Statement Of Sen.
Patrick Leahy
Ranking Member, Senate Judiciary Committee,
On The Nomination of Judge Kent Jordan To The Third Circuit
December 8, 2006
Excerpt of Senator Leahy’s Remarks on the Senate Floor Earlier:
“MONTHS AGO -- MONTHS AGO -- BEFORE THE LAST RECESS, I WAS URGING
SENATE ACTION ON NOMINEES LIKE THE MICHIGAN DISTRICT COURT NOMINEES
AND JUDGE JORDAN WHOM WE HAVE BEFORE US NOW. THE LITTLE PROGRESS WE
MAY HAVE MADE HAS BEEN UNDONE BY SOME ON THE REPUBLICAN SIDE.
“…DEMOCRATS AND REPUBLICANS SUPPORTED HIM [Jordan] MONTHS AGO, AND
HERE WE ARE STALLED BECAUSE NOBODY CAN FIGURE OUT WHAT TO DO THE
LAST FEW DAYS OF A SESSION. SUDDENLY, IT IS LIKE, MY GOD, WE'VE GOT
TO HAVE A CLOTURE VOTE ON HIM. WE COULD HAVE HAD 30 HOURS OF DEBATE
AFTERWARDS, WHICH I SAID LET'S NOT DO. AND WE GOT A CONSENSUS, WE
WOULDN'T. BUT TO HAVE GOTTEN TO A CLOTURE VOTE ON SOMEBODY THAT
WOULD HAVE PASSED ON A BED CHECK VOTE MONTHS AGO -- WELL IF THIS
IS THEATER, IT'S THEATER OF THE ABSURD. IF THIS IS THEATER, IT WOULD
CLOSE AFTER OPENING NIGHT ON BROADWAY OR ANYWHERE ELSE.
“THIS GOES BEYOND A FARCE. AND IT IS PARTICULARLY IRONIC THAT AFTER
MONTHS OF REPUBLICANS REPEATING A NEW MANTRA -- EVERY ONE OF THE
PRESIDENT'S NOMINEES, WHETHER QUALIFIED OR NOT, WHETHER ENGAGED IN
CONFLICTS OF INTEREST OR NOT, WHETHER FOUND BY THEIR OWN PEERS TO BE
QUALIFIED OR NOT, WHETHER SUPPORTED BY HOME-STATE SENATORS OR NOT,
IS ENTITLED TO A SWIFT UP-OR-DOWN VOTE -- AFTER WE'VE HEARD THIS
OVER AND OVER. GUESS WHAT? IT WAS REPUBLICAN OBJECTIONS THAT
STALLED MORE THAN A DOZEN JUDICIAL NOMINEES.
“AFTER THE LAST WORKING SESSION IN OCTOBER, I LEARNED THAT SEVERAL
REPUBLICANS WERE OBJECTING TO SENATE VOTES AND SOME OF PRESIDENT
BUSH'S OWN JUDICIAL NOMINEES …I MEAN THIS IS THEATER OF THE ABSURD.
YOU HAD REPUBLICANS ON THE CAMPAIGN TRAIL, SAYING ‘OH MY GOD, THOSE
DEMOCRATS ARE HOLDING UP PRESIDENT BUSH'S POOR NOMINEES FOR THESE
HIGHLY PAID LIFETIME APPOINTMENTS. THEY'RE HOLDING THEM UP.’ WELL,
GUESS WHAT HAPPENED? ALL THESE NOMINEES OF PRESIDENT BUSH’S -- WE
SAID, FINE, LET'S JUST PASS THEM. WE WERE TOLD, OH, CAN'T DO IT,
CAN'T DO IT BECAUSE WE HAVE REPUBLICANS WHO PUT HOLDS ON THEM. TALK
ABOUT HAVING IT BOTH WAYS.”
