[Congressional Record (Bound Edition), Volume 158 (2012), Part 1]
[Senate]
[Pages 1447-1450]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 F_____
                                 

 NOMINATION OF ADALBERTO JOSE JORDAN TO BE UNITED STATES CIRCUIT JUDGE 
                        FOR THE ELEVENTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Adalberto Jose Jordan, 
of Florida, to be United States Circuit Judge for the Eleventh Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 1 hour 
for debate, equally divided, in the usual form.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the time be 
divided in such a way that the time will run out at 5:30 but divided 
equally between now and then, between myself or my designee and the 
Republican leader or his designee.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, it pains me, in a way, to have to come and 
talk about this. This is the eighth time the majority leader has had to 
file a cloture motion to overcome yet another Republican filibuster of 
one of President Obama's superbly qualified judicial nominees. I have 
been here during the time of President Ford, President Carter, 
President Reagan, President George H.W. Bush, President Clinton, 
President George W. Bush, and now President Obama. I have been here 
when the Senate was in Republican control and when it was in Democratic 
control. Never during all that time have I seen anything where the 
majority leader has had to file so many cloture motions on superbly 
qualified judicial nominees, whether it is a Republican or Democratic 
President.
  The nominee we have before us is a former Federal prosecutor and 
current Federal District Court judge in the Southern District of 
Florida. Judge Adalberto Jordan is the kind of nominee who in the past 
would have been confirmed without delay. It probably would have been 
done on a voice vote shortly after having come out of our committee, 
rather than having to wait 4 months for Senators to consent to proceed 
on his nomination.
  This nomination has the strong and committed support of the senior 
Senator from Florida, Mr. Nelson, as well as that of Mr. Rubio, the 
other Senator from Florida. Not only does he have the support of the 
two Senators, one a Democratic Senator the other a Republican, but the 
distinguished Presiding Officer will recall that when we voted on him 
last October, every single Republican and every single Democrat on the 
Judiciary Committee voted for him. He came out unanimously. It would be 
a little bit strange if any of those Senators now switched their votes 
because there is nothing different today than there was back in October 
of last fall.
  When he was nominated to the District Court by President Clinton in 
1999, even while Senate Republicans were pocket filibustering more than 
60 of President Clinton's judicial nominees, Judge Jordan was confirmed 
without delay. It was an overwhelming vote: 93 to 1. Any of us in 
elective office would like to have had margins such as that.
  The needless delay in Judge Jordan's nomination is the latest example 
of the tactics that have all but paralyzed the Senate confirmation 
process. They are actually damaging our Federal courts. It should not 
take 4 months and a cloture motion, which is hard to schedule because 
of all the other things we have to do, just to proceed to a nomination 
such as that of Judge Jordan to fill a judicial emergency.
  This is not just filling a normal vacancy, it is a judicial emergency 
on the Eleventh Circuit. This good judge has already demonstrated as a 
Federal prosecutor and as a district judge his qualities. They need him 
on the Eleventh Circuit.
  It should not take many more months and more cloture motions before 
the Senate finally votes on the nearly 20 other superbly qualified 
judicial nominees who have been stalled by Senate Republicans for 
months while vacancies continue to plague our American courts and delay 
justice for the American people. At all these courts where they are 
bottlenecked because there is no judge, the people who have cases in 
those courts do not say: I am a Republican or I am a Democrat, they say 
I have an important case to be heard. Why won't the Senate confirm the 
judge who has been nominated?
  On every single one of the judges that are being stalled, every 
single Democratic Senator has agreed long ago to a vote. The objection 
on every single one of these judges being held up is because of 
Republican objections.
  Let's talk about Judge Jordan for a moment, why he is so exceptional. 
