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The Lowdown on the Slowdown

“The chair recognizes the distinguished Republican senator from Honorville.”

“I thank my friend, the presiding officer. I rise today to insist upon a re-establishment of the traditions of the Senate, a return to honorable behavior, an active recognition of the proper and respective constitutional roles of Congress and the president, a return to the service of timely justice above service of partisan politics, and an end to the mistreatment of private citizens willing to take major pay cuts and face public scrutiny for the sake of honorable public service.

“In short, I rise to insist upon prompt hearings and votes for pending federal appeals court nominees, and for their approval unless they are disqualified by ethical or professional shortcomings, without regard to purely political considerations.

“I hate to say it, but the majority of this august body has abused the judicial confirmation process, violated their own promises, contradicted their own standards and, most importantly, badly served the American public and the public’s rightful interest in timely justice. Some of the procedural abuses have been, frankly, scandalous. And to be perfectly clear, my complaints have nothing to do with gaining partisan advantage in some sort of game of ‘inside baseball.’ Instead, they have everything to do with public justice and public service.

“It is tremendously important for the public to understand what is at stake here. The federal circuit courts of appeals are very important bodies. They serve, within their jurisdictions, as the final arbiter for thousands of legal issues. The Supreme Court gets all the attention, of course. But the Supreme Court receives petitions in thousands of cases each year, and chooses to decide only about 100. For every other case, the final word is provided by the circuit courts of appeal.

“Every American citizen is affected by the circuit courts of appeals. Those courts have provided binding decisions on legal issues ranging from home-church land uses to regulation of obscenity, from students’ free-speech rights to the speech rights of police officers. And we all know the truth of the old saying that ‘justice delayed is justice denied.’ Human lives — livelihoods, health-care decisions, retirement planning, decisions about where to live and what schools their children will attend — all hang in the balance. A vacancy in a federal appeals court can delay legal resolution of so many of these issues, in ways that cause lasting damage, damage that cannot be undone. Delays in justice can result, for ordinary citizens, in opportunities missed, suffering extended, investments irretrievably lost.

“I say to the president officer that your majority party right now wants to move through the Judiciary Committee creating, out of thin air, new seats for dozens of new federal judges. You argue that these seats are necessary because the federal courts are so overworked. Yet at the same time, you refuse to fill nearly a dozen existing vacancies for which nominees have been submitted. How does that make any sense? One nominee, Peter Keisler, has waited 700 days just for the courtesy of a hearing — and he is so highly regarded, so remarkably qualified, that he has been repeatedly endorsed both by conservative editorial boards and by liberal outlets such as the Washington Post and the Los Angeles Times.

“A seat usually allocated to Maryland has been vacant for seven full years. That is outrageous. The Fourth Circuit has four vacancies on a bench designed for 15 judges, and is so overworked that it is officially listed as a ‘judicial emergency.’ Further delay is unfair to these nominees, whose entire lives are put on hold while waiting for Senate hearings and votes, and even more unfair to the people they would serve: the people of Maryland, Virginia, North Carolina, South Carolina and, in the case of Keisler, all Americans with legal issues involving the federal government itself.

“My colleagues: That’s why this is important, Mr. Chairman — because, by refusing to even consider, to even hold hearings, for these vacancies, the American people are being terribly ill-served.

“But there is more, Mr. Chairman: much more. There is, for one thing, the all-important comity without which this Senate could not operate, without which it cannot do the people’s business. So much of our business can be conducted only by mutual consent, and mutual consent cannot work if only one side shoots straight and abides by its agreements with the other. And it is impossible to rely on the word of even the most honorable of Members if that Member somehow forgets his previous statements and repeatedly changes his own standards.

“As an example relevant to the subject at hand, I offer the following standards changed, perhaps from sheer, honest forgetfulness, by the distinguished senator from Vermont, chairman of the Judiciary Committee. As recently as earlier this year, the chairman cited support from home-state senators as essential predicates for providing hearings and votes on nominees. Yet now, without offering reasons related to the qualifications of the nominees themselves, the chairman continues to deny even the chance at a hearing to North Carolina’s Robert Conrad and South Carolina’s Steve Matthews even though both nominees enjoy support from both home-state senators. Now, apparently, support from home-state senators is not sufficient unless at least one of those senators is a Democrat — which, of course, is impossible right now in the Carolinas, since all four senators from there are Republicans.

“In the past, the chairman has called approval by the American Bar Association the ‘gold standard’ by which nominees are to be considered, yet now that pending nominees have been unanimously given the highest possible rating by the ABA committee, the ‘gold standard’ apparently isn’t worth even acknowledging.

“In the past, the chairman strongly and rightly condemned the very idea of filibustering judicial nominations to death, yet earlier this decade he helped lead such filibusters. I would note that no judicial nominee had been previously been filibustered to death in the then-214 year history of this nation; the one time a failed cloture vote was the final word on the subject, the nominee failed even to attract majority support, much less a supermajority.

