ConfirmThem

By Curt Levey Posted in Judiciary Committee — Comments (15) / Email this page » / Leave a comment »

Senator Specter, now the ranking member of the Judiciary Committee, isn’t buying Chairman Leahy’s avowed plan to invoke the so-called “Thurmond Rule” on judicial nominees come mid-2008. Leahy could use the rule to bring confirmations to a virtual halt in the final six months of the Bush presidency. Specter noted in a statement yesterday that “the historical record suggests that this rule is more myth than reality” and cited the confirmation of Stephen Breyer to the Second Circuit as just one example. Specter went on to say

The fact of the matter is that the Senate has regularly confirmed judges in presidential election years. In the election year of 1980, when it is asserted Senator Thurmond inaugurated the so-called rule, the Senate confirmed ten Circuit Court nominees and 53 District Court nominees.
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Justice Breyer was then Senator Kennedy's Chief Counsel. He was nominated by President Carter on November 13, 1980, after Carter had lost the election to Ronald Reagan. The Senate, which was also about to switch party control, held a swift confirmation hearing and voted to confirm Breyer on December 9, 1980.
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In 2000, President Clinton's last year in office, the Senate confirmed eight Circuit Court nominees and 31 District Court nominees. Furthermore, many of these presidential election year confirmations occurred late in the year. Since 1980, 110 judges were confirmed after July 1st of a presidential election year, 17 of those were confirmed to Circuit Courts. In the same period, 63 judges were confirmed after September 1st of presidential elections years, twelve of those to Circuit Courts.

The full text of Specter’s statement follows below the fold.

Mr. SPECTER: Madam President, I seek recognition today, to discuss one of this body's most important responsibilities; namely, our responsibility to provide advice and consent on the President's judicial nominations.

At the outset, I would like to take a few moments to remind my colleagues of the Judiciary Committee's success during the last Congress in moving the President's judicial nominees through the confirmation process in a timely manner.

During the last Congress, the Senate confirmed 54 Article III judges, including the Chief Justice of the United States, an Associate Justice of the Supreme Court, 16 Court of Appeals judges, 35 District Court judges, and one Court of International Trade judge. The Senate could have, and I believe should have, confirmed 13 more District Court nominees before the conclusion of the last Congress. All of these qualified men and women were favorably reported by the Judiciary Committee without a single dissenting vote. Many of them are nominated to vacancies that have been deemed judicial emergencies. I hope we can promptly move to confirm all of these men and women in the new Congress. Failure to do so will continue to delay justice in courts from Pennsylvania to California. I have asked my friend and new Judiciary Committee Chairman Senator Leahy to place these nominees on our Committee's very first executive business meeting. I am happy to report that he has agreed to do so.

I remind my colleagues that at the beginning of the last Congress judicial confirmations, particularly to the Circuit Courts, were at a virtual standstill with many nominees subject to filibusters. Much of the debate in this chamber during the first months of the 109th Congress involved whether or not to invoke the so-called "Constitutional Option," whereby the rules of the Senate would be altered to allow for a vote on Circuit Court nominees. Thankfully, the Senate managed to avert a major showdown over this debate and instead confirmed highly qualified nominees to the Courts of Appeals, several of whom had been pending for many years. These included Priscilla Owen (pending since 2001); Janice Rogers Brown (pending since 2003); Bill Pryor (pending since 2003); and Brett Kavanaugh (pending since 2003).

So in the last Congress we managed to move to a vote on many long languishing nominees. We also moved expeditiously on new.nominations. It was my practice as Chairman to schedule a prompt hearing on every judicial nomination as soon as all necessary materials were received and the nominee was prepared to move forward. Once given a hearing, every nominee was placed promptly on the Committee's agenda for consideration. I believe our practice, while avoiding unnecessary delay, also ensured that each nomination was thoroughly vetted so that the Senate had the information it needed to come to a vote.

In short, the Judiciary Committee and the Senate, by following regular order, carried out our Constitutional responsibilities. As a result, the federal court vacancy rate fell to as low as 4.8% during my tenure as Chairman. This is among the lowest vacancy rates in the last 20 years. Unfortunately, in part because of our failure to confirm the 13 district court nominees late in the last Congress, the vacancy rates have increased during the fall and winter.

I cite this recent history and these statistics as examples of what can be done in this body when we work hard and put fairness ahead of partisanship. I committed myself to this principle as Chairman of the Judiciary Committee and I am hopeful we can continue to work in this vein during the 110th Congress under the Chairmanship of Senator Leahy. Working together, I believe we can avoid some of the acrimony that has poisoned the nominations process in recent years.

In fact, I want to give Senator Leahy a good bit of credit. He worked cooperatively with us to ensure that nominees were moved during the 109th Congress. There were times when our friends across the aisle could stymie our efforts to process nominees, but Senator Leahy worked with me to enable the Senate to carry out its constitutional responsibilities.

That is why I am troubled by recent suggestions that it is appropriate to dramatically slow the confirmation process during the last two years of a president's term. Our Constitutional duties remain, despite the fact that we are now beginning a Presidential election cycle. Past Congresses have been very productive on judicial nominations during Presidential elections cycles and we should be as well.

