Senator Jeff Sessions (R-AL), Ranking Member on the Senate Judiciary Committee, delivered the following remarks today on the Senate floor about the judicial nominations process:

October 27, 2009

“The Senate Judiciary Committee is doing its job. We are processing nominees at a reasonable pace, in a fair and bipartisan manner…

“There are those who say the Republicans are filibustering nominees, and to them, I say that is not correct. A hold is not a filibuster. When a Member of this body has concerns about a nominee, they have a right to put a hold on that nominee. The majority leader has the prerogative to file cloture on that nomination. There were nominees that I have strongly opposed and have voted against, but I voted for cloture when the majority leader sought to bring up the nomination so the nominee would get an up or down vote…

“I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000… Under the Bush Administration, the Democrats held up qualified nominees for years in some cases, denying an up-or-down vote even though a majority of the Senators were ready and willing to confirm…

“Most of the nominees, such as the one on whom we are about to vote, will go through in an expeditious manner. Too often a problem we are dealing with is that there is a philosophy out there—I don't think it is a legal philosophy but rather nonlegal—that it is legitimate for a judge to look outside the law in judging, and that it is legitimate for their personal policy preferences and those matters to impact their decisionmaking.”

WASHINGTON—Senator Jeff Sessions (R-AL), Ranking Member on the Senate Judiciary Committee, delivered the following remarks today on the Senate floor about the judicial nominations process:

Mr. SESSIONS. Madam President, I rise to speak on President Obama's nominee to the district court for the Southern District of West Virginia, Judge Irene Cornelia Berger. The historic significance of her nomination should not be lost on anyone. If confirmed, she will be the first African American to serve on the Federal bench in the State of West Virginia. She has had a distinguished career. She has been a State judge for the last 15 years. Before that, she was a State prosecutor for 12 years and a lawyer for the Legal Aid Society. I enjoyed the dialogue we had during her confirmation hearing and was especially pleased to see her responses to the questions for the record. She indicated in those answers outright that she did not agree with the empathy standard President Obama has used, saying:

A judge should apply the law to the facts of a case without being influenced by sympathy or empathy.

She further stated that it is never proper for a judge to indulge his or her own sense of empathy in deciding what the law means. I wholeheartedly agree and am pleased to be able to support her nomination. The President's nominations deserve deference, although we do have a constitutional responsibility to examine the nominees, to ask the tough questions, to support them when we can and to oppose them when that is the appropriate action.

I commend Chairman Leahy on the pace of his hearings. Last week, the Committee held its 16th judicial nominations hearing. But I wish to set the record straight about a few things. At this point in his Presidency, President Bush had nominated 60 judges, but only 22 nominees had hearings. In contrast, President Obama has nominated only 23 judges, including a Supreme Court nominee, which took a great deal of our time, as it rightly should. Yet 16 of his nominees have received hearings.

The Senate Judiciary Committee is doing its job. We are processing nominees at a reasonable pace, in a fair and bipartisan manner. There are those who say that Republicans are slow-walking nominees. I suggest that is a preemptive accusation to complain about something they think might happen. It is not happening, in my view. The raw numbers show that. Those same individuals also claim that the vacancy rate on the Federal courts is higher now and, therefore, we need to confirm more judges than we did during President Bush's first 2 years in office. However, the need to fill vacancies does not undercut the responsibility to properly vet those lifetime appointments.

Furthermore, we can only process the nominees we have before us. There are currently 22 circuit court vacancies but only 9 nominees before the Senate. There are 75 district court vacancies and only 10 nominees before the Senate. This chart shows that. These are the vacancies in blue and the red represents the circuit court nominees. These are the only the nominations we have received so far.

To date, President Obama has announced a total of only 23 nominees, one of which was a Supreme Court nominee. By this time, the Bush Administration had sent the Senate 60 nominees, almost 3 times as many.

Over the past few weeks, I have heard the Chairman of our Committee come to the floor and state that the pace of confirmations is not acceptable. I wish to point out a few numbers to those who now say Democrats confirmed a significant number of President Bush’s nominees. As I told the Chairman, I hate to get into this. We have been doing this for a number of years, but I am not going to remain silent while the record is distorted. We need to talk about perspective, and if we are going to continue to have tit-for-tat, I will be down here to explain the other side of the question.

President Bush had fewer nominees confirmed than any two-term President in modern history. President Clinton had 377 confirmed; President Bush only got 326. President Clinton was also able to confirm two Supreme Court nominees. Under the Bush Administration, the Democrats held up qualified nominees for years in some cases, denying an up-or-down vote even though a majority of the Senators were ready and willing to confirm.

