[Congressional Record Volume 156, Number 166 (Wednesday, December 15, 2010)]
[Senate]
[Pages S10297-S10299]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, this morning, both the New York Times and 
the Washington Post published strong editorials condemning the delays 
in Senate consideration of the President's nominees. The Washington 
Post wrote about the extraordinary and damaging treatment of Jim Cole, 
who is nominated to serve as the No. 2 official at the Justice 
Department, a position with extensive responsibilities for national 
security and law enforcement. The New York Times wrote about the 
across-the-board objections to Senate consideration of judicial 
nominees, including dozens who have been reported without opposition by 
all Republicans and Democrats on the Judiciary Committee.
  Two weeks ago, I came to the floor and asked unanimous consent that 
the Senate consider the long-pending nomination of Jim Cole to be the 
Deputy Attorney General, and that the Senate schedule for debate and a 
vote without further delay. Senator Sessions objected to my request and 
we continue to be prevented from acting on this critical national 
security nomination.
  I will ask consent to have printed in the Record at the conclusion of 
my statement today's editorial from the Washington Post entitled, ``An 
Unacceptable Delay.'' The editorial notes:

       James M. Cole appeared well on his way in July to filling 
     the important No. 2 slot at the Justice Department after 
     earning a favorable vote from the Senate Judiciary Committee.
       But the full Senate has yet to vote on Mr. Cole's 
     nomination to what is essentially the post of chief operating 
     officer of the mammoth department. The five months between 
     committee and floor vote appear to be the longest delay 
     endured by any deputy attorney general nominee.
       The slow crawl comes courtesy of some Senate Republicans 
     who question Mr. Cole's approach to terrorism cases and his 
     role as an independent monitor for struggling financial giant 
     American International Group (AIG). These concerns should not 
     derail Mr. Cole's confirmation--and they certainly should not 
     be used to block a vote.

  Mr. Cole's nomination has been pending on the Senate's Executive 
Calendar since it was reported favorably by the Judiciary Committee in 
July. Those continuing to block this nomination from debate and a vote 
are wrong. As the editorial observes: ``There is no suggestion that Mr. 
Cole suffers from the kind of ethical or legal problems that would 
disqualify a nominee.'' If Senators disagree, they are free to vote 
against the nomination. But it is long past the time to end the 
stalling.
  I noted 2 weeks ago that the letter from eight former Deputy 
Attorneys General of the United States who served in the 
administrations of President Reagan, President George H.W. Bush, 
President Clinton, President George W. Bush, as well as the current 
administration, correctly observed that ``the Deputy is also a key 
member of the president's national security team, a function that has 
grown in importance and complexity in the years since the terror 
attacks of September 11.'' They are right. This is a dangerous game 
that partisans are playing in stalling this important nomination in 
what is really an unprecedented way.
  Mr. Cole's nomination has been pending five times longer than the 
longest-pending Deputy Attorney General nomination in the last 20 
years. All four of the Deputy Attorneys General who served under 
President Bush were confirmed by the Senate by voice vote an average of 
21 days after they were reported by the Judiciary Committee. In fact, 
we confirmed President Bush's first nomination to be Deputy Attorney 
General the day it was reported by the committee. We treated those 
nominations of President Bush with the ``enormous deference in 
executive branch appointments'' that the Post editorial today states 
that every President deserves.
  Jim Cole served as a career prosecutor at the Justice Department for 
a dozen years, and has a well-deserved reputation for fairness, 
integrity and toughness. As he demonstrated during his confirmation 
hearing months ago, he understands the issues of crime and national 
security that are at the center of the Deputy Attorney General's job. 
Nothing suggests that he will be anything other than a steadfast 
defender of America's safety and security. His critics are wrong about 
Jim Cole's approach to terrorism. He has testified strongly that the 
President should use every power and weapon and tool he possesses in 
this fight.

[[Page S10298]]

