Statement Of Senator
Patrick Leahy,
Chairman, Senate
Judiciary Committee,
Hearing On Nominations
September 9, 2008
Despite Republican filibusters and their refusal
to give consent to proceed even on important bills with broad
bipartisan support, I have, nonetheless, again gone the extra mile
by proceeding with yet another confirmation hearing for the
President’s nominees.
This hearing includes the President’s nominee to
be Solicitor General, which will bring to near completion our work
at expediting consideration of replacements for the entire
leadership of the Justice Department that resigned in the wake of
the scandals of the Gonzales era.
This hearing also includes five additional
judicial nominations, which, if confirmed, are lifetime
appointments. Their tenure will not expire when President Bush
leaves office in five months. This is extremely late in a
presidential election year for such a hearing and serves as an
exception under the Thurmond Rule. That rule dates back to
1980, when Republican Senator Strom Thurmond was the Ranking
Minority Member of this Committee, and called for shutting down the
judicial confirmation process. At the time, there was a
Democratic President and Senator Thurmond wanted to wait until the
next President, a Republican, was elected and had the opportunity to
send his nominations to the Senate. Republicans used the
Thurmond Rule in another recent presidential election year, 1996,
when the Republican Senate majority did not confirm a single judge
after the August recess and, in fact, refused to confirm any circuit
court nominees during the entire 1996 session.
This Congress has already confirmed more judges
than were confirmed during the entire 109th Congress,
when a Republican Senate majority and Republican chairman of this
Committee did not have to worry about the Thurmond Rule and an
abbreviated session due to a presidential election. Indeed, in
the 37 months I have served as Judiciary chairman, the Senate has
already confirmed 158 of President Bush’s judicial nominees.
That is the same number of President Bush’s nominees confirmed by
the Senate Republican majority in the more than four years it
controlled the pace of confirmations for this Republican
administration.
I have long said that by this stage of the year I
will be working with the Majority Leader, as well as our Republican
counterparts, in order to be able to proceed. At this
juncture, during a presidential election year, progress on judicial
nominees requires consensus and the cooperation of all Senators.
Today the Committee is
poised to hear from five more nominees for lifetime appointments to
the Federal bench: Clark Waddoups of Utah,
Michael Anello of California, Mary Stenson Scriven of
Florida, and two nominees from
Colorado, Christine Arguello and Phillip A.
Brimmer. All of these nominees have the support of their home
state Senators, Republicans and Democrats. I was happy to
accommodate Senator Salazar’s request that we add two Colorado nominees to the
hearing today, after he and Senator Allard reached an agreement.
Yesterday, Senator Allard finally returned the blue slip for Ms.
Arguello. Of course, Ms. Arguello was nominated by President
Clinton to the 10th Circuit, but a Republican pocket
filibuster in 2000 stalled her nomination. Today, we are
attempting to right another wrong from the Republican abuses of
those years. Ms. Arguello, like Judge Helene White, who was
confirmed to the 6th Circuit earlier this year, has now
been nominated by Presidents of both parties. I am
hopeful that we can complete the consideration of her nomination
promptly. If Committee consideration of today’s nominees is
expedited, if the nominations are not held over, but can be reported
promptly to the Senate, and if there are no delays in their floor
consideration, then they can be confirmed before we recess later
this month.
By hearing from the President’s nominee to be
Solicitor General, Greg Garre, we continue with the extensive time
and attention we have devoted to rebuilding the Department of
Justice. This is the ninth hearing we have held to restock and
restore the leadership of the Department of Justice in the last year
alone, including confirmation hearings for the new Attorney General,
the new Deputy Attorney General, the new Associate Attorney General,
and so many others.
At the beginning of this Congress, the Judiciary
Committee began its oversight efforts. Over the next nine
months, our efforts revealed a Department of Justice gone awry.
The leadership crisis came more and more into view as I led a
bipartisan group of concerned Senators to consider the United States
Attorney firing scandal, a confrontation over the legality of the
administration’s warrantless wiretapping program, the untoward
political influence of the White House at the Department of Justice,
and the secret legal memos excusing all manner of excess and
subverting the rule of law.
