Executive Session

Floor Speech

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Mr. DURBIN. A few moments ago the Republican whip, Senator Cornyn of Texas, came to the floor to oppose the nomination of Nina Pillard to the DC Circuit Court. Sadly, this did not come as a surprise. It is now clearly a political strategy on the other side to block President Obama's nominees for this important court. There are three vacancies on the DC Circuit. Most people view it as the second most important court in the land, next to the U.S. Supreme Court.

The court has eight active judges. It is authorized to have 11. When there are vacancies in our Federal judiciary, the President has a duty to fill them. President George W. Bush made six nominations for the DC Circuit during his Presidency. Of those six nominees, four were confirmed. President Obama, by contrast, has made five nominations for the DC Circuit and so far only one has been confirmed, a well-qualified gentleman, Sri Srinivasan. Two of President Obama's nominees have been filibustered by the Senate Republicans: Caitlin Halligan and Patricia Millett, two exceptionally well-qualified women.

My colleagues on the other side of the aisle have made it clear they intend to filibuster two more equally well-qualified nominees: Georgetown law professor Nina Pillard and DC District Court Judge Robert Wilkins.

This disparity is very obvious for anyone who cares to compare. President Bush: Six DC Circuit Court nominees; four of them confirmed. President Obama: Five DC Circuit Court nominees; four of them likely filibustered by the Republicans.

This is a troubling contrast. There is no question President Obama's nominees have the qualifications and integrity to serve on this important court. There are absolutely no--underline no--extraordinary circumstances that justify filibustering these nominees. Just a few days ago when the Senate Republicans filibustered Patricia Millett, one of the most distinguished nominees to ever come before the Senate, they ignored the obvious: She has argued 32 cases before the U.S. Supreme Court. Is someone literally going to come and say, oh, but she is not qualified to serve in a Federal court.

Not only that, she had the overwhelming endorsement of Solicitors General of both political parties. Clearly, she is well qualified and has bipartisan support for the job. But it was not good enough for the other side of the aisle. They filibustered her, stopping her nomination.

For those who are new to the Senate, the filibuster is an old trick, an old procedural gambit. What happens is that well-qualified people, and many times substantive legislation, are held up indefinitely or stopped with the use of a filibuster. To do it to an amendment or a bill is bad enough, to do it to a human being is something we should think long and hard about. Her nomination, the nomination of Patricia Millett, was supported by Democratic and Republican Solicitors General. They characterized her as ``brilliant'' and ``unfailingly fair-minded.''

Ms. Millett deserved an up-or-down vote on the merits. I doubt there would have been many, if any, on the other side of the aisle who would have voted against her. There is no question she would have served with distinction as a Federal judge. It is a shame she is being filibustered.

Technically, her nomination is still hanging by a procedural thread, I guess, for the possibility of being reconsidered. But when we hear the statement just recently made by the senior Senator from Texas, it gives us scant hope of her successful nomination being approved by the Senate.

Now we are considering another well-qualified nominee to the DC Circuit, Nina Pillard. Ms. Pillard is a distinguished law professor at Georgetown. She is also one of the most talented appellate attorneys in America. She has served with distinction in the Solicitor General's office and in the Justice Department's Office of Legal Counsel. She has argued nine cases before the Supreme Court of the United States. She has written briefs on many more, including U.S. v. Virginia, the landmark equal protection case that opened the doors of the Virginia Military Institute to female students.

There is no question that Ms. Pillard has the intellect, experience, and integrity to be an excellent Federal court judge. She has received strong letters of recommendation from Republicans and Democrats, from law enforcement and law professors.

It is no secret that she has written a number of academic articles in which she argued for gender equality, that men and women be treated fairly and the same under the law in America. Some find this radical thinking. Most Americans believe it should be the law of the land. But law professors are supposed to take part in debates and advance academic discourse. That is their role. Also, issues of gender equality are important in America. Do we not want our daughters to have the same opportunities as our sons?

We should want to have our finest legal minds contribute to this conversation about gender equality. We should not penalize them for doing so. Some have dismissed her nomination because she has spoken out about equality when it comes to men and women in America. That is shameful.

