Nomination of Beryl Howell

Floor Speech

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Mr. McCONNELL. Madam President, I am pleased the Senate in this Congress was able to make good progress on filling judicial vacancies, especially those vacancies that the Democratic majority unfortunately and sometimes inexplicably failed to fill during the last 2 years of the Bush Administration.

The progress we have made is especially noteworthy given the demands placed upon the Judiciary Committee by having to process not one, but two, Supreme Court nominations. The Sotomayor and Kagan nominations together took approximately 6 months of the Committee's time. Nevertheless, the Senate was able to confirm a total of 60 lower court nominations in this Congress, including 19 nominations while the Kagan nomination was pending. By comparison, the last time the Senate had to process two Supreme Court nominations in the same Congress, which were the Roberts and Alito nominations during the 109th Congress, the Senate was able to fill only 51 lower court judicial vacancies, and it confirmed far fewer lower court nominations while the Roberts and Altio nominations were pending.

This Congress was also able to fill some long-standing vacancies, especially on our courts of appeals. At the end of the Bush administration, there were 15 judicial emergencies; this Congress was able to fill 10 of those 15 judicial emergencies, including numerous judicial emergencies on our circuit courts. The Fourth Circuit is illustrative of the commitment of Senate Republicans to work in a bipartisan fashion to this end.

At the end of the last Congress, the Fourth Circuit was almost one-third vacant, despite the fact that President Bush had nominated outstanding candidates for these positions. These nominees enjoyed strong home State support, including some with strong bi-partisan, home-state support. Yet our Democratic friends refused to move these nominations. By contrast, this Congress put partisanship aside and filled all four of these vacancies, giving badly-needed relief to a long suffering Federal circuit.

We could have made more progress still. But unfortunately, the President failed to put forth, and the Democratic Majority failed to move, nominations for the vast majority of the current federal vacancies. Specifically, the President has failed to even nominate individuals for most of the current district court vacancies, putting forth only 34 nominations, even though there are 76 vacancies. And of those district court nominations he has put forth, 18 of them remain in the Democratic-controlled Judiciary Committee. The story is similar for our circuit courts: there are 16 vacancies there, but the White House has failed to even nominate candidates for seven of those vacancies. And of those circuit court nominations he has made, 6 remain in the Judiciary Committee. All told, of the current vacancies on our Federal courts 80 percent of these seats remain vacant because the President either has not nominated anyone, or our Democratic colleagues have not processed the ones he has nominated.

Which brings us to the judicial nominations remaining on the Senate floor. Four of these nominations are very controversial. Their statements, writings, and records show a willingness to put their own views ahead of the dictates of the law and the Constitution. As a result, Senate Republicans are not prepared to consent to their confirmation, or to a process that will facilitate their confirmation.

The remaining 15 nominations pending on the Senate floor were not reported out of the Judiciary Committee until the waning days of this Congress. This is unfortunate. Most of these nominations are to fill vacancies that have existed for years; in some cases, for 2 or 3 years, or even longer. I do not know why these nominations were not reported out of the Judiciary Committee until December. While we were worked diligently in the lameduck session to fill numerous judicial vacancies--confirming 19 judicial nominees total--we were not able to process the remaining 15 nominations that the committee approved late in this year.

But our record of confirming judicial nominations in this lameduck Congress certainly compares favorably to the progress that was made on judicial nominations in other lameduck Congresses. In the lameduck session of the last Congress, the Senate did not confirm any judicial nominees. Thirty judicial nominations were not acted upon in that session, despite the urgent need for judges on places like the Fourth Circuit. In the lameduck session of the Congress before that, our Democratic colleagues did not consent to confirming any judicial nominees; the one judicial nomination that occurred in the lameduck session of the 109th Congress was achieved by the Republican majority filing cloture on a nominee. Cloture was invoked on that nomination by a vote of 93 to 0, and he was confirmed. But 38 other judicial nominations were not acted upon in that Congress, including 15 who were ripe for action on the Senate floor. In the lameduck session of the 108th Congress, only 3 nominations were confirmed, all to the district court. Almost two dozen judicial nominations were not acted upon in that lameduck session, including several who were pending on the Senate floor. In fact, the last time a Senate confirmed as many judicial nominations in a lameduck session of Congress as were confirmed in the lameduck session of this Congress was in 2002, when 20 judicial nominees were confirmed at the end of the 107th Congress.

I am hopeful we can continue to work in a bipartisan fashion in the next Congress on judicial nominations and that the President will join us in that effort by not nominating or re-nominating judicial nominees who show a willingness to follow their own beliefs, rather than the requirements of the law.

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