Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of John Daniel Tinder To The
Seventh Circuit
December 18, 2007
We end the 2007 legislative session as we
began it, by making significant progress confirming the President’s
nominations for lifetime appointments to the federal bench. At the
Judiciary Committee’s first business meeting of the year, held less
than two weeks after the Republican caucus agreed to the resolutions
organizing the Senate, I included on our agenda five judicial
nominations. On January 30, the Senate confirmed the first two
judicial nominations of the session. Today’s confirmation of John
Daniel Tinder to the Court of Appeals for the Seventh Circuit will
be the 40th, including six of this President’s
nominations to powerful circuit courts.
I thank the Members of the Judiciary Committee for their hard work
all year in considering these important nominations. I thank
especially those Senators who have given generously of their time to
chair confirmation hearings throughout the year.
Given the work of the Senators serving on
the Judiciary Committee, we will have exceeded the yearly total in
each of the last three years when a Republican majority managed the
Senate and the consideration of this Republican President’s
nominations. Indeed, with the confirmation today of Judge Tinder to
replace Judge Daniel A. Manion, like that of Reed O’Connor who was
confirmed last month to the Northern District, we are proceeding to
fill vacancies before they even arise.
The progress we have made this year in
considering and confirming judicial nominations is sometimes lost
amid the partisan sniping over a handful of controversial
nominations and attempts to appeal to some on the far right wing.
When we confirm the nomination we consider today, the Senate
will have confirmed 40 nominations for lifetime appointments to the
Federal bench this session alone. That is more than the total
number of judicial nominations that a Republican-led Senate
confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005 or 2006. It
is 23 more confirmations than were achieved during the entire 1996
session, more than double that session’s total of 17, when
Republicans stalled consideration of President Clinton’s
nominations. It is seven more than the confirmations in the second
to last year of President Clinton’s final term.
We continue to make progress on circuit
court nominations. We began the year by resolving an unnecessary
controversy over Judge Norman Randy Smith’s nomination to one
of California’s seats on the Ninth Circuit. That nomination could
easily have been confirmed—and a judicial emergency addressed—in the
last Congress had the Bush Administration chosen the common-sense
approach of nominating Judge Smith—who is from Idaho—to Idaho’s seat
on the Ninth Circuit. After many months of urging by me and others,
President Bush finally did the right thing at the beginning of this
Congress by pulling the controversial Myers nomination to Idaho’s
Ninth Circuit seat and nominating Judge Smith, instead. He was
confirmed in February. We could make even more progress if the
President would make a California nomination to fill the long-vacant
California Ninth Circuit seat left open by Judge Stephen Trott’s
retirement.
We continued through the year to consider and confirm district and
circuit court judges. In October, the
Senate confirmed the nominations of Judges Jennifer Walker Elrod and
Judge Leslie Southwick, who became the fourth and fifth circuit
court nominees confirmed this year.
After this confirmation today, the Senate
will have confirmed six circuit court nominees, matching the total
circuit court confirmations for all of 2001. We will also have
exceeded the circuit court totals achieved in all of 2004 when a
Republican-led Senate was considering this President’s circuit
nominees; all of 1989; all of 1983, when a Republican-led Senate was
considering President Reagan’s nominees; all of 1993 when a
Democratic-led Senate was considering President Clinton’s nominees;
and, of course, the entire 1996 session during which a
Republican-led Senate did not confirm a single one of President
Clinton’s circuit nominees the entire session.
The treatment of President Clinton’s nominees contrasts harshly with
the treatment Democrats gave the circuit court nominees of
Presidents Reagan and Bush in the Presidential election years of
1988 and 1992. In those two election years, the
Democratic-controlled Senate averaged nine circuit court
confirmations. Regrettably, the Republican Senate reversed that
course in the treatment of President Clinton’s circuit court
nominations, confirming an average of only four in the Presidential
election years of 1996 and 2000, and none in the entire 1996
session.
At the end of the 106th Congress, the last two years of
the Clinton Administration, the Republican-led Senate returned to
the President without action 17 of his appellate court nominees. I
have not duplicated that record and I do not intend to, any more
than I intend to see the Senate pocket filibuster more than 60 of
President Bush’s judicial nominees, as Republicans did with
President Clinton’s.
It is a little known fact that during the Bush Presidency, more
circuit judges, more district judges -- more total judges --
were confirmed in the first 24 months that I served as Judiciary
Chairman than during the 2-year tenures of either of the two
Republican Chairmen working with Republican Senate majorities.
I continue to try to find ways to make progress. Last month, I sent
the President a letter urging him to work with me, Senator Specter,
and home-state Senators to send us more well-qualified, consensus
nominations. Now is the time for him to send us more nominations
that could be considered and confirmed as his
Presidency approaches its last year,
before the Thurmond Rule kicks in.
As I noted in that letter, I have been concerned that several recent
nominations seem to be part of an effort to pick political fights
rather than judges to fill vacancies.
