Judicial Nominations

Floor Speech

Mr. SESSIONS. Mr. President, I wish to speak about the Senate's processing of judicial nominations, and I ask you to forgive me if I am a bit irritable, but we have had a lot of complaints about how fast President Obama's nominations are going forward. I think they are moving rather well. I think some people who are now complaining have forgotten how they handled President Bush's nominees--and in a much more unacceptable fashion.

I wish to emphasize that all of this is not to lay the groundwork for some sort of payback, because I think we all ought to rise to the challenge of handling nominations properly, but to set the record straight, because there has been a lot of misinformation and some of our newer Senators don't know how things have happened.

Allegations of unprecedented obstruction and delay have been bandied about--some in the press also--but the reality is that the Democrats' systematic obstruction of judicial nominees during the Bush administration was unprecedented then and it is unmatched now. Soon after President Bush was elected, a group of well-known liberal professors--Laurence Tribe, Marsha Greenberger, and Cass Sunstein--met with the Democratic leadership in the Senate. The New York Times reported on that meeting. I believe it was in January, before the session began, and the Times reported that they proposed ``changing the ground rules'' of the confirmation process. They proposed that with a Republican President and Democrats in the Senate, Senators consider a nominee's ideology--their personal political views, I suppose, they meant. For the first time in the history of the country, they proposed that the burden be shifted to the nominee to prove they are worthy of the appointment instead of having the Senate respect the presumptive power of the President to make the nomination and then object if there was a disagreement.

As time went on, it became clear that a majority of the Democratic Members of the Senate began to execute their unprecedented obstruction
plan, targeting President Bush's circuit court nominees while moving district court nominees to mask the obstruction. After Democrats took control of the Senate in 2001, the Senate confirmed only 6 of President Bush's 25 circuit court nominations that year. Two of the six were prior Clinton nominees that President Bush had renominated as an act of good faith. They weren't his nominations. He renominated them and they promptly confirmed them--two of the six.

The majority of President Bush's first nominees--nominated on May 9, 2001--waited years for confirmation. Let me list some of the names: Priscilla Owen, who was then on the Supreme Court of Texas--a brilliant jurist--was confirmed but only after 4 years, on May 25, 2005. These were in that first group. Now Chief Justice John Roberts--a fabulous nominee; probably--not probably, he was the premier appellate lawyer in America--was nominated to the DC Circuit. He was confirmed, but only after 2 years and after undergoing two Judiciary Committee hearings. He eventually was confirmed by a voice vote.

Jeffrey Sutton, another superb lawyer with great skill in the appellate courts, was confirmed but only 2 years later.

Deborah Cook, for the Sixth Circuit, was confirmed 2 years later on May 5, 2003.

Dennis Shedd was confirmed more than a year and a half later.

Michael McConnell, for the 10th Circuit, was confirmed more than a year and a half later but also by voice vote--he was delayed that long for no reason.

Terrence Boyle waited almost 8 years until his nomination was allowed to lapse at the end of President Bush's Presidency. He was never confirmed.

Perhaps the most disturbing story was that of Miguel Estrada, whose name was raised during the Supreme Court nomination of Justice Kagan. He was an outstanding, highly qualified nominee who was nominated on May 9, 2001, just like the others, right after President Bush took office. He waited 16 months just for a hearing in the Judiciary Committee, only to be confronted with demands that the Department of Justice turn over internal legal memoranda that had never been turned over before. They used that for 2 1/2 years, leaving him in limbo, and then had a protracted 6-month filibuster. I think it was the first overt, direct filibuster of a highly qualified nominee the Senate had seen. This was one of the ground rule changes that occurred. There were seven cloture votes on Miguel Estrada, seven attempts by the Republicans to produce an up-or-down vote on the floor of the Senate on Miguel Estrada. It went on for weeks. I participated in that. I probably spoke on his behalf more than any other Senator. Eventually, Mr. Estrada withdrew his name from consideration. He had a private law practice to deal with. He could not continue this.

