[Congressional Record (Bound Edition), Volume 154 (2008), Part 3]
[Senate]
[Pages 3513-3516]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, earlier this week the Senate confirmed Mark 
Filip to be the Deputy Attorney General at the Department of Justice. 
That is the person second in command at the Department. Yesterday, the 
Judiciary Committee reported four judicial nominations for lifetime 
judicial positions, and we reported three more executive nominations, 
including the nomination of Kevin O'Connor to be the Associate Attorney 
General. That is the third highest ranking official at the Department 
of Justice.
  These executive branch nominations would have been on the Senate's 
Executive Calendar sometime ago, but for some reason the Senate 
Republicans did not cooperate to get them out of Committee. We were 
going to put them on the Senate Judiciary Committee's calendar--and 
did--in mid-February. What happened? The Republicans effectively 
boycotted the meeting.
  Now, some of them were out giving speeches saying: Why don't we have 
some of these nominations go through? But they were effectively 
blocking the meeting. So we tried it a second time in February. Again, 
a lack of a quorum. In fact, at the first, only one or two Republicans 
remained present. At the latter hearing, the ranking member, the senior 
Republican on the committee, left before a quorum gathered.
  We concluded the last session of this Congress by confirming each and 
every judicial nomination that was reported by the Judiciary Committee, 
all 40. None were carried over into this new year. In February, the 
Judiciary Committee held two hearings for seven judicial nominees, 
including a circuit nominee. Despite my efforts, Republican members of 
the Judiciary Committee effectively boycotted our business meetings 
last month and obstructed our ability to report judicial nominations 
and high-ranking Justice Department nominations.
  It is more than ironic--in fact, it is somewhat cynical--that the 
President and Senate Republicans simultaneously staged partisan media 
events and complained that the Senate Democrats are not moving their 
nominations forward when the Republicans themselves prevented the 
Judiciary Committee from moving them forward. These complaints ring as 
hollow as the complaints that we heard again this morning about the 
expiration of the so-called Protect America Act, which expired because 
the White House and congressional Republicans refused to extend it. We 
found out why they refused to extend it, which is because they wanted 
to blame their actions on Democrats. I know it is an election year, but 
this kind of cynicism does not help the United States, and it is one of 
the reasons so many Americans are upset with the whole political 
process and why I believe the President is at such a low rating in the 
political polls.
  Their actions in blocking us from doing something and then asking why 
didn't we do it remind me of the old saw that we former prosecutors 
used to talk about all the time, about the youngster who murdered his 
parents but then said to the court: Have mercy on me, I am an orphan. 
You can't have it both ways.
  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. At that time, the committee considered 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

[[Page 3514]]