  His critics are also wrong to try to blame him for the actions of 
AIG. His role was limited to a monitor of other corporate functions and 
there is no showing he did not perform his assignment well. In fact, 
former Republican Senator Jack Danforth introduced him to the committee 
and gave him a strong endorsement. Let us hold those responsible at AIG 
accountable. Those who disagree are free to vote against the nomination 
of this good man if they choose, but they should end the holds and the 
stalling and let the Senate decide whether to consent to this 
nomination. As today's editorial concludes, ``have the decency to hold 
a floor vote and give him a thumbs down.'' I am confident that when 
allowed a vote, he will be confirmed. He should be confirmed with 
bipartisan support and that vote should have been taken months ago. The 
months of delay of this nomination have been unnecessary, debilitating 
and wrong.
  I urge those Senators who are objecting to debate and a vote to turn 
away from their destructive approach so that we can consider and 
confirm Jim Cole immediately and he can finally begin his important 
work to help protect the American people.
  For over a year now, I have been urging all Senators, Democrats and 
Republicans, to join together to take action to end the crisis of 
skyrocketing judicial vacancies now threatening the ability of Federal 
courts throughout the country to administer justice for the American 
people. That has not happened. I have asked that we return to 
longstanding practices that the Senate used to follow when considering 
nominations from Presidents of both parties. This has not happened. As 
a result, 38 judicial nominations that have been favorably reported by 
the Judiciary Committee continue to be stalled without final Senate 
action on the Senate's Executive Calendar.
  I will ask consent to have printed in the Record at the end of my 
statement today's editorial from The New York Times entitled ``Advise 
and Obstruct.'' It rightly calls for an end to the across-the-board 
obstruction of President Obama's judicial nominations. The editorial 
notes that the Senate has been blocked from considering a single 
judicial nomination since September 13. In fact, the Senate has only 
considered five Federal circuit and district court nominations since 
the Fourth of July recess. Of the 80 judicial nominations reported by 
the Judiciary Committee and sent to the Senate for final action in 
order to fill Federal circuit and district court vacancies, only 41 
have been considered. That is a historically low number and percentage. 
Meanwhile, dozens of judicial nominees with well-established 
qualifications and the support of their home state Senators from both 
parties have been ready and kept waiting for Senate consideration all 
year.
  The editorial also points to the high costs of obstruction ``at a 
time when an uncommonly high number of judicial vacancies is 
threatening the sound functioning of the nation's courts.'' The 
editorial is right. The vacancies on the Federal courts around the 
country have doubled over the last 2 years and now are at the 
historically high level of 111. Fifty-two of these vacancies are deemed 
judicial emergency vacancies by the nonpartisan Administrative Office 
of the U.S. Courts. The Senate has received letters from courts around 
the country calling for help to address their crushing caseloads, 
including letters from the Chief Judges of the Ninth Circuit Court of 
Appeals and the U.S. District Courts in California, Colorado, Illinois 
and the District of Columbia. They have pleaded with us to end the 
blockade and confirm judges to fill vacancies in their courts.
  The Times editorial accurately portrays a grim picture of where we 
are in considering these nominations and also points the way forward:

       At this point, the Senate has approved 41--barely half--of 
     President Obama's federal and district court nominees 
     reported by the Judiciary Committee. Compare that with the 
     first two years of the George W. Bush administration when the 
     Senate approved all 100 of the judicial nominations approved 
     by the committee. The final days of the lame-duck session are 
     a chance to significantly improve on this dismal record and 
     to lift the judicial confirmation process out of the partisan 
     muck.

  The editorial calls for a vote on all 38 judicial nominations 
awaiting final action by the Senate. I agree and have been calling for 
votes on all of these nominations. We should do as we did during 
President Bush's first 2 years in office and consider every judicial 
nomination favorably reported by the Senate. During those two years the 
Judiciary Committee favorably reported 100 judicial nominations and the 
Senate confirmed every one of them, including controversial circuit 
court nominations reported during the lameduck session in 2002. In 
contrast, we have during President Obama's first 2 years favorably 
reported 80 circuit and district court nominations, but considered only 
41, barely half.
  I have been trying to end this obstruction, yet it continues. 
Agreements to debate and consider nominations have been sought 
repeatedly, but the Republican leadership has objected time and time 
again.
  Of the 38 judicial nominations currently stalled on the Executive 
Calendar, 29 of them were reported unanimously, without a single 
negative vote from the 19 Republican and Democratic members of the 
committee. Another three were reported with strong bipartisan support 
and only a small number of no votes. Of these 32 bipartisan, consensus 
nominees, 17 of them were nominated to fill judicial emergency 
vacancies. They should all have been confirmed within days of being 
reported, not obstructed with weeks and months of delay. It will be a 
travesty if they are not all confirmed before the 111th Congress 
adjourns.
  These consensus nominees include six unanimously reported circuit 
court nominees, and another circuit court nominee supported by 17 of 
the 19 Senators on the Judiciary Committee. The nomination of Judge 
Albert Diaz of North Carolina, a respected and experienced jurist who 
served in the Armed Forces, for a judicial emergency vacancy on the 
Fourth Circuit has been stalled for 11 months despite the support of 
his home state Senators from both parties. Judge Ray Lohier of New York 
would fill one of the four current vacancies on the U.S. Court of 
Appeals for the Second Circuit. He is another former prosecutor with 
support from both sides of the aisle. His confirmation has been stalled 
for no good reason for more than seven months. Scott Matheson is a 
nominee from Utah supported by Senator Hatch; he was reported without 
opposition over 6 months ago. Mary Murguia, a nominee from Arizona 
supported by Senator Kyl, was reported without opposition over 4 months 
ago. Judge Kathleen O'Malley of Ohio is nominated to the Federal 
Circuit and was reported without opposition nearly 3 months ago. 
Justice James Graves of Mississippi, whose nomination has the strong 
support of his home State Republican Senators, was reported unanimously 
to serve on the Fifth Circuit. Also pending is a seventh consensus 
circuit court nomination, Susan Carney of Connecticut, who was reported 
with strong bipartisan support to fill another judicial emergency 
vacancy on the Second Circuit.
  The nominees currently being blocked from consideration also include 
30 district court nominations, some reported as long ago as February. 
The Republican blockade of these nominations is a dramatic departure 
from the traditional practice of considering them expeditiously and 
with deference to the home State Senators. These 30 district court 
nominees include 23 nominees reported unanimously by the Judiciary 
Committee. Fifteen of these nominations are for seats designated as 
judicial emergencies. All of these nominees have well established 
qualifications and are at the top of the legal community in their home 
states. All have put their lives and practices on hold in an attempt to 
serve their country and their community. There is no cause for 
continuing to block the Senate from considering their nominations and 
no precedent for extending these delays further.
  In addition, I have urged for many months that the Senate debate and 
a vote on those few nominees that Republican Senators decided to oppose 
in committee. These nominees include Benita Pearson of Ohio, William 
Martinez of Colorado, Louis Butler of Wisconsin, Edward Chen of 
California, John McConnell of Rhode Island, and Goodwin Liu of 
California. As I have said before, I have reviewed their records and 
considered their character,

