Congressional Record, Volume 164 Issue 68 (Thursday, April 26, 2018)

[Congressional Record Volume 164, Number 68 (Thursday, April 26, 2018)]
[Senate]
[Pages S2448-S2450]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Confirmation Process

Mr. HATCH. Mr. President, there is no excuse for the delays in the
confirmation process except sheer partisanship. It amounts to an
ongoing partial government shutdown, and it definitely hurts the
American people. Such obstruction is not worthy of the Senate, and the
resulting judicial vacancies do great harm to the judicial system.
These are not my words but the words of the Senator from Vermont, Mr.
Leahy, when he chaired the Judiciary Committee in 2014. Judicial
vacancies today are 60 percent higher than when he expressed those
concerns back then. Vacancies are 52 percent higher than what he said
was a ``disaster for our Nation's overburdened courts.''
The Administrative Office of the U.S. Courts labels some judicial
vacancies as judicial emergencies because of their duration and impact
on caseloads. On March 12, 2012, the Senator from Illinois, Mr. Durbin,
said that 35 judicial emergency vacancies would cause the
administration of justice to suffer at every level. Today, there are 72
judicial emergency vacancies, more than twice as many as Senator Durbin
warned about.
To be fair, I have to say that the leftwing groups that are such
faithful allies of Senate Democrats are no better. In July 2012, for
example, the Alliance for Justice proclaimed that 76 vacancies
demonstrated ``an overall and ongoing vacancy crisis in the federal
courts.'' Today, vacancies are 88 percent higher than the crisis level,
and all we hear from the Alliance for Justice are calls to oppose and
obstruct even more. Judicial vacancies today are 74 percent higher than
when the Brennan Center for Justice said the Senate was not meeting its
obligation to the American people.

If high judicial vacancies harm the judicial system and prevent
Americans from seeking justice, why aren't Democrats and their leftwing
allies leading the effort to confirm judicial nominees today? If
Democrats once said that 79 vacancies constitutes a crisis, why are
they silent about 143 vacancies today?
Today we face the highest judicial vacancy total since June of 1991,
after Congress had created dozens of new judgeships. It is crystal
clear why this dire situation confronts us today. The process for
appointing Federal judges, after all, has only three steps: nomination
by the President, consideration by the Senate Judiciary Committee, and
a decision by the full Senate.
The first step in the judicial appointment process is Presidential
nominations. President Trump has made more judicial nominations than
his predecessors of both parties at this point, so he is not the
problem--as you can see from that chart.
The second step is consideration by the Judiciary Committee. Chairman
Chuck Grassley has held a hearing on 75 of those nominations--more than
under previous Presidents, so the Judiciary Committee is not the
problem.
That leaves the third step right here on the Senate floor. Even
though President Trump is ahead of the nomination

[[Page S2449]]

