Highway Technical Corrections Act of 2007 - Motion to Proceed - Continued
Floor Speech
HIGHWAY TECHNICAL CORRECTIONS ACT OF 2007--MOTION TO PROCEED--Continued -- (Senate - April 15, 2008)
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Mr. McCONNELL. Mr. President, my good friend, the majority leader, and I, I think at the beginning of this conference--and I believe this is a correct characterization of where we were; I am sure he can disabuse me of the notion if it is not a direct characterization of where we were--we felt at the very least, President Bush, with regard to circuit court nominees, should be treated as well as President Reagan, President Bush 41, and President Clinton were treated in the last 2 years of their Presidencies.
Each of those Presidents found themselves with the following dilemma: The Senate was in the control of the opposing party, so there was a certain symmetry to this President. George W. Bush ends up the last 2 years of his Presidency similarly situated to President Reagan, President Bush 41, and President Clinton. The average number of circuit court judges approved for all of those Presidents was 17. President Clinton was on the low end of that at 15.
As of today, April 15, we have approved in this Congress seven circuit judges. Except for last week, there had not been one since last September. I am sure the majority leader would agree with me that we are running dramatically behind. We know there is an election coming up in the fall.
The majority leader mentioned the so-called Thurmond rule which at some point here will probably be implemented, indicating there will not be any circuit judges approved.
We currently have before the committee two judges, one from North Carolina and one from South Carolina. The one from North Carolina has a unanimously well qualified from the American Bar Association and has previously been confirmed to his current position as a district court judge by the Senate. The blue slips are back on both of these judges. We anticipate there will be a nominee from Virginia who will have blue slips returned and, in the near future, two nominees from the State of Michigan whose blue slips will be returned. As we all know, in Michigan there are two Democratic Senators and in Virginia there is one Democratic Senator and one Republican. In South Carolina and North Carolina, there are two Republican Senators. The chairman of the Judiciary Committee has made it clear he is not likely, almost certainly not likely, to move a nominee from a State for which there are no blue slips. So we have blue slips in on North and South Carolina, and both nominees have been waiting for quite some time. So there are nominations ready to go.
What I have said is there is a great interest on my side in seeing three circuit court nominees confirmed by the Senate before the Memorial Day recess. The majority leader has indicated he is comfortable with that. We have not picked the candidates, but let me suggest it would be unfair to discriminate against a State which has two Republican Senators with blue slips in and has had nominees pending for quite some time in favor of nominees only recently with blue slips in or only recently nominated. The principle should be the same regardless of whether a State is represented by two Republicans, two Democrats or one Republican and one Democrat. If the blue slips are in, the blue slips are in. If the nominee is otherwise qualified and noncontroversial, I would hope, I say to my good friend, the majority leader, he would share my view that we should not discriminate against a nominee from a State with two Republican Senators, the nominees having been pending for quite some time, in favor of recent nominees who happen to be from States with two Democratic Senators or one Democratic and one Republican Senator. I wonder if my friend, the majority leader, has any observation about that.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, we have a number of places from which the Judiciary Committee can move matters to the floor. We have North Carolina, South Carolina, Rhode Island, Maryland. We have Pennsylvania. The Pennsylvania situation, we have a Democrat and a Republican there. As I recall the judge's name, the nominee there is a man by the name of Pratter. We have someone from Virginia. We have, as of today, two from Maryland. We have a wide range to choose from. I say to my friend from Kentucky, no, it should not be because you have two from the same party from one State and they are not our party, that should not cause them not to have their nominee approved. As I indicated last week when we got into a discussion about this, we should measure the quality of the nominees, not the quantity. We are today talking about the quantity of nominees. But we also have to be concerned about the quality of these nominees. We should confirm capable, mainstream nominees who are the product of bipartisan cooperation. With this committee, to get something out of the committee, it has to be bipartisan. I guess it doesn't have to be, but that is the way we would like it.
So we have done a pretty good job. Last year, we had a very controversial judge. One of the Senators on the Judiciary Committee decided she would vote with the minority. As a result of that, a controversial judge was reported to the floor and ultimately approved. So we are working very hard to arrive at three judges by the time of our break, which is 5 weeks from now, I believe. I said when I got this job, that if the nominations of judges are important to my friend, the Republican leader, they are important to me. I have some knowledge of difficulties with judges on the floor, having survived, as the Democratic leader, the so-called nuclear option. So I understand how people feel strongly about judges. Democrats feel strongly about them. Republicans feel strongly about them. When Senator Lott was majority leader, he said words to the effect: Why should we worry about them in the Senate? People don't care about judges. This is something that is just within the Senate.
