[Congressional Record Volume 154, Number 82 (Monday, May 19, 2008)]
[Senate]
[Pages S4298-S4301]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                 JUDGES

  Mr. SPECTER. Mr. President, I have sought recognition to respond to a 
statement made earlier today by the Senator from Nevada, Mr. Reid, on 
the judge issue. I heard about 25 or 30 minutes ago that Senator Reid 
had spoken. I pulled together some materials and asked my staff to 
notify Senator Reid's staff that I would be coming to the floor to 
speak on this issue, which is my practice when I am going to mention 
another Senator by name. Senator Reid, in his speech, mentioned me by 
name, stating that I had delayed the nomination of Judge Helene White, 
who is a nominee to the Sixth Circuit. My preference would have been to 
have had notice. I have been in the Senate complex since late morning, 
and I invited Senator Reid to come. And, perhaps he can come to the 
floor now. I would prefer to have this discussion face to face, but we 
can do it by long distance, through the record, or really short 
distance--Senator Reid's office is right across the hall from the 
Chamber.
  What is involved here is a very important issue, and that is the 
constitutional responsibility of the Senate to advise and consent on 
the nomination of Federal judges. Regrettably, it has been a very sore 
spot in Senate proceedings for the last 20 years. In the last 2 years 
of the Reagan administration, when Republicans controlled the White 
House and Democrats the Senate, nominations were delayed; the same 
during the last 2 years of the administration of President George H.W. 
Bush--again, Republicans controlled

[[Page S4299]]

the White House and the Democrats the Senate. Then, during the last 6 
years of President Clinton, the situation was worse--exacerbated. Each 
step along the way, the situation has gotten worse.
  I voted for President Clinton's qualified nominees and said on this 
floor that the Republican caucus was wrong to delay them, in a variety 
of ways. But, just as my caucus was wrong then, my caucus is right now. 
What the Democrats are doing to President Bush's nominees is wrong.
  In 2005, this Chamber, this historic Chamber, almost came apart with 
a challenge on the traditional right of filibuster with the so-called 
constitutional or nuclear option. And, now we have a situation where 
there is, again, a great imbalance. I will not go through the 
statistics again as to how many more nominees President Clinton got in 
his 8 years contrasted with President Bush in his 8 years. Those 
numbers have been on the record too often. I hasten to add on the 
subject that you can take the statistics in many directions, but let me 
focus on the specific matter we have at hand.
  What we have at hand is the nomination of Michigan State Court judge 
Helene White for the Court of Appeals for the Sixth Circuit. I do not 
think anybody in the Senate needs to be reminded, but some people 
watching on C-SPAN2--if there are any--would be well advised to 
understand the importance of a circuit court nomination.
  The Supreme Court of the United States reviews decisions from the 
circuits, but very few cases are reviewed by the Supreme Court because 
it is very busy. And so, that panel review by three judges on the 
circuit court is usually the last word on a matter, unless there is a 
court en banc. I will not go into details, but that is when all the 
judges of the circuit sit in unusual circumstances. The other unusual 
circumstance is when the Supreme Court grants certiorari or takes the 
case, which again is unusual. So, opinions of far-ranging importance 
are decided by the courts of appeals. Very frequently, these decisions 
are 2-to-1 decisions, so one circuit judge has a lot of power to make 
important law affecting a lot of people. The interests of individuals, 
companies, corporations, the Government, even international affairs are 
decided by these judges, and these are lifetime appointments.
  There has been considerable concern and debate in this body about the 
time the Senate has to consider these matters. Ordinarily, many weeks 
pass after the President submits a nomination before a nominee is voted 
on here. For example, Peter Keisler had a hearing, and his nomination 
has been pending for over 690 days. Judge Robert Conrad has waited more 
than 300 days for a hearing. Steve Matthews--also for the Fourth 
Circuit, from South Carolina--has waited over 250 days for a hearing.
  Contrast that with what has happened with Judge White. Judge White 
was nominated to the Sixth Circuit on April 15, 2008, and had a hearing 
on May 7, 22 days later. Her hearing record was held open until May 14 
to receive questions. Her responses to the questions are due by May 23, 
which is the last day of the session. If she were to be confirmed soon, 
she would probably break all speed records. It would probably be the 
equivalent of an Olympic record. I can't be sure of that because I have 
not checked all the records. I have only had a few minutes to prepare 
to come over here to make this presentation, but, what we do know is 
what the attitude of the Democrats was when the shoe was on the other 
foot.
  Back in 2001, when Senator Leahy became chairman of the Judiciary 
Committee, he said:

       There will be an American Bar Association background check 
     before there is a vote.

