The Republican majority’s utter disregard for the
rules, traditions and precedents of the United States Senate and the
Judiciary Committee-- and of their own actions -- is something to behold.
This hearing marks yet another milestone in Republicans’ break from their
adherence to the Thurmond Rule and their own prior practices.
This hearing joins a long list of double standards
imposed by Senate Republicans: From the way that home-state Senators are
treated, to the way hearings are scheduled, to the way the Committee
questionnaire was altered, to the way our Committee’s historic protection
of the minority by Committee Rule IV has been violated; Senate Republicans
have destroyed virtually every custom and courtesy that used to help create
and enforce cooperation and civility in the confirmation process.
In addition to holding yet another hearing for a Sixth
Circuit nominee without the approval of her home-state Senators, the
majority is openly ignoring another longstanding practice by holding a
nominations hearing after Labor Day in a presidential election year. It
was a Republican-imposed reality when Democratic Presidents occupied the
White House, that certainly after the political parties’ presidential
nominating conventions, they would not proceed with judicial nominations
hearings or votes, except by consensus.
There was a consensus arrangement earlier this year to
proceed with consideration of 25 appointments to lifetime nominations.
Democrats fulfilled that understanding. This hearing and these nominees
are not part of a consensus arrangement.
It has been long acknowledged that absent the consent
of the minority, the Senate awaits the results of the election and the
inauguration of a new president before acting on additional lifetime
appointments to the judiciary. Certainly with vacancies at an historic low
level, that practice, insisted upon by Republicans with Democratic
Presidents, would be followed. This hearing is clear indication that
Senate Republicans have no such intention of maintaining a consistent
practice. Instead, in another blatant double standard, they have
demonstrated their efforts to breach that practice, as well.
In 1996, when a Democratic President was seeking
re-election, the Republican-controlled Committee held only one hearing to
consider one district court nominee after the August recess, and then never
allowed that nominee to have a Committee vote. Indeed, that nominee, Judge
Ann Aiken of Oregon, was obstructed so severely by the Republican majority
that she was not confirmed to her position until nearly a year and a half
later.
In 2000, the Republican-controlled Committee followed
the Thurmond Rule to the letter. After the August recess work on judicial
nominations came to a halt. Although there were over 30 nominees pending
after July 25, 2000, no more judicial nominees were scheduled for hearings
or considered by the Committee.
But now the “by any means necessary” approach that has
characterized this Republican leadership persists. Their approach to our
rules and precedents continues to follow their own partisan version of the
golden rule that “he, with the gold, rules.” Today, after July 4th,
after the presidential nominating conventions and after Labor Day, the
Republican majority has scheduled a hearing for four judicial nominees,
including one to a circuit court opposed by both home-state Senators, in a
presidential election year. In contrast to the stalling that dominated
Republican treatment of President Clinton’s nominees, now Senate
Republicans want to proceed to fill judicial vacancies that have not even
occurred and will not occur until after the election.
With a Democratic President’s judicial nominees, a
single objection by a Republican home-state Senator was enough to derail
any action. As we have seen so many times over the last three and a half
years, the Republican Senate perspective is far different when Democratic
home-state Senators object to a nomination. Nearly a year ago, the
Chairman crossed a line that he had never before crossed when he held a
hearing for Henry Saad, a Michigan nominee to the Sixth Circuit who was
opposed by both his home-state Senators. I think it may have been the
first time that any Chairman and any Senate Judiciary Committee proceeded
with a hearing on a judicial nominee over the objection of both home-state
Senators. It was certainly the only time in the last 50 years, and I know
it to be the only time during my nearly 30 years in the Senate. Having
broken that longstanding practice with Henry Saad, it has now been repeated
again and again.
The Michigan Senators have come to the Committee time
and again to articulate their very real grievances with the White House and
their honest desire to work toward a bipartisan solution to filling
vacancies in the Sixth Circuit. We should respect their views, as the
views of home-state Senators have been respected for decades. I have urged
the White House to work with them. I have proposed reasonable solutions to
the impasse that the White House rejected. The Michigan Senators have
proposed reasonable solutions, including a bipartisan commission, which the
White House continues to reject. This is not the time to press ahead with
yet another Sixth Circuit nominee without a resolution to this impasse.
I have also heard concerns about the President’s
decision to nominate Keith Starrett to the vacancy created when this
President bypassed the Senate to appoint Charles Pickering to the Fifth
Circuit without the consent of the Senate. I ask that a letter sent to the
Committee just recently by the Magnolia Bar Association, a primarily
African-American bar association in Mississippi, be included in the
record.
The Magnolia Bar’s President, Crystal Wise Martin,
expresses the group’s strong opposition to proceeding with Judge Starrett’s
nomination, not only because it is so late in the session, but also
because, as she writes: “[I]it fails to remedy the egregious problem
concerning the lack of diversity on Mississippi’s federal bench.” She
points out that Mississippi has the highest percentage of African Americans
of any State, but only had one African-American federal judge. She
explains that the Magnolia Bar and the National Bar Association have both
made direct requests to the President that he appoint an African American
to this seat. During the consideration of Charles Pickering’s nomination,
his son, Congressman Chip Pickering reportedly expressed his willingness to
advocate for an African American nominee if his father received support
from the Magnolia Bar. Apparently, this Administration did not honor that
intention of proceeding with a qualified African-American nominee for this
judgeship.
Also on the agenda is a nominee for a vacancy that
will not arise until after the November election. While it can be argued
that for purposes of efficiency nominees can and should be confirmed
shortly in advance of the time the vacancy they are filling actually
arises, it is astounding that the partisans who assiduously followed the
Thurmond Rule and shut down consideration of judicial nominees in the last
six months of a presidential term have now reversed themselves to insist
that vacancies, which will not arise until after the presidential election,
be filled in advance.
This President has seen more than 200 of his nominees
confirmed, there remain just 27 vacancies in the federal district and
circuit courts combined and there are more active judges sitting on the
bench than at any time in this nation’s history. By contrast, Republicans
presided over rising vacancies that reached over 100 during President
Clinton’s term and refused to proceed on more than 17 judges in the entire
1996 session.
Under our Constitution, the Senate has an important
role in the selection of our judiciary. The brilliant design of our
Founders established that the first two branches of government would work
together to equip the third branch to serve as an independent arbiter of
justice. As columnist George Will recently wrote: “A proper constitution
distributes power among legislative, executive and judicial institutions so
that the will of the majority can be measured, expressed in policy and, for
the protection of minorities, somewhat limited.” The structure of our
Constitution and our own Senate rules of self-governance are designed to
protect minority rights and to encourage consensus. Despite the razor-thin
margin of recent elections, Senate Republicans are not acting in a measured
way, but in complete disregard for the traditions of bipartisanship that
are the hallmark of the Senate. Senate Republicans have acted to ignore
precedents, reinterpret longstanding rules to their advantage and simply
break them when they choose. This practice of might makes right is wrong.
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