For example, President Bush nominated Duncan Getchell to one of
Virginia’s Fourth Circuit Vacancies over the objections of Senators
Warner and Webb, one a Republican and one a Democrat. They had
submitted a list of five recommended nominations, and specifically
warned the White House not to nominate Mr. Getchell. As a result,
this nomination that is opposed by Democratic and Republican
home-state Senators is one that cannot move.
The Administrative Office of the U.S. Courts will list 43 judicial
vacancies and 14 circuit court vacancies after today’s
confirmations. Compare that to the numbers at the end of the 109th
Congress, when the total vacancies under a Republican controlled
Judiciary Committee were 51 judicial vacancies and 15 circuit court
vacancies. That means, that despite the additional 5 vacancies that
arose at the beginning of the 110th Congress, the current
vacancy totals under my chairmanship of the Judiciary Committee are
below where they were under a Republican led-Judiciary Committee.
The President has sent us 27 nominations for these remaining
vacancies. Sixteen of these vacancies – more than one third – have
no nominee. Of the 17 vacancies deemed by the Administrative Office
to be judicial emergencies, the President has yet to send us
nominees for seven, nearly half of them. If the President would
decide to work with the Senators from Michigan, Rhode Island,
Maryland, California, New Jersey, and Virginia, we could be in
position to make even more progress.
Of the 16 vacancies without any nominee, the President has violated
the timeline he set for himself at least 11 times -- 11 have been
vacant without so much as a nominee for more than 180 days. The
number of violations may in fact be much higher since the President
said he would nominate within 180 days of receiving notice that
there would be a vacancy or intended retirement rather than from the
vacancy itself. We conservatively estimate that he also violated
his own rule 15 times in connection with the nominations he has
made. That would mean that with respect to the 43 vacancies, the
President is out of compliance with his own rule more than half of
the time.
We have succeeded in dramatically lowering vacancies and, in
particular, circuit court vacancies. We have helped cut the circuit
vacancies from a high water mark of 32 in the early days of this
Administration to as low as 13 this year. Contrast that with the
Republican-led Senate’s lack of action on President Clinton’s
moderate and qualified nominees that resulted in increasing circuit
vacancies during the Clinton years from 17 when he was inaugurated
to 26 at the end of his term. During those years, the
Republican-led Senate engaged in strenuous and successful efforts
under the radar to keep circuit judgeships vacant in anticipation of
a Republican President. More than 60 percent of current circuit
court judges were appointed by Republican Presidents, with the
current President having appointed more than 30 percent of the
active circuit judges already.
The American people expect the federal courts to be fair forums
where justice is dispensed without favor to the right or the left.
I have set out since the beginning of this Congress to do all that I
can to ensure that the federal judiciary remains independent and
able to provide justice to all Americans. These are the only
lifetime appointments in our entire government, and they matter. I
will continue in the 2008 session to work with Senators from both
sides of the aisle as I have in the 2007 session.
John Daniel Tinder has a decade of service as a District Court Judge
for the Southern District of Indiana. Before his tenure on the
bench, he worked for seven years at the Justice Department as U.S.
Attorney and Assistant U.S. Attorney for the Sothern District of
Indiana. He has worked in private practice and has experience as a
county prosecutor and county public defender.
His nomination has the support of both
home-state Senators. I acknowledge the support of Senators Lugar
and Bayh, and want to thank Senator Durbin for chairing the hearing
on this nomination.
While I support Judge Tinder’s confirmation, I am concerned about
his answer to a question I sent him on the legal significance of
Presidential signing statements. I asked Judge Tinder if an alleged
violation of the law prohibiting cruel, inhuman, and degrading
conduct by American personnel were to come before a court, would it
be appropriate for that court to consider the President’s signing
statement as legislative history, in addition to the text of law
itself. I am troubled by Judge Tinder’s answer that he is open to
looking at signing statements as a tool for determining the meaning
of a statute.
Throughout the country’s history, Presidents used signing statements
for limited purposes, such as explaining to the public the likely
effects of legislation or providing direction to administrative
agencies within the Executive Branch. It has long been considered
out of bounds for any President to use signing statements – which
are at most post-passage remarks – for the more expansive and
controversial purpose of creating legislative history that our
courts would be expected to follow. Legislative history is created
within the Congress, which is charged by the Constitution with
considering and passing laws. The President may veto legislation,
but the constitutional system of checks and balances does not allow
the President to speak for Congress.
The Nation stands at a pivotal moment in
history, where Americans are faced with a President who makes
sweeping claims for almost unchecked Executive power.
This President has used signing statements
to challenge laws banning torture, laws on affirmative action, and
laws that prohibit the censorship of scientific data. When
the President uses signing statements to unilaterally rewrite laws
enacted by Congress, he undermines the rule of law and our
constitutional checks and balances. It is incumbent upon the
federal judiciary, to safeguard and protect the constitutional
balance when necessary.
I hope that Judge Tinder will fulfill his oath and be an independent
buffer against constitutional overreaching. I congratulate the
nominee and his family on his confirmation today.
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