  Let the record show that there has been no American Bar Association 
evaluation on Judge White up to the present time, and the projection is 
that it will not be obtained before the Senate adjourns this week.
  I ask unanimous consent to have a letter dated May 6, 2008, to 
Chairman Leahy and myself printed in the Record following the 
conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. In 2006, when a hearing was scheduled for Peter Keisler, 
33 days after the nomination, all of the Democrats on the Judiciary 
Committee, signed a letter to me in my capacity as chairman asking me 
to ``postpone'' the hearing, citing the concern that:

     . . . the ABA has not even completed its evaluation of this 
     nominee.

  The lack of an ABA rating did not seem to bother the Democrats this 
time. They ran roughshod right over that practice and held the hearing 
22 days after the nomination was submitted before it was possible for 
the ABA to complete its rating. We did not have the benefit of the ABA 
evaluation, which is important before the hearing.
  There have been exceptions on district court nominees. I suppose you 
could go through the record and find exceptions. You can do that on 
about everything. But, with a circuit court nominee who is 
controversial, where there are questions about her qualifications, it 
is obviously a very bad practice.
  When the objections were raised to the timing on the Keisler 
nomination, Senator Leahy made the point to me as chairman--through the 
letter from all of the Democrats--that we should not be scheduling 
hearings for nominees before the committee has received their ABA 
ratings. I would note that the ABA rating for Keisler was received 
prior to his hearing. So what is good for the goose is, apparently, not 
good for the gander--bad practice for Keisler equals good practice for 
Judge White.
  Here is what Senator Schumer had to say about scheduling Keisler's 
hearing within 33 days:

       So, let me reiterate some of the concerns we expressed 
     about proceeding so hastily on this nomination. First, we 
     have barely had time to consider the nominee's record. Mr. 
     Keisler was named to a seat 33 days ago, so we are having 
     this hearing with astonishing and inexplicable speed. The 
     average time from nomination to hearing for the last 7 
     nominees to that court is several times that long.

  A practice decried in very strong terms by Senator Schumer seems to 
be okay for Judge White.
  Without going into very great detail, let the record show that Judge 
White has a very extensive record on the state court--many cases to 
consider and analyze--contrasted with the record of Mr. Keisler, who 
had never been on the court. But, the mathematics of the situation is 
conclusive.
  Now Judge White's nomination comes to the floor in the context of an 
agreement having been reached by the leaders of the Republican and 
Democratic Parties, breaking a stalemate which existed for a long time.
  Mr. President, I ask unanimous consent for an additional 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. The agreement, as accurately stated by Senator Reid 
earlier today, was in this form:

       I cannot guarantee three confirmations because that outcome 
     would depend on factors beyond my control. Still, Senator 
     Leahy and I have worked hard to move three appellate nominees 
     this month. Judge Agee is one of the three. The next two 
     nominees in line are Sixth Circuit nominees, Raymond 
     Kethledge and Helene White of Michigan.

  Well, if Judge White and Raymond Kethledge and even Judge Agee were 
the only circuit court nominees available, that comment would have some 
relevance, but there are others who have been waiting a long time. 
Peter Keisler, as I noted before, had a hearing but has been waiting on 
the committee docket for over 690 days. He could be confirmed easily in 
the time allotted. When the arrangement was made on April 15, Judge 
Robert Conrad, who had been waiting for a hearing for over 300 days, 
could have been processed and confirmed. Steve Matthews, who had been 
waiting for over 250 days, could have been processed and confirmed.
  So, Senator Reid had plenty of alternatives to deal with. He did not 
have to move to Judge White and force this phenomenal effort on a rush 
to judgment. Senator Reid sought to rebut that fact in his statement 
saying:

       No one presumed to instruct Senator Specter about the 
     sequence of nominations during the years he served as 
     Chairman of the Judiciary Committee.

