[Congressional Record Volume 158, Number 110 (Monday, July 23, 2012)]
[Senate]
[Pages S5244-S5248]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Aurora, Colorado Shootings
Before we begin--and so many others have said this--it would be
impossible to state the amount of horror and sadness felt by my wife
Marcelle and me at the news of what happened in Colorado, and I was
reminded again today as I saw the flags lowered to half staff on this
Capitol Building. We think of the Capitol as being a bastion of
democracy or the light that sort of shines for the rest of the world on
what democracy is. Unfortunately, so much of the world has seen the
acts of a madman. It is safe to say this is one thing that united every
Senator of both parties here. Our hearts go out not only to those who
have been injured, obviously to the families of those who have died,
and to the people in that wonderful community, because it is impossible
for any one of us here to know how long or how hard that will hold in
their heart, the number of people who say, as we all do: We just went
to a movie. Any one of us has done that. Our children go to movies, our
grandchildren go to movies. You expect them to go, have a good time,
and come back, and enjoy it. The thought of what they saw there is
horrible.
We have before us a Federal trial court nomination, that of Michael
Shipp. This is a nomination that was voted on by the Senate Judiciary
Committee more than three months ago and supported nearly unanimously
by both Republican and Democratic Senators who have reviewed it. The
only objection came as a protest vote from Senator Lee.
Judge Michael Shipp has served as a U.S. Magistrate Judge in the
District of New Jersey since 2007 and has presided over civil and
criminal matters and issued over 100 opinions. He is the
[[Page S5245]]
first African-American United States Magistrate Judge in that district.
Prior to his appointment to the Federal bench, he worked for the Office
of the Attorney General of New Jersey for five years, where he was
Assistant Attorney General in charge of Consumer Protection from 2003
to 2007 and Counsel to the Attorney General in 2007. From 1995 to 2003,
Judge Shipp was an associate in the Newark office of the law firm
Skadden, Arps. Upon graduation from law school, Judge Shipp clerked for
Judge James Coleman on the New Jersey Supreme Court.
Despite his outstanding qualifications and bipartisan support, Senate
Republicans have delayed his confirmation vote for more than three
months. Despite the fact that the Senate has finally been allowed to
consider his nomination and that he will be confirmed overwhelmingly,
Senate Republicans have again demonstrated their obstruction of
judicial nominees. This is not a nominee on whom cloture should have
been filed.
They refused until today to agree to a vote on this nomination. That
meant that the Majority Leader was required to file a cloture petition
to put an end to their obstruction and partisan filibuster. While I am
pleased we are holding a confirmation vote today, it should not have
required that the Majority Leader file for cloture.
This was the 29th time the Majority Leader had been forced to file
for cloture to end a Republican filibuster and get an up-or-down vote
for one of President Obama's judicial nominees. By comparison, during
the entire eight years that President Bush was in office, cloture was
filed in connection with 18 of his judicial nominees, most of whom were
opposed on their merits as extreme ideologues.