Full Statement as
Prepared for
Delivery --
Statement of
Senator Patrick Leahy
Ranking Member, Senate Judiciary Committee,
On the Nomination of Judge Kent Jordan to the Third Circuit
December 8, 2006
I am pleased the Senate finally has an
opportunity to consider the nomination of Kent Jordan of Delaware
for a lifetime appointment to the U. S. Court of Appeals for the
Third Circuit. Judge Jordan is a well-qualified nominee with the
support of both home state Democratic Senators as well as that of
the Chairman of the Judiciary Committee, whose state is within the
Third Circuit. I support his nomination and will vote to confirm
him.
I regret that the Republican
leadership chose to eschew bipartisan discussion of nominations and
unilaterally filed an unnecessary cloture motion on Judge Jordan’s
nomination, especially after we worked so hard to expedite it at a
busy time in September. I wish, instead, they had followed our
customary practice in the Senate for the Republican and Democratic
leaders to have sat down with the Chairman and the Ranking Member of
the Judiciary Committee and worked out a process to conclude the
consideration of judicial nominations for this session. Had they
done so, we could have capitalized on the hard work done by the
Chairman and the Judiciary Democrats to report consensus
nominations. Instead, this is the only judicial nominee that the
Republican leadership has scheduled for consideration in months.
What they have left unexplained is why
they have refused to go forward with the President’s nomination of
Judge Janet Neff of Michigan. The federal court serving the Western
District of Michigan has three federal trial court vacancies that
are judicial emergency vacancies – three in one federal district.
The Senators from Michigan have worked with the White House on the
President’s nomination of three nominees to fill these emergency
vacancies. The Judiciary Committee has proceeded unanimously on all
three. Working with Chairman Specter, the Democratic Members of the
Committee cooperated to expedite their consideration. On September
16, we held a confirmation hearing for those three nominees on an
expedited basis. Regrettably, the President had waited until July
to make these nominations. Had he acted sooner, as some of us
suggested earlier this year, we might not be in this situation.
From the beginning, I have urged the President to work with us on
consensus nominations, and I have worked hard to proceed.
I continue to do so now, even at this
late date in the session, and in spite of the pocket filibusters
employed by Republicans to stall more than 60 of President Clinton's
qualified judicial nominees.
Democrats cooperated to expedite consideration of a number of
matters and reported the three judicial nominees to fill the
emergency vacancies in the Western District of Michigan on September
29. Regrettably the White House, Republican leadership, and
objections by Republican Senators continued to undermine this
process. Instead of focusing on consensus nominees, the President
sent back to the Senate in September and, again, following the
November election, highly controversial nominees who had been
returned to the White House in the hope that the President would
work with us on a bipartisan basis.
We have been accommodating, and we will continue to be as we vote
for confirmation of Judge Jordan, but neither the Judiciary
Committee nor the United States Senate should be a rubber stamp for
the President. We should be taking our constitutional responsibility
to advise and consent seriously. These are the only lifetime
appointments in the Federal Government, and they will have an
enormous impact on the lives, the rights and the future of
Americans.
We were accommodating when Judge
Jordan was pending before the Judiciary Committee. I cooperated
with Chairman Specter’s request for a Special Executive Business
Meeting. I came to the meeting and made the quorum. The Chairman
had said that the meeting would be held to expedite consideration of
non-controversial nominees. I attended to enable the majority to
hold over the nomination of Judge Jordan in order to expedite its
consideration at our next meeting. In order to be accommodating, I
went further and continued to meet so that nominees of interest to
Senator Grassley and Senator DeWine could be held over, as well.
The Democratic Senators on the
Judiciary Committee worked especially hard as time ran down in this
Congress to be accommodating on judicial nominations. The Chairman
held four nominations hearings in September. Three of these
hearings were for four nominees and the fourth was an unprecedented
hearing for two nominees receiving not qualified ratings from the
American Bar Association. This was a faster pace than is
traditional for the Committee so late in the session, particularly
in an election year. And it was a much faster pace than is ideal
for careful consideration of lifetime appointments to the nation’s
courts. But we nonetheless cleared nominees at this pace to be
accommodating and to keep nominations moving forward.
Sadly, rather than meet to work out a
process to conclude the consideration of judicial nominations for
this session, the Republican leadership has apparently made the
unilateral decision to stall certain of these nominations, including
those for the judicial emergencies in the Western District of
Michigan and, in particular, the President’s nomination of Judge
Janet Neff.
