U.S. SENATOR PATRICK LEAHY

Statement of Senator Patrick Leahy
Ranking Democratic Member, Judiciary Committee
On Judicial Nominations

September 30, 2004
 

The Senate has already confirmed more than 200 of President Bush’s nominees to lifetime appointments in our federal courts.  The American people ought to know that the Senate has confirmed more of President Bush’s judicial nominees than President Reagan got in his first term, than his father put on the bench, or than President Clinton appointed in the most recent presidential term.  With this high number of confirmations, we are at the lowest number of vacant seats on the federal courts in 16 years, since 1988.  Yet, Republicans keep claiming that they are entitled to have every nominee confirmed and to confirm nominees for vacancies that have not even arisen and will not arise until after the upcoming presidential election.  This is a complete reversal of their position in 1996 when they would allow only 17 district court judges to be confirmed that entire session. 

Whether you call it the Thurmond Rule, or something else, it is a well-established reality in the Judiciary Committee that after the party conventions, with such a short time to go before votes are cast in a presidential election, hearings and deliberations on judicial nominees are essentially over.  While the two parties may, as they have in the past, work out an agreement for moving some of the consensus nominees still pending in Committee or on the Floor, it has been the Republican position that absent the consent of the minority, we await the results of the election and the inauguration of a new president before moving any new nominees to these lifetime positions.  

Republicans adhered to these rules when they ran this Committee in 1996 and in 2000.  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.  In 2000, when a Democratic Vice President sought the White House, 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 that there is a Republican in the White House, old rules are not followed.   If Rule IV were still enforced in this Committee, the minority might still be able to exercise its right to debate these double standards.  Certainly if the blue slip rules were enforced today as they were during the Clinton Administration, the Michigan Senators’ views would be respected.  And, as I have just explained, if the practice of waiting on nominations until after the election was consistently followed, we would not be having any of these votes today.  But none of these rules is administered fairly.   

I am going to vote no on Judge Neilson’s nomination, and pass on Judge Starrett and Judge Alvarez.   

Keith Starrett  is nominated to a vacancy on the Southern District of Mississippi empty since the President ignored the Senate’s withholding of its consent and recess appointed Charles Pickering to the Fifth Circuit.   I am not sure Judge Starrett is the person for this position.  I note the concerns of so many African American organizations and lawyers who continue to ask the President to begin to achieve some diversity on that bench.  This is another problem of the President’s own making. He should not have recess appointed Charles Pickering to the Fifth Circuit, and once he did, knowing there would be a vacancy, he has only himself to blame for not naming a consensus replacement immediately.     

Judge Alvarez is nominated to a position that will not be vacant until after the presidential election.  Judge Boyko is nominated to a position that will not be vacant until a month after that.    

Finally, Judge Susan Neilson, nominated to the Sixth Circuit from Michigan was given a hearing over the objection of both of her home-state Senators, something this Committee never used to do but now does with disturbing regularity.  As Senators Levin and Stabenow have made clear so many times before, unless and until there is a real bipartisan solution worked out for appointing judges in Michigan, they will not consent to the nominations now before us.  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. 

In addition to the serious and substantial objections of the Senators from Michigan, I would note that Judge Nielson spent most of her legal career defending big businesses in products liability and personal injury cases, before she was appointed to the state trial court bench by Republican Governor Engler.  Most of her judicial decisions over the past decade are not published but she has been reversed about 40 times and the pattern of her reversals shows that from the bench she has continued to favor the side she served as a litigator, corporate defendants in civil cases.  It is very troubling that her reversals reveal that she tends erroneously to prevent factual disputes from reaching the jury in civil cases and  has committed numerous legal errors that have mostly, although not exclusively, favored corporations. 

Judge Nielson and her husband have been very active in Republican Party politics and fundraising, and she has continued to make campaign contributions to Republicans while sitting on the bench as a judge.  Judge Nielson is also a member of the Federalist Society, like most of President Bush’s circuit court nominees.  In fact, President Bush has nominated more people involved in the Federalist Society’s agenda to reverse many civil rights decisions and restrict congressional power to protect people than African Americans, Latinos, and Asian Americans combined.  He is more committed to ideological purity than diversity.  His choices for the bench demonstrate his allegiance to imposing a right-wing social agenda through the selection of judicial zealots for the lifetime positions as federal judges.      

Given Judge Nielson’s record and the strong opposition of her home-State Senators to proceeding in this fashion, I will vote against reporting her nomination.   

In her answers to Senators’ questions she stated that federal judges do have the power to create new rights not listed in the Constitution.  If a Clinton nominee had dared to give such an answer, assuming he or she got a hearing, that sort of response would have been the death knell for the nomination.   

Just last week, the Chairman gave a speech to the Christian Coalition in which he said “America’s founders insisted that the people and their elected representatives make the law and that the judiciary be the weakest branch. They wrote a Constitution because writing down words that have meaning would limit the power of government. Does a written Constitution mean anything if unelected judges can find all sorts of unwritten stuff in there? How can the Constitution limit judges if they can make it mean anything they want?”  Yet, here we are with another Bush nominee who candidly answers that she thinks federal judges can find new rights, and not a single Republican here has expressed any concern about her nomination.   

Part of the double standard we see today is that it is apparently okay if Republican judges create new rights to benefit the Republican Party, just like the Republican majority has created new rules and abandoned settled precedents to favor the Republican President’s nominees.  It is just as unfair as a kid changing the rules of the game when he is losing.  Except that this is not a game and the Senate Judiciary Committee is supposed to honor the rule of law not political expediency. 

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