[Congressional Record Volume 167, Number 217 (Thursday, December 16, 2021)]
[Senate]
[Pages S9234-S9236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Holly A. Thomas

  Mr. SULLIVAN. Mr. President, the next vote is going to be a motion to 
discharge from the Judiciary Committee Judge Holly Thomas for the U.S. 
Court of Appeals for the Ninth Circuit. I am going to vote no because I 
have not had the opportunity to actually meet Judge Thomas.
  In a remarkable undermining of senatorial tradition, the Biden 
administration White House is now saying that no Senator is allowed to 
meet a circuit court judge prior to the confirmation vote of that 
judge.
  The Presiding Officer might be tilting his head at me like that seems 
crazy. Well, it is crazy. Every Ninth Circuit judge--a court of appeals 
that has enormous power over my State--who has been nominated by any 
President since I have been a U.S. Senator, I have met with to discuss 
issues. This is part of our advice-and-consent role. Yet this White 
House is now saying no Senator can meet with a circuit court judge, 
even for an hour, prior to the vote despite the fact that they are 
getting ready to have life tenure.
  This is in line with this administration and with, unfortunately, 
some of my Democratic colleagues who are just smashing institutional 
norms in this body that have significant bipartisan support.
  We saw the junior Senator from Massachusetts yesterday saying she 
wants to pack the Supreme Court. I am sure that is going to lead to a 
charge of other Democrat Senators. My colleagues are all very focused 
on getting rid of the filibuster despite the fact that more than half 
the Democratic conference, in April of 2017, wrote a letter to the 
majority and minority leaders of the Senate, saying: Don't get rid of 
the filibuster. Now only Joe Manchin and Kyrsten Sinema seem to be the 
ones defending it. I would love it if the press asked questions of the 
other 26 of my Democratic colleagues who, just 4 years ago, said: Don't 
do this. But this norm that is being undermined right now--of Senators 
being able to meet with nominees to circuit courts--is a new low.
  I raised this with senior Biden administration White House officials 
just last week, and they said they would look into it. They seemed a 
little confused. The White House Counsel for the President finally 
called me back after I had been trying to get ahold of her because I 
had heard it was her idea. Then I asked her ``Why are you doing this?''
  By the way, the Trump administration didn't do this. To the contrary,

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their White House Counsel actually tried to get Republican and Democrat 
Senators to meet with circuit court nominees to help maybe get 
bipartisan votes. So it wasn't the precedent of the previous 
administration.
  The White House Counsel actually told me--she used this language: 
``We are doing it to protect the judges''--``to protect the judges.'' 
From what--Senators doing their constitutional duty? What are they 
hiding? Are they really that unimpressive that they have to have their 
own nominees being protected from us here in the Senate?

