[Congressional Record Volume 156, Number 128 (Wednesday, September 22, 2010)]
[Senate]
[Pages S7314-S7317]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SESSIONS. Mr. President, I wish to speak about the Senate's 
processing of judicial nominations, and I ask you to forgive me if I am 
a bit irritable, but we have had a lot of complaints about how fast 
President Obama's nominations are going forward. I think they are 
moving rather well. I think some people who are now complaining have 
forgotten how they handled President Bush's nominees--and in a much 
more unacceptable fashion.
  I wish to emphasize that all of this is not to lay the groundwork for 
some sort of payback, because I think we all ought to rise to the 
challenge of handling nominations properly, but to set the record 
straight, because there has been a lot of misinformation and some of 
our newer Senators don't know how things have happened.
  Allegations of unprecedented obstruction and delay have been bandied 
about--some in the press also--but the reality is that the Democrats' 
systematic obstruction of judicial nominees during the Bush 
administration was unprecedented then and it is unmatched now. Soon 
after President Bush was elected, a group of well-known liberal 
professors--Laurence Tribe, Marsha Greenberger, and Cass Sunstein--met 
with the Democratic leadership in the Senate. The New York Times 
reported on that meeting. I believe it was in January, before the 
session began, and the Times reported that they proposed ``changing the 
ground rules'' of the confirmation process. They proposed that with a 
Republican President and Democrats in the Senate, Senators consider a 
nominee's ideology--their personal political views, I suppose, they 
meant. For the first time in the history of the country, they proposed 
that the burden be shifted to the nominee to prove they are worthy of 
the appointment instead of having the Senate respect the presumptive 
power of the President to make the nomination and then object if there 
was a disagreement.
  As time went on, it became clear that a majority of the Democratic 
Members of the Senate began to execute their unprecedented obstruction

[[Page S7315]]

plan, targeting President Bush's circuit court nominees while moving 
district court nominees to mask the obstruction. After Democrats took 
control of the Senate in 2001, the Senate confirmed only 6 of President 
Bush's 25 circuit court nominations that year. Two of the six were 
prior Clinton nominees that President Bush had renominated as an act of 
good faith. They weren't his nominations. He renominated them and they 
promptly confirmed them--two of the six.
  The majority of President Bush's first nominees--nominated on May 9, 
2001--waited years for confirmation. Let me list some of the names: 
Priscilla Owen, who was then on the Supreme Court of Texas--a brilliant 
jurist--was confirmed but only after 4 years, on May 25, 2005. These 
were in that first group. Now Chief Justice John Roberts--a fabulous 
nominee; probably--not probably, he was the premier appellate lawyer in 
America--was nominated to the DC Circuit. He was confirmed, but only 
after 2 years and after undergoing two Judiciary Committee hearings. He 
eventually was confirmed by a voice vote.
  Jeffrey Sutton, another superb lawyer with great skill in the 
appellate courts, was confirmed but only 2 years later.
  Deborah Cook, for the Sixth Circuit, was confirmed 2 years later on 
May 5, 2003.
  Dennis Shedd was confirmed more than a year and a half later.
  Michael McConnell, for the 10th Circuit, was confirmed more than a 
year and a half later but also by voice vote--he was delayed that long 
for no reason.
  Terrence Boyle waited almost 8 years until his nomination was allowed 
to lapse at the end of President Bush's Presidency. He was never 
confirmed.
  Perhaps the most disturbing story was that of Miguel Estrada, whose 
name was raised during the Supreme Court nomination of Justice Kagan. 
He was an outstanding, highly qualified nominee who was nominated on 
May 9, 2001, just like the others, right after President Bush took 
office. He waited 16 months just for a hearing in the Judiciary 
Committee, only to be confronted with demands that the Department of 
Justice turn over internal legal memoranda that had never been turned 
over before. They used that for 2\1/2\ years, leaving him in limbo, and 
then had a protracted 6-month filibuster. I think it was the first 
overt, direct filibuster of a highly qualified nominee the Senate had 
seen. This was one of the ground rule changes that occurred. There were 
seven cloture votes on Miguel Estrada, seven attempts by the 
Republicans to produce an up-or-down vote on the floor of the Senate on 
Miguel Estrada. It went on for weeks. I participated in that. I 
probably spoke on his behalf more than any other Senator. Eventually, 
Mr. Estrada withdrew his name from consideration. He had a private law 
practice to deal with. He could not continue this.
  I remain baffled today as to why such a fine nominee was treated so 
poorly, his character assassinated, and his nomination was ultimately 
blocked for no reason. The record that they claim needed to be produced 
from the Department of Justice was, by every former living Solicitor 
General--they said those are internal lawyer-client documents that 
should not have been produced. It was a sad day. I hope the Senate has 
learned from that unfortunate event.
  One of the most blatant examples of obstruction of Bush nominees 
occurred in the Fourth Circuit. This court sat one-third vacant. One-
third of the judges had retired, and it was vacant. They needed judges. 
I did not hear any of my Democratic colleagues worrying then about 
vacancies and caseloads when they were deliberately delaying and 
blocking outstanding, well-qualified nominees to that court, including 
Federal District Court Chief Judge Robert Conrad, Judge Glen Conrad, 
Mr. Steve Matthews, and Mr. Rod Rosenstein. They deliberately blocked 
these nominees to keep those vacancies open so that a Democratic 
President would perhaps have the opportunity to fill them.
  That actually turned out to be a success, from their perspective. A 
2007 Washington Post editorial at the time lamented the dire straits of 
the Fourth Circuit at the time, writing:

