[Congressional Record (Bound Edition), Volume 154 (2008), Part 2]
[Senate]
[Pages 2984-2986]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I would apologize for the lack of judicial 
nominations on the Executive Calendar but for the fact that is has been 
the refusal of Republicans to cooperate this year in reporting out 
nominations that has lead to the current circumstance. The fact is that 
we concluded last session by confirming each and every judicial 
nomination that was reported out of the Judiciary Committee. None were 
carried over into this new year. And despite my efforts in February, 
when the Judiciary Committee held two hearings for seven judicial 
nominees, including a circuit nominee, Republican members of the 
Judiciary Committee effectively boycotted our business meetings in 
February and obstructed our ability to report judicial nominations and 
high-ranking Justice Department nominations. I adjourned both our 
February 14 and February 28 meetings for lack of a quorum. At the first 
meeting only one Republican Senator was present. At the latter, the 
ranking member chose to leave.
  Despite the partisan posturing by the President and Senate 
Republicans, I have continued to move forward and sought to make 
progress but, I must admit, my patience is wearing thin. Two weeks ago, 
during the congressional recess, I chaired our third nominations 
hearing of the year. Included were three judicial nominations, 
including that of Catharina Haynes of Texas to be a circuit judge on 
the Fifth Circuit. I knew that this nomination was important to Senator 
Cornyn. So in spite of her participation at the recent partisan 
political rally and photo op at the White House, I proceeded with that 
previously scheduled hearing.
  Despite urging the President to work with us, 19 current judicial 
vacancies--almost half--have no nominee. In addition, several of the 
judicial nominations we have received do not have the support of their 
home state Senators. Of the vacancies deemed by the Administrative 
Office to be judicial emergencies, the President has yet to send us 
nominees for seven of them, more than a third. Of the circuit court 
vacancies, nearly a third are without a nominee and more than half of 
the current circuit court nominees do not have the support of both home 
State Senators.
  If this President had worked with the Senators from Michigan, Rhode 
Island, Maryland, California, New Jersey, and Virginia, we could be in 
position to make more progress. Instead, we have lost precious time to 
provocative and controversial nominations like that of Duncan Getchell 
and Claude Allen of Virginia. Those nominations were both withdrawn by 
the President after months of wasted time and effort. I, again, 
encourage the White House to work with Senators Warner and Webb of 
Virginia to send us consensus nominees for the two Virginia vacancies 
on the Fourth Circuit.
  The Getchell nomination is an example of the President's failure to 
work with home State Senators to make consensus nominations. President 
Bush nominated Duncan Getchell to one of

[[Page 2985]]