This fall, an editorial in the
Richmond Times-Dispatch entitled, “No Vacancies,”
highlighted the Administration’s counterproductive approach to
judicial nominations. The editorial criticized the Administration
before the November elections and before the President renominated
those controversial choices, for failing to turn vacancies into
judges and instead pursuing political fights. According to the
Richmond Times-Dispatch:
“The president erred by renominating . . . and may be squandering
his opportunity to fill numerous other vacancies with judges of
right reason.” The Richmond Times-Dispatch focused on the
renomination of William James Haynes II to the Fourth Circuit. Of
course Mr. Haynes has yet to fulfill the pledge he made to me under
oath at his hearing to supply the materials he discussed in his
opening statement regarding his role in developing the legal
justifications and policies having to do with torture, detention and
other matters.
The Richmond Times-Dispatch
editorial could just as easily have been written about Judge
Terrence Boyle, whom the President also re-nominated, again. He did
so despite the fact that as a sitting United States District Judge
and while a Circuit Court nominee, Judge Boyle ruled on multiple
cases involving corporations in which he held investments. The
President should have heeded the call of North Carolina Police
Benevolent Association, the North Carolina Troopers’ Association,
the Police Benevolent Associations from South Carolina and Virginia,
the National Association of Police Organizations, the Professional
Fire Fighters and Paramedics of North Carolina, as well as the
advice of our former colleague, Senator John Edwards, to withdraw
this ill-advised nomination and not re-nominate him. Law enforcement
officers from North Carolina and across the country oppose the
nomination. Civil rights groups oppose the nomination. Those
knowledgeable and respectful of judicial ethics oppose this
nomination. This nomination had been pending on the floor calendar
in the Republican-controlled Senate for more than a year after being
forced out of the Committee on a party-line vote. The Senate did the
President a favor by returning this nomination to the White House
before the summer recess and again before the election.
The President also squandered an opportunity to fill Idaho’s vacancy
on the Ninth Circuit by re-nominating William Gerry Myers III for
that seat, again, in September and, again, after the November
elections. This is another Administration insider and lobbyist whose
record has raised serious questions about his ability to be a fair
and impartial judge. I opposed this nomination when it was
considered by the Judiciary Committee in March 2005. This was a
nomination that the so-called “Gang of 14” expressly listed as
someone for whom they made no commitment to vote for cloture, and
with good reason.
Mr. Myers’ record as Solicitor General for the Department of the
Interior suggests that he was part of a culture of corruption
documented in the testimony of the Interior Department’s Inspector
General, Earl E. Devaney, at a hearing of the House Government
Reform Subcommittee on Energy. Mr. Devaney testified about a
“culture of managerial irresponsibility and lack of accountability”
at the upper levels of the Interior Department in which, “[s]imply
stated, short of a crime, anything goes at the highest levels of the
Department of the Interior.” He also testified, “I have observed one
instance after another when the good work of my office has been
disregarded by the Department. … Ethics failures on the part of
senior Department officials—taking the form of appearances of
impropriety, favoritism and bias—have been routinely dismissed with
a promise ‘not to do it again.’”
While Mr. Myers’ anti-environmental record is reason enough to
oppose his confirmation, his connection to the “culture of
managerial irresponsibility and lack of accountability” raises
further concerns. In particular, questions remain about his role in
authorizing a lawyer who worked for him, Bob Comer, to arrange a
sweetheart settlement agreement for a politically well-connected
rancher, Frank Robbins. Mr. Comer was found in an investigation by
the Department of Interior’s Inspector General to have been
responsible for arranging the deal. Documents have come to light
recently showing that Mr. Myers had been given materials about the
deal, undermining his assertions that he was merely misled by Mr.
Comer. If anyone sought to proceed to this nomination, we would need
to know more about these new documents, and we would need to explore
any connections to the lobbying scandals associated with the
Interior Department and Republican lobbyist Jack Abramoff. Recent
reports in The Denver Post
raise additional questions about the thoroughness of Mr. Myers’
recollection, since their report that Mr. Myers and Mr. Abramoff
attended at least one party together has gone unrefuted and
unexplained.
