11.17.09

Time To End Filibuster Of Moderate Judicial Nominee

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Tuesday urged the Senate to vote to end the filibuster of the nomination of Judge David Hamilton to the Seventh Circuit Court of Appeals.  Hamilton’s nomination has been pending on the Senate’s executive calendar since June 4.
 
President Obama nominated Judge Hamilton on March 17.  He appeared before the Judiciary Committee twice, on April 1 and April 29.  His nomination is supported by Indiana Senators Richard Lugar (R) and Evan Bayh (D).  Senate Republicans have rejected efforts to reach an agreement to debate and vote on Hamilton’s nomination, and last Tuesday, the Senate Majority Leader filed cloture – a motion to bring debate to an end – on the nomination.
 
“The American people should see this for what it is: more of the partisan, narrow, ideological tactics that Senate Republicans have been engaging in for decades as they try to pack the courts with ultraconservative judges,” said Leahy.  “What is at stake for the American people are their rights, their access to the courts, their ability to seek redress for wrongdoing.”
 
By this date in the first year of the Bush administration, under Leahy’s chairmanship of the Judiciary Committee and the Senate’s Democratic majority, the Senate had confirmed three times as many judicial nominations, including four circuit court nominees.  To date in this Congress, the Senate has confirmed just two circuit court nominations, and just four district nominees.
 
If cloture is invoked the Senate will begin a period of up to 30 hours of debate on the nomination before a final vote on confirmation will occur.
 
Hamilton’s 15 year record on the bench has been praised as moderate, and he was unanimously rated well-qualified by the American Bar Association’s Standing Committee on the Judiciary.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Judge David Hamilton Of Indiana,
To The United States Court Of Appeals For The Seventh Circuit
November 17, 2009

 
As Prepared

Today, the Senate finally turns to the Republican filibuster against the nomination of Judge David Hamilton of Indiana to the Seventh Circuit.  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” that the Republican Senate leadership was intent on activating.  Republican Senators who agreed that nominees should only be filibustered under “extraordinary circumstances.” Those same Republican Senators are now abandoning all that they said they stood for, and are instead joining together in an effort to prevent an up-or-down vote on the nomination of a good man and a good judge, David Hamilton of Indiana.
 
The American people should see this for what it is: more of the partisan, narrow, ideological tactics that Senate Republicans have been engaging in for decades as they try to pack the courts with ultraconservative judges.  What is at stake for the American people are their rights, their access to the courts, their ability to seek redress for wrongdoing.    
 
In evaluating this nomination, the nonpartisan American Bar Association’s Standing Committee on the Federal Judiciary unanimously rated Judge Hamilton “well qualified,” the highest rating possible.   He has served as a Federal district Judge for 15 years and is now the Chief Judge in his District.  His nomination is supported by the senior Republican in the Senate, his senior home state Senator, Senator Lugar, and by Senator Bayh.  That is correct: Judge Hamilton has the support of both of his home state Senators, the longest-serving Republican in the Senate, and a well-respected moderate Democrat.
 
Unlike his predecessor, President Obama has reached across the aisle to work with Republican Senators in making judicial nominations.  The nomination of Judge Hamilton is an example of that consultation.  Other examples are the recently confirmed nominees to vacancies in South Dakota, who were supported by Senator Thune, and the nominee confirmed to a vacancy in Florida, supported by Senators Martinez and LeMieux.  Still others are the President’s nomination to the Eleventh Circuit from Georgia, supported by Senators Isakson and Chambliss, his recent nominations to the Fourth Circuit from North Carolina, which I expect will be supported by Senator Burr, and the recent nomination to a vacancy in Alabama supported by Senators Shelby and Sessions on which the Judiciary Committee held a hearing two weeks ago.
 
I remind those Republican Senators who endorsed the Memorandum of Understanding on Judicial Nominations in 2005 of what they wrote when there was a Republican President in the White House:
 
“We believe that, under Article II, Section 2, of the United States Constitution, the word ‘Advice’ speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations.  We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
 
Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.
 
We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.”
 
That is what President Obama has done.  He has consulted with home state Senators from both sides of the aisle regarding his judicial nominees.
 
