ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments (8) / Email this page » / Leave a comment »

Today, the Senate confirmed G. Steven Agee of Virginia to the Fourth Circuit by a vote of 96-0 (not voting were Senators McCain, Obama, and Clinton, as well as Senator Kennedy who has our get-well wishes). Incidentally, in related news, “Virginia Attorney General Robert F. McDonnell (R) said he was ... disappointed with the ruling [of the Fourth Circuit, striking down Virginia's Partial Birth Infanticide Act of 2003] and had not decided whether to ask the entire 4th Circuit to reconsider the decision or petition the Supreme Court to take the case."

Meanwhile, Senator Reid has been trying to ram through the Sixth Circuit nomination of Helene White. As Quin Hillyer mentioned here at this blog, Senator Specter is none too pleased with Senator Reid's efforts. The full text of Specter's May 19 speech is below the fold.

Mr. SPECTER. Mr. President, I have sought recognition to respond to a statement made earlier today by the Senator from Nevada, Mr. Reid, on the judge issue. I heard about 25 or 30 minutes ago that Senator Reid had spoken. I pulled together some materials and asked my staff to notify Senator Reid's staff that I would be coming to the floor to speak on this issue, which is my practice when I am going to mention another Senator by name. Senator Reid, in his speech, mentioned me by name, stating that I had delayed the nomination of Judge Helene White, who is a nominee to the Sixth Circuit. My preference would have been to have had notice. I have been in the Senate complex since late morning, and I invited Senator Reid to come. And, perhaps he can come to the floor now. I would prefer to have this discussion face to face, but we can do it by long distance, through the record, or really short distance--Senator Reid's office is right across the hall from the Chamber.

What is involved here is a very important issue, and that is the constitutional responsibility of the Senate to advise and consent on the nomination of Federal judges. Regrettably, it has been a very sore spot in Senate proceedings for the last 20 years. In the last 2 years of the Reagan administration, when Republicans controlled the White House and Democrats the Senate, nominations were delayed; the same during the last 2 years of the administration of President George H.W. Bush--again, Republicans controlled the White House and the Democrats the Senate. Then, during the last 6 years of President Clinton, the situation was worse--exacerbated. Each step along the way, the situation has gotten worse.

I voted for President Clinton's qualified nominees and said on this floor that the Republican caucus was wrong to delay them, in a variety of ways. But, just as my caucus was wrong then, my caucus is right now. What the Democrats are doing to President Bush's nominees is wrong.

In 2005, this Chamber, this historic Chamber, almost came apart with a challenge on the traditional right of filibuster with the so-called constitutional or nuclear option. And, now we have a situation where there is, again, a great imbalance. I will not go through the statistics again as to how many more nominees President Clinton got in his 8 years contrasted with President Bush in his 8 years. Those numbers have been on the record too often. I hasten to add on the subject that you can take the statistics in many directions, but let me focus on the specific matter we have at hand.

What we have at hand is the nomination of Michigan State Court judge Helene White for the Court of Appeals for the Sixth Circuit. I do not think anybody in the Senate needs to be reminded, but some people watching on C-SPAN2--if there are any--would be well advised to understand the importance of a circuit court nomination.

The Supreme Court of the United States reviews decisions from the circuits, but very few cases are reviewed by the Supreme Court because it is very busy. And so, that panel review by three judges on the circuit court is usually the last word on a matter, unless there is a court en banc. I will not go into details, but that is when all the judges of the circuit sit in unusual circumstances. The other unusual circumstance is when the Supreme Court grants certiorari or takes the case, which again is unusual. So, opinions of far-ranging importance are decided by the courts of appeals. Very frequently, these decisions are 2-to-1 decisions, so one circuit judge has a lot of power to make important law affecting a lot of people. The interests of individuals, companies, corporations, the Government, even international affairs are decided by these judges, and these are lifetime appointments.

There has been considerable concern and debate in this body about the time the Senate has to consider these matters. Ordinarily, many weeks pass after the President submits a nomination before a nominee is voted on here. For example, Peter Keisler had a hearing, and his nomination has been pending for over 690 days. Judge Robert Conrad has waited more than 300 days for a hearing. Steve Matthews--also for the Fourth Circuit, from South Carolina--has waited over 250 days for a hearing.

Contrast that with what has happened with Judge White. Judge White was nominated to the Sixth Circuit on April 15, 2008, and had a hearing on May 7, 22 days later. Her hearing record was held open until May 14 to receive questions. Her responses to the questions are due by May 23, which is the last day of the session. If she were to be confirmed soon, she would probably break all speed records. It would probably be the equivalent of an Olympic record. I can't be sure of that because I have not checked all the records. I have only had a few minutes to prepare to come over here to make this presentation, but, what we do know is what the attitude of the Democrats was when the shoe was on the other foot.

