U.S. SENATOR PATRICK
LEAHY
CONTACT: Office of Senator
Leahy, 202-224-4242 |
VERMONT |
Senator Patrick Leahy's End-Of-Congress
Wrap-Up Report On Judicial Nominations
Republicans Broke, Bent, Changed And Ignored
Senate Rules On Judicial Nominations
(TUESDAY, Nov. 23) -- The U.S. Senate over the weekend confirmed three more
district court judges as part of a bipartisan nominations package, bringing
the total number of President Bush’s nominees confirmed to the federal
judicial bench to 204. With the 100 nominees confirmed by the Democratic
Senate of 2001-2003 and 104 more by the Republican Senate of 2003-2004, the
vacancy rate in the federal judiciary is at the LOWEST LEVEL IN 16 YEARS.
With these confirmations, President Bush has appointed more judges than any
President in four of the last five presidential terms. Only a few of the
President's most controversial nominees have been blocked -- a fraction of
the judicial nominees blocked by de facto and usually anonymous Republican
filibusters in the Clinton Administration. Even so, the Senate's
Republican leadership during the last two years has systematically changed,
bent, ignored or even broken the Senate’s longstanding rules and traditions
on considering judicial nominees to minimize or eliminate the minority's
constitutional advise and consent input in the handling of judicial
nominations -- even concerning nominations to their home states. As the
Senate caps this congressional session and prepares for the 109th Congress,
Senator Patrick Leahy (D-Vt.), the ranking Democratic member of the Senate
Judiciary Committee, the panel which oversees these nominations, called on
the President and the Senate's Republican leadership to end the divisive
choices and tactics concerning nominees to the independent federal
judiciary. Leahy’s remarks, from the Congressional Record, are below.
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Statement of Senator Patrick Leahy
Ranking Democratic Member, Judiciary Committee,
On Judicial Nominations During President Bush’s First Term
Congressional Record
November 20, 2004
THE
SENATE APPROVED 204 BUSH JUDICIAL NOMINEES BUT STOPPED HIS WORST CHOICES
During
the past four years, the Senate has confirmed more than 200 of President
Bush’s choices for the only lifetime jobs in our system of government.
Including the judicial nominees confirmed today, Democrats and Republicans
in the Senate have confirmed 204 circuit, district and trade court nominees
in the past four years. That is more federal judges than were confirmed
for President Reagan during his first term, more than in President George
H.W. Bush’s presidency, and more than in either of President Clinton’s
terms. The first 100 were confirmed in the 17 months of Democratic Senate
leadership. In the other 31 months, Republicans have led the Senate to
confirm another 104.
With
this historic number of confirmations, we are at the lowest number of
vacant seats on the federal courts in 16 years. There are more federal
judges serving today than at any time in American history. With today’s
confirmations, there will be only 26 empty seats on the federal courts. If
retirements and confirmations were to continue at the current pace,
President Bush would be poised to name more than 400 lifetime judges on the
federal bench which contains 879 judges -- that would mean he would have
appointed more judges than any President in our history.
Democrats in the Senate have taken as bipartisan approach as possible
while still preserving the Senate’s independence to act as a check against
extreme or unfit appointments to these lifetime positions. Some of the
nominees this President nominated to appellate courts have been among the
most controversial ever proposed. A handful of them, those with records
that do not demonstrate that they will be fair judges who will fully
enforce our constitutional rights have been denied the consent of the
Senate. The federal courts should not become the arm of the Republican
Party or the Democratic Party. To preserve the independence of the
judiciary, the Senate has served its time-honored roll as a check on the
presidential appointment power. The Constitution says advice and consent
not rubber-stamp.
Ours
has been a good record of both cooperation and independence by the Senate.
Even with this historic level of bipartisan cooperation and despite the
high number of divisive nominees this President has sent to the Senate,
partisans continue to claim that nothing short of 100 percent approval is
acceptable. No President has seen 100 percent of his judicial nominees
approved. Not even George Washington got all of his appointments
confirmed. Shortly after the Judiciary Committee was created, nominees of
President James Madison were defeated in the Committee. More recently
Republicans defeated the nominations of more than 60 of President Clinton’s
judicial nominees and more than 200 of his Executive Branch nominees in
Senate Committees.
