[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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