When he is confirmed, he will be the first Cuban-born judge to serve on 
the U.S. Court of Appeals for the Eleventh Circuit, which encompasses 
Florida, Georgia and Alabama. Born in Havana, Cuba, Judge Jordan 
immigrated to the United States at age six. He went on to graduate 
summa cum laude from the University of Miami law school. Following law 
school, he clerked for Judge Thomas Clark on the U.S. Court of Appeals 
for the Eleventh Circuit, the Court to which he is nominated, and 
Justice Sandra Day O'Connor on the U.S. Supreme Court. He then became a 
Federal prosecutor in the Southern District of Florida, where he served 
as Deputy Chief and then Chief of the Appellate Division. Judge Jordan 
has also been a professor. Since 1990, he has taught at his alma mater, 
the University of Miami School of Law, as well as the Florida 
International University College of Law.
  It is no surprise that the ABA's Standing Committee on the Federal 
Judiciary unanimously rated Judge Jordan ``well qualified'' to serve on 
the Eleventh Circuit, the highest possible rating from its nonpartisan 
peer review. Everybody should be down here cheering and supporting this 
nomination. He should be commended and supported, not filibustered and 
obstructed. Judge Jordan is a consensus nominee. What has the Senate 
come to, if somebody such as this man has to go through and overcome a 
filibuster to be confirmed? At this moment, ``Moses the Lawgiver'' 
would have a hard time being confirmed.
  I say this because this judge is the kind of consensus nominee I have 
been urging Senate Republicans to stop stalling. He represents the kind 
of consensus nominees this President has sent the Senate who have been 
needlessly and harmfully stalled in the Senate for months and months 
for no good reason. It needs to stop. Last Thursday, Professor Carl 
Tobias wrote: ``Most troubling has been Republican refusal to vote on 
noncontroversial, strong nominees--inaction that conflicts with a 
venerable Senate tradition. When the chamber has eventually voted on 
nominees, the Senate has overwhelmingly approved many.'' I expect Judge 
Jordan to be confirmed with a strong, bipartisan vote, as well. There 
is no justification for delaying this action over the last 4 months 
while a judicial emergency vacancy has gone unfilled. There is no 
justifiable reason for forcing the majority leader to file cloture for 
the Senate to hold a vote on this qualified consensus nominee. There is 
no justification for Senate Republicans' refusal to hold votes on 
nearly 20 Senate nominees who also remain stalled waiting for a vote.
  The filibuster of Judge Jordan is just the current example of Senate 
Republicans' delaying tactics with respect to President Obama's 
qualified consensus nominees.
  Let me give you a little history and a few facts. As we enter the 
fourth year of President Obama's administration, we are far behind the 
pace set by the Senate during President George W. Bush's first term. By 
the end of 2004, the Senate in those 48 months confirmed 205 district 
and circuit nominees. One hundred of them were confirmed during the 17 
months that I was chairman of the Judiciary Committee. I moved 
President Bush's judges notwithstanding the fact that 60 of President 
Clinton's judges had been pocket filibustered. I wanted to change that 
for the good of the Federal judiciary. I wanted to restore respect in 
the Senate

[[Page 1448]]

as well as the Federal judiciary, but now we have gone back to the same 
old Republican obstructionism.
  The Senate has confirmed only 126 of President Obama's district and 
circuit nominees, nowhere near the pace there was for President Bush. 
That leaves 86 judicial vacancies. In fact, the vacancy rate is likely 
to remain twice what it was in 2004. But I would suggest to this body 
that the slow pace of confirmation of President Obama's judicial 
nominees is no accident. It is the result of deliberate obstruction and 
delays. For the second year in a row, the Senate Republican leadership 
ignored long-established precedent and refused to schedule any votes 
before the December recess on the nearly 20 consensus judicial nominees 
who had been favorably reported by the Judiciary Committee. Here we are 
in the middle of February, fighting to hold a vote on 1 of the 19 
nominees who should have been confirmed last year. Fifteen of the 
nominees stalled by Senate Republicans were reported with the unanimous 
support of their home state Senators and every Republican and every 
Democrat on the Senate Judiciary Committee.
