[Congressional Record (Bound Edition), Volume 159 (2013), Part 6]
[Senate]
[Pages 7760-7761]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Mr. LEAHY. Mr. President, before the Senate went into recess, I was 
disappointed with the statements made to the Senate that misstated the 
history of Judge Srinivasan's confirmation process. The Senator who 
said the chairman of the Judiciary Committee made ``no effort, no 
effort'' to have a hearing on Judge Srinivasan until late last year was 
misinformed, and in stating what he did, he misinformed the Senate.
  We made efforts in the fall before the election to schedule such a 
hearing, and I renewed our push to have a hearing on the nomination 
before the end of the session. I was accommodating Republican 
objections by not scheduling a hearing before the end of last year.
  These erroneous Record statements--these erroneous statements to the 
rest of the Senate--have me wondering whether I should be so 
accommodating to Republican scheduling demands if they then forget 
their demands in their efforts to avoid responsibility and to blame 
others. In other words, they request a delay and then say, well, of 
course it is somebody else's fault that we had the delay.
  Judge Srinivasan was nominated June 11, 2012, during a summer when 
Senate Republicans were in the process of constricting the confirmation 
process and intent on their misapplication of the so-called Thurmond 
rule to stall judicial nominees before the Presidential election. It 
was only in May, 2012, that the Senate completed action on the 19 
nominees held over on the Senate Executive Calendar in 2011. 
Republicans were in the process of filibustering a nominee to the Ninth 
Circuit from Arizona. Interestingly enough, the person they were 
filibustering had been recommended by Jon Kyl of Arizona, the deputy 
Republican leader, of course a Republican Senator. Republicans were 
dragging out confirmations of judicial nominees who had been nominated 
in the fall of 2011 and the early months of 2012. They even 
filibustered a Tenth Circuit nominee from Oklahoma who had been 
supported by the two Republican Senators from Oklahoma in what was the 
first filibuster of a circuit court nominee reported with bipartisan 
support by the Judiciary Committee. Throw out all the precedents, throw 
out all the rule books, throw out everything Democrats and Republicans 
have done in the past--it is going to be our way or the highway. Even 
when the President of the United States, in trying to reach out, 
nominates a judge supported by the two Republican Senators of that 
State, a judge reported out by a bipartisan vote by the Senate 
Judiciary Committee, they say: Oh, what the heck, President Obama 
nominated him, let's filibuster him. This is wrong. It is a pity. It is 
beneath the United States Senate.
  They filibustered a First Circuit nominee from Maine who was 
supported by the two Republican Senators from Maine. In addition, 
Republicans had filibustered the earlier nomination of Caitlin Halligan 
to the D.C. Circuit. Anybody who needs to refresh their recollections 
of those months should reread my statements on judicial nominations 
from June 6, June 11, June 12, June 18, June 26, July 10, July 16, July 
23, July 30, August 2, September 10, September 20, November 30, 
December 3, December 6, December 11, December 13, and December 17. 
Unlike the recent misstatements made to the Senate, the facts are in 
those statements of mine.
  By July 19, 2012, I had determined that the paperwork on the 
Srinivasan nomination was complete and the nominee could be included in 
a hearing. It has been my practice as chairman of the Judiciary 
Committee, in an effort to be fair, to do something that was not always 
done by others, to give the minority notice and allow consultation 
before scheduling a nomination for a hearing. At that time, the next 
July hearing had been discussed as one devoted to the nominee to head 
the Antitrust Division of the Department of Justice, a nomination that 
itself had been delayed and to which there was Republican opposition. 
During the August recess, my staff asked Senator Grassley's about 
holding a hearing on the Srinivasan nomination in September. They 
raised objections and concerns about proceeding with the D.C. Circuit 
nomination at that time but agreed to proceed with four district 
nominees and a Court of International Trade nominee.
  In November 2012, after the American people had solidly reelected 
President Obama, we raised the need for the hearing on the D.C. Circuit 
nomination anew. Republicans objected, again, in spite of the precedent 
of holding a hearing on one of President Bush's D.C. Circuit nominees 
during a similar lameduck session.
  Instead, they said: No, no, no. It is all right to do it for a 
Republican President but not for this Democratic President, Barack 
Obama. We can't do it for him. I know you allowed it for President 
George W. Bush, but after all, he