I remain baffled today as to why such a fine nominee was treated so poorly, his character assassinated, and his nomination was ultimately blocked for no reason. The record that they claim needed to be produced from the Department of Justice was, by every former living Solicitor General--they said those are internal lawyer-client documents that should not have been produced. It was a sad day. I hope the Senate has learned from that unfortunate event.

One of the most blatant examples of obstruction of Bush nominees occurred in the Fourth Circuit. This court sat one-third vacant. One-third of the judges had retired, and it was vacant. They needed judges. I did not hear any of my Democratic colleagues worrying then about vacancies and caseloads when they were deliberately delaying and blocking outstanding, well-qualified nominees to that court, including Federal District Court Chief Judge Robert Conrad, Judge Glen Conrad, Mr. Steve Matthews, and Mr. Rod Rosenstein. They deliberately blocked these nominees to keep those vacancies open so that a Democratic President would perhaps have the opportunity to fill them.

That actually turned out to be a success, from their perspective. A 2007 Washington Post editorial at the time lamented the dire straits of the Fourth Circuit at the time, writing:

[T]he Senate should act in good faith to fill vacancies--not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crimes in the region the Fourth Circuit covers. Two nominees--Mr. Conrad and Mr. Steve A. Matthews--should receive confirmation hearings as soon as possible.

But they did not.

He was the chief presiding trial judge in a district court, a Federal district court. He was nominated to the seat for which President Obama's nominee, Judge James Wynn, was confirmed on August 5 of this year. They held that seat open for 8 years. Since the President has been in office, he nominated someone else, and he got his nominee confirmed by this Senate.

Chief Judge Conrad had the support of his home State Senators and received an ABA rating of unanimously ``well qualified,'' the highest rating you can get. He met Chairman Leahy's standard for a noncontroversial, consensus nominee. He previously received bipartisan approval by the Judiciary Committee and was unanimously approved by the Senate to be U.S. attorney and later to be district court judge for the Western District of North Carolina. Of all the lawyers in the country, Attorney General Reno, when he was a Federal prosecutor, reached out to him and picked him to preside over the investigation of one of the campaign finance task force cases that implicated, perhaps, President Clinton, the President of the United States. He did that investigation professionally. He returned no indictments against the President or his top people. He was respected on both sides of the aisle. Yet he was flatly blocked, although representing the highest quality.

On October 2, 2007, home State Senators Burr and Dole sent a letter to Senator Leahy requesting a hearing--at least a hearing on Judge Conrad. They also spoke on his behalf at a press conference on June 19 that featured a number of Judge Conrad's friends and colleagues who traveled all the way from North Carolina to show their support. The request for a hearing was denied.

On April 15, 2008, Senators Burr, Dole, Graham, and DeMint sent a letter to Senator Leahy asking for a hearing on Judge Conrad and Mr. Matthews. That request was denied.

Despite overwhelming support and exceptional qualifications, Judge Conrad waited 585 days for a hearing that never came. His nomination was returned to the President on January 2, 2009. That was a horrible event, in my view. The Senate failed in its duty. Judge Conrad was a powerful, bipartisan nominee with great credentials and served Attorney General Reno and the Democratic President and should have been confirmed.

Another of President Bush's outstanding nominees was Judge Glen Conrad. He also had the support of his home State Senators, including Democratic Senator Jim Webb of Virginia, and received an ABA rating of ``well qualified,'' the highest rating. He, too, met Chairman Leahy's standard because he had already been confirmed to the District Court for the Western District of Virginia by a unanimous vote--89 to nothing.

Despite his extensive qualifications, Judge Conrad, who was nominated on May 8, 2008, waited 240 days for a hearing--just a hearing in the committee--that never came. His nomination was returned to the President in 2009, as President Bush left office. In stark contrast, President Obama's nominee to this seat, Judge Barbara Milano Keenan, received a hearing a mere 23 days after her nomination and a committee vote just 22 days later, and she was confirmed at the beginning of this year--a slot that should have been filled by Mr. Conrad.

