[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.

                          ____________________