Moving Ahead for Progress in the 21st Century Act

Floor Speech

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Mr. MERKLEY. Madam President, I am rising to speak about the Senate's constitutional duty of advice and consent on judicial nominations. This power is enormously important. In no way did the writers of our Constitution envision that this body would use their power of advice and consent as a method of undermining the ability of the other two branches to perform their responsibilities.

Indeed, throughout the history of the United States, Senators from both sides of the aisle have taken this responsibility of advice and consent very seriously. This duty requires us to put aside ideology and partisanship because otherwise our constituents, through our inaction, would be unable to obtain the speedy and public trial that is supposed to be their birthright as Americans.

Americans are not thinking of their district courts in terms of red courts and blue courts. They are not thinking of their circuit courts in terms of red courts and blue courts. No, they are thinking about Lady Justice, about justice being delivered in an evenhanded and swift manner. When they see the obstruction of the judiciary that is emanating from the Senate, they are frustrated.

They are frustrated. They recognize that when the judiciary is damaged and justices go unappointed, indeed that means delays for cases and that means their right to a speedy trial is taken away. They are thinking about the chaos that results when a case remains in limbo for too long.

So why in the past few years have we allowed partisanship to overtake our duty to maintain a functional judiciary? Simply put: Some Senators in this body, motivated by misguided notions of partisan warfare, have decided to abuse the supermajority power of this Chamber in order to undermine the judiciary.

This bears little resemblance to the Senate of 1976 when I first came here as an intern, when the power of the supermajority was recognized as an exceptional act of conscience to be used only for the most enormous issues, when a Senator would be willing to stand on the floor of the Senate and make his or her case before the American people as to why the simple majority envisioned in the Constitution for this body to act should be obstructed. Now we see Senators exercising their power to obstruct a simple majority and not coming to the floor to defend their position. They are afraid of public reaction to their obstruction of this body because they know the public expects us to be responsible in reviewing and voting on nominees for the executive branch and for the judiciary.

The Senate of 1976 would never have entertained the idea that well-qualified nominees would be routinely subjected to filibusters. Indeed, even throughout most of the last decade, this has not been the case. So imagine my surprise when I came here as a new Senator in 2009, revisiting the Chamber I came to as a youth in 1976, and I discovered the two Senates bore little resemblance to each other; that the reasonably responsive, bipartisan, collaborative body of 1976 had been replaced with a Senate now paralyzed due to the abuse of the filibuster and the supermajority.

Instead of debate and deliberation, followed by up-or-down votes, Senators have even been blocking motions to proceed. In other words, they have been blocking the ability to debate whether to get to a bill in order to debate an issue--two levels removed from actual discussion and decisionmaking.

In contrast to the image Americans have of the filibuster made famous by Jimmy Stewart, who comes to Washington and stands in the well of the Senate and carries on his fight and his argument in front of the American people until he collapses from exhaustion, now the Senator who filibusters can hide from the American people. They object to the simple majority rule, go off and have a fancy wine dinner, while American justice remains unfulfilled. That is not right.

There has been egregious abuse of the filibuster across all areas, but it is particularly destructive in regard to judges. That is because we are often talking about judges everyone agrees are well qualified--judges who pass out of committee unanimously, and judges who, when they reach a final vote, pass this Chamber with 80 or 90 or 95 Members saying, yes, that person is the right person to fill that judicial vacancy. So why on Earth--why on Earth--are we dragging our feet on these nominees when we have courts in crisis?

Lest my colleagues on the other side of the aisle simply think we are raising this now because we are in the majority and they are in the minority, let us revisit the point in 2004, at the exact same point into the administration of George W. Bush that we are now with this administration.

Here is a chart that compares the two administrations. We have both the circuit court and the district court. This far into the administration of George W. Bush, the time it took to go from committee to being confirmed was 29 days. The time now is 131 days for a circuit court nominee, and getting longer with every delay we have. And for the district court, at this time in the Bush administration, it took 22 days to go from committee to confirmation, whereas now, under the dysfunction of our current Senate, with the abuse of this current Senate, it is taking 93 days.

If these bars were reversed, my colleagues in the minority would come to the floor and say, look what a good job we did previously and what a terrible job is being done now, and I would agree with them, that we have to be able to get folks out of committee and we have to be able to vote on them. We need to work together to change this situation because the result of these delays means there are more and more vacancies, more and more judicial emergencies, and where it has been declared those vacancies are having an emergency impact on the function of the judiciary.

Let's take a look at that issue. Here we have judicial vacancies in recent Presidencies. In March 1996, we had 53 vacancies at that time in one administration. In March 2004, there were 47 vacancies under Bush. Now here we are with 94 vacancies in district and circuit courts, so virtually a doubling of those vacant positions that are preventing speedy and responsive trials across our Nation. That is why our Chief Justice has declared there is a judicial emergency in our country; that justice delayed is justice denied; that we, the Senate, must do a better job of fulfilling our responsibility under the Constitution.

In many cases, the home State Senators for a particular circuit or district court nominee have done their job. They have vetted the candidates, forwarded the names of nominees, and the administration has picked one of them. Often this is a bipartisan deliberation. Yet here we are, even after clearing the Judiciary Committee in a bipartisan fashion, paralyzed on the floor of the Senate. So we have no one else to blame. We can't blame the home State Senators, we can't blame the Judiciary Committee. It is only the floor of this Chamber where there is obstruction by those who are basically taking an arrow and aiming it at the heart of justice across this Nation.

It is time for this body to do its job, and it is time for these nominees to be voted on here on the floor of the Senate. It is time to fill those vacancies and put justices into place in order to fulfill our responsibility to advise and consent and to fulfill the judiciary's responsibility to provide justice across our Nation.

Madam President, I yield the floor, and I suggest the absence of a quorum.

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