President Bush nominated Steve Matthews in 2007 to the same seat on the Fourth Circuit to which Judge Diaz has now been nominated. 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 and had a distinguished career in private practice in South Carolina.

Despite these qualifications, he waited 485 days for a hearing that never came. His nomination was returned to the President as he was leaving office.

That does not seem to slow down my Democratic colleagues who have forgotten all this, I guess, and their allies in the press from unabashedly complaining that Judge Diaz had been waiting too long for this seat, for a confirmation vote, or decrying the need to rush to fill the vacancy--a vacancy that just has to be filled right now.

The truth is that the vacancy should never have existed if Mr. Matthews had been confirmed when he was supposed to have been confirmed.

Earlier this year, we confirmed Judge Andre Davis to the ``Maryland'' seat on the Fourth Circuit. A brief history of that bears mention. President Bush nominated Rod Rosenstein to fill that vacancy in 2007. The ABA rated him unanimously ``well qualified,'' the highest rating. Previously, he had been confirmed unanimously as the U.S. attorney for Maryland. Prior to that, he held several positions in the Department of Justice under both Republican and Democratic administrations.

Despite these stellar qualifications, Mr. Rosenstein waited 414 days for a hearing--just a hearing in the Judiciary Committee, which the Democrats never gave him. His nomination was returned to the President on January 2, 2009.

The reason given by the home State Senators for why his

nomination was blocked was that he was ``doing [too] good [of a] job as U.S. Attorney in Maryland.'' I think the Washington Post editorial painted a more accurate picture, saying:

Blocking Mr. Rosenstein's confirmation hearing ..... would elevate ideology and ego above substance and merit, and it would unfairly penalize a man who people on both sides of this question agree is well qualified for a judgeship.

But it was only when President Obama nominated Judge Davis to this seat that we heard our Democratic colleagues express outrage over the fact that it had been vacant for 9 years. I said that was like the man who complained about being an orphan after having murdered his parents. Ironically, however, Judge Davis fared far better than President Bush's nominees to the Fourth Circuit. He received a hearing a mere 27 days after being nominated. A committee vote occurred 36 days later, and he has been confirmed.

Suffice it to say that the Democrats have capitalized on their 8 years of obstruction of outstanding, well-qualified Bush nominees by packing the Fourth Circuit Court of Appeals with Obama-picked nominees.

I want to say, parenthetically, President Bush did an excellent job of picking high-quality judicial nominees. Consistently, they sought out highly competent men and women of integrity and ability to appoint to the courts, people who had this fundamental belief--that some on the other side do not like--that a judge should follow the law, should be a neutral umpire, and should not take sides and ought not to be an activist and ought not to promote their personal agenda when they get a chance to rule and define the words of statutes and the Constitution. There is a fundamental difference. I will talk about that later. I may not get to that today, but I am going to talk about it some more. It is a big deal, what you think the role of a judge is. Should they be an activist? Should they promote greater vision, as President Obama said, of what America should be? Is that what we want judges to do? Classically, in America, judges are empowered to do one thing: to decide the discrete case before them objectively, impartially, under the laws and Constitution of the United States.

The Democratic Senators perpetrated similar systematic obstruction in the Sixth Circuit. I hate to say it. I hate to talk about it. I sound like I am being a partisan person over here, complaining. I am just reading the record.

In November of 2001, President Bush nominated Judges David McKeague, Susan Neilson, and Henry Saad to fill vacancies on that court. In June of 2002, he nominated Richard Griffin to fill an additional Sixth Circuit vacancy.

Mr. President, I see my time is up. I don't see anyone on the floor. I ask unanimous consent that I be able to proceed.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SESSIONS. Mr. President, I will yield the floor if and when my colleagues seek it.

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