       [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 crimes in 
     the region the Fourth Circuit covers. Two nominees--Mr. 
     Conrad and Mr. Steve A. Matthews--should receive confirmation 
     hearings as soon as possible.

  But they did not.
  He was the chief presiding trial judge in a district court, a Federal 
district court. He was nominated to the seat for which President 
Obama's nominee, Judge James Wynn, was confirmed on August 5 of this 
year. They held that seat open for 8 years. Since the President has 
been in office, he nominated someone else, and he got his nominee 
confirmed by this Senate.
  Chief Judge Conrad had the support of his home State Senators and 
received an ABA rating of unanimously ``well qualified,'' the highest 
rating you can get. He met Chairman Leahy's standard for a 
noncontroversial, consensus nominee. He previously received bipartisan 
approval by the Judiciary Committee and was unanimously approved by the 
Senate to be U.S. attorney and later to be district court judge for the 
Western District of North Carolina. Of all the lawyers in the country, 
Attorney General Reno, when he was a Federal prosecutor, reached out to 
him and picked him to preside over the investigation of one of the 
campaign finance task force cases that implicated, perhaps, President 
Clinton, the President of the United States. He did that investigation 
professionally. He returned no indictments against the President or his 
top people. He was respected on both sides of the aisle. Yet he was 
flatly blocked, although representing the highest quality.
  On October 2, 2007, home State Senators Burr and Dole sent a letter 
to Senator Leahy requesting a hearing--at least a hearing on Judge 
Conrad. They also spoke on his behalf at a press conference on June 19 
that featured a number of Judge Conrad's friends and colleagues who 
traveled all the way from North Carolina to show their support. The 
request for a hearing was denied.
  On April 15, 2008, Senators Burr, Dole, Graham, and DeMint sent a 
letter to Senator Leahy asking for a hearing on Judge Conrad and Mr. 
Matthews. That request was denied.
  Despite overwhelming support and exceptional qualifications, Judge 
Conrad waited 585 days for a hearing that never came. His nomination 
was returned to the President on January 2, 2009. That was a horrible 
event, in my view. The Senate failed in its duty. Judge Conrad was a 
powerful, bipartisan nominee with great credentials and served Attorney 
General Reno and the Democratic President and should have been 
confirmed.
  Another of President Bush's outstanding nominees was Judge Glen 
Conrad. He also had the support of his home State Senators, including 
Democratic Senator Jim Webb of Virginia, and received an ABA rating of 
``well qualified,'' the highest rating. He, too, met Chairman Leahy's 
standard because he had already been confirmed to the District Court 
for the Western District of Virginia by a unanimous vote--89 to 
nothing.
  Despite his extensive qualifications, Judge Conrad, who was nominated 
on May 8, 2008, waited 240 days for a hearing--just a hearing in the 
committee--that never came. His nomination was returned to the 
President in 2009, as President Bush left office. In stark contrast, 
President Obama's nominee to this seat, Judge Barbara Milano Keenan, 
received a hearing a mere 23 days after her nomination and a committee 
vote just 22 days later, and she was confirmed at the beginning of this 
year--a slot that should have been filled by Mr. Conrad.
  President Bush nominated Steve Matthews in 2007 to the same seat on 
the Fourth Circuit to which Judge Diaz has now been nominated. Mr. 
Matthews had the support of his home State Senators and received an ABA 
rating of ``qualified.'' He was a graduate of Yale Law School and had a 
distinguished career in private practice in South Carolina.
  Despite these qualifications, he waited 485 days for a hearing that 
never came. His nomination was returned to the President as he was 
leaving office.
  That does not seem to slow down my Democratic colleagues who have 
forgotten all this, I guess, and their allies in the press from 
unabashedly complaining that Judge Diaz had been

