Setting the Record Straight - Again PDF Print E-mail
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Written by Grassley Press   
Thursday, 21 November 2013 08:25

Prepared Statement of Senator Chuck Grassley of Iowa

Ranking Member, Senate Committee on the Judiciary

Hearing Regarding the Nomination of:

David Jeremiah Barron, to be United States Circuit Judge for the First Circuit

Wednesday, November 20, 2013

Mr. Chairman,

Today, we are holding the 17th judicial nominations hearing of the year, during which we will have considered a total of 58 judicial nominees.  I would note this is the fourth nominations hearing in four weeks.   So anyone who says Republicans are engaging in “unprecedented” obstruction is ignoring the cooperation I have shown as Ranking Member of this committee.

Compare the record on hearings for President Obama this year with how President Bush was treated during the fifth year of his Presidency.

In 2005, the final judicial nomination hearing was held on November 15th.  That wasn’t the 17th hearing of the year, but only the sixth hearing on lower court judges.  During those six hearings we heard from not 58 judicial nominees, but only 15 district and circuit nominees.

How are we doing this year compared to last year?  2012 was a very productive year for judicial nominations.  In fact, in the 112th Congress, President Obama had more district judges confirmed than were confirmed in any of the previous 8 Congresses.  Our work in Committee last year contributed to that accomplishment when we held 10 hearings for 41 judicial nominees.

In addition, let me remind everyone that we have now confirmed 38 lower court Article 3 judicial nominees this year.  That is more than two and a half times the number confirmed at a similar stage in President Bush’s second term, when only 14 district and circuit nominees had been confirmed.

In total, the Senate has confirmed 209 lower court Article 3 judges.  This includes a significant number of women and minority nominees.  We could have confirmed more judges over the last couple of weeks.  But the Senate majority decided to take precious Senate floor time for a diversionary political exercise, rather than confirming additional judges.

Now, as I explained earlier this week, the other side has been working diligently to manufacture a crisis on the D.C. Circuit.  And in order to support their claim that Republicans are “obstructing” nominees, it appears the other side is doing a sleight-of-hand on the data as well.

Recently, one of my colleagues stated that Senate Republicans have filibustered 34 of President Obama’s nominees.  Anyone who pays attention to these things knows that Republicans have “filibustered” only a handful of nominees.  So what is going on here?  How does the other side get to 34?

To begin with, fully one-half of these cloture petitions were filed by the Majority on one day, as a procedural gimmick and were totally unnecessary.  None of those 17 cloture petitions required a vote – every cloture petition was withdrawn.  And, every single one of those nominees was confirmed.    So that was just another manufactured crisis.

That leaves 17.  But Republicans haven’t filibustered anywhere close to 17 nominees.  So again, what is the real story here?

Of the remaining 17 cloture petitions, six of those were also withdrawn.  That leaves only 11 nominees who have actually faced a cloture vote.  One of those nominees had 2 cloture votes, for a total of 12 cloture votes.

Yet, six of those 11 nominees were confirmed.  That leaves only 5 nominees who have failed to achieve cloture.

So to sum up, the Majority claimed earlier this week, with great fanfare, that Republicans had “filibustered” 34 nominees, when we’ve actually stopped 5 nominees.  And of those 5, three are still pending in the Senate, leaving only 2 nominees actually defeated by filibuster.

I suppose that’s what one is required to do in order to try to overstate the record established during this administration with the record the Democrats established during the Bush years.

During the Bush administration, Senate Democrats truly were unprecedented in their use of cloture against judicial nominees.   In fact, they forced 30 cloture votes on judicial nominees, including a Supreme Court nominee.

So that is the factual record – 30 cloture votes during the Bush Administration, 12 cloture votes during President Obama’s term.

Of those 30 cloture votes faced by President Bush’s nominees, Senate Democrats obstructed nominees 20 times.

Let me emphasize this point – during the Bush administration, 20 cloture motions failed.  Senate Democrats continued to obstruct judicial nominees twenty times.

So I think it is clear which party holds the record on delaying or obstructing the confirmation of judges.  The number of cloture votes demanded by Senate Democrats on President Bush’s nominees is 2 and a half times the number of cloture votes on President Obama’s nominees.  The number of times Senate Democrats refused to end debate is nearly 3 times what Republicans have done.  Democrats clearly hold the record on delaying and obstructing judges.

I think we have treated President Obama in a fair manner, and he enjoys an outstanding record for his judicial nominees.

One final point on this baseless charge that Republican obstruction has left the federal judiciary with high vacancies.  The fact is, President Obama’s initial delay in nominations was the primary factor in the lower number of confirmations during his first term, resulting in the high number of vacancies.

Even now, 42 of 93 vacancies have no nominee.  That is 45 percent of vacancies with no pending nomination before the Senate.  While this percentage recently has been reduced, it was the case for most of the Obama presidency that the majority of vacancies had no nominee.  Of the 38 “Judicial Emergencies”, 18 have no nominee.  That is 47 percent.

The Senate can’t be held responsible for these vacancies, where almost half the seats have no nominee.

Having set the record straight let me now address today’s nomination.  I welcome the nominee, his family and guests.  This nomination has been pending before the Senate just 55 calendar days.    I would note that President Bush’s Circuit nominees waited, on average, 246 days for a hearing, more than four times the wait for this nominee.

Mr. Barron has an extensive record as an academic.  He has written on a wide range of subjects.  I think it would be fair to say that I probably don’t agree with much of what he has written.  But that isn’t necessarily the standard for my review of his qualifications to sit on the federal bench.

I am interested in hearing his views on Executive Authority; on his work while at the Office of Legal Counsel; on his judicial philosophy, particularly what he calls “progressive constitutional outcomes”; and on a variety of other topics.  I expect to address some of these today and will likely have a significant number of written questions as well.   I thank the chair.
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