[Congressional Record (Bound Edition), Volume 154 (2008), Part 4]
[Senate]
[Pages 5696-5699]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SPECTER. Mr. President, there is a strong sentiment in the 
Republican caucus that President Bush's nominees for judicial 
confirmation have not been fairly treated. We have not had a single 
confirmation of a Federal judge this year. I know we have some listed 
today, but up until this moment there has not been a single 
confirmation. There was no hearing for any circuit court nominee from 
September of last year until February 21 of this year, and only one 
circuit court nominee has had a hearing in over the past 6 months. This 
is totally unacceptable.
  In the last 2 years of President Clinton's administration, 15 circuit 
judges and 54 district judges were confirmed; thus far in this 
Congress, only 6 of President Bush's circuit judges and 34 district 
judges have been confirmed. Even with confirmation of those on the list 
today, President Bush is far behind where President Clinton stood.
  The Fourth Circuit is a judicial emergency. The nominations of Judge 
Conrad and Mr. Matthews are long overdue. Peter Keisler, a very 
distinguished nominee for the DC Circuit, has languished for an 
interminable period of time. There are not adequate reasons for failure 
to move the nominees in Maryland, New Jersey, and Rhode Island, and I 
am negotiating now with Senator Casey on the pending nomination of Gene 
Pratter for the Third Circuit. Thomas Farr in North Carolina deserves 
confirmation to the district court, as does Davis Dugas in Louisiana, 
James Rogan in California, and William Powell in West Virginia.
  So a number of Republican Senators will be coming to the floor today 
to protest what has been going on. I believe the Republican caucus is 
correct on this issue. I deviated from a Republican caucus position and 
voted to confirm qualified nominees of President Clinton, and I was 
prepared to stand up and to say that it is the constitutional 
prerogative of the President to nominate and the constitutional 
obligation of the Senate to consent or to dissent--to not consent--to 
nominees, but not to hold them in limbo and not to fail to have 
appropriate consideration of these judges.
  There is a growing movement in the Republican caucus to hold up 
legislation if we cannot move in any other way to get justice on the 
confirmation of these judges. It is a time-honored practice in this 
body to put holds on legislation or holds on nominations or otherwise 
to delay legislation from being considered. I think that it is a very 
problematic tactic myself, but it is used frequently by the minority to 
get some action by the majority.
  I think that it is only fair to note that in some quarters within the 
Republican caucus there is consideration at the present time to holding 
up the patent reform bill. Now, the patent reform bill is a very 
important piece of legislation--very important--to reform the patent 
laws and to protect intellectual property and to maintain American 
competitiveness--very important legislation. But the confirmation of 
Federal judges is also very important. Very important indeed.
  Now, Senator Leahy, Senator Hatch, and I have been engaged in very 
extensive discussions to try to come to agreement on the substance of a 
patent reform bill. We have had many conversations. Every day for the 
past

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many days--including yesterday--we have had several discussions between 
myself and Senator Leahy, between myself and Senator Hatch, and yet we 
do not have it right, in my judgment. We are very close on a critical 
issue of inequitable conduct. We certainly have to stop the surge of 
litigation where there is no reasonable basis to do so, and I think the 
inequitable conduct provision, which I have been pressing for, is 
indispensable. Perhaps we have agreement there, but it may be 
conditioned on something else. The damage provision is not yet 
satisfactory, and I think we have to get it right even if it takes 
time.
  Now, I am aware that the majority leader would like to move ahead 
with a bill, with a window which may be open in the immediate future. 
There is nothing to stop any other Senator from introducing the bill in 
its present form and to take it up and to take up the disagreements we 
have on damages, for example, and to vote on them. There is the issue 
of cloture on a motion to proceed, and I would not anticipate 
difficulty on that unless the Republican caucus moves ahead with a 
judgment that we are not going to permit the patent reform bill to move 
ahead, as a matter of leverage to get fair and equitable treatment on 
the judges. At this moment, I am not prepared to say where I would be 
on that issue. It would be my hope that we could work these matters out 
and that Senators could come to an agreement on these matters.
