Judicial Confirmation Process

Floor Speech

JUDICIAL CONFIRMATION PROCESS -- (Senate - March 03, 2008)

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Mr. McCONNELL. Mr. President, I wish to commend the ranking member of the Judiciary Committee for his comments, which I first watched from my office and then came to the floor.

I can recall, and I believe the Senator from Pennsylvania mentioned this, the Berzon and Paez nominations at the end of the Clinton administration, where there was a lot of discontent on the Republican side of the aisle--strong feeling that these nominees were ideologically unacceptable. I remember then-majority leader in the Senate, Senator Lott, saying: We don't want to set the precedent that the ideological leanings of these nominees will deny them an up-or-down vote.

I, similar to Senator Specter and Senator Lott, voted for cloture on those nominations, not to kill them but to move them forward. It was a very important decision on the part of then-Majority Leader Lott to prevent, to the maximum extent possible, the kind of meltdown that seems to have occurred in this Congress to which Senator Specter was referring.

At the beginning of this Congress, the majority leader, Senator Reid, and I discussed the need for the Senate to have a fair, less-contentious confirmation process. To his credit, I think that is his view and his goal. We have made some progress on circuit court nominations last year. We didn't match President Clinton's number from the first session of his last Congress, but we came close. Now, we had one notable bump along the way and Senator Specter referred to that and that was the nomination of Judge Leslie Southwick. But we were able to get him through, thanks to, as Senator Specter pointed out, the courageous decision on the part of particularly one Senator on the other side. It was good for the institution that we did that.

Unfortunately, the prospect of turning the page on judicial nominations, a goal which I think all but the hardiest partisans share, has taken a wrong turn. Despite the best efforts of Senator Specter and others, progress has all but ground to a halt. There have been no--I repeat, no--judicial confirmations so far this year--not one. There has been only one hearing on a circuit court nominee since September of last year.

Let me say that again. So far this year, the second session of the 110th Congress, not a single judicial confirmation--not one. With regard to circuit court nominees, only one hearing since September of last year.

It is puzzling why progress has almost totally stopped. Some like to blame the President, but as the ranking member, Senator Specter, has noted, there are several circuit court nominees who have been pending for hundreds of days who have yet to receive a simple hearing--a hearing--let alone a committee or floor vote. In addition, many of these nominees satisfy most or all the chairman's specific criteria for prompt consideration. They have strong home State support--check the box on that--they fill judicial emergencies, and they have good or outstanding ABA ratings.

All these nominees Senator Specter referred to meet all those criteria. So it is puzzling why it is taking so long to move them. I hope the committee is not slow-walking these nominees based upon decade-old grievances, both real and imagined. That might be emotionally satisfying, but it will set a precedent that will serve us ill, regardless of who is in the White House and which party controls the Senate next year.

So I would hope our Democratic colleagues resist the desire by some to drag us into the judicial confirmation brinkmanship and establish a precedent they will regret. I hope they will treat these nominees fairly, before it is too late.

Again, I wish to particularly commend Senator Specter, our Republican leader on the Judiciary Committee, for pointing this out. He has excellent credentials to make this point because he made similar arguments when there was a Republican Senate and a Democratic President when he felt Members on our side of the aisle were being dilatory in providing fair consideration.

We know what the standard is. Each of the last three Presidents have ended their tenures in office with the opposite party in control of the Senate. We know that.

We know that the average number of circuit court judges appointed in the last 2 years of each of these three Presidents, when the opposite party controlled the Senate, was 17. We know the low end of that was President Clinton with 15. Right now, we have six. Even meeting the low threshold of President Clinton is a long way away.

Senator Specter has pointed out a way to meet that standard by reporting out of committee and confirming people who meet all of the criteria that have been specified by the chairman of the committee.

I commend Senator Specter for his comments. I hope they will be heeded by people on both sides of the aisle here in the Senate.

I yield the floor.

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