Judicial Nominations

Floor Speech

Mr. SCHUMER. Mr. President, I thank my colleague from Illinois for his usual articulate and prescient comments about our judicial crisis, and that is what we have here in the Senate and in the third branch of government.

I rise today, along with many of my colleagues, to address a serious problem for which there is an easy solution. We have a crisis in our third independent branch of government, and it is one that only we in the Senate can solve. We can solve it. We need to come together as we have in the past and confirm judges to our article III courts and dispense with petty politics and hostage-taking.

Let me give just one example of how our process has broken down. In December, for the second year in a row, my colleagues across the aisle refused to consent to confirm even a single judicial nomination before the end of the Senate session. This senseless rejection of the Senate's longstanding practice of confirming consensus nominees is starting to do real damage to our Federal courts. One out of 10 on the Federal bench, 1 out of 10 seats on the Federal bench is currently vacant. Judicial vacancies are double, two times what they were at this point in President Bush's first term. We have confirmed only 3 judicial nominees this session, only 5 in the past 2 months, and only 11 in the last 90 days.

And of the three judges we have confirmed this session, we had to file cloture on two of them. This is not a responsible use of the Senate's advice and consent powers; rather, this is a handful of people--plain and simple--using the Senate's procedures to thwart the will of the majority of Americans. The vast majority of Americans want us to confirm good, moderate, pragmatic judges to the U.S. district courts. After all, judges on the district court don't make law, they follow law. They are not supposed to make law at all. Courts of appeal have a little more latitude, and, of course, the Supreme Court can make law, although they are supposed to follow tradition and precedent, and they claim they do. We can discuss that a different day.

A few outside groups are trying to accomplish in the third branch of government what they have been unable to accomplish in the other branches of government by making sure that judges with moderate, pragmatic credentials don't get confirmed in the hopes they can fill the bench with people who meet their narrow ideology at some point in the future.

Now, to be sure, my colleagues have offered a wide variety of reasons to explain their inability to consent to votes on district court judges. Some have said they are upset about the President's improper use of his recess appointment powers, powers about which five experts can give five different opinions. What that has to do with the judicial appointments is beyond me. Some have said they are upset about the ability to get floor time on something that is not even germane to judicial nominations.

To hold the third branch of government hostage because they have a different beef on a legislative issue is virtually unprecedented, at least certainly to the extent it has been done here. Some have given into terrible, misleading, and sometimes even vicious attacks on pending nominees. I have seen material circulated by outside groups that appear ready to oppose nominees using any and all tactics. Some of them--not all, not most, but some, and any one is too many--can only be described as bigoted. I have seen it. I have seen the letters to our colleagues here in an attempt to pressure them.

This behavior needs to be stopped, and it certainly needs to stop having an effect on any Member in this body. I have seen material that twists a candidate's record beyond all recognition. In fact, just before recess one group circulated patently inaccurate quotes that were supposed to be from a brief written by now Judge Jesse Furman for a client.

I have said time and time again--and I will say once more today--the Senate certainly has an obligation to take a hard look at the President's judicial nominees. My view is that ideology does matter and every Senator here has the right to make sure a President's judicial nominees are within the mainstream. I would even admit that some definitions of mainstream are different from others, but when nominee after nominee--many of whom were reported unanimously out of the Judiciary Committee, which has some very conservative as well as some very liberal members--are held up by a handful of people, we are not talking about views outside of the mainstream. We are talking about something larger and, frankly, less defensible.

There will always be nominees, especially to the courts of appeals, about whom we will disagree. There will be those whom some of us view as so extreme that we will refuse to give consent to holding an up-or-down vote. But let's be clear; that is not what is going on today.

What is going on today is obstruction, plain and simple--obstruction against anybody, any nominee, and obstruction at unprecedented levels. The total number of Federal circuit and district judges confirmed during the first 3 years of the Obama administration is far less than for previous Presidents. The Senate is more than 40 confirmations behind the pace we set confirming President Bush's nominees between 2001 and 2004. The sheer amount of resistance to President Obama's district court judges indicates the level of obstruction we are facing.

In 3 years President Obama's nominees have received five times as many no votes as President Bush's district court nominees did over 8 years. Isn't that incredible?

The proof is in the pudding. The President's nominees for district court are not out of the mainstream. Almost all of them have logged years in public service or worked in law firms or excelled in other ways that characterized the nominees of previous Presidents. The issue is that the standard has changed. It is no longer, will this judge be good for the country and meet the standards we demand from an article III judge. Now, it is, did I personally approve of this judge; and if I didn't, what can I get by voting for him or her or I am going to block that judge and tie the Senate in a knot so judges only in my narrow viewpoint can be appointed, even though the President is of a different party and of a different philosophy, even though the majority of the Senate on both sides of the aisle are of a different philosophy. This is nothing short of tragic.

I implore my colleagues to think about what they are doing. Let's come together, as I know we can, and confirm qualified district court judges without further gamesmanship, without further obstruction, and without the further view: It is my way or the highway, and if I don't get my way, I am going to try and cripple 1 out of 10 vacancies and cripple the article III branch of government. It is getting close to that.

There are emergencies on many circuits. The future of our courts and even this body could well depend on it.

I yield the floor.

BREAK IN TRANSCRIPT

Source