What our efforts exposed was a crisis of leadership that took a
heavy toll on the tradition of independence that has long guided the
Justice Department and provided it with safe harbor from political
interference. It shook the confidence of the American people.
Through bipartisan efforts among those from both sides of the aisle
who care about federal law enforcement and the Department of
Justice, we joined together to press for accountability. That
resulted in a change in leadership at the Department, with the
resignations of the Attorney General and virtually all of its
highest-ranking officials.
The two reports we have received so far from the Department’s
Inspector General and Office of Professional Responsibility have
confirmed what our oversight efforts in this Congress have uncovered
about the politicization of hiring practices at the Department.
It confirms our findings and our fears that the same senior
Department officials involved with the firing of United States
Attorneys were injecting improper political motives into the process
of hiring attorneys for career positions throughout the Department,
from career prosecutors, to immigration judges, to young attorneys
through the Department’s prestigious honors program. I suspect
the further reports we expect from the Inspector General will
continue to shed light on the extent to which the Bush
administration has allowed politics to affect – and infect – the
Department’s priorities, from law enforcement to the operation of
the crucial Civil Rights Division.
I hope that Mr. Garre shares my view that it is vital to ensure that
we have a functioning, independent Justice Department, and that we
ensure that this sad era in the history of the Department is not
repeated. We have seen what happens when the rule of law plays
second fiddle to a President’s agenda and the partisan desires of
political operatives. It is a disaster for the American
people. Both the President and the nation are best served by a
Justice Department that provides sound advice and takes responsible
action, without regard to political considerations — not one that
develops legalistic loopholes and ideological litmus tests to serve
the partisan ends of a particular administration.
I am holding these
proceedings in spite of the legislative obstructionism from
Republicans. The Judiciary Committee has worked throughout
this Congress to advance the priorities of Americans. We have
reported legislation to support local law enforcement to make our
cities and towns safe from crime, which is on the rise after
consistent declines in the 1990s. These legislative efforts
include the COPS Improvements Act, S.368, and my bill to extend the
Bulletproof Vest Partnership Grant Act, S.2511. We have
reported legislation to combat fraud and corruption, like the War
Profiteering Prevention Act, S.119, and the Public Corruption
Prosecution Improvements Act, S.1946. We have reported
legislation to protect the civil rights and voting rights of
Americans, like the Emmett Till Unsolved Civil Rights Crime Act,
S.535, and Senator Obama’s Deceptive Practices and Voter
Intimidation Prevention Act of 2007, S.453. We have reported
legislation to protect Americans’ data privacy, like my Personal
Data Privacy and Security Act, S.495. We have reported
measures to provide the Federal judiciary with increased resources
both in terms of salary restoration and additional judgeships,
S.1638 and S.2774. We have reported intellectual property
measures like the Shawn Bentley Orphan Works Act, S.2913. And,
of course, we have reported the bill to confront the OPEC cartel,
NOPEC, S.879. I have also been seeking for months to find a
way to extend the EB-5 investor visa pilot program that brings
benefits not only to Vermont but to
Pennsylvania
and Iowa,
and elsewhere. Authority for this worthwhile program that leads to
investments here in the
United States
expires in September. My efforts to clear H.R. 5569, a bill to
extend the program for five years, have been stymied by Republicans
who insist on using this bill as a vehicle for other
immigration-related matters. They have ensnarled it in a
series of competing concerns. I look forward to a time when
Republicans work with us on these matters instead of obstructing us
at every turn.
