[Congressional Record Volume 158, Number 117 (Thursday, August 2, 2012)]
[Senate]
[Pages S5964-S5965]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATIONS
Mr. GRASSLEY. Mr. President, a few weeks ago the president of the ABA
a--purportedly nonpartisan organization--wrote a letter to the majority
and Republican leaders regarding nominations and the Leahy-Thurmond
rule. I noticed that my good friend the chairman of the Judiciary
Committee entered a copy of that letter in the Record.
That letter failed to mention quite a few pertinent facts. The
Republican leader and I sent the ABA a letter which highlighted some of
those facts. I ask unanimous consent that this letter be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S5965]]
Office of the Republican Leader,
U.S. Senate,
Washington, DC, June 25, 2012.
Mr. William T. (Bill) Robinson III,
President, American Bar Association, 321 North Clark Street,
Chicago, IL.
Dear Mr. Robinson: We were surprised to receive your letter
of June 20, 2012 urging, for the first time, confirmation of
particular circuit court nominees despite the existence of
the Leahy-Thurmond Rule. By any objective measure--overall
circuit court vacancy rate, vacancies on the respective
circuit courts, or judicial emergency designation--our
appellate courts are doing, at least as well, and in most
respects much better, now than when our democratic colleagues
invoked the Rule both times during the last administration.
Given this exceptionally fair treatment of President Obama's
judicial nominees, it is curious that your organization would
choose now to urge the Senate not to follow its practice of
suspending the processing of circuit court nominations in the
months preceding a presidential election. This unprecedented
action raises questions about the American Bar Association's
objectivity and neutrality.
While the circuit court vacancy rate in June 2008 was the
same as it is now, there were twice as many judicial
emergencies in the circuit courts at that time. The Fourth
Circuit Court of Appeals, in fact, was in crisis. Fully one-
fourth of its seats were empty, even though the prior
administration had nominated outstanding individuals to till
them. Despite the crisis facing the Fourth Circuit in June of
2008, our democratic colleagues refused to process any of
President George W. Bush's four, well qualified nominees.
For instance, the Senate twice had unanimously confirmed
Judge Robert Conrad to the important positions of United
States Attorney and federal district court judge. By this
time in June of 2008. his nomination to the Fourth Circuit
had been pending for 344 days. Our democratic colleagues
refused to process his nomination, notwithstanding support
from home state senators, a unanimous well qualified rating
from your organization, and--in contradistinction to any of
the three nominees mentioned in your letter--the
Administrative Office of the U.S. Courts had declared the
vacancy to which he was nominated to be a judicial emergency.
Senate democrats refused to process three other qualified
nominees to the Fourth Circuit. Steve Matthews had support
from home state senators, and by this time in 2008, had been
pending for 293 days. Judge Glen Conrad had been confirmed to
the district court in 2003 by the unanimous vote of 89-0.
Both home state senators, one republican and one democrat,
strongly supported his nomination. Rod Rosenstein, the then
and current U.S. Attorney for Maryland, also would have
filled a judicial emergency on the Fourth Circuit.
Nonetheless, democrat home state Senators blocked his
nomination--incredibly--for the reason that he was doing a
``good job'' as U.S. Attorney and ``that's where [they] need
him.''
Our democratic colleagues' record with respect to these
nominees was so abysmal that even the Washington Post
editorial board called them to task, writing. ``[T]he Senate
should act in good faith to fill vacancies--not as a favor to
the president but out of respect for the residents,
businesses, defendants and victims of crime in the region the
4th Circuit covers.'' The ABA, by contrast, said nothing when
Senate democrats invoked the Leahy-Thurmond Rule and stopped
processing circuit court nominations in June of 2008. These
outstanding nominees, along with others like Peter Keisler--
who by this date in June of 2008 had been bottled up in
committee for an astonishing 727 days--did not merit any
special consideration by the ABA in the months preceding the
last presidential election.
The situation on our circuit courts was equally dismal in
June of 2004 when President Bush was concluding his first
term in office. The overall vacancy rate on our circuit
courts was much higher than it is now. And the Sixth Circuit,
like the Fourth Circuit in 2008, was in crisis, with fully
one-fourth of its seats empty, even though the prior
administration had nominated qualified individuals to fill
those vacancies as well. And as in 2008. the ABA said nothing
when our democratic colleagues cited the Leahy-Thurmond
Rule--this time to justify filibustering several circuit
court nominees in the months preceding the 2004 presidential
election.
The ABA presents itself to the public as a non-partisan.
professional organization. However, it has chosen to advocate
for this Administration's circuit court nominees in the few
remaining months before this presidential election, when it
chose not to do so before either of the last two presidential
elections despite much more compelling circumstances. This
sort of selective advocacy is precisely why so many people
question the ABA's professed neutrality.
We will continue to work with the senate majority to
process judicial nominations, consistent with the practices
of the Senate--practices strongly defended by our Democratic
colleagues during the previous administration and about which
the ABA said nothing. Indeed, the Senate will vote on another
judicial nomination tomorrow. If confirmed, that will be the
151st lower court confirmation already for this
Administration, in addition to two Supreme Court
nominations--a confirmation total far greater than what was
achieved under comparable circumstances during the last
administration. We hope that in the future the ABA will take
a balanced approach to assessing the judicial confirmation
process in the Senate.
Sincerely,
Mitch McConnell,
Republican Leader, U.S. Senate.
Chuck Grassley,
Ranking Member, Judiciary Committee U.S. Senate.
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