Senate Republicans used to insist that filibustering of judicial
nominations was unconstitutional. The Constitution has not changed but
as soon as President Obama was elected they reversed course and
filibustered President Obama's very first judicial nomination. Judge
David Hamilton of Indiana was a widely-respected 15-year veteran of the
Federal bench nominated to the Seventh Circuit and was supported by
Senator Dick Lugar, the longest-serving Republican in the Senate. They
delayed his confirmation for five months. Senate Republicans then
proceeded to obstruct and delay just about every circuit court nominee
of this President, filibustering nine of them. They delayed
confirmation of Judge Albert Diaz of North Carolina to the Fourth
Circuit for 11 months. They delayed confirmation of Judge Jane Stranch
of Tennessee to the Sixth Circuit for 10 months. They delayed
confirmation of Judge Ray Lohier of New York to the Second Circuit for
seven months. They delayed confirmation of Judge Scott Matheson of Utah
to the Tenth Circuit and Judge James Wynn, Jr. of North Carolina to the
Fourth Circuit for six months. They delayed confirmation of Judge Andre
Davis of Maryland to the Fourth Circuit, Judge Henry Floyd of South
Carolina to the Fourth Circuit, Judge Stephanie Thacker of West
Virginia to the Fourth Circuit, and Judge Jacqueline Nguyen of
California to the Ninth Circuit for five months. They delayed
confirmation of Judge Adalberto Jordan of Florida to the Eleventh
Circuit, Judge Beverly Martin of Georgia to the Eleventh Circuit, Judge
Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of
Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the
Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third
Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit,
Judge Denny Chin of New York to the Second Circuit, and Judge Chris
Droney of Connecticut to the Second Circuit for four months. They
delayed confirmation of Judge Paul Watford of California to the Ninth
Circuit, Judge Andrew Hurwitz of Arizona to the Ninth Circuit, Judge
Morgan Christen of Alaska to the Ninth Circuit, Judge Stephen Higginson
of Louisiana to the Fifth Circuit, Judge Gerard Lynch of New York to
the Second Circuit, Judge Susan Carney of Connecticut to the Second
Circuit, and Judge Kathleen O'Malley of Ohio to the Federal Circuit for
three months.
As a current report from the nonpartisan Congressional Research
Service confirms, the median time circuit nominees have had to wait
before a Senate vote has skyrocketed from 18 days for President Bush's
nominees to 132 days for President Obama's. This is the result of
Republican foot dragging and obstruction. In most cases, Senate
Republicans are delaying and stalling for no good reason. How else do
you explain the filibuster of the nomination of Judge Barbara Keenan of
Virginia to the Fourth Circuit who was ultimately confirmed 99-0? And
how else do you explain the needless stalling and obstruction of Judge
Denny Chin of New York to the Second Circuit, who was filibustered for
four months before he was confirmed 98-0?
Three of the five circuit court judges finally confirmed this year
after months of unnecessary delays and a filibuster should have been
confirmed last year. The other two circuit court nominees confirmed
this year were both subjected to stalling and a partisan filibuster by
Senate Republicans. This was the case even though these circuit
nominees had strong bipartisan support. We needed to overcome a
filibuster to confirm Justice Andrew Hurwitz of Arizona to the Ninth
Circuit despite the strong support of his home state Senators,
Republicans Jon Kyl and John McCain. The Majority Leader had to file
cloture to secure an up-or-down vote on Paul Watford of California to
the Ninth Circuit despite his sterling credentials and bipartisan
support. The year started with the Majority Leader having to file
cloture to get an up-or-down vote on Judge Adalberto Jordan of Florida
to the Eleventh Circuit even though he was strongly supported by his
Republican home state Senator. Every single one of these nominees for
whom the Majority Leader was forced to file cloture was rated
unanimously well qualified by the nonpartisan ABA Standing Committee on
the Federal Judiciary, the highest possible rating. And every one of
them was nominated to fill a judicial emergency vacancy.
In June, Senate Republicans confirmed that they shut down the
confirmation process for qualified and consensus circuit court
nominees. They are now filibustering Judge Patty Shwartz of New Jersey
who is nominated to the Third Circuit and Richard Taranto who is
nominated to the Federal Circuit. In addition, they are filibustering
two circuit court nominees who have the support of both their home
state Republican Senators: William Kayatta of Maine to the First
Circuit and Judge Robert Bacharach of Oklahoma to the Tenth Circuit.
This is almost unprecedented.
During the past five presidential election years, Senate Democrats
have never denied an up-or-down vote to any circuit court nominee of a
Republican President who received bipartisan support in the Judiciary
Committee. In fact, during the last 20 years, only four circuit
nominees reported with bipartisan support have been denied an up-or-
down vote by the Senate and all four were nominated by President
Clinton and blocked by Senate Republicans. While Senate Democrats have
been willing to work with Republican presidents to confirm circuit
court nominees with bipartisan support, Senate Republicans have
repeatedly obstructed the nominees of Democratic presidents. In the
previous five presidential election years, a total of 13 circuit court
nominees have been confirmed after June 1. Not surprisingly, 12 of the
13 were Republican nominees. Clearly, this is not tit-for-tat as some
contend but, rather, a one-way street in favor of Republican
presidents' nominees.