Back in 2001, when Senator Leahy became chairman of the Judiciary Committee, he said:

“There will be an American Bar Association background check before there is a vote.”

Let the record show that there has been no American Bar Association evaluation on Judge White up to the present time, and the projection is that it will not be obtained before the Senate adjourns this week.

I ask unanimous consent to have a letter dated May 6, 2008, to Chairman Leahy and myself printed in the Record following the conclusion of my statement.

The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.)

Mr. SPECTER. In 2006, when a hearing was scheduled for Peter Keisler, 33 days after the nomination, all of the Democrats on the Judiciary Committee, signed a letter to me in my capacity as chairman asking me to "postpone" the hearing, citing the concern that:

"..... the ABA has not even completed its evaluation of this nominee."

The lack of an ABA rating did not seem to bother the Democrats this time. They ran roughshod right over that practice and held the hearing 22 days after the nomination was submitted before it was possible for the ABA to complete its rating. We did not have the benefit of the ABA evaluation, which is important before the hearing.

There have been exceptions on district court nominees. I suppose you could go through the record and find exceptions. You can do that on about everything. But, with a circuit court nominee who is controversial, where there are questions about her qualifications, it is obviously a very bad practice.
When the objections were raised to the timing on the Keisler nomination, Senator Leahy made the point to me as chairman--through the letter from all of the Democrats--that we should not be scheduling hearings for nominees before the committee has received their ABA ratings. I would note that the ABA rating for Keisler was received prior to his hearing. So what is good for the goose is, apparently, not good for the gander--bad practice for Keisler equals good practice for Judge White.

Here is what Senator Schumer had to say about scheduling Keisler's hearing within 33 days:

"So, let me reiterate some of the concerns we expressed about proceeding so hastily on this nomination. First, we have barely had time to consider the nominee's record. Mr. Keisler was named to a seat 33 days ago, so we are having this hearing with astonishing and inexplicable speed. The average time from nomination to hearing for the last 7 nominees to that court is several times that long."

A practice decried in very strong terms by Senator Schumer seems to be okay for Judge White.

Without going into very great detail, let the record show that Judge White has a very extensive record on the state court--many cases to consider and analyze--contrasted with the record of Mr. Keisler, who had never been on the court. But, the mathematics of the situation is conclusive.

Now Judge White's nomination comes to the floor in the context of an agreement having been reached by the leaders of the Republican and Democratic Parties, breaking a stalemate which existed for a long time.

Mr. President, I ask unanimous consent for an additional 10 minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SPECTER. The agreement, as accurately stated by Senator Reid earlier today, was in this form:

I cannot guarantee three confirmations because that outcome would depend on factors beyond my control. Still, Senator Leahy and I have worked hard to move three appellate nominees this month. Judge Agee is one of the three. The next two nominees in line are Sixth Circuit nominees, Raymond Kethledge and Helene White of Michigan.

Well, if Judge White and Raymond Kethledge and even Judge Agee were the only circuit court nominees available, that comment would have some relevance, but there are others who have been waiting a long time. Peter Keisler, as I noted before, had a hearing but has been waiting on the committee docket for over 690 days. He could be confirmed easily in the time allotted. When the arrangement was made on April 15, Judge Robert Conrad, who had been waiting for a hearing for over 300 days, could have been processed and confirmed. Steve Matthews, who had been waiting for over 250 days, could have been processed and confirmed.

So, Senator Reid had plenty of alternatives to deal with. He did not have to move to Judge White and force this phenomenal effort on a rush to judgment. Senator Reid sought to rebut that fact in his statement saying:

"No one presumed to instruct Senator Specter about the sequence of nominations during the years he served as Chairman of the Judiciary Committee."

Well, let me point out that no one had to instruct Senator Specter on comity, on courtesy, on consultation with the Democrats. As Chairman, not only did I never try to ram anything down the Democrats' throat, I went out of my way to see to it that they were consulted, that their views were taken into account, and that they were followed in many important considerations.

The White House wanted to have the Roberts confirmation process start on August 28. I consulted with Senator Leahy, then ranking member. He thought that was a bad time, and we discussed it. I came to the conclusion--and candidly, would have had it in any event--but consulted with him before going back to the White House and saying: It cannot be done. It is going to be after Labor Day. If you bring back Senators during a recess, before children go back to school after Labor Day, it is a bad practice.

