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“JUDICIAL NOMINATIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S1729-S1732 on March 7, 2008.
The publication is reproduced in full below:
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, earlier this week the Senate confirmed Mark Filip to be the Deputy Attorney General at the Department of Justice. That is the person second in command at the Department. Yesterday, the Judiciary Committee reported four judicial nominations for lifetime judicial positions, and we reported three more executive nominations, including the nomination of Kevin O'Connor to be the Associate Attorney General. That is the third highest ranking official at the Department of Justice.
These executive branch nominations would have been on the Senate's Executive Calendar sometime ago, but for some reason the Senate Republicans did not cooperate to get them out of Committee. We were going to put them on the Senate Judiciary Committee's calendar--and did--in mid-February. What happened? The Republicans effectively boycotted the meeting.
Now, some of them were out giving speeches saying: Why don't we have some of these nominations go through? But they were effectively blocking the meeting. So we tried it a second time in February. Again, a lack of a quorum. In fact, at the first, only one or two Republicans remained present. At the latter hearing, the ranking member, the senior Republican on the committee, left before a quorum gathered.
We concluded the last session of this Congress by confirming each and every judicial nomination that was reported by the Judiciary Committee, all 40. None were carried over into this new year. In February, the Judiciary Committee held two hearings for seven judicial nominees, including a circuit nominee. Despite my efforts, Republican members of the Judiciary Committee effectively boycotted our business meetings last month and obstructed our ability to report judicial nominations and high-ranking Justice Department nominations.
It is more than ironic--in fact, it is somewhat cynical--that the President and Senate Republicans simultaneously staged partisan media events and complained that the Senate Democrats are not moving their nominations forward when the Republicans themselves prevented the Judiciary Committee from moving them forward. These complaints ring as hollow as the complaints that we heard again this morning about the expiration of the so-called Protect America Act, which expired because the White House and congressional Republicans refused to extend it. We found out why they refused to extend it, which is because they wanted to blame their actions on Democrats. I know it is an election year, but this kind of cynicism does not help the United States, and it is one of the reasons so many Americans are upset with the whole political process and why I believe the President is at such a low rating in the political polls.
Their actions in blocking us from doing something and then asking why didn't we do it remind me of the old saw that we former prosecutors used to talk about all the time, about the youngster who murdered his parents but then said to the court: Have mercy on me, I am an orphan. You can't have it both ways.
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. At that time, the committee considered 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 moved forward with that previously scheduled hearing. Instead of receiving thanks for making the effort to hold a confirmation hearing during the recess, I have actually been criticized by Republicans for doing so.
I commend the ranking member of the Judiciary Committee for acknowledging the years of Republican pocket filibusters, when they pocket-filibustered more than 60 of President Clinton's judicial nominations, as excess. Yes, I would agree it is excess. It had never been done by any party, Republican or Democratic, before. I have long said that what would help the process is a sincere, full acknowledgment by those Republican Senators who worked so hard to obstruct and pocket-
filibuster President Clinton's moderate and well-qualified judicial nominees of their excesses and mistakes. Hope springs eternal, and it will probably be an eternity before that acknowledgment will be made by the same people who created the problem and now complain about it.
I do not hold the senior Senator from Pennsylvania responsible for those activities. He wasn't chairing the committee. He was not a member of the Republican leadership or even one of the more active participants in that effort. In fact, except for his vote to defeat the nomination of Justice Ronnie White of Missouri, a highly qualified African American for the Federal judiciary, an action for which he subsequently apologized, I cannot think of another judicial nominee he opposed.
As chairman of the Judiciary Committee, I have worked hard to turn the other cheek. When I became chairman, I wanted to greatly improve on the sorry treatment of reported nominees when the Republicans were in control and considering President Clinton's nominees. During the 17 months I was chairman during President Bush's first term I tried to reverse that trend. I said we are not going to pocket-filibuster 60 judges in the way that the Republicans did to President Clinton. Let's move these judges, even though a lot of the vacancies were created by their filibustering.
So we Democrats acted faster and more favorably on more of this President's judicial nominees than under either of the Republican chairmen who succeeded me as chairman. During those brief 17 months I was chairman before, the Senate confirmed 100 judicial nominations. During the 2 years my friend from Pennsylvania was Chairman, the Republicans confirmed just 54 judicial nominations. Granted, two were Supreme Court justices, but 54 in 2 years, and with strong help from the Democrats, as compared to 100 during the 17 months I was chairman.
I was surprised earlier this week to hear the ranking member say that nominations were ``stymied'' when I became chairman. Complaints ring hollow under those circumstances, given the improvements I made in making the formerly secret process of checking the home State Senators as a matter of public record. Keep in mind that under the Republicans they allowed secret holds. That is how they were able to block more than 60 of President Clinton's nominations. Instead of the holds or blue slips, I made them public.
