[Congressional Record Volume 154, Number 100 (Tuesday, June 17, 2008)]
[Senate]
[Pages S5680-S5681]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         UNANIMOUS CONSENT REQUEST--COMMITTEE ON THE JUDICIARY

  Mr. REID. Mr. President, we have a vote that will occur momentarily. 
I ask unanimous consent that the Senate Committee on the Judiciary be 
authorized to meet during the session of the Senate in order to conduct 
a hearing entitled ``Responding to the Growing Need for Federal 
Judgeships: The Federal Judgeship Act of 2008.'' It is scheduled for 
2:30 this afternoon in the Dirksen Building. The witness list is 
remarkably good. We have the chairman of the Judiciary Resources 
Committee, Judicial Conference of the United States; the Director of 
Homeland Security and Justice from the United States Government 
Accountability Office, William O. Jenkins. That would be an important 
hearing to go forward. As of now, we have not had consent from the 
minority to go forward with this.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, I object. I will use a few moments of 
leader time to explain why.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Mr. President, we need to get back to first principles 
around here. The Democratic majority scheduled the hearing my good 
friend references in a way that would violate the standing rules of the 
Senate. Rule 26.5 provides:

       Notwithstanding any other provision of the rules, when the 
     Senate is in session, no committee of the Senate or any 
     subcommittee thereof may meet, without special leave, after 
     the conclusion of the first two hours after the meeting of 
     the Senate commenced and in no case after two o'clock . . . 
     unless consent therefor has been obtained from the majority 
     leader and the minority leader . . .

  Typically, as we all know, the minority provides consent for 
committees to violate rule 26.5. The minority routinely provides this 
consent, frankly, in the interest of comity. But comity also requires 
the majority to treat the minority fairly which means, at a minimum, 
that the majority needs to keep its commitments to the minority. If 
commitments in this body are not kept, then comity breaks down. If that 
occurs, the minority will not routinely grant consent to those matters 
that we usually do. In this case, we have unfulfilled commitments with 
respect to treating circuit court judges fairly. It is the middle of 
June. The Senate has only confirmed eight circuit court nominees. This 
is less than half the number the majority leader and I agreed to at the 
beginning of the Congress. It is barely half the number of circuit 
court nominees that a Republican Senate confirmed in President 
Clinton's final Congress. More troubling, the chairman has threatened 
to soon stop confirming circuit court nominees altogether here in June.
  The Republican conference does not consider this lack of progress and 
thinly veiled threat to be, frankly, in good faith. Not surprisingly, 
it is, therefore, not inclined to freely give its consent to matters 
that are important to the majority. That is the way things work around 
here. As I have said before, the Senate works best when there is a 
spirit of cooperation. Absent that spirit, the minority will be 
compelled to protect its rights using all protections afforded it under 
Senate rules.
  There is an easy solution to the problem. We have been talking about 
it both privately and publicly over the last few months. The majority 
needs to start confirming circuit court nominees, at least those who 
meet the chairman's own criteria.
  And it seems to me that before the committee spends its time creating 
new vacancies, which is what the hearing today was about, it needs to 
work

[[Page S5681]]

on filling the vacancies that already exist. Unfortunately, the 
Judiciary Committee is moving at a glacial pace toward that end. It has 
only held two circuit court hearings this year. Before that, it hadn't 
held a single one since last September. We have no indication that it 
is going to pick up the pace. There are several outstanding nominees 
who have been sitting in committee who meet the chairman's criteria. 
Until they are treated fairly, the majority will find our cooperation 
increasingly hard to come by.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I understand that my distinguished 
counterpart has a right to do this, an absolute right. I don't question 
that right. We will just have to schedule the hearing at a different 
time, if they don't want to have the hearing. I will, though, briefly 
comment, quoting Majority Leader Lott from years past. When we go home 
to our respective States, there are a lot of issues. Every State has 
the same issues: housing problems, high gas prices, doing something 
about global warming. When is the last time anyone went home and 
somebody said to you: Boy, are you guys going to do something about 
those judges? As Senator Lott said: The question never comes up.
  Senator Leahy, chairman of this committee, and I have said before, 
this Judiciary Committee has wide-ranging jurisdiction over a lot of 
issues, most of which are extremely difficult to deal with. He does a 
remarkably good job. I am very proud that he is the chairman of the 
Judiciary Committee. But he and I said we would do our utmost by the 
Memorial Day break to confirm three more circuit court judges. I think 
it was three; I don't remember the number. We did our utmost. Senator 
Leahy did his utmost. But it was slow walked by the Republicans on the 
Judiciary Committee. So we are at a point now where finally we had two 
circuit court judges reported out of the committee last week. We are 
going to vote on those as soon as we can. We have fulfilled our 
commitment, so no one needs to talk about commitments not being 
fulfilled.
  Again, I didn't invent the Thurmond rule. It was invented by long-
time Senator Strom Thurmond, at one time chairman of the Judiciary 
Committee. He said that after June 1, he felt it was appropriate not to 
rush into appointing more Federal judges. We have not said that the 
Thurmond rule is in place. But some said we should have it in place. It 
is well after June 1, and Senator Leahy and I are still committed to 
taking care of more circuit court judges. We are going to do that. I am 
sure there will be opportunities to take a look at some trial court 
judges. But we are doing our very best.

  I admire and appreciate the work of Senator Leahy.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. REID. Yes, I will.
  Mr. LEAHY. Mr. President, I ask through the Chair, did the majority 
leader not hear the distinguished Republican leader say they don't want 
to give consent to these hearings that the majority may want? I was 
wondering if the distinguished majority leader was aware of this 
discussion on May 15 of this year about this judgeship act. First, I 
quote Senator Sessions, a noted Republican:

       My comments on the judges' bill, as a member and Ranking on 
     the Courts Subcommittee, we did have hearings several years 
     ago but not recently.

  Then we heard from Senator Kyl, the distinguished deputy minority 
leader:

       So what I would like to do, Mr. Chairman, is just recommend 
     that you take our colleagues up on the suggestion that we 
     have a hearing to validate the requirements.

  At which point Senator Coburn, another Republican, said:

       If we're going to fix it, let's fix it right. Let's have a 
     great hearing. Let's bring the GAO in, let's bring the 
     Conference in, and let's find out [how] to do it right.

  And then Senator Grassley, another noted Republican said:

       That is the purpose of a hearing, and that's why it is very 
     important that we give this adequate study. I ask the 
     distinguished leader, was he aware of the fact that this 
     hearing was being held after four senior members of the 
     Republican caucus asked me to have the hearing?

  Mr. REID. I say to my friend, in response to his question, yes. And 
the Senator from Vermont followed the advice of his colleagues and had 
someone from the General Accounting Office testify. I appreciate that.
  I ask that we have the vote now. Members have been waiting.

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