It is particular troubling to see Mr. Myers re-nominated because the
President squandered yet another opportunity to fill a vacancy. I
had suggested that he re-nominate Norman Randy Smith for the vacancy
created by the retirement of Judge Thomas G. Nelson from Idaho.
Instead, the President has again nominated Judge Smith to a
California seat on the Ninth Circuit, effectively stealing
California’s seat. That is wrong. I support Senators Feinstein and
Boxer in their opposition to this tactic. I had urged President Bush
to resolve this impasse and turn Idaho’s vacancy into a judge by
withdrawing the controversial Myers nomination and nominating Judge
Smith for the Idaho vacancy to which he could be easily confirmed.
Alternatively, he could have renominated them both but merely
switched the vacancies for which they were nominated and thereby
allowed the Smith nomination an opportunity to proceed.
In addition, the President has renominated, again, Michael Wallace
to a vacancy on the Fifth Circuit even though he received the first
ABA rating of unanimously “not qualified” that I have seen for a
Circuit Court nominee in 25 years. Committee proceedings on this
nomination detailed the significant concerns raised by numerous
jurists around the country regarding Mr. Wallace’s judicial
temperament, lack of commitment to equal justice for the poor and
minorities, lack of tolerance, and closed-mindedness. It detailed
concerns from judges and lawyers that Mr. Wallace “may not follow
the law” and is driven by his “personal agenda.” Of course, the
troubling issues raised in the ABA’s testimony echo significant
concerns about Mr. Wallace’s record on civil rights, his opposition
to the Voting Rights Act, his support for tax exemptions for Bob
Jones University, his opposition to prison safety regulations, and
his attempt as President Reagan’s director of the board of the Legal
Services Corporation to undermine efforts to provide legal services
to low-income clients.
Months ago, before the last recess, I
was urging Senate action on nominees like the Michigan district
court nominees and Judge Jordan. What little progress we might have
made has been undone by some on the Republican side. It is
particularly ironic that after months of Republicans repeating a new
mantra, that every one of the President’s nominees, whether
qualified or not, whether engaged in conflicts of interest or not,
whether supported by home state Senators or not, is entitled to a
swift up or down vote, it was Republican objections that stalled
more than a dozen judicial nominees.
After the last working session in
October, I learned that several Republicans were objecting to Senate
votes on some of President Bush’s judicial nominees. According to
press accounts, Senator Brownback had placed a hold on Judge Neff’s
nomination, even though he raised no objection to her nomination
when she was unanimously reported out of Judiciary Committee.
Later, without going through the Committee, Senator Brownback sent
questions to Judge Neff about her attendance at a commitment
ceremony held by some family friends several years ago in
Massachusetts. Senator Brownback spoke of these matters and his
concerns on one of the Sunday morning talk shows.
So where is the consultation about
this with the leaders of the Committee? Where is the cooperation?
Where is the working together? Where is the explanation why the
Republican leadership has chosen not to proceed with the Neff
nomination to a judicial emergency vacancy? Can it really be that
her attendance at a commitment ceremony of a family friend failed
some Republican litmus test of ideological purity, that her lifetime
of achievement and qualifications are to be ignored, and that her
nominations is to be pocket filibustered by Republicans?
The Republican approach to
nominations, of using nominations to score political points rather
than filling vacancies and administering justice, has led to a dire
situation in the Western District of Michigan. Judge Robert Holmes
Bell, Chief Judge of the Western District, wrote to me and to others
about the situation in that district, where several judges on senior
status—one over 90 years old—continue to carry heavy caseloads to
ensure that justice is administered in that district. Judge Bell is
the only active judge. If not for Republican objections, these
nominations would be filled by now.
Of course, this is not the first time
Republicans have objected to an up or down vote on judicial
nominees. More than 60 of President Clinton’s judicial nominees
were pocket filibustered by Republicans without an up or down vote.
