Tuesday, February 28, 2012
Floor Speech: Calling on colleagues to put partisanship aside and move swiftly in confirming judicial nominees
Madam President, I rise today to continue to address an issue which I've just had the joy of hearing you and the senators from New York and from Illinois speak to, and that concern that I raise today is the ongoing crisis in our courts — the nearly 10 percent vacancy in judicial positions all across the United States.
I rise today as the senator from Delaware, a senator from Delaware, the junior senator from Delaware, but also as a member of the Delaware Bar and a former federal court clerk and someone who has, I think, a personal sense from that experience and my service on the Judiciary Committee, of the consequences of these delays, the consequences of steadily climbing caseloads, significant judicial vacancies, judicial emergencies in districts across our great country, including the state of California, and what that means for people, for companies, for communities for whom justice is being delayed and thus denied.
Earlier this month, I attended the investiture ceremony of Judge Richard Andrews, who was sworn in to the U.S. District Court for Delaware. This is the first time in six years that the very busy District Court of Delaware has had a full complement of all of its district court judges. And although I am relieved and the people of Delaware are grateful to have a full bench, and although Judge Andrews is an extremely talented lawyer and a devoted public servant and utterly nonpartisan — just the sort of district court nominee of whom the presiding officer just spoke — his nomination took nearly six months to be confirmed by the Senate.
I'm glad that Judge Andrews has made it through, because in the Senate, the confirmation process seems to be even more broken this year than last. When I joined the Senate in 2010, judicial nominations had slowed to a crawl and I watched with dismay as folks who I viewed as highly qualified were blocked.
Goodwin Liu, for example, a brilliant and qualified legal scholar, a nominee twice to the Ninth Circuit, could not overcome a GOP filibuster, in part payback for a view I believe on the other side of the aisle of the rough handling of Miguel Estrada, whose nomination was defeated during the Bush presidency.
What I've been most concerned about as a freshman senator is how the history here, lying about this chamber seems to steadily pile up session after session and the process seems to be weighed down by this burden of history.
But next, Caitlin Halligan, an extremely accomplished attorney without a single partisan blemish on her record was nominated to the D.C. Circuit, and her nomination, in my view, also blocked, was blocked based on a grotesque misrepresentation of her actual record. The major talking point against her nomination, if I recall right, was that the D.C. Circuit already had more than enough judges.
Judge Halligan would have been the ninth judge on that court. Notably all the GOP members who spoke against her had no qualms when this Senate confirmed a 10th and 11th judge to sit on that very same circuit during the Bush nomination period. But these sorts of fine points of history, I think, are lost on the people, the communities and the companies across our nation who go to the courthouse seeking justice and find none.
In 2012, as some of the previous senators have spoken, we have so far confirmed just five judges. Today there are 19 nominees on the floor, 12 who came out of our Judiciary Committee unanimously, and are now languishing on our executive calendar. Republicans have no stated objections to these nominees but refuse to grant consent for a vote to be scheduled.
President Obama's nominees have waited four times longer after committee approval than did President Bush's nominees at this point in his first term. The Senate is more than 40 confirmations behind the pace set during the Bush Administration.
It's not just judges that have also been the subject of this ongoing weighting-down. The executive calendar, which I have the privilege to flip through every time I preside, is filled with vacancies, with nominees to complete, complement in every major department in every major independent agency in this government, it is more than a dozen pages long of nominations that have sat for months and months.
Last month, in response to the Republican obstructionism in moving this executive calendar and in filling these administrative vacancies, President Obama made recess appointments. The Consumer Protection Chief, Richard Cordray, and the National Labor Relations Board. Some of us on both sides of the aisle do agree that Congress, and not the President, has the right to declare when the Senate is in recess. But whatever your view of these appointments, there is no questioning that in either case, Republicans forced the issue through their unprecedented refusal to vote the President's nominees up or down and allow him to proceed with the progress of our nation.
As senators, we have a responsibility to advise the president as to nominations and where we agree, to consent. And where we don't, each of us is free to vote a ‘no.’ Some senators have suggested they will oppose all nominations in opposition to the president's recess appointments. And in my position, in my opinion, a pledge to oppose all nominations is a pledge not to do his or her job. In my view, we ought not to make such a pledge. In my view, while so many Americans are out of work and so many of us are here on the public payroll, we can, we should and we must move forward with judicial nominees.
Madam President, this session began this morning with a very encouraging moment of harmony between the majority leader and the Republican leader on the concept of moving ahead with appropriations. It is my hope and prayer we will do the same on judicial nominations as well.
I call upon my colleagues on the other side to rethink this strategy of obstruction at all costs, because it is in the end the American people who pay the price.
With that, I yield the floor.