Statement On The Republican Filibuster Of The Nomination Of Patricia Smith To Be Solicitor General For The Department Of Labor

Today, the Senate will try to end yet another Republican filibuster and invoke cloture on the nomination of Patricia Smith to be Solicitor General for the Department of Labor.  This is the 15th filibuster against President Obama’s nominees.

Commissioner Smith is a well-qualified nominee who has decades of experience working on labor issues, and a strong record as Labor Commissioner for the State of New York.  The Senate Committee on Health, Education, Labor and Pensions held a hearing on her nomination in May and reported it favorably to the Senate last October.  Commissioner Smith should have been confirmed long ago.  However, as has become all too common in this Congress, the Republican minority continues to block the Senate from even considering her nomination and giving her the up or down vote they not long ago insisted was the constitutional right of every nominee.  Instead, the Senate is faced with another Republican filibuster.

Nothing I have seen suggests there is a reason to block Commissioner Smith’s nomination from receiving Senate consideration.  If some Senators oppose the strong enforcement of laws to protect American workers, they can vote against the nomination. 

Some seek to justify this delay by creating controversy over “Wage Watch,” a pilot program started by the New York Department of Labor under Commissioner Smith designed to encourage Department employees to report labor law violations.   This seems to be a controversy generated by those who disagree with the program.  What is so troubling about this filibuster is how difficult it has become to determine which nominations Senate Republicans are merely blocking as part of their political strategy of obstruction and delay of President Obama’s nominees. 

If cloture is invoked and we are finally able to consider the Smith nomination, we will then have the opportunity to end the filibuster of another nomination, that of Martha Johnson to head the General Services Administration (GSA).  Her nomination has been stalled on the Senate Executive Calendar since June 8 due to the opposition of a single Republican Senator over a dispute with GSA about plans for a Federal building in his home state.  The will of the Senate and the needs of the American people are held hostage by a single Senator.

This should not be the way the Senate acts.  Last week in his State of the Union message, President Obama told Congress and the American people: “The confirmation of well-qualified public servants shouldn’t be held hostage to the pet projects or grudges of a few individual senators.”

Unfortunately, we have seen the repeated use of filibusters, and delay and obstruction have become the new norm for the Republican minority.  We have seen unprecedented obstruction by Senate Republicans on issue after issue—over 100 filibusters last year alone, which has affected 70 percent of all Senate action.  Instead of time agreements and the will of the majority, the Senate is faced with a requirement to find 60 Senators to overcome a filibuster on issue after issue.  Those who just a short time ago said that a majority vote is all that should be needed to confirm a nomination, and that filibusters of nominations are unconstitutional, have reversed themselves and now employ any delaying tactic they can.   

The Republican practice of making supermajorities the new standard to proceed to consider many noncontroversial and well-qualified nominations for important posts in the Executive Branch, and to fill vacancies on the Federal courts, has had a devastating effect.   As a result of this Republican strategy, there are currently 75 nominations pending on the Senate’s Executive Calendar for important positions throughout the Executive Branch and the judiciary, all but nine of them pending since last year.

There are 19 judicial and executive nominations pending on the Senate Executive Calendar that were reported favorably by the Senate Judiciary Committee, all of them reported with bipartisan support.  In fact, 16 of the nominations reported by the Committee were reported without a single dissenting vote.  These nominations are not controversial.  They should be easy to consider and confirm.

Five more nominations reported by the Committee were pending on the Senate Executive Calendar at the end of last year, but Republicans insisted that they be returned to the President rather than held in place.  Two were judicial nominees and three were nominees to head divisions at the Justice Department as Assistant Attorneys General.  One of those nominations had been reported by the Senate Judiciary Committee by voice vote, with no dissent. 

Despite the fact that President Obama began sending judicial nominees to the Senate two months earlier than President Bush, last year’s total was the fewest judicial nominees confirmed in the first year of a Presidency since 1953, a year in which President Eisenhower only made nine nominations all year, all of which were confirmed.  The number of confirmations was even below the 17 the Senate Republican majority allowed to be confirmed in the 1996 session. 

Only 12 of President Obama’s judicial nominations to Federal circuit and district courts were confirmed all last year, less than half of what we achieved during President Bush’s first tumultuous year.   We have confirmed only two more this year, after Republicans objected to consideration of the nomination of Joseph Greenaway of New Jersey to the Third Circuit, a nomination reported by the Committee last October 1 by unanimous consent. 

Democrats did not practice this kind of obstruction and delay in considering President Bush’s nominations.  In the second half of 2001, the Democratic majority in the Senate proceeded to confirm 28 judges.  By this date during President Bush’s first term, the Senate had confirmed 30 circuit and district court nominations compared to only 14 for President Obama.  In the 17 months that I chaired the Senate Judiciary Committee during President Bush’s first term, the Senate confirmed 100 of his judicial nominees.

