Consideration Of Judicial Nominations

It is disappointing, but not surprising, that the administration is returning to their tired partisan playbook of trying to pick a political fight over judicial nominations. 

What better time than right now, when the economy is slipping farther off the tracks.  When the President has just proposed another budget with triple-digit deficits.  When al Qaeda is stronger and more virulent than ever, according to General Hayden and Director McConnell, while Osama bin Laden is still at large.  When gas prices and unemployment are rising, and while Senate Republicans try to hide from and sabotage a real debate on a robust stimulus package.  And so out comes that familiar playbook.  But their political barbs are especially hollow, in the light of the actual progress we have made on nominations.  Over the last seven years, Congress has worked to approve an overwhelming majority of President Bush’s judicial nominations.  The argument that the Senate slow-walked the President’s judicial nominations is just wrong.

Last year, the Democratic-led Senate confirmed 40 judicial nominations – more than during any of the three preceding Congressional sessions under the Republican majority.  In fact, the Senate has now confirmed 140 judges in the almost three years it has been run by a Democratic majority.  In the more than four years of Republican control, the Senate confirmed just 158.

Yet President Bush and Republicans in the Senate are picking this week to try to light a fire under a vocal segment of their Republican base.  Is it just a coincidence that they are rolling out this political gambit during the week that this influential segment of the Republican base is coming to Washington for their convention?  Or that the President is trotting out these attacks at the White House on the day before he addresses them?

They seem to have short memories indeed as they whip up complaints about the pace that the Senate is confirming nominations.  If President Clinton’s judicial nominees had received the fair treatment we have given to President Bush’s nominees in the last seven years, judicial vacancies at the end of his administration would not have been at record high levels.  In fact, at the end of President Clinton’s administration, there were 80 judicial vacancies, 26 for circuit courts – and that number swelled to 100, including 32 circuit court vacancies, with retirements on the Federal judiciary early in the Bush administration.  So far, we have reduced vacancies to below 50, and circuit court vacancies are below 15, half of what they were under Republican leadership with a Democratic President.


Not only has the President failed to send us nominations for 4 circuit court vacancies, but we could make more progress if the President decided to work with the Senators from Michigan, Rhode Island, Maryland, California, New Jersey, and Virginia, to identify well qualified consensus nominations.  Instead, we get nominees like Duncan Getchell, whom President Bush nominated last year to one of Virginia’s Fourth Circuit vacancies over the objections of Senator Warner, a Republican, and Senator Webb, a Democrat.  They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell.  As a result, Senators Warner and Webb opposed the nomination and it was withdrawn 4 months later. 


Nonetheless, the Senate Judiciary Committee is working to fill some of those vacancies now.  In fact next week, the Committee will hold a hearing for four more district court nominees.  And, in our efforts to make more progress, the Committee will hold a hearing during the February recess for circuit court nominee Catharina Haynes.  Clearly, the Committee is making progress.


The President and Republicans in the Senate also turn a blind eye to the progress we have made in restoring the leadership of the Department of Justice.  In the last year, amid the scandal over the firings of well-performing U.S. Attorneys, we have seen the resignations of the entire senior leadership of the Department of Justice.  In the last few months, we have confirmed a new Attorney General, and held hearings for the number two and number three positions at the Department of Justice, as well as for several other high ranking Justice Department spots.  Nominations to the Federal judiciary are important; and so is having a functioning, independent Justice Department.


The Committee continues to make progress where it can.  I have shown the commitment to continue to consider judicial nominations in this election year.  However, the President has not shown the commitment to send qualified, consensus nominees to the Senate for consideration.  Instead, he has chosen to play political games with nominations, sending the Senate controversial nominees who have not had the support of home state senators of either party.  The Senate is making progress; the President is moving slowly.  Nineteen of the 45 judicial vacancies are without nominations from the White House, including 4 of the 14 circuit court vacancies.  Seventeen of the 21 vacancies for U.S. Attorneys are without nominations.  Progress is a two-way street.


Under the Democratic-led Senate, we have opened up the nominations process, making public any opposition to nominees.  We have drawn open the curtains on the process that Republicans, during the Clinton administration, kept closed so tightly, enabling them to pocket filibuster 60 of President Clinton’s best nominees.  I have not, and I will not, treat this President’s nominees in that way.  We have and will consider nominations – even those I do not support – openly and on the record, and hopefully with the cooperation of the White House. 


The last time we heard from the President about judicial nominations was in a speech at the conservative Federalist Society.  Now, as the President prepares to address his national base this weekend at the Conservative Political Action Conference, we are again hearing the same tired, political rhetoric.


I have shown the commitment to continue to consider judicial nominations in this election year.  If the President would change course and work with home-state Senators to send qualified, consensus nominations to the Senate for consideration, we could make even more progress.  There is still time.  I hope the White House will change its tune, tone down the political rhetoric, and work with the Senate so we can fill our constitutional role of advice and consent.


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Press Contact

David Carle: 202-224-3693