Statement of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
March 7, 2008

Earlier this week the Senate confirmed Mark Filip to be the Deputy Attorney General at the Department of Justice, which is the person second in command.  Yesterday, the Judiciary Committee reported four judicial nominations and three more executive nominations, including the nomination of Kevin O’Connor to be the Associate Attorney General, the third highest ranking official at the Department.  These executive branch nominations would have been on the Senate’s Executive Calendar sooner – as early as a month ago – but for the refusal of Republicans to cooperate.  I had to recess both our scheduled February 14 and February 28 meetings for lack of a quorum.  At the first only one Republican remained present and at the latter the Ranking Member 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 that the President and Senate Republicans simultaneously stage partisan media events and complain that Senate Democrats are not moving nominations when it is they who have prevented action by the Judiciary Committee.  These complaints ring as hollow as those about the expiration of the so-called Protect America Act, which expired because the White House and congressional Republicans refused to extend it.  I am reminded of the old saw about the youngster who murders his parents and then asks for mercy because he is an orphan. 

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 Committee for acknowledging the years of Republican pocket filibusters of more than 60 of President Clinton’s judicial nominations as excess.  I have long said that what would help the process is a sincere and full acknowledgement by those Republican Senators who obstructed President Clinton’s moderate and well qualified judicial nominees of their excesses and mistakes.  That has yet to occur.  I do not hold the senior Senator from Pennsylvania responsible for those activities.  He was not chairing the Committee or 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 Ronnie White of Missouri, 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 and greatly improve on the sorry treatment accorded nominees when Republicans controlled consideration of President Clinton’s nominees.  During the 17 months I was Chairman during President Bush’ first term, we acted faster and more favorably on more of this President’s judicial nominees than under either of the Republican Chairmen who succeeded me.  During those 17 months, the Senate confirmed 100 judicial nominations.  In fact, during the 2-year chairmanship of my friend from Pennsylvania, the Senate confirmed just 54 judicial nominations.  Given the facts, and the improvements I made in making the formerly secret process of checking with home state Senators a matter of public record, I was surprised earlier this week to hear the Ranking Member say that nominations were “stymied” when I became Chairman. 

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 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.  Thus, as Chairman, I have worked to help the Senate act to confirm 140 lifetime appointments in only three years, as compared to 158 under four years of Republican control.  Stymied?

Equally misleading is the Republican talking point that the Judiciary Committee did not hold a hearing for a circuit nomination 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, the Committee was holding 7 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 the new Attorney General, the new Deputy Attorney General, the new Associate Attorney General, and so many others.  Of course those 5 months also include the December and January holiday period and break between sessions.  There is no comparison to the first 6 months in 1999 with a Republican Chairman refused to schedule any judicial nominations hearings in order to force the White House to nominate his pick to a judgeship in Utah. 

The Republican whip has 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.  When we, in fact, have the hearings and do that work and make them a priority we are criticized.  Again, damned if you do and damned if you 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. 

I wonder, when the Republican Leader and others, who come to the floor with accusations about nominations, will explain their roles during the Clinton years.  Why was it that during the 1996 session, the last of President Clinton’s first term, the Republican-led Senate did not confirm a single circuit nomination?  Why was it that Republicans returned 17 circuit nominations to President Clinton without action at the end of his presidency?  Why was it that the Republicans chose to reverse course on the treatment accorded by Democrats to the nominations of Presidents Reagan and Bush in the Presidential election years of 1988 and 1992? Why were so many nominations were pocket filibustered?  Who was responsible? When will their blue slips from that era be made public?  Why was Bonnie Campbell, the former Attorney General of Iowa, who was supported by both Senator Harkin and Senator Grassley, never allowed to be considered by the Judiciary Committee or the Senate after her hearing?  They have many questions to answer before they level accusations of any kind.     

To any objective observer, the answer is clear.  The Republican Senate 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 at least a 5-year period.  Vacancies rose to over 100.  Circuit vacancies doubled during the Clinton years.

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.  

Then, as soon as a Republican President was elected they sought to turn the tables and take full advantage of the vacancies they prevented from being filled during the Clinton presidency.  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 and more than 35 percent have been appointed by this President.  We have cut the vacancy rate 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, compared to only 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 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 two 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 this President’s current nominees do not have the support of the home state Senators.  That is why his nomination of Duncan Getchell, opposed by both Senator Warner and Senator 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 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, 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.   That is public knowledge. 

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 eight years ago were taken out of context.  I was urging the Republican majority to abandon its pocket filibusters.  I even urged then-Governor Bush, 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 courts. They continued to do what they had done during the 1980 Presidential campaign, when Ronald Reagan was running for President and Senator Thurmond, then Ranking Member on the Judiciary Committee, instituted a policy to stall President Carter’s nominations.  That policy is known as the “Thurmond Rule.”

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 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.  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 business 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. 

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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