Capitol Words a project of the Sunlight Foundation

  • and

Judicial Nominations

Sen. Richard J. Durbin

legislator photo

Madam President, I rise to speak about the issue of judicial nominations. Our Nation faces a serious problem: 1 out of every 10 Federal judgeships is vacant. Yet we continue to see--unfortunately and sadly--unprecedented obstruction from the other side of the aisle when it comes to these nominations. Right now on the Executive Calendar of the Senate there are 22 judicial nominations pending. Twelve of these 22 were successfully voted out of the Judiciary Committee last year, 2 of them as far back as October, and 17 of the nominees currently on the calendar were voted out with strong bipartisan support. Additionally, 13 of the 22 nominees who are being held have the approval of the Republican Senator from the State where the nomination has been made.

Despite the fact these nominations are not controversial, that they passed by a bipartisan vote in the Judiciary Committee and out of the committee, they still languish on the calendar because of Republican objections.

I know people get tired and say: I wish you all weren't so partisan around here. Well, I hate to give a speech where most will say that is just a partisan speech, but we are talking about nominees who have bipartisan support, with a strong vote coming out of committee being held on the calendar. Despite the fact they are noncontroversial, there have been objections to up-and-down votes. All we ask for is to just give them a vote. It is not right. Unfortunately, it is a new development in the Senate.

It used to be when a noncontroversial district or circuit court nominee was reported out of the Senate Judiciary Committee with bipartisan support, that nominee would literally be approved on the Senate floor usually by voice vote within a matter of days. Even when there were battles over the controversial Supreme Court or appellate court nominees, the Senate never obstructed a noncontroversial nominee at the same time, especially at the district court level.

When President Obama took office, Senate Republicans adopted a new and disturbing strategy. They began refusing to give their consent to schedule votes on almost all judicial nominees. You say to yourself: Well, what is their strategy? It is very apparent. They are praying, of course, that a Republican will be elected President and they can fill the vacancies. They want them to continue to have empty seats on our judicial courts for the remainder of this year until the election. President Obama's nominees have been subjected to an unprecedented level of obstruction by the Republicans, more than any other President has received.

Listen to this: President Obama's district court nominees have waited an average of 93 days on the Senate Executive Calendar between a committee vote and a floor vote. How about George W. Bush? How long did his nominees sit on the calendar before Democrats would let them have a vote? Only 24 days. So 93 days under the Republicans, 24 days under the Democrats.

President Obama's confirmed circuit court nominees have been forced to wait an average of 136 days for a floor vote. President Bush's circuit court nominees waited an average of 29 days. So 136 days, way over 4 months for the Obama nominees, and less than 1 month for the Bush nominees.

Overall, at this point in their terms, President Obama had 131 nominees confirmed at the Federal, circuit, and district court level compared to 172 for President Bush and 183 for President Clinton. It is so obvious the Republicans are stopping worthy bipartisan nominees for strictly political reasons.

Current judicial vacancies at this point in President Obama's term are 83, nearly double the 46 vacancies of President Bush's term. I know my Republican colleagues sometimes argue that President Obama is too slow to make nominations, but that argument doesn't explain what happens after the nominations have been made, cleared investigations, cleared the committee, and reached the Senate calendar.

Right now there are 39 judicial nominees pending either before the Judiciary Committee or on the floor of the Senate. Promptly confirming these numbers would bring President Obama's confirmation numbers close to President Bush's. But still the obstruction continues.

Some might argue that blocking judicial nominees is just another one of those silly partisan games in Washington. But, unfortunately, this obstruction has real impact across America. There are 35 judicial vacancies that have been designated judicial emergencies by the nonpartisan Administrative Office of the U.S. Courts. That means the Federal courts are so flooded with heavy workloads that the failure to fill the vacancies makes it even worse. It means justice will be delayed. And when justice is delayed, many times it is denied. When court systems suffer from lack of judges on the bench, the administration of justice suffers at every level, criminal and civil.

All Americans rely on the Federal courts to protect their constitutional rights, keep dangerous criminals off the streets, and resolve their disputes. When judgeships are vacant and judges remain overburdened, the American people may be denied their day in court.

Right now, the Northern District of Illinois--that would be Chicago, northern Illinois--is one of the districts where a judicial emergency has been declared. The chief judge of the district, Judge Jim Holderman, an appointee under a Republican President, recently sent a letter to me and my colleague Senator Kirk urging the Senate to move quickly on two nominees sitting on the calendar--John Lee, my nominee approved by Senator Kirk, and Jay Tharp, Senator Kirk's nominee approved by me. A bipartisan judicial selection committee chose these nominees, and both of us signed off on them. Isn't that what America wants, that we work together? So why are they sitting on a calendar? There is an emergency in the Northern District, the judge has asked for help, we have agreed on a bipartisan basis how to fill the vacancies, yet they languish on the calendar.

I wanted to take this opportunity to briefly talk about these nominees caught up in this backlog on the Senate floor. Both of them are extraordinarily well-gifted and talented.

John Lee is currently a partner in a major law firm in Chicago, where he practices complex commercial litigation. He is the son of a coal miner and a nurse. He immigrated to this country from Korea at a young age. From humble beginnings, he went on to college and law school at Harvard. He then worked as a trial attorney in the Justice Department, and he had a great record in community service in Chicago. When he is confirmed, he will be the first Korean-American article III judge ever to serve in my State.

Jay Tharp, Senator Kirk's nominee, of whom I approve, is a partner in another major law firm in Chicago, where he leads their securities litigation practice. He is a former captain in the Marine Corps with a distinguished military career. He attended Duke University and Northwestern Law School and clerked for a Federal judge on the Seventh Circuit. For 6 years he was an assistant U.S. attorney, a prosecutor, and he has received numerous recognitions for his work in private practice.

As part of our bipartisan selection process, Senator Kirk has chosen Jay Tharp and I have chosen Mr. Lee. We have done this in the most cooperative way possible. I think it is time for the Senate to move ahead with the floor votes on these two nominees and all of the nominees. If a Senator has an objection to one of these nominees, let's call it for a vote. They can vote no. And if they don't get a majority vote, they won't be approved. That is the way this Chamber is supposed to work.

Good, decent Americans such as John Lee and Jay Tharp shouldn't have to put their lives on hold when they have volunteered to be nominees to the Federal court. In most instances, those who step up and ask for this opportunity of public service are actually taking a cut in pay from what they could be paid in private practice. They are willing to make a sacrifice. Their families are willing to make it. But now we leave them in this limbo. They are caught in this political limbo created by the Republicans in an effort to stack up judges like cordwood on the calendar in the hopes that come November, they will get a Republican President who will fill these vacancies with true believers.

That isn't fair. It doesn't reflect the reality when President Obama was elected to serve and to fill these vacancies in a meaningful way. The process is bipartisan. Certainly, the Senate's consideration of nominees should be bipartisan as well.

I see the Senator from Michigan on the floor. I wish to make one additional statement, if I might, relative to an issue in my home State of Illinois. I will be very brief, but it is something that means a lot to me and to my State.