Thomas I. Vanaskie to be United States Circuit Judge for the Third Circuit

Floor Speech

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Mr. SESSIONS. Mr. President, I briefly wish to share a few thoughts about Judge Thomas Vanaskie, who has been nominated for the Third Circuit Court of Appeals--a very important position. He currently serves on the U.S. District Court for the Middle District of Pennsylvania. I do intend to support his nomination, giving deference to the President, but I would just like to share a thought or two about his testimony before the Judiciary Committee.

Judge Vanaskie testified he believed American courts should not use foreign law in interpreting the Constitution, but he did believe the Supreme Court properly used foreign law in cases such as Lawrence v. Texas, and I think that is a bit contradictory. He also testified that the Supreme Court properly used foreign law in Roper v. Simmons, where the Court concluded that the Constitution, because of ``evolving standards of decency,'' would now prohibit States from imposing the death penalty on juveniles who commit murder. I think that is a legitimate public policy issue to discuss, but the question is, Does the Constitution say a State is not able to decide at what age people are executed?

Judge Vanaskie said, at another point, that foreign law was relevant to determining fundamental constitutional rights. Well, our Constitution is the one we have, and judges, if they are faithful to their oath, will enforce our Constitution--the one we have. It is difficult for me to comprehend how somebody could conclude that a legal action in the European Union would provide illumination to a judge on how to interpret our Constitution and what the Founders meant and the plain meaning of its words.

So I think this is a bad philosophy, and it evidences a detachment of the judiciary from the limited role they are given. We have limited powers, the President has limited powers, and the courts have limited powers. Courts are not empowered to reinterpret our laws and our Constitution based on some better idea they think they may find in France. They are not. This is not a little bitty matter. It is a trend that is occurring in our courts, and I am disappointed that several of the President's nominees seem to be seduced by these ideas, including speeches made by Justice Sotomayor where she talked about how she favored Justice Ginsburg's views about that.

So I wish to give this judge the benefit of the doubt. He did say he didn't follow this doctrine to the full extent of it, and I will give him the benefit of the doubt. But also, some of his statements indicate that he may yet be seduced by this idea. He had difficulty articulating any limit on the commerce clause. The commerce clause says Congress can regulate commerce. Does that mean everything? Does regulating commerce mean you can reach down into Oklahoma and tell an individual farmer: You have to have insurance? That raises a serious question of constitutional power, and does that impact interstate commerce? Well, you could theoretically conjure up a way that it could, but I want to know that a judge understands there is some limit to the amount of reach the Federal Government can have.

We have had a number of people complaining about the process of confirmation and judges languishing before the Senate. In particular, my friend, Senator Whitehouse, noted the nominations of Judge James Wynn and Judge Albert Diaz to the Fourth Circuit. Senator Whitehouse hasn't been here but since 2006, so maybe he isn't familiar with some of the procedures that have gone on before. Wynn and Diaz's nominations have been pending in the Senate for only 167 days. That is half the time--half the time--that President Bush's circuit court nominees waited--350 days.

In fact, four of President Bush's nominees to the Fourth Circuit never received any hearing, and they were highly qualified nominees. Those nominees--Mr. Steve Matthews, Chief Judge Robert Conrad, Judge Glen Conrad, and former Maryland U.S. attorney Rod Rosenstein were well qualified and had the bipartisan support of their home State Senators. Yet they were blocked steadfastly from ever moving forward. President Bush nominated Steve Matthews in September of 2007 to the same seat on the Fourth Circuit for which Judge Diaz has now been nominated and expects to be confirmed--and will be confirmed, I am sure.

For Senators to be whining about how long it takes Judge Diaz to move along, in a fairly steadfast way, in light of what was done to Mr. Matthews, is a bit much to me, I just have to tell you. We all know this is a robust body. We don't mind speaking our minds. But Mr. Matthews had the support of his home State Senators and received an ABA rating of ``qualified.'' He was a graduate of Yale Law School, had a distinguished career in private practice, and he waited 485 days for a hearing and never got one. So his nomination was returned and expired in January of 2009.

Another of President Bush's nominees, Chief Judge Robert Conrad, was nominated to the seat for which Judge Wynn is now nominated. He had the support of his home State Senators, received an ABA rating of unanimous ``well-qualified,'' which is the highest rating. Judge Conrad met Chairman Leahy's standard for a noncontroversial consensus nominee. He had received bipartisan approval by the committee when he was confirmed by a voice vote to be U.S. attorney and later district court judge for the District of North Carolina. He was then chief judge. Senators Burr and Dole sent letters in support of that confirmation. Yet he was blocked.

I know he can make decisions because, if I am not mistaken, I used to say he was the point guard for the University of North Carolina basketball team. I think that was incorrect. I think he was point guard for Clemson. Regardless, anybody who can play a point guard in the ACC can make decisions. He was chosen out of all the prosecutors in America by Attorney General Janet Reno to conduct a very sensitive investigation of President Clinton, when he was accused of some wrongdoing. He conducted that and concluded no charges ought to be brought. This was a highly qualified person. Yet he was blocked.

My time is up, but I know every nominee is not brought up immediately or when some people would want to call up the nomination. It requires unanimous consent to bring up a nominee, to immediately get a vote, and unanimous consent isn't always given, so it does slow down people. I do believe we ought not to unnecessarily delay persons, but I would want to say that the alacrity by which President Obama's nominations are moving far surpasses anything like the difficulties that President Bush's nominees had. I have been here, I have seen it, and I know that to be a fact.

I hope we can create a climate where judges have a reasonable time on the calendar, that they have hearings in the Judiciary Committee, that there is opportunity to raise objections, when they are made, and the nominee comes to the floor and eventually can be brought up for a final confirmation vote. That would be my request.

I see it is time for the vote, and so I yield the floor.

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