The demand for consultation with home state Senators was the purported basis for the threat from Senate Republicans at the beginning of this year to filibuster President Obama’s judicial nominations.  Senate Republicans who, under a Republican President, condemned filibusters of judicial nominations as “unconstitutional,” “obstructionist,” and “offensive” issued this threat to filibuster before President Obama had made a single nomination.  They wrote in their March 2 letter to the President: “if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”  Surprisingly, despite the fact that they were consulted and that Senator Lugar does approve, Senate Republicans insist on filibustering.

The American people and the Senate need to understand that Judge Hamilton was nominated with the support and strong endorsement of Senator Lugar, the longest-serving Republican in the Senate.  At Judge Hamilton’s hearing over seven months ago Senator Lugar described Judge Hamilton as “an exceptionally talented jurist” and “the type of lawyer and the type of person one wants to see on the Federal bench.”   He knows David Hamilton and said of him at his hearing:
 
“I have known David since his childhood.  His father, Reverend Richard Hamilton, was our family’s pastor at St. Luke’s United Methodist Church in Indianapolis, where his mother was the soloist in the choir.  Knowing first-hand his family’s character and commitment to service, it has been no surprise to me that David’s life has borne witness to the values learned in his youth.”
 
Senator Lugar spoke to the Senate just yesterday reaffirming his support of Judge Hamilton.  I encourage every member of the Senate to review his well-considered statement in which he rebuts the thin, partisan attacks on Judge Hamilton and his record.  As Senator Lugar said, a fair review of his judicial record “will reveal that Judge Hamilton has not been a judicial activist and has ruled objectively and within the judicial mainstream.”
 
 
Senator Lugar is one of the finest Senators to have ever served in the Senate.  First elected in 1976, he is the longest serving U.S. Senator in Indiana history.  He is a strong man with strong views, a conservative Republican.  He is no one’s shill.
 
Instead of praising the President for consulting with the senior Republican in the Senate, the Republican leadership has doubled back on their demands when a Republican was in the White House.  No more do they talk about each nominee being entitled to an up-or-down vote.  That position is abandoned and forgotten.  Instead, they now seek to filibuster this judicial nomination and engage is the very act that Republican leaders used to contend that they never do.   They have also abandoned the new position they took only months ago when they threatened to filibuster if not consulted.  We are forced to overcome a filibuster of this nomination despite the President’s bipartisan consultation with Senator Lugar.
 
When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees.  When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees.
 
Today is November 17.  By November 17 of the first year of George W. Bush’s presidency, the Senate had confirmed 18 district and circuit court judges.  By contrast, once cloture is invoked and the Republican filibuster ended, Judge Hamilton will be just the seventh lower court nomination the Senate has considered all year.  We achieved those results in 2001 with a controversial and confrontational Republican President after a mid-year change to a Democratic majority in the Senate.  We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the USA PATRIOT Act for six weeks.  By comparison, the Republican minority this year has allowed action on only one-third that many judicial nominations to the Federal circuit and district courts as were confirmed by this date in 2001.
 
Charlie Savage made this point in The New York Times this past Sunday when he wrote:  “By this point in 2001, the Senate had confirmed five of Mr. Bush’s appellate judges . . . and 13 of his district judges.  Mr. Obama has received Senate approval of just two appellate and four district judges.”  David Savage of The Los Angeles Times wrote if even starker terms yesterday: “So far, only six of Obama’s nominees to the lower federal courts have won approval.  By comparison, President George W. Bush had 28 judges confirmed in his first year in office, even though Democrats held a narrow majority for much of the year.”
 
This is not for lack of qualified nominees.  There are eight judicial nominees, including Judge Hamilton who have been reported by the Judiciary Committee on the Senate Executive Calendar.  Had those nominations been considered in the normal course, we would be on the pace Senate Democrats set in 2001 when fairly considering the nominations of our last Republican President.
 