House, I moved forward with that previously scheduled hearing. Instead 
of receiving thanks for making the effort to hold a confirmation 
hearing during the recess, I have actually been criticized by 
Republicans for doing so.
  I commend the ranking member of the Judiciary Committee for 
acknowledging the years of Republican pocket filibusters, when they 
pocket-filibustered more than 60 of President Clinton's judicial 
nominations, as excess. Yes, I would agree it is excess. It had never 
been done by any party, Republican or Democratic, before. I have long 
said that what would help the process is a sincere, full acknowledgment 
by those Republican Senators who worked so hard to obstruct and pocket-
filibuster President Clinton's moderate and well-qualified judicial 
nominees of their excesses and mistakes. Hope springs eternal, and it 
will probably be an eternity before that acknowledgment will be made by 
the same people who created the problem and now complain about it.
  I do not hold the senior Senator from Pennsylvania responsible for 
those activities. He wasn't chairing the committee. He was not a member 
of the Republican leadership or even one of the more active 
participants in that effort. In fact, except for his vote to defeat the 
nomination of Justice Ronnie White of Missouri, a highly qualified 
African American for the Federal judiciary, an action for which he 
subsequently apologized, I cannot think of another judicial nominee he 
opposed.
  As chairman of the Judiciary Committee, I have worked hard to turn 
the other cheek. When I became chairman, I wanted to greatly improve on 
the sorry treatment of reported nominees when the Republicans were in 
control and considering President Clinton's nominees. During the 17 
months I was chairman during President Bush's first term I tried to 
reverse that trend. I said we are not going to pocket-filibuster 60 
judges in the way that the Republicans did to President Clinton. Let's 
move these judges, even though a lot of the vacancies were created by 
their filibustering.
  So we Democrats acted faster and more favorably on more of this 
President's judicial nominees than under either of the Republican 
chairmen who succeeded me as chairman. During those brief 17 months I 
was chairman before, the Senate confirmed 100 judicial nominations. 
During the 2 years my friend from Pennsylvania was Chairman, the 
Republicans confirmed just 54 judicial nominations. Granted, two were 
Supreme Court justices, but 54 in 2 years, and with strong help from 
the Democrats, as compared to 100 during the 17 months I was chairman.
  I was surprised earlier this week to hear the ranking member say that 
nominations were ``stymied'' when I became chairman. Complaints ring 
hollow under those circumstances, given the improvements I made in 
making the formerly secret process of checking the home State Senators 
as a matter of public record. Keep in mind that under the Republicans 
they allowed secret holds. That is how they were able to block more 
than 60 of President Clinton's nominations. Instead of the holds or 
blue slips, I made them public.
  When I assumed the chairmanship last year, the committee and the 
Senate continued to make progress with the confirmation of 40 more 
lifetime appointments to our Federal courts. That is more than were 
confirmed during any of the 3 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. Thus, as chairman, I have worked to help the Senate act to 
confirm 140 lifetime appointments in only 3 years, as compared to 158 
under 4 years of Republican control. Stymied?
  Equally misleading is a Republican talking point that the Judiciary 
Committee didn't hold a hearing for circuit nominations for 5 months. 
What they do not say is that as a result of the mass resignations at 
the Justice Department in the wake of the scandals of the Gonzales era, 
including the resignation of the Attorney General himself following 
those scandals, the committee was holding seven hearings on high-
ranking replacements to restock and restore the leadership of the 
