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Sessions Sets the Record Straight on Judicial Nominations
Wednesday, September 22, 2010
“Allegations of ‘unprecedented’ obstruction and delay have been bandied about, but the reality is, Democrats’ systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it is unmatched now.”
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, spoke on the Senate floor today to contrast the current pace at which judicial nominees are being considered with the unprecedented obstructionism and repeated filibusters of President Bush’s nominees. Sessions also addressed concerns about recent activist court rulings, as well as President Obama’s empathy standard.
A text of Sessions’ remarks, as prepared, follows:
“Mr. President, I rise to speak about the Senate’s processing of judicial nominations. Before I begin, I’d like to emphasize that all of this is not to lay the groundwork for some sort of payback, but to set the record straight. Allegations of “unprecedented” obstruction and delay have been bandied about by some of our colleagues and their allies in the press. But the reality is, Democrats’ systematic obstruction of judicial nominees during the Bush Administration was unprecedented then and it is unmatched now.
Soon after President Bush was elected, a group of well-known liberal professors—Laurence Tribe, Marsha Greenberger, and Cass Sunstein—met with Democrat Senate leadership. The New York Times reported that they proposed “changing the ground rules” of the confirmation process. They proposed that Senators consider a nominee’s “ideology.” For the first time in the history of the country, they proposed that the burden be shifted to the nominee to prove that they were worthy of the appointment instead of having the Senate respect the presumptive power of the President to make the nomination and then object if there was disagreement.
As time went on, it became clear that a majority of the Democrat Members of the Senate began to execute their unprecedented obstruction plan, targeting President Bush’s Circuit Court nominees while moving District Court nominees to mask their obstruction. After the Democrats took control of the Senate in 2001, the Senate confirmed only 6 of President Bush’s 25 circuit court nominees. Two of the six were prior Clinton nominees that President Bush renominated to show good faith. Yet, the majority
of President Bush’s first nominees, nominated on May 9, 2001, waited years for confirmation. Let me list some of the names:
- Priscilla Owen (5th Circuit); confirmed more than four years later on May 25, 2005;
- Now Chief Justice John G. Roberts, Jr. (D.C. Circuit); confirmed two years later, after undergoing two hearings, by voice vote on May 8, 2003;
- Jeffrey Sutton (6th Circuit); confirmed two years later on April 29, 2003;
- Deborah Cook (6th Circuit); confirmed two years later on May 5, 2003;
- Dennis R. Shedd (4th Circuit); confirmed more than a year and a half later on November 19, 2002;
- Michael W. McConnell (10th Circuit); confirmed more than a year and a half later by voice vote on November 15, 2002; and
- Terrence Boyle (4th Circuit); waited almost eight years until his nomination was allowed to lapse at the end of President Bush’s Administration.
Perhaps the most disturbing story was that of Miguel Estrada, an outstanding, well-qualified, nominee who was nominated to the D.C. Circuit on May 9, 2001. He waited sixteen months just for a hearing only to be confronted with unreasonable requests for more information. After almost two-and-a-half years in limbo and a protracted six-month-long filibuster battle, Mr. Estrada withdrew his name from further consideration on September 4, 2003. To this day, I remain baffled as to why such a fine nominee was treated so poorly, his character assassinated, and his nomination ultimately blocked for no reason.
One of the most blatant examples of Democrat obstruction of Bush nominees occurred in the Fourth Circuit. This Court sat one-third vacant for years and suffered from a clear need for judges. I did not hear any of my Democrat colleagues worry about vacancies and caseloads then, when they deliberately delayed and blocked outstanding, well-qualified nominees to that court, including Chief Judge Robert Conrad, Judge Glen Conrad, Mr. Steve Matthews, and Mr. Rod Rosenstein. They deliberately blocked these nominees to keep those vacancies open for a Democrat president to fill—and they succeeded.
A 2007 Washington Post editorial lamented the dire straits of the Fourth Circuit at the time, writing:
“[T]he Senate should act in good faith to fill vacancies—not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers. Two nominees—Mr. Conrad and Steve A. Matthews—should receive confirmation hearings as soon as possible.”
Chief Judge Robert Conrad was nominated to the seat for which Obama nominee Judge James Wynn was confirmed on August 5th of this year. Chief Judge Conrad had the support of his home state senators and received an ABA rating of Unanimous Well-Qualified. Further, he met Chairman Leahy’s standard for a noncontroversial, consensus nominee because he previously received bipartisan approval by the Judiciary Committee and the Senate when he was confirmed by voice vote to be a U.S. Attorney in North Carolina and later to the District Court for the Western District of North Carolina. And, of all the lawyers in the country, Attorney General Janet Reno selected him to be the head of her campaign finance task force that investigated fund-raising improprieties that were alleged to concern President Clinton to and other high officials, during the 1996 election.
