[Congressional Record Volume 154, Number 60 (Wednesday, April 16, 2008)]
[Senate]
[Pages S3070-S3071]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Madam President, Senate Democrats have worked hard to make 
progress on judicial nominations. That hard work has paid off, with 
circuit court vacancies at less than half of what they were when 
President Clinton left office. The majority leader last week was right 
to call the Republican complaints chutzpah.
  Yesterday, the Michigan Senators and I were able to overcome a long 
impasse lasting more than a decade over vacancies on the Sixth Circuit. 
I have long urged the President to work with the Michigan Senators, 
and, after 7 years, he finally has. With his nomination of Judge Helene 
White of Michigan, we have a significant development that can lead to 
filling the last two vacancies on the Sixth Circuit before this year 
ends.
  Our actions in resolving this impasse stands is sharp contrast to 
action of Senate Republicans who refused to consider any nomination to 
the Sixth Circuit Court of Appeals in the last 3 years of the Clinton 
administration, leaving open four vacancies. Thanks to the hard work of 
Senator Levin and Senator Stabenow, we are now poised to fill them all.
  Judge White was initially nominated 11 years ago, but her nomination 
was 1 of the more than 60 judicial nominees the Republicans pocket 
filibustered. After literally years of work, her renomination yesterday 
allows us to move forward with the support of the Senators from 
Michigan. I plan to consider the Sixth Circuit nominations as quickly 
as possible.
  We are also poised to make progress to end a long impasse on the 
Fourth Circuit with the pending nomination of Steve Agee of Virginia. 
After insisting on nominating a series of contentious and time-
consuming choices such as Jim Haynes, Claude Allen and Duncan Getchell, 
a nomination that was not supported by either the Republican Senator or 
the Democratic Senator from Virginia, the President this year has 
finally chosen to work with Senator Warner and Senator Webb. I have 
already said that I expect to hold the confirmation hearing on the Agee 
nomination as soon as the paperwork is completed. If we are able to 
confirm Steve Agee, there will be fewer Fourth Circuit vacancies than 
there were at the end of the Clinton administration.
  Just last week, on a day when the Republicans chose to ignore the 
pressing problems affecting the lives of the American people and vent 
over judicial nominations, the Senate proceeded on schedule to confirm 
another five lifetime judicial appointments, including that of 
Catharina Haynes to fill the last vacancy on the Fifth Circuit. Similar 
to yesterday's progress with nominations to the Sixth Circuit, this 
stands in marked contrast to consideration of nominations to that court 
during the Clinton administration. At that time, the Republican-
controlled Senate refused to consider nominees for the last 4 years 
of the Clinton administration, while the Chief Judge of the Fifth 
Circuit declared a circuit-wide emergency. Today, there are no 
vacancies on the Fifth Circuit.

  I have said for 8 years that if the President is willing to work with 
us and consult in the constitutionally mandated process of advice and 
consent, we can make significant progress. When he does so, as he has 
recently with respect to Virginia and now Michigan, I have commended 
him. I do so again today.
  It has taken years. It has taken effort. It has taken the 
steadfastness of Senators Levin and Stabenow. Today we can all take 
heart that we have broken through a decade's old impasse. Others have 
tried but been unsuccessful. I know that Senator Hatch tried and 
Senator Specter tried. We are succeeding. We are succeeding because we

[[Page S3071]]

have not been distracted by politically driven fights but stayed focus 
on making real progress. Even now, while others insist on fussing and 
fighting, I am working to continue to make progress where we can.
  We have already cut the circuit court vacancies more than in half. 
Today circuit court vacancies stand at 12, the lowest number of such 
judicial vacancies in more than a decade, indeed since the Republican 
effort to stall President Clinton's nominees and increase circuit court 
vacancies. By the end of President Clinton's administration, the 
Republican majority in the Senate had expanded those vacancies from 12 
to 26. When I began the consideration of President Bush's nominees in 
the summer of 2001, circuit court vacancies stood at 32 and overall 
vacancies topped 110. Yet we get no credit or even acknowledgement from 
the Republican side of the aisle for all our efforts and 
accomplishments in cutting those vacancies. In fact, we are being 
penalized for doing a good job early and not following their pattern of 
building up massive vacancies before allowing nominations to proceed.
  While I continue to process nominations in the last year of this 
President's term, we have already lowered the vacancies in the Second 
Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the 
Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, the DC Circuit, 
and the Federal Circuit. Both the Second and Fifth Circuits had 
circuit-wide emergencies due to the multiple simultaneous vacancies 
during the Clinton years with Republicans in control of the Senate, 
some numbering as high as five. Both the Second Circuit and the Fifth 
Circuit now are without a single vacancy after last week's confirmation 
of Judge Catharina Haynes. Circuits with no vacancies also include the 
Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the Eleventh 
Circuit and the Federal Circuit. That is five circuits without a single 
vacancy due to our efforts. Indeed, the only circuit that has more 
vacancies than it did at the end of the Clinton administration is the 
First Circuit, which has gone from no vacancies to one. The other three 
circuits, the Third, the Fourth and the Seventh have the same number of 
vacancies today that they had at the end of the Clinton administration. 
When we take action on the Agee nomination from the Fourth Circuit, 
even that circuit will be in an improved posture.
  I am trying to make significant progress. I have made sure that we 
did not act as Republicans did during the Clinton administration when 
they pocket filibustered more than 60 judicial nominations and voted 
lock step against the confirmation of Ronnie White. I am also mindful 
that their bad behavior not simply be forgotten, and thereby rewarded. 
They have yet to acknowledge responsibility and accept any 
accountability for their actions. We have not engaged in a tit-for-tat. 
Rather, by cutting the vacancies as we have, we have taken a giant step 
toward resolving these problems, just as we are now on course to 
resolve the longstanding impasse in the Sixth Circuit. We have acted 
more fairly. I hope to be able to complete the restoration of the 
confirmation process during the next President's administration. We 
will then have overcome years of partisan rancor.

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