Nomination Of Judge David Hamilton

Floor Speech

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Mr. DURBIN. I rise to speak in support of the nomination of David Hamilton, who is President Obama's nominee to serve on the U.S. Court of Appeals for the seventh Circuit.

This appellate court has jurisdiction over three states, including my home State of Illinois. Because the Supreme Court takes so few cases these days, the circuit courts have the final word in 99 percent of Federal cases. In other words, the buck stops with the Seventh Circuit for the vast majority of my constituents when they have a legal grievance.

Yesterday, we had to have a cloture vote on the Hamilton nomination because a majority of Republican Senators wanted to filibuster it. Three-quarters of the Republican caucus voted to filibuster Judge Hamilton. That is astonishing.

Judge Hamilton is a moderate, mainstream judge who has earned an outstanding reputation during his 15 years of service on the Federal district court. He has strong bipartisan support, including the support of Republican Senator Richard Lugar.

Another reason I was surpri ed to see the filibuster attempt is because, during the Bush administration, Senate Republicans made speech after speech about their fervent belief that every judicial nominee deserved an up or down vote on the Senate floor. If I had a dollar for every time a Republican Senator advocated for this position, I would be a wealthy man.

This was such an article of faith among the Senate Republicans during the Bush years that they tried to change the rules of the Senate to ban the filibuster of judicial nominees and to require up or down votes. This was called the ``nuclear option'' and the Senate spent days and weeks debating this issue. Thankfully, a handful of courageous Republican Senators opposed it, and this cynical effort was defeated.

We are today seeing a complete double standard when it comes to the way some of my Republican colleagues are treating judicial nominations. When President Bush was in office, they wanted to rubberstamp every nomination. Now that the tables have turned and we have a Democratic President, we have seen unprecedented obstructionism from the Republican side.

Under President Bush, over half of his judicial nominees were confirmed by voice vote or unanimous consent. The Democrats consented to their confirmation without requiring time being spent on a rollcall vote on the Senate floor. The Republicans, by contrast, haven't agreed to a voice vote or unanimous consent on a single one of President Obama's judicial nominees.

In addition, many of the Bush nominees were confirmed within days of being approved by the Judiciary Committee. The average circuit court nominee under President Bush was confirmed just 29 days after being voted out of the Judiciary Committee. By contrast, the average Obama circuit court nominee has had to wait 141 days between the committee vote and confirmation. President Obama's circuit court nominees have had to wait five times longer than President Bush's nominees for a vote.

As a result, the Republicans have ground the judicial nomination process almost to a halt. They have agreed to votes on only seven of President Obama's judicial nominees.

Let's compare this confirmation rate with the number of judges who were confirmed by Thanksgiving under past Presidents. Under President Bush, there were 18 judges confirmed by Thanksgiving. Under President Clinton, there were 28. Under the first President Bush, there were 15. Under President Reagan, there were 29, and under President Carter there were 26. President Obama has had only 7 judges confirmed--due to Republican stalling tactics.

The Republican obstructionism isn't limited to President Obama's judicial nominations. As of today, they are holding up 40 different nominations, including 10 judicial nominees and 30 executive branch nominees. The vast majority of these nominees are noncontroversial. They were passed with unanimous support in the Senate committee of jurisdiction.

Many of the individuals who are being held up by Senate Republicans have been nominated for important administration positions and long-vacant Federal judgeships. Without Senate confirmation of these nominees, many Americans will see delays in their ability to seek justice in our courts, and delays in the ability of the Obama administration to tackle some of our most pressing national problems.

Unlike many of the judicial nominees sent up by President Bush, the current President has bent over backwards to identify consensus nominees--like Judge David Hamilton--who have bipartisan support. Many of President Bush's judicial nominees, by contrast, did not have bipartisan support or home-State Senator support. With many of President Bush's nominees, it was clear that the Bush White House wanted to pick a fight, rather than a judge.

President Obama is a breath of fresh air. Every single one of his judicial nominees has the support of their home State Senators, be they Democrats or Republicans.

Senator Lugar--a conservative Republican from Indiana--came to the Senate floor this week and made a strong and compelling case for Judge Hamilton's confirmation. When he introduced Judge Hamilton to the Senate Judiciary Committee in April, Senator Lugar said the following:

I believe our confirmation decisions should not be based on partisan considerations, much less on how we hope or predict a given judicial nominee will ``vote'' on particular issues of public moment or controversy. I have instead tried to evaluate judicial candidates on whether they have the requisite intellect, experience, character and temperament that Americans deserve from their judges, and also on whether they indeed appreciate the vital, and yet vitally limited, role of the Federal judiciary faithfully to interpret and apply our laws, rather than seeking to impose their own policy views. I support Judge Hamilton's nomination, and do so enthusiastically, because he is superbly qualified.

I hope my colleagues across the aisle will keep these words in mind when they vote on the Hamilton nomination.

Is Senator Lugar the only Republican in Indiana who supports Judge Hamilton? No. Another prominent Republican supporter is the president of the Indiana Federalist Society: Geoffrey Slaughter. The Federalist Society is an organization of ultraconservative lawyers, and they don't typically support Obama nominees. But the Indiana Federalist Society president has said:

I regard Judge Hamilton as an excellent jurist with a first-rate intellect. He is unfailingly polite to lawyers. He asks tough questions to both sides, and he is very smart. His judicial philosophy is left of center, but well within the mainstream.

Does that sound like the type of judicial nominee who should be filibustered?

