Mr. President, there is no excuse for the delays in the confirmation process except sheer partisanship. It amounts to an ongoing partial government shutdown, and it definitely hurts the American people. Such obstruction is not worthy of…
Mr. President, there is no excuse for the delays in the confirmation process except sheer partisanship. It amounts to an ongoing partial government shutdown, and it definitely hurts the American people. Such obstruction is not worthy of the Senate, and the resulting judicial vacancies do great harm to the judicial system.
These are not my words but the words of the Senator from Vermont, Mr. Leahy, when he chaired the Judiciary Committee in 2014. Judicial vacancies today are 60 percent higher than when he expressed those concerns back then. Vacancies are 52 percent higher than what he said was a ``disaster for our Nation's overburdened courts.''
The Administrative Office of the U.S. Courts labels some judicial vacancies as judicial emergencies because of their duration and impact on caseloads. On March 12, 2012, the Senator from Illinois, Mr. Durbin, said that 35 judicial emergency vacancies would cause the administration of justice to suffer at every level. Today, there are 72 judicial emergency vacancies, more than twice as many as Senator Durbin warned about.
To be fair, I have to say that the leftwing groups that are such faithful allies of Senate Democrats are no better. In July 2012, for example, the Alliance for Justice proclaimed that 76 vacancies demonstrated ``an overall and ongoing vacancy crisis in the federal courts.'' Today, vacancies are 88 percent higher than the crisis level, and all we hear from the Alliance for Justice are calls to oppose and obstruct even more. Judicial vacancies today are 74 percent higher than when the Brennan Center for Justice said the Senate was not meeting its obligation to the American people.
If high judicial vacancies harm the judicial system and prevent Americans from seeking justice, why aren't Democrats and their leftwing allies leading the effort to confirm judicial nominees today? If Democrats once said that 79 vacancies constitutes a crisis, why are they silent about 143 vacancies today?
Today we face the highest judicial vacancy total since June of 1991, after Congress had created dozens of new judgeships. It is crystal clear why this dire situation confronts us today. The process for appointing Federal judges, after all, has only three steps: nomination by the President, consideration by the Senate Judiciary Committee, and a decision by the full Senate.
The first step in the judicial appointment process is Presidential nominations. President Trump has made more judicial nominations than his predecessors of both parties at this point, so he is not the problem--as you can see from that chart.
The second step is consideration by the Judiciary Committee. Chairman Chuck Grassley has held a hearing on 75 of those nominations--more than under previous Presidents, so the Judiciary Committee is not the problem.
That leaves the third step right here on the Senate floor. Even though President Trump is ahead of the nomination
pace, and the Judiciary Committee is ahead of the hearing pace, the Senate's confirmation pace is half what it was at this point for the past five Presidents.
March 20, I spoke here about some of the below-the-radar obstruction tactics Democrats are using to make this part of the process as time- consuming and cumbersome as possible. Let me offer a brief review. Democrats once complained about U.S. district court nominees being reported from the Judiciary Committee on a party-line vote. That is happening at a rate of more than four times as great today.
Democrats once criticized the failure to cooperate in scheduling floor votes for judicial nominees. So far, Democrats have forced the Senate to take separate votes to end debate, called a cloture vote, on 96 percent--96 percent--of President Trump's judicial nominees. The Senate has been forced to take 16 times as many cloture votes on President Trump's judicial nominees as under the last 12 Presidents combined at this point. You heard me right. The Senate has been forced to take 16 times as many cloture votes on judicial nominees as under the last 12 Presidents combined at this point. That is every President since the cloture rule was first applied to nominations in 1949.
In 2014, with a Democratic President, Democrats said that every time the minority refuses to cooperate in scheduling confirmation votes, every time the majority leader is forced to initiate the cloture process, the Senate is forced to take up scarce floor time, when we know these nominees will be confirmed. Today, Democrats are using that and other tactics on a scale this body has never seen before.
Democrats once objected to voting against confirming U.S. district court nominees who were supported by their own two Senators. At this point, President Obama's confirmed district court nominees had received a total of zero negative votes--zero. President Trump's district court nominees have received 73 negative votes--73. Think about that. Think about the unfairness of it.
Each of these, and more besides, is a tactic that Democrats once condemned but are today pushing to record levels of obstruction. Even more important than seeing where we are and how we got here is understanding why the Democrats and their leftwing allies are working so hard to prevent President Trump from appointing judges.
I have served in this body and on the Judiciary Committee for nearly 42 years. I have participated in the confirmation of half of all article III judges who have ever served in this country, from the beginning. In all that time, the conflict over judicial appointments has never been over judicial nominees; it has always been over judicial power. The vacancy crisis we face today is a consequence of the broader, ongoing conflict over the kind of judge America needs on the bench.