Department of Justice between September of last year and last month, 
including confirmation hearings for a new Attorney General to replace 
the disgraced Attorney General who was forced out, a new deputy 
Attorney General, a new associate Attorney General, and many others.
  Because of the scandal of the Bush-Cheney administration and the 
Justice Department, there are all these vacancies. Of course, when they 
finally got around to replacing these people, we felt the first 
priority was to hold hearings so there would be an Attorney General and 
senior leadership at the Department of Justice. Of course those 5 
months also include the December and holiday recesses and the break 
between sessions, so for many weeks we were not here. That is in 
comparison to the first 6 months of 1999, when the Republican chairman 
refused to schedule any judicial nomination hearings, in order to force 
the White House to consider his pick for a judgeship in Utah.
  The Republican whip urged committee attention to the President's 
nominations to fill the many vacancies resulting from the resignations 
of the Gonzales leadership group at the Justice Department. And when we 
do, in fact, have those hearings and do that work and we make them a 
priority, we are criticized. It appears we are damned if we do and 
damned if we don't.
  We held a prompt 2-day hearing on the nomination of Michael Mukasey 
to be Attorney General, a hearing on the nomination of Judge Filip to 
be Deputy Attorney General, a hearing on the nomination of Kevin 
O'Connor to be Associate Attorney General, and hearings on a number of 
key assistant attorneys general and heads of Justice Department 
offices. But you would never know it from the self-serving Republican 
complaints. We get no credit for any of the good things we have done, 
for any of our diligence or hard work.
  When the Republican leader and others come to the floor and make 
these accusations, I think it is because they don't want to have to 
explain their roles in the 60 pocket filibusters of President Clinton's 
nominees. One of those people who was blocked and who they say was not 
qualified was picked as the dean of the Harvard Law School, a most 
prestigious position, where they produce hundreds of the brightest 
lawyers in the country. They picked her, a highly qualified woman, and 
African-Americans, and Hispanics, who were all pocket filibustered by 
the Republicans. Maybe they hope that in an election year people will 
not remind them of that. During the 1996 session, the last of President 
Clinton's first term, the Republican-led Senate did not confirm a 
single circuit court nomination. At the end of his Presidency, they 
took 17 circuit court nominations that they pocket filibustered and 
refused to act on them and sent them back to President Clinton, hoping 
to keep those seats vacant for a Republican President. Why was it that 
Republicans chose to reverse course on the treatment accorded by 
Democrats to nominations of Presidents Reagan and Bush in the 
Presidential election years of 1988 and 1992? Why were so many 
nominations pocket filibustered? Who is responsible? Why have they 
always refused to make the blue slips of that era public? Why have they 
always hidden who it was holding up these judges? Why did they want to 
keep that secret? Why was Bonnie Campbell, the former attorney general 
of Iowa, who was supported by both Democratic Senator Tom Harkin and 
Republican Senator Chuck Grassley, never allowed to be considered by 
the Judiciary Committee or the Senate after a hearing? Why was she 
pocket filibustered? They ought to answer some of these questions 
before they level any accusations. They have far too many skeletons in 
their closet to try to pick a bone with the Democratic side.
  To any objective observer, the answer is clear: The Republicans chose 
to stall consideration of circuit nominees and maintain vacancies 
during the Clinton administration in anticipation of a Republican 
Presidency. They took the Thurmond rule to a whole new stage by 
utilizing it over a 5-year period, instead of the seven or eight