Legislation with broad
bipartisan support that I have managed to move through the Judiciary
Committee has then been stalled on the Senate floor by the
obstruction of a few Republicans. Of the bills that have been
reported from the Judiciary Committee this Congress, Republicans
have blocked legislation to support runaway and homeless young
people, S.2982; to help law enforcement cope with mentally-ill
offenders, S.2304; to support the investigation and prosecution of
Civil Rights Era murders left unsolved for too long, S.535; and to
protect our children from the scourges of drugs, child pornography,
and child exploitation, such as S.1210, S.1738 and S.2344. I
joined the Majority Leader in introducing a measure that combined
some of these Committee-approved and House-passed bipartisan
measures into one bill, S.3297. These should have been consent
items and already been considered and passed by the Senate. Instead,
they fell victim to another Republican filibuster.
Republicans have become
masters of obstruction, boycotting business meetings of the
Judiciary Committee and cutting short important hearings, including
a hearing at which two courageous women from
Pennsylvania
testified about severe injuries they suffered to help us understand
the plight of hardworking Americans whose legitimate grievances have
been rejected by a pro-business Supreme Court. Sadly, we have
seen Republican obstructionism since the beginning of this Congress,
with Republicans using filibuster after filibuster to thwart the
will of the majority of the Senate from doing the business of the
American people.
Republican filibusters
prevented Senate majorities from passing the Lilly Ledbetter Fair
Pay Act; the climate change bill; the Employee Free Choice Act; the
DC Voting Rights Act; the Renewable Fuels, Consumer Protection, and
Energy Efficiency Act of 2007; the Renewable Energy and Job Creation
Act of 2008; the Medicare Improvements for Patients and Providers
Act of 2008; the Consumer-First Energy Act and the Advancing
America’s Priorities Act. These are critical pieces of
legislation to address urgent priorities like ensuring equal pay for
equal work for women and fare wages for all working Americans, the
energy crisis, the environment, voting rights, health care and law
enforcement needs. All of them had the support of the majority
of the Senate. And all were blocked by a minority of
Republican Senators bent on preventing us from making progress.
Republicans have now filibustered more than 80 pieces of legislation
in this Congress and are heading for 100 before we adjourn.
Imagine what we could have accomplished in this Congress with
cooperation rather than obstruction.
This long list of
priorities unaddressed because of the Republicans in Congress would
be even longer if we were to include the many important bills
President Bush has vetoed since the beginning of this Congress.
This list includes legislation to fund stem cell research to fight
debilitating and deadly diseases, to extend and expand the
successful State Children's Health Insurance Program that would have
provided health insurance to more of the millions of American
children without it, to set a timetable for bringing American troops
home from the disastrous war in Iraq, and to ban waterboarding and
help restore America as a beacon for the rule of law.
I have always said that
we would treat this President’s nominees more fairly than
Republicans treated President Clinton’s. Despite their legislative
obstruction, we have. Indeed, we have matched the confirmation
record that Republicans achieved for a President from their own
party. We have not pocket filibustered more than 60 of this
President’s nominees. We are not going to return 17 circuit
court nominees without action to this President as the
Republican-led Senate did to President Clinton. We have not
doubled the judicial vacancies and forced them above 100 nationwide,
nor have we doubled the number of circuit court vacancies. To
the contrary, we have cut judicial vacancies by more than half, and
reduced circuit court vacancies by more than two-thirds from a high point of 32, to a low
of single digits throughout all 13 Federal circuits.
The 100 nominations we
confirmed in only 17 months in 2001 and 2002, while working with a
most uncooperative White House, reduced the vacancies by 45 percent
by the end of 2002. With 40 additional confirmations last
year, and another 18 already this year, we have already exceeded the
total confirmations for the last Congress, which was under
Republican majority control. Nearly half of the judicial nominees
the Senate has confirmed while I have served as the Chairman of the
Judiciary Committee have filled vacancies classified by the
Administrative Office of the Courts as judicial emergency vacancies.
Eighteen of the 27 circuit court nominees confirmed while I have
chaired the Committee filled judicial emergency vacancies, including
nine of the 10 circuit court nominees confirmed this Congress.
This is another aspect of the problem created by Republicans that we
have worked hard to improve. When President Bush took office
there were 28 judicial emergency vacancies. Those have been
reduced by more than half.
