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“JUDICIAL NOMINATIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S1460-S1462 on March 3, 2008.
The publication is reproduced in full below:
JUDICIAL NOMINATIONS
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 4 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 2 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, 8 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 5 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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