HEARING OF THE SENATE REPUBLICAN CONFERENCE

PROTECTING AMERICAN JUSTICE: ENSURING CONFIRMATION OF QUALIFIED JUDICIAL NOMINEES

SENATOR ARLEN SPECTER (R-PA) WITNESSES: SENATE MINORITY LEADER MITCH MCCONNELL (R-KY); SENATOR ELIZABETH DOLE (R-NC); SENATOR JOHN WARNER (R-VA); SENATOR CHARLES GRASSLEY (R-IA); SENATOR JON KYL (R-AZ); SENATOR WAYNE ALLARD (R-CO); SENATOR LAMAR ALEXANDER (R-TN); ROSCOE HOWARD, FORMER U.S. ATTORNEY; JOHN OLDHAM MCGINNIS, PROFESSOR, NORTHWESTERN UNIVERSITY LAW SCHOOL; DAVID BOHM, ASSISTANT EXECUTIVE DIRECTOR, NORTH CAROLINA BAR ASSOCIATION; STEVE RUTKUS, SPECIALIST, CONGRESSIONAL RESEARCH SERVICE, FEDERAL JUDICIARY...

RUSSELL SENATE OFFICE BUILDING

TIME: 2:00 P.M. EDT

DATE: MONDAY, JULY 14, 2008

Ladies and gentlemen, it is now 2:00, the scheduled time to begin this hearing, sponsored by the Senate Republican Caucus, on the confirmation process.

This hearing has been convened to shed some light on the so- called Thurmond rule and the practice which has evolved recently, recent decades, to delay and hold up the confirmation of judges during the last two years of a presidential term....

We find that this practice was in effect during the last two years of President Reagan's term, when the White House was controlled by Republicans and the Senate by Democrats. It was carried on during the last two years of the term of President Bush the first. It was exacerbated considerably during the Clinton administration, when the Republican Caucus took very strong action to prevent the confirmation of judges....

I spoke out against the Republican Caucus at that time because I felt it was wrong; voted to confirm Clinton's judges who were qualified. And then, in 2005, the issue reached a crescendo with a battle on the so-called nuclear constitutional option, where the consideration was given to change the rules of the Senate on filibusters, contrasted with the filibuster rule....

We have now seen the issue moving forward with a great disparity in the confirmation between the last two years of President Clinton's term and the last two years of President Bush's term, where President Clinton confirmed 15 circuit judges compared to 10 for President Bush. President Clinton had 57 district court judges compared to 44 for President Bush....

We have found that different views are taken of the so-called Thurmond rule, depending on which side can get political advantage. For example, Senator Leahy said on May 4th in the year 2000, when the shoe was on the other foot and the Democrats wanted confirmations, Senator Leahy said, quote, "There's a myth that judges are not traditionally confirmed in presidential election years. That is not true." Well, what was not true in 2004 certainly isn't true in 2008....

Senator Reid said on March 6th of 2000, "It is a myth that judges are not traditionally confirmed in presidential election years." And then both Senator Leahy and Senator Reid went into some detail as to judges who had been confirmed....

But what are the facts on the Thurmond rule? They're expressed best by Senator Thurmond, who had this to say on September 17th, 1980: "Now, Mr. Chairman, I want to say at this juncture, let me make the point that the minority has tried to be more than fair in considering all the nominees that are before this committee. I would remind you that it is just about six weeks before the election, and I want to say that for a year and a half before the election, there was no action taken on judges when we had a Republican president. But anyway, last week it was necessary for me to lay over all 13 judicial nominees because our investigation had not been completed on some of them. Today I will again exercise the privilege and request the three that have just had a hearing being held over." And all those judges were confirmed on September 24....

But the best example of what the Thurmond rule meant was illustrated by the nomination of Stephen Breyer for the first circuit. And this is what happened with now-Justice Breyer. The nomination could not go to the Senate until November 13th, after President-elect Reagan had been elected. The Judiciary Committee had a hearing on November 17th, four days later, reported out on December 1st, and was confirmed on December 9th, just one week before the Senate adjourned....

My red light just went on, so I will not state the many, many judges who have been confirmed in September and beyond. But nothing proves the non-existence of the Thurmond rule more decisively than what happened with Stephen Breyer....

Let me yield now to our distinguished leader, Senator McConnell.

Well, thank you very much, Senator Specter. Senator Alexander, thanks to you and the conference for providing the opportunity for this important forum.

You know, one of the things that I was optimistic about, in spite of the fact that I was not wildly pleased with the outcome of the 2006 election, was that we would get back on track on the issue of judicial confirmations. Clearly that hasn't happened....

When the Congress began, we had all hoped that a forum like this on this subject really wouldn't be necessary. The majority leader and I had agreed that the whole process of judicial confirmations had become entirely too partisan and it was not good for the institution. And we had a joint commitment to make the situation better....

The majority leader, like the Los Angeles Times and The Washington Post, acknowledged that the president had exercised good faith at the beginning of this Congress in not -- I repeat, not -- resubmitting circuit court nominees whom Democrats had previously said they objected to....

In return, he pledged that the Democrats in the president's final two years, the majority leader said, would treat the president's nominees fairly. So that was the setting at the beginning of the Congress. The president withdrew some nominees that he knew the Democrats objected to. Senator Reid said in return, "We will treat the nominees fairly."...

So the question is, what is fair? What is the definition of fair? This president is a lame duck. He's going out of office. And Senate Democrats obviously hope to recapture the White House. So there's a partisan incentive not to confirm judges. That's human nature. But it's not a new phenomenon. In fact, each of the last three presidents have ended their terms in office with the opposition party in charge of the Senate....

So even, you know, as you have a lame-duck president, there is a historical standard for fairness when it comes to confirming judicial nominees. And we were, of course, referring principally to circuit court nominations. The majority leader and I agreed at the beginning of this Congress that we would meet that standard. And we had some recent history to look to, each of the last three presidents having ended up their tenures in exactly the same situation. The average number of circuit judges confirmed was 17; the low end of the average was President Clinton with 15....

This Senate so far has confirmed only 10 circuit judges -- only 10. What happened? Unfortunately, old habits are hard to break. And in my opinion, the Democrats on the Judiciary Committee found it very difficult, if not impossible, to simply just play politics with the whole situation....

It started with the renomination of Judge Leslie Southwick. Judge Southwick was a distinguished state court judge and an Iraq War veteran. Moreover, he was someone whom the committee Democrats had already approved unanimously at a