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Mr. GRASSLEY. Mr. President, for the last few weeks, it has been routine practice here in the Senate that we vote on consensus district court nominees most Mondays. We have done so quite a number of times in this Congress. We could have done so again tonight. Instead, the majority leader has decided to pursue another course. Rather than confirm what would have been the 155th judge tonight, the majority will instead engage in a political activity. Make no mistake, it is purely and simply a political posturing situation. It is really unfortunate.
It is well known that the practice and tradition of the Senate is to stop confirming circuit nominees in the closing months of a Presidential election year. That is what we have done during the last number of Presidential election years. That started in 1980, I believe. So that would be 32 years. In fact, today is July 30. You would have to go back that number of years to find a Presidential election year when we approved a circuit court judge this late.
Of course, the rationale has been that this close to an election, whoever wins that election should be the one to pick these lifetime nominees who will run our judiciary system. It is true that there were some votes in relation to circuit nominations in July during the last two election years. The only problem, of course, is that those were cloture votes on outstanding nominees the Democrats were filibustering.
For example, in July 2004--remember, that was a Presidential election year--cloture votes were held on four outstanding circuit nominees the Democrats were filibustering. Those included Miguel Estrada, nominated for the D.C. Circuit; Richard Griffin, nominated to the sixth circuit court; David McKeagh, nominated to the sixth circuit; and Henry Saad, also nominated to the sixth circuit.
I would note that at the time the sixth circuit alone had a 25-percent vacancy rate. And every one of those vacancies was designated as judicial emergencies.
That, of course, didn't matter to the other side. Despite the fact that the sixth circuit was in dire straits, the other side filibustered every one of those nominees.
I don't recall too much concern from my friends on the other side of the aisle about the need to confirm those judges.
And now, when our side seeks to enforce the rule the other side helped create and perfect, all we hear are complaints.
Mr. President, if ever there was an example of ``crocodile tears,'' this is it.
In 2008, the other side was at it again. Once again, they closed-up shop on Circuit nominations in June. This time, it was the Fourth Circuit that was in dire straits.
Despite the fact that the Fourth Circuit was 25 percent vacant, the Democrats refused to even process four outstanding consensus nominees.
Those nominees included Judge Robert Conrad, even though he had already been confirmed unanimously as a U.S. Attorney and District Court Judge. Democrats refused to process Judge Glen Conrad even though he had strong bipartisan home state support. Steve Matthews also had strong home-state support yet the Democrats in Committee refused to give him a vote. To show you the incredible lengths the Democrats were willing to go, they even tried to justify blocking the nomination of U.S. Attorney Rod Rosenstein to the fourth circuit by claiming he was doing ``too good of a job'' as U.S. Attorney to be promoted.
By refusing to give these nominees a vote in Committee, the Democrats engaged in what amounted to a ``pocket filibuster'' of all four of these candidates to the fourth circuit.
And again, this was at a time when the fourth circuit's vacancy rate was over 25 percent, similar to the Sixth Circuit vacancy rate in 2004. But that didn't matter to the other side. In 2008, just like in 2004, they simply refused to process any more circuit nominees after June.
At the end of the day, based on any fair and objective metric, the suggestion that we today are operating any differently than Democrats did in 2004 and 2008 is simply without merit. Democrats stalled and blocked numerous highly qualified circuit nominees during those Presidential election years including even nominees with bipartisan support.
The Democratic leadership has invoked repeatedly what has been called the ``Thurmond Rule'' to justify stalling nominees--even those with bipartisan support. And now they don't want us to play by the same set of rules. The Democratic leadership doesn't want us to enforce the rule that they helped establish.
Let me quote from a CRS report on this subject:
The Senator who most frequently has asserted the existence of a Thurmond rule has been the current chairman of the Judiciary Committee.
The CRS report noted that on March 7, 2008, the Chairman recalled:
When President Reagan was running for President and Senator Thurmond, then in the Republican minority as ranking member of the Judiciary Committee, instituted a policy to stall President Carter's nominations. That policy, known as the ``Thurmond Rule,'' was put in when the Republicans were in the minority. It is a rule that we still follow, and it will take effect very soon here.
Again, this was in March of that Presidential election year, not June or July.