This entire year, the Senate has yet to vote on a single circuit
court nominee who was nominated by President Obama this year. Since
1980, the only presidential election year in which there were no
circuit nominees confirmed who was nominated that year was in 1996,
when Senate Republicans shut down the process against President
Clinton's circuit nominees.
The nonpartisan Congressional Research Service has confirmed in its
reports that judicial nominees continue to be confirmed in presidential
election years--except it seems when there is a Democratic President.
In five of the last eight presidential election years, the Senate has
confirmed at least 22 circuit and district court nominees after May 31.
The notable exceptions were during the last years of President
Clinton's two terms in 1996 and 2000 when Senate Republicans would not
[[Page S5246]]
allow confirmations to continue. The third exception was in 1988, at
the end of President Reagan's presidency, but that was because
vacancies were at 28. In comparison, vacancies at the end of the
Clinton years stood at 75 at the end of 1996 and 67 at the end of 2000.
Otherwise, it has been the rule rather than the exception. So, for
example, according to CRS the Senate confirmed 32 nominees in 1980; 28
in 1984; 31 in 1992; 28 in 2004 at the end of President George W.
Bush's first term; and 22 after May 31 in 2008 at the end of President
Bush's second term. So far this year only 7 judicial nominees have been
allowed to be confirmed.
It is ironic that certain Senate Republicans are now arguing in
support of a distorted version of the Thurmond Rule, as if it had the
force of law. After all, it is Senate Republicans who have repeatedly
asserted that the Thurmond Rule does not exist. For example, on July
14, 2008, the Senate Republican caucus held a hearing solely dedicated
to arguing that the Thurmond Rule does not exist. At that hearing, the
senior Senator from Kentucky stated: ``I think it's clear that there is
no Thurmond Rule. And I think the facts demonstrate that.'' Similarly,
the Senator from Iowa, my friend who is now serving as Ranking Member
of the Judiciary Committee, stated that the Thurmond Rule was in his
view ``plain bunk.'' He said: ``The reality is that the Senate has
never stopped confirming judicial nominees during the last few months
of a president's term.'' We did not in 2008 when we proceeded to
confirm 22 nominees over the second half of that year. That Senate
Republicans have objected to voting on the nomination of Judge Shipp is
a distortion of the Thurmond rule and shows the depths to which they
have gone.
There is no good reason that the Senate should not vote on consensus
nominees like Judge Shipp and more than a dozen other consensus
judicial nominees to fill Federal trial court vacancies in Iowa,
California, Utah, Connecticut, Maryland, Florida, Oklahoma, Michigan,
New York and Pennsylvania. There is no good reason the Senate should
not vote on the nominations of William Kayatta of Maine to the First
Circuit, Judge Robert Bacharach of Oklahoma to the Tenth Circuit,
Richard Taranto to the Federal Circuit and for that matter Judge Patty
Shwartz of New Jersey to the Third Circuit, who is supported by New
Jersey's Republican Governor. Each of these circuit court nominees has
been rated unanimously well qualified by the nonpartisan ABA Standing
Committee on the Federal Judiciary, the highest possible rating. These
should not be controversial nominees. They are qualified and should be
considered as consensus nominees and confirmed.
Senate Republicans are blocking consent to vote on superbly qualified
circuit court nominees with strong bipartisan support. This is a new
and damaging application of the Thurmond rule.
The fact that Republican stalling tactics have meant that circuit
court nominees that should have been confirmed in the spring--like Bill
Kayatta, Richard Taranto and Patty Shwartz--are still awaiting a vote
is no excuse for not moving forward this month to confirm these circuit
nominees.
