05.03.11

Statement Of Senator Patrick Leahy On Republican Filibuster Of The District Court Nomination Of Jack McConnell

Last night, Majority Leader Reid was forced to file another cloture petition on a Federal judicial nominee, the fifth required to be filed during President Obama’s term. Among the highly-qualified nominees being stalled is Jack McConnell, who is nominated to a vacancy on the United States District Court for the District of Rhode Island.

I am concerned that we have to file cloture on nominations that should simply have an up-or-down vote. I hope we are not returning to the situation we had during the Clinton administration when my friends on the Republican side of the aisle pocket filibustered 61 of his nominees.

We tried to change that in the 17 months I was chairman during the first 2 years of President Bush's first term when I moved 100 of President Bush's nominees through the Senate. In the remaining 2 1/2 years, the Republicans were in charge, and the Senate confirmed another 105. We tried to change what had been an unfortunate procedure. I hope we are not going back to that.

Jack McConnell has the strong support of his home state Senators, bipartisan support from those in his home state, and his nomination has been reported favorably by a bipartisan majority of the Judiciary Committee multiple times. This nomination is one of many that have been stranded on the Senate’s Executive Calendar for many months – stalled by Republican objection to proceeding to debate and vote.

Just a few years ago, Republican Senators argued that filibusters of judicial nominees were unconstitutional, and that every nominee was entitled to an up-or-down vote.  They unsuccessfully filibustered President Obama’s first judicial nominee, and have stalled many others.

Cloture is now being required to overcome another in a series of Republican filibusters in order to vote up or down on a judicial nominee at a time when extensive, and extended, judicial vacancies are creating a crisis for the Federal justice system and all Americans.

Unfair Scrutiny of District Court Nominations Is a Break from the Senate’s Practice

With these filibusters, the Senate’s Republican leadership seems determined to set a new standard for obstruction of judicial nominations. I cannot recall a single instance in which a President’s judicial nomination to a Federal trial court, a Federal district court, was blocked by a filibuster.

When I came to the Senate, the President of the United States was Gerald Ford, whose statue we just unveiled in the Rotunda. We did not filibuster any of his Federal district court nominees. We did not filibuster any of President Jimmy Carter's district court nominees. We did not filibuster any of President George H. W. Bush's district court nominees.

We did not filibuster on the floor any of President Clinton's or any of President George W. Bush's nominees. Somehow the rules have changed for President Obama.

This is troubling as chairman of the Judiciary Committee, but also troubling to the Federal judiciary nationwide.

So I did a little research. Looking back over the last six decades, I found only three district court nominations—three in over 60 years—on which cloture was even filed. For two of those, the cloture petitions were withdrawn after procedural issues were resolved. For a single one, the Senate voted on cloture and it was invoked. All three of those nominations were confirmed. I trust that the nomination of Jack McConnell will also be confirmed.

From the start of President Obama’s term, Republican Senators have applied a heightened and unfair standard to President Obama’s district court nominees. Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home state Senators who know the needs of their states best. Instead, an unprecedented number of President Obama’s highly-qualified district court nominees have been targeted for opposition and obstruction.

That approach is a serious break from the Senate’s practice of advice and consent. Since 1945, the Judiciary Committee has reported more than 2100 district court nominees to the Senate. Out of these 2100 nominees, only five have been reported by party-line votes. Only five total in the last 65 years. Four of these five party-line votes have been against President Obama’s highly-qualified district court nominees. Indeed, only 19 of those 2100 district court nominees were reported by any kind of split roll call vote at all, and five of those, more than a quarter, have been President Obama’s nominees, including Mr. McConnell.

Democrats never applied this standard to President Bush’s district court nominees, whether in the majority or the minority.

And certainly, there were nominees to the district court during put forth by that administration that were considered ideologues. All told, in eight years, the Judiciary Committee reported only a single Bush district court nomination by a party-line vote. Somehow President Obama is being treated differently than any President, Democratic or Republican, before him.

That was the controversial nomination of Leon Holmes, which Senators opposed because of the nominee’s strident, intemperate, and insensitive public statements over the years. Judge Holmes argued that “concern for rape victims is a red herring because conceptions from rape occur with the same frequency as snow in Miami,” and called concerns about pregnant rape victims “trivialities”.  He suggested that it was correct to say that slavery was just God’s way of teaching white people the value of servitude. He wrote that he did not believe the Constitution “is made for people of fundamentally differing views.” We opposed Judge Holmes nomination, strongly, but we did not block it from consideration by the Senate. He was not filibustered. His nomination was confirmed without the need for a cloture vote.

