Congressional Record, Volume 156 Issue 166 (Wednesday, December 15, 2010)

[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:

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.

____________________