[Congressional Record (Bound Edition), Volume 158 (2012), Part 2]
[Senate]
[Pages 2321-2322]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. DURBIN. Mr. President, I was heartened by the dialog between 
Senators Reid and McConnell this morning, talking about more bipartisan 
cooperation, civility, and cooperation to try to deal with 
appropriations bills. I would like to commend to the Republican leader 
not just those important issues but the equally important issue of 
judicial nominations. It is no secret that the Senate's process for 
considering nominations has deteriorated under the Obama administration 
because of resistance from the Republican side of the aisle.
  It is a long-honored tradition in America that a President of the 
United States fills vacancies on the Federal courts with the advice and 
consent of the Senate. That has been the process since the beginning of 
this Republic. Yet today we find stacked on our calendar literally 19 
judicial nominees pending on the Senate floor. Fourteen of these 
nominees were reported from the Judiciary Committee last year, some of 
them as far back as October. They have been sitting here for months. 
Seventeen of the nominees were reported out of committee with broad 
bipartisan support, 12 of them unanimously. Ten nominees, incidentally, 
are supported by their Republican home State Senators.
  The bottom line is that judicial nominees with no controversy and 
with widespread bipartisan approval are being held up on the Senate 
calendar and not approved. Why? I can tell you why. It is fairly clear. 
It is part of a strategy that says: If you hold up the judicial 
nominees as long as possible, in comes that moment of the so-called 
Thurmond rule or Thurmond tradition. This relates to Senator Strom 
Thurmond of South Carolina, who basically said when we are engaged in 
the depths of a Presidential campaign, the Senate should stop approval 
of judicial nominees.
  There is nothing in the law that requires that. There is certainly 
nothing in the Constitution. In fact, we have in our own way found 
exceptions in the past. But what we are seeing now is an effort by the 
Republicans to hold up or stop judicial nominees in the hopes that the 
positions will be left vacant through the entire calendar year and 
then, if they have their way at the polls, a Republican President will 
fill the vacancies a year from now with new nominees. That is crass. It 
is unfair.
  The men and women who submit their names to be considered as judicial 
nominees go through a rigorous background check at many different 
levels--first by the Senators who would nominate them, then by the 
White House, then the routine examination by the Federal Bureau of 
Investigation, then once reported to the Senate Judiciary Committee for 
further investigation and hearing. Their lives are on hold during this 
process. They wait on the Senate. Once they have cleared these hurdles 
and finally reach the calendar, many of them believe they can breathe a 
sigh of relief. A unanimous vote or a strong bipartisan vote in the 
Judiciary Committee used to be a signal of success on the floor. Not 
anymore. At this point they reach the ultimate roadblock: they are 
stopped on the Senate floor by the Republican minority.
  It is not just unfair to judicial nominees--men and women of quality, 
many of whom have been proposed by Republican Senators--it is 
fundamentally unfair to our court system. You see, many of these 
nominees are filling vacancies that are absolutely essential.
  Last week I received a letter from the chief judge of the Northern 
District of Illinois, Judge Jim Holderman. His district is one that has 
been declared a judicial emergency, meaning the backlog of cases is 
stacking up and the vacancies need to be filled. He was writing to me 
and Senator Kirk asking that we do everything in our power to move two 
noncontroversial, strongly supported nominees through the Judiciary 
Committee. They are moved

[[Page 2322]]

through. These two, who came through a bipartisan process, are now 
sitting on the Senate calendar. They are John Lee and Jay Tharp. John 
Lee is my nominee, and Jay Tharp is Senator Kirk's nominee. A 
bipartisan agreement by a bipartisan committee has led to their 
selection. No one has questioned their ability to serve well on the 
Federal court.
  This is what Judge Holderman wrote:

       The vacancies [that they would fill] have been declared 
     judicial emergencies by the Administrative Office of the U.S. 
     Courts. More than a thousand cases that would have been 
     addressed by judges in those positions have been delayed. The 
     other judges of the district have worked to resolve these 
     cases as promptly as possible along with our other assigned 
     cases, but we need help. . . .

  He went on to say:

       Recently, two other active judges [in the Northern 
     District] were in the hospital and remain unable to take new 
     assignments. New civil case filings in our district court 
     have increased. . . .

  Judge Holderman concludes by saying, `` . . . the people of the 
northern district of Illinois need your assistance,'' he writes to 
Senator Kirk and myself, and the full Senate should ``promptly confirm 
the nominees Jay Tharp and John Lee.''
  This is a classic illustration. Well-qualified individuals, having 
cleared the hurdle, receiving strong bipartisan support in the Senate 
Judiciary Committee, are mired down on the Senate calendar. Time after 
time we see when we can finally spring one of these nominations that 
will have 80 or 90 votes of Senators who approve it. They are 
noncontroversial. It is clearly a slowdown strategy, so the other side 
of the aisle, saying their prayers that they can replace President 
Obama, will literally leave these vacancies for a year or more in the 
hopes that another President will pick another person. That is unfair 
to the process. It is certainly unfair to the nominees. It is unfair to 
this system of government where we are shirking our responsibility to 
advise and consent for critical vacancies to be filled so our Federal 
courts can operate in the best interests of justice across America.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New York.

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