[[Page S10299]]

background and qualifications. I have heard the criticisms of the 
Republican Senators on the Judiciary Committee as they have voted 
against this handful of nominees. I disagree, and believe the Senate 
would vote, as I have, to confirm them. Each of these nominees have 
been reported favorably by the Judiciary Committee, several of them two 
or three times, and each deserves an up-or-down vote. That they will 
not be conservative activist judges should not disqualify them from 
consideration by the Senate or serving on the bench.
  All 38 of these judicial nominations should have an up-or-down vote, 
just as all 100 of President Bush's judicial nominations reported by 
the committee in his first 2 years had a vote in the Senate. Even if 
Republican Senators will not follow our example and treat President 
Obama's nominees as we treated President Bush's, even if they will not 
abide by the Golden Rule, they should at least listen to their own 
statements from just a few years ago. They said that every judicial 
nomination reported by the Senate Judiciary Committee was entitled to 
an up-or-down vote. They spoke then about the constitutional duty of 
the Senate to consider every judicial nomination. The Constitution has 
not changed; it has not been amended. The change from the days in which 
they made those statements is that the American people elected a new 
President and he is making the nominations. In fact, President Obama 
has reached out and worked with Senators from both sides of the aisle. 
We have not sought to proceed on one of his judicial nominees without 
the support of both home State Senators.
  Time is running out in this Congress to turn away from the disastrous 
strategy of blocking nominations across the board. It is time to return 
to the Senate's longstanding traditions and reject this obstruction. 
The Federal courts and the American people who depend on the courts for 
justice are suffering.
  Today, December 15, is the anniversary of the ratification of the 
Bill of Rights, the first 10 amendments to the Constitution of the 
United States. Let us renew our commitment to the Constitution, to our 
Bill or Rights, and to our liberty by turning away from the destructive 
partisanship that has delayed Senate consideration of these 
nominations. Let us act in the spirit of the Founders, in the spirit of 
the season, and move forward together to consider and vote on these 
important nominations of a Deputy Attorney General and U.S. judges.
  Mr. President, I ask unanimous consent to have printed in the Record 
the articles to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Dec. 15, 2010]