  Well, let me point out that no one had to instruct Senator Specter on 
comity, on courtesy, on consultation with the Democrats. As Chairman, 
not

[[Page S4300]]

only did I never try to ram anything down the Democrats' throat, I went 
out of my way to see to it that they were consulted, that their views 
were taken into account, and that they were followed in many important 
considerations.
  The White House wanted to have the Roberts confirmation process start 
on August 28. I consulted with Senator Leahy, then ranking member. He 
thought that was a bad time, and we discussed it. I came to the 
conclusion--and candidly, would have had it in any event--but consulted 
with him before going back to the White House and saying: It cannot be 
done. It is going to be after Labor Day. If you bring back Senators 
during a recess, before children go back to school after Labor Day, it 
is a bad practice.
  The hearing was scheduled in a way which comported with what Senator 
Leahy had to say. Nobody consulted me about the scheduling of Judge 
White or the other two judges. Next, the White House wanted Justice 
Alito confirmed before Christmas. He had a big record; he had been on 
the bench for 15 years. I think Judge White has been on the bench at 
least comparable time, maybe even longer. It was unrealistic to go 
through his record in that time frame.
  I said to the White House and to the President personally: It can't 
be done realistically.
  I said: Mr. President, you have the great advantage of never having 
been a Senator.
  And, as a result, those hearings were held in January. Again, before 
the decision was made, I consulted with Senator Leahy extensively. He 
thought it was a bad idea to confirm before Christmas, and I listened. 
Here again, absent Senator Leahy's view, which I was pretty sure about 
before I consulted him, I would have had the same conclusion, but he 
was consulted, and consulted in advance.
  So, when Senator Reid says: No one presumed to instruct Senator 
Specter about the sequence of nominations when he was chairman, he is 
right, but then no one had to.
  Then we come to the part where Senator Reid mentions me, which, as I 
said, was without advanced notice.
  He said:

       Unfortunately Republican Senators on the Judiciary 
     Committee have delayed consideration of Judge White. They 
     badgered her at her confirmation hearing and then followed up 
     by asking a total of 73 separate written questions, including 
     some that will be particularly time consuming.

  Well, I am not going to take the time to go through the many hearings 
that I have sat through on that committee for the last 28 years, but 
the questioning of Judge White was firm, polite, professional, and much 
less intense than many hearings--the Alito hearings, for example, or 
from some of the Democratic Senators who questioned Roberts. She was 
not badgered. Let anybody take a fair reading or review of the video, 
and that can be easily confirmed.
  Then Senator Reid goes on to say:

       Every Senator has this right to ask questions of a nominee, 
     but the number and nature of the questions posed to Judge 
     White suggest that the Republicans intended to delay the 
     nomination.

  There is not a scintilla of fact to back that up. The need to have 
time to consider this nomination in this time sequence is obviously 
apparent on its face.
  Senator Reid goes on:

       In addition, Republicans have insisted that the nomination 
     not move forward until Judge White's ABA review is complete.

  Well, having an ABA rating is very fundamental and very basic 
procedure for every judge.
  Senator Reid goes on to say again:

       That is their right. But in this case, it is ironic they 
     would make that request since she was rated qualified by the 
     ABA 10 years ago when Republicans blocked her nomination from 
     moving forward.

  Well, that argument is not so specious that it answers itself. A 10-
year-old evaluation obviously has to be updated.
  Now, when Senator Reid objects to the questions we asked her, I take 
issue. We asked her the questions because her answers to the 
questionnaire were incomplete. She was given a questionnaire shortly 
after nomination on April 15. It was received by the committee on April 
25. One of the questions in the questionnaire was to give ``copies'' of 
speeches given.
  And it further said:

       If you do not have a copy of the speech or a transcript of 
     the tape recording, please give the name and address of the 
     group before whom the speech was given, the date of the 
     speech and the subject matter.

  Her response was:

       Over the years, I have participated as a member of various 
     panel discussions at bench, bar or State or local bar 
     association conferences and meetings. None of these have been 
     recorded or transcribed to my knowledge. I have not retained 
     any notes or outlines.

