[Congressional Record Volume 154, Number 74 (Tuesday, May 6, 2008)]
[Senate]
[Pages S3756-S3758]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. CORNYN. Mr. President, this morning, in North Carolina, Senator 
John McCain, the presumptive Republican nominee for President of the 
United States, is giving a very important speech. He may be speaking 
even as I am speaking. But he is talking about the role of judges in 
our Government. I think it is a very important speech. I hope our 
colleagues and the American people will pay close attention to what 
Senator McCain is saying when he talks about the important role Federal 
judges play in our American Government.
  I hope Senator Obama and Senator Clinton will likewise take the 
opportunity, at the first chance they have, to talk about their 
philosophy, about the types of judges they believe should be nominated 
by the next President of the United States, were they to have that 
privilege and that opportunity.
  Five years ago, on April 30, 2003, I, along with nine other of the 
newest Members of the Senate, wrote a letter on this issue to Senator 
Frist and Senator Daschle, the respective leaders of our parties. That 
letter was important not only because it was a bipartisan statement 
acknowledging the judicial confirmation process was broken and needed 
fixing but also important because it called, on a bipartisan basis, by 
the newest Members of the Senate, for a clean break or as we called it, 
a fresh start when it came to the issue of judicial confirmations and, 
notably, we said to ``leave the bitterness of the past behind us.''
  Mr. President, I ask unanimous consent that letter be printed in the 
Record at the end of my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. CORNYN. I would like to read from a passage in that letter, 
signed by we 10 freshmen at the time. In 2003, we wrote to our leaders:

       In some instances, when a well qualified nominee for the 
     federal bench is denied a vote, the obstruction is justified 
     on the ground of how prior nominees--typically, the nominees 
     of a previous President--were treated. All of these 
     recriminations, made by members on both sides of the aisle, 
     relate to circumstances which occurred before any of us 
     [actually] arrived in the United States Senate. None of us 
     were parties to any of the reported past offenses, whether 
     real or perceived. None of us believe that the ill will of 
     the past should dictate the terms and direction of the 
     future.

  Unfortunately, 5 years later, when it comes to judicial nominations, 
the grievances of the past are still dictating the terms and direction 
of the future when it comes to judicial nominees. There is still time 
for that fresh start we called for, still time for a clean slate but, 
unfortunately, no signs that is likely to occur in the current 
environment.
  So it will likely come to pass once again that last year's and the 
previous year's grievances will be used again, not without some 
justification, by Senate Republicans to justify the obstruction of a 
future Democratic President's judicial nominees, which shows the death 
spiral we are involved in when it comes to not taking care of the 
Nation's work, not allowing an up-or-down vote of judicial nominees on 
the floor of the Senate.
  When it comes to judicial nominations, the Senate is supposed to be, 
as Senator Specter said, the world's greatest deliberative body. But it 
often acts more like the Hatfields and the McCoys, or perhaps, for 
those who remember Huck Finn, the Grangerfords and the Shepherdsons, 
who do not know how the feud began but, nonetheless, continue to 
escalate the violence.

  Let's step back and consider the basic facts. Right now across 
America there are 46 Federal judicial vacancies--12 on the circuit 
court of appeals, 34 on the district courts. Of these 46 vacancies, 13 
are considered ``judicial emergencies,'' including a handful on the 
Fourth Circuit Court of Appeals,

[[Page S3757]]