PRESIDENT BUSH SQUANDERED OPPORTUNITIES TO BE A UNITER, NOT A DIVIDER, ON
NOMINATIONS
President Bush refused to address the unfair way President Clinton’s
nominees were treated by Senate Republicans through anonymous holds and
other tactics. Objection from even one Republican Senator was allowed to
defeat President Clinton’s judicial nominees. Republicans worked to
preserve vacancies in the
Clinton years, especially vacancies on the circuit courts like the 6th
Circuit and the D.C. Circuit. Two dozen circuit court nominees and more
than 40 district court nominees were denied Senate votes of any kind. They
are now exploiting their success. Unfortunately, President Bush decided in
his first term to seek confrontation and politicization of the process
rather than consensus. There were opportunities to find common ground that
were squandered.
During
the Clinton Administration, leading Republicans claimed that as many as 100
vacant seats in the federal courts did not create any crisis. Some even
boasted that they allowed too many judges to be confirmed. There was a
dramatic shift when a Republican moved into the White House when suddenly
any number of vacancies became a crisis to them. The rules and Senate
procedures Republicans used to stall President Clinton’s nominees were no
longer acceptable to them and were jettisoned with a Republican in the
White House.
UNDER DEMOCRATIC LEADERSHIP, 100 JUDGES WERE CONFIRMED WHILE FOLLOWING THE
RULES
When I
became chairman of the Judiciary Committee and the Committee was
reorganized back in July 2001, we inherited 110 vacant seats in the federal
courts. During my 17 months as chairman, we evaluated the President’s
nominees, and confirmed 100 judges. That represented a tremendous effort
in that short time, especially amid the dramatic crises facing our nation
in the wake of the September 11 attacks and the anthrax attacks directed at
Senate Democrats. Rather than adopt Republican methods by which they
blocked scores of mainstream nominees by President Clinton, we made the
process fairer and more open while preserving the longstanding rules and
precedents of the Judiciary Committee and the Senate.
Over 17
months, we proceeded to give hearings to 103 of President Bush’s judicial
nominees, some of whom proved to be quite controversial and divisive, even
though the President had promised the American people that he was a “uniter
not a divider.” The President’s controversial nominations divided us by
politicizing the federal courts. They included nominees with records of
extremism and in an effort to stack the courts unfairly.
UNDER REPUBLICANS, 104 JUDGES WERE CONFIRMED, AFTER BENDING AND BREAKING
THE RULES
In this,
the 108th Congress, Republicans assumed Senate leadership and proceeded to
bend, break or reinterpret the rules and precedents in their efforts to ram
through the Senate every nominee and turn the Senate into a rubber
stamp for lifetime appointments. It was in the face of these
partisan actions that the only option left to the Senate to protect the
independence and fairness of the courts was extended debate. Democrats
acted sparingly to withhold consent from the most extreme choices of this
President and the most egregious partisan acts of Senate Republicans. I
will not restate the specific concerns with each of those nominees. Those
reasons are stated publicly in the record during debate by many Senators.
Unlike Republican obstruction which took place most often in secret and
without open and honest debate, when we oppose a nominee we said so and
explained why in public.
Republicans have held hearings for 120 judicial nominees in the past two
years, including hearings for 33 circuit court nominees. Republicans
doubled the pace they were willing to maintain from 1997 through 2000 when
it took them four years to hold hearings for 33 of President Clinton’s
circuit court nominees, despite the fact that President Bush’s nominees
have been much more controversial.
FORCING A HEARING FOR THREE CONTROVERSIAL CIRCUIT NOMINATIONS IN ONE DAY
Two
weeks after the session began in January 2003, Republicans insisted on
holding a hearing for three controversial circuit court nominees on a
single panel. This hearing was noticed in less than the time required
under the rules and in spite of a bipartisan written agreement that had
been adhered to since 1987 that only one controversial judicial nominee
would be scheduled at a time. Over the objections of several Members of
the Judiciary Committee, that hearing proceeded on the nominations of
Jeffrey Sutton, Deborah Cook and John Roberts to three circuit courts that
had been held hostage by Republicans during President Clinton’s second
term.