pace, and the Judiciary Committee is ahead of the hearing pace, the
Senate's confirmation pace is half what it was at this point for the
past five Presidents.
March 20, I spoke here about some of the below-the-radar obstruction
tactics Democrats are using to make this part of the process as time-
consuming and cumbersome as possible. Let me offer a brief review.
Democrats once complained about U.S. district court nominees being
reported from the Judiciary Committee on a party-line vote. That is
happening at a rate of more than four times as great today.
Democrats once criticized the failure to cooperate in scheduling
floor votes for judicial nominees. So far, Democrats have forced the
Senate to take separate votes to end debate, called a cloture vote, on
96 percent--96 percent--of President Trump's judicial nominees. The
Senate has been forced to take 16 times as many cloture votes on
President Trump's judicial nominees as under the last 12 Presidents
combined at this point. You heard me right. The Senate has been forced
to take 16 times as many cloture votes on judicial nominees as under
the last 12 Presidents combined at this point. That is every President
since the cloture rule was first applied to nominations in 1949.
In 2014, with a Democratic President, Democrats said that every time
the minority refuses to cooperate in scheduling confirmation votes,
every time the majority leader is forced to initiate the cloture
process, the Senate is forced to take up scarce floor time, when we
know these nominees will be confirmed. Today, Democrats are using that
and other tactics on a scale this body has never seen before.
Democrats once objected to voting against confirming U.S. district
court nominees who were supported by their own two Senators. At this
point, President Obama's confirmed district court nominees had received
a total of zero negative votes--zero. President Trump's district court
nominees have received 73 negative votes--73. Think about that. Think
about the unfairness of it.
Each of these, and more besides, is a tactic that Democrats once
condemned but are today pushing to record levels of obstruction. Even
more important than seeing where we are and how we got here is
understanding why the Democrats and their leftwing allies are working
so hard to prevent President Trump from appointing judges.
I have served in this body and on the Judiciary Committee for nearly
42 years. I have participated in the confirmation of half of all
article III judges who have ever served in this country, from the
beginning. In all that time, the conflict over judicial appointments
has never been over judicial nominees; it has always been over judicial
power. The vacancy crisis we face today is a consequence of the
broader, ongoing conflict over the kind of judge America needs on the
bench.
America's Founders gave us a system of government that includes a
judiciary with a role defined by three important principles. First, as
Founder James Wilson put it, the people are masters of the government.
Second, the Constitution is the primary way that the people set rules
for government. Third, among those rules is the separation of powers
into three coequal but different branches.
Judges acting consistent with these principles, what I have called
impartial judges, fit the design of our system of government and the
liberty it makes possible. Judges who depart from those principles,
what I have called political judges, are at odds with that design and
undermine our liberty. President Trump is committed to appointing
impartial judges, while those working so hard to obstruct his his
nominees favor political judges.
President Obama led the way in the quest for a political judiciary.
First, as a Senator evaluating judicial nominees and then as a
President choosing them, he said judges decide cases based on their
empathy, their vision of how the world works, their core concerns, and
their deeply held beliefs. If judges make decisions on their personal
views, then it is no wonder the Democrats want so badly to know a
judicial nominee's personal views.
I will never forget the confirmation hearing for Chief Justice John
Roberts in 2005. Democrats pressed him to commit, in advance and under
oath, to particular results in different categories of cases. They
asked repeatedly: Whose side will you be on? Political judges take
sides, even before cases come before them, because their main objective
is to ensure that the favored side wins and that the preferred
political interest is served.
We see this in plain view today. Democrats observe a judicial
nominee's personal views, or his legal views on behalf of a client, and
insist that those views will dictate his judicial views. This is why
many Democrats will oppose any nominee who has conservative personal
beliefs or who has advocated for conservative clients. To them, there
is no difference between politics and law.
Democrats oppose judicial nominees because of their personal views,
even when the American Bar Association--which has never been accused of
being conservative--gives those nominees its highest rating. The
appeals court nominee confirmed this week, for example, received that
rating only after the ABA considered, in its words, his ``compassion,
decisiveness, open-mindedness, courtesy, patience, freedom from bias,
and commitment to equal justice under the law.''
In their heart of hearts, those who favor political judges have no
problem with judicial minds being closed or biased so long as that
leads to results they like. They seek politically correct results by
any judicial means.
That judiciary is very different from the one contemplated by the
Founders of this great country. That judiciary is very different from
the one described by the oath of judicial office, by which a judge
commits to do justice without respect to identities or interests. That
judiciary is very different from the one that makes our liberty
possible.
The liberty we enjoy is by design, not by accident. That design
requires judges with a limited and defined role. Impartial judges
support the liberty our system of government was designed to provide
while political judges undermine it. Impartial judges take the law as
it is and apply it fairly to decide cases, leaving decisions about what
the law should be to the American people and their elected
representatives. Political judges take decisions about what the law
should be away from the American people, manipulating the meaning of
statutes and the Constitution to follow their own views and their own
agenda.
The conflict over judicial appointments is, and will remain, a
conflict over judicial power and, therefore, a conflict over the system
of government crafted by America's Founders. Remember the three
principles I mentioned earlier. Impartial judges allow the American
people to remain the masters of government; political judges become the
masters of the people. Impartial judges follow the rules the American
people put in the Constitution; political judges change the meaning of
those rules to suit their own ends. Impartial judges respect the
separation of powers while political judges breach it.
The unprecedented obstruction of judicial nominees today is a tool in
the campaign for an increasingly politicized judiciary. The rhetoric of
that campaign is all about desirable objectives, all about good
intentions. I close with the words of Daniel Webster, who represented
two different States in the House and represented Massachusetts in the
Senate before serving as Secretary of State under three different
precedents. He said:

Good intentions will always be pleaded for every assumption
of authority. It is hardly too strong to say that the
Constitution was made to guard the people against the dangers
of good intentions. There are men in all ages who mean to
govern well, but they mean to govern. They promise to be good
masters, but they mean to be masters.

That is Daniel Webster. Let me repeat that again because Webster is
one of the greatest people who ever served in this government.

America needs impartial judges so that the American people can be the
masters of government and so that liberty can thrive.
Let me go over that quote again from Daniel Webster. I will end with
this.

[[Page S2450]]

Daniel Webster said:

Some of those Founding Fathers really knew what they were talking
about, and Webster was certainly one of them in many respects.
All I can say is that we have a chance to work together to do what is
right and in the best interest of the American people. I intend to see
that we do that, and I hope we can because this country is worth it.
Our system of government is the best this world has ever seen, and I
want to see it continue to be.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Hyde-Smith). The clerk will call the
roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
If no one yields time, the time will be charged equally.