  During President Bush's administration, Republican Senators insisted 
that filibusters of judicial nominees were unconstitutional. They 
threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes 
for each of President Bush's judicial nominees. Many of them said they 
would never, ever support the filibuster of a judicial nomination--
never. Well, that never lasted. Once President Obama, a Democratic 
President, came in, the Senate Republicans reversed course. They 
filibustered President Obama's very first judicial nomination, that of 
Judge David Hamilton of Indiana, a widely-respected 15-year veteran of 
the Federal bench who had the support of the most senior and longest-
serving Republican in the Senate, Senator Lugar. The Senate rejected 
that filibuster and Judge Hamilton was fortunately confirmed. The same 
Senators who had said solemnly on the floor of the Senate that they 
would never filibuster a judicial nomination--oh well, we have a new 
Democratic President, now we ought to filibuster. Come on. You wonder 
why people are concerned about those who represent them.
  In fact, that first filibuster portended what was going to happen, 
and the partisan delays and opposition have continued. Senate 
Republicans have required cloture votes even for nominees who 
ultimately were confirmed unanimously when the Senate finally overcame 
those filibusters and voted on their nomination. So it was with Judge 
Barbara Keenan of the Fourth Circuit, who was confirmed 99-0 when the 
filibuster of her nomination finally ended in 2010, and Judge Denny 
Chin of the Second Circuit, an outstanding nominee with 16 years 
judicial experience, who was ultimately confirmed 98-0 when the 
Republican filibuster was overcome after four months of needless 
delays.
  Regrettably, Senate Republicans have successfully filibustered the 
nominations of Goodwin Liu and Caitlin Halligan. I have warned that 
Senate Republicans have imposed a new standard that threatened to make 
confirmation of any nominee to the D.C. Circuit virtually impossible in 
the future. At the time, The Washington Post noted: ``GOP senators are 
grasping at straws to block Ms. Halligan's ascension, perhaps in hopes 
of preserving the vacancy for a Republican president to fill.'' I urged 
Senate Republicans to stop playing politics with the D.C. Circuit, and 
to allow an up-or-down vote on Ms. Halligan after more than 15 months 
of delay. Regrettably, the nomination of such a highly-qualified public 
servant, who had the support of law enforcement, appellate advocates, 
former Supreme Court clerks, academics and practitioners from across 
the political spectrum, was prevented from an up or down vote.
  But I would also say that aside from the gamesmanship involved, this 
obstruction hurts the whole country. There are currently 86 judicial 
vacancies across the country. That means nearly 1 out of every 10 
Federal judgeships is vacant. The vacancy rate is nearly double what it 
had been reduced to by this point in the Bush administration when 
Democrats, showing unprecedented speed, cooperated to bring judicial 
vacancies down to 46.
  It is the American people who pay the price for the Senate's 
unnecessary and harmful delay in confirming judges to our Federal 
courts. It is unacceptable for hardworking Americans who are seeking 
their day in court to find one in 10 of those courts vacant. When an 
injured plaintiff sues to help cover the cost of medical expenses, that 
plaintiff should not have to wait for years before a judge hears his or 
her case. When two small business owners disagree over a contract, they 
should not have to wait years for a court to resolve their dispute. 
With 18 more judicial nominees stalled and cloture motions being 
required for consensus nominees, the Senate is failing in its 
responsibility, harming our Federal courts and ultimately hurting the 
American people. If you are one of the people seeking justice in a 
Federal court--and here is a sign saying: Closed; nobody at home--when 
you imagine this happening, is it any wonder that only 10 percent of 
the American people view Congress favorably? Actually with this kind of 
activity, I am surprised it gets up to 10 percent. I am wondering 
whether my friends on the other side of the aisle, the Senate 
Republicans, are intent on bringing the approval rating even lower, 
into single digits.