REFUSING TO PROVIDE THE SENATE WITH INFORMATION DESPITE AMPLE PRECEDENT
The day
after that unprecedented hearing in violation of the Thurmond-Biden
guideline, Republicans forced a vote on the nomination of Miguel Estrada,
even though he had failed to answer the questions of many Members of the
Committee and the White House had refused to honor past precedent for
information sharing. Republican partisans then took to calling Senate
Democrats anti-Hispanic. Such false claims marked a new low. Despite the
efforts of some, like Senator Bennett of
Utah, to reach a compromise to allow the Senate to review the work of the
nominee, the White House refused. No reasonable employer would hire
someone who refused to answer basic questions or provide needed documents.
Republicans demanded the Senate proceed with regard to a lifetime
appointment without such information.
Republicans began to list judicial nominees for Committee consideration
even before they had answered the written questions of Senators, let alone
answered them responsively. With President Clinton, Republicans refused to
list a judicial nominee for a Committee vote for weeks and often months and
sometimes forever. Suddenly, with a Republican in the White House,
Republicans decided that Senators did not really need their questions
answered before scheduling a vote. Republican effort to limit the time and
quality of the review of these lifetime appointees was disappointing and
wrong. Editorial cartoons noted that the Committee was becoming nothing
more than a rubber stamp at a conveyor belt factory for judges. This
approach undermined advice and consent.
VIOLATING COMMITTEE RULE IV TO FORCE VOTES ON CONTROVERSIAL CIRCUIT COURT
NOMINEES
In the
final Judiciary Committee meeting in February, Republicans broke another
longstanding rule of the Judiciary Committee, Rule IV, which had been
respected for nearly a quarter of a century. Rule IV requires a Member of
the minority of the Judiciary Committee to consent to end debate in order
to force a vote on a nomination or any other matter. Without consent,
Republicans called debate at an end. The claim that the Senate
Parliamentarian approved this reading of the rule was undercut when the
Parliamentarian advised that his position was that he had no authority to
enforce Committee Rules. The Committee that should respect the rule of law
chose instead to do away with any rule or precedent Republicans found
inconvenient.
REPUBLICAN REWRITING OF HISTORY
In
March, Republicans began claiming that filibusters of nominees were
“unprecedented” and argued that it was unconstitutional to deny a nominee a
vote. These claims were another reversal from the party that had blocked
votes on more than 60 of President Clinton’s judicial nominees and more
than 200 of his executive nominees through a variety of procedures.
Republicans not only ignored their own recent history in which they
unsuccessfully filibustered the nominations of Judge Rosemary Barkett and
Judge H. Lee Sarokin, and successfully filibustered the nominations of Dr.
Henry Foster and Sam Brown, they sought to rewrite the history of the
filibuster of the nomination of Abe Fortas to be Chief Justice of the
Supreme Court. The Senate’s cloture rule is a departure not from majority
rule but from the unanimous consent that has been essential to the
character of the Senate. Now that they are in the majority, Republicans
have no use for rules protecting the minority or for the historic role of
the Senate.
VIOLATING THE REQUIREMENT OF HOME-STATE CONSENT
Republicans turned their practices upside down when the very people who
insisted on recognition of their prerogatives as home-state Senators with
regard to judicial nominees chose with a Republican in the White House to
disregard the lack of home-state Senator support and proceed with hearings
and Committee consideration of the nominations of Carolyn Kuhl, Janice
Rogers Brown, Henry Saad, Richard Griffin, David McKeague, and Susan
Nielson.
Requiring home-state Senator support can and often has led to consultation
and cooperation between the Senate and the White House. This White House
and Senate Republicans who insisted on it without exception during the
Clinton years, dispensed with it when it became inconvenient to their goal
of stacking the courts and moving them sharply in one direction. To do
so, they proceeded in the face of opposition from both home-state
Senators.
