Senate Consideration Of Judicial Nominations

Senate Democrats have worked hard to make progress on judicial nominations.  That hard work has paid off, with circuit court vacancies at less than half of what they were when President Clinton left office.  The Majority Leader last week was right to call the Republican complaints “chutzpah”.

Yesterday, the Michigan Senators and I were able to overcome a long impasse lasting more than a decade over vacancies on the Sixth Circuit.  I have long urged the President to work with the Michigan Senators, and, after seven years, he finally has.  With his nomination of Judge Helene White of Michigan, we have a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends. 

Our actions in resolving this impasse stands is sharp contrast to action of Senate Republicans who refused to consider any nomination to the Sixth Circuit Court of Appeals in the last three years of the Clinton administration, leaving open four vacancies.  Thanks to the hard work of Senator Levin and Senator Stabenow, we are now poised to fill them all.

Judge White was initially nominated eleven years ago, but her nomination was one of the more than 60 judicial nominees the Republicans pocket filibustered.  After literally years of work, her renomination yesterday allows us to move forward with the support of the Senators from Michigan.  I plan to consider the Sixth Circuit nominations as quickly as possible.

We are also poised to make progress to end a long impasse on the Fourth Circuit with the pending nomination of Steve Agee of Virginia.  After insisting on nominating a series of contentious and time-consuming choices like Jim Haynes, Claude Allen and Duncan Getchell, a nomination that was not supported by either the Republican Senator or the Democratic Senator from Virginia, the President this year has finally chosen to work with Senator Warner and Senator Webb.  I have already said that I expect to hold the confirmation hearing on the Agee nomination as soon as the paperwork is completed.  If we are able to confirm Steve Agee, there will be fewer Fourth Circuit vacancies than there were at the end of the Clinton administration.

Just last week, on a day when the Republicans chose to ignore the pressing problems affecting the lives of the American people and vent over judicial nominations, the Senate proceeded on schedule to confirm another five lifetime judicial appointments, including that of Catharina Haynes to fill the last vacancy on the Fifth Circuit.  Like yesterday’s progress with nominations to the Sixth Circuit, this stands in marked contrast to consideration of nominations to that court during the Clinton administration.  At that time, the Republican-controlled Senate refused to consider nominees for the last four years of the Clinton administration, while the Chief Judge of the Fifth Circuit declared a circuit-wide emergency. Today, there are no vacancies on the Fifth Circuit.

I have said for eight years that if the President is willing to work with us and consult in the constitutionally mandated process of advice and consent, we can make significant progress.  When he does so, as he has recently with respect to Virginia and now Michigan, I have commended him.  I do so again today. 


It has taken years.  It has taken effort.  It has taken the steadfastness of Senators Levin and Stabenow.  Today we can all take heart that we have broken through a decade’s old impasse.  Others have tried but been unsuccessful.  I know that Senator Hatch tried and Senator Specter tried.  We are succeeding.  We are succeeding because we have not been distracted by politically driven fights but stayed focus on making real progress.  Even now, while others insist on fussing and fighting, I am working to continue to make progress where we can. 


We have already cut the circuit court vacancies more than in half.  Today circuit court vacancies stand at 12, the lowest number of such judicial vacancies in more than a decade, indeed since the Republican effort to stall President Clinton’s nominees and increase circuit court vacancies.  By the end of President Clinton’s administration, the Republican majority in the Senate had expanded those vacancies from 12 to 26. When I began the consideration of President Bush’s nominees in the summer of 2001, circuit court vacancies stood at 32 and overall vacancies topped 110.  Yet we get no credit or even acknowledgement from the Republican side of the aisle for all our efforts and accomplishments in cutting those vacancies.  In fact, we are being penalized for doing a good job early and not following their pattern of building up massive vacancies before allowing nominations to proceed.   


While I continue to process nominations in the last year of this President’s term, we have already lowered the vacancies in the Second Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, the D.C. Circuit and the Federal Circuit.  Both the Second and Fifth Circuits had circuit-wide emergencies due to the multiple simultaneous vacancies during the Clinton years with Republicans in control of the Senate, some numbering as high as five.  Both the Second Circuit and the Fifth Circuit now are without a single vacancy after last week’s confirmation of Judge Catharina Haynes.  Circuits with no vacancies also include the Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the Eleventh Circuit and the Federal Circuit.  That is five circuits without a single vacancy due to our efforts.  Indeed, the only circuit that has more vacancies than it did at the end of the Clinton administration is the First Circuit, which has gone from no vacancies to one.  The other three circuits, the Third, the Fourth and the Seventh have the same number of vacancies today that they had at the end of the Clinton administration.  When we take action on the Agee nomination from the Fourth Circuit, even that circuit will be in an improved posture.


I am trying to make significant progress.  I have made sure that we did not act as Republicans did during the Clinton administration when they pocket filibustered more than 60 judicial nominations and voted lock step against the confirmation of Ronnie White.  I am also mindful that their bad behavior not simply be forgotten, and thereby rewarded.  They have yet to acknowledge responsibility and accept any accountability for their actions.  We have not engaged in a tit-for-tat.  Rather, by cutting the vacancies as we have, we have taken a giant step toward resolving these problems, just as we are now on course to resolve the longstanding impasse in the Sixth Circuit.  We have acted more fairly.  I hope to be able to complete the restoration of the confirmation process during the next President’s administration.  We will then have overcome years of partisan rancor.   


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