[[Page S7316]]

waiting too long for this seat, for a confirmation vote, or decrying 
the need to rush to fill the vacancy--a vacancy that just has to be 
filled right now.
  The truth is that the vacancy should never have existed if Mr. 
Matthews had been confirmed when he was supposed to have been 
confirmed.
  Earlier this year, we confirmed Judge Andre Davis to the ``Maryland'' 
seat on the Fourth Circuit. A brief history of that bears mention. 
President Bush nominated Rod Rosenstein to fill that vacancy in 2007. 
The ABA rated him unanimously ``well qualified,'' the highest rating. 
Previously, he had been confirmed unanimously as the U.S. attorney for 
Maryland. Prior to that, he held several positions in the Department of 
Justice under both Republican and Democratic administrations.
  Despite these stellar qualifications, Mr. Rosenstein waited 414 days 
for a hearing--just a hearing in the Judiciary Committee, which the 
Democrats never gave him. His nomination was returned to the President 
on January 2, 2009.
  The reason given by the home State Senators for why his nomination 
was blocked was that he was ``doing [too] good [of a] job as U.S. 
Attorney in Maryland.'' I think the Washington Post editorial painted a 
more accurate picture, saying:

       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.

  But it was only when President Obama nominated Judge Davis to this 
seat that we heard our Democratic colleagues express outrage over the 
fact that it had been vacant for 9 years. I said that was like the man 
who complained about being an orphan after having murdered his parents. 
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 being nominated. A committee vote occurred 36 days later, and he 
has been confirmed.
  Suffice it to say that the Democrats have capitalized on their 8 
years of obstruction of outstanding, well-qualified Bush nominees by 
packing the Fourth Circuit Court of Appeals with Obama-picked nominees.
  I want to say, parenthetically, President Bush did an excellent job 
of picking high-quality judicial nominees. Consistently, they sought 
out highly competent men and women of integrity and ability to appoint 
to the courts, people who had this fundamental belief--that some on the 
other side do not like--that a judge should follow the law, should be a 
neutral umpire, and should not take sides and ought not to be an 
activist and ought not to promote their personal agenda when they get a 
chance to rule and define the words of statutes and the Constitution. 
There is a fundamental difference. I will talk about that later. I may 
not get to that today, but I am going to talk about it some more. It is 
a big deal, what you think the role of a judge is. Should they be an 
activist? Should they promote greater vision, as President Obama said, 
of what America should be? Is that what we want judges to do? 
Classically, in America, judges are empowered to do one thing: to 
decide the discrete case before them objectively, impartially, under 
the laws and Constitution of the United States.
  The Democratic Senators perpetrated similar systematic obstruction in 
the Sixth Circuit. I hate to say it. I hate to talk about it. I sound 
like I am being a partisan person over here, complaining. I am just 
reading the record.
  In November of 2001, President Bush nominated Judges David McKeague, 
Susan Neilson, and Henry Saad to fill vacancies on that court. In June 
of 2002, he nominated Richard Griffin to fill an additional Sixth 
Circuit vacancy.
  Mr. President, I see my time is up. I don't see anyone on the floor. 
I ask unanimous consent that I be able to proceed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I will yield the floor if and when my 
colleagues seek it.
  But the Democratic home State Senators refused to return their blue 
slips for any of these nominees for the Sixth Circuit. President Bush 
renominated all four on January 2003. This time the Democratic home 
State Senators returned their blue slips--negative blue slips, opposing 