When
Republicans were being asked to considering the nominations of a Democratic
President, one negative blue slip from just one home-state Senator was
enough to doom a nomination and prevent a hearing on that nomination. This
included all nominations, including those to the circuit courts. How else
to explain the failure to schedule hearings for such qualified and
non-controversial nominees such as James Beaty and James Wynn,
African-American nominees from
North Carolina? What other reason could plausibly be found for what
happened to the nominations of Enrique Moreno and Jorge Rangel -- both
Latino, both Harvard graduates, both highly rated by the ABA, both denied
hearings in the Judiciary Committee? Republicans used to excuse their
refusal to proceed on President Clinton’s nominees because of the absence
of home-state Senator support. Indeed, in those days, so long as a
Republican Senator had an objection, it appeared to be honored, whether
that was Senator Helms objecting to an African-American nominee from
Virginia or Senator Gorton objecting to nominees from California.
REPUBLICANS DISREGARD THE THURMOND RULE
Republicans continued to hold hearings on controversial judicial nominees
following the party nominating conventions and with the presidential
election just weeks away. Whether they acknowledge it as the Thurmond Rule,
or something else, it is a well-established practice that in presidential
election years there comes a point when judicial confirmation hearings are
not continued without agreement. Republicans used to insist that absent
the consent of the minority, we await the results of the election and the
inauguration of a new president before moving additional nominees.
Republicans lived by this precedent when they ran this Committee in 1996
and later, in 2000. In 1996, when a Democratic President was seeking
re-election, the Republican-controlled Committee held only one hearing to
consider one district court nominee after the August recess, and then never
allowed that nominee to have a Committee vote. In 2000, the
Republican-controlled Committee followed the Thurmond Rule to the letter.
After the August recess work on judicial nominations came to a halt.
Although there were over 30 nominees pending, after
July 25, 2000, no more judicial nominees were scheduled for hearings or
considered by the Committee.
Republicans have gone so far as to reverse their practice with President
Clinton by holding hearings for nominees for positions in the courts that
would not even become vacancies until after the presidential election. As
with everything else, there appears to be one rule for Democrats and no
rules or precedents for Republicans.
REPUBLICAN STAFFERS BREACH ETHICS AND LAW BY STEALING DEMOCRATIC COMPUTER
FILES
Little
did we know that through most of the time, Republican staff had been
stealing Democratic computer files and using them for partisan purposes.
When The Wall Street Journal
and The Washington Times
wrote that they were furnished internal documents, the investigation
began. The Capitol Police seized the Judiciary computer hard drives and
servers and the Senate Sergeant at Arms began an internal investigation.
Staff of the Republican leader and the Chairman of the Judiciary Committee
resigned and confirmed their involvement. This year, the Sergeant at Arms
reported that thousands of files had been stolen over a period of years and
found that this partisan spying and stealing may have violated numerous
criminal laws. It is a shameful chapter in the history of the Judiciary
Committee and the Senate. A federal criminal investigation is ongoing into
this matter and I look forward to the Justice Department completing that
inquiry in the coming year.
THE
PRESIDENT ACTED DIVISIVELY
The
President took the unprecedented steps of renominating controversial
nominees on whom the Judiciary Committee had withheld consent and then
recess appointed controversial nominees on whom the Senate had withheld its
consent. This President has utilized the constitutional recess appointment
power as an end-run around the Constitution’s advice and consent
requirement. This undermines the Senate’s institutional role as a check on
unfit or unfair nominees to our independent court system.
Just as
Senate Republicans viewed longstanding rules and precedent as inconvenient,
the President treated the Constitution’s requirement of Senate consent as
an inconvenience and an opportunity for partisan political gain. The
President went so far as to try to steal a circuit seat from one State and
over objection to award it to another by nominating a Virginian to fill a
traditional Maryland vacancy on the Fourth Circuit.
Most
regrettably as well, the White House fanned the flames and refused to tamp
down hateful and unfounded claims that amounted to religious McCarthyism.
Senate Democrats refused to be cowed by Republican’s false charges that
they were anti-Hispanic, anti-African American, anti-Christian, anti-woman
or anti-man. We were none of these things. The fact of the matter is that
Democrats were anti-judicial zealot, period. Democrats stood up for the
independence of the federal courts and fair, nonpartisan judges for the
American people.