America's Founders gave us a system of government that includes a judiciary with a role defined by three important principles. First, as Founder James Wilson put it, the people are masters of the government. Second, the Constitution is the primary way that the people set rules for government. Third, among those rules is the separation of powers into three coequal but different branches.
Judges acting consistent with these principles, what I have called impartial judges, fit the design of our system of government and the liberty it makes possible. Judges who depart from those principles, what I have called political judges, are at odds with that design and undermine our liberty. President Trump is committed to appointing impartial judges, while those working so hard to obstruct his his nominees favor political judges.
President Obama led the way in the quest for a political judiciary. First, as a Senator evaluating judicial nominees and then as a President choosing them, he said judges decide cases based on their empathy, their vision of how the world works, their core concerns, and their deeply held beliefs. If judges make decisions on their personal views, then it is no wonder the Democrats want so badly to know a judicial nominee's personal views.
I will never forget the confirmation hearing for Chief Justice John Roberts in 2005. Democrats pressed him to commit, in advance and under oath, to particular results in different categories of cases. They asked repeatedly: Whose side will you be on? Political judges take sides, even before cases come before them, because their main objective is to ensure that the favored side wins and that the preferred political interest is served.
We see this in plain view today. Democrats observe a judicial nominee's personal views, or his legal views on behalf of a client, and insist that those views will dictate his judicial views. This is why many Democrats will oppose any nominee who has conservative personal beliefs or who has advocated for conservative clients. To them, there is no difference between politics and law.
Democrats oppose judicial nominees because of their personal views, even when the American Bar Association--which has never been accused of being conservative--gives those nominees its highest rating. The appeals court nominee confirmed this week, for example, received that rating only after the ABA considered, in its words, his ``compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.''
In their heart of hearts, those who favor political judges have no problem with judicial minds being closed or biased so long as that leads to results they like. They seek politically correct results by any judicial means.
That judiciary is very different from the one contemplated by the Founders of this great country. That judiciary is very different from the one described by the oath of judicial office, by which a judge commits to do justice without respect to identities or interests. That judiciary is very different from the one that makes our liberty possible.
The liberty we enjoy is by design, not by accident. That design requires judges with a limited and defined role. Impartial judges support the liberty our system of government was designed to provide while political judges undermine it. Impartial judges take the law as it is and apply it fairly to decide cases, leaving decisions about what the law should be to the American people and their elected representatives. Political judges take decisions about what the law should be away from the American people, manipulating the meaning of statutes and the Constitution to follow their own views and their own agenda.
The conflict over judicial appointments is, and will remain, a conflict over judicial power and, therefore, a conflict over the system of government crafted by America's Founders. Remember the three principles I mentioned earlier. Impartial judges allow the American people to remain the masters of government; political judges become the masters of the people. Impartial judges follow the rules the American people put in the Constitution; political judges change the meaning of those rules to suit their own ends. Impartial judges respect the separation of powers while political judges breach it.
The unprecedented obstruction of judicial nominees today is a tool in the campaign for an increasingly politicized judiciary. The rhetoric of that campaign is all about desirable objectives, all about good intentions. I close with the words of Daniel Webster, who represented two different States in the House and represented Massachusetts in the Senate before serving as Secretary of State under three different precedents. He said:
Good intentions will always be pleaded for every assumption
of authority. It is hardly too strong to say that the
Constitution was made to guard the people against the dangers
of good intentions. There are men in all ages who mean to
govern well, but they mean to govern. They promise to be good
masters, but they mean to be masters.
That is Daniel Webster. Let me repeat that again because Webster is one of the greatest people who ever served in this government.
Good intentions will always be pleaded for every assumption
of authority. It is hardly too strong to say that the
Constitution was made to guard the people against the dangers
of good intentions. There are men in all ages who mean to
govern well, but they mean to govern. They promise to be good
masters, but they mean to be masters.
America needs impartial judges so that the American people can be the masters of government and so that liberty can thrive.
Let me go over that quote again from Daniel Webster. I will end with this.
Daniel Webster said:
Good intentions will always be pleaded for every assumption
of authority. It is hardly too strong to say that the
Constitution was made to guard the people against the dangers
of good intentions. There are men in all ages who mean to
govern well, but they mean to govern. They promise to be good
masters, but they mean to be masters.
Some of those Founding Fathers really knew what they were talking about, and Webster was certainly one of them in many respects.
All I can say is that we have a chance to work together to do what is right and in the best interest of the American people. I intend to see that we do that, and I hope we can because this country is worth it. Our system of government is the best this world has ever seen, and I want to see it continue to be.
I yield the floor.
I suggest the absence of a quorum.
Madam President, I ask unanimous consent that the order for the quorum call be rescinded.