session of the 104th Congress began on January 3.
By dicing and splicing the calendar that way, he tried to avoid
counting all of the judges we confirmed that year.
I am not going to play that game.
I am comparing apples with apples, years with years.
In 33 of the 40 Presidential election years since 1848, the Senate
confirmed the first Federal judge by the end of February.
Not mid-April, not mid-March, but the end of February.
This is the latest start to judicial confirmations in a presidential
election year in 160 years.
Now I realize that the Senate cannot vote on nominations that have
not been reported to the floor from the Judiciary Committee.
And the Judiciary Committee generally does not report out nominees
who have not had a hearing.
Unfortunately, the Judiciary Committee has simply not been holding
hearings for nominees to the U.S. Court of Appeals.
There was no judicial confirmation hearing at all last month, and the
hearing 2 weeks ago was yet another one with no appeals court nominee.
This graph shows the number of appeals court nominees receiving a
Judiciary Committee hearing in each of the 16 Congresses since I was
first elected to the Senate.
These are the 95th Congress in 1977-78 to the current 110th Congress.
You can see there is some variation here and there from Congress to
Congress, but without a doubt the 110th Congress is the lowest of them
all.
Appeals court nominees are simply not getting hearings.
This graph helps us better evaluate what is going on today.
The Judiciary Committee held a hearing for an average of 23 appeals
court nominees in the previous 15 Congresses during which I have served
in this body.
One of my Democratic colleagues last week actually mocked using such
an average as a comparison.
This average is over many years and includes periods when Democrats
as well as Republicans ran the Senate and occupied the White House.
It is a much better, much more reliable standard than pulling out the
single year or, worse yet, only the portion of a single year that makes
a predetermined partisan point.
Today, 15 months into the 110th Congress, only five appeals court
nominees have received a hearing.
That is less than one-fourth the average over the previous 30 years.
Now some might say that Presidential election years, and therefore
Presidential election Congresses, are different, that everything slows
down.
OK, fair enough, perhaps that would be a better comparison.
Comparing the current Congress with the previous seven Presidential
election Congresses, however, only widens the contrast between what the
Senate has done in the past and what the Senate is not doing today.
It turns out that the Judiciary Committee held a hearing for an even
higher average of 25 appeals court nominees during those Presidential
election seasons.
In the current Presidential election season, however, only five
appeals court nominees have had hearings.
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 much faster than it is today, my
colleagues
[[Page S3046]]
on the other side 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 virtually no current pace at all.
It has not been this way in the past, and it does not have to be this
way today.
I am pleased that last night the distinguished majority and minority
leaders spoke about this here on the floor and the majority leader
acknowledged that ``we need to make more progress on judges.''
The majority leader said he would do his very best, his utmost as he
put it, to confirm three more appeals court nominees by Memorial Day,
which is coming in less than 6 weeks.
I would like to point out a few highly qualified nominees who have
been waiting a long time and who I hope will be included in this
effort.
Yesterday, this editorial appeared in the Washington Post.
It opens with these words: ``It is time to stop playing games with
judicial nominees.''
The editorial correctly notes that the Senate confirmed more than
twice as many appeals court nominees in the final 2 years of the
Clinton administration than the Senate has confirmed so far in the
110th Congress.
Even with the three additional appeals court nominees the majority
leader has pledged to confirm, we have a lot of ground to make up.
The editorial suggests beginning to make up that ground by confirming
Peter Keisler to the U.S. Court of Appeals for the D.C. Circuit and Rod
Rosenstein to the Fourth Circuit.
Unlike some other languishing appeals court nominees, Mr. Keisler has
at least had a hearing.
But it was 624 days ago.
Mr. Rosenstein has not been waiting that long but is fully as
qualified. As the Post editorial points out, he has admirers on both
sides of the aisle and is an excellent and principled lawyer.
Two other Fourth Circuit nominees whose consideration by the
Judiciary Committee is long overdue are Steven Matthews of South
Carolina and Robert Conrad of North Carolina.
My colleagues from those States are speaking in more detail on the
floor today, but I want to highlight that these fine nominees have the
strong support of their home-State Senators.
Lack of such support can be a reason why a nominee does not get a
hearing.
I know, because that is the reason I could not give a hearing to some
Clinton judicial nominees when I chaired the Judiciary Committee.
But that is not the case with these nominees.
And in Judge Conrad's case, this body confirmed him just a few years
ago to the U.S. District Court without even a rollcall vote.
I hope that this pledge by the majority to make some much-needed
confirmation progress is not just a temporary flash in the pan.
The majority leader last night suggested that there is some kind of
rule that the Senate does not confirm judicial nominees after June.
He actually referred to this as the Thurmond doctrine.
I want to say to my colleagues that there is no such thing as a
Thurmond doctrine, a Thurmond rule, or even a Thurmond guideline for
judicial confirmations in a Presidential election year.
In 2000, the current Judiciary Committee chairman said that while
things might, he said might, slow down ``within a couple months of a
presidential election,'' that the best judicial confirmation standard
was set in 1992.
Like today, his party was in the majority.
Like today, a President Bush was in the White House.
Senator Thurmond himself was ranking member of the Judiciary
Committee.
In that Presidential election year, the Judiciary Committee held
hearings on appeals court nominees until September 24 and the Senate
confirmed appeals court nominees until October 8.
The Senate confirmed 66 judges, including 11 appeals court judges, in
1992.
So I want to dispel this judicial confirmation myth that there is any
kind of rule, let alone a doctrine, that justifies shutting down the
confirmation activity which I hope and trust is finally about to begin.
There is no doubt that we are way behind where we should be in the
judicial confirmation process.
But it does not have to stay that way, not if we are serious about
doing our duty.
As the Washington Post editorial said, the Senate ``should at least
give every current nominee an up-or-down vote and expeditiously process
the nominees to the U.S. Court of Appeals for the Fourth Circuit.''
That would be a great place to start.
____________________