[Congressional Record Volume 155, Number 200 (Wednesday, December 23, 2009)]
[Senate]
[Pages S13878-S13879]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SESSIONS. Mr. President, as the first session of the 111th 
Congress comes to a close, I believe it is important to correct the 
record regarding the Senate's processing of judicial nominations. 
Despite the statements of some of my Democrat colleagues to the 
contrary, the fact is we have been moving nominees at a fair and 
reasonable pace. The Judiciary Committee has held hearings for every 
one of President Obama's circuit court nominees and all of his district 
court nominees that are ripe for a hearing. At this point in President 
Bush's administration, 30 nominees had yet to even receive a hearing. 
As the numbers bear out, President Obama's nominees have fared far 
better.
  Allegations that Republicans are delaying confirmation votes ring 
hollow. Democrats control 60 votes in the Senate and set the agenda for 
the floor. If my Democrat colleagues are dissatisfied with the pace of 
nominations, I suggest that they look to their leader. On Tuesday, the 
majority and minority leaders announced that we will vote on Judge 
Beverly Martin's nomination to the Eleventh Circuit Court of Appeals on 
January 20. As I have said many times before, Republicans have been 
ready and willing to proceed to a roll call vote on this nomination for 
months. I do not know the majority leader's reasons for not calling up 
the nomination sooner. Indeed, I do not claim to know the majority 
leader's reasons for not calling up a number of nominations. Perhaps in 
some cases it is because my Democrat colleagues do not want to have a 
debate on the merits and expose to the American people just what types 
of individuals the President has nominated to serve on the Federal 
bench and in crucial positions at the Justice Department. Or perhaps, 
and I sincerely hope that this is not the case, Democrats have been 
purposefully delaying nominees in order to create the illusion that 
Republicans are obstructing.
  It bears mention that the average time from nomination to 
confirmation for nominees to the Circuit Courts of Appeal under 
President Bush was 350 days. And that was just the average. The 
majority of President Bush's first nominees to the circuit courts 
waited years for confirmation votes and some of them never even 
received a hearing, despite being highly qualified, outstanding 
nominees.
  It has been suggested by some that roll call votes should not be 
required for judicial nominees, as if this is something that has never 
been done before. In fact, rollcall votes and time agreements for 
noncontroversial judicial nominees became routine in 2001, at the 
insistence of Chairman Leahy and former Majority Leader Daschle. During 
the Bush administration, of the 327 article III judges confirmed by the 
Senate, 59 percent were by rollcall vote. The vast majority of those--
86 percent--were consensus, noncontroversial nominees who were 
unanimously approved. In short, in 2001 the Democrats adopted a new 
standard: a presumption that all lifetime appointments receive a formal 
recorded vote. There is no reason that presumption should change now 
simply because a Democrat is in the White House. Notwithstanding that 
new standard, I would be remiss if I did not point out that four of the 
last five judicial nominees that we have confirmed have been confirmed 
without rollcall votes.
  Over the past month, the Senate has been consumed in a debate on a 
healthcare bill that would create an enormous entitlement program, the 
likes of which we have never before seen in this country. Tomorrow 
morning, the Senate will proceed to a vote on this monumental piece of 
legislation. It can hardly be said that it has been ``business as 
usual'' in the Senate. While Senators have been focused on health care, 
as they should be, Democrats have seen fit to slip through lifetime 
appointments to the Federal judiciary. Just last week, Chairman Leahy 
scheduled a hearing for two Fourth Circuit nominees in the middle of 
this historic debate. Both Judge Diaz and Judge Wynn were nominated by 
the President on November 4, 2009. This is a quick turnaround for any 
circuit court nominee, and it is especially quick for a nominee to the 
Fourth Circuit. During the 110th Congress, despite the 33 percent 
vacancy rate and overwhelming need for judges, four nominees to that 
court were needlessly delayed: Mr. Steve Matthews, Judge Robert Conrad, 
Judge Glen Conrad, and Mr. Rod Rosenstein.
  President Bush nominated Steve Matthews on September 6, 2007, to the 
same seat on the Fourth Circuit for