Ms. Pillard also made clear at her nomination hearing she understands the difference between being a professor and a judge. When Ms. Pillard has stood in judgment of others, as she has done when she served on the ABA reviewing committee for then-Judge Sam Alito in 2005, she has been fair and impartial. She probably does not share the views of Alito, but her committee give him a rating of unanimously ``well qualified.'' That rating helped send him off to the Supreme Court.

I think Viet Dinh, former Assistant Attorney General for the Office of Legal Policy under George W. Bush, helped clarify who Nina Pillard is with a letter he sent in support of her nomination. Here is what he said:

I know that Professor Pillard is exceptionally bright, a patient and unbiased listener, and a lawyer of great judgment and unquestioned integrity.

I would go on to say, I know Professor Dinh is a very conservative person. Yet listen to how he concluded his endorsement of Nina Pillard:

She is a fair-minded thinker with enormous respect for the law and for the limited, and essential role of the federal appellate judge--qualities that make her well prepared to take on the work of a D.C. Circuit judge. I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner.

I urge my colleagues to give this well-qualified nominee the chance for a vote on the merits before the Senate.

Some may argue there are three strikes against Professor Pillard for this DC Circuit, and apparently there are.

First, she is an overwhelmingly well-qualified woman. Those nominations are not faring well with the other side of the aisle recently.

Secondly, she has argued that men and women deserve equal and fair treatment in America. That does not sit well with some on the other side of the aisle.

Third, this is a critically important court. There are some who are determined to maintain these vacancies even at the expense of exceptionally well-qualified nominees.

I know my Republican colleagues like to argue: We should not confirm nominees to the court because they just do not work hard enough over there. But does anyone truly believe this caseload argument would stop the Republicans if they were in the White House trying to fill the same vacancies?

We do not have to guess at the answer to that question, we know it. The fact is, the DC Circuit's caseload is actually greater now than it was when John Roberts was confirmed to be the ninth judge on that circuit in 2003. Judge Roberts was confirmed by a voice vote. The argument about not enough work in the court did not seem to come up when it was a Republican nominee for a similar vacancy.

My Republican colleagues have been eager to confirm nominees for the 9th, 10th, and 11th seats on the DC Circuit when a Republican President has been making the nomination. But when it comes to President Obama's DC Circuit nominees, it looks as though we will see four times as many filibusters as we do confirmations.

The bottom line is this: Under the law, there are supposed to be 11 active judges on this circuit. Three vacancies exist. The President has the responsibility to fill them. President Obama's nominees are well qualified. No one questions that. But they are being filibustered by Senate Republicans.

I hope my Republican colleagues change their minds about these filibusters and agree to give these nominees an up-or-down vote. These nominees have done nothing to deserve the filibuster. They deserve to be judged on the merits.

Let me close by saying that we have gone through this debate for a long time on both sides, arguing that well-qualified nominees deserve an up-or-down vote. There have been times when some people have questioned the whole process that would allow this basic unfairness for nominees to the bench that we are seeing happen with the DC Circuit. We have gone from the brink of talking about changing the rules of the Senate, and usually at the very last moment we will step up and try to work out our differences in a fair fashion between the two parties, agreeing that certain nominees will move forward and certain nominees will not.

But I will tell you, as I have said to my friends on the other side of the aisle, there comes a tipping point. There reaches a point where we cannot allow this type of fundamental unfairness and injustice to occur. It is not fair to those nominees who submit their names in good faith, willing to serve on these important judicial assignments and to give their best talents and to show their integrity in the process and then to be given the back of the hand by a Republican filibuster on the floor of the Senate. It reaches a point where we cannot continue to do this.

I say to my friends on the other side of the aisle who have said we should not change the rules of the Senate, it is time for them to show common sense and to show a basic sense of fairness when it comes to those nominees. I hope that when this matter comes before the Senate, my Republican friends across the aisle will relent, will not stop this good nominee from her opportunity to serve.

I hope we can find her nomination and the others who are pending moving forward in a way that is befitting of this great institution.

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