On October 2, 2007, Judge Conrad’s home-state senators, Senators Burr and Dole, sent a letter to Senator Leahy requesting a hearing for Judge Conrad. They also spoke on his behalf at a press conference on June 19th that featured a number of Judge Conrad’s friends and colleagues who had traveled all the way from North Carolina to show their support. That request was denied. On April 15, 2008, Senators Burr, Dole, Graham, and DeMint sent a letter to Senator Leahy asking for a hearing for Judge Conrad and Mr. Matthews. That request was also denied. Despite overwhelming support and exceptional qualifications, Judge Conrad waited 585 days for a hearing that never came. His nomination was returned to the President on January 2, 2009.
Another of President Bush’s outstanding nominees to that court, Judge Glen Conrad, also had the support of his home state senators—including Democrat Senator Jim Webb—and received an ABA rating of Well-Qualified. He too met Chairman Leahy’s standard because he was confirmed to the District Court for the Western District of Virginia by a unanimous, bipartisan vote of 89-0 in September 2003. Despite his extensive qualifications, Judge Conrad, who was nominated on May 8, 2008, waited 240 days for a hearing that never came. His nomination was returned to the President on January 2, 2009. In stark contrast, President Obama’s nominee to this seat, Judge Barbara Milano Keenan, received a hearing a mere 23 days after her nomination, a Committee vote just 22 days later, and was confirmed at the beginning of this year.
President Bush nominated Steve Matthews on September 6, 2007 to the same seat on the Fourth Circuit for which Judge Diaz has now been nominated. Mr. Matthews had the support of his home state senators and received an ABA rating of Qualified. He was a graduate of Yale Law School and had a distinguished career in private practice in South Carolina. Despite his qualifications, Mr. Matthews waited 485 days for a hearing that never came. His nomination was returned to the President on January 2, 2009. That does not seem to stop Democrats and their allies in the press from unabashedly complaining that Judge Diaz has been waiting too long for a confirmation vote or decrying the need to rush to fill the vacancy—a vacancy that should never have existed if Matthews had been confirmed.
Earlier this year, we confirmed Judge Andre Davis to the “Maryland” seat on the Fourth Circuit. A brief history of that seat bears mention. President Bush nominated Rod Rosenstein to fill this vacancy on November 15, 2007. The ABA rated him Unanimous Well-Qualified. Previously, in 2005, he was confirmed by a noncontroversial voice vote to be the United States Attorney for the District of Maryland. Prior to his service as U.S. Attorney, he held several positions in the Department of Justice under both Republican and Democrat administrations. Despite these stellar qualifications, Mr. Rosenstein waited 414 days for a hearing that never came. His nomination was returned to the President on January 2, 2009.
The reason given by his home state senators for why his nomination was blocked was that he was “doing a [too] good [of a] job as the U.S. Attorney in Maryland.” I think that a 2008 Washington Post editorial painted a more accurate picture:
“blocking Mr. Rosenstein’s confirmation hearing… would elevate ideology and ego above substance and merit, and it would unfairly penalize a man who people on both sides of this question agree is Well-Qualified for a judgeship.”
But, it was only when President Obama nominated Judge Davis to this seat that we heard Democrats’ outrage over the fact that it had been vacant for nine years. Ironically, however, Judge Davis fared far better than President Bush’s nominees to the Fourth Circuit. He received a hearing a mere 27 days after his nomination, a Committee vote just 36 days later, and, finally, confirmation.
Suffice it to say, Democrats have capitalized on their eight years of obstruction of outstanding, well-qualified Bush nominees by packing the Fourth Circuit Court of Appeals with Obama picked nominees.
The Democrats perpetrated similar systematic obstruction with respect to the Sixth Circuit. On November 8, 2001, President Bush nominated Judges David McKeague, Susan Neilson, and Henry Saad to fill vacancies on that court. On June 26, 2002, he nominated Judge Richard Griffin to fill an additional Sixth Circuit vacancy. However, the Democrat home state senators refused to return their blue slips for any of them, and the nominations were returned to the President on November 20, 2002.
President Bush re-nominated all four on January 7, 2003. This time, the Democrat home state senators returned blue slips—negative blue slips. Despite this, on July 30, 2003—629 days after his initial nomination and 204 days after his re-nomination—the Republican-controlled Judiciary Committee held a hearing on Judge Saad’s nomination. However, Democrats continued to delay the nomination for a year until it was finally and favorably reported out of Committee on a party line vote. It didn’t matter. Democrats filibustered his nomination on the floor and he never received an up or down vote. His nomination was returned to the President on December 8, 2004. President Bush re-nominated Mr. Saad on February 14, 2005, but the Senate once again failed to act on his nomination and it was withdrawn on March 27, 2006.
Judges Griffin and McKeague eventually received hearings on June 16, 2004—721 days after Judge Griffin’s original nomination and 951 days after Judge McKeague’s original nomination. They were both reported favorably out of Committee a month later, but Democrats filibustered them on the floor and their nominations were returned to the President on December 8, 2004. Both were re-nominated in the 109th Congress and were finally and overwhelmingly confirmed—Judge Griffin by a vote of 95-0 and Judge McKeague by a vote of 96-0—a clear demonstration of just how uncontroversial their nominations were. Yet they still waited over one-thousand days for confirmation.