In an article dated July 16, 2012 entitled ``William Kayatta and the
Needless Destruction of the Thurmond Rule,'' Andrew Cohen of the
Atlantic states:
In a more prudent and practical era in Senate history,
nominees like Kayatta would have been confirmed in days . . .
Now even slam-dunk candidates like Kayatta linger in the
wings waiting for Senate ``consent'' long after the body
already has definitively ``advised'' the executive branch of
how great it thinks the nominee would be as a judge. Can you
imagine the uproar if the Senate ever used its filibuster
power to block the deployment of troops already endorsed by
the Armed Services Committee? Now please tell me the material
difference here. Surely, the judiciary needs judges as much
as the army needs soldiers.
I agree. We have outstanding nominees with the support of both
Republican home State senators. Yet, we cannot vote on these nominees
because Senate Republicans want to place politics over the needs of the
American people.
The Los Angeles Times recently published an editorial entitled
``Reject the `Thurmond Rule' '' which concluded ``the administration of
justice shouldn't be held hostage to partisan politics even in an
election year.''
I ask unanimous consent that copies of the July 12 and 16 articles be
printed in the Record at the conclusion of my statement.
The PRESIDING OFFICER. Without objection, it is ordered.
(See exhibit 1.)
Mr. LEAHY. As both Chairman and Ranking Member of the Judiciary
Committee during the last several years, I have worked with Senate
Republicans to consider judicial nominees well into presidential
election years, I have made earnest efforts to make the confirmation
process more transparent and fair, I have ensured that the President
consults with home state Senators before submitting a nominee, and I
have opened up the blue slip process to prevent abuses while continuing
to respect it.
In the last two presidential election years, we were able to bring
the number of judicial vacancies down to the lowest levels in the past
20 years. In 2004 at end of President Bush's first term, vacancies were
reduced to 28 not the 77 we have today. In 2008, in the last year of
President Bush's second term, we again worked to fill vacancies and got
them down to 34, less than half of what they are today. In 2004, 25
nominees were confirmed between June and the presidential election, and
in 2008, 22 nominees were confirmed between June and the presidential
election.
In 2004, a Presidential election year, the Senate confirmed five
circuit court nominees of a Republican President that had been reported
by the Committee that year. This year we have confirmed only two
circuit court nominees that have been reported by the Committee this
year, and both were filibustered. By this date in 2004 the Senate had
already confirmed 32 of President Bush's circuit court nominees, and we
confirmed another three that year for a total of 35 circuit court
nominees in his first term. So far, the Senate has only been allowed to
consider and confirm 30 of President Obama's circuit court nominees
five fewer, 17 percent fewer while higher numbers of vacancies remain,
and yet the Senate Republican leadership wants to artificially shut
down nominations for no good reason.
As Chairman of this Committee, I have also assiduously protected the
rights of the minority in the judicial nomination process. I have only
proceeded with judicial nominations supported by both home state
Senators. That has meant that we are not able to proceed on current
nominees from Arizona, Georgia, Nevada and Louisiana. I even stopped
proceedings on a circuit court nominee from Kansas when the Kansas
Republican Senators reversed themselves and withdrew their support for
the nominee. Nor did I accede to the Majority Leader's request to push
a Nevada nominee through Committee who did not have the blue slip of
the state's Republican Senator. In stark contrast, it was Senate
Republicans and the Republican chairman who blatantly disregarded
Senate Judiciary procedure by proceeding with nominations despite the
objection of both home state Senators. And I have been consistent. I
hold hearings at the same pace and under the same procedures whether
the President nominating is a Democrat or a Republican. Others cannot
say that. So those have been my rules respect for minority rights,
transparency, deference to home state Senators, consistent application
of policies and practices, and allowing for confirmations well into
presidential election years for nominees with bipartisan support.
Personal attacks on me do nothing to help the American people who are
seeking justice in our Federal courts. I am willing to defend my record
but that is beside the point. The harm to the American people is what
matters. What the American people and the overburdened Federal courts
need are qualified judges to administer justice in our Federal courts,
not the perpetuation of extended, numerous vacancies.