Another aspect of the Republican obstruction is its refusal to consider the nomination of Professor Christopher Schroeder to serve as the Assistant Attorney General for the Office of Legal Policy at the Justice Department.  Professor Schroeder has been stalled on the Senate Executive Calendar by Republican objection since July 28 since it was reported by the Judiciary Committee without a single dissenting vote.  Professor Schroeder is a distinguished scholar and public servant who has served with distinction on the staff of the Senate Judiciary Committee and in the Justice Department.  He has support across the political spectrum.  I can only imagine that the reason his confirmation is being delayed is part of the partisan effort to slow progress on judicial nominees.  The Office of Legal Policy is traditionally involved in the vetting of those nominees.  So when Republican Senators excuse their obstruction by suggesting that the President has not sent the Senate enough nominees, they are wrong on at least two counts.  They have not allowed the Senate to act on the nominees he has sent, and they are delaying appointment of the Assistant Attorney General who contributes to that process.  President Bush’s first nominee to head that division, Viet Dinh, was confirmed 96 to one only one month after he was nominated, and only a week after he his nomination was reported by the Committee.  The three nominees to that office that succeeded Mr. Dinh -- Daniel Bryant, Rachel Brand, and Elisebeth Cook -- were each confirmed by voice vote in a shorter time than Professor Schroeder’s nomination has been pending.  As Charlie Savage wrote in The New York Times this weekend:  “In addition, no one has been confirmed as head of the Justice Department’s Office of Legal Policy, which helps vet judges; Mr. Obama’s nomination of Christopher Schroeder for the position remains stalled in the Senate.”
 
As Chairman of the Judiciary Committee, I treated President Bush’s nominees better than the Republicans had treated President Clinton’s.  That effort has made no difference; Senate Republicans are now treating this President’s nominees worse still.  During the 17 months I chaired the Judiciary Committee in President Bush’s first term, we confirmed 100 of his judicial nominees.  At the end of his presidency, although Republicans had run the Judiciary Committee for more than half his tenure, more of his judicial nominees were confirmed when I was the Chairman than in the more than four years when Republicans were in charge.
 
Last year, with a Democratic Majority, the Senate reduced circuit court vacancies to as low as nine and judicial vacancies overall to as low as 34, even though it was the last year of President Bush’s second term and a presidential election year.  That was the lowest number of circuit court vacancies in decades, since before Senate Republicans began stalling Clinton nominees and grinding confirmations to a halt.  In the 1996 session, the Republican-controlled Senate confirmed only 17 judges, and not a single circuit court nominee.  Because of those delays and pocket filibusters, judicial vacancies grew to over 100, and circuit vacancies rose into the mid-thirties.
 
Rather than continued progress, we see Senate Republicans resorting to their bag of procedural tricks to delay and obstruct.  They have ratcheted up the partisanship and see to impose ideological litmus tests.  If partisan, ideological Republicans will filibuster David Hamilton’s nomination, the nomination of a distinguished judge supported by his respected home state Republican Senator, they will filibuster anybody.
 
Senate Republicans are intent on turning back the clock to the abuses they engaged in during their years of resistance to President Clinton’s moderate and mainstream judicial nominations.  The delays and inaction we are seeing now from Republican Senators in considering the nominees of another Democratic President are regrettably familiar. Their tactics have resulted in a sorry record of judicial confirmations this year.  There are more judicial nominees recommended to the Senate and sitting on the Executive Calendar awaiting consideration than the Senate has confirmed all year.
 
Last week, the Senate was finally allowed to consider the nomination of Judge Charlene Honeywell of Florida, but only after four weeks of unexplained delays.  She was confirmed without a single negative vote, 88-0.  The week before, the Senate was finally allowed to consider the nomination of Irene Berger, who has now been confirmed as the first African-American Federal judge in the history of West Virginia.  The Republican minority delayed consideration of her nomination for more than three weeks after it was reported unanimously by the Judiciary Committee.  When her nomination finally came to a vote, it was approved without a single negative vote, 97-0.  The week before that the Senate was finally allowed to consider the nomination of Roberto A. Lange to the District of South Dakota.  The Republican minority required three weeks before allowing consideration of that nomination after it was unanimously reported by the Judiciary Committee to the Senate.   They also required two hours of debate before allowing the Senate to vote on that nomination.  They, in fact, used less than five minutes of the time they demanded to discuss that nomination and that came when the ranking Republican on the Judiciary Committee spoke to endorse the nominee.  That nomination had the support of both Senator Johnson and Senator Thune, a member of the Senate Republican leadership.  Ultimately, Judge Lange’s nomination was confirmed 100-0.  That follows the pattern that Republicans have followed all year with respect to President Obama’s nominations.
 