The record shows that the Senate has confirmed numerous nominees during the last two years of every modern president's term in office. For example, in the last two years of the Carter Administration, the Senate confirmed 44 Circuit Court nominees and 154 District Court nominees.

During the last two years of the Reagan Administration, the Senate confirmed 17 Circuit Court nominees and 66 District Court nominees.

During the last two years of the George H.W. Bush Administration, the Senate confirmed 20 Circuit Court nominees and 100 District Court nominees.

During the last two years of the Clinton Administration, the Senate confirmed 15 Circuit Court nominees and 57 District Court nominees.

In many of these cases the Senate was controlled, sometimes by a substantial margin, by a different party than that which controlled the White House. I see no reason why this Senate should not be at least as productive as the Republican controlled Senate which confirmed 15 Circuit Court nominees during President Clinton's final two years in office.

I would also like to address what has been called the "Thurmond Rule." Some have suggested that this so-called rule holds that the Senate should dramatically curtail confirmations after the spring of a presidential election year. Review of the historical record suggests that this rule is more myth than reality.

It does not appear that Senator Thurmond, for whom the purported rule is named, ever publicly asserted that nominations should be delayed due to an impending presidential election. The only comment that could be so construed was made after the Committee approved ten nominees at a September 17, 1980 markup. He stated, "[L]et me make the point [that] the Minority has tried to be more than fair in considering all of the nominees that have appeared before this Committee. I would remind [the Committee] it is just about six weeks before the election, and I want to say that for a year and a half before the last election, there was no action taken on judges when we had a Republican President." However, because Senator Thurmond used this as a point of contrast, the natural implication seems to be that he considered blocking nominations in the lead up to an election unfair.

The fact of the matter is that the Senate has regularly confirmed judges in presidential election years. In the election year of 1980, when it is asserted Senator Thurmond inaugurated the so-called rule, the Senate confirmed ten Circuit Court nominees and 53 District Court nominees. Several of the Circuit Court nominations were high profile nominees with well-known credentials. Many of these nominees were confirmed relatively late in the year.

Between June 1 and September 1, 1980, the Senate confirmed four Circuit Court nominees and 15 District Court nominees, including then-ACLU General Counsel Ruth Bader Ginsburg, who was confirmed June 18, 1980.

After September 1, 1980, the Senate confirmed two more Circuit Court nominees and eleven District Court nominees. The first Circuit Court nominee, Stephen Reinhardt of the Ninth Circuit, who is now thought to be one of nation's most liberal jurists, was confirmed on September 11, 1980.

More remarkable is the second Circuit Court nominee, that of Stephen Breyer to the First Circuit. Justice Breyer was then Senator Kennedy's Chief Counsel. He was nominated by President Carter on November 13, 1980, after Carter had lost the election to Ronald Reagan. The Senate, which was also about to switch party control, held a swift confirmation hearing and voted to confirm Breyer on December 9, 1980.

The presidential election year of 1980 was not an aberration, the pattern continued in subsequent election years. In 1988, President Reagan's last year in office, the Senate confirmed seven Circuit Court nominees and 33 District Court nominees. In 1992, President George H.W. Bush's last year in office, the Senate confirmed eleven Circuit Court nominees and 53 District Court nominees. In 2000, President Clinton's last year in office, the Senate confirmed eight Circuit Court nominees and 31 District Court nominees.

Furthermore, many of these presidential election year confirmations occurred late in the year. Since 1980, 110 judges were confirmed after July 1st of a presidential election year, 17 of those were confirmed to Circuit Courts. In the same period, 63 judges were confirmed after September 1st of presidential elections years, twelve of those to Circuit Courts. In short, there does not appear to be any historical basis for the so-called "Thurmond Rule." The Senate has confirmed numerous nominees during presidential election years, and I expect that with Senator Leahy and I working together, we will do so again next year.

In fact, I think it's time to move beyond some of the more acrimonious judicial battles of the past. I think the country is served best when the Senate fulfills its constitutional duty and votes on the President's nominees.

I have called on the White House to consult with Senator Leahy and Leader Reid during the nomination process. I have also worked to ensure that judicial nominees are afforded prompt consideration and fair treatment by the Judiciary Committee. I plan to continue to do that as the Ranking Member and am confident that under Senator Leahy's leadership, our Committee will fairly and expeditiously consider judicial nominees.

Aside from the responsibility the Senate has to vote up or down on the President's nominees, we cannot forget that these people, who have agreed to undertake important government service, have family considerations and professional lives that are often adversely impacted when their careers are out on hold because of a pending nomination. We should never forget that these nominees, whether a Member decides ultimately to support them or not, are deserving of our thanks for their willingness to undergo this process and to offer their services to the American people. They deserve fair treatment by this body.

I trust that during the 110th Congress the Senate will work productively to ensure that nominees are treated fairly and that judicial vacancies are filled as soon as possible. I look forward to working with the White House and with Chairman Leahy to that end.

I yield the floor.