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| April 16th, 2008 |
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Media Contact(s): Mark Eddington or Jared Whitley (202) 224-5251 |
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Printable Version |
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FLOOR SPEECH: TIME TO QUIT STALLING ON CONFIRMING JUDICIAL NOMINEES
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Washington - Sen. Orrin G. Hatch (R-Utah) delivered the following speech on the floor of the United States Senate, regarding judicial nominations and the deplorable, obstructionist behavior of the Senate majority in not bringing noncontroversial nominees to the floor for a straight up-or-down vote. Hatch's prepared remarks follow.
Mr. President, last week an event occurred that was a long time coming.
I am not talking about the grand opening of the Newseum a few blocks from here down Pennsylvania Avenue.
No, last week the Senate finally voted on and confirmed a few nominees to the federal bench.
This event is of historical proportions because not since 1848 had the Senate taken this long to confirm a federal judge in a presidential election year.
You heard me right.
The first judicial confirmation of 2004 was on January 28, the first one in 2000 was on February 10, and the first one in 1996 was on January 2.
One of my Democratic colleagues was here on the floor last week trying to shuffle the historical chairs on the judicial confirmation deck by talking about the 1996 session rather than 1996 itself because the second session of the 104th Congress began on January 3.
By dicing and splicing the calendar that way, he tried to avoid counting all of the judges we confirmed that year.
I am not going to play that game.
I am comparing apples with apples, years with years.
In 33 of the 40 presidential election years since 1848, the Senate confirmed the first federal judge by the end of February.
Not mid-April, not mid-March, but the end of February.
This is the latest start to judicial confirmations in a presidential election year in 160 years.
Now I realize that the Senate cannot vote on nominations that have not been reported to the floor from the Judiciary Committee.
And the Judiciary Committee generally does not report out nominees who have not had a hearing.
Unfortunately, the Judiciary Committee has simply not been holding hearings for nominees to the U.S. Court of Appeals.
There was no judicial confirmation hearing at all last month, and the hearing two weeks ago was yet another one with no appeals court nominee.
This graph shows the number of appeals court nominees receiving a Judiciary Committee hearing in each of the 16 Congresses since I was first elected to the Senate.
These are the 95th Congress in 1977-78 to the current 110th Congress.
You can see there is some variation here and there from Congress to Congress, but without a doubt the 110th Congress is the lowest of them all.
Appeals court nominees are simply not getting hearings.
This graph helps us better evaluate what is going on today.
The Judiciary Committee held a hearing for an average of 23 appeals court nominees in the previous 15 Congresses during which I have served in this body.
One of my Democratic colleagues last week actually mocked using such an average as a comparison.
This average is over many years and includes periods when Democrats as well as Republicans ran the Senate and occupied the White House.
It is a much better, much more reliable standard than pulling out the single year or, worse yet, only the portion of a single year that makes a pre-determined partisan point.
Today, fifteen months into the 110th Congress, only five appeals court nominees have received a hearing.
That is less than one-fourth the average over the previous 30 years.
Now some might say that presidential election years, and therefore presidential election Congresses, are different, that everything slows down.
OK, fair enough, perhaps that would be a better comparison.
Comparing the current Congress with the previous seven presidential election Congresses, however, only widens the contrast between what the Senate has done in the past and what the Senate is not doing today.
It turns out that the Judiciary Committee held a hearing for an even higher average of 25 appeals court nominees during those presidential election seasons.
In the current presidential election season, however, only five appeals court nominees have had hearings.
If the partisan roles were reversed and the pace of hearings for appeals court nominees had slowed to perhaps one-half or one-third of the historic average, I can guarantee you that my friends across the aisle would be down here raising the roof about how we were failing to do our confirmation duty.
In fact, when I chaired the Judiciary Committee under the previous President and the hearing pace was much faster than it is today, my colleagues on the other side did complain early, loudly, and often.
But the pace today is worse than one-half, worse than one-third, worse even than one-fourth of the historic average.
The current Judiciary Committee hearing pace for appeals court nominees is the worst in decades.
In fact, there is virtually no current pace at all.
It has not been this way in the past, and it does not have to be this way today.
I am pleased that last night the distinguished Majority and Minority Leaders spoke about this here on the floor and the Majority Leader acknowledged that “we need to make more progress on judges.”
The Majority Leader said he would do his very best, his utmost as he put it, to confirm three more appeals court nominees by Memorial Day, which is coming in less than six weeks.
I would like to point out a few highly qualified nominees who have been waiting a long time and who I hope will be included in this effort.
Yesterday, this editorial appeared in the Washington Post.
It opens with these words: “It is time to stop playing games with judicial nominees.”
The editorial correctly notes that the Senate confirmed more than twice as many appeals court nominees in the final two years of the Clinton administration than the Senate has confirmed so far in the 110th Congress.
Even with the three additional appeals court nominees the Majority Leader has pledged to confirm, we have a lot of ground to make up.
The editorial suggests beginning to make up that ground by confirming Peter Keisler to the U.S. Court of Appeals for the D.C. Circuit and Rod Rosenstein to the Fourth Circuit.
Unlike some other languishing appeals court nominees, Mr. Keisler has at least had a hearing.
But it was 624 days ago.
Mr. Rosenstein has not been waiting that long, but is fully as qualified. As the Post editorial points out, he has admirers on both sides of the aisle and is an excellent and principled lawyer.
Two other Fourth Circuit nominees whose consideration by the Judiciary Committee is long overdue are Steven Matthews of South Carolina and Robert Conrad of North Carolina.
My colleagues from those states are speaking in more detail on the floor today, but I want to highlight that these fine nominees have the strong support of their home-state Senators.
Lack of such support can be a reason why a nominee does not get a hearing.
I know, because that is the reason I could not give a hearing to some Clinton judicial nominees when I chaired the Judiciary Committee.
But that is not the case with these nominees.
And in Judge Conrad’s case, this body confirmed him just a few years ago to the U.S. District Court without even a roll call vote.
I hope that this pledge by the majority to make some much-needed confirmation progress is not just a temporary flash in the pan.
The Majority Leader last night suggested that there is some kind of rule that the Senate does not confirm judicial nominees after June.
He actually referred to this as the Thurmond Doctrine.
I want to say to my colleagues that there is no such thing as a Thurmond Doctrine, a Thurmond Rule, or even a Thurmond Guideline for judicial confirmations in a presidential election year.
In 2000, the current Judiciary Committee Chairman said that while things might, he said might, slow down “within a couple months of a presidential election,” that the best judicial confirmation standard was set in 1992.
Like today, his party was in the majority.
Like today, a President Bush was in the White House.
Senator Thurmond himself was Ranking Member of the Judiciary Committee.
In that presidential election year, the Judiciary Committee held hearings on appeals court nominees until September 24 and the Senate confirmed appeals court nominees until October 8.
The Senate confirmed 66 judges, including 11 appeals court judges, in 1992.
So I want to dispel this judicial confirmation myth that there is any kind of rule, let alone a doctrine, that justifies shutting down the confirmation activity which I hope and trust is finally about to begin.
There is no doubt that we are way behind where we should be in the judicial confirmation process.
But it does not have to stay that way, not if we are serious about doing our duty.
As the Washington Post editorial said, the Senate “should at least give every current nominee an up-or-down vote and expeditiously process the nominees to the U.S. Court of Appeals for the Fourth Circuit.”
That would be a great place to start.
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