I, personally, don't feel that way. I feel these men and women who have lifetime appointments are extremely important and that we should--even though Senator Lott might be right, maybe people outside Washington don't care about judges, I care about judges. The Republican leader cares about judges. I will try my best to get three judges approved by the Senate before the Memorial Day recess.
Mr. McCONNELL. Mr. President, the only thing I would add with regard to my earlier comments, just picking, for example, the North Carolina judge, the Fourth Circuit is a judicial emergency. The chairman of the Judiciary Committee has set forward some standards. His first standard: If a vacancy is deemed to be a judicial emergency, it should be addressed quickly. That is the chairman of the Judiciary Committee. In the case of the Fourth Circuit, it has been declared a judicial emergency. It is one-third vacant. The nominee from North Carolina, to pick an example, is not controversial, has a unanimously well qualified from the ABA. The blue slips are back from both North Carolina Senators. My only point to my good friend, the majority leader, was it would seem not to be fair, when you have a nominee pending for a long time who is not controversial, upon which the blue slips have been returned, where there are two Republican Senators, for that nominee to be in effect moved to the back of the bus while you handle nominees nominated more recently from a State with two Democratic Senators or a State with one Democrat and one Republican Senator.
What I am pleading for is a sense of fairness. I believe in the case of both North Carolina and South Carolina, with the judicial emergency existing on the Fourth Circuit, you could make a strong case that they should be dealt with first under the standards of the chairman of the Judiciary Committee. But in particular I cite the nominee from North Carolina because he has been declared noncontroversial, had the unanimous ABA approval rating, and has been pending for hundreds of days. I don't know why we couldn't meet the goal the majority leader has set out of doing three circuit court nominees before Memorial Day. There is no reason not to. There are enough ready to be dealt with who don't require additional paperwork.
So I guess my question of the majority leader is, What is his view as to the likelihood that we would get three circuit judges confirmed before the Memorial Day recess?
Mr. REID. Mr. President, first of all, Chairman Leahy understands. If there is an emergency in a circuit, he understands the importance of doing something about that. He has expressed that publicly and privately. Also, in this overall process, let's make sure we understand, there are vacancies out there in the circuit courts that we have no nominees for. We are waiting for them. I say to my friend, as I have said before, I am going to do everything to work with the Judiciary Committee. Senator Leahy said he would do that too. I think we can say we would work very hard to make sure there are no holdovers. That is, if somebody is reported out, we will do our very best to make sure they don't waste that week on that. I am going to do what I can to fulfill what I have said. I will do everything within my power to get three judges approved to our circuits before the Memorial Day recess.
Who knows, we may even get lucky and get more than that. We have a number of people from whom to choose. Maybe the President can send us down a few more names on some of those vacancies that are there now. I don't know what more I can say than to say what I have said. I have to work with the committee, within the rules they have, and do the best I can.
Mr. McCONNELL. Mr. President, I guess the only thing I would add, would the majority leader agree with me on the following principle: That a circuit judge from a State with two Republican Senators, who is completely qualified and upon which two blue slips have already been returned and have been pending for a long time, does the majority leader share my view that those type nominees from States with two Republican Senators should not be discriminated against in trying to meet our responsibility? We have only confirmed seven circuit judges throughout this Congress. We are a long way from coming anywhere close to what President Clinton got at 15.
Mr. REID. Mr. President, I hope the record will reflect the smile on my face because the fact is, we had, for years, two Democratic Senators from a State and those nominees of President Clinton weren't even given a hearing. More than 60 weren't even given a hearing. They were pocket vetoed, for lack of a better description. So, yes, I think if you have two Senators from the same party, they should not be discriminated against. I mentioned their names. Their names are Matthews and Conrad. I have spoken to Senator Leahy. The first time I talked to him was today. Of course, we will take a look at those.
Mr. McCONNELL. Well, I certainly understand what the intention of the majority leader is. We will need to discuss this further, I guess privately. I certainly understand his intention. I know he is a person who operates in good faith. I trust him. We have had a good relationship over the last period during which we have been in our respective positions. I guess the calculation I have to make, at some point, is what is the likelihood of this occurring, because there is a deep-seated unrest on our side related to this low number of circuit court judges. I think that is understandable. It is a paltry number in comparison to how President Reagan, President Bush, and President Clinton were handled in a similar situation. But I understand the representations my good friend, the majority leader, has made as far as he is prepared to go today. We will continue to discuss the matter.
Mr. REID. Mr. President, the only thing I would say, my good friend asked the odds. I am from Las Vegas. I don't bet. I hope they are good odds. I am going to do everything I can to live up to what I have said this last 5 or 10 minutes.
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