where a full 33 percent of the bench is vacant because we in the Senate 
have not done our job.
  The simple fact of the matter is, thus far, during President Bush's 
final 2 years in office, we have seen a record-low number of Federal 
judges approved by the Senate.
  Since our friends on the other side of the aisle took over the Senate 
in 2007, a total of only 7 circuit court nominees have been approved--
and only one this year. It would be most unfortunate and indeed, I 
daresay, precedent setting if this Senate set this new low-water mark.
  For my part, I have been pleased to work with the chairman of the 
Judiciary Committee, Senator Leahy, to gain confirmation of the last 
two Texans to be nominated and confirmed to the Fifth Circuit Court of 
Appeals. Most recently, I appreciated the chairman's cooperation and 
assistance in confirming Catharina Haynes to the Fifth Circuit.
  But despite my appreciation, I must also express my regret that Ms. 
Haynes is the only circuit nominee confirmed this year. I would not be 
fulfilling my oath of office if I did not press for fair treatment not 
only for judicial nominees who come from my State, Texas, but for my 
colleagues' home State nominees as well.
  There are many other critical judicial positions that demand our 
immediate action. I mentioned the Fourth Circuit, which serves the 
States of Virginia, Maryland, North Carolina, South Carolina, and West 
Virginia.
  The Fourth Circuit is currently operating, as I indicated, with one-
third less than a full complement of judges on the bench. That is why 
the Judicial Conference has called this a judicial emergency. The 
Senate can and must act to alleviate this strain and this denial of 
access to justice on behalf of the people of those States, who are 
denied access to justice because there are simply not enough judges who 
have been confirmed to sit and hear their cases.
  The Judiciary Committee is poised to act this Thursday on Justice 
Stephen Agee of Virginia, a Fourth Circuit nominee, and it should at 
the very least move forward with the nominations of other Fourth 
Circuit nominees who have the support of both home State Senators.
  Even the Washington Post, in December 2007, decried the situation on 
the Fourth Circuit saying:

       [T]he 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 4th Circuit covers.

  I am greatly disappointed the Judiciary Committee has been so slow to 
act on these important nominations. I would ask the chairman again to 
push forward with hearings and give the nominees an opportunity for an 
up-or-down vote on the Senate floor.
  There is no doubt the American people deserve, and our very concept 
of American Government requires, qualified judges who understand the 
proper role of a judge, which is not to be another branch of the 
legislature dispensing their view of justice, sort of on an ad hoc 
basis, but, rather, judges who believe their job is to interpret and 
enforce the Constitution, not to make up the law as they go along.
  As such, we should exercise due diligence to properly review 
nominees. But the constitutionally mandated process of advice and 
consent should be done expeditiously, and debates on these nominees 
should be done openly, as the Senator from Pennsylvania suggested.

       We have before us numerous well-qualified nominees who have 
     offered themselves to serve our citizens. We must endeavor to 
     minimize the role of partisan politics in judicial 
     nominations, and we should work harder to ensure the judicial 
     vacancies are filled in a more timely manner.

  I know my time is up, and I know the distinguished Senator from 
Arizona is here to speak, perhaps on the same subject. But I am glad 
Senator McCain, the presumptive Republican nominee, is speaking on this 
important issue today. I repeat my hope that Senator Obama and Senator 
Clinton would address this very important responsibility of the next 
President of the United States. But I would submit, again, it is our 
responsibility to promptly move on these nominations and to give these 
nominees a fair up-or-down vote. That has not been happening.
  Mr. President, I yield the floor.

