The Standing Rules of the Senate are drafted to encourage vigorous public debate on our nation’s most important issues. Indeed, the U.S. Senate is often referred to as “the world’s greatest deliberative body.” The Rules allow any Senator to seek recognition from the Chair at any time and, absent a temporary agreement to the contrary, to speak without interruption so long as he or she wishes. Debating important questions before the Senate is one way a Senator can highlight an issue, advocate for a change in policy, or voice his or her opinion on pending legislation.
Senate debate occurs in public, and is televised on CSPAN and transcribed in the Congressional Record. For your convenience, I post transcripts of my Senate floor speeches on this site for your review. I hope you find them informative and useful. My web site also makes available information on my voting record and legislation that I have sponsored in the Senate.
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Senator Sessions Speaks about Judicial Nominations
Mr. SESSIONS. Mr. President, I think the Senate is clearly in a slowdown. It is not fulfilling its responsibility to evaluate and vote on Presidential nominees for our courts in America.
We are now into the fourth month of 2008 and only one circuit judge, Judge Haynes, who received an ABA rating of unanimously well qualified--the highest rating by the bar--has been confirmed, and that confirmation only happened last week, April 10. So we have gone quite a long time here. We still have 10 pending nominations to the appeals courts that need hearings, need votes out of the Judiciary Committee, and need up-or-down votes on the Senate Floor.
Why is this a problem? I will tell you. Because President Bush campaigned on, and effectively, I believe, won the day on the argument that judges should be, as now Chief Justice John Roberts said at his confirmation hearing, neutral umpires. They are supposed to call the balls and strikes. They are not supposed to be on one side or the other. They are not supposed to be setting forth their personal political agendas in the guise of ruling on disputes of law in a courtroom. That is an abuse of the power of the judiciary. Members of the Judiciary are given lifetime appointments. They cannot be removed except through impeachment or death, and their salaries can not be reduced. It is critical that those judges show restraint and remember their proper role in our three branch system.
Now, the truth is that for many years my liberal activist colleagues have delighted in having Federal judges, and sometimes State judges, promote and affect a political agenda they could not win at the ballot box. That is what it is all about. But we need judges who respect the rule of law and who understand they are not policymakers. If they want to set policy, let them run for Governor, let them run for President or the Senate.
So President Bush has consistently submitted nominees with high ratings, even from the American Bar Association, which frequently, I submit, is more activist than I would favor. Indeed, they meet and have all these resolutions and pass these resolutions on issues with which I do not agree. I am a member of the ABA, but I don't agree with some of the positions they take in these resolutions. They meet in some big conference, unrepresented by the members of the bar, and they do these things.
I mention all that to say they have been rating these present nominees very well. They have been giving them high ratings because they are men and women of good legal ability, sound judgment, and President Bush would not nominate them if they were not committed to the proper role of a judge, in my view.
Circuit court vacancies--these are the 11 circuits we have. The circuit courts are the first level of appellate courts above the Federal district court, the trial courts. When you appeal a criminal conviction or a civil judgment in America, you appeal first from the district court to the circuit court. That is one step below the Supreme Court. Then you can appeal from there to the U.S. Supreme Court, Chief Justice Roberts and his team, right across the street. That is the way the system works. These appellate courts are important because the Supreme Court only takes 100 or so cases a year, and many of the rulings of the circuit courts have become final. That is one reason people consider them to be important. Ultimately, the Supreme Court will rule.
Despite the fact that there are 10 nominees for the 13 vacancies in the circuit courts, the Judiciary Committee, our committee, of which I have been a member now for almost 12 years, has only given a hearing to 1, and that was over a year and a half ago when Senator Specter was chairman, the Republican chairman.