The judicial vacancy rate remains almost twice what it was at this
point in the first term of President Bush. I wish Senate Republicans
would think more about our responsibilities to the American people than
some warped sense of partisan score settling. Vacancies have been near
or above 80 for three years. Nearly one out of every 11 Federal courts
is currently vacant. Their shutting down confirmations for consensus
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and qualified judicial nominees is not helping the overburdened courts
who cannot administer justice in an expedient fashion. It is not
helping owners of small businesses.
Last week, after his nomination was reported with near unanimous
voice vote by the Judiciary Committee approximately three months ago,
the Senate was finally able to confirm Judge Kevin McNulty to the
District of New Jersey. Despite vacancies still remaining near or above
80, Senate Republicans continue to obstruct and stall nominees on the
Senate floor for no good reason. We could easily have confirmed both
Judges Shipp and McNulty together three months ago. It is this type of
across-the-board obstruction of judicial nominees by Senate Republicans
that has contributed to the judicial vacancy crisis in our Federal
courts.
Last week, I spoke about the novel excuses that some Senate
Republicans have concocted for refusing to allow for votes on nominees.
One excuse was that having confirmed two Supreme Court justices, the
Senate cannot be expected to reach the 205 number of confirmations in
President Bush's first term. Work on two Supreme Court nominations did
not stop the Senate from working to confirm 200 of President Clinton's
circuit and district nominees in his first term. Similarly, there were
two Supreme Court confirmations in President George H.W. Bush's term,
and that did not prevent Senate Democrats who were in the Senate
majority from confirming 192 of his circuit and district nominees,
including 66 in the election year of 1992 alone.
Last week we heard another self-serving misconception of more recent
history from the Republican side of the aisle. They claimed that
Democrats were responsible for growing judicial vacancies in 2008. The
charge was as follows: ``[A]t the beginning of 2008 there were 43
vacancies. So the practice for Democrats who controlled the Senate
during that last year of President Bush's term was to allow vacancies
to increase by more than 37 percent.'' In fact, what we did in 2008 was
to reduce vacancies back down to 34 in October 2008 when the Senate
recessed for the year. The increase in vacancies after October and
through the remainder of 2008 was not because Senate Democrats were
obstructing Senate votes on qualified judicial nominees with bipartisan
support as Senate Republicans are today. In November and December 2008
the Senate met on a few days only to address the financial crisis.
There were no nominations pending on the Calendar after the election in
2008. Their charge is fallacious. Judicial vacancies have not been as
low as 34 or 43 or even the 55 that they stood at when President Obama
took office for years. Due to Republican obstruction, President Obama
will be the first President in 20 years to complete his first term with
more judicial vacancies than when he took office.
Last week Senate Republicans also contended that they have no
responsibility for the lack of progress in 2009. In fact, that year
ended with 10 judicial confirmations stalled by Senate Republicans. The
obstructionist tactics they employed from the outset of the Obama
administration had led to the lowest number of judicial confirmations
in more than 50 years. Only 12 of President Obama's judicial
nominations to Federal circuit and district courts were confirmed that
whole year. The 12 were less than half of what we achieved during
President Bush's first tumultuous year. In the second half of 2001, a
Democratic Senate majority proceeded to confirm 28 judges. Despite the
fact that President Obama began nominating judicial nominees two months
earlier than President Bush, Senate Republicans delayed and obstructed
them to yield an historic low in confirmations. Republicans refused to
agree to the consideration of qualified, noncontroversial nominees for
weeks and months. And as the Senate recessed in December, only three of
the available 13 judicial nominations on the Senate Executive Calendar
were allowed to be considered.