  So the bottom line is that all of this is patently absurd, and I 
think many of my Democratic colleagues actually agree with me. I have 
talked to a number of them, and I don't think this is a precedent that 
anyone who is a U.S. Senator should want, whether you are a Democrat or 
a Republican.
  Remember, these judges are going to have enormous power over the 
people we represent, and they are going to have life tenure. It is not 
like voting for an Assistant Secretary who will be 2, 3, 4 years on the 
job. This is life tenure, and they can't take an hour out of their time 
prior to the vote to meet with Senators.
  I asked these judges in a speech just last week: Hey, give me a call. 
You don't have to get permission from the White House. This is actually 
a first test of your judicial independence. Call me. I want to talk to 
you.
  We didn't hear back from any judges, and the White House is still 
blocking it.
  What is really surprising is that the current President is the former 
chair of the Senate Judiciary Committee. I wonder if he actually knows 
what is going on with his senior staff of his White House Counsel 
where, right now, no Member of the U.S. Senate who is trying to do his 
advice-and-consent constitutional role can even meet--can even meet--
with a circuit court judge. I am pretty sure most of my colleagues 
don't agree with this.
  What I am hoping for is to get the White House to change its outlook 
on this, to follow the example of the Trump administration--I know that 
might be a hard swallow--and have these judges meet with us.
  When I meet with them, I talk about Alaska legal issues, and if you 
are a judge who grew up in L.A. and you are an L.A. judge, you don't 
know anything about Alaska, but you will have an enormous impact on the 
people I represent.
  So I think what you are going to see until we get some cooperation 
with the White House is that I hope most of my colleagues, Republican 
colleagues, whether they think these nominees are qualified or not, are 
going to vote no. They are going to vote no, and the reason is a core 
principle: We should be able to do advice and consent.
  If there were a Republican President in the White House and if some 
of my Democratic colleagues said ``Hey, can you help me get a meeting 
with a circuit court nominee who is going to have big impacts on my 
State?'' I would certainly do it. Like I said, we didn't have to do it 
the last time because that was the Trump administration's standard 
operating procedure.
  I hope we can get to an agreement on this, and I hope all Senators 
can agree with this. I am hopeful that you are going to see, at least 
with my colleagues, that there are going to be no ``yes'' votes on any 
of these nominees, and that is not good. These circuit court judges 
want a bipartisan confirmation. Well, they are not going to get it 
until we are able to do our constitutional duty of advice and consent 
for judges, life-tenured judges, who have enormous power over the 
people we represent.
  I am hopeful that every Member of this body can work with us, work 
with me, work with the White House, maybe even call the President and 
say: Do you know what? This is probably a standard principle that you 
guys want to get rid of. Making sure U.S. Senators cannot meet with 
judges who are going to have lifetime tenure is smashing a bipartisan 
institutional norm. That is not going to serve this body well at all.
  I yield the floor, and I encourage my colleagues to all vote no in 
the upcoming vote to discharge this nominee until we can actually talk 
to her and see what kind of judge she would be. This is a very, very 
reasonable position, so I strongly urge a ``no'' vote from all of my 
colleagues.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, Judge Holly Thomas is a nominee for the 
U.S. Court of Appeals for the Ninth Circuit. She went through the 
Senate Judiciary Committee. It is a bipartisan committee of 11 to 11. 
She was before the committee, available for questions and available for 
written questions soon afterward.
  If the Senator from Alaska or any other Senator has a grievance with 
the White House's procedure on how to handle his nominees, so be it, 
but is she going to be punished because that decision was made at the 
White House level? She went through the committee, as we asked her to, 
and made herself available. She has an extraordinary record as a 
jurist, and to dismiss her because of a disagreement with the White 
House on the procedure on his nominees, I don't think it is fair. I 
think she deserves to be judged on her merits, and on her merits, she 
should be sitting on the Ninth Circuit.
  Mr. President, today, the Senate will consider the nomination of 
Judge Holly Thomas for the U.S. Court of Appeals for the Ninth Circuit.
  Judge Thomas is a highly qualified nominee. Her extensive experience 
as an appellate litigator and a California State court judge will serve 
her well on the Ninth Circuit.
  And, if confirmed, she would be the first Black woman from California 
to serve on that court.
  A San Diego native, Judge Thomas was drawn to a career in law at a 
young age. Her mother--a bookkeeper--used to take her to the San Diego 
courthouse to watch the proceedings. That experience inspired her to 
pursue a law degree at Yale Law School--which she did after receiving 
her undergraduate degree from Stanford University with Honors and 
Distinction.
  After law school, Judge Thomas began her legal career as a clerk for 
Judge Kim McLane Wardlaw on the Ninth Circuit.
  She then began an expansive appellate litigation career, initially 
working at the NAACP Legal Defense and Educational Fund, where she 
focused on education and issues related to criminal justice.
  In 2010, Judge Thomas joined the Justice Department, where she worked 
as a Senior Attorney in the Appellate Section of the Civil Rights 
Division. In this role, she argued appeals on behalf of the United 
States before multiple U.S. Courts of Appeals--including the First, 
Second, Fourth, Fifth, and Ninth Circuits.
  After 5 years at the Justice Department, Judge Thomas went on to work 
for the Office of the New York Solicitor General, where she served as 
special counsel. In this role, Judge Thomas argued multiple cases 
before the Second Circuit and in the State courts of New York.
  In 2016, Judge Thomas became the deputy director of the California 
Department of Fair Employment and Housing, where she helped enforce 
State and Federal civil rights laws.
  Since 2018, she has served on the Los Angeles County Superior Court--
with the exception of this past summer. In May, the chief justice of 
the California Supreme Court chose Judge Thomas to serve as judge pro 
tem on the California Court of Appeals. And she returned to the LA 
County Superior Court earlier this year.
  During her time on the bench, Judge Thomas has handled hundreds of 
cases that have gone to verdict or judgment, and she has presided over 
thousands of hearings. As judge pro tem on the California Court of 
Appeals, she sat on numerous appellate court panels and authored seven 
opinions, all of which were unanimous.
  In short, Judge Thomas has demonstrated that she is a fair, 
impartial, and evenhanded jurist.
  She has extensive experience as a both a trial and appellate court 
judge. And before her appointment to the bench, she represented a wide 
range of litigants.
  The American Bar Association unanimously rated Judge Thomas as 
``Qualified'' to sit on the Ninth Circuit.
  And she has the strong support of her home State senators--Senators 
Feinstein and Padilla.
  Additionally, as only the second Black woman to ever serve on the 
Ninth Circuit, Judge Thomas will help

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bring much needed diversity to our Federal judiciary.
  Given her varied professional background, years of appellate 
experience, and her accomplishments on the bench, Judge Thomas will be 
an excellent addition to the Ninth Circuit. I urge my colleagues to 
join me in supporting her nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. SULLIVAN. Mr. President, I ask my friend and colleague from 
Illinois, who is the chairman of the Judiciary Committee, if he could 
actually work with us--I have already reached out to him and some other 
Democrat Senators--on this very reasonable request. He has been here a 
lot longer than I have. But every time there is a Ninth Circuit judge 
who has been nominated, I have met with him because it is so important 
to my State. Alaska has 1 Ninth Circuit judge, and there are 29 judges 
on the court.
  So I would ask, respectfully, the chairman of the Judiciary Committee 
to work with me because this is a precedent that I don't think any 
Senator, Democrat or Republican, wants.
  Literally, you are going to have the White House saying ``You know 
what? You are not on the Judiciary Committee, so your advice-and-
consent role under article II, section 2, is null and void'' because 
the White House Counsel wants to ``protect the judges''? Protect them 
from what?
  So I want to work with my colleagues--all of them--particularly the 
chairman of the Judiciary Committee, as he has a lot of influence, I am 
sure, with the White House and the White House Counsel's Office, but, 
again, I encourage my colleagues to vote no until we start getting 
meetings and are able to do our duty. This is going to benefit my 
colleagues on both sides of the aisle over the long term, and it will 
strengthen this body, not weaken it, which is what is happening right 
now.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me in closing say: I think we should 
be respectful and try to work with one another and cooperate. That also 
includes the over 100 nominees sitting on this calendar who have been 
obstructed by two or three Republican Members for weeks, if not months. 
If there is going to be fairness, let's make sure that the road travels 
in both directions.
  I yield back all remaining time.