“In the past, the chairman has rightly condemned groups for suggesting that senators opposed a nominee out of anti-Catholic bias; yet in the case of a current pending nominee, the chairman himself publicly accused the nominee of anti-Catholicism. I would note in that case, by the way, that the nominee himself is Catholic, and that the incident to which the chairman referred involved the nominee writing a letter to the editor defending a traditional Catholic priest from insults leveled at the priest by a progressive Catholic nun. How a defense of a Catholic priest can be characterized as being ‘anti-Catholic’ is beyond me — and, frankly, it should have no place in our debate whatsoever. Yet that is the only reason offered by the chairman for opposing Judge Conrad, a distinguished federal district judge overwhelmingly approved to his current post and unanimously rated well-qualified by the ABA.

“Finally, in the past, the chairman has denounced the use of the mythical ‘Thurmond Rule,’ yet now he employs it himself. The so-called rule, which never existed in the first place, was based on a statement the late Sen. Thurmond made in September of 1980 about the inadvisability of considering a new slate of judicial nominees before the presidential election of that year. He made that statement on the same day his committee confirmed 10 judicial nominees, and later that year Thurmond and the Senate confirmed another candidate whose nomination was not even made until after the election.

“Note that the Thurmond statement, which was not a rule, was made in September; note that it was in a July of a later year that the chairman said the so-called rule should not apply yet, and probably not at all; but now he himself invokes the non-existent rule not as late as September of an election year, nor as late as July, but as early as June. He invokes the rule in order to avoid confirming more appellate nominees than the three right now in the pipeline, which would make a grand total of six for the whole year. Yet even when Sen. Thurmond made his statement, the Senate approved 14 appellate nominees not just in the whole calendar year, but 14 after June.

“In short, my friend the committee chairman is misapplying a non-existent rule earlier than it was reputed to apply and to block far more nominees than it was reputed to block.

(PAUSE FOR BREATH AND A SWALLOW OF WATER)

“Now, Mr. Chairman, I must mention, in sadness, the sense of frustration and, frankly, betrayal we on this side feel about the current situation. The fact is that the majority leader gave us assurances at the beginning of this Congress that the Senate would approve at least as many appellate nominees as had been approved for other presidents in the final years of their terms. That assurance is not being met.

“In April, the majority leader gave us assurances that we would move on three appellate nominees between then and Memorial Day. That assurance STILL has not been met. The Leader explains that he tried to move three nominees but that we objected. The fact is that one of the nominees for whom he claims credit had not even been nominated when we made the agreement with each other, and therefore clearly wasn’t covered by the agreement, and furthermore her paperwork was not even forwarded to us in a timely fashion — and, furthermore, she is NOT a nominee chosen by this president, but a Democratic nominee chosen by former President Clinton, whom this president agreed to forward to us in a good-faith effort not to replace our obligations to consider his other nominees, but to provide an olive branch in order to make it easier to move other nominees forward.

“Observers might be forgiven for calling it disingenuous to claim credit for a nominee who our colloquy at the time made clear was not part of the original agreement, and who is not a choice of this president constitutionally endowed with the responsibility of choosing nominees, and who had not been provided adequate time for review, in place of nominees whose records are sterling and whose conduct has been uncontroversial who have waited as much as 700 days for the courtesy the leader wanted his own nominee afforded within six weeks.

“I would remind the leader that this is the third time our president has, against his clear desires, nominated a Clinton judicial selection in order to create good will, only to have his generous gesture thrown back in his face with the other party’s refusal, for no good reasons, to give fair hearings to the president’s other nominees.

“So, in the end, we are faced with promises made and promises repeatedly unkept, with standards cited and the standards repeatedly ignored. We were promised 15 appellate judges overall and are on track for just eight or nine. We were promised the confirmation of three existing nominees by Memorial Day and were given only one. We were told that home-state support would be a key determinant, but it hasn’t been. We were told that judicial vacancies were disabling to the system, but the vacancies haven’t been filled. We were told that the Thurmond Rule should not preclude nominees being considered after July, if ever, yet the rule is being used to preclude nominees as early as June. We were told that views on Catholic doctrine were not relevant to our discussions, yet views on Catholicism have now been cited as a reason to oppose a nominee. We have been told that the ABA is important, except apparently when it isn’t.

“Mr. Chairman, all of this goes against every tradition of the Senate. It destroys comity. It begs for the very retaliation that it will surely receive if allowed to continue. Most of all, it poisons the well on other issues about which we owe the American people better service, while terribly serving the public interest in maintaining adequately filled courts of justice. These are important derelictions of duty, Mr. Chairman, and they must not be allowed to stand.

“I thank the gentleman for his time.”

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