By contrast, in December 2001, the first year of President Bush's
administration, Senate Democrats proceeded to confirm 10 of his
judicial nominees. At the end of the Senate's 2001 session, only four
judicial nominations were left on the Senate Executive Calendar, all of
which were confirmed soon after the Senate returned in 2002. By
contrast, it took until May 2011, a year and a half later, to complete
action on the judicial nominees who should have been confirmed in
December 2009 but had to be renominated. Although noncontroversial,
several were further delayed by filibusters before being confirmed
unanimously. The lack of Senate action on those 10 judicial nominees in
2009 was attributable to Senate Republicans and no one else. Despite
the fact that President Obama reached across the aisle to consult with
Republican Senators, he was rewarded with obstruction from the outset
of his administration. While President Obama moved beyond the judicial
nominations battles of the past and reached out to work with
Republicans and make mainstream nominations, Senate Republicans
continued their tactics of delay.
For Senate Republicans to claim that ``only 13 [sic] judges were
confirmed during President Obama's first year'' because of ``decisions
made by the Senate Democratic leadership'' and that it was ``the choice
of Democrats'' and ``not because of anything the Republican minority
could do'' is ludicrous. Senate Democrats had cleared for confirmation
the other 10 judicial nominees stalled by Republicans in 2009. Their
assertion ignores the facts and the truth. Just as they cannot escape
responsibility for their unwillingness to move forward with the 21
judicial nominees ready for a final up-or down vote now before the end
of this year, they cannot escape responsibility for what they did in
2009.
Senate Republicans choose to offer weak excuses and blame everyone
but themselves for the delays and obstruction in which they have
excelled. Their sense of being justified by some view of tit-for-tat is
distorted and should be beside the point while vacancies remain so high
that the American people and our courts are overburdened. The way
Senate Democrats helped reduce vacancies was not by limiting
confirmations to one nominee per week, as Senate Republicans have. In
September 2008, with Democrats in the majority, the Senate confirmed 10
of President Bush's nominees in a single day, all by voice vote. There
were 10 consensus nominees pending on the Senate floor, and we
confirmed all of them in minutes. Likewise, in 2002, Senate Democrats
joined in confirming 18 of President Bush's nominees in a single day,
again by voice vote. I wish Senate Republicans would duplicate that
precedent and help clear the logjam of judicial nominees dating back to
March who are still awaiting up-or-down votes.
While I am pleased that we will confirm Judge Shipp today, I wish
that Senate Republicans would help us confirm the 20 additional
judicial nominees who can be confirmed right now. Then we could make
real progress in giving our courts the judges they need to provide
justice for the American people, just as we did in 1992, 2004 and 2008.
After today's vote, I hope Senate Republicans will reconsider their
ill-conceived partisan strategy and work with us to meet the needs of
the American people. With more than 75 judicial vacancies still
burdening the American people and our Federal courts, there is no
justification for not proceeding to confirm the judicial nominees
reported with bipartisan support by the Judiciary Committee this year.
Each day that Senate Republicans refuse because of their political
agenda to confirm these qualified judicial nominees who have been
reviewed and voted on by the Judiciary Committee is another day that a
judge could have been working to administer justice. Every week lost is
another in which injured plaintiffs are having to wait to recover the
costs of medical expenses, lost wages, or other damages from
wrongdoing. Every month is another drag on the economy as small
business owners have to wait to have their contract disputes resolved.
Hardworking and hard-pressed Americans should not have to wait years to
have their cases decided. Just as it is with the economy and with jobs,
the American people do not want to hear excuses about why Republicans
in Congress will not help them. So let us do more to help the American
people.
[[Page S5248]]
Exhibit 1
[From theatlantic.com, July 16, 2012]
William Kayatta and the Needless Destruction of the Thurmond Rule
(By Andrew Cohen)
Why do Republican leaders still play along with an informal Senate rule
that prevents up-or-down votes on even those judges who have strong
Republican support?
Meet William Kayatta, another one of America's earnest,
capable judges-in-waiting. Widely respected in his home state
of Maine, nominated by President Obama in January to fill a
vacancy on the 1st U.S. Circuit Court of Appeals, eagerly
endorsed by both of Maine's Republican senators, passed for
confirmation to the Senate floor by an easy voice vote in the
Senate Judiciary Committee, Kayatta's nomination instead has
become yet another victim of the Senate GOP's suicidal
tendencies.