Peter Keisler, the circuit nominee for the D.C. Circuit here in Washington, was given a hearing in August 2006, but he has still not been voted on, called up for a vote in the Judiciary Committee. He is a fabulous nominee. One of the reasons he is being objected to is the same reason they objected to Miguel Estrada, the same reason they objected to a lot of other nominees--he is so capable, he would be on the short list for the Supreme Court of the United States. If they can kill them off at this level, they will not be considered sometime in the future. That is just a fact. I have been here. I know how this works. There is no reason Peter Keisler ought not to be confirmed. He had a hearing in August 2006, and he still has not been brought up for a vote in the committee.
Catharina Haynes was highly rated too. She was confirmed last week after we began to complain about this. That was the first circuit court nomination hearing since September of last year.
The Fourth Circuit is in a crisis. The vacancy rate is alarming. One-third of the seats are vacant. Four nominees are pending for those vacancies, but none has even been given a hearing.
Robert Conrad, former Federal prosecutor, has been waiting for a hearing for 265 days. He is also, at this point, a Federal district judge, a Federal district judge for the Western District of North Carolina. He was nominated for a judicial emergency. He has the support of both his home Senators, received a unanimous ABA rating of ``well qualified,'' the highest rating you can get. He is a consensus nominee. The Senate unanimously confirmed him for his current district judge seat, and the ABA, then, ranked him unanimously ``well qualified.'' The whole ABA 15-member committee voted him the highest rating, unanimously. So why hasn't he been given a hearing?
Steve Matthews has been waiting over 205 days. We have others out there who I think are being slowed down.
Mr. Conrad is an excellent nominee, in my opinion. He has a number of qualifications. I remember he was given the duty to conduct one of the investigations that occurred in the Department of Justice. He testified. I remember him testifying because I liked the honesty and directness in his testimony. He chose not to prosecute anybody for those offenses, but by all accounts he examined it carefully and fairly. Among other qualifications he had, he played point guard on the Clemson University basketball team in the ACC where he was an academic All-American basketball player, among the other things he did, which has always impressed me.
I would say there has been talk about invoking the so-called Thurmond Rule. The Thurmond Rule could sort of be, if you want it to be, an excuse for slow-walking nominees and not approving the nominees who ought to be approved just because there is a Presidential election on the horizon. Majority Leader HARRY REID mentioned last night that the so-called rule would be invoked in June. Senator Leahy has mentioned before that he would invoke it in the second half of this year. Let me say this about the Thurmond Rule. It is a myth. It does not exist. There is no reason for stopping the confirmation of judicial nominees in the second half of a year in which there is a Presidential election.
I remind my colleagues that our now chairman of the Judiciary Committee, Chairman Leahy, when he assumed control over the committee, stated he would institute the Thurmond Rule starting the spring of this year. He said: The Thurmond rule, in memory of Senator Strom Thurmond--he put this in when the Republicans were in the minority--which said in a Presidential election year, after spring, no judges would go through except by the consent of both Republican and Democratic leaders. I want to be bipartisan. We will institute the Thurmond rule.
Those were his remarks at Georgetown University Law School in December 2006.
In May 2007, he reiterated that the Thurmond Rule would kick in next April. Senator Leahy said:
Obviously the Thurmond rule kicks in.
But let's be very clear about it. The Thurmond Rule as interpreted is a false myth. Senator Leahy, before the statements he made in 2006 and 2007 during the Bush Presidency, has admitted as much. In fact, as Senator Leahy said in 2000, when the situation was somewhat different--during President Clinton's final year in office, like this is President Bush's last year:
There is a myth that judges are not traditionally confirmed in Presidential election years. That is not true. Recall that 64 judges were confirmed in 1980; 44 in 1984; 42 in 1988, when a Democratic majority in the Senate confirmed the Reagan nominees and, as I have noted, 66 in 1992, when a Democratic majority in the Senate confirmed 66 Bush nominees.
Those are not my words. Those are Senator Leahy's words.
I see the distinguished ranking member of the Judiciary Committee is here. It is time for him to speak. I will just say that we, as Members of this Senate, have a Constitutional responsibility to move judicial nominees. We should not be playing games. Good nominees with strong support ought to be moved forward. A lot of these nominees have not been treated fairly. It is time to move them forward.
I yield the floor.
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