Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee Correcting the Record On Judicial Nominations
June 3, 2013
Before the Senate went into recess, I was disappointed with statements made to the Senate that misstated the history of Judge Srinivasan’s confirmation process. The Senator who said that the Chairman of the Judiciary Committee made “no effort, no effort” to have a hearing on Judge Srinivasan until late last year was misinformed. We made efforts in the fall before the election to schedule such a hearing and renewed our push to have a hearing on his nomination before the end of the session. I was accommodating Republican objections by not scheduling a hearing before the end of last year. Those erroneous Record statements have me wondering whether I should be so accommodating to Republican scheduling demands given that they forget their demands in their efforts to avoid responsibility and blame others.
Judge Srinivasan was nominated on June 11, 2012, during a summer when Senate Republicans were in the process of constricting the confirmation process and intent on their misapplication of “the Thurmond rule” to stall judicial nominees before the presidential election. It was only in May that the Senate finally completed action on the 19 nominees held over from the Senate Executive Calendar in 2011. Republicans were then in the process of filibustering a nominee to the Ninth Circuit from Arizona who was recommended by Jon Kyl of Arizona, a Republican Senator and member of their Senate leadership. Republicans were dragging out confirmations of judicial nominees who had been nominated in the fall of 2011 and the early months of 2012. They even filibustered a Tenth Circuit nominee from Oklahoma who had been supported by the Republican Senators from Oklahoma in what was the first filibuster of a circuit court nominee reported with bipartisan support by the Judiciary Committee. They filibustered a First Circuit nominee from Maine supported by the Republican Senators from Maine. In addition, Republicans had filibustered the earlier nomination of Caitlin Halligan to the D.C. Circuit. Anyone who needs to refresh their recollection of those months should reread my statements on judicial nominations from June 6, June 11, June 12, June 18, June 26, July 10, July 16, July 23, July 30, August 2, September 10, September 20, November 30, December 3, December 6, December 11, December 13, and December 17.
By July 19, 2012, I had determined that the paperwork on the Srinivasan nomination was complete and the nominee could be included in a hearing. It has been my practice as Chairman of the Judiciary Committee to give the minority notice and allow consultation before scheduling a nomination for a hearing. At that time, the next July hearing had been discussed as one devoted to the nominee to head the Antitrust Division at the Department of Justice, a nomination that itself had been delayed and to which there was Republican opposition. During the August recess, my staff asked Senator Grassley’s about holding the hearing on the Srinivasan nomination in September. They raised objections and concerns about proceeding with the D.C. Circuit nomination at that time but agreed to proceed with four district nominees and a Court of International Trade nominee.
In November, 2012, after the American people reelected President Obama, we raised the need for a hearing on the D.C. Circuit nomination anew. Republicans objected, again, in spite of the precedent of holding a hearing for one of President Bush’s D.C. Circuit nominees during a similar lame duck session. Instead, they wanted to proceed only with district court nominees during the lame duck. Republicans insisted that the Srinivasan hearing be put off until the new Congress and the new year. In deference to the Republican minority, I held off. They agreed that he would be included at the first nominations hearing of the 113th Congress.
Then, in early January of this year, when called upon to hold up their end of the bargain, Republicans balked. They insisted that the nominee and others be interviewed and scores of documents produced in their effort to stall other nominations. The nominee was not, and could not have been, the “lawyer…who handled” the Magner case. In fact, the U.S. was not a party in the Magner case. As was readily apparent from the one email that named Srinivasan, his alleged “involvement” was merely being asked by Tom Perez, now the President’s nominee to be Labor Secretary, a technical legal question about U.S. Supreme Court procedure. It was the nominee’s job as the Principal Deputy Solicitor General to answer such questions for administration officials – and he did answer it appropriately. Republicans could have asked him about it at his confirmation hearing in January and fulfilled their agreement, but they insisted on using his nomination as leverage against the administration. They insisted, instead, on first interviewing three U.S. Department of Justice officials, including Tom Perez, before they would go forward with his hearing.
After months of attempts to get committee Republicans to focus on the nominee at hand while they insisted on their wide-ranging investigation of Tom Perez, a nominee not pending before the Judiciary Committee, Republicans finally agreed to include Srinivasan at the Judiciary Committee hearing on April 10, 2013. That was more than seven months after the hearing I had first proposed and more than three months after the hearing to which they had previously agreed.
As I noted in my December 12 hearing statement, as Chairman I had not jammed the minority with judicial confirmation hearings the way my Republican predecessor did. We held only 11 judicial confirmation hearings in 2012. In light of the Senate’s recess schedule for the election cycle, we held only two after the August recess. The nominations included at those hearings were the result of consultation with the ranking member and were essentially by agreement. I now see that such conciliation and accommodation leads only to recrimination from the Republican side of the aisle.
The nominee was praised at the hearing and proceeded to answer scores of written questions after the hearing. When he had provided his written responses, I listed his nomination for action by the Judiciary Committee on May 9, 2013. In what has become standard practice for the Republicans on the Judiciary Committee, they insist on holding over the nomination for no good reason. I have protected the minority’s right to hold over despite the abuse to which they have extended its use.
Presaging the unanimous Senate vote, the vote in the Judiciary Committee was 18 to zero when it was finally allowed to proceed on May 16. Republicans then insisted that the Senate vote on his confirmation be delayed two weeks until after the Memorial Day recess. I would not be surprised if Senate Republicans now took credit for expediting that vote despite the fact that it took the Majority Leader filing a cloture petition to get that vote in May.
I make significant efforts to ensure that the minority is prepared to move forward on a nomination before we schedule a hearing. My staff routinely gives them our plan weeks in advance. And even with this advance notice, I routinely have to notice a hearing without listing nominees because the minority has not yet read basic material on the nominations despite its availability for weeks and sometimes months.
I am disappointed that despite the fact that I have bent over backwards to accommodate them, Senate Republicans contended that I made “no effort, no effort” to hold Judge Srinivasan’s hearing last fall. One Republican Senator said during the debate on the Srinivasan nomination that the delay must have been my choice, since that decision is “solely within the control of the Democratic Majority.” For Senate Republicans to pretend that they had no role in delaying this nomination was wrong. The real shenanigans in the Senate regarding judicial nominations have been by Senate Republicans.
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