Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
March 3, 2008
Mr. LEAHY. Mr. President, I would apologize for the lack of judicial
nominations on the Executive Calendar but for the fact that is has
been the refusal of Republicans to cooperate this year in reporting
out nominations that has lead to the current circumstance. The fact
is that we concluded last session by confirming each and every
judicial nomination that was reported out of the Judiciary
Committee. None were carried over into this new year. And despite
my efforts in February, when the Judiciary Committee held
two hearings for seven judicial nominees, including a circuit
nominee, Republican Members of the Judiciary Committee effectively
boycotted our business meetings in February and obstructed our
ability to report judicial nominations and high-ranking Justice
Department nominations. I adjourned both our February 14 and
February 28 meetings for lack of a quorum. At the first meeting
only one Republican Senator was present. At the latter, the Ranking
Member chose to leave.
Despite the partisan posturing by the President and Senate
Republicans, I have continued to move forward and sought to make
progress but, I must admit, my patience is wearing thin. Two weeks
ago, during the congressional recess, I chaired our third
nominations hearing of the year. Included were three judicial
nominations, including that of
Catharina Haynes of Texas to be a Circuit Judge on the Fifth Circuit.
I knew that this nomination was important to Senator Cornyn. So, in
spite of her participation at the recent partisan political rally
and photo op at the White House, I proceeded with that
previously scheduled hearing.
Despite urging the President to work with us, 19 current judicial
vacancies – almost half – have no nominee. In addition, several of
the judicial nominations we have received do not have the support of
their home state Senators. Of the vacancies deemed by the
Administrative Office to be judicial emergencies, the President has
yet to send us nominees for seven of them, more than a third. Of
the circuit court vacancies, nearly a third are without a nominee
and more than half of the current circuit court nominees do not have
the support of both home-state Senators.
If this President had worked with the Senators from Michigan, Rhode
Island, Maryland, California, New Jersey, and Virginia, we could be
in position to make more progress. Instead, we have lost precious
time to provocative and controversial nominations like that of
Duncan Getchell and Claude Allen of Virginia. Those nominations
were both withdrawn by the President after months of wasted time and
effort. I, again, encourage the White House to work with Senators
Warner and Webb of Virginia to send us consensus nominees for the
two Virginia vacancies on the Fourth Circuit.
The Getchell nomination is an example of the President’s failure to
work with home state senators to make consensus nominations.
President Bush
nominated Duncan Getchell to one of Virginia’s Fourth Circuit
vacancies over the objections of Senator Warner and Senator Webb.
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, which was opposed by home state
Senators from the start, was one that could not move.
The Republican complaints about nominations ring hollow in light of
the actual progress we have made. Despite the efforts of the Bush
administration to pack the Federal courts and tilt them sharply to
the right, the Judiciary Committee and the Senate have worked to
approve an overwhelming majority of President Bush’s nominations
for lifetime
appointments to the Federal bench. We have confirmed over 86
percent of President Bush’s judicial nominations, compared to less
than 75 percent for President Clinton’s nominations.
The difference is even
more stark when examining nominations to influential circuit courts,
to which nearly three quarters of President Bush’s nominations have
been confirmed, compared to just over half of President Clinton’s.
That means nearly half of President Clinton’s circuit nominations
were not confirmed, many of them pocket filibustered with anonymous
objections, no hearings, and no consideration. If we stopped now
and did not consider another judicial nominee all year, we would
better the record Republicans established with President Clinton.
We confirmed 40 judicial
nominees last year, including six nominees to the circuit courts.
That total was more than were confirmed during any of
the three preceding years under Republican leadership and more than
were confirmed in 1996, 1997, 1999, and 2000, when a Republican-led
Senate was considering President Clinton’s nominations. Indeed, in
three years that I have chaired the Committee, the Senate has
confirmed 140 of President Bush’s lifetime appointments to our
federal courts. That compares favorably to the total of 158
confirmations during the more than four years that Republicans led
the Committee during this presidency. If we stopped now and did not
consider another judicial nominee, we would compare favorably to how
Republicans have treated this President’s nominees, and we have
already improved upon how they treated President Clinton’s nominees.
If the White House and
the Senate Republicans were serious about filling vacancies and not
just seeking to score partisan political points, the President would
not make nominations opposed by home state Senators of both
parties. If they were serious about filling vacancies, Republicans
would not spend the rest of the Bush Presidency fighting over a
handful of controversial nominations rather than work with us to
make progress. If they were serious about filling vacancies,
Republicans on the Committee would attend important business
meetings and help us make a quorum to report these nominations to
the Senate.
I am surprised that
today the Ranking Member has suggested that judicial nominations
were “stymied” when I first became Chairman of the Judiciary
Committee under this President in 2001. Indeed, during those 17
months, the Senate confirmed 100 judicial nominations. That pace
was never duplicated under either of the Republican chairmen that
followed me. During the two years under Senator Specter’s
chairmanship, the Senate approved 54 confirmations.
I am surprised that the
Ranking Member is suggesting the Senate bypass the Committee’s
process for considering nominations, and is apparently calling for
an end to the role of home state Senators. When he was Chairman of
the Judiciary Committee, Senator Specter respected the
blue slip, which is the means by which home state Senators approve
or disapprove of a nomination before consideration of the nomination
proceeds. When he was Chairman, he proceeded with hearings on
nominations that were controversial and were subsequently
withdrawn. That took time away from those nominations on which we
might have been able to make progress together.
