Judicial Nominations

Floor Speech

Mr. DURBIN. Mr. President, I was heartened by the dialog between Senators Reid and McConnell this morning, talking about more bipartisan cooperation, civility, and cooperation to try to deal with appropriations bills. I would like to commend to the Republican leader not just those important issues but the equally important issue of judicial nominations. It is no secret that the Senate's process for considering nominations has deteriorated under the Obama administration because of resistance from the Republican side of the aisle.

It is a long-honored tradition in America that a President of the United States fills vacancies on the Federal courts with the advice and consent of the Senate. That has been the process since the beginning of this Republic. Yet today we find stacked on our calendar literally 19 judicial nominees pending on the Senate floor. Fourteen of these nominees were reported from the Judiciary Committee last year, some of them as far back as October. They have been sitting here for months. Seventeen of the nominees were reported out of committee with broad bipartisan support, 12 of them unanimously. Ten nominees, incidentally, are supported by their Republican home State Senators.

The bottom line is that judicial nominees with no controversy and with widespread bipartisan approval are being held up on the Senate calendar and not approved. Why? I can tell you why. It is fairly clear. It is part of a strategy that says: If you hold up the judicial nominees as long as possible, in comes that moment of the so-called

Thurmond rule or Thurmond tradition. This relates to Senator Strom Thurmond of South Carolina, who basically said when we are engaged in the depths of a Presidential campaign, the Senate should stop approval of judicial nominees.

There is nothing in the law that requires that. There is certainly nothing in the Constitution. In fact, we have in our own way found exceptions in the past. But what we are seeing now is an effort by the Republicans to hold up or stop judicial nominees in the hopes that the positions will be left vacant through the entire calendar year and then, if they have their way at the polls, a Republican President will fill the vacancies a year from now with new nominees. That is crass. It is unfair.

The men and women who submit their names to be considered as judicial nominees go through a rigorous background check at many different levels--first by the Senators who would nominate them, then by the White House, then the routine examination by the Federal Bureau of Investigation, then once reported to the Senate Judiciary Committee for further investigation and hearing. Their lives are on hold during this process. They wait on the Senate. Once they have cleared these hurdles and finally reach the calendar, many of them believe they can breathe a sigh of relief. A unanimous vote or a strong bipartisan vote in the
Judiciary Committee used to be a signal of success on the floor. Not anymore. At this point they reach the ultimate roadblock: they are stopped on the Senate floor by the Republican minority.

It is not just unfair to judicial nominees--men and women of quality, many of whom have been proposed by Republican Senators--it is fundamentally unfair to our court system. You see, many of these nominees are filling vacancies that are absolutely essential.

Last week I received a letter from the chief judge of the Northern District of Illinois, Judge Jim Holderman. His district is one that has been declared a judicial emergency, meaning the backlog of cases is stacking up and the vacancies need to be filled. He was writing to me and Senator Kirk asking that we do everything in our power to move two noncontroversial, strongly supported nominees through the Judiciary Committee. They are moved through. These two, who came through a bipartisan process, are now sitting on the Senate calendar. They are John Lee and Jay Tharp. John Lee is my nominee, and Jay Tharp is Senator Kirk's nominee. A bipartisan agreement by a bipartisan committee has led to their selection. No one has questioned their ability to serve well on the Federal court.

This is what Judge Holderman wrote:

The vacancies [that they would fill] have been declared judicial emergencies by the Administrative Office of the U.S. Courts. More than a thousand cases that would have been addressed by judges in those positions have been delayed. The other judges of the district have worked to resolve these cases as promptly as possible along with our other assigned cases, but we need help. .....

He went on to say:

Recently, two other active judges [in the Northern District] were in the hospital and remain unable to take new assignments. New civil case filings in our district court have increased. .....

Judge Holderman concludes by saying, `` ..... the people of the northern district of Illinois need your assistance,'' he writes to Senator Kirk and myself, and the full Senate should ``promptly confirm the nominees Jay Tharp and John Lee.''

This is a classic illustration. Well-qualified individuals, having cleared the hurdle, receiving strong bipartisan support in the Senate Judiciary Committee, are mired down on the Senate calendar. Time after time we see when we can finally spring one of these nominations that will have 80 or 90 votes of Senators who approve it. They are noncontroversial. It is clearly a slowdown strategy, so the other side of the aisle, saying their prayers that they can replace President Obama, will literally leave these vacancies for a year or more in the hopes that another President will pick another person. That is unfair to the process. It is certainly unfair to the nominees. It is unfair to this system of government where we are shirking our responsibility to advise and consent for critical vacancies to be filled so our Federal courts can operate in the best interests of justice across America.

I yield the floor.

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