The litigants of the 1st Circuit need Kayatta. There are no
serious arguments against him. Yet the Republican leadership
in the Senate has blocked a vote on the merits of his
nomination in obedience to the so-called ``Thurmond Rule,''
an informal practice as self-destructive as was its namesake.
The Thurmond Rule is typically invoked by the opposition
party in a presidential election year to preclude substantive
votes on federal judicial appointments within six months of
Election Day. It is the Senate's version of a sit-down
strike.
In April, just after the Judiciary Committee favorably
passed along Kayatta's nomination to the Senate floor for
confirmation, Maine's junior senator, Susan Collins, had
wonderful things to say about the nominee:
Bill is an attorney of exceptional intelligence, extensive
experience, and demonstrated integrity, who is very highly
respected in the Maine legal community. Bill's impressive
background makes him eminently qualified for a seat on the
First Circuit. His thirty-plus years of real world litigation
experience would bring a much-needed perspective to the
court. Maine has a long proud history of supplying superb
jurists to the federal bench. I know that, if confirmed, Mr.
Kayatta will continue in that tradition. I urge the full
Senate to approve his nomination as soon as possible.
And how did her fellow Republicans respond to her request?
They blew her off. There has been no vote on Kayatta's
nomination and none is scheduled. Instead, last month, Sen.
Mitch McConnell, the Senate Minority Leader, invoked the
``Thurmond rule'' to block floor consideration of
appointment--as well as up-or-down votes on the rest of
President Obama's federal appellate nominees (This in turn,
initially prompted Sen. Collins to blame the Obama
Administration for going too slow in nominating Kayatta in
the first place.)
In theory, the Thurmond Rule is something official
Washington defends as the price of divided government. In
reality, it's another outrageous example of how the Senate
has re-written the Constitution by filibuster. In practice,
in the Kayatta case and many more, the Thurmond rule is the
antithesis of good governance. Your Senate today perpetuates
a frivolous rule which, for the most cynical political
reasons, blocks qualified people from serving their nation.
It's not misfeasance. It's malfeasance.
Just because Strom Thurmond was willing to jump the Senate
off the bridge doesn't mean that today's Senate Republican
leaders had to do likewise.
In a more prudent and practical era in Senate history,
nominees like Kayatta would have been confirmed in days.
Fifty years ago, for example, when another bright Democratic
appointee with strong Republican support came to the Senate
seeking a judgeship, the Judiciary Committee took all of 11
minutes before it endorsed him. Byron ``Whizzer'' White then
served the next 31 years as an associate justice of the
United States Supreme Court. That's wholly unthinkable
today--even with lower federal court nominees.
Now even slam-dunk candidates like Kayatta linger in the
wings waiting for Senate ``consent'' long after the body
already has definitively ``advised'' the executive branch of
how great it thinks the nominee would be as a judge. Can you
imagine the uproar if the Senate ever used its filibuster
power to block the deployment of troops already endorsed by
the Armed Services Committee? Now please tell me the material
difference here. Surely, the judiciary needs judges as much
as the army needs soldiers.
There are currently 76 judicial vacancies around the
country. There are 31 districts and circuits designated as
``judicial emergencies'' because vacancies there have
lingered so long. In the 10th Circuit, what's happening to
Kayatta is happening to Robert Bacharach, who has the support
of Oklahoma's two Republican senators. The Senate also is
blocking Richard Taranto from a Federal Circuit spot even
though he breezed through the Judiciary Committee and has
been endorsed by Robert Bork and Paul Clement. The same goes
for Patty Shwartz in the 3rd Circuit.
This is unacceptable on every level. When we talk about
``false equivalence'' in modern politics the business of
these judges should be the lede. These nominations require no
great policy choices on the part of Congress. They don't come
with thousands of pages of ambiguous legalese disguised as
the language of a federal statute. There is no room for spin.