[[Page 3515]]

months that normally takes place during a Presidential election year. 
Because of their irresponsible actions, vacancies in the courts rose to 
over a hundred. Circuit court vacancies doubled during the Clinton 
years because Republicans would not allow him to fill those vacancies.
  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. The number of circuit court vacancies rose 
to 32 with retirements of Republican appointed circuit judges 
immediately after President Bush took office.
  But as soon as a Republican President was elected, they said: Why 
don't we have judges in these vacancies? The sky is falling, the sky is 
falling. Suddenly they said that things are coming to a halt in this 
country because we do not have enough judges. Of course they do not 
mention that these vacancies occurred because they pocket filibustered 
those judges. They have been extraordinarily successful over the past 
dozen years. Currently, more than 60 percent of active judges on the 
Federal circuit courts were appointed by Republican Presidents. More 
than 35 percent have been appointed by this President. We have cut the 
vacancy rate in half. Had we Democrats done to them what they did to 
us, we would still have a huge vacancy rate. But we try to be more 
responsible, and we cut it in half. Another way to look at their 
success is to observe that the Senate has already confirmed three-
quarters of this President's circuit court nominees over the last 7 
years. Republicans only confirmed about half of President Clinton's.
  Despite these efforts to pack the Federal courts and tilt them 
sharply to the right, one of my first acts when I took over as chairman 
in 2001 was to restore openness and accountability to the nominations 
process that had been abused when the Republican-controlled Senate 
pocket-filibustered President Clinton's nominees with anonymous holds 
and without public opposition or explanation. In 2001, with a 
Democratic-led Senate considering President Bush's nominees, we drew 
open the curtains on the nominations process, making blue slips public 
for the first time. Republicans, during the Clinton administration, 
cloaked their actions 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.
  I am puzzled that in his recent proposals, the ranking member has 
suggested that the Senate bypass the committee's process for vetting 
nomination, and is also apparently calling for an end to the role of 
home State Senators. He is now proposing rules for nominations that he 
did not follow in the 2 years he served as chairman of the committee, 
from 2005 to 2006, and that he did not propose from 1995 to 2000 when 
Republicans were in control of the consideration of President Clinton's 
nominees.
  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. 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 the President's current nominees do not have the support of 
their home State Senators. That is why the nomination of Duncan 
Getchell, opposed by two of the most distinguished Senators in this 
Chamber, Republican Senator John Warner and the distinguished 
Democratic Senator Jim Webb, was finally withdrawn. That is why the 
nomination of Gene Pratter to the third circuit has not been 
considered, as well as six other circuit nominees including 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 their home State 
Senators. Indeed, nearly 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. The reason we know this is 
that unlike the Republican policy of keeping secret the so-called blue 
slips, I make them public knowledge.
  You might ask why do we pay attention to home State Senators? It is 
because we are elected to represent our States. There is only one place 
in the United States where every State is equal, and that is here in 
the Senate. Out of 300 million Americans, only 100 of us have the 
privilege to serve here at any given time, two from every State. The 
distinguished Presiding Officer represents a great State, a wonderful 
State, a State that helped form this country. It is much larger than 
mine. My State was the 14th State in the Union. We have two Senators so 
that we can keep the identity of our State. I think of one of President 
Bush's circuit nominees for a circuit court judgeship representing one 
of our States, where the two Senators objected and so the nomination 
did not go through. To this day, I get criticized by the Republicans 
because that nomination did not go through, even after the nominee was 
charged with criminal fraud and convicted. They still criticized us for 
not giving him a lifetime position on the circuit court. They ought to 
say thank you to the two Senators who said do not put that nomination 
through.
  Republican complaints about nominations ring hollow in light of the 
actual progress we have made and, quite frankly, their success. 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. The Senate has confirmed over 86 
percent of President Bush's judicial nominations, compared to less than 
75 percent for President Clinton's nominations. As I have noted, the 
Senate has confirmed nearly three quarters of President Bush's 
nominations to influential circuit courts, compared to just over half 
of President Clinton's.
  Earlier this week on the Senate floor, in a standard ploy in these 
partisan attacks, my words from 8 years ago were taken out of context. 
At that time, I urged the Republican majority to abandon its use of 
pocket filibusters. I urged them to make public their process and not 
keep it secret, and do what we have done since I was first Chairman. I 
even urged then-Governor Bush, who was the Republican nominee for 
President, to intervene in a positive way. They rejected my efforts. 
They continued to pocket filibuster nominees and maintain vacancies on 
the court. They continued to do what they had done during the 1980 
Presidential campaign, when President Reagan was running for President 
and Senator Thurmond, then in the Republican minority as ranking member 
of the Judiciary Committee, instituted a policy to stall President 
Carter's nominations. That policy, known as the ``Thurmond Rule'', was 
put in when the Republicans were in the minority. It is a rule that we 
still follow, and it will take effect very soon here.
  For a number of years I have urged now President Bush to join with 
Democrats and Republicans. Regrettably he continues to insist on 
nominating controversial nominees in the mold of Duncan Getchell and 
Claude Allen. I extended another olive branch to him by my letter last 
November. I have received no response. Despite urging the President to 
work with us, 20 current judicial vacancies almost half have no 
nominee. In addition, many of the judicial nominations we have received 
do not have the support of their home State Senators.

[[Page 3516]]

  If the White House and Senate Republicans were serious about filling 
vacancies and not seeking to score partisan political points, the 
President would not make nominations that are opposed by home State 
Senators. If they were serious about filling vacancies, they would not 
spend the rest of the Bush Presidency fighting over a handful of 
controversial nominations, rather than working with us to make 
progress. They would not keep criticizing us for not putting through a 
person who was convicted of criminal fraud. If they were serious about 
filling vacancies, the Republicans on the committee would attend 
committee meetings and help make a quorum to report nominations to the 
Senate.
  I have consulted with the senior Senator from Pennsylvania and we had 
earlier exchanged letters. The former chairman knows from my January 22 
letter what the situation is. 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.
  This is the Senate. This is not Alice in Wonderland. I would rather 
see us work with the President on his 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.
  Mr. President, you have had enormous experience in your own State. I 
ask this of all Senators: If you have a highly respected Republican 
Senator and a highly respected Democratic Senator both saying we want 
this person to be on a Federal circuit court, and they both vouch for 
him or her, you know that person is going to go sailing through this 
place.
  I thank the Republican members of the Judiciary Committee this week 
for not boycotting our meeting. As a result, we have seven nominations 
on the Executive Calendar who would not be there if they continued the 
boycott.
  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 before the Thurmond rule comes into effect but only with the 
full cooperation of this President and of the Republican Members of 
this Senate.

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