  Some Senate Republicans are now seeking to excuse these months of 
delay by blaming President Obama for forcing them to do it. They point 
to President Obama's recent recess appointments of a Director for the 
Consumer Financial Protection Bureau and members of the National Labor 
Relations Board. Of course, those appointments were made a few weeks 
ago, long after the delay of Judge Jordan's nomination began. Moreover, 
the President took his action because Senate Republicans had refused to 
vote on those executive nominations and were intent on rendering the 
government agencies unable to enforce the law and carry out their 
critical work on behalf of the American people. Some Senate Republicans 
are doubling down on their obstruction in response. They are apparently 
extending their blockage against nominees beyond executive branch 
nominees to these much-needed judicial nominees. This needless 
obstruction accentuates the burdens on our Federal courts and delays in 
justice to the American people. We can ill afford these additional 
delays and protest votes. The Senate needs, instead, to come together 
to address the needs of hardworking Americans around the country.
  Judge Adalberto Jose Jordan is precisely the kind of qualified 
consensus nominee we need. He is the kind of person we all will say, 
when the press asks, this is the kind of nominee we need; this would 
help our country and our judicial system if we had this kind of 
nominee. But then we filibuster.
  When introducing Judge Jordan to the Senate Judiciary Committee last 
October, Senator Rubio praised the nominee's knowledge of the law, 
experience, participation in community, stating that ``he looks forward 
to [Judge Jordan's] appointment.'' I certainly believe what Senator 
Rubio said. I find him to be very truthful in these things. The day we 
reported him out of the committee unanimously, every single Democratic 
Senator in this Chamber was ready to go forward with the vote. The only 
place we had objections was on the Republican side, and that has gone 
on for 4 months.
  I hope we get this cloture vote and the Senate is finally allowed to 
vote to confirm this nomination. Again, I urge Senate Republicans to 
stop the destructive delays that plague the confirmation process. The 
American people deserve Federal courts ready to serve them, not empty 
benches, not long delays, not partisan games.
  I yield the floor. I suggest the absence of a quorum, and I ask 
consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.

[[Page 1449]]


  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. Mr. President, I wish to speak today, along 
with my colleague from Florida, Senator Rubio, about the nomination of 
Judge Adalberto Jordan. A lot of our folks refer to him as Judge 
Jordan. He has been nominated to the Eleventh Circuit Court of Appeals. 
At this time, when we have a very sizable judicial vacancy rate with a 
lot of these judicial positions empty, we need to get them filled with 
qualified judges who are going to rule and rule expeditiously. 
Confirming Judge Jordan to the Eleventh Circuit, which is one of the 
busiest in the country, is going to be a good step forward in filling 
the need for all of these judges.
  We have in Florida a long history of bipartisan support for our 
judicial nominees. That is especially so with my colleague Marco Rubio, 
as we participate with our judicial nominating commission, which the 
two of us appoint, and they screen and interview the applicants for the 
vacancies on the district court. As a result, we have nominees who come 
to us who have already been screened, and it takes the politics out of 
it. In the case of Judge Jordan, it is a continuation of that 
bipartisan support even though he did not go through that process. He 
was selected by the President and is a sitting Federal judge who has an 
excellent record, and thus we see the bipartisan support.
  Judge Jordan received his undergraduate and his law degrees from the 
University of Miami. After law school, he clerked for Judge Thomas 
Clark on the Eleventh Circuit. Then he moved on to become a clerk for 
Justice Sandra Day O'Connor. He continued his legal career in private 
practice at Steel, Hector & Davis and then became an assistant U.S. 
attorney in the appellate division of the Southern District of Florida. 
He began his judicial career in 1999 as a U.S. district court judge for 
the Southern District of Florida, where he still sits.
  Based on his experience, Judge Jordan is extremely qualified for this 
position. Once confirmed, he will become the first Hispanic judge on 
the Eleventh Circuit Court. So I urge our colleagues to confirm this 
nominee without further delay.
  I am pleased to be joined by my colleague, Senator Rubio, from the 
State of Florida.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. Mr. President, I thank Senator Nelson for that 
introduction.
  The first thing we have to decide is how to pronounce his last name. 
Everyone knows whom we are talking about. He has an extraordinary 
reputation in our community.
