Confirmation Process
Floor Speech
CONFIRMATION PROCESS -- (Senate - July 17, 2008)
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Mr. GRASSLEY. Mr. President, I would like to ask if the Senator would yield?
Mr. SPECTER. I do yield.
Mr. GRASSLEY. Mr. President, I say to the Senator, he talked about judicial emergencies. I think it would be good if the public knew what a judicial emergency is and why it is so important that we emphasize getting those positions filled ahead of others and why there should be no excuse for holding them up, if you have any respect for the work of the judicial branch of Government.
Mr. SPECTER. I thank the distinguished Senator from Iowa for the question.
A judicial emergency has been defined by the Administrative Office of the Courts according to the backlog of cases and depending on the circumstances, as to how long litigants have had to wait. What it means in real world terms is, if somebody is injured, for example, in an automobile collision--a diversity case--and is out of work and has big medical expenses, that person's case does not come to trial and he does not get a decision as to what has happened. Or it may be a matter involving jobs in a community where there is an antitrust case, and it is delayed, both in the trial court and on appeal. But, every one of these judicial emergencies--and I put them in the Record before, but I ask unanimous consent to have them printed again at the conclusion of our discussion here--means that people are waiting to have their controversies decided, and they are undergoing very difficult circumstances being out of work, no salary, medical expenses, illustratively, while they wait for their case to come up.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. GRASSLEY. Mr. President, if the Senator will yield further--and I only remember two names, but I think these two names would permit me to ask a question that I think is legitimate and that the public ought to take into consideration as to the holding up of those nominations--I remember the Senator mentioned a Peter Keisler, who has been waiting for 750 days, and Robert Conrad, who also has been waiting for a long period of time, 365 days. Now, obviously, if these nominations are not being processed, there must be people who think these individuals are incompetent and should not be nominated. So what are the accusations of incompetency for these individuals not being approved?
Mr. SPECTER. Mr. President, responding to the question, there are no allegations of incompetency. Quite to the contrary. Nobody is saying that.
Mr. GRASSLEY. Well, if they are competent, shouldn't they be approved?
Mr. SPECTER. Yes, they should be. The reason they have not been approved is that there is an interest in holding open these vacancies in the event there is a President of the other party to fill them with the Democrats. Nobody is making any bones about that, I say to Senator Grassley. That is the obvious and admitted reason.
Mr. GRASSLEY. So I draw the conclusion, I say to the Senator from Pennsylvania, that the people blocking these nominations really are not concerned at all about the efficient operation of the judicial branch of Government. But we should get our job done and confirm these nominees because that is what it takes for the judicial branch to get their work done. The judiciary needs to have the personnel to get their job done.
Mr. SPECTER. Mr. President, I respond by saying to the Senator from Iowa that is a very harsh accusation, very harsh accusation he has just made. But, since he has made it, I will say that it is true.
Mr. GRASSLEY. Mr. President, I yield the floor.
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Mr. GRASSLEY. Mr. President, I ask Senator Kyl, aren't there a lot of other well-qualified nominees being blocked as well?
Mr. KYL. Mr. President, the answer to my colleague from Iowa is yes. Mr. Steve Matthews of South Carolina and Judge Robert Conrad of North Carolina, for example, are both impressive nominees who are exactly the kind of judges the severely understaffed Fourth Circuit Court of Appeals needs.
Mr. GRASSLEY. How close are they to being confirmed?
Mr. KYL. That is a very good question. Judge Conrad has been waiting for a hearing for 365 days. Today is the 1-year anniversary of his nomination, even though he was unanimously rated ``well qualified'' by the American Bar Association, and Mr. Matthews has been waiting for a hearing for 315 days.
Mr. GRASSLEY. I ask Senator Kyl, didn't Chairman Leahy and the other Democratic members of the Judiciary Committee say that a unanimous ``well qualified'' rating by the American Bar Association is somewhat of a ``gold standard'' by which all nominees should be judged?
Mr. KYL. Yes. I guess I would say that was then, this is now. But in addition to the ABA rating, I note that Judge Conrad in particular meets the other three criteria that Chairman Leahy has stated are his standards for quick confirmation.