Judge Susan Nielson received a hearing on September 8, 2004, 1,035 days after her original nomination and 610 days after her re-nomination. Although her nomination was favorably reported out of Committee on October 4, 2004, Democrats refused to give her an up-or-down vote and her nomination was returned to the President on December 8, 2004. President Bush re-nominated her on February 14, 2005, and, seven months later, the Democrat home state senators finally returned positive blue slips. She was easily confirmed by a vote of 97-0 on October 27, 2005—1,449 days after her original nomination and 255 days after her re-nomination. Unfortunately, she passed away shortly thereafter.
On June 28, 2006, President Bush nominated Stephen Murphy and Raymond Kethledge to fill still more vacancies on the Sixth Circuit. However, the Democrat home state senators withheld their blue slips and their nominations were returned to the President on December 9, 2006. President Bush re-nominated them on March 19, 2007. After almost a year of delay, as part of a compromise, President Bush agreed to withdraw Mr. Murphy’s nomination and to nominate Judge Helene White in his place. In exchange, the Democrat home state senators finally returned positive blue slips for Mr. Kethledge.
One may wonder: why all this needless obstruction? Well, at least one reason was that the NAACP National Defense League made a personal request to Democrats on the Judiciary Committee that they stall the confirmation of nominees to the Sixth Circuit until the cases regarding the constitutionality of affirmative action in higher education were decided. They believed that if Bush appointees were confirmed to that circuit, the outcome of those cases would not be to their liking. They were afraid the Bush judges may follow color blind policies.
This is just one example of a larger agenda. Democrats do not want judges who will act as a neutral umpire, calling balls and strikes and applying the law to the facts. No, they want judges who will make policy and rule based on their personal policy preferences and political beliefs and who will advance desired outcomes. Amazingly, during the Kagan hearings, Democrat Senators rolled their eyes and rejected Chief Justice Roberts metaphor of the judge as a “neutral umpire.” To them, that’s weakness. To them, neutrality, impartiality, is weakness.
As activist judges continue to override the will of the people, it is becoming increasingly apparent that the Democrats hold federal judiciary as the great engine of the left, picking and choosing which constitutional rights they will protect and which they will cast aside—the only consistent principle of which seems to be to advance the agenda of the left wing of the Democrat party.
Just a few months ago, the preservation of the explicit constitutional right to keep and bear arms was determined by a single vote on the Supreme Court. Four Justices, including Justice Sotomayor—contrary to what she had said just one year earlier in her confirmation hearings—would have held that the right to keep and bear arms is different from other liberties protected by the Bill of Rights and should not apply to the States.
Just a couple of years ago, one vote on the Supreme Court decided that a city could use its eminent domain power to take a woman’s house in order to give it to a private company for a redevelopment project. So much for life, liberty and property.
One vote on the Supreme Court held that it did not violate the First Amendment for a public university to require a religiously-oriented student organization to accept officers and members that do not subscribe to the organization’s religious beliefs.
Recently, a single judge in the Western District of Wisconsin—the same district to which Louis Butler has been nominated—held that the statute establishing the National Day of Prayer was unconstitutional because “its sole purpose is to encourage all citizens to engage in prayer.” In doing so, the judge said that the government had “taken sides on a matter that must be left to individual conscience” and violated the Establishment Clause of the First Amendment. One wonders, then, does this Senate violate the Establishment Clause each day when it opens the session with a prayer? And is the Constitutional guarantee of the right to the free exercise of one’s religion not found in the First Amendment of the judge’s Constitution?
The liberal Ninth Circuit—to which Goodwin Liu has been nominated—held that the recitation of the Pledge of Allegiance in an elementary school was unconstitutional under the Establishment Clause of the First Amendment, because the pledge includes the words “under God” and amounted to a government endorsement of religion. One wonders what the Ninth Circuit would have to say about teaching children the Declaration of Independence. After all, it does say “we hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights.”
A single judge on the U.S. District Court in Massachusetts recently invalidated the Congressionally passed Defense of Marriage Act as unconstitutional because it did not have “a legitimate government interest” and was outside the scope of “legislative bounds.”
A single judge in the Northern District of California—the same court to which Edward Chen has been nominated—held that a statewide ballot initiative defining marriage as between a man and a woman, which was passed by a majority of California voters, violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The judge decided, essentially by fiat, that the state, the people of California had no legitimate interest in defining marriage.
A single judge in the Central District of California recently held Congress’ “Don’t Ask, Don’t Tell” policy was unconstitutional because it did not “significantly further the Government’s interests in [military] readiness or unit cohesion” and was an impermissible content-based restriction that violated the Free Speech, Free Association, and Petition Clauses of the First Amendment.
This list is not comprehensive. These cases are not anomalies. This is a troubling pattern. The American people don’t like it. They know what’s being done by activist judges. They are going to hold Democrat Senators accountable for the judges they have created and the superb ones they have blocked.”
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