  Mr. President, I ask unanimous consent for 1 additional minute.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SPECTER. I would hope that there could be agreement on the issue 
of judges, that we could find a way to deal with Peter Keisler, and 
that we could find a way to deal with the nominations of Judge Conrad 
and Mr. Matthews and others in the Fourth Circuit so that we do not 
have to resort to using leverage like withholding consent on other 
legislation, which would prevent moving ahead with cloture on a motion 
to proceed. I am available to discuss this with Members on the other 
side of the aisle.
  So it is my hope that we will not tie up the patent bill, but that is 
a possibility if we can't find some equitable way to handle this judge 
issue. To repeat, I am available to discuss it with colleagues on both 
sides of the aisle to find some sensible way to deal with it.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. Mr. President, I rise this morning to join my colleagues 
because I share their concerns about the immediate need to schedule 
hearings and then up-or-down votes on 10 highly qualified judicial 
nominees currently pending before the Senate Judiciary Committee.
  This immediate need for judicial confirmations is especially true in 
the U.S. Court of Appeals for the Fourth Circuit, which serves the 
residents of Virginia, Maryland, North Carolina, South Carolina, and 
West Virginia. As a matter of fact, there are currently 19 judicial 
emergencies across the United States, 9 including circuit court 
judicial emergencies, and it is imperative that the Senate do its duty 
to schedule hearings and then have votes on the nominees who have been 
sent over by the White House.
  The Fourth Circuit is currently operating without a third of its 
judges. The Washington Post observed that:

       The Senate should act in good faith to fill vacancies, not 
     as a favor to the President but out of respect for the 
     residents, the businesses, defendants and victims of crime in 
     the region the 4th Circuit covers.

  I sincerely hope the distinguished chairman of the Judiciary 
Committee will work with Republican Members to remedy this unfortunate 
and untenable situation in the Fourth Circuit. Chairman Leahy and I 
have a solid record of working together on a bipartisan basis on a 
variety of issues, ranging from open Government to public corruption, 
and I am hopeful we can add this to that list.
  I am also grateful for his cooperation in dealing with two recent 
Fifth Circuit nominees. The latest of these Fifth Circuit nominees is 
Catharina Haynes, a distinguished member of the bar in Dallas, TX, and 
former State court judge. In February, the chairman held a hearing for 
Ms. Haynes. That hearing, by the way, was the first--and is still the 
only--circuit nominee hearing that has occurred since last September. 
Thus, the problem is painfully obvious. We need more hearings and more 
markups of nominees and more votes on the floor.
  Later today, the Senate will vote on Ms. Haynes's nomination and, I 
hope, confirm her to the Federal bench. She is an outstanding circuit 
court nominee, well qualified in terms of her legal ability, her 
experience, and her judicial temperament. Her nomination has not been 
contentious or controversial. I am pleased our colleagues on the other 
side of the aisle have rejected manufactured criticism of her record 
and the calls from the hard-left interest groups to stop her nomination 
from moving forward. I can only assume that my Democratic colleagues 
see these charges for what they are: reckless smears.
  I am hopeful we can persuade our Democratic colleagues to reject 
similarly spurious claims against the many well-qualified nominees who 
deserve to have hearings and who deserve up-or-down votes in committee 
and on the Senate floor.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, one of my colleagues was recently quoted as 
saying that facts are stubborn things.
  The facts are that the majority has virtually shut down the judicial 
confirmation process.
  Some say that the process always shuts down in a Presidential 
election year, so I checked every one since I was first elected.
  By today, April 10, in each of those Presidential election years, the 
Judiciary Committee had held hearings for multiple appeals court 
nominees.
  But this year, only one appeals court nominee has had a hearing, and 
there is not another one on the schedule.
  The Judiciary Committee held no confirmation hearing at all last 
month, and last week's hearing was yet another one with no appeals 
court nominee.
  The facts are just as stubborn when we look at the entire 110th 
Congress.
  Since I was first elected, there have been seven Congresses like this 
one that included a Presidential election year.
  During each of these Presidential election Congresses, the Judiciary 
Committee held hearings for an average of 25 appeals court nominees.
  But today, more than 15 months into the 110th Congress, the Judiciary 
Committee has held a hearing for only five appeals court nominees.
  This amounts to just one-fifth of the average for previous 
Presidential election seasons.
