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Democrats Still Refuse to Take ‘Yes' For an Answer on Judicial Nominees

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Location: Washington, DC


Democrats Still Refuse to Take ‘Yes' For an Answer on Judicial Nominees

‘What is now going on—or more accurately, what is not going on—is yet another step backward in the politicization of a process we had all hoped we could get beyond'

U.S. Senate Republican Leader Mitch McConnell delivered the following remarks at a forum Monday regarding Democrats' decision to put partisanship above a fair process for circuit court nominees:

"I thank Senator Alexander and the Republican Conference for this forum on the need to remove politics from the judicial confirmations process.

"When this Congress began, we all hoped that a forum such as this would not be necessary. The Majority Leader and I agreed that the partisanship that had infected the judicial nominations process over the years was unhealthy. And we committed to make this Congress different. The Majority Leader—like the Los Angeles Times and the Washington Post—acknowledged the President's good faith in not resubmitting circuit court nominees whom Democrats disapproved of. In return, he pledged that Democrats in the President's final two years would treat circuit nominees fairly.

"Now, what is ‘fair?' This President is a ‘lame-duck,' and Senate Democrats hope to recapture the White House. So obviously, there is a partisan incentive not to confirm his judicial nominees. That is human nature, but that is not a new phenomenon. President Bush is not the first President to be in his final two years in office when the opposite political party controls the Senate, and he will not be the last.

"Even with ‘lame duck' Presidents, there is an historical standard of fairness when it comes to confirming judicial nominees, especially circuit court nominees. The Majority Leader and I agreed that this Senate should meet that standard. The average number of circuit court confirmations in this situation is 17. President Clinton had 15. This Senate has confirmed only 10 circuit court nominees, and our Democratic colleagues have not indicated that they will do better. What happened?

"Unfortunately, old habits are hard to break. And in my opinion, Democrats on the Judiciary Committee found it hard not to play politics. It started with the re-nomination of Judge Leslie Southwick. Judge Southwick was a distinguished state court judge and an Iraqi War veteran. Moreover, he was someone whom Committee Democrats had already approved, unanimously, to the district court.

"So at the beginning of this Congress when the President tried, yet again, to fill a vacancy on the Fifth Circuit that had existed for his entire Presidency, he did not resubmit a nominee whom Democrats opposed. Instead, he quite reasonably nominated someone whom Committee Democrats had already approved: Leslie Southwick. How did Judiciary Committee Democrats respond? With one exception, they did an about face and actually tried to filibuster Judge Southwick's nomination.

"Unfortunately, Judge Southwick isn't the only consensus nominee who became ‘controversial.' Judge Robert Conrad is the Chief Judge of a federal district court in North Carolina. The Senate has already approved him to important positions twice: first, as the chief federal law enforcement officer in his state, and then to a lifetime position on the trial bench. The American Bar Association has given him its highest rating, unanimously well qualified. And former Attorney General Janet Reno called him ‘an excellent prosecutor,' and said she was ‘impressed with his judgment . . . and his knowledge of the law.'

"Again, to resolve a dispute—this time over a Fourth Circuit seat—President Bush did not resubmit a nominee whom Senate Democrats opposed. As with Judge Southwick, he nominated someone whom they had already approved: Judge Robert Conrad.

"Guess what has happened? Well, nothing. This Thursday, Judge Conrad will have been sitting in the Committee for 365 days without a hearing, even though he meets all the Chairman's criteria.

"What is the result of all this? While Judge Conrad waits in Committee, the circuit court to which he is nominated is over 25 percent vacant. Its Chief Judge states that to keep up with its work, the Court must rely heavily on district court judges. In short, it is robbing Peter to pay Paul. ‘It goes without saying,' she says, ‘that having to use visiting judges puts a strain on our Circuit. In particular, it forces the Circuit's district judges to perform ‘double duty.''

"Still, the Committee refuses to move Judge Conrad's nomination, or any other pending Fourth Circuit nominee.

"For example, we are told that Democrats do not support Rod Rosenstein's nomination to the Fourth Circuit—which is supported by the Washington Post—because he is doing too good a job in his current position as U.S. Attorney. Enough said.

"No party is without blame in the confirmation process. But what is now going on—or more accurately, what is not going on—is yet another step backward in the politicization of a process we had all hoped we could get beyond. We have an impressive panel of experts from various fields and with various backgrounds to discuss this situation, and I look forward to hearing from them.

"And I thank Senator Alexander again for organizing this forum and Senator Specter, our distinguished Ranking Member on the Judiciary Committee, for presiding over it."


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