The hearing was scheduled in a way which comported with what Senator Leahy had to say. Nobody consulted me about the scheduling of Judge White or the other two judges. Next, the White House wanted Justice Alito confirmed before Christmas. He had a big record; he had been on the bench for 15 years. I think Judge White has been on the bench at least comparable time, maybe even longer. It was unrealistic to go through his record in that time frame.

I said to the White House and to the President personally: It can't be done realistically.

I said: “Mr. President, you have the great advantage of never having been a Senator.”

And, as a result, those hearings were held in January. Again, before the decision was made, I consulted with Senator Leahy extensively. He thought it was a bad idea to confirm before Christmas, and I listened. Here again, absent Senator Leahy's view, which I was pretty sure about before I consulted him, I would have had the same conclusion, but he was consulted, and consulted in advance.

So, when Senator Reid says: “No one presumed to instruct Senator Specter about the sequence of nominations when he was chairman”, he is right, but then no one had to.

Then we come to the part where Senator Reid mentions me, which, as I said, was without advanced notice.

He said:

“Unfortunately Republican Senators on the Judiciary Committee have delayed consideration of Judge White. They badgered her at her confirmation hearing and then followed up by asking a total of 73 separate written questions, including some that will be particularly time consuming.”

Well, I am not going to take the time to go through the many hearings that I have sat through on that committee for the last 28 years, but the questioning of Judge White was firm, polite, professional, and much less intense than many hearings--the Alito hearings, for example, or from some of the Democratic Senators who questioned Roberts. She was not badgered. Let anybody take a fair reading or review of the video, and that can be easily confirmed.

Then Senator Reid goes on to say:

“Every Senator has this right to ask questions of a nominee, but the number and nature of the questions posed to Judge White suggest that the Republicans intended to delay the nomination.”

There is not a scintilla of fact to back that up. The need to have time to consider this nomination in this time sequence is obviously apparent on its face.

Senator Reid goes on:

“In addition, Republicans have insisted that the nomination not move forward until Judge White's ABA review is complete.”

Well, having an ABA rating is very fundamental and very basic procedure for every judge.

Senator Reid goes on to say again:

“That is their right. But in this case, it is ironic they would make that request since she was rated qualified by the ABA 10 years ago when Republicans blocked her nomination from moving forward.”

Well, that argument is not (?) so specious that it answers itself. A 10-year-old evaluation obviously has to be updated.

Now, when Senator Reid objects to the questions we asked her, I take issue. We asked her the questions because her answers to the questionnaire were incomplete. She was given a questionnaire shortly after nomination on April 15. It was received by the committee on April 25. One of the questions in the questionnaire was to give “copies” of speeches given.
And it further said:

“If you do not have a copy of the speech or a transcript of the tape recording, please give the name and address of the group before whom the speech was given, the date of the speech and the subject matter.”

Her response was:

“Over the years, I have participated as a member of various panel discussions at bench, bar or State or local bar association conferences and meetings. None of these have been recorded or transcribed to my knowledge. I have not retained any notes or outlines.”

But, she has not answered the question as to whom she spoke to or before. That was the question asked, and it is a relevant question and is the standard question for everyone.

Next, she was asked to provide unpublished opinions when she was reversed. Now, that is a very important question. When a judge is reversed, that is a particular area worthy of inquiry. And, again, she did not answer the question by providing the opinions. She certainly is in the best position to have those opinions and speeches.

Now, how can we confirm a judge where we do not have an opportunity to review all the information requested by the Senate questionnaire? And a good bit of this is not Judge White's fault. A good bit of this is the fault of the scheduling, which was determined by the Democrats.

So here we have a situation where there was a commitment, albeit with limitations, to confirm three circuit judges before Memorial Day, and today Senator Reid comes to the floor, with adjournment later this week for the Memorial Day recess, and he is in effect saying: The commitment will not be completed due to circumstances beyond my control, beyond the Democrats' control. It is all the fault of the Republicans.

Well, I ask fair-minded Americans, and Americans are fair-minded, whether this is appropriate. I have sought to avoid any characterizations or any of the vituperative language which has characterized this body in modern times, as we have had so much bickering which the American public is so sick and tired of. I have tried to avoid that with a strict factual analysis as to how the schedule proposed by Senator Reid is an unconscionable rush to judgment, is in violation of the standing practices and procedures of the Committee and the Senate, does not give an opportunity for a proper evaluation as to what her record is, and why she should not be nominated for a lifetime position on this state of the record.

There has been a lot of talk about what the consequences will be of the tactics of the Democrats overall. That is going to be a question for the Republican caucus.

At this point, I make only one commitment, and that is, to present it to the Republican caucus tomorrow. I thank my distinguished colleague from Florida for waiting. I would say patiently waiting, but only he can characterize his waiting.