[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.

                          ____________________