[Congressional Record Volume 158, Number 40 (Monday, March 12, 2012)]
[Senate]
[Pages S1570-S1571]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. DURBIN. Madam President, I rise to speak about the issue of 
judicial nominations. Our Nation faces a serious problem: 1 out of 
every 10 Federal judgeships is vacant. Yet we continue to see--
unfortunately and sadly--unprecedented obstruction from the other side 
of the aisle when it comes to these nominations. Right now on the 
Executive Calendar of the Senate there are 22 judicial nominations 
pending. Twelve of these 22 were successfully voted out of the 
Judiciary Committee last year, 2 of them as far back as October, and 17 
of the nominees currently on the calendar were voted out with strong 
bipartisan support. Additionally, 13 of the 22 nominees who are being 
held have the approval of the Republican Senator from the State where 
the nomination has been made.
  Despite the fact these nominations are not controversial, that they 
passed by a bipartisan vote in the Judiciary Committee and out of the 
committee, they still languish on the calendar because of Republican 
objections.
  I know people get tired and say: I wish you all weren't so partisan 
around here. Well, I hate to give a speech where most will say that is 
just a partisan speech, but we are talking about nominees who have 
bipartisan support, with a strong vote coming out of committee being 
held on the calendar. Despite the fact they are noncontroversial, there 
have been objections to up-and-down votes. All we ask for is to just 
give them a vote. It is not right. Unfortunately, it is a new 
development in the Senate.
  It used to be when a noncontroversial district or circuit court 
nominee was reported out of the Senate Judiciary Committee with 
bipartisan support, that nominee would literally be approved on the 
Senate floor usually by voice vote within a matter of days. Even when 
there were battles over the controversial Supreme Court or appellate 
court nominees, the Senate never obstructed a noncontroversial nominee 
at the same time, especially at the district court level.
  When President Obama took office, Senate Republicans adopted a new 
and disturbing strategy. They began refusing to give their consent to 
schedule votes on almost all judicial nominees. You say to yourself: 
Well, what is their strategy? It is very apparent. They are praying, of 
course, that a Republican will be elected President and they can fill 
the vacancies. They want them to continue to have empty seats on our 
judicial courts for the remainder of this year until the election. 
President Obama's nominees have been subjected to an unprecedented 
level of obstruction by the Republicans, more than any other President 
has received.
  Listen to this: President Obama's district court nominees have waited 
an average of 93 days on the Senate Executive Calendar between a 
committee vote and a floor vote. How about George W. Bush? How long did 
his nominees sit on the calendar before Democrats would let them have a 
vote?

[[Page S1571]]

Only 24 days. So 93 days under the Republicans, 24 days under the 
Democrats.
  President Obama's confirmed circuit court nominees have been forced 
to wait an average of 136 days for a floor vote. President Bush's 
circuit court nominees waited an average of 29 days. So 136 days, way 
over 4 months for the Obama nominees, and less than 1 month for the 
Bush nominees.
  Overall, at this point in their terms, President Obama had 131 
nominees confirmed at the Federal, circuit, and district court level 
compared to 172 for President Bush and 183 for President Clinton. It is 
so obvious the Republicans are stopping worthy bipartisan nominees for 
strictly political reasons.
  Current judicial vacancies at this point in President Obama's term 
are 83, nearly double the 46 vacancies of President Bush's term. I know 
my Republican colleagues sometimes argue that President Obama is too 
slow to make nominations, but that argument doesn't explain what 
happens after the nominations have been made, cleared investigations, 
cleared the committee, and reached the Senate calendar.
  Right now there are 39 judicial nominees pending either before the 
Judiciary Committee or on the floor of the Senate. Promptly confirming 
these numbers would bring President Obama's confirmation numbers close 
to President Bush's. But still the obstruction continues.