                               Exhibit 1


                                                  U.S. Senate,

                                   Washington, DC, April 30, 2003.
       Dear Senators Frist and Daschle: As the ten newest members 
     of the United States Senate, we write to express our concerns 
     about the state of the federal judicial nomination and 
     confirmation process. The apparent breakdown in this process 
     reflects poorly on the ability of the Senate and the 
     Administration to work together in the best interests of our 
     country. The breakdown also disserves the qualified nominees 
     to the federal bench whose confirmations have been delayed or 
     blocked, and the American people who rely on our federal 
     courts for justice.
       We, the ten freshmen of the United States Senate for the 
     108th Congress, are a diverse group. Among our ranks are 
     former federal executive branch officials, members of the 
     U.S. House of Representatives, and state attorneys general. 
     We include state and local officials, and a former trial and 
     appellate judge. We have different viewpoints on a variety of 
     important issues currently facing our country. But we are 
     united in our commitment to maintaining and preserving a fair 
     and effective justice system for all Americans. And we are 
     united in our concern that the judicial confirmation process 
     is broken and needs to be fixed.
       In some instances, when a well qualified nominee for the 
     federal bench is denied a vote, the obstruction is justified 
     on the ground of how prior nominees--typically, the nominees 
     of a previous President--were treated. All of these 
     recriminations, made by members on both sides of the aisle, 
     relate to circumstances which occurred before any of us 
     arrived in the United States Senate. None of us were parties 
     to any of the reported past offenses, whether real or 
     perceived. None of us believe that the ill will of the past 
     should dictate the terms and direction of the future.
       Each of us firmly believes that the United States Senate 
     needs a fresh start. And each of us believes strongly that we 
     were elected to this body in order to do a job for the 
     citizens of our respective states--to enact legislation to 
     stimulate our economy, protect national security, and promote 
     the national welfare, and to provide advice and consent, and 
     to vote on the President's nominations to important positions 
     in the executive branch and on our nation's courts.
       Accordingly, the ten freshmen of the United States Senate 
     for the 108th Congress urge you to work toward improving the 
     Senate's use of the current process or establishing a better 
     process for the Senate's consideration of judicial 
     nominations. We acknowledge that the White House should be 
     included in repairing this process.
       All of us were elected to do a job. Unfortunately, the 
     current state of our judicial confirmation process prevents 
     us from doing an important part of that job. We seek a 
     bipartisan solution that will protect the integrity and 
     independence of our nation's courts, ensure fairness for 
     judicial nominees, and leave the bitterness of the past 
     behind us.
           Yours truly,
         John Cornyn, Lisa Murkowski, Elizabeth Dole, Norm 
           Coleman, Lamar Alexander, Mark Pryor, Lindsey Graham, 
           Saxby Chambliss, Jim Talent, John E. Sununu.

  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Mr. President, might I inquire how much time is remaining on 
this side?
  The ACTING PRESIDENT pro tempore. Six and a half minutes.
  Mr. KYL. Thank you, Mr. President.
  I appreciate the comments of my colleague from Texas and would note, 
as he did, my colleague from Arizona, John McCain, is making an 
important statement today respecting the need to confirm good judges 
for our court of appeals and Federal district courts--something which 
he will be committed to when he is President of the United States.
  Our friends around the country might be wondering: What exactly is 
going on around here? Why are we talking about the need to confirm 
judges? It is a good question. The answer is this: It is interesting 
that in most of the Presidencies--in fact, in the last four 
Presidencies--in the last 2 years of the Presidency, the other party is 
in charge of the Senate. You had that situation with Ronald Reagan; 
with George Bush, the 41st President; with Bill Clinton; and with the 
current President Bush. In each case, the other party was in charge of 
the Senate the last 2 years of their Presidency.
  Now, on the average, between 15 and 17 circuit court judges have been 
confirmed in the last 2 years, even though it is the other party in 
charge of the Senate. That is because we have a responsibility under 
the Constitution to act on the nominees the President, regardless of 
party, has made.
  That is his job, and this is our job. Both of us have to do our jobs. 
It would not be appropriate for the Senate to simply sit on our hands 
and not act on the nominees of the President, even though he may be of 
the other party.

[[Page S3758]]

  So between 15 and 17 nominees of the President have been confirmed 
each of the last 2 years for these last Presidencies. But, 
unfortunately, that is not the case with the current President. We are 
not on track to get that number confirmed. In fact, we have only had 
six confirmed.
  That is why our leader, Senator McConnell, sought to have an 
agreement with the majority leader to try to get more circuit judges 
confirmed. An agreement was reached that at least three judges would be 
confirmed by the end of this month.
  Now, what is interesting is that up to now, there has been sort of a 
sense that: Well, it is not possible to get very many judges confirmed. 
It takes a long time, and there is a lot of process involved. But what 
this latest agreement demonstrates, as Senator Specter, who spoke 
earlier, pointed out, is that when the majority party wants to, it can 
act very quickly to confirm judges. In fact, it can move very quickly.
  That is what Senator Leahy, the chairman of the Senate Judiciary 
Committee, is now doing because, unfortunately, he does not want to 
take the judges who are in the queue and get those judges considered by 
the committee on the floor of the Senate and voted on by the Senate. He 
has judges that he would rather get considered, but they were way 
behind in the process. So he is speeding them up, getting them through 
the process very quickly, in breach of what had been the policy in the 
past.