We have reduced Federal
judicial vacancies from the 10 percent level they hit after
Republican pocket filibusters of President Clinton’s nominees, to
less than half that number. With respect to the circuit
courts, we have done even better. We have moved from the 32
circuit court vacancies that arose from years of Republican pocket
filibusters of President Clinton’s moderate and qualified nominees
and more than doubled the circuit court vacancies nationwide to less
than 10 earlier this summer. Thus, we have reduced circuit
court vacancies by more than two thirds.
Partisan Republican
critics ignore the progress we have made on judicial vacancies. They
also ignore the crisis that they had created by not considering
circuit nominees in 1996, 1997 and 1998. They ignore the fact
that they refused to confirm a single circuit nominee during the
entire 1996 session. They ignore the fact that they returned
17 circuit court nominees without action to the White House in 2000.
They ignore the public criticism of Chief Justice Rehnquist to their
actions during those years. They ignore the fact that they
were responsible for more than doubling circuit court vacancies
during their pocket filibusters of moderate and qualified
Clinton
nominees or that we have reduced those circuit court vacancies by
more than two thirds.
I have yet to hear
praise from a single Republican for our work in lowering vacancies.
I also have yet to hear in the Republican talking points any
explanation for their actions during the congressional session in
the 1996 presidential election year, when the Republican Senate
majority refused to allow the Senate to confirm even one circuit
court judge. I have yet to hear explanations for why they did
not proceed with the nominations
of Bonnie Campbell,
Allen Snyder and so many others.
There are currently 10 judicial vacancies without
a nominee, even though the White House has in the last weeks rushed
forward with a number of new nominations on which the paperwork has
yet even to be completed. Eleven judicial nominations had yet
to be reviewed by the ABA when we noticed the hearing on September 2nd.
Currently eighteen do not have blue slips or support from both their
home state Senators. No nominations received after June 6 were
confirmed when the Republicans were in charge in 1996.
Following that standard would eliminate 18 recent nominees, more
than half of all those pending. Instead, working with Senators
from both parties we are proceeding today with the nomination of
Mary Stenson Scriven of Florida.
The reduction in
judicial vacancies is one of the few areas in which conditions have
actually improved over the last couple of year. I wish we
could say the same about unemployment, the cost of gasoline, food
prices, health care costs, inflation, the credit crisis, home
mortgages and the national debt, but all those indicators have been
moving in the wrong direction, as is consumer confidence and the
percentage of Americans who see the country as on the wrong track.
Just last week
unemployment was reported at 6.1 percent. It is much higher in some
communities. Americans have suffered through job losses every
month this year and they now exceed 600,000. The day-to-day
lives of hardworking Americans have only become more difficult
during the last several years. The Treasury Secretary has been quite
sobering about the financial difficulties still ahead. Thousands of
Americans are in danger of losing their homes after falling behind
on mortgage payments. Inflation is now on the rise, jobs are
being lost, gas and food prices have skyrocketed, health care and
college are less affordable, the American dream of owning a home is
under assault -- and yet we can expect Republicans to pick a
partisan fight about judicial confirmations, an area in which we
have done better than they have, even with this Republican
President, and where we have taken great strides to fix the system
they broke.
Hardworking Americans
trying to do the best they can for their families are more concerned
about critical issues they face in their lives each day. They
are concerned about affording to heat their homes this winter.
They are concerned about gas prices that have skyrocketed so high
they do not know how they will afford to drive to work. They
are concerned about the steepest decline in home values in two
decades. Americans are worried about soaring health care
costs, rising health insurance costs, the rising costs of education
and rising food prices. The partisan, election-year rhetoric
over judicial nominations, at a time when judicial vacancies have
been significantly reduced, is a reflection of misplaced Republican
priorities.
I look forward to
hearing from the nominees today. The Federal judiciary is the
one arm of our government that should never be political or
politicized, regardless of who sits in the White House. I will
continue in this Congress, and with a new President in the next
Congress, to work with Senators from both sides of the aisle to
ensure that the Federal judiciary remains independent, and able to
provide justice to all Americans, without fear or favor.
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