When I assumed the chairmanship last year, the committee and the Senate continued to make progress with the confirmation of 40 more lifetime appointments to our Federal courts. That is more than were confirmed during any of the 3 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. Thus, as chairman, I have worked to help the Senate act to confirm 140 lifetime appointments in only 3 years, as compared to 158 under 4 years of Republican control. Stymied?
Equally misleading is a Republican talking point that the Judiciary Committee didn't hold a hearing for circuit nominations for 5 months. What they do not say is that as a result of the mass resignations at the Justice Department in the wake of the scandals of the Gonzales era, including the resignation of the Attorney General himself following those scandals, the committee was holding seven hearings on high-
ranking replacements to restock and restore the leadership of the Department of Justice between September of last year and last month, including confirmation hearings for a new Attorney General to replace the disgraced Attorney General who was forced out, a new deputy Attorney General, a new associate Attorney General, and many others.
Because of the scandal of the Bush-Cheney administration and the Justice Department, there are all these vacancies. Of course, when they finally got around to replacing these people, we felt the first priority was to hold hearings so there would be an Attorney General and senior leadership at the Department of Justice. Of course those 5 months also include the December and holiday recesses and the break between sessions, so for many weeks we were not here. That is in comparison to the first 6 months of 1999, when the Republican chairman refused to schedule any judicial nomination hearings, in order to force the White House to consider his pick for a judgeship in Utah.
The Republican whip urged committee attention to the President's nominations to fill the many vacancies resulting from the resignations of the Gonzales leadership group at the Justice Department. And when we do, in fact, have those hearings and do that work and we make them a priority, we are criticized. It appears we are damned if we do and damned if we don't.
We held a prompt 2-day hearing on the nomination of Michael Mukasey to be Attorney General, a hearing on the nomination of Judge Filip to be Deputy Attorney General, a hearing on the nomination of Kevin O'Connor to be Associate Attorney General, and hearings on a number of key assistant attorneys general and heads of Justice Department offices. But you would never know it from the self-serving Republican complaints. We get no credit for any of the good things we have done, for any of our diligence or hard work.
When the Republican leader and others come to the floor and make these accusations, I think it is because they don't want to have to explain their roles in the 60 pocket filibusters of President Clinton's nominees. One of those people who was blocked and who they say was not qualified was picked as the dean of the Harvard Law School, a most prestigious position, where they produce hundreds of the brightest lawyers in the country. They picked her, a highly qualified woman, and African-Americans, and Hispanics, who were all pocket filibustered by the Republicans. Maybe they hope that in an election year people will not remind them of that. During the 1996 session, the last of President Clinton's first term, the Republican-led Senate did not confirm a single circuit court nomination. At the end of his Presidency, they took 17 circuit court nominations that they pocket filibustered and refused to act on them and sent them back to President Clinton, hoping to keep those seats vacant for a Republican President. Why was it that Republicans chose to reverse course on the treatment accorded by Democrats to nominations of Presidents Reagan and Bush in the Presidential election years of 1988 and 1992? Why were so many nominations pocket filibustered? Who is responsible? Why have they always refused to make the blue slips of that era public? Why have they always hidden who it was holding up these judges? Why did they want to keep that secret? Why was Bonnie Campbell, the former attorney general of Iowa, who was supported by both Democratic Senator Tom Harkin and Republican Senator Chuck Grassley, never allowed to be considered by the Judiciary Committee or the Senate after a hearing? Why was she pocket filibustered? They ought to answer some of these questions before they level any accusations. They have far too many skeletons in their closet to try to pick a bone with the Democratic side.
To any objective observer, the answer is clear: The Republicans chose to stall consideration of circuit nominees and maintain vacancies during the Clinton administration in anticipation of a Republican Presidency. They took the Thurmond rule to a whole new stage by utilizing it over a 5-year period, instead of the seven or eight months that normally takes place during a Presidential election year. Because of their irresponsible actions, vacancies in the courts rose to over a hundred. Circuit court vacancies doubled during the Clinton years because Republicans would not allow him to fill those vacancies.
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. The number of circuit court vacancies rose to 32 with retirements of Republican appointed circuit judges immediately after President Bush took office.
But as soon as a Republican President was elected, they said: Why don't we have judges in these vacancies? The sky is falling, the sky is falling. Suddenly they said that things are coming to a halt in this country because we do not have enough judges. Of course they do not mention that these vacancies occurred because they pocket filibustered those judges. They have been extraordinarily successful over the past dozen years. Currently, more than 60 percent of active judges on the Federal circuit courts were appointed by Republican Presidents. More than 35 percent have been appointed by this President. We have cut the vacancy rate in half. Had we Democrats done to them what they did to us, we would still have a huge vacancy rate. But we try to be more responsible, and we cut it in half. Another way to look at their success is to observe that the Senate has already confirmed three-
quarters of this President's circuit court nominees over the last 7 years. Republicans only confirmed about half of President Clinton's.