Practice of Obstruction Began Immediately When President Obama Took Office

 

With judicial vacancies at crisis levels, affecting the ability of courts to provide justice to Americans around the country, we should be debating and voting on each of the 13 judicial nominations reported favorably by the Judiciary Committee and pending on the Senate’s Executive Calendar. No one should be playing partisan games and obstructing while vacancies remain above 90 in the Federal courts around the country. With one out of every nine Federal judgeships still vacant, and judicial vacancies around the country at 93, there is serious work to be done.

Regrettably, Senate Republicans seem intent on continuing with the practices they began when President Obama first took office, engaging in narrow, partisan attacks on his judicial nominations.

These unfair attacks started with President Obama’s very first judicial nomination, David Hamilton of Indiana, a 15 year veteran of the Federal bench. President Obama nominated Judge Hamilton in March 2009, after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who then strongly supported the nomination. Rather than welcome the nomination as an attempt by President Obama to step away from the ideological battles of the past, Senate Republicans ignored Senator Lugar’s support, caricaturing Judge Hamilton’s record and filibustering his nomination. The Senate was not able to have an up-or-down vote on his nomination until we overcame a Republican filibuster eight months after he was nominated. After rejecting the filibuster with an overwhelming vote of 70 to 29, Judge Hamilton was confirmed.

Republican Senators who just a few years ago protested that such filibusters were unconstitutional, Republican Senators who joined in a bipartisan memorandum of understanding to head off the "nuclear option" and agreed that nominees should only be filibustered under "extraordinary circumstances," abandoned all that they said they stood for and joined together in an attempt to prevent an up-or-down vote on President Obama’s very first judicial nominee.

In other words, the standard they said should be applied to every single President in the history of this country suddenly was changed when this President came in. They chose to ignore their own standards outlined in a letter sent to President Obama not long after he took office, and before he had made a single judicial nomination, in which Senate Republicans threatened to filibuster any nomination made without consultation.

Of course, President Obama did consult with the senior-most Republican Senator on a nomination to fill a vacancy in his home state, but still they filibustered. In fact, he has consistently consulted with home state Senators, both Republicans and Democrats. It makes you wonder what it is about President Obama which makes Republicans want to change the rules for him, rules that existed for every President prior to him. Since the filibuster of Judge Hamilton, Senate Republicans have required the Majority Leader to file cloture on three more highly-qualified circuit court nominees. This is a far cry from Republican insistence that every nominee is required by the Constitution to have an up-or-down vote, or even from the “extraordinary circumstances” Republican Senators now claim to be the basis for a filibuster.

No Senator could claim the circumstances surrounding the filibusters of President Obama’s circuit court nominations to be extraordinary. Republicans filibustered the nomination of Judge Barbara Keenan, a nominee with nearly 30 years of judicial experience, and who had the distinction of being the first woman to hold a number of important judicial roles in Virginia. She was ultimately confirmed 99-0 as the first woman from Virginia to serve on the Fourth Circuit. Senate Republicans filibustered the nomination of Judge Thomas Vanaskie, whose 16 years of experience as a Federal district court judge in Pennsylvania are now being used in service to the Third Circuit Court of Appeals, after his overwhelming confirmation. Senate Republicans filibustered Judge Denny Chin of the Second Circuit, another nominee with 16 years of experience as a Federal district court judge. He is now the only active Asian Pacific American judge to serve on a Federal appellate court, after being confirmed unanimously.

In addition, the Republicans’ across-the-board practice of refusing consent and delaying consideration of even nominations with unanimous support has led to a steady backlog of pending nominations. The refusal of Republicans to give consent to consideration meant that 19 judicial nominations were stranded on the Senate’s Executive Calendar at the end of last Congress. There are 13 judicial nominations now on the calendar that Democrats are prepared to consider.

Each of these nominations should be considered without unnecessary delay. If we do that, we can reduce the judicial vacancies to 80 for the first time since July 2009. Yet, we are forced to overcome filibusters even to have a debate and vote on district court nominations.