  If the partisan roles were reversed and the pace of hearings for 
appeals court nominees had slowed to perhaps one-half or one-third of 
the historic average, I can guarantee you that my friends across the 
aisle would be down here raising the roof about how we were failing to 
do our confirmation duty.
  In fact, when I chaired the Judiciary Committee under the previous 
President and the hearing pace was actually much faster than it is 
today, they did complain early, loudly, and often.
  But the pace today is worse than one-half, worse than one-third, 
worse even than one-fourth of the historic average.
  The current Judiciary Committee hearing pace for appeals court 
nominees is the worst in decades.
  In fact, there is no current pace at all.
  Or look at what is going on or I should say what is not going on, 
here on the Senate floor.
  The current Judiciary Committee chairman in the past often insisted 
that 1992 provides the standard for judicial confirmation progress.
  Like today, his party controlled the Senate and a President Bush was 
in the White House.
  By this time that year, by April 10, 1992, the Senate had already 
confirmed 25 nominees to the Federal bench.

[[Page 5698]]

  It does not look like the Senate will confirm 25 judicial nominees 
for the entire rest of the year.
  This afternoon we will finally have the opportunity, the first 
opportunity of the year, to vote on a few nominees to the Federal 
bench.
  The majority has stalled judicial confirmation votes longer this year 
than in any Presidential election year since 1848.
  Yes, you heard me right.
  This is the latest start to judicial confirmations of any 
Presidential election year in 160 years.
  That was the century before last. That was before Utah even became a 
territory, let alone a State.
  The last time the Senate waited this long in a Presidential election 
year to confirm Federal judges, James Polk, the 11th President, was in 
the White House.
  What could possibly explain such abject confirmation failure?
  I might have missed it, but I am not aware of any domestic armed 
conflict today that is disrupting the Senate's business.
  Yet the Civil War did not stop the Senate in 1864 from confirming 
seven judges before April 10.
  Senators today do not have to use horses or carriages or travel on 
dirt roads.
  Yet slow, burdensome travel did not stop the Senate in 1884 from 
confirming five judges before April 10.
  The Great Depression did not stop the Senate in 1932 from confirming 
14 judges before April 10.
  The possibility of the Senate majority party capturing the White 
House did not stop Republicans in 2000 from confirming seven judges, 
including five appeals court judges, before April 10.
  Today is April 10, 2008, and we will not confirm a single nominee to 
the Federal bench until this afternoon and even this late start was 
noticed only yesterday.
  Facts are indeed very stubborn things.
  The majority has already virtually shut down the judicial 
confirmation process.
  The Senate has not always operated this way.
  The majority is refusing to do what the American people sent us here 
to do because--I guess, simply--they can.
  That may be the reason, but it certainly is no excuse.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
recognized.
  Mr. KYL. Mr. President, in our country over the last couple of 
hundred years, you never know what party is going to control the Senate 
or the Presidency. As a result, in doing the people's business, both 
parties have operated somewhat by tradition with respect to the 
nomination and confirmation of judges. It is important because it 
happens that, more often than not, in the last 2 years of a Presidency 
the other party controls the Senate. That has been the case in the last 
three Presidencies, and this Presidency. In this case a Republican is 
the Chief Executive and the Democratic Party controls the Senate. That 
has been the tradition.
  As a result, and since we do not know whether a Republican or a 
Democrat is going to be elected President next time or which party is 
going to control the Senate, it has been understood by both parties 
that you do not play politics when it comes to confirming judges 
because, while you may be able to stop the other party's President's 
nominations one time, they might be able to stop yours next time. 
Besides which, it is not good government. It is not doing the people's 
business. The President was elected fair and square. He has the right 
to submit judicial nominees and it is the Senate's obligation under the 
Constitution to act on those nominees.
  That is why my colleagues and I have pointed out the historical 
record, that, for example, since the Reagan and Clinton and first Bush 
administrations, during the last 2 years of the administration, when 
the other party controlled the Senate, the average for confirmation of 
circuit nominees is 17. The last President was President Clinton, 
Republicans controlled the Senate, but we confirmed 15 of his nominees 
for circuit judge in his last 2 years.