CRS went on to note the strong support the majority leader has expressed for the so-called Thurmond rule. According to CRS:
Senator Harry Reid, the Senate majority leader, has expressed agreement with Senator Leahy about the existence of a Thurmond rule. In April 10, 2008, floor remarks, Senator Reid said, ``In a Presidential election year, it is always very tough for judges. That is the way it has been for a long time, and that is why we have the Thurmond rule and other such rules.''
Five days later, the Majority Leader said: You know, there is a Thurmond doctrine that says: After June, we will have to take a real close look at judges in a Presidential election year.
These quotes indicate not only the expectation, but in fact a support for slowing down and cutting off the confirmation of judges in a Presidential election year.
Senate Republicans are invoking this practice in a more narrow fashion, and after more confirmations than Democrats did in the past.
Setting aside the so-called Leahy-Thurmond rule, by any objective measure, this President has been treated fairly and consistent with past Senate practices.
For example, with regard to the total number of confirmations, this President is well ahead of his predecessor. We have confirmed 154 of this President's district and circuit nominations. We have also confirmed 2 Supreme Court nominations during President Obama's first term. When Supreme Court nominations are pending in the Committee, all other nominations work is put on hold.
The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during that term the Senate confirmed a total of only 119 district and circuit court nominees.
Let me put it another way, under similar circumstances, we have confirmed 35 more district and circuit nominees for President Obama than we did for President Bush.
During the last Presidential election year, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. This Presidential election year we have already exceeded those numbers, having confirmed a total of 32 judges. So those who say that this President is being treated differently either fail to recognize history, or want to ignore the facts, or both.
While this President has not been treated differently than previous Presidents, he certainly has behaved differently with regard to nominations. He has been slow to send nominees to the Senate, and he abused his recess appointment authority. If President Obama hasn't gotten as many confirmations as he could have, it is because he has been slow to nominate and he has abused his recess appointment power.
Let me take just a moment to discuss how slow the President has been with his nominations.
When President Obama took office, there were 59 judicial vacancies. One year earlier, at the beginning of 2008, there were only 43 vacancies. So, during the last year of President Bush's second term, when the Democrats controlled the Senate, and during a time when they refused to process four nominees for the fourth circuit, they allowed the vacancy rate to increase by more than 37 percent.
By mid-March 2009, when the first Obama judicial nomination was sent up to the Senate, there were 70 judicial vacancies. Over the next 3 months, only five more circuit nominations were sent to the Senate. By the end of June, when the Senate received its first district nomination, there were 80 vacancies.
The failure or delay in submitting nominations for vacancies has been the practice of this administration and it still continues to this day.
By the end of 2009, there were 100 vacancies, with only 20 nominees. In December 2010, more than half of the 108 vacancies had no nominee. At the beginning of this year, only 36 nominees were pending for the 82 vacancies. And it continues to this day, more than half of the 76 vacancies have no nominee.
I just want to remind my colleagues that all of this begins with the White House. So if someone wants to complain about judicial vacancies, they should mail those complaints to 1600 Pennsylvania Avenue.
Now, I also mentioned that the President could have had a few more district court nominees at the end of last Congress.
Our side offered to confirm quite a number of district court nominees who were on the Executive Calendar, If the President would provide his assurances that he wouldn't bypass the Senate with recess appointments. The President refused to provide those assurances, and we found out why a couple weeks later when the President unconstitutionally bypassed the Senate.
I want everyone to understand that. At the end of last Congress we offered to confirm quite a few district court nominees. But the President wouldn't take ``Yes'' for an answer. Rather than choosing a path that led to more progress and a greater number of confirmations, the President chose the path to more confrontation and fewer confirmations.
The same thing happened last week. Once again, our side offered to confirm additional district court nominees. But, once again, the other side refused to take ``Yes'' for an answer. Rather than choosing the path that led to cooperation and additional confirmations, the other side chose more confrontation and fewer confirmations. They would rather waste precious time on a vote to nowhere, than spend the little time we have left on getting more nominations done. So here we are engaged in this political theater.
I urge my colleagues to vote ``No'' on cloture.
I yield the floor and suggest the absence of a quorum.
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