Republican Senators’ Double Standard

These filibusters stand in stark contrast to the views of Republican Senators about the role of the Senate in considering judicial nominees when the President was from their own party. In 2005, when the Republican majority threatened to blow up the Senate to ensure up or down votes for each of President Bush’s judicial nominations, Senator McConnell, then the Republican whip, said:

Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent. The stakes are high . . . . The Constitution of the United States is at stake.

Other Republican Senators made similar statements back then. Many declared that they would never support the filibuster of a judicial nomination. Others subscribed to the standard that the so-called gang of 14 formulated that they would only filibuster in "extraordinary circumstances." The only extraordinary circumstance in this case is the judicial vacancies crisis that has prompted the President, the Chief Justice, the Attorney General, bar associations and many others to call for prompt consideration and confirmation of judicial nominees.

Yet, rather than applying consistent standards and debating and voting on judicial nominations favorably reported by the Judiciary Committee, we see Republican Senators adopting a double standard and engaging in a dramatic break from the Senate’s tradition by filibustering this district court nomination.

The Nomination of Jack McConnell

Jack McConnell is an outstanding lawyer. President Obama has nominated him three times to serve as a Federal district court judge in Rhode Island.?With more than 25 years of experience as a lawyer in private practice, Mr. McConnell has the strong support of both Rhode Island Senators, Senator Reed and Senator Whitehouse.?He has been reported by a bipartisan majority of the Judiciary Committee three times.

Individuals and organizations from across the political spectrum in that state have called for Mr. McConnell’s confirmation.?The Providence Journal endorsed his nomination by saying

In his legal work and community leadership [he] has shown that he has the legal intelligence, character, compassion, and independence to be a distinguished jurist.

Leading Republican figures in Rhode Island have endorsed his nomination. They include First Circuit Court of Appeals Judge Bruce Selya; Warick Mayor Scott Avedisian; Rhode Island Chief Justice Joseph Weisberger; former Rhode Island Attorney General Jeffrey Pine; former Director of the Rhode Island Department of Business, Barry Hittner; former Rhode Island Republican Party Vice-Chair John M. Harpootian; and Third Circuit Court of Appeals Judge Michael Fisher.

Some oppose him because he successfully represented plaintiffs, including the State of Rhode Island itself, in lawsuits against lead paint manufacturers. Some here in the Senate may support the lead paint industry. That is their right. I support those who want to go after the people who poison children. That is what Mr. McConnell did.  But nobody should oppose Mr. McConnell for doing what lawyers do and vigorously representing his clients in those lawsuits.

The Senate has finally begun to debate this nomination, and some have wasted no time in coming to the Floor and distorting, I believe, Mr. McConnell’s testimony before the Committee.?I disagree with Senator Cornyn’s characterization of Mr. McConnell’s testimony.  As Chairman, I take seriously the obligation of nominees appearing before the Judiciary Committee to be truthful. I would be the first Senator to raise an issue if there were any legitimate question as to the accuracy of Mr. McConnell’s testimony. But there is not.

The accusation stems from Mr. McConnell’s recent testimony as a witness deposed in a lawsuit brought by one of the paint companies engaged in litigation with Mr. McConnell’s client. That lawsuit alleges that Motley Rice, the law firm where Mr. McConnell is employed, improperly?obtained a 34-page confidential company document from one of the lead paint companies. Mr. McConnell is not a party to the lawsuit, but was deposed last September only as a witness. His answers at his deposition concerning his knowledge of the confidential document were the same as his responses to written questions from Senator Kyl following his hearing nearly a year ago, and the same as his responses to Senator Lee in written questions this February. At no time has there been a suggestion of wrongdoing by Mr. McConnell in this lawsuit.

Far from establishing that Mr. McConnell was untruthful with the Committee, the deposition transcript obtained by the Committee after it was unsealed by the Court only further validates Mr. McConnell’s account of his knowledge of this document.?To believe that Mr. McConnell was untruthful with the Committee, some Senators would have to disbelieve not just his answers to written questions from Committee Members, but also Mr. McConnell’s sworn testimony as a witness being deposed in a lawsuit. Some Senators may feel strongly that Mr. McConnell and his firm were wrong to sue lead paint companies, but there is simply no basis believing that Mr. McConnell was untruthful with the Committee.  I reject those conclusions.  These Republican filibusters of district court nominations are unprecedented. The consequences for the American people and their access to justice in our Federal courts are real. I urge the Senate to reject these efforts and reject this filibuster.

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