  If we were to do the same thing with regard to President Bush, we 
would have to confirm nine more circuit judges because there have only 
been six confirmed last year--none this year. The pace at which circuit 
judges are acted on ordinarily is a relatively slow pace. We would have 
to do two a month for the remaining time we are in session in order to 
achieve that. In fact, that would include the months of August and 
September, when we are not likely to be here in August and September is 
not likely to be a month where we would confirm judges. So we literally 
would have to confirm about three a month in order to achieve the same 
number as Clinton.
  Why are those numbers important? Not just because it is what we 
should be doing. The President has made nominations. The Judicial 
Conference says many of these are judicial emergencies, meaning we have 
vacancies in the circuits that need to be filled because there are not 
enough judges to do the people's business. We should do it because we 
should do it; it is our responsibility. But even if you only look at it 
from a political standpoint, the reality is that if this tradition is 
broken--of 15, 16, 17 judges in the last 2 years of the 
administration--then clearly we are going to devolve into a situation 
where, for political purposes, the party in power decides not to 
support--not even to have votes on--the nominees of the President. That 
is very bad.
  It is important that we maintain this tradition of doing at least 
15--and we should do more than that--circuit judges in the last 2 
years.
  My colleagues have spoken to different judges. Arlen Specter, the 
senior Senator from Pennsylvania, who is the ranking Republican on the 
Judiciary Committee, specifically mentioned Peter Keisler, who has been 
pending the longest. He has been pending for almost 2 years. In fact, 
he was nominated to the District of Columbia Circuit Court in June of 
2006 and received a hearing in August of that year. He is widely 
regarded as well qualified, fair minded, and has received support from 
all over the political spectrum. He is a graduate magna cum laude from 
Yale University. He received his law degree from Yale Law School. He 
clerked for a judge on the DC Circuit and for a Justice in the U.S. 
Supreme Court. He served in the White House Counsel's Office, has been 
in private practice, joined the Justice Department where he was 
assistant attorney general for the civil division and was even Acting 
Attorney General during a brief time between the time that Judge 
Gonzales left the Attorney General's position and Judge Mukasey took 
his place.
  The American Bar Association has rated him ``unanimously well 
qualified.'' You cannot get a higher rating than that. The Washington 
Post--no particular friend of this administration--editorialized in 
favor of Keisler, describing him as a ``highly qualified nominee'' who 
``certainly warrants confirmation.''
  Keisler was also the subject of an editorial from the Los Angeles 
Times, which called him a ``moderate conservative,'' and supported his 
nomination.
  There have been some who say we should not fill the last seat on the 
DC Circuit because it doesn't have as many cases as other circuits. 
There was a point in time when that was true and I even noted that. But 
the reality is that today its caseload is increasing. It needs to be 
filled and Peter Keisler is one of the nominees who should be 
supported.
  I urge my colleagues to find a way to hold the hearings and to bring 
these nominees to the floor so the Senate can do its business and act 
on the nominees of the President for the circuit courts.
  The ACTING PRESIDENT pro tempore. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I join my colleagues in saying that 
this is the time for us to move. I am delighted to see the majority 
leader and the majority whip here on the floor as well, to talk, 
because there is a practical effect of what is soon to take place 
around here if we don't start moving judges soon, and specifically 
circuit court judges. This is something

[[Page 5699]]

 I don't want to see taking place, but I think you heard from the 
Senator from Pennsylvania--a respected, open-minded Member of this 
body--that if we do not start approving some circuit court judges in 
some significant numbers--I think my colleague from Arizona mentioned 
hitting some of the historic averages, or at least getting close to 
it--I think you are going to see people start to jam the body down and 
say that unless we start approving some circuit court judges, business 
is not going to happen around here.
  I think people will understand why. Circuit court judges are 
positions that are significant, that are long lasting, that are needed, 
and yet nominees are not being approved. Why are they not being 
approved? We have qualified nominees who are in the queue who have been 
waiting for a long period of time. I have one to talk about here, Judge 
Robert Conrad in the Fourth Circuit. The seat to which he has been 
nominated is a judicial emergency. We have a third of the positions on 
the Fourth Circuit that are open. It is a judicial emergency. His 
nomination is supported by both home State Senators. They want this 
position. In North Carolina, Senator Burr and Senator Dole both support 
this nominee. He is highly qualified. The ABA says this is a highly 
qualified nominee, meeting their highest standard of ``unanimously 
well-qualified.'' This is an individual who has been previously 
approved by this body for a Federal judgeship, and has now been 
nominated to move from the Federal district court bench to the circuit 
court bench. It is a judicial emergency. Yet Judge Conrad's nomination 
languishes and has languished for over 250 days.