all four nominees.
  Despite this, on July 30, 2003, 629 days after the initial nomination 
and 204 days after his renomination, the Republican-controlled 
Judiciary Committee--Republicans had just taken control--held a hearing 
on Judge Saad's nomination.
  However, Democrats continued to delay the nomination for a year, 
until he was finally and favorably reported out of committee on a 
party-line vote. But it did not matter. The Democrats filibustered his 
nomination on the floor, and he never received an up-or-down vote in 
the Senate. He was filibustered, which was a changing of the ground 
rules. We had not filibustered judges before in the Senate. All this 
occurred after 2001.
  President Bush renominated Judge Saad in February 2005, but the 
Senate failed to act on his nomination, and he was never confirmed. 
Judges Griffin and McKeague eventually received hearings on June 16, 
2004, 721 days after Judge Griffin had been nominated, and 951 days 
after Judge McKeague's original nomination. They were both reported 
favorably out of committee a month later, but the Democrats 
filibustered them on the floor, and their nominations were returned to 
the President.
  Both were renominated in the 109th Congress and were finally and 
overwhelmingly confirmed, Judge Griffin by a vote of 95 to 0 and Judge 
McKeague by a vote of 96 to 0.
  As these votes show, the nominations were not controversial. They 
were just being held up. Yet they still waited over 1,000 days for 
their confirmation. Judge Susan Nielson received a hearing on September 
8, 2004, over 1,000 days after her original nomination and over 600 
days after her renomination. Although her nomination was reported 
favorably out of committee on October 4, 2004, Democrats refused to 
give her an up-or-down vote in the full Senate, and her nomination was 
returned to the President.
  He renominated her in 2005, and 7 months later the Democratic home 
State Senators finally returned positive blue slips, after delaying the 
nomination for this long. She was easily confirmed 97 to zip, 1,449 
days after her original nomination. Unfortunately, Judge Nielson passed 
away shortly thereafter.
  On June 28, 2006, President Bush nominated Stephen Murphy and Raymond 
Kethledge to fill still more vacancies on the Sixth Circuit. However, 
the Democratic home State Senators withheld their blue slips, and the 
nominations were returned to the President. The President renominated 
them in March of 2007. After almost a year of delay, as part of a 
compromise, President Bush agreed to withdraw Mr. Murphy's nomination 
and to nominate Judge Helene White in his place. In exchange, home 
State Senators finally returned positive blue slips for Mr. Kethledge.
  There is a story behind this. Why was there so much needless 
obstruction in the Sixth Circuit? One reason, it appears, was that the 
NAACP National Defense League made a personal request to Democratic 
Senators on the Judiciary Committee that they stall the confirmation of 
nominees to the Sixth Circuit until cases regarding the 
constitutionality of affirmative action in higher education were 
decided. They believed, apparently, that if Bush appointees were 
confirmed to that circuit, the outcome of the cases would not be to 
their liking. They were afraid President Bush's judges would be 
committed to color-blind policies.
  So this is just one example of a larger agenda. Our Democratic 
colleagues criticized, during the Kagan confirmation hearings, Chief 
Justice Roberts' metaphor that a judge should act like a neutral umpire 
in a ball game, calling balls and strikes and applying the law to the 
facts.
  No, they seem to want judges who will make policy and rule based on 
their personal policy preferences and political beliefs to advance 
desired outcomes.
  Well, what is activism? Is this an exaggeration? I think we need to 
be frank that there are activist judges--and you can be a conservative 
activist or a liberal activist, but there is a difference in the sense 
that liberal judges and law

