Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - May 09, 2007)

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Mr. CORNYN. Mr. President, we are into the fifth month of the 110th Congress. Even before this Congress convened in January, observers were predicting that judicial nominations would be one of the most contentious issues that we face. But I think by taking a forward-looking approach, the Senate managed to avoid an unnecessary confrontation. I think, by and large, we have started off on the right foot.

Earlier this year, the Washington Post and the Los Angeles Times both applauded the President for the difficult concessions he made in not choosing to renominate certain previous nominees who generated intense opposition. While I thought some of that opposition was mostly unfair and unwarranted, I respect the President's decision to extend an olive branch to the new Democratic majority in the Senate. Those two newspapers also encouraged the new Democratic majority to reciprocate with cooperation and fairness.

In that spirit of cooperation, Senate Republicans received assurances earlier this year from the Democratic majority of a fair and reasonable pace for the confirmation of nominees to the U.S. courts of appeals. I was pleased to hear the majority leader pledge his cooperation and leadership to help this Congress ``at least meet the standards of Congresses similarly situated as ours.'' We saw progress in the first couple of months of this year, with the confirmation of two circuit court nominees.

Today, the Senate will vote to confirm a Third Circuit judge. I welcome today's vote and hope it will be an indication of the majority's intent to keep working with us on the pace necessary to meet the historical average that the majority leader has endorsed.

Yesterday, the distinguished chairman of the Judiciary Committee commented on how he views this progress. I would like to briefly discuss the historical analogy he cited. First, I should note I am proud to continue to closely work on several significant pieces of legislation with the senior Senator from Vermont, Mr. Leahy. He and I have found common ground on, among other things, historic changes to the Freedom of Information Act and much needed reforms to the U.S. patent system. I look forward to working with the chairman to help make these important bills become law.

The chairman and I tend to part ways on some issues related to judges. I just want to take a moment to comment on the remarks he delivered yesterday on the pace of judicial confirmations. In particular, I am wondering why he chose the year 1996 as the appropriate measuring stick for progress on judges made by this Congress. Of course, there is one obvious parallel between 1996 and the present year, and that parallel is divided government.

In 1996, President Clinton, a Democrat, sat in the White House, and the Senate majority was held by Republicans. But I submit we ought to be in the business of comparing apples with apples. We must look at Congresses similarly situated to this Congress. Point in fact: Looking to ``similarly situated'' Congresses is the very comparison cited by the majority leader.

Mr. President, you will recall the majority leader's commitment to judicial nominations--in his own words--to ``at least meet the standards of Congresses similarly situated as ours.''

Mr. President, by any reasonable measure, the proper comparison--and the one the majority leader has apparently endorsed--is not with a single year but with an entire Congress; specifically, with a Congress the final 2 years of a Presidency and a Senate majority of the opposing party. In fact, we are fortunate to be able to look to historical parallels during the last three Presidencies, not just one.

The landscape we face in the 110th Congress was similarly faced by President Clinton in 1999 and 2000, during the 106th Congress. President Clinton worked with the Republican-controlled Senate during the final 2 years of his Presidency to confirm 15 circuit court judges.

In 1991 and 1992, the 102d Congress, President George Herbert Walker Bush worked with a Democrat-controlled Senate during the final 2 years of his Presidency. President Bush and the Democrat-controlled Senate confirmed 20 circuit court judges in 1991 and 1992.

Finally, in 1987 and 1988, President Reagan finished out his Presidency opposite a Democrat-controlled majority in the Senate. President Reagan and the Democrat-controlled Senate worked together to confirm 17 circuit court judges.

Again, I submit we have to compare apples to apples. When we do that, we see somewhere between 15 and 20 circuit court judges were confirmed during each of those final two years of our last three Presidents. That is the standard that is relevant to this discussion.

The facts are what they are. This Congress has confirmed two circuit court nominees. We will shortly confirm our third, and that is a good thing. But the fact is, we are not yet back on pace to reach the output of the last 2 years of the Clinton Presidency--when a 55-member Republican majority in the Senate confirmed 15 circuit court nominees.

There is no satisfactory reason I have heard as to why no circuit court nominees were confirmed in April, or even reported out of committee. The reasons that have been offered--the vacancy rate is not that bad, the President needs to nominate more circuit court judges, and President Clinton was treated worse--are all irrelevant to the majority leader's representations on the Senate floor that this Senate will ``at least'' hit the historical average.

I urge my colleagues on the other side of the aisle to work with us, as we must, and work with the President to get back on track. That is our constitutional duty.

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