Judicial Nominations

Floor Speech

JUDICIAL NOMINATIONS -- (Senate - May 06, 2008)

Mr. CORNYN. Mr. President, this morning, in North Carolina, Senator John McCain, the presumptive Republican nominee for President of the United States, is giving a very important speech. He may be speaking even as I am speaking. But he is talking about the role of judges in our Government. I think it is a very important speech. I hope our colleagues and the American people will pay close attention to what Senator McCain is saying when he talks about the important role Federal judges play in our American Government.

I hope Senator Obama and Senator Clinton will likewise take the opportunity, at the first chance they have, to talk about their philosophy, about the types of judges they believe should be nominated by the next President of the United States, were they to have that privilege and that opportunity.

Five years ago, on April 30, 2003, I, along with nine other of the newest Members of the Senate, wrote a letter on this issue to Senator Frist and Senator Daschle, the respective leaders of our parties. That letter was important not only because it was a bipartisan statement acknowledging the judicial confirmation process was broken and needed fixing but also important because it called, on a bipartisan basis, by the newest Members of the Senate, for a clean break or as we called it, a fresh start when it came to the issue of judicial confirmations and, notably, we said to ``leave the bitterness of the past behind us.''

Mr. President, I ask unanimous consent that letter be printed in the Record at the end of my remarks.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

(See exhibit 1.)

Mr. CORNYN. I would like to read from a passage in that letter, signed by we 10 freshmen at the time. In 2003, we wrote to our leaders:

In some instances, when a well qualified nominee for the federal bench is denied a vote, the obstruction is justified on the ground of how prior nominees--typically, the nominees of a previous President--were treated. All of these recriminations, made by members on both sides of the aisle, relate to circumstances which occurred before any of us [actually] arrived in the United States Senate. None of us were parties to any of the reported past offenses, whether real or perceived. None of us believe that the ill will of the past should dictate the terms and direction of the future.

Unfortunately, 5 years later, when it comes to judicial nominations, the grievances of the past are still dictating the terms and direction of the future when it comes to judicial nominees. There is still time for that fresh start we called for, still time for a clean slate but, unfortunately, no signs that is likely to occur in the current environment.

So it will likely come to pass once again that last year's and the previous year's grievances will be used again, not without some justification, by Senate Republicans to justify the obstruction of a future Democratic President's judicial nominees, which shows the death spiral we are involved in when it comes to not taking care of the Nation's work, not allowing an up-or-down vote of judicial nominees on the floor of the Senate.

When it comes to judicial nominations, the Senate is supposed to be, as Senator Specter said, the world's greatest deliberative body. But it often acts more like the Hatfields and the McCoys, or perhaps, for those who remember Huck Finn, the Grangerfords and the Shepherdsons, who do not know how the feud began but, nonetheless, continue to escalate the violence.

Let's step back and consider the basic facts. Right now across America there are 46 Federal judicial vacancies--12 on the circuit court of appeals, 34 on the district courts. Of these 46 vacancies, 13 are considered ``judicial emergencies,'' including a handful on the Fourth Circuit Court of Appeals,
where a full 33 percent of the bench is vacant because we in the Senate have not done our job.

The simple fact of the matter is, thus far, during President Bush's final 2 years in office, we have seen a record-low number of Federal judges approved by the Senate.

Since our friends on the other side of the aisle took over the Senate in 2007, a total of only 7 circuit court nominees have been approved--and only one this year. It would be most unfortunate and indeed, I daresay, precedent setting if this Senate set this new low-water mark.

For my part, I have been pleased to work with the chairman of the Judiciary Committee, Senator Leahy, to gain confirmation of the last two Texans to be nominated and confirmed to the Fifth Circuit Court of Appeals. Most recently, I appreciated the chairman's cooperation and assistance in confirming Catharina Haynes to the Fifth Circuit.

But despite my appreciation, I must also express my regret that Ms. Haynes is the only circuit nominee confirmed this year. I would not be fulfilling my oath of office if I did not press for fair treatment not only for judicial nominees who come from my State, Texas, but for my colleagues' home State nominees as well.

There are many other critical judicial positions that demand our immediate action. I mentioned the Fourth Circuit, which serves the States of Virginia, Maryland, North Carolina, South Carolina, and West Virginia.