These nominees are either qualified, or they aren't, and when
they sail out of the Judiciary Committee with voice votes no
one can plausibly say they aren't qualified.
And yet here we are. It would be convenient to blame Strom
Thurmond, one of the most divisive politicians of the 20th
century, for one of the Senate's most divisive rules. But
Thurmond is long gone. And there was never anything about his
rule that demanded it be followed, session after session,
under both Democratic and Republican control. Just because
Strom Thurmond was willing to jump the Senate off the bridge,
in other words, doesn't mean that today's Senate Republican
leaders had to do likewise. But they have.
America has trouble enough today without a senseless Senate
rule that blocks highly skilled, highly competent public
servants from joining government. The nation's litigants in
federal court, burdened by judicial vacancies, already are
waiting long enough to have their corporate disputes decided.
This isn't gridlock. This is destruction. ``I think it's
stupid'' to block good judges from confirmation, Sen. Tom
Coburn said earlier this year. For once, he is right. And
Sen. Collins? Even she's come around. ``I have urged my
colleagues on both sides of the aisle to give Bill the direct
vote by the full Senate that he deserves,'' she said late
last month. Amen to that.
____
[From the Los Angeles Times, July 12, 2012]
Reject the ``Thurmond Rule''
Senate Minority Leader Mitch McConnell invokes the legacy of Strom
Thurmond to hold up judicial confirmations--It's bad for judges and bad
for justice
The late Strom Thurmond is best known for his 48 years in
the U.S. Senate representing South Carolina, his
segregationist candidacy for the presidency in 1948 and the
fact that even though he was a longtime opponent of racial
equality, he fathered a child with a black teenage
housekeeper. But Thurmond also lent his name to the so-called
Thurmond Rule, according to which Senate action on judicial
confirmations is supposed to stop several months before a
presidential election.
The rule--actually a custom that sometimes has been honored
in the breach--goes back to 1968, when Thurmond and other
Republicans held up action on President Johnson's nomination
of Abe Fortas to be chief justice of the United States.
Fortas withdrew in the face of a filibuster, and President
Nixon, the Republican victor in the 1968 election, was able
to choose a successor to the retiring Earl Warren. In
subsequent years, senators of both parties have cited the
Thurmond/Fortas episode as a precedent for not acting on
judicial nominations close to an election.
Even in the case of a Supreme Court appointment, the
Thurmond Rule violates the spirit of the Constitution, which
doesn't distinguish between nominations made earlier or later
in a president's term. It is less defensible still in
connection with nominations to lower courts. Yet Senate
Minority Leader Mitch McConnell (R-Ky.) told colleagues last
month that he was immediately invoking the rule to end
nominations to the U.S. Court of Appeals, and would block
confirmation votes on nominees to federal district courts
after September.
Such delays are a disservice to the nominees and to an
overburdened federal judiciary. At present there are 12
vacancies on federal appeals courts, 63 on district courts
and two on the U.S. Court of International Trade. The Obama
administration, although it has been slow to fill vacancies,
currently is proposing seven candidates for the appeals court
and 28 for the district courts. The Senate should hold up-or-
down votes on these nominations and any others put forward in
the near future.
Apart from the Thurmond Rule, the timely confirmation of
judicial nominees has long been frustrated by petty
partisanship. Democrats and Republicans share the blame. The
most recent logjam was broken in March when Republicans
agreed to timely votes on 14 nominations.
Obviously Republicans hope that Barack Obama is a lame-duck
president, but even lame-ducks are entitled to expeditious
consideration of their nominations. And the administration of
justice shouldn't be held hostage to partisan politics even
in an election year.
Mr. President, I see the distinguished senior Senator from New Jersey
on the floor. If he seeks the floor, I will yield to him; otherwise, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LAUTENBERG. Mr. President, I thank the chairman of the Judiciary
Committee who always has things of relevance to talk to us about and he
has done that again today and we thank the chairman.