Last year, the President’s nomination of Harriet Miers to a vacancy
on the Supreme Court was stalled and then withdrawn due to
Republican objections.
Republicans questioned her
qualifications and demanded answers about her work at the White
House and legal philosophy. They defeated her nomination before
allowing her a hearing.
With regard to Democratic cooperation
on judicial nominations, I do want to acknowledge the kinds words of
the Majority leader who noted before the October recess that we have
made “tremendous progress on confirming qualified judicial
nominees.” By Senator Frist’s count, the Senate “has confirmed 88
percent of President Bush’s judicial nominees, giving him the
highest confirmation rate since President Reagan.” He calculates
that “95 percent of all judgeships are filled, including more than
92 percent of all circuit court judgeships and more than 95 percent
of all district court judgeships.” He notes that the Senate has
confirmed “[n]early 160 nominees” for judgeships under the 46 months
of his leadership. He leaves out the fact that 100 of this
President’s judicial nominees were confirmed during the 17 months
that I chaired the Judiciary Committee and Senator Daschle was the
Senate’s leader.
Likewise, Chairman Specter
acknowledged before the recess that the Democrats on the Judiciary
Committee and in the Senate have been extremely accommodating. He
did so, again, yesterday here in the Senate. I thank him.
This year, we have confirmed 31
judicial nominees so far. This far surpasses the total number of
judges confirmed in the 1996 congressional session, when Republicans
controlled the Senate and stalled President Clinton’s nominations.
In the 1996 session, Republicans would not confirm a single
appellate court judge, not one, and moved forward on only 17
district court judges all session. That was the only session of the
Senate I can remember in which the Senate simply refused to consider
appellate court nominations. That was part of their pocket
filibuster strategy to stall and maintain vacancies so that a
Republican President could pack the courts and tilt them decidedly
to the right. In confirming eight Circuit Court judges this year,
we have already confirmed more Circuit Court judges than in 1996,
1997, 1999, and 2000.
We also could have accomplished more
this year if the White House had sent over consensus nominees early
in the year. Regrettably the Administration concentrated on a few
highly controversial nominees and delayed until recently sending
other nominations and thereby prevented us from having the time to
do any meaningful review.
By contrast, there are six judicial
emergencies still without any nominee at all. Nor has President
Bush fulfilled his pledge to make a nomination for every vacancy
within 180 days. Of the vacancies currently without a nominee,
seven have been vacant for more than 180 days. An additional 14 of
the pending nominees were nominated only after their vacancies had
been open for more than 180 days.
With respect to the matter before the
Senate, I note, again, that I support the confirmation of Judge
Jordan and I am pleased to have helped expedite his consideration by
the Judiciary Committee. During the 17 months the Democrats were in
charge of considering President Bush’s judicial nominations and I
was Chairman of the Judiciary Committee, we confirmed 100 judges.
We have been accommodating, and we
will continue to be as we vote for confirmation of Judge Jordan
today, but neither the Judiciary Committee nor the United States
Senate should be a rubber stamp for the President. Our success in
this process depends on the White House sending consensus nominees,
as opposed to the highly controversial nominees it has sent the
Senate repeatedly. I was encouraged by President Bush’s pledge
after the election to work with Congress in a bipartisan and
cooperative way. I was disappointed barely a week later when the
President re-nominated a slate of his most controversial nominees,
who failed to win confirmation under a Republican-controlled
Senate.
I am hopeful that we can find a better
approach in the 110th Congress. It starts with the
President. If the President consults with us and works with us to
send consensus picks instead of failed controversial nominations for
important lifetime appointments, we can make good progress filling
vacancies.
We owe it to the American people, who
do not want nominations to be about partisan politics, but about
government responsibility to provide justice. The American
people expect the federal courts to be fair forums where justice is
dispensed without favor to the right or the left. These are the
only lifetime appointments in our entire government, and they matter
a great deal to our future. I will continue in the 110th
Congress to work with Senators from both sides of the aisle to
ensure that the federal judiciary remains independent and able to
provide justice to all Americans.
I congratulate Judge Jordan and his family on his confirmation
today.
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