  I think clearly what we are setting up right now is for not much to 
happen in the Senate. I think what you are going to see starting to 
take place--and we are serving notice here today, if we do not start 
moving these nominees at some regular pace--qualified people who fit 
the criteria, who should move on through, business is going to slow 
down in this body. It may come to a complete standstill if we do not 
start getting some judges.
  We should not go that route. I urge my colleagues, I urge the 
chairman of the committee and the ranking member, to sit down and say: 
OK, what can we work out on circuit court judges? District court 
judges? What can we get worked out so the business of the Senate can 
move forward? Without that, things are going to slow down here. Things 
are not going to get done. It is going to be because we are not getting 
anywhere close to reasonable numbers of circuit court judges approved. 
I want to say that clearly. That is where this is all headed.
  The majority party can choose to go that route. That is what is going 
to end up taking place. It is going to be about judges. We are going to 
have a big debate then across the country on that. Meanwhile, the whole 
Nation wants us to get work done and we are not getting it done because 
judges are not being approved.
  I hope the majority party would sit up and say we are going to 
approve this many, that many, we are going to get these moving through 
in some reasonable fashion so the body can do its job. Judge Conrad is 
one of those who deserves a hearing. If there are challenges to him on 
the basis that we don't think he is qualified, we don't like what he 
said here or there--fine, hold a hearing so we can get those out in the 
air. Clearly, if we do not start moving some judges in reasonable 
numbers, you are going to start seeing this body start to not move much 
through, as we begin to protest not getting judges approved.
  We should not go that route. I hope we do not have to.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I have sat here and listened and I have 
some outline notes from which to speak, but I am not sure we should. 
The very thing we are talking about is what America wants to spit out, 
in terms of their elected representatives. The Senate has an obligation 
to offer advice and consent. There is no question judges are important. 
That is why you are here, seeing a demonstration from the minority 
today, of judicial committee members, because we know it is important. 
It is important across the country because making law from the bench is 
something that is the antithesis of what most freedom-loving Americans 
want. The idea that we want to have judges who know their role, know 
the role of interpreting law rather than making law, is something with 
which the vast majority of Americans agree.
  But I am struck by the fact that gamesmanship is taking place--not 
just in terms of the majority but also the minority. We are in a game 
now. How do we move this? How do we leverage this? How do we force it?
  My disheartenment comes from the fact--why are we here in the first 
place? Why did we get here, when we know what the role of the Senate is 
in terms of advice and consent.
  My hope is we do not see a devolution to parliamentary maneuvering, 
to raise the issue above where it should be.
  I am reminded of the fact that the majority had problems with four of 
President Bush's nominees, starting in January. He withdrew those. In a 
gesture of good will, he withdraw four nominees who were not--although 
they were well qualified, they were not acceptable to movement down the 
road. Now we have highly qualified judges in districts that are 
judicial emergencies that get actually slandered by the chairman of the 
committee about supposedly an anti-Catholic statement--when they are 
Catholic in their faith. So we offer criticism to somebody and never 
offer them a venue in which to defend themselves.
  That is not what America expects of this body. That is not what it 
expects of the Judiciary Committee. My hope is the majority leader will 
say: There is a deal to be struck here. Let's do what we can so we 
don't spend our time on the business of creating wedge issues that 
don't further the best interests of this country. Give President Bush 
five or six more, seven or eight more district court nominees, all of 
which are qualified, bring them to the floor. Let's get it done so it 
doesn't interfere with other important work. It is time for the Senate 
to make good on promises. It is time for it to reciprocate for what 
President Bush did in terms of withdrawing the four nominations. My 
hope is we will think about what is in the best long-term interest of 
the country and not the next election.
  I thank the Chair.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. REID. Mr. President, I ask if the distinguished Senator from 
Tennessee is ready to make his remarks, we should do it now. The two 
managers are not here, but I am sure they would not care. Then when you 
complete your remarks, we will go forward.
  Mr. ALEXANDER. I am prepared to go ahead.

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