[Congressional Record Volume 170, Number 177 (Monday, December 2, 2024)]
[Senate]
[Page S6745]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Judicial Nominations

  Madam President, now, on another matter, just before Thanksgiving, 
the Senate reached a deal on judicial nominees. Republicans would 
forego our available procedural roadblocks on nominations for district 
courts, which had the votes to be confirmed. In exchange, the 
Democratic leader wouldn't bring any of the remaining nominations to 
circuit courts to the floor because they don't have the votes to be 
confirmed.
  As a result, President Biden is getting around a dozen more district 
judges, and the next President will get four more circuits to fill. At 
least, I expect he will.
  We have already seen two partisan Democrat district judges 
``unretire'' after the American people voted to fire Democrats last 
month. This is noteworthy. Looking to our history, only two judges have 
ever--ever--unretired after a Presidential election, one Democrat in 
2004 and one Republican in 2009.
  But now, in just a matter of weeks, Democrats have already met that 
alltime record. It is hard to conclude that this is anything other than 
open partisanship. They rolled the dice that a Democrat could replace 
them, and now he won't. They are changing their plans to keep a 
Republican from doing it.
  It is a brazen admission, and the incoming administration would be 
wise to explore all available recusal options with these judges because 
it is clear now that they have a political finger on the scale. This 
sort of partisan behavior undermines the integrity of the judiciary. It 
exposes bold Democratic blue where there should only be black robes.
  But it would be especially alarming if either of the two circuit 
judges whose announced retirements created these vacancies currently 
pending before the Senate--in Tennessee and in North Carolina--were 
actually to follow suit. Never--never before--has a circuit judge 
unretired after a Presidential election. It is literally unprecedented, 
and to create such precedent would fly in the face of a rare bipartisan 
compromise on the disposition of these vacancies.
  It was no surprise to hear the New York Times bemoan the deal, but 
its editorial didn't doubt that these vacancies now properly belong to 
the next President.
  To borrow from President Obama, ``elections have consequences.'' But 
these consequences are for the political branches of government. For 
sitting judges to change their announced retirement plans because of 
the Presidential election results or the Senate Executive Calendar puts 
them three ZIP Codes away from their proper judicial role.
  If these circuit judges unretire because they don't like who won the 
election, I can only assume they will face significant, significant 
ethics complaints based on canons 2 and 5 of the Code of Conduct for 
U.S. Judges, followed by serial recusal demands from the Department of 
Justice. And they will have earned it. As I have repeatedly warned the 
judiciary in other matters, if you play political games, expect 
political prizes.
  So let's hope these judges do the right thing and enjoy their well-
earned retirements and leave the politics to the political branches.
  We have just demonstrated that, even on an issue as contentious as 
judicial nominations, both sides can still come together for a good 
deal.
  The ACTING PRESIDENT pro tempore. The senior Senator from Illinois.
  Mr. DURBIN. Madam President, as chairman of the Senate Judiciary 
Committee, the filling of judicial vacancies has been the focal point 
of my political attention now for 4 years. There are roughly 800 to 900 
Federal judges at the district court level--the lower court level--and 
the circuit court level and then, of course, 9 on the Supreme Court.
  Filling those vacancies is part of our responsibility. People decide 
to retire, they pass away, for various reasons they leave the bench, 
and we need to make sure the courts still have people to do their 
professional job.
  I listened carefully to my colleague from Kentucky explain his 
concerns about the filling of four circuit court vacancies and the 
possibility--and I don't know with any certainty, but the possibility--
that two of those four judges have decided not to retire but to stay on 
the bench, and he raises a question about whether that is fair.
  Well, I would like to call the Senate's attention to the fact that 
there was a moment in time when we were shocked to learn that Supreme 
Court Justice Antonin Scalia had died while on a hunting trip. I 
believe it was in the month of January or February. I don't have notes 
on it here, but I believe it was January or February of that year, and 
it was the last year of President Obama's Presidency, in his second 
term. And so the President--President Obama--said he was going to set 
out to fill the vacancy created by the death of Antonin Scalia. And he 
was proposing his nominee, Merrick Garland, a judge at the time who is 
now our Attorney General.
  And the decision was made, almost instantly, by the Senator from 
Kentucky--the same Senator who just talked about delaying in filling 
vacancies--the decision was made by him not to fill the Supreme Court 
vacancy. This was in February of the last year of Obama's Presidency. 
And, in fact, it wasn't filled until the new President--in this case, 
Donald Trump--came in, in his first term.

  Senator McConnell instructed his Republican Senators not to meet with 
Merrick Garland, President Obama's nominee, to wait almost an entire 
calendar year to fill that vacancy; and he succeeded in that effort, so 
that Donald Trump was able to fill that vacancy and not the situation 
where President Obama would have that option.
  So when I hear the Senator from Kentucky come to the floor and talk 
about whether there is any gamesmanship going on, I don't know, but I 
will tell you we saw it at the highest possible level in filling the 
vacancy in the Supreme Court when Antonin Scalia passed away.
  I think what the American people are looking for is fair play. That 
is not unreasonable. And they are looking for qualified nominees. I am 
happy to report that well over 50 percent of the nominees that have 
gone through under the Biden administration for the Federal courts have 
been bipartisan--it is 86 percent, a dramatic majority that have been 
bipartisan.
  And every single Federal nominee from President Biden has been judged 
``well qualified'' or better by the American Bar Association. That was 
not the case under the previous administration of President Trump, and 
it makes a difference whether a person has a quality background and the 
integrity to serve on the court.
  So I am proud of what we have achieved, and I hope we can close the 
year with the understanding that even more will be filling the 
vacancies on the bench.