Requiring the support of home state Senators is a traditional
mechanism to encourage the White House to engage in meaningful
consultation with the Senate. Many of this President’s current
nominees do not have the support of the home state Senators. That
is why his nomination of Duncan Getchell was finally withdrawn.
That is why the nomination of Gene Pratter to the Third Circuit has
not been considered. That is also the current situation for both
nominees to the Third Circuit, the two current nominees to the Sixth
Circuit, a nominee to the Fourth Circuit and the nominee to the
First Circuit. Of the 11 circuit court nominations that have been
pending before the Senate this year, eight have not had the support
of home state senators. Indeed, more than half of the 28
nominations listed by
Senator Specter in his recent letter to me do not currently have
blue slips signaling support from home state Senators. He knows
that. That information is public.
This process was abused
when the Republican-controlled Senate pocket-filibustered President
Clinton’s nominees with anonymous holds and no public opposition.
One of my first acts when I became Chairman in 2001,
with a Democratic-led Senate considering President Bush’s nominees,
was to open up the nominations process for the first time, making
blue slips public for the first time. We have drawn open the
curtains on the process. Republicans, during the Clinton
administration, cloaked it in secrecy and, to this day, will not
explain their actions. I have not treated this President’s nominees
in that way. We have considered nominations openly and on the
record. We have considered nominations I do not support, something
that was never done by a Republican chairman.
Much of the problem remains with this President and his insistence
on nominating controversial nominees. I extended another olive
branch to him by my letter last November. I have received no
response.
I had consulted with the senior Senator from Pennsylvania and we had
earlier exchanged letters. He knows from my January 22 letter what
the situation is. As a former Chairman he knows. He knows the
history of the Thurmond Rule, by which Republicans, then in the
minority, insisted that judicial vacancies in the last year of a
President’s term remain vacant in order to be filled with the
nominations of the next President. He understands the dynamics in
the last year of a President’s term. And no modern President has
been as divisive as this President on these issues.
The Republican Chairman serving during the end of President
Clinton’s term noted many times that judicial confirmations slow in
a President’s last year. I do not intend to return more than 60
nominations to this White House without action, or return 17 circuit
court nominations without action. But much depends on the
cooperation of the President and Senate Republicans.
It is hard to consider
partisan complaints about the pace of judicial nominations when
those same voices criticize me for holding hearings on judicial
nominations. Damned if I do and damned if I don’t. Indeed, when I
went out of my way to hold a hearing for judicial nominations during
the last recess period, I was roundly criticized by Republicans. It
reminded me of the
time in 2001 when I previously chaired a recess
hearing for another circuit court nominee of this President and I
was criticized by a Republican Senator for proceeding
expeditiously. It only goes to prove the truth of the saying that
around here, when it comes to judicial nominations, no good deed
goes unpunished.
The record is that during the 1996 session, the last of President
Clinton’s first term, the Republican-led Senate confirmed not a
single circuit nomination. If we are able to proceed and confirm
just one circuit nominee this year, we will better that record.
Republicans returned 17 circuit nominations to President Clinton
without action at the end of his presidency. The treatment of
President Clinton’s nominees contrasted markedly with that accorded
by Democrats to the nominations of Presidents Reagan and Bush in the
Presidential election years of 1988 and 1992, when nine circuit
court nominees were confirmed on average. Regrettably, the
Republican Senate reversed that course in its treatment of President
Clinton’s circuit court nominations, confirming none during the 1996
session and an average of only four in presidential election years.
The Republican Senate chose to stall consideration of circuit
nominees and maintain vacancies during the Clinton administration.
In those years, Senator Hatch justified the slow progress by
pointing to the judicial vacancy rate. When the vacancy rate stood
at 7.2 percent, Senator Hatch declared that
“there is and has been no
judicial vacancy crisis” and that this was a “rather low percentage
of vacancies that shows the judiciary is not suffering from an
overwhelming number of vacancies.” Because of Republican inaction,
the vacancy rate continued to rise, reaching nearly 10 percent at
the end of President Clinton’s term, including 26 circuit
vacancies.
By contrast, we have helped cut circuit court vacancies across the
country in half, reducing the number to 13 in 2007. In fact,
circuit court vacancies reached a high water mark of 32 early in
President Bush’s first term, with a number of retirements by
Republican-appointed judges. Indeed, the current judicial vacancy
rate is around five percent. That is half of what it was at the end
of President Clinton’s term, and significantly lower than when
Senator Hatch described the vacancy rate as acceptably low. If we
applied Senator Hatch’s standard, we would have no more hearings or
consideration of any of the remaining nominations.
Because of the success of the Republicans at stacking the courts and
their success in preventing votes on nominees, the current situation
on the circuit courts is that more than 60 percent of active judges
were appointed by Republican presidents and more than 35 percent
were appointed by this President. If we did not act on another
nominee, Republican presidents’ influence over the circuit courts is
already out of balance.
I would rather see us
work with the President on the selection of nominees that the Senate
can proceed to confirm than waste precious time fighting about
controversial nominees. That is why I have urged the White House to
work with Senators Warner and Webb to send to the Senate without
delay nominees to the Virginia vacancies on the Fourth Circuit.
That is why I have urged the White House to work with all Senators
from states with vacancies on the Federal bench. We may still be
able to make progress, but only with the full cooperation of this
President, and Republican Members of this Senate.
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