                         An Unacceptable Delay

       James M. Cole appeared well on his way in July to filling 
     the important No. 2 slot at the Justice Department after 
     earning a favorable vote from the Senate Judiciary Committee.
       But the full Senate has yet to vote on Mr. Cole's 
     nomination to what is essentially the post of chief operating 
     officer of the mammoth department. The five months between 
     committee and floor vote appear to be the longest delay 
     endured by any deputy attorney general nominee.
       The slow crawl comes courtesy of some Senate Republicans 
     who question Mr. Cole's approach to terrorism cases and his 
     role as an independent monitor for struggling financial giant 
     American International Group (AIG). These concerns should not 
     derail Mr. Cole's confirmation--and they certainly should not 
     be used to block a vote.
       Mr. Cole, who is in private practice and spent some 13 
     years in the Justice Department, criticized the Bush 
     administration in a 2002 opinion piece in Legal Times for 
     some of its post-Sept. 11, 2001, tactics, including the use 
     of ``military tribunals to try noncitizens for terrorist 
     crimes.'' Sen. Jeff Sessions (R-Ala.), ranking member on the 
     Senate Judiciary Committee, condemned Mr. Cole for labeling 
     the attack a crime rather than an act of war; he also 
     questioned the wisdom of embracing ``a law enforcement 
     approach.''
       ``You capture enemies. You arrest criminals,'' Mr. Sessions 
     said during the confirmation hearings. Mr. Cole said he 
     believes that recently reconstituted military commissions are 
     a legitimate option, but he rightly refused to rule out 
     federal court prosecutions for some suspects--an approach 
     that mirrors that of the president and the attorney general.
       Some Republicans also are troubled by Mr. Cole's work, 
     starting in 2006, as a special monitor for AIG. Mr. Cole made 
     several suggestions about needed improvements in AIG's 
     business practices, but he appears not to have addressed the 
     risky and unregulated credit default swaps that led to AIG's 
     collapse and subsequent government bailout because they were 
     not part of his portfolio.
       The president deserves enormous deference in executive 
     branch appointments. There is no suggestion that Mr. Cole 
     suffers from the kind of ethical or legal problems that would 
     disqualify a nominee. If Republicans nevertheless find Mr. 
     Cole unacceptable, they should have the decency to hold a 
     floor vote and give him a thumbs down.
                                  ____


                [From the New York Times, Dec. 14, 2010]

                          Advise and Obstruct

       The Senate's power to advise and consent on federal 
     judicial nominations was intended as a check against sorely 
     deficient presidential choices. It is not a license to 
     exercise partisan influence over these vital jobs by blocking 
     confirmation of entire slates of well-qualified nominees 
     offered by a president of the opposite party.
       Nevertheless, at a time when an uncommonly high number of 
     judicial vacancies is threatening the sound functioning of 
     the nation's courts, Senate Republicans are persisting in 
     playing an obstructionist game. (These, by the way, are the 
     same Senate Republicans who threatened to ban filibusters if 
     they did not get an up-or-down vote on every one of President 
     George W. Bush's nominees, including some highly problematic 
     ones.)
       Because of Republican delaying tactics, qualified Obama 
     nominees who have been reported out of the Judiciary 
     Committee have been consigned to spend needless weeks and 
     months in limbo, waiting for a vote from the full Senate.
       Senate Republicans seek to pin blame for the abysmal pace 
     of filling judicial vacancies on President Obama's slowness 
     in making nominations. And, no question, Mr. Obama's laggard 
     performance in this sphere is a contributing factor. 
     Currently, there are 50 circuit and district court vacancies 
     for which Obama has made no nomination. But that hardly 
     explains away the Republicans' pattern of delay over the past 
     two years on existing nominees, or the fact that Senate 
     Republicans have consented to a vote on only a single 
     judicial nomination since Congress returned from its August 
     recess.
       At this point, the Senate has approved 41--barely half--of 
     President Obama's federal and district court nominees 
     reported by the Judiciary Committee. Compare that with the 
     first two years of the George W. Bush administration when the 
     Senate approved all 100 of the judicial nominations approved 
     by the committee. The final days of the lame-duck session are 
     a chance to significantly improve on this dismal record and 
     to lift the judicial confirmation process out of the partisan 
     muck.
       Of the 38 well-qualified judicial nominees awaiting action 
     by the full Senate, nearly all cleared the Judiciary 
     Committee either unanimously or with just one or two 
     dissenting votes. Some nominees have been waiting for Senate 
     action for nearly a year. Senator Mitch McConnell, the 
     minority leader, should allow confirmation of all 34 nominees 
     considered noncontroversial, including the 15 nominees 
     cleared by the committee since the November election.
       There are four other nominees who were approved by the 
     committee over party-line Republican opposition. They, too, 
     deserve a prompt vote rather than requiring President Obama 
     to start the process over again by renominating them when the 
     next Congress begins. That short list of controversial 
     nominees includes Goodwin Liu, an exceptionally well-
     qualified law professor and legal scholar who would be the 
     only Asian-American serving as an active judge on the United 
     States Court of Appeals for the Ninth Circuit. His potential 
     to fill a future Supreme Court vacancy seems to be the main 
     thing fueling Republican opposition to his nomination.
       Mr. McConnell is said to be negotiating a deal with Senator 
     Harry Reid, the majority leader, that allows for confirmation 
     of 19 nominees approved by the committee before the election 
     but denies consideration by the full Senate to the others. 
     That would be a disservice to the judicial system, to Mr. 
     Obama's nominees and to the idea that bipartisanship should 
     exist, at last, in the advice-and-consent process for federal 
     judges.

                          ____________________