September 26, 2006

This is the Judiciary Committee's third markup in the last eight days. I cooperated with the markup last Tuesday as the Chairman's scheduled a Special Executive Business Meeting. I came to the meeting and established the quorum. The Chairman had said that the meeting would be held to burn holds on two non-controversial circuit court nominees. I agreed to try to expedite consideration of the nomination of Kent Jordan, a nominee to the Third Circuit. Peter Keisler's nomination to the DC Circuit is, however, by no means non-controversial. Nonetheless, in an effort to work with the Chairman I stayed and discussed the Republican hold on that nomination.

Then, although we had not discussed either in advance, in order to be accommodating, I went further and did not object when, at the request of Senator Grassley and Senator DeWine, they held over the nominations of John Alfred Jarvey and Sara Elizabeth Lioi. Those nominations might have been able to have been cleared last Thursday, had they not been held over, but are now, in accordance with the rules of the Committee, available for consideration.

The Democratic Senators on this Committee and our staffs have worked hard to be accommodating on judicial nominations. The Chairman has held each week this month at a breakneck pace, one that I think is simply too fast for lifetime appointments. I want to thank and commend the Democratic Senators for working with us to make progress on nominations on such an expedited basis.

This year, the Senate has so far confirmed 31 judicial nominees. The Republican Senate confirmed only 17 of President Clinton's judicial nominees in the 1996 session. We have almost doubled that number. We have reported out 37 judicial nominations. We have held 18 judicial nominations hearings this year, including a Supreme Court hearing, and executive nominees have been included in four years, including two hearings devoted entirely to executive branch nominations and bringing the total nominations hearing for the year to 20.

We have confirmed seven circuit court nominees, which is seven more than the Republican Senate confirmed with a Democratic President in 1996. That year Republicans would not consider or confirm a single appellate court nomination, not one. It is already as many circuit court nominees as were confirmed in 1997 and 1999.

This is a far cry from the days when the Republican Congress pocket filibustered more than 60 of President Clinton's nominees, refusing even to bring them up for a vote in Committee. Of course, during the 17 months that I was Chairman, we were able to confirm 100 of President Bush's nominees. In 20 months of Republican control, with a Republican President, that number now stands at about half that-- just 53.

Of course, we could have moved much faster this year if the White House had sent over consensus nominees early in the year. The White House did not. Many of the nominees we are now trying to consider were not even nominated until July. Regrettably the Administration concentrated on a few highly controversial nominees and delayed until recently sending nominees thereby preventing us from having the time to do any meaningful review.

Even in September, the White House has undermined this process. Instead of focusing on consensus nominees, the President sent back to us five highly controversial nominees who had been returned to the White House in the hope that the President would take the opportunity to move on to consensus choices and to doing the work of the American people. Sadly, this Senate appears to be abetting those bad decisions and may force us to spend our time and energy debating troublesome nominations, rather than reviewing and confirming good ones.

We are now in the position of trying to rush through too many nominees too quickly for us to give them real consideration. There are 11 judicial nominees listed on today's agenda at various stages of consideration.

We have been accommodating, and we will continue to be, but this Committee should not be a rubber stamp for the President's nominations. We should be taking our constitutional responsibility to advise and consent seriously. That means carefully reviewing the nominees' records and making sure that these are appropriate nominees for lifetime appointments to important federal judgeships.

I hope that we have time in the few days remaining in this legislative session to consider as many as reasonably possible of these nominations. A customary practice in the Senate would have been for the leaders, the Republican and Democratic leaders, to have sat down with the Chairman and the Ranking Member by now and have worked out a process to conclude the year. I would have urged that we concentrate on completing our work on those nominations most likely to be confirmed and to maximize the number of confirmations. Sadly, that meeting has not occurred and apparently will not.

I do want to acknowledge the kinds words of the Majority leader who noted just last night that we have made "tremendous progress on confirming qualified judicial nominees." By Senator Frist's count, the Senate "has confirmed 88 percent of President Bush's judicial nominees, giving him the highest confirmation rate since President Reagan." He calculates that "95 percent of all judgeships are filled, including more than 92 percent of all circuit court judgeships and more than 95 percent of all district court judgeships." HE notes that the Senate has confirmed "[n]early 160 nominees" for judgeships. The only thing he leaves out is that fully 100 were confirmed during the 17 months that I chaired this Committee and Senator Daschle was the Senate's leader. These observations, along with the Chairman's acknowledgement at our last meeting that we have been extremely accommodating, reflect the facts. They put the lie to the vitriolic attack on me personally being made this week by the Republican National Committee.

I have been noting for some weeks now my worry that, like so much of the Nation's pressing business over the last two years, even noncontroversial nominations can be delayed or derailed by the misguided priorities of the Bush-Cheney Administration and the Republican leadership. With so little time remaining in this Congress, I would have hoped that the Administration and the Republican leadership would be anxious to make up for lost time by trying, at last, to address the many urgent and unresolved needs of Americans. Instead, I fear that today we will spend hours of Committee time on divisive nominations that have stalled in the past. Regrettably, rather than learn lessons from these failures, it appears that the President and his allies in the Senate are intent on staying the course. This Administration seems intent on heeding the marching orders of the narrow, special interest groups on the right and picking fights. While I have urged the Senate Republican leadership to join with us in the waning days of this Congress to do the work of the American people, it appears this week we will take the Administration's bait and waste valuable time.

I have spoken about these problematic nominations before and will do so again if need be. I do not think they are fit for lifetime appointments to the nation's federal courts. I would rather use Committee time to consider legislation of importance to the American people and to review and confirm consensus nominees, but I will also try to ensure that the Senate exercises its constitutional responsibilities, rather than acting as a rubber stamp.

Yesterday I joined the Chairman at an expedited hearing on the habeas stripping provisions of the military commissions legislation proposed by the Armed Services Committee and by the President. The Chairman and I want to improve the Armed Services Committee bill by fixing the habeas corpus provisions. I would have hoped that we would be considering the best way to bring our Committee's expertise to bear on that important matter. I still hope that we can.