Last week, the Senate finally debated the nomination of Judge Andre Davis of Maryland to a seat on the Fourth Circuit.  He was confirmed 72-16.  Sixteen Republican Senators voted in favor of the nomination and 16 were opposed.  As Senators, they may vote as they see fit.  What was wrong was that they delayed Senate consideration of that nomination for five months.  
 
The obstruction and delays in considering President Obama’s judicial nominations is especially disappointing given the extensive efforts by President Obama to turn away from the divisive approach taken by the previous administration and to reach out to Senators from both parties as he selects mainstream, well-qualified nominees.  The President has done an admirable job of working with Senators from both sides of the aisle, Democrats and Republicans.
 
Professor Carl Tobias wrote about President Obama’s approach recently in a column that appeared in McClatchy newspapers across the country on October 30.  He wrote:  “Obama has emphad bipartisan outreach, particularly by soliciting the advice of Democratic and Republican Judiciary Committee members, and of high-level party officials from the states where vacancies arise, and by doing so before final nominations.”  He had it right when he wrote that the real problem lies not with President Obama or with his nominations but with the Republican Senate minority.  They are the principle cause of the current, sorry record regarding Senate confirmation of this President’s outstanding nominees.
 
Federal judicial vacancies, which had been cut in half while George W. Bush was President, have already more than doubled since last year. There are now 98 vacancies on our Federal circuit and district courts, including 22 circuit court vacancies. There are another 23 future judicial vacancies already announced.  Justice should not be delayed or denied to any American because of overburdened courts, but that is the likely result of the stalling and obstruction.  
 
Despite the fact that Senate Republicans had pocket filibustered President Clinton’s circuit court nominees, Senate Democrats opposed only the most extreme of President Bush’s ideological nominees and worked to reduce judicial vacancies.  This is not an extreme nominee.  This is a nominee in the mold of Judge John Tinder, President Bush’s nominee to the Seventh Circuit, also a well-respected district court judge in Indiana who was unanimously rated “well-qualified” by the American Bar Association.  His nomination was supported by both Senator Lugar and Senator Bayh and was confirmed 93-0 just 84 days after the Judiciary Committee held a hearing on his nomination.
 
When he testified in support of Judge Hamilton, Senator Lugar thanked Senator Bayh for “the thoughtful, cooperative, merit-driven attitude that has marked his own approach to recommending prospective judicial nominees” and his “strong support for President Bush’s nominations of Judge Tinder for the Seventh Circuit and of Judge William Lawrence for the Southern District of Indiana.”  I supported both of those nominees with the endorsement of both of Indiana’s Senators and both were easily confirmed.  This nomination should be no different.
 
I hope that Senators now considering whether to even allow this nomination to be considered by the full Senate heed the advice of Senator Lugar, which he reiterated yesterday when he said:
 
“[I] believe our confirmation decisions should not be based on partisan considerations, much less on how we hope or predict a given judicial nominee will rule on particular issues of public moment or controversy.  I have instead tried to evaluate judicial candidates on whether they have the requisite intellect, experience, character and temperament that Americans deserve from their judges, and also on whether they indeed appreciate the vital, and yet vitally limited, role of the Federal judiciary faithfully to interpret and apply our laws, rather than seeking to impose their own policy views.”
 
As other editorial pages across the country have already done, The Washington Post today urges Senate Republicans to reject the distortions of Judge Hamilton’s record, and to heed Senator Lugar’s “words of praise for Judge Hamilton’s record, intellect and character and allow a vote – and then vote in favor of confirmation.”  I could not agree more.  I ask unanimous consent that a copy of today’s editorial be inserted in the Record.
 
Senator Lugar believes Judge Hamilton “is superbly qualified under both sets of criteria.”  I agree.  I urge the Senate to reject these efforts and end this filibuster with a bipartisan vote.

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