[[Page S7317]]

professors and commentators advocate judges being activists.
  Chief Justice Roberts and Justice Alito were articulate spokesmen for 
the classical American view that a judge should be a neutral umpire and 
should be impartial and should decide the cases and not try to make law 
or advance a vision for America.
  Many judges, however, are overriding the will of the people this very 
day. It is becoming apparent that many on the left hold the Federal 
judiciary as an engine to advance the agenda of the left, picking and 
choosing which constitutional rights they will protect and which ones 
they will cast aside. The only consistent principle--of which sometimes 
I think, and I am exaggerating, but I sometimes think--is to advance 
the agenda of the leftwing of the Democratic Party. That is about the 
only consistent guiding principle you can find in some of these 
opinions.
  Just a few months ago, the preservation of the explicit 
constitutional right to keep and bear arms was upheld by a single vote 
on the Supreme Court. Four Justices, including Justice Sotomayor, 
contrary to, I think, what she said just 1 year earlier in her 
confirmation hearing, would have held that the right to keep and bear 
arms is different from other liberties protected by the Bill of Rights 
and should not apply to the States.
  Hugely significant. If that were to be so, any State, any city or 
county, for that matter, could ban firearms altogether because the 
constitutional right to keep and bear arms would not apply to them. 
Four Justices on the Supreme Court ruled that way.
  During the last term, the free speech clause of the first amendment 
barely escaped being rewritten by a single vote in Citizens United. In 
that case, the Supreme Court invalidated a portion of the McCain-
Feingold campaign finance law, holding that political speech is not 
exempted from the first amendment guarantee of free speech merely 
because the speaker's expression is funded, in part, by money from a 
corporation, a group of Americans.
  Four Justices on the Supreme Court would have rewritten the free 
speech clause to allow the government to ban statements made by such 
groups in an election cycle. I mean, the last thing we need to be doing 
is whacking away at the great liberties in free speech clause of the 
first amendment.
  Just a couple years ago, one vote on the Supreme Court decided that a 
city could use its eminent domain power to take property, to take a 
woman's house, in order to give it to a private company for a 
redevelopment project, not for public use. So much for the 
constitutional guarantee of life, liberty and property and the 
constitutional guarantee that your property can only be taken for 
public use, not private use. You cannot take somebody's property 
because you would like to take it to give to somebody else who would 
use it in a way that the city thinks is better, maybe spend more money 
on it so they can get more tax revenue.
  By one vote, the Supreme Court held it did not violate the first 
amendment for a public university to require a religiously oriented 
student organization to accept officers and members who do not 
subscribe to the organization's religious beliefs. How could they say 
that?
  Recently, a judge in the Western District of Wisconsin, the same 
district to which Louis Butler has been nominated, held that the 
statute establishing the National Day of Prayer was unconstitutional 
because its sole purpose ``is to encourage all citizens to engage in 
prayer.''
  In so doing, the judge held that the government had ``taken sides on 
a matter that must be left to individual conscience.'' Well, nobody is 
being made to pray. You do not have to bow your head if someone has a 
prayer, for heaven's sake.
  One wonders, then, does this Senate violate the establishment clause 
each day when we open the session with a prayer, most often led by a 
paid Chaplain, former head of the entire Chaplain Corps of the United 
States Military?
  There is a constitutional guarantee to the right of free exercise of 
one's religion, the free exercise clause, not found in the first 
amendment of the judge's constitution.
  I will repeat, if other Senators would desire to speak, I will yield 
the floor.
  The liberal Ninth Circuit, to which Professor Goodwin Liu has been 
nominated, held recently that the recitation of the Pledge of 
Allegiance in an elementary school was unconstitutional under the 
establishment clause of the first amendment because the pledge includes 
the words ``under God,'' and amounted to a government endorsement of a 
religion.
  One wonders what the Ninth Circuit would have to say about teaching 
children the Declaration of Independence. After all, it does say: ``We 
hold these truths to be self-evident, that all men are created equal, 
that they are endowed by their Creator with certain unalienable 
Rights.'' Is that now unconstitutional, to read the Declaration of 
Independence?
  A single judge on the U.S. district court in Massachusetts recently 
invalidated the congressionally passed Defense of Marriage Act that 
passed on this floor. I remember the debate about it. The judge found 
it unconstitutional. Basically, what he said is: No State would have to 
give full faith and credit to a marriage in another State if it does 
not meet their definition of marriage as between a man and a woman.
  The judge, in great wisdom, not having had to run for office, with a 
lifetime appointment, unaccountable to the public in any way, objected, 
found it to be unconstitutional because it did not have ``a legitimate 
government interest'' and was outside the scope of ``legislative 
bounds.''
  Well, I remember the debate on that. People quoted the Constitution, 
and we discussed it at great length. I cannot imagine how that can be 
held to be unconstitutional.
  A single judge in the Northern District of California, the same court 
to which Edward Chen has been nominated, held that a statewide ballot 
initiative defining marriage--this was a California initiative, 
statewide, that defined marriage as between a man and a woman, which 
was passed by a majority of California voters--violated the due process 
and equal protection clauses of the fourteenth amendment.
  The judge decided, essentially by fiat, that the State, the people of 
California, had no legitimate interest in defining marriage.
  Marriage has always been a matter of State law. A single judge in the 
central district of California recently held Congress's don't ask, 
don't tell policy was unconstitutional. This is the policy on gays in 
the military. The judge in the central district of California held that 
this policy was unconstitutional because it did not ``significantly 
further the government's interest in military readiness or unit 
cohesion.'' It was an impermissible content-based restriction that 
violated free speech, free association, and the petition clauses of the 
first amendment.
  I don't think this judge has any responsibility for or knowledge 
about readiness and unit cohesion in the military. It is a matter 
Congress appropriately has dealt with, will have the opportunity to 
deal with again, and may well do so, although we did not move forward 
yesterday.
  This is not a matter for the courts. The American people know this. 
They sense activism in their courts, and they are concerned and unhappy 
because these judges, once they declare something to be constitutional, 
or find something in the Constitution, it is as if an entire amendment 
was passed, and it becomes impossible for a city or county, a State or 
congressional action to overturn it.
  These are big issues we have been talking about for some time. I do 
have my back up a little bit about being accused of obstructing, when 
nominees are moving along at a very good pace today, in my opinion. A 
few are controversial, and I could talk about them, but I see Senator 
Kerry in the Chamber now.
  I believe when we get all the facts out, people will remember that 
many of the changes in the process occurred as a deliberate plan by the 
Democratic leadership in 2001.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.

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