[[Page 7761]]

is different. He was a Republican President. We cannot do it for this 
Democratic President. Instead they wanted to proceed only with district 
court nominees during the lameduck. Republicans insisted the Srinivasan 
hearing be put off until the next Congress and the new year. In 
deference to the Republican minority, I held off. They agreed that he 
would be included in the first nominations hearing of the 113th 
Congress.
  Then, in early January this year, when called upon to hold up what 
they said they would agree to, their end of the bargain, Republicans 
wanted to change the rules again and they balked. They insisted the 
nominee and others be interviewed and scores of documents be produced 
in their effort to stall other nominations. In other words, having made 
an agreement, they backed out of it. The nominee was not, and could not 
have been, the ``lawyer . . . who handled'' the Magner case. In fact, 
the United States was not a party in the Magner case. As was readily 
apparent from the one email that named Srinivasan, his alleged 
``involvement'' was merely being asked by Tom Perez, now the 
President's nominee to be Labor Secretary, a technical legal question 
about U.S. Supreme Court procedure. It was the nominee's job as the 
Principal Deputy Solicitor General to answer such questions for 
administration officials--and he did answer it appropriately. 
Republicans could have asked him about it at his confirmation hearing 
in January and fulfilled their agreement, but they insisted on using 
his nomination as leverage against the administration. They insisted, 
instead, on first interviewing three U.S. Department of Justice 
officials, including Tom Perez, before they would go forward with his 
hearing.
  After months of attempts to get the committee Republicans to focus on 
the nominee at hand while they insisted on their wide-ranging 
investigation of Tom Perez, a nominee not pending before the Judiciary 
Committee, Republicans finally agreed to include Srinivasan at the 
Judiciary Committee on April 10, 2013. That was more than 7 months 
after the hearing I had first been proposed and more than three months 
after the hearing to which they had previously agreed.
  As I noted in my December 12 hearing statement, as Chairman I had not 
jammed the minority with judicial confirmation hearings the way my 
Republican predecessor did. I was trying to bring the Senate back to 
the way it should be, the same way I did during the immigration 
hearings and markup. I did not want to go back to the games played that 
we had to face when they were in charge. I think no good deed goes 
unpunished.
  We held only 11 judicial nomination hearings in 2012. In light of the 
Senate's recess schedule for the election cycle, we held only two after 
the August recess. The nominations included at those hearings were the 
result of consultation with the ranking minority member and were 
essentially by agreement.
  I now see that when we try to work it out, and we keep our word and 
we have conciliation and accommodation and keep our word and our part 
of the bargain, all we get is recrimination from the other side as they 
try to break the bargain. That is not the Senate I have been proud to 
serve in for 38 years.
  This nominee was praised at the hearing and proceeded to answer 
scores of written questions after the hearing. When he had provided his 
written responses, I listed his nomination for action by the Judiciary 
Committee on May 9, 2013. In what has become standard practice for the 
Republicans on the Judiciary Committee, they still insisted on holding 
him over for another week for no good reason. I protected their right 
on that, even though it has been abused in a way I have never seen in 
38 years.
  Presaging the unanimous Senate vote, the vote in the Judiciary 
Committee was 18 to zero when it was finally allowed to proceed on May 
16. Republicans then insisted that the Senate vote on his confirmation 
be delayed two weeks until after the Memorial Day recess. I would not 
be surprised if Senate Republicans now took credit for expediting that 
vote despite the fact that it took the Majority Leader filing a cloture 
petition to get that vote in May.
  I make significant efforts to ensure that the minority is prepared to 
move forward on a nomination before we schedule a hearing. My staff 
routinely gives them our plan weeks in advance. Even with this advance 
notice, I routinely have to notice a hearing without listing nominees 
because the minority has not yet taken the time to read the basic 
material on the nominations despite its being available for weeks, and 
sometimes months, with something a law clerk could have done in 20 
minutes, but this highly paid professional staff can't get around to 
doing it.
  I am disappointed that despite the fact that I have bent over 
backwards to accommodate them, Senate Republicans contend that I made 
``no effort, no effort'' to hold Judge Srinivasan's hearing last fall. 
One Republican Senator said during the debate on the Srinivasan 
nomination that the delay must have been my choice since that decision 
was ``solely within the control of the Democratic majority.'' For 
Senate Republicans to pretend that they had no role in delaying this 
nomination was wrong. Do they really think the American people are that 
gullible? I think not.
  We had the Policeman of the Year award early this morning in the 
Mansfield Room. When I looked up at that painting of Mike Mansfield, I 
thought of how wonderful it was to come here when he was the majority 
leader. I remember him saying one thing: Senators, no matter what their 
party, should always keep their word; and when on the floor of the 
Senate, they should always tell the truth. That is good advice. I wish 
people would start following it.


                      Commending Senator Stabenow

  I see the distinguished Senator from Michigan, the chair of the 
Senate Agriculture Committee, on the floor. If I could take 30 seconds 
longer so I can say with her here what I said about her in Vermont to a 
group of farmers this past week: The Senate is blessed to have her as 
chair. Nobody has done it better, and I can speak with some experience. 
She brought through a wonderful bipartisan farm bill last year. The 
other body did not take it up. She is going to bring through a 
wonderful one this year. I hope they will take it up.
  While she is on the Senate floor, I want to say the same thing I said 
about her in the State of Vermont: Every one of us is so proud of the 
Senator. Whether it was a Republican or Democrat, they all agreed.
  I yield the floor.

                          ____________________