Despite these efforts to pack the Federal courts and tilt them sharply to the right, one of my first acts when I took over as chairman in 2001 was to restore openness and accountability to the nominations process that had been abused when the Republican-controlled Senate pocket-filibustered President Clinton's nominees with anonymous holds and without public opposition or explanation. In 2001, with a Democratic-led Senate considering President Bush's nominees, we drew open the curtains on the nominations process, making blue slips public for the first time. Republicans, during the Clinton administration, cloaked their actions 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.
I am puzzled that in his recent proposals, the ranking member has suggested that the Senate bypass the committee's process for vetting nomination, and is also apparently calling for an end to the role of home State Senators. He is now proposing rules for nominations that he did not follow in the 2 years he served as chairman of the committee, from 2005 to 2006, and that he did not propose from 1995 to 2000 when Republicans were in control of the consideration of President Clinton's nominees.
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. 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 the President's current nominees do not have the support of their home State Senators. That is why the nomination of Duncan Getchell, opposed by two of the most distinguished Senators in this Chamber, Republican Senator John Warner and the distinguished Democratic Senator Jim Webb, was finally withdrawn. That is why the nomination of Gene Pratter to the third circuit has not been considered, as well as six other circuit nominees including 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, 8 have not had the support of their home State Senators. Indeed, nearly 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. The reason we know this is that unlike the Republican policy of keeping secret the so-called blue slips, I make them public knowledge.
You might ask why do we pay attention to home State Senators? It is because we are elected to represent our States. There is only one place in the United States where every State is equal, and that is here in the Senate. Out of 300 million Americans, only 100 of us have the privilege to serve here at any given time, two from every State. The distinguished Presiding Officer represents a great State, a wonderful State, a State that helped form this country. It is much larger than mine. My State was the 14th State in the Union. We have two Senators so that we can keep the identity of our State. I think of one of President Bush's circuit nominees for a circuit court judgeship representing one of our States, where the two Senators objected and so the nomination did not go through. To this day, I get criticized by the Republicans because that nomination did not go through, even after the nominee was charged with criminal fraud and convicted. They still criticized us for not giving him a lifetime position on the circuit court. They ought to say thank you to the two Senators who said do not put that nomination through.
Republican complaints about nominations ring hollow in light of the actual progress we have made and, quite frankly, their success. 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. The Senate has confirmed over 86 percent of President Bush's judicial nominations, compared to less than 75 percent for President Clinton's nominations. As I have noted, the Senate has confirmed nearly three quarters of President Bush's nominations to influential circuit courts, compared to just over half of President Clinton's.
Earlier this week on the Senate floor, in a standard ploy in these partisan attacks, my words from 8 years ago were taken out of context. At that time, I urged the Republican majority to abandon its use of pocket filibusters. I urged them to make public their process and not keep it secret, and do what we have done since I was first Chairman. I even urged then-Governor Bush, who was the Republican nominee for President, to intervene in a positive way. They rejected my efforts. They continued to pocket filibuster nominees and maintain vacancies on the court. They continued to do what they had done during the 1980 Presidential campaign, when President Reagan was running for President and Senator Thurmond, then in the Republican minority as ranking member of the Judiciary Committee, instituted a policy to stall President Carter's nominations. That policy, known as the ``Thurmond Rule'', was put in when the Republicans were in the minority. It is a rule that we still follow, and it will take effect very soon here.
For a number of years I have urged now President Bush to join with Democrats and Republicans. Regrettably he continues to insist on nominating controversial nominees in the mold of Duncan Getchell and Claude Allen. I extended another olive branch to him by my letter last November. I have received no response. Despite urging the President to work with us, 20 current judicial vacancies almost half have no nominee. In addition, many of the judicial nominations we have received do not have the support of their home State Senators.
If the White House and Senate Republicans were serious about filling vacancies and not seeking to score partisan political points, the President would not make nominations that are opposed by home State Senators. If they were serious about filling vacancies, they would not spend the rest of the Bush Presidency fighting over a handful of controversial nominations, rather than working with us to make progress. They would not keep criticizing us for not putting through a person who was convicted of criminal fraud. If they were serious about filling vacancies, the Republicans on the committee would attend committee meetings and help make a quorum to report nominations to the Senate.
I have consulted with the senior Senator from Pennsylvania and we had earlier exchanged letters. The former chairman knows from my January 22 letter what the situation is. 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.
This is the Senate. This is not Alice in Wonderland. I would rather see us work with the President on his 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.
Mr. President, you have had enormous experience in your own State. I ask this of all Senators: If you have a highly respected Republican Senator and a highly respected Democratic Senator both saying we want this person to be on a Federal circuit court, and they both vouch for him or her, you know that person is going to go sailing through this place.
I thank the Republican members of the Judiciary Committee this week for not boycotting our meeting. As a result, we have seven nominations on the Executive Calendar who would not be there if they continued the boycott.
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 before the Thurmond rule comes into effect but only with the full cooperation of this President and of the Republican Members of this Senate.
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