Mr. GRASSLEY. Of course. Isn't he nominated to fill a seat deemed ``a judicial emergency'' by the nonpartisan Administrative Office of the Courts?
Mr. KYL. The answer is yes. Chairman Leahy has said--and I think all of us would agree--that judicial emergencies should be addressed quickly. In fact, in a press release in January of last year, he stated:
There are several outstanding judicial emergencies. ..... I hope to expeditiously address some of these emergency vacancies in the Judiciary Committee.
Mr. GRASSLEY. Yes. We have always had an understanding around here that if both Senators of the home State supported a nominee, they would move forward. Doesn't Judge Conrad satisfy this third prong of the ``Leahy standard'' for confirming judges since he has the strong support of both his home State Senators?
Mr. KYL. Yes. Both Judge Matthews and Judge Conrad have the support of their home State Senators. In fact, on October 2 of last year, Senators BURR and DOLE sent a letter to Senator Leahy asking for a hearing for Judge Conrad, and they spoke on his behalf at a press conference on June 19 that featured numerous friends and colleagues of Judge Conrad's who had traveled all the way up from North Carolina to DC to offer their support for his nomination. On April 15, 2008, Senators BURR, DOLE, GRAHAM, and DEMINT sent a letter to Senator Leahy asking for a hearing for Judge Conrad and for Mr. Matthews.
Mr. GRASSLEY. I believe it is also true, that Judge Conrad meets the fourth and final prong of Chairman Leahy's standard because he previously received bipartisan approval by the Judiciary Committee and the Senate when he was confirmed by a noncontroversial voice vote to be a U.S. Attorney in North Carolina and when he was confirmed by voice vote to the District Court for the Western District of North Carolina. It seems to me that these bipartisan voice votes indicate that Judge Conrad is a noncontroversial consensus nominee.
Mr. KYL. I absolutely agree with that assessment. Those are the considerations that underscore my great regret that no nominees were on the agenda for the executive business meeting of the Judiciary Committee this morning.
Mr. SESSIONS. Mr. President, to my colleague from Iowa, I asked earlier of Senator Specter regarding his statement that Chairman Leahy was saying he was going to enforce a Thurmond rule and that nobody would be moved henceforth--no nominee--unless both he and the ranking member and the majority leader and the Republican leader each approved. So I ask Senator Grassley how he feels about that statement.
Mr. GRASSLEY. Well, I have had a chance to review that, and I can say that as you know, in May of 2000, during President Clinton's last year in office, Senator Leahy, referring to the Thurmond rule, said:
There is a myth that judges are not traditionally confirmed in presidential election years. That is not true. Recall that 64 judges were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic majority in the Senate confirmed Reagan nominees and, as I have noted, 66 in 1992 when a Democratic majority in the Senate confirmed 66 Bush nominees.
That is the end of the Leahy quote in regard to the Thurmond rule.
Mr. SESSIONS. I think the Senator is correct. He has been a long-time senior member of the Judiciary Committee who is active in that entire process. In fact, Senator Reid, now the majority leader, made a similar statement in March of 2000 and those statements are more accurate descriptions of the history of the Thurmond rule over the past 25 years.
Isn't it also true that the majority asserts the purported Thurmond rule originated in the summer of 1980 when Senator Thurmond was the ranking member of the Judiciary Committee?
Mr. GRASSLEY. Well, the answer is yes, of course. Let me explain that Senate Democrats allege that Republicans, then in the minority and anticipating a change in power in the 1980 election, stalled the approval of President Carter's judicial nominees. The Majority points to a discussion at an executive business meeting which took place on September 10, 1980, when Ranking Member Thurmond asked Chairman Kennedy to hold over 13 nominees for 1 week because their background investigations were not complete. However, this allegation is not accurate.
Mr. SESSIONS. Well, is it not true, Senator Grassley, based on your experience, that it is standard procedure to hold nominees over until their background checks have been completed?
Mr. GRASSLEY. Yes, it is. In fact, a 1-week holdover in the Judiciary Committee is any Senator's prerogative--in fact, prerogatives I have used a few times myself--and over the last 2 years, the Majority has held over virtually all of President Bush's nominees for 1 week before a committee vote.