[[Page S13879]]

which Judge Diaz has been nominated. Mr. Matthews had the support of 
his home state senators and received an ABA rating of Substantial 
Majority Qualified. He was a graduate of Yale Law School and had a 
distinguished career in private practice in South Carolina. Despite his 
exemplary qualifications, Mr. Matthews waited 485 days for a hearing 
that never came. His nomination was returned on January 2, 2009.
  Another of President Bush's nominees, Chief Judge Robert Conrad, was 
nominated to the seat for which Judge Wynn is now nominated. He had the 
support of his home state senators and received an ABA rating of 
Unanimous Well-Qualified. Further, Judge Conrad met Chairman Leahy's 
standard for a noncontroversial, consensus nominee because he 
previously received bipartisan approval by the Judiciary Committee and 
the Senate when he was confirmed by voice vote to be a U.S. Attorney in 
North Carolina and later to the District Court for the Western District 
of North Carolina. On October 2, 2007, Senators Burr and Dole sent a 
letter to Senator Leahy requesting a hearing for Judge Conrad, and they 
spoke on his behalf at a press conference on June 19 that featured a 
number of Judge Conrad's friends and colleagues who had traveled all 
the way from North Carolina to show their support for his nomination. 
That request was ignored. On April 15, 2008, Senators Burr, Dole, 
Graham, and DeMint sent a letter to Senator Leahy asking for a hearing 
for Judge Conrad and Mr. Matthews. Despite overwhelming support and 
exceptional qualifications, Judge Conrad, who was nominated on July 17, 
2007, waited 585 days for a hearing that never came. His nomination was 
returned on January 2, 2009.
  Judge Glen Conrad also had the support of his home State Senators--
including Democrat Senator Jim Webb--and received an ABA rating of 
Majority Well-Qualified. He too met Chairman Leahy's standard because 
he was confirmed to the District Court for the Western District of 
Virginia by a unanimous, bipartisan vote of 89-0 in September 2003. 
Despite his extensive qualifications, Judge Conrad, who was nominated 
on May 8, 2008, waited 240 days for a hearing that never came. His 
nomination was returned on January 2, 2009.
  Earlier this year, we confirmed Judge Andre Davis to the ``Maryland'' 
seat on the Fourth Circuit. A brief history of that seat bears mention. 
President Bush nominated Rod Rosenstein to fill this vacancy on 
November 15, 2007. The ABA rated Mr. Rosenstein Unanimous Well 
Qualified, and in 2005, he was confirmed by a noncontroversial voice 
vote to be the United States attorney for the District of Maryland. 
Prior to his service as U.S. attorney, he held several positions in the 
Department of Justice under both Republican and Democrat 
administrations. Despite his stellar qualifications, Mr. Rosenstein 
waited 414 days for a hearing that never came. His nomination was 
returned on January 2, 2009. The reason given by his home state 
senators for why his nomination was blocked was that he was ``doing a 
good job as the U.S. attorney in Maryland and that's where we need 
him.'' I think that a 2008 Washington Post editorial painted a more 
accurate picture: ``blocking Mr. Rosenstein's confirmation hearing . . 
. would elevate ideology and ego above substance and merit, and it 
would unfairly penalize a man who people on both sides of this question 
agree is well qualified for a judgeship.''
  It was only when President Obama nominated Judge Davis to this seat 
that we heard Democrats' outrage over the fact that the seat had been 
vacant for 9 years. Ironically, however, Judge Davis fared far better 
than President Bush's nominees to the Fourth Circuit. He received a 
hearing a mere 27 days after his nomination, a committee vote just 36 
days later, and, finally, confirmation earlier this year. There are 
other examples of Democrats' unreasonable delay and obstruction but I 
will not detail them here. Suffice it to say that Democrats are now 
capitalizing on their eight years of obstruction by seeking to pack the 
Fourth Circuit Court of Appeals.
  It has been said that the overall federal judiciary vacancy rate is 
higher than it was when President Bush was in office and therefore we 
need to confirm more judicial nominees. But, as the story of the Fourth 
Circuit obstructionism illustrates, that is a specious argument. During 
the Bush administration, Democrats held up qualified judicial 
nominees--for years in some cases--denying them an up-or-down vote even 
though the majority of Senators were ready and willing to confirm them. 
And, in any event, the need to fill vacancies should not undercut the 
responsibility of the Senate to properly vet these lifetime 
appointments. As the minority party, we have a duty and a right to ask 
the important questions that may not be asked by those who agree with 
the President's point of view.
  In that regard, we can only process nominees that we have before us. 
President Obama has nominated only 12 circuit court nominees, all of 
whom have had hearings; there are currently 20 circuit court vacancies. 
Similarly, President Obama has nominated only 19 district court 
nominees, all but 6 of whom have had hearings; there are currently 78 
district court vacancies. These numbers stand in stark contrast to the 
65 nominees President Bush put forth during his first year in office.
  I have said many times that I do not wish to engage in a back and 
forth on this issue but I will not stand by while some in this body 
attempt to rewrite history in their favor. Facts are stubborn things 
and despite the statements by some to the contrary, they cannot alter 
the state of the facts and the evidence.

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