There are those who say the Republicans are filibustering nominees, and to them, I say that is not correct. A hold is not a filibuster. When a Member of this body has concerns about a nominee, they have a right to put a hold on that nominee. The majority leader has the prerogative to file cloture on that nomination. There were nominees that I have strongly opposed and have voted against, but I voted for cloture when the majority leader sought to bring up the nomination so the nominee would get an up or down vote. That is the way you overcome a hold.

Madam President, how much time do we have remaining?

The PRESIDING OFFICER. The minority has 15 minutes remaining.

Mr. SESSIONS. I think most of us in this body who were here remember that soon after President Bush was elected in 2000, a group of well-known liberal professors—Laurence Tribe, Marsha Greenberger, and Cass Sunstein—he is the one who has recently been appointed by President Obama to one of his administration posts who believes animals should have lawyers appointed for them—met with the Democratic leadership. The New York Times reported at that time 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 somehow prove 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 a disagreement. This was a major change in the history of the Senate. It was done by the Democrats when we had a Republican President.

It was clear to me then that as a result of that meeting, a majority of the Democratic Members of the Senate agreed. After the Democrats took control of the Senate a few months later when Senator Jeffords changed parties, the Senate confirmed only six of President Bush's 25 circuit court nominees. Five nominees had bipartisan support, and two were prior Clinton nominees. President Bush renominated two prior Clinton nominees. They confirmed them, but only a few others were confirmed. Yet the majority of President Bush's first nominees nominated on May 9, 2001, waited years for confirmation.

Priscilla Owen was nominated to the Fifth Circuit, a fabulous supreme court justice in Texas. It took four years for her to be confirmed. She was on the short list for the Supreme Court. She is a brilliant justice.

Now-Chief Justice John Roberts was nominated at that time for the D.C. Circuit—one of the most brilliant Justices I have ever seen come before the Senate. It took two years for him to be confirmed, and he had to go through two hearings.

Jeffrey Sutton, another brilliant nominee to the Sixth Circuit Court of Appeals, was confirmed but only after two years in 2003.

Deborah Cook was nominated for the Sixth Circuit—it took two years to get her nomination confirmed.

Dennis Shedd, nominated to the Fourth Circuit—it was a year and a half before he was confirmed.

Michael McConnell, a brilliant lawyer—and so is Dennis Shedd, but McConnell is a real intellectual—for the Tenth Circuit, it took a year and a half before he was confirmed.

Terrence Boyle waited almost eight years, until his nomination lapsed at the end of President Bush's term. He never got a vote.

Perhaps the most disturbing story was that of Miguel Estrada, who was a brilliant, outstanding, well-qualified consensus nominee. He was nominated to the D.C. Circuit on May 9, 2001. He waited 16 months just to get a hearing—16 months—only to be confronted with unreasonable requests for more information. After almost 2 ½ years in limbo and a protracted 6-month long filibuster battle, we brought his name up a number of times, and he was blocked by filibuster. Mr. Estrada withdrew his name from further consideration, and we remain baffled as to why such a fine nominee was treated so poorly. His character was attacked and his nomination was ultimately blocked for no reason other than the fact that some said he was so capable he would have been on the short list for the U.S. Supreme Court.

I don't say all of this to say there is going to be payback. I do not believe in that. It is time for us to move forward with judicial nominees in the right way. I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000.

That said, this Senate, when I think of many of its Members, understands that it would be wrong for us to be a rubberstamp for every nominee. We have a constitutional duty to vet nominees. As a minority party, we have a duty to ask the important questions that may not be asked at other points in the process.

During his campaign, President Obama pledged he would strive for a bipartisan administration, but the President has failed to put action behind those words in a number of instances. He has refused to renominate some of the noncontroversial consensus circuit court nominees who were not confirmed by the Senate in the last Congress, as President Bush did when he took office. For example, Glen Conrad had the support of his Democrat home State Senator. Yet he was never given a hearing before the end of the Bush Administration. Peter Keisler had broad bipartisan support from lawyers and colleagues throughout the country, a brilliant and capable nominee, but never got a vote. He was denied a vote by the Democratic leadership. In addition, Mr. Keisler was praised in the Justice Department Inspector General's report, one that dealt with the danger of politicizing the Department of Justice. The IG examined it and praised Mr. Keisler because he spoke and acted in opposition to those who appeared to have allowed political considerations to play a role in hiring decisions. He focused on the candidate's qualifications. But rather than being rewarded for his courage, he fell victim to the very partisan wrangling he stood against.