  Nevertheless, he is moving them along very quickly with an intention, 
I gather, to try to comply with this agreement and get them confirmed 
by the end of the month. That is a good thing in the sense that we will 
get three more circuit court nominees.
  I suspect it does illustrate that the Judiciary Committee and the 
Senate can act quickly when we want to get these confirmations 
accomplished. But that will leave us several more judges who have been 
pending a long time. That will leave us the months of June, July, and 
September, at least, when we can confirm additional nominees. The 
question will be, what will happen then? Will we act with similar 
alacrity?
  We have one judge nominee, Peter Keisler, who has been pending for 
almost 2 years now. His hearing has been held. All he has to do is come 
before the committee. That will take 1 or 2 weeks at the most, and he 
could be on the floor of the Senate. We have other nominees from the 
Fourth Circuit Court of Appeals, four nominees pending in the Judiciary 
Committee. Judge Robert Conrad and Steve Matthews are ready for 
hearings. Mr. Rod Rosenstein of Maryland could be ready but is being 
blocked by the two Senators from his State. Judge Steven Agee had a 
hearing last week.
  So there are judges in the queue who could be dealt with. There is no 
reason to hold them back except a possible desire not to get them 
confirmed or politics. I don't know what is behind it. There is no 
reason not to move forward with these nominees.
  The Washington Post, no big supporter of the President, said 
recently, after we confirmed one court of appeals nominee:

       That should be only the beginning. . . .In the past two 
     years, the Senate has confirmed seven nominees to the Court 
     of Appeals; 16 such nominees were confirmed during President 
     Bill Clinton's final two years in office.
       It appears unlikely that Democratic Senators will match 
     that number, but they 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 4th Circuit, 
     where five of the court's 15 seats are vacant.

  That was an editorial entitled, ``Judges, and Justice, Delayed: The 
Senate Needs To Move Faster On Court Nominations,'' of April 15, 2008. 
That is obviously very true. There is no reason these other judges 
cannot be considered as well. When we ask the question, what is really 
going on, it is that the chairman of the committee apparently is 
desirous of picking and choosing which nominees move forward. It is not 
a matter that the nominees cannot move forward.
  In one case, or in two or three cases, they are ready to have the 
hearings. In one case, the hearing has already been held. So it is 
literally only a matter of a week or two before those nominees could be 
brought to the Senate floor. As illustrated by the current process, to 
get these other judges confirmed by Memorial Day, it is clear that when 
we want to we can accelerate the process and get the job done.
  I will close by noting that regarding the nominee who has been 
pending now for almost 2 years, Peter Keisler, the Washington Post had 
this to say:

       Peter Keisler was nominated in 2006 to the U.S. Court of 
     Appeals for the DC Circuit; his confirmation hearing was in 
     August of that year. It is a travesty that he has yet to get 
     a vote from the Senate Judiciary Committee.

  Here, I will interpose, what is the holdup? Going back to the 
editorial:

       Mr. Keisler, who was chief of the Justice Department's 
     Civil Division before joining a private law firm, earns 
     plaudits from the right and left for stellar intellect and 
     his judicial demeanor. Democrats have held up Mr. Keisler's 
     nomination over a squabble about whether the DC Circuit needs 
     12 full-time judges. That dispute is over: Congress 
     eliminated the 12th seat this year. Mr. Keisler should be 
     confirmed forthwith.

  So, clearly, we have nominees who should be confirmed. They are in 
the queue waiting. They could be easily taken up this week or next 
week. Their hearings need to be held. They need to be brought to the 
Senate floor and I urge my colleagues to work with us to move this 
process forward so these important nominees can be considered by the 
full Senate.
  The ACTING PRESIDENT pro tempore. The Senator from Washington is 
recognized.

                          ____________________