Virginia's Fourth Circuit vacancies over the objections of Senator 
Warner and Senator Webb. They had submitted a list of five recommended 
nominations, and specifically warned the White House not to nominate 
Mr. Getchell. As a result, this nomination, which was opposed by home 
state Senators from the start, was one that could not move.
  The Republican complaints about nominations ring hollow in light of 
the actual progress we have made. Despite the efforts of the Bush 
administration to pack the Federal courts and tilt them sharply to the 
right, the Judiciary Committee and the Senate have worked to approve an 
overwhelming majority of President Bush's nominations for lifetime 
appointments to the Federal bench. We have confirmed over 86 percent of 
President Bush's judicial nominations, compared to less than 75 percent 
for President Clinton's nominations.
  The difference is even more stark when examining nominations to 
influential circuit courts, to which nearly three quarters of President 
Bush's nominations have been confirmed, compared to just over half of 
President Clinton's. That means nearly half of President Clinton's 
circuit nominations were not confirmed, many of them pocket 
filibustered with anonymous objections, no hearings, and no 
consideration. If we stopped now and did not consider another judicial 
nominee all year, we would better the record Republicans established 
with President Clinton.
  We confirmed 40 judicial nominees last year, including six nominees 
to the circuit courts. That total was more than were confirmed during 
any of the three preceding years under Republican leadership and more 
than were confirmed in 1996, 1997, 1999, and 2000, when a Republican-
led Senate was considering President Clinton's nominations. Indeed, in 
three years that I have chaired the committee, the Senate has confirmed 
140 of President Bush's lifetime appointments to our Federal courts. 
That compares favorably to the total of 158 confirmations during the 
more than 4 years that Republicans led the committee during this 
Presidency. If we stopped now and did not consider another judicial 
nominee, we would compare favorably to how Republicans have treated 
this President's nominees, and we have already improved upon how they 
treated President Clinton's nominees.
  If the White House and the Senate Republicans were serious about 
filling vacancies and not just seeking to score partisan political 
points, the President would not make nominations opposed by home State 
Senators of both parties. If they were serious about filling vacancies, 
Republicans would not spend the rest of the Bush Presidency fighting 
over a handful of controversial nominations rather than work with us to 
make progress. If they were serious about filling vacancies, 
Republicans on the committee would attend important business meetings 
and help us make a quorum to report these nominations to the Senate.
  I am surprised that today the ranking member has suggested that 
judicial nominations were ``stymied'' when I first became chairman of 
the Judiciary Committee under this President in 2001. Indeed, during 
those 17 months, the Senate confirmed 100 judicial nominations. That 
pace was never duplicated under either of the Republican chairmen that 
followed me. During the 2 years under Senator Specter's chairmanship, 
the Senate approved 54 confirmations.
  I am surprised that the ranking member is suggesting the Senate 
bypass the committee's process for considering nominations, and is 
apparently calling for an end to the role of home State Senators. When 
he was chairman of the Judiciary Committee, Senator Specter respected 
the blue slip, which is the means by which home State Senators approve 
or disapprove of a nomination before consideration of the nomination 
proceeds. When he was chairman, he proceeded with hearings on 
nominations that were controversial and were subsequently withdrawn. 
That took time away from those nominations on which we might have been 
able to make progress together.
  Requiring the support of home State Senators is a traditional 
mechanism to encourage the White House to engage in meaningful 
consultation with the Senate. Many of this President's current nominees 
do not have the support of the home State Senators. That is why his 
nomination of Duncan Getchell was finally withdrawn. That is why the 
nomination of Gene Pratter to the Third Circuit has not been 
considered. That is also the current situation for both nominees to the 
Third Circuit, the two current nominees to the Sixth Circuit, a nominee 
to the Fourth Circuit and the nominee to the First Circuit. Of the 11 
circuit court nominations that have been pending before the Senate this 
year, 8 have not had the support of home State Senators. Indeed, more 
than half of the 28 nominations listed by Senator Specter in his recent 
letter to me do not currently have blue slips signaling support from 
home State Senators. He knows that. That information is public.
  This process was abused when the Republican-controlled Senate pocket-
filibustered President Clinton's nominees with anonymous holds and no 
public opposition. One of my first acts when I became chairman in 2001, 
with a Democratic-led Senate considering President Bush's nominees, was 
to open up the nominations process for the first time, making blue 
slips public for the first time. We have drawn open the curtains on the 
process. Republicans, during the Clinton administration, cloaked it in 
secrecy and, to this day, will not explain their actions. I have not 
treated this President's nominees in that way. We have considered 
nominations openly and on the record. We have considered nominations I 
do not support, something that was never done by a Republican chairman.
  Much of the problem remains with this President and his insistence on 
nominating controversial nominees. I extended another olive branch to 
him by my letter last November. I have received no response.
  I had consulted with the senior Senator from Pennsylvania, and we had 
earlier exchanged letters. He knows from my January 22 letter what the 
situation is. As a former chairman he knows. He knows the history of 
the Thurmond Rule, by which Republicans, then in the minority, insisted 
that judicial vacancies in the last year of a President's term remain 
vacant in order to be filled with the nominations of the next 
President. He understands the dynamics in the last year of a 
President's term. And no modern President has been as divisive as this 
President on these issues.
  The Republican chairman serving during the end of President Clinton's 
term noted many times that judicial confirmations slow in a President's 
last year. I do not intend to return more than 60 nominations to this 
White House without action, or return 17 circuit court nominations 
without action. But much depends on the cooperation of the President 
and Senate Republicans.
  It is hard to consider partisan complaints about the pace of judicial 
nominations when those same voices criticize me for holding hearings on 
judicial nominations. Damned if I do and damned if I don't. Indeed, 
when I went out of my way to hold a hearing for judicial nominations 
during the last recess period, I was roundly criticized by Republicans. 
It reminded me of the time in 2001 when I previously chaired a recess 
hearing for another circuit court nominee of this President and I was 
criticized by a Republican Senator for proceeding expeditiously. It 
only goes to prove the truth of the saying that around here, when it 
comes to judicial nominations, no good deed goes unpunished.
  The record is that during the 1996 session, the last of President 
Clinton's first term, the Republican-led Senate confirmed not a single 
circuit nomination. If we are able to proceed and confirm just one 
circuit nominee this year, we will better that record.
  Republicans returned 17 circuit nominations to President Clinton 
without action at the end of his presidency. The treatment of President 
Clinton's nominees contrasted markedly with that accorded by Democrats 
to the nominations of Presidents Reagan and Bush in

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the Presidential election years of 1988 and 1992, when nine circuit 
court nominees were confirmed on average. Regrettably, the Republican 
Senate reversed that course in its treatment of President Clinton's 
circuit court nominations, confirming none during the 1996 session and 
an average of only four in Presidential election years.
  The Republican Senate chose to stall consideration of circuit 
nominees and maintain vacancies during the Clinton administration. In 
those years, Senator Hatch justified the slow progress by pointing to 
the judicial vacancy rate. When the vacancy rate stood at 7.2 percent, 
Senator Hatch declared that ``there is and has been no judicial vacancy 
crisis'' and that this was a ``rather low percentage of vacancies that 
shows the judiciary is not suffering from an overwhelming number of 
vacancies.'' Because of Republican inaction, the vacancy rate continued 
to rise, reaching nearly 10 percent at the end of President Clinton's 
term, including 26 circuit vacancies.
  By contrast, we have helped cut circuit court vacancies across the 
country in half, reducing the number to 13 in 2007. In fact, circuit 
court vacancies reached a high water mark of 32 early in President 
Bush's first term, with a number of retirements by Republican-appointed 
judges. Indeed, the current judicial vacancy rate is around 5 percent. 
That is half of what it was at the end of President Clinton's term, and 
significantly lower than when Senator Hatch described the vacancy rate 
as acceptably low. If we applied Senator Hatch's standard, we would 
have no more hearings or consideration of any of the remaining 
nominations.
  Because of the success of the Republicans at stacking the courts and 
their success in preventing votes on nominees, the current situation on 
the circuit courts is that more than 60 percent of active judges were 
appointed by Republican presidents and more than 35 percent were 
appointed by this President. If we did not act on another nominee, 
Republican presidents' influence over the circuit courts is already out 
of balance.
  I would rather see us work with the President on the selection of 
nominees that the Senate can proceed to confirm than waste precious 
time fighting about controversial nominees. That is why I have urged 
the White House to work with Senators Warner and Webb to send to the 
Senate without delay nominees to the Virginia vacancies on the Fourth 
Circuit. That is why I have urged the White House to work with all 
Senators from States with vacancies on the Federal bench. We may still 
be able to make progress, but only with the full cooperation of this 
President, and Republican Members of this Senate.

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