The Fourth Circuit is currently operating, as I indicated, with one-third less than a full complement of judges on the bench. That is why the Judicial Conference has called this a judicial emergency. The Senate can and must act to alleviate this strain and this denial of access to justice on behalf of the people of those States, who are denied access to justice because there are simply not enough judges who have been confirmed to sit and hear their cases.

The Judiciary Committee is poised to act this Thursday on Justice Stephen Agee of Virginia, a Fourth Circuit nominee, and it should at the very least move forward with the nominations of other Fourth Circuit nominees who have the support of both home State Senators.

Even the Washington Post, in December 2007, decried the situation on the Fourth Circuit saying:

[T]he Senate should act in good faith to fill vacancies--not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers.

I am greatly disappointed the Judiciary Committee has been so slow to act on these important nominations. I would ask the chairman again to push forward with hearings and give the nominees an opportunity for an up-or-down vote on the Senate floor.

There is no doubt the American people deserve, and our very concept of American Government requires, qualified judges who understand the proper role of a judge, which is not to be another branch of the legislature dispensing their view of justice, sort of on an ad hoc basis, but, rather, judges who believe their job is to interpret and enforce the Constitution, not to make up the law as they go along.

As such, we should exercise due diligence to properly review nominees. But the constitutionally mandated process of advice and consent should be done expeditiously, and debates on these nominees should be done openly, as the Senator from Pennsylvania suggested.

We have before us numerous well-qualified nominees who have offered themselves to serve our citizens. We must endeavor to minimize the role of partisan politics in judicial nominations, and we should work harder to ensure the judicial vacancies are filled in a more timely manner.

I know my time is up, and I know the distinguished Senator from Arizona is here to speak, perhaps on the same subject. But I am glad Senator McCain, the presumptive Republican nominee, is speaking on this important issue today. I repeat my hope that Senator Obama and Senator Clinton would address this very important responsibility of the next President of the United States. But I would submit, again, it is our responsibility to promptly move on these nominations and to give these nominees a fair up-or-down vote. That has not been happening.

Mr. President, I yield the floor.

Exhibit 1

U.S. SENATE,

Washington, DC, April 30, 2003.

DEAR SENATORS FRIST AND DASCHLE: As the ten newest members of the United States Senate, we write to express our concerns about the state of the federal judicial nomination and confirmation process. The apparent breakdown in this process reflects poorly on the ability of the Senate and the Administration to work together in the best interests of our country. The breakdown also disserves the qualified nominees to the federal bench whose confirmations have been delayed or blocked, and the American people who rely on our federal courts for justice.

We, the ten freshmen of the United States Senate for the 108th Congress, are a diverse group. Among our ranks are former federal executive branch officials, members of the U.S. House of Representatives, and state attorneys general. We include state and local officials, and a former trial and appellate judge. We have different viewpoints on a variety of important issues currently facing our country. But we are united in our commitment to maintaining and preserving a fair and effective justice system for all Americans. And we are united in our concern that the judicial confirmation process is broken and needs to be fixed.

In some instances, when a well qualified nominee for the federal bench is denied a vote, the obstruction is justified on the ground of how prior nominees--typically, the nominees of a previous President--were treated. All of these recriminations, made by members on both sides of the aisle, relate to circumstances which occurred before any of us arrived in the United States Senate. None of us were parties to any of the reported past offenses, whether real or perceived. None of us believe that the ill will of the past should dictate the terms and direction of the future.

Each of us firmly believes that the United States Senate needs a fresh start. And each of us believes strongly that we were elected to this body in order to do a job for the citizens of our respective states--to enact legislation to stimulate our economy, protect national security, and promote the national welfare, and to provide advice and consent, and to vote on the President's nominations to important positions in the executive branch and on our nation's courts.

Accordingly, the ten freshmen of the United States Senate for the 108th Congress urge you to work toward improving the Senate's use of the current process or establishing a better process for the Senate's consideration of judicial nominations. We acknowledge that the White House should be included in repairing this process.

All of us were elected to do a job. Unfortunately, the current state of our judicial confirmation process prevents us from doing an important part of that job. We seek a bipartisan solution that will protect the integrity and independence of our nation's courts, ensure fairness for judicial nominees, and leave the bitterness of the past behind us.

Yours truly,
John Cornyn, Lisa Murkowski, Elizabeth Dole, Norm Coleman, Lamar Alexander, Mark Pryor, Lindsey Graham, Saxby Chambliss, Jim Talent, John E. Sununu.

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