  But, she has not answered the question as to whom she spoke to or 
before. That was the question asked, and it is a relevant question and 
is the standard question for everyone.
  Next, she was asked to provide unpublished opinions when she was 
reversed. Now, that is a very important question. When a judge is 
reversed, that is a particular area worthy of inquiry. And, again, she 
did not answer the question by providing the opinions. She certainly is 
in the best position to have those opinions and speeches.
  Now, how can we confirm a judge where we do not have an opportunity 
to review all the information requested by the Senate questionnaire? 
And a good bit of this is not Judge White's fault. A good bit of this 
is the fault of the scheduling, which was determined by the Democrats.
  So here we have a situation where there was a commitment, albeit with 
limitations, to confirm three circuit judges before Memorial Day, and 
today Senator Reid comes to the floor, with adjournment later this week 
for the Memorial Day recess, and he is in effect saying: The commitment 
will not be completed due to circumstances beyond my control, beyond 
the Democrats' control. It is all the fault of the Republicans.
  Well, I ask fair-minded Americans, and Americans are fair-minded, 
whether this is appropriate. I have sought to avoid any 
characterizations or any of the vituperative language which has 
characterized this body in modern times, as we have had so much 
bickering which the American public is so sick and tired of. I have 
tried to avoid that with a strict factual analysis as to how the 
schedule proposed by Senator Reid is an unconscionable rush to 
judgment, is in violation of the standing practices and procedures of 
the Committee and the Senate, does not give an opportunity for a proper 
evaluation as to what her record is, and why she should not be 
nominated for a lifetime position on this state of the record.
  There has been a lot of talk about what the consequences will be of 
the tactics of the Democrats overall. That is going to be a question 
for the Republican caucus.
  At this point, I make only one commitment, and that is, to present it 
to the Republican caucus tomorrow. I thank my distinguished colleague 
from Florida for waiting. I would say patiently waiting, but only he 
can characterize his waiting.

                               Exhibit 1


                                     American Bar Association,

                                     Idaho Falls, ID, May 6, 2008.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Chairman Leahy and Senator Specter: On behalf of the 
     American Bar Association Standing Committee on the Federal 
     Judiciary, I write to express our concern that you have 
     decided to proceed with the confirmation hearings of Helene 
     N. White to be U.S. Circuit Judge for the Sixth Circuit and 
     Stephen Joseph Murphy III to be U.S. District Judge for the 
     Eastern District of Michigan, currently scheduled for May 7, 
     before completion of the Standing Committee's evaluation of 
     these nominees. Our evaluations provide a unique window into 
     the nominee's professional strengths and weaknesses, and 
     offer members of the Judiciary Committee and the Senate a 
     unique perspective on the nominees that otherwise would not 
     be available. You and your colleagues have noted at numerous 
     confirmation hearings that the Standing Committee's 
     evaluation is important to what you do.
       As you know, barring unusual circumstances, the expectation 
     is that the Standing Committee will complete its evaluation 
     and submit its rating within 35 days of receiving a nominee's 
     personal data questionnaire from the Department of Justice 
     and a waiver from the nominee that allows a review of 
     important records. A supplemental evaluation of a nominee 
     whose nomination has been withdrawn or returned and then 
     subsequently resubmitted by the President may require less 
     time to complete.

[[Page S4301]]

       The Standing Committee's investigations of these two 
     nominees are under way. Under our normal timetable, it would 
     be reasonable for you to expect to receive our evaluations by 
     the close of this month. It is unfortunate that, during the 
     confirmation hearing, your committee members will not have 
     the benefit of the Standing Committee's comprehensive review.
       Despite these developments, I assure you that the Standing 
     Committee will continue its work evaluating both nominees and 
     will make every effort to expedite the process without 
     compromising the thoroughness or quality of its evaluation. 
     This is consistent with our previous practice when, on rare 
     occasions, we have been confronted with a similar situation. 
     Our evaluation of each nominee will be submitted to your 
     committee and to the Administration as soon as reasonably 
     possible. We sincerely hope that the Judiciary Committee will 
     defer further consideration of, and that the Senate will take 
     no action on, these two nominees until our evaluations are 
     submitted and can help inform your critical deliberations.
       It is our belief that by evaluating the integrity, 
     professional competence and judicial temperament of each 
     nominee, the ABA helps to ensure confirmation of the best 
     qualified individuals for lifetime appointments to the 
     federal bench. The ABA Standing Committee on the Federal 
     Judiciary looks forward to continuing to work with you in 
     pursuit of that goal.
           Sincerely,
                                                C. Timothy Hopkins
                                                            Chair.
  The PRESIDING OFFICER (Ms. Cantwell). The Senator from Florida.

                          ____________________