THE
108TH CONGRESS ON NOMINATIONS -- A SAD TRIBUTE TO THE ASSAULT ON THE RULE
OF LAW
These
past two years we have witnessed the Senate Judiciary Committee and the
Senate break with longstanding precedent and Senate tradition. With the
Senate and the White House under control of the same political party we
have witnessed rule after rule broken or misinterpreted away. The Framer’s
of the Constitution warned against the dangers of such factionalism,
undermining the structural separations of power. Republicans in the Senate
have failed to defend the institutional role of this branch as a check on
the President in the area of nominations. It weakens our Constitution to
have such collusion and forfeits the strength and protections of our
separation of powers that was designed to protect all Americans.
From
the way that home-state Senators are treated to the way hearings are
scheduled, to the way the Committee questionnaire was altered unilaterally,
to the way our Committee’s historic protection of the minority by Committee
Rule IV has been violated, to the theft of computer files, Republicans
destroyed virtually every rule, precedent, custom and courtesy that used to
help create and enforce cooperation and civility in the confirmation
process. Their approach to our rules and precedents follows their own
partisan version of the golden rule, which is that “he with the gold,
rules.” It is as if those currently in power believe that that they are
above our constitutional checks and balances and that they can reinterpret
any treaty, law, rule, custom or practice they do not like or they find
inconvenient.
Some of
these interpretations are so contrary to well-established understandings
that it is like we have fallen down the rabbit hole in Alice in
Wonderland. I am reminded that the imperious Queen of Hearts rebuked
Alice for having insufficient imagination to believe contradictory things,
saying that some days she had believed six impossible things before
breakfast. I have seen things I thought impossible on the Judiciary
Committee and in the Senate, things impossible to square with the past
practices of Committee and the history of the Senate.
Under
our Constitution, the Senate has a vital role in the selection of our
judiciary. The brilliant design of our Founders established that the first
two branches of government would work together to equip the third branch to
serve as an independent arbiter of justice. The structure of our
Constitution and our own Senate rules of self-governance are designed to
protect minority rights and to encourage consensus. Despite the razor-thin
margin of recent elections, Republicans are not acting in a measured way
but in complete disregard for the traditions of bipartisanship that are the
hallmark of the Senate. Theirs is a practice of might makes right is
wrong. One of the great strengths of the Senate is its role as a
continuing body with continuing rules that have, until the 108th Congress,
been respected and followed under either Democratic leadership or
Republican control. Our rules must not change to give whoever is in the
majority the power to jerry-rig whatever result is desired.
As the
Reverend Martin Luther King wrote in his famous Letter from a Birmingham
Jail, “Let us consider a more concrete example of just and unjust laws. An
unjust law is a code that a numerical or power majority group compels a
minority group to obey but does not make binding on itself. This is
difference made legal. By the same token, a just law is a code that a
majority compels a minority to follow and that it is willing to follow
itself. This is sameness made legal.”
Fair
process is a fundamental component of the American system of law. If we
cannot have a fair process in these halls or in our courts, how will the
resulting decisions be viewed? If the rule of law is to mean anything it
must mean that it applies to all equally.
No man
and no party should be above the law. That has been one of the strengths
of our democracy. Our country was born in reaction to the autocracy and
corruption of King George, and we must not forget our roots as a nation of
both law and liberty. The best guarantee of liberty is the rule of law,
meaning that the decisions of government are not arbitrary and that rules
are not discretionary or enforced to help one side and then ignored to aid
another. James Madison, one of the Framers of our Constitution, warned in
Federalist Number 47 of the very danger that has threatened our great
nation during the 108th Congress, a threat to our freedoms from within:
“[The] accumulation of all powers legislative, executive and judiciary in
the same hands . . . may justly be pronounced the very definition of
tyranny.”
The
American people deserve better governance than we have seen with the
destruction of rule after rule by a majority willing to sacrifice the power
and precedents of the Senate. Our freedoms as Americans are the fruit of
too much sacrifice to have the rules ignored in the United States Senate by
partisans colluding with the White House to try to appoint unfit loyalists
to courts who have been chosen with the hope that they will reinterpret our
great precedents and overturn the very laws that have protected our most
fundamental rights as Americans.
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