  I have a few things I wish to add. I have a bias because I also 
graduated from the University of Miami School of Law, where I have both 
my law degree and my student loan, so I am grateful to them for that.
  He was only 37 years old when he was appointed to the bench. It says 
a lot that over the years he has garnered a reputation for being fair 
but also for his intellect. He is highly regarded for his intellect. 
One will find in legal circles particularly in south Florida that Judge 
Jordan is somebody for whom people have a tremendous amount of respect, 
not just for his fairness but for his intellect, his ability to 
understand complex legal issues. His background is one that would lead 
a person to that conclusion. He was the chief of the appellate division 
in the Office of the U.S. Attorney for the Southern District, which is 
extremely busy, one of the busiest districts in the country for the 
Justice Department. As Senator Nelson has already pointed out, he spent 
a year clerking on the U.S. Supreme Court. He also clerked with the 
Eleventh Circuit, where he now seeks to return and hopefully will 
return today as one of its judges.
  Let me say a couple of things about the Eleventh Circuit. It has two 
current vacancies--one in Florida and one in Georgia. It is the busiest 
per judge in the entire country. They have caseloads that range in 
cases from Florida, Georgia, and Alabama. They include death penalty 
appeals. It is so overwhelming that they routinely invite judges from 
other circuits to hear its cases. So it is critically important that we 
fill these vacancies, and that is hopefully what we will do today.
  There are a couple more points I wish to make about the judge. He 
continues to be very involved in our community, both through his family 
and as an individual. He teaches courses at both the University of 
Miami School of Law and at the Florida International College of Law, 
which is a new school that started operations a few years ago.
  He is an integral part of my community. I can tell my colleagues on 
both sides of the aisle that, being from south Florida, running in the 
same circles in which he has run in terms of the legal community, he is 
highly respected. I think as a nation we are fortunate to have someone 
such as Judge Jordan, who is willing to bypass the many comforts of 
private practice and serve his country in a role such as this. I hope 
that as a body we will confirm him in an overwhelming and bipartisan 
fashion.
  With that, I thank the Chair for this opportunity, and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, we are considering the nomination of 
Judge Jordan to be a U.S. circuit judge for the Eleventh Circuit. He is 
going to fill the vacancy that has been created by Judge Susan Black 
taking senior status.
  Looking back, I think the Senate accomplished much last year, passing 
legislation and confirming a significant number of judicial and 
executive nominations. I would note that even the majority leader 
recognized we have done a good job on nominations and have accomplished 
quite a bit as well.
  We could have confirmed more nominees had the President indicated he 
would respect the practice and precedent on recess appointments. He 
would not give the Senate that assurance, so a number of nominations 
could not be confirmed and now remain on the Executive Calendar. As it 
turned out, the President went on to violate the practice and 
precedent.
  I wish to remind my colleagues and those who might be listening that 
the Constitution outlines two ways in which the President may make 
appointments: One is with the advice and consent of the Senate; the 
other is he may make temporary appointments when a vacancy in one of 
those offices happens when the Senate is in recess. Given that the 
Senate was not in recess, it seems clear to me that advice and consent 
was required but not obtained by the President.
  It is for the Senate to determine its own rules and procedures, 
including designation of when it is in recess, within the constraints 
of the constitutional provisions found in article I. Consequently, this 
is not a matter within the purview of the executive branch. In other 
words, under the Constitution of the United States, the President is in 
no position to tell the Senate when we adjourn and when we do not 
adjourn.
  These so-called recess appointments break a longstanding tradition. 
They violate precedents followed as recently as 2008 under President 
Bush.
  This is a matter of concern to my Republican colleagues, as it should 
be for all Senators. In fact, I am quite puzzled and disappointed by 
the silence from the other side. This is more than just a policy issue 
or disagreement on a particular nominee. The underlying concern is a 
power grab by the President. I would think all Senators would rise to 
defend the prerogatives of the Senate and the constitutional principles 
which have been violated by the President. In other words, if the 
Constitution of the United States says the Senate determines when we 
are in adjournment, how does the President get the power to do that?

