Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, we are considering the nomination of Judge Jordan to be a U.S. circuit judge for the Eleventh Circuit. He is going to fill the vacancy that has been created by Judge Susan Black taking senior status.

Looking back, I think the Senate accomplished much last year, passing legislation and confirming a significant number of judicial and executive nominations. I would note that even the majority leader recognized we have done a good job on nominations and have accomplished quite a bit as well.

We could have confirmed more nominees had the President indicated he would respect the practice and precedent on recess appointments. He would not give the Senate that assurance, so a number of nominations could not be confirmed and now remain on the Executive Calendar. As it turned out, the President went on to violate the practice and precedent.

I wish to remind my colleagues and those who might be listening that the Constitution outlines two ways in which the President may make appointments: One is with the advice and consent of the Senate; the other is he may make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess. Given that the Senate was not in recess, it seems clear to me that advice and consent was required but not obtained by the President.

It is for the Senate to determine its own rules and procedures, including designation of when it is in recess, within the constraints of the constitutional provisions found in article I. Consequently, this is not a matter within the purview of the executive branch. In other words, under the Constitution of the United States, the President is in no position to tell the Senate when we adjourn and when we do not adjourn.

These so-called recess appointments break a longstanding tradition. They violate precedents followed as recently as 2008 under President Bush.

This is a matter of concern to my Republican colleagues, as it should be for all Senators. In fact, I am quite puzzled and disappointed by the silence from the other side. This is more than just a policy issue or disagreement on a particular nominee. The underlying concern is a power grab by the President. I would think all Senators would rise to defend the prerogatives of the Senate and the constitutional principles which have been violated by the President. In other words, if the Constitution of the United States says the Senate determines when we are in adjournment, how does the President get the power to do that?

When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say the Constitution does not stand in the way.

At that point, a President is no longer a constitutional figure with limited powers, as the Founders intended. Quite to the contrary, the President looks more and more like a King the Constitution was designed to replace. You remember George III, I hope.

Generally, I am willing to give the President's nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined. But as I have indicated over the past few weeks, we are not operating under normal circumstances. The atmosphere the President has created with his disregard for constitutional principles has made it difficult to give his nominees any benefit of the doubt.

Despite the conditions the President has created, the committee is moving forward with hearings and with markups. As we see, we continue to have floor votes and confirmations. We are making progress.

This will be President Obama's 26th circuit nominee whom we have confirmed. That means over 62 percent of the President's circuit judge nominees have been confirmed. This is the same pace of confirmation for President Bush's circuit nominees at a comparable point in his first term.

Furthermore, President Obama's nominees are moving through the process at a quicker pace. The average time for President Obama's circuit nominees to be confirmed is about 140 days. For President Bush, the average time was quite longer, at 350 days--more than twice as long.

With regard to judicial vacancies, I would note progress has been made. We have made significant reductions in the vacancy rate. I hear some mistakenly state that the vacancy rate is at historic highs. The claim is not true. I would point out that the current vacancy rate is about where it was at the beginning of the Presidency of George W. Bush. In terms of historical highs, I would like to remind my colleagues of some history. When George H.W. Bush assumed the Presidency, the vacancy rate was around 5 percent. During his term, the Democratic majority in the Senate let the vacancy rate rise to 16 percent--nearly double what it is today.

Those who continue to complain about vacancy rate should also be reminded that for more than half the vacancies, the President has failed to even submit a nomination to the Senate. This has been a pattern throughout this administration. This is the case even for vacancies designated as judicial emergencies. Nineteen of those thirty-three emergency vacancies have no nominee. Furthermore, President Obama is significantly behind in the number of nominations he has made. So it is no surprise he would be a little behind in the confirmations as well. In other words, if the President wants the Senate to move faster, send the nominations up here.

I would like to say a few words about the nominee we will be voting on today. Judge Jordan presently serves as a U.S. district judge for the Southern District of Florida. He was appointed to that court byPresident Clinton in 1999, and was confirmed by the Senate later that year.

He received a bachelor of arts from the University of Miami in 1984, his juris doctorate from the University of Miami School of Law in 1987.

Upon graduating from law school, the nominee clerked for Thomas A. Clark of the U.S. Court of Appeals for the Eleventh Circuit and then for Supreme Court Justice Sandra Day O'Connor. He then began his legal career as an associate attorney with Steel Hector & Davis where he handled first amendment matters and commercial litigation cases.

In 1994, he became an assistant U.S. attorney in the appellate division of the U.S. Attorney's Office for the Southern District of Florida. He was made deputy chief of the division in 1996, and chief in 1998. The nominee also worked as an adjunct professor of law at the University of Miami School of Law since 1990. He has taught many courses, including a death penalty seminar, federal courts, a judicial inherent power seminar, and a Federal criminal practice seminar.

Since becoming a district judge in 1999, he has presided over nearly 200 cases and has sat by designation frequently on the Eleventh Circuit Court of Appeals.

The American Bar Association Standing Committee on the Federal Judiciary has rated this nominee with a unanimous ``Well Qualified'' rating. I concur in that rating and will support the nomination.

I suggest the absence of a quorum.

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