The critics of Judge Hamilton have singled out a handful of decisions in his 15 years on the bench and 8,000 cases. Senator Lugar has done an excellent job explaining why Judge Hamilton's rulings were sensible and defendable.

The Hamilton nomination has been pending on the Senate floor for nearly 6 months. Enough is enough.

NOMINATION OF MARY L. SMITH

Madam President, I would also like to discuss another nominee whom the Republicans have been stalling: Mary L. Smith. She is President Obama's nominee to be the Assistant Attorney General for the Tax Division at the Justice Department. Mary is from my home State of Illinois, and Senate Republicans have been holding up her nomination for over 5 months.

Mary Smith is a highly qualified nominee who has had a distinguished 18-year legal career. After graduating from the University of Chicago law school, she clerked for a prestigious Federal judge and then litigated at a large Chicago law firm. She then worked as a trial attorney in the Justice Department's Civil Division and as a lawyer in the Clinton White House.

Mary returned to private practice and joined the international law firm of Skadden, Arps, Slate, Meagher & Flom, where she focused on business litigation. After 4 years at Skadden, she went to work at Tyco International, where she managed what has been called the most complex securities class action litigation in history.

Mary has also been deeply devoted to pro bono work and public service, which really tells the story of a lawyer's dedication to the profession. She serves on many bar association boards including the Chicago Bar Foundation, which helps provide free legal services to low-income and disadvantaged individuals.

Mary Smith is not only a highly qualified nominee, she is a historic nominee. Mary is a member of the Cherokee Nation and, if confirmed, she would be the first Native American to hold the rank of Assistant Attorney General in the 140-year history of the Justice Department. She would be the highest ranking Native American in DOJ history.

I was sorry to see that when we took up Mary Smith's nomination in the Senate Judiciary Committee, the Republican members voted against her. They alleged she was unqualified for the job because she doesn't have as much tax law experience as other recent Tax Division nominees.

The Judiciary Republicans are grasping at straws with this allegation. First of all, it is an inherently subjective determination. There is no record of how much time Mary Smith has spent working on tax issues compared with previous nominees.

It is true Mary is not a traditional tax lawyer, but she has worked on tax law and tax policy issues throughout her career. During the years she worked at Tyco International, she worked closely with that company's tax department on responding to IRS subpoenas and assessing the complex tax implications of the $3 billion settlement of the Tyco securities litigation.

When she served in the Clinton White House she worked with congressional offices, the Treasury Department, and the National Economic Council to address tax disparities between Indian tribes and State governments.

And more recently, she served on President Obama's Justice Department transition team, and she helped review and analyze the Tax Division, the very office she has been nominated to lead.

The second reason the Republican allegation about Mary Smith's qualifications is off base is because Mary has more litigation, management, and Justice Department experience than previous Tax Division nominees. Those are critical qualifications to lead the Tax Division. In this respect, Mary Smith is more qualified than her predecessors.

Mary is a seasoned litigator who has had multiple trials and courtroom experience. The head of the Tax Division needs first and foremost to be a person with litigation experience, and Mary Smith fits the bill. She has been a litigator in the Justice Department, in two large law firms, and in one of the largest corporations in the country. Two of the recent Tax Division leaders--whom the Judiciary Republicans hold up as models of what it takes to lead that office--had no litigation experience and never had a single trial.

Mary is also more qualified than some of her predecessors when it comes to management experience. The Tax Division is an office with over 350 attorneys. When she worked on the Tyco litigation, Mary managed over 100 lawyers and a $50 million budget. She managed large litigation teams while working at the Skadden Arps law firm. And during her service in the White House, she helped manage and coordinate the work of multiple Federal agencies. None of the other recent Tax Division nominees had as much management experience as Mary Smith, a fact that has little value to the Judiciary Republicans who voted against her.

Mary also has more Justice Department experience than her recent predecessors. She worked in the DOJ Civil Division as a trial attorney, and she was a key member of President Obama's DOJ review team last winter. She understands the Justice Department as an institution, and the perspective of the DOJ career staff.

In short, Mary has an excellent background to lead the Tax Division. She has litigation experience, management experience, DOJ experience, and tax experience. None of the previous heads of that office had all of these qualifications combined.

One of those prior Tax Division leaders, Nathan Hochman, has come forward in support of Mary Smith's nomination. Mr. Hochman was the head of the Tax Division under President George W. Bush, so he's not exactly a partisan Democrat. Mr. Hochman wrote a letter to the Senate and said the following:

I am confident Mary will provide strong leadership for the [Tax] Division and is a good choice. ..... Mary's private practice experience in complex financial litigation gives her a working background for the type of cases litigated by the [Tax] Division.

I would suggest that President Bush's Tax Division leader has a better understanding of what it takes to lead the Tax Division than a handful of Senators.

Ted Olson is another prominent Republican who supports Mary Smith for this position. Mr. Olson is one of the most respected lawyers in America and he served as the Solicitor General at the Justice Department under President George W. Bush. He worked closely with the Tax Division and represented that office in cases before the Supreme Court.

Ted Olson wrote a letter to the Senate and called Mary Smith ``a first-rate litigator'' and ``a fine choice to be this nation's Assistant Attorney General for the Tax Division.''

The Senate has received dozens of other letters of support for Mary Smith, including many from our Nation's leading Native American leaders. They are eager for the Senate to confirm Mary so she can become the highest ranking Native American in the history of the Justice Department.

The month of November is National American Indian and Alaska Native Heritage Month. We would honor our Native American community by confirming Mary Smith this month.

I urge my Republican colleagues to stop blocking this important nomination and agree to a vote on my Illinois constituent, Mary Smith.

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