Do you recall whether the Senate later confirmed any of these nominees who were held over?
Mr. SESSIONS. Well, I think that is, in fact, true. The Senate confirmed 10 of the 13 nominees, and Senator Thurmond stated at an executive business meeting that the committee did not report favorably on the other three because: ``The minority had some questions of substance that would have to be discussed.''
The committee did not hold another executive business meeting that year, so the other three nominees were not considered again.
Mr. GRASSLEY. I think it is pretty clear then, Senator Sessions, referring to the accusations made about Senator Thurmond, it doesn't sound to me as though Senator Thurmond was blocking nominees in anticipation of an upcoming election.
Mr. SESSIONS. No, it doesn't. In fact, the record shows that on September 29, 1980, in a floor statement, Senator DeConcini, a Democratic member of the committee, commended Senator Thurmond for: demonstrating leadership on the Committee on the Judiciary, a willingness to take case-by-case appointments, obviously from a different administration than he might prefer, but willing to proceed with the advancement of these appointments, because the need of the judiciary does come before party preference.
Mr. GRASSLEY. Let me also point to a nonpartisan source. Didn't Mr. Steve Rutkus from the Congressional Research Service testify at the Senate Republican Conference's forum on the judicial nomination process on Monday that the facts do not support a Thurmond rule? Would that be correct? Is that the way you understand it?
Mr. SESSIONS. That is what he said. In addition, between June 1 and September 1 of 1980, President Carter's last year in office, didn't the Senate confirm four circuit court nominees and 15 district court nominees?
Mr. GRASSLEY. Yes. The record shows the Senate did. That is entirely true.
Mr. SESSIONS. In fact, wasn't one of those circuit nominees ACLU general counsel--the American Civil Liberties Union general counsel, Ruth Bader Ginsburg, who was later confirmed to the DC Circuit on June 18, 1980?
Mr. GRASSLEY. Yes. It doesn't sound to me like the conservative Senator from South Carolina was using any power he had on the Judiciary Committee to hold up a person who has turned out to be very much a judicial activist. I would say even more remarkable, in regard to your statement, after September 1, 1980, the Senate confirmed 11 district court nominees and 2 additional circuit court nominees, including Stephen Reinhardt, who has gone on to earn a reputation as one of the Nation's most liberal jurists. The other post-September circuit court confirmation was that of Stephen Breyer, who at that time was Senator Kennedy's chief counsel on the Judiciary Committee.
Mr. SESSIONS. Well, Senator Grassley, I know, is aware of that, but wasn't Mr. Breyer nominated by President Carter on November 13, 1980, after President Carter had lost the election to President Ronald Reagan? And didn't the Senate Democrats, who had just lost control of the Senate, hold a swift confirmation vote on Breyer during that lame duck session on December 9, 1980?
Mr. GRASSLEY. That is right. In fact, the Senate confirmed a total of 10 circuit court nominees and 53 district court nominees during 1980, President Carter's last year in office. And 1980 was not an aberration. As Senator Leahy noted in 2000, the pattern continued in subsequent election years. Also in 2000, the year Senator Leahy called the Thurmond rule a ``myth'' when he was complaining about the pace of judicial confirmations, the Senate confirmed 8 circuit court nominees and 31 district court nominees.
Mr. SESSIONS. I thank my colleague from Iowa. He has been a stalwart, capable member of this committee for many years. He is known for plain speaking and honest talk. I think that is what we have had here. It is a shame we are looking at an unprecedented circumstance. I note we are put in a position where I think it is difficult to respond, other than to go to the American people, because what Senator Leahy has done is state that the Thurmond rule is something that it is not and indicate that further judges will be moved only by consent of the two leaders of the Senate and the two leaders of the committee.
He made that statement very recently. So it looks as though we are at a point where the normal procedures of moving judges have been abrogated and that it is unlikely additional nominees will be confirmed.
I have a few more comments, but my senior colleague Senator Grassley is here, and I am glad to yield the floor.
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