Now, I think President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first circuit court nominee. Judge Hamilton's nomination is clearly controversial. It was only exacerbated by the rushed hearing schedule on his nomination. Indeed, I think it is fair to say he is outside the mainstream of even President Obama's nominees. Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced this empathy standard, this feeling standard. Whatever that is, it is not law. It is not a legal standard. He has said that he believes a judge will "reach different decisions from time to time…taking into account what happened and its effect on both parties, what are the practical consequences."

Judge Hamilton also appears to have embraced the idea of a living Constitution. In 2003, he indicated in a speech that a judge's role included writing footnotes to the Constitution. I am not aware that a judge has the power to write footnotes to the Constitution, which has been ratified by we the people of the United States of America.

When Senator Hatch questioned him about these comments in a followup question, he retreated somewhat but then gave a disturbing answer in the next question about judges amending the Constitution or creating new rights through case law.

This judicial philosophy has clearly impacted his rulings. He issued a number of controversial rulings during his time as a district court judge and has been reversed in some very significant cases. So that is why he is having difficulty on the floor of the Senate and has not moved forward.

Yet the Democrats will not call up another nominee, Judge Beverly Baldwin Martin for the Eleventh Circuit, on whom everybody is prepared to vote.

Andre Davis, whom we have heard about before, has been nominated to the Fourth Circuit. We have had a number of battles over the failure to fill some of the vacancies on that court. President Bush submitted a number of nominations and couldn't get them up for a vote. For example, Judge Robert Conrad, Judge Glen Conrad, Steve Matthews, and Mr. Rod Rosenstein. Mr. Rosenstein was nominated to a seat designated as a judicial emergency on November 15, 2007—the very seat for which Mr. Davis has now been nominated—and he was held up. These vacancies were basically maintained by our Democratic Senators from Maryland for 9 years. The ABA rated Mr. Rosenstein "unanimous well qualified." He was unanimously confirmed as U.S. Attorney for the District of Maryland. He held several positions in the Department of Justice under both Democrat and Republican Administrations. But he waited 414 days for a hearing that never came. His nomination was returned in January of this year.

In 2008, a Washington Post editorial stated that:

Blocking Mr. Rosenstein's confirmation hearing… would elevate ideology and ego above substance and merit and would unfairly penalize a man who people on both sides of this question agree is well qualified for a judgeship.

So after a few weeks went by, the Democrats were already blaming the Republicans, saying they are not moving fast enough on Mr. Davis, who has some serious problems in his background, and I just have to say I am concerned about it. He has been reversed quite a number of times. But he certainly has had his hearing. He had a hearing 27 days after his nomination, and he was voted out of Committee on a split vote just 36 days later.

Mr. Chen, a U.S. magistrate, was recently nominated for the Northern District of California. He stated that he finds "most rewarding… contributing to the development of the law via published opinion, especially if it comports with my view of justice." That is pretty nice if you can develop the law—in other words, make law and make sure it comports with your view of the law. A judge is supposed to be a neutral umpire. They are not supposed to use their moment on the bench to rewrite the law to make it say what they would like it to say. If they would like to write the law, let them run for Congress.

Mr. President, Judge Chen made a number of speeches and statements about which I am concerned. I will not go into that today. But these are some of the nominees who are going to have some difficulty on the Senate floor.

Most of the nominees, such as the one on whom we are about to vote, will go through in an expeditious manner. Too often a problem we are dealing with is that there is a philosophy out there—I don't think it is a legal philosophy but rather nonlegal—that it is legitimate for a judge to look outside the law in judging, and that it is legitimate for their personal policy preferences and those matters to impact their decisionmaking.

We are talking about a lifetime appointment to the Federal bench. There is no opportunity to examine the nominees after they have been confirmed. They should demonstrate that they will not render rulings that go beyond the plain meaning of the law.

The PRESIDING OFFICER. The Senator's time has expired.

Mr. SESSIONS. I thank the Chair and just say that I intend to support this nominee. I will conclude by saying that those of us in the minority intend to give these nominees a fair hearing and to allow the majority of them to have up-or-down votes promptly. But those we think should be objected to will have a difficult time.

There is no question that Mr. Davis is a good man, but his record is a cause for some concern. He has been reversed by the Fourth Circuit numerous times in cases where he misapplied the law, including six criminal cases where he threw out evidence that could have been used to help convict a criminal. He was reversed at least six times in cases that he had wrongly dismissed because there remained unresolved issues between the parties. He dismissed the case in its entirety and the parties had to appeal. Six times he was reversed at great expense and delay. If he didn't accurately assess the facts or apply the law in these more simple cases at the Federal trial court level—some of them are not so complicated; others are—is he qualified now to be on the Fourth Circuit? So these are the concerns we have.

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