[[Page 1450]]

  When a President thinks he can do anything the Constitution does not 
expressly prohibit, the danger arises that his advisers will feel 
pressure to say the Constitution does not stand in the way.
  At that point, a President is no longer a constitutional figure with 
limited powers, as the Founders intended. Quite to the contrary, the 
President looks more and more like a King the Constitution was designed 
to replace. You remember George III, I hope.
  Generally, I am willing to give the President's nominees the benefit 
of the doubt when the nominee on the surface meets the requirements I 
have previously outlined. But as I have indicated over the past few 
weeks, we are not operating under normal circumstances. The atmosphere 
the President has created with his disregard for constitutional 
principles has made it difficult to give his nominees any benefit of 
the doubt.
  Despite the conditions the President has created, the committee is 
moving forward with hearings and with markups. As we see, we continue 
to have floor votes and confirmations. We are making progress.
  This will be President Obama's 26th circuit nominee whom we have 
confirmed. That means over 62 percent of the President's circuit judge 
nominees have been confirmed. This is the same pace of confirmation for 
President Bush's circuit nominees at a comparable point in his first 
term.
  Furthermore, President Obama's nominees are moving through the 
process at a quicker pace. The average time for President Obama's 
circuit nominees to be confirmed is about 140 days. For President Bush, 
the average time was quite longer, at 350 days--more than twice as 
long.
  With regard to judicial vacancies, I would note progress has been 
made. We have made significant reductions in the vacancy rate. I hear 
some mistakenly state that the vacancy rate is at historic highs. The 
claim is not true. I would point out that the current vacancy rate is 
about where it was at the beginning of the Presidency of George W. 
Bush. In terms of historical highs, I would like to remind my 
colleagues of some history. When George H.W. Bush assumed the 
Presidency, the vacancy rate was around 5 percent. During his term, the 
Democratic majority in the Senate let the vacancy rate rise to 16 
percent--nearly double what it is today.
  Those who continue to complain about vacancy rate should also be 
reminded that for more than half the vacancies, the President has 
failed to even submit a nomination to the Senate. This has been a 
pattern throughout this administration. This is the case even for 
vacancies designated as judicial emergencies. Nineteen of those thirty-
three emergency vacancies have no nominee. Furthermore, President Obama 
is significantly behind in the number of nominations he has made. So it 
is no surprise he would be a little behind in the confirmations as 
well. In other words, if the President wants the Senate to move faster, 
send the nominations up here.
  I would like to say a few words about the nominee we will be voting 
on today. Judge Jordan presently serves as a U.S. district judge for 
the Southern District of Florida. He was appointed to that court 
byPresident Clinton in 1999, and was confirmed by the Senate later that 
year.
  He received a bachelor of arts from the University of Miami in 1984, 
his juris doctorate from the University of Miami School of Law in 1987.
  Upon graduating from law school, the nominee clerked for Thomas A. 
Clark of the U.S. Court of Appeals for the Eleventh Circuit and then 
for Supreme Court Justice Sandra Day O'Connor. He then began his legal 
career as an associate attorney with Steel Hector & Davis where he 
handled first amendment matters and commercial litigation cases.
  In 1994, he became an assistant U.S. attorney in the appellate 
division of the U.S. Attorney's Office for the Southern District of 
Florida. He was made deputy chief of the division in 1996, and chief in 
1998. The nominee also worked as an adjunct professor of law at the 
University of Miami School of Law since 1990. He has taught many 
courses, including a death penalty seminar, federal courts, a judicial 
inherent power seminar, and a federal criminal practice seminar.
  Since becoming a district judge in 1999, he has presided over nearly 
200 cases and has sat by designation frequently on the Eleventh Circuit 
Court of Appeals.
  The American Bar Association Standing Committee on the Federal 
Judiciary has rated this nominee with a unanimous ``Well Qualified'' 
rating. I concur in that rating and will support the nomination.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________