  Some might argue that blocking judicial nominees is just another one 
of those silly partisan games in Washington. But, unfortunately, this 
obstruction has real impact across America. There are 35 judicial 
vacancies that have been designated judicial emergencies by the 
nonpartisan Administrative Office of the U.S. Courts. That means the 
Federal courts are so flooded with heavy workloads that the failure to 
fill the vacancies makes it even worse. It means justice will be 
delayed. And when justice is delayed, many times it is denied. When 
court systems suffer from lack of judges on the bench, the 
administration of justice suffers at every level, criminal and civil.
  All Americans rely on the Federal courts to protect their 
constitutional rights, keep dangerous criminals off the streets, and 
resolve their disputes. When judgeships are vacant and judges remain 
overburdened, the American people may be denied their day in court.
  Right now, the Northern District of Illinois--that would be Chicago, 
northern Illinois--is one of the districts where a judicial emergency 
has been declared. The chief judge of the district, Judge Jim 
Holderman, an appointee under a Republican President, recently sent a 
letter to me and my colleague Senator Kirk urging the Senate to move 
quickly on two nominees sitting on the calendar--John Lee, my nominee 
approved by Senator Kirk, and Jay Tharp, Senator Kirk's nominee 
approved by me. A bipartisan judicial selection committee chose these 
nominees, and both of us signed off on them. Isn't that what America 
wants, that we work together? So why are they sitting on a calendar? 
There is an emergency in the Northern District, the judge has asked for 
help, we have agreed on a bipartisan basis how to fill the vacancies, 
yet they languish on the calendar.
  I wanted to take this opportunity to briefly talk about these 
nominees caught up in this backlog on the Senate floor. Both of them 
are extraordinarily well-gifted and talented.
  John Lee is currently a partner in a major law firm in Chicago, where 
he practices complex commercial litigation. He is the son of a coal 
miner and a nurse. He immigrated to this country from Korea at a young 
age. From humble beginnings, he went on to college and law school at 
Harvard. He then worked as a trial attorney in the Justice Department, 
and he had a great record in community service in Chicago. When he is 
confirmed, he will be the first Korean-American article III judge ever 
to serve in my State.
  Jay Tharp, Senator Kirk's nominee, of whom I approve, is a partner in 
another major law firm in Chicago, where he leads their securities 
litigation practice. He is a former captain in the Marine Corps with a 
distinguished military career. He attended Duke University and 
Northwestern Law School and clerked for a Federal judge on the Seventh 
Circuit. For 6 years he was an assistant U.S. attorney, a prosecutor, 
and he has received numerous recognitions for his work in private 
practice.
  As part of our bipartisan selection process, Senator Kirk has chosen 
Jay Tharp and I have chosen Mr. Lee. We have done this in the most 
cooperative way possible. I think it is time for the Senate to move 
ahead with the floor votes on these two nominees and all of the 
nominees. If a Senator has an objection to one of these nominees, let's 
call it for a vote. They can vote no. And if they don't get a majority 
vote, they won't be approved. That is the way this Chamber is supposed 
to work.
  Good, decent Americans such as John Lee and Jay Tharp shouldn't have 
to put their lives on hold when they have volunteered to be nominees to 
the Federal court. In most instances, those who step up and ask for 
this opportunity of public service are actually taking a cut in pay 
from what they could be paid in private practice. They are willing to 
make a sacrifice. Their families are willing to make it. But now we 
leave them in this limbo. They are caught in this political limbo 
created by the Republicans in an effort to stack up judges like 
cordwood on the calendar in the hopes that come November, they will get 
a Republican President who will fill these vacancies with true 
believers.
  That isn't fair. It doesn't reflect the reality when President Obama 
was elected to serve and to fill these vacancies in a meaningful way. 
The process is bipartisan. Certainly, the Senate's consideration of 
nominees should be bipartisan as well.
  I see the Senator from Michigan on the floor. I wish to make one 
additional statement, if I might, relative to an issue in my home State 
of Illinois. I will be very brief, but it is something that means a lot 
to me and to my State.

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