During President Bush’s last year in office, with Democrats again in the majority, we had reduced judicial vacancies to as low as 34, even though it was a presidential election year.  When President Bush left office, we had reduced vacancies in nine of the 13 Federal circuits. 

As matters stand today, judicial vacancies have spiked and are being left unfilled.  We started 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.  While it has been nearly 20 years since we enacted a Federal judgeship bill, judicial vacancies are nearing record levels, with 102 current vacancies and another 21 already announced.  If we had proceeded on the judgeship bill recommended by the Judicial Conference to address the growing burden on our Federal judiciary, as we did in 1984 and 1990, in order to provide the resources the courts need, current vacancies would stand over 160 today.  That is the true measure of how far behind we have fallen.  Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.  The rule of law demands more.  The American people deserve better.

Among the nominees ready for Senate approval are nine Federal judicial nominees reported by the Senate Judiciary Committee.  Two would fill vacancies on the Third Circuit, three would fill vacancies on the Fourth Circuit, and there are nominees to fill vacancies on the First, Second and Sixth Circuits, as well as a district court nominee to Wisconsin.  The delay in considering them is also part of this effort to delay and obstruct.  Judge Greenaway, about whom Senators Lautenberg and Menendez spoke last week, was reported by unanimous consent back in October, four months ago.  

Two weeks ago the Majority Leader tried to get agreement to take up the nomination of Judge Greenaway, the next judicial nominee on the Senate Executive Calendar, but Republican objections continue to stall consideration.  That is a shame.  He is a good judge.  Senator Sessions praised him at his confirmation hearing.  Why he is being stalled I do not know, and no one has explained.  Even after the statements by the New Jersey Senators, no one has come forward to explain the hold up from the Republican leadership.  Judge Greenaway is one of the many outstanding judicial nominations reported by the Senate Judiciary Committee that remain stalled on the Senate Executive Calendar.  They should have been confirmed last year and would have but for Republican objection.  When considered, they will be confirmed but not before being needlessly delayed for months. 

They insisted on debate on the nomination of Judge Gerard Lynch, who was confirmed with more than 90 votes.  Republicans insisted on hours of debate for the nomination of Judge Andre Davis, who was confirmed with more than 70 votes.  Senate Republicans unsuccessfully filibustered the nomination of Judge David Hamilton last November, having delayed its consideration for months.  For at least two additional months, Judge Beverly Martin’s nomination was stalled because Republicans would not agree to consider it before January 20. Judge Martin, of course, had the strong support of both of her home state Republican Senators, Senator Chambliss and Senator Isakson, and the highest possible rating from the American Bar Association’s Standing Committee on the Federal Judiciary.  

The Democratic leadership sought to build on our belated progress two weeks ago when we were allowed finally to consider and confirm Judge Martin.  We asked for agreement to consider the nomination of Judge Greenaway.  As the Majority Leader indicated two weeks ago:  “[The Democratic] majority was in a position to agree to a vote on the nomination of Joseph Greenaway to be a U.S. circuit judge for the Third Circuit.  However, I was advised the Republicans would not agree to such request.” Congressional Record S166 (Jan. 22, 2010 daily ed.).  Again, Senate Republicans have withheld consent and have objected to consideration of a nominee.

None of the nine Federal circuit and district court nominations currently pending on the Senate Executive Calendar should be controversial.  Six were reported by the Senate Judiciary Committee without a single dissenting vote.  One had one negative vote, one had three negatives votes and the nominee from Tennessee supported by Senator Alexander had four negatives votes but 15 in favor, including three Republicans.  We have wasted weeks and months having to seek time agreements in order to consider nominations that were reported by the Senate Judiciary Committee unanimously and who are then confirmed unanimously by the Senate once they were finally allowed to be considered.  That obstruction and delay continues.

The American people deserve better. The cost will be felt by ordinary Americans seeking justice in our overburdened Federal courts.  President Obama has reached across the aisle and worked with Republican Senators, including Senators Lugar, Martinez, Shelby, Sessions, Thune, Alexander, Burr, Chambliss and Isakson, who all have supported his judicial nominees.  I wish Senator Republicans and the Senate Republican leadership would reconsider their tactics of obstruction and delay and work with us and with the President.   

The Republican minority must believe that this partisan playbook of obstruction will reap political benefit for them and damage to the President.  But the people who pay the price for this political calculation are the American people who depend on the Government being able to do its job.  I hope that Republican Senators will rethink their political strategy and return to the Senate’s tradition of promptly considering noncontroversial nominations.

During his State of the Union address last Tuesday night, President Obama talked with us about the “deficit of trust—deep and corrosive doubts about how Washington works that have been growing for years.”  He urged that we show the American people that we can work together. 

Regrettably the Senate is being required to dedicate today and tomorrow to freeing one of the long-delayed nominations the President has sent to the Senate for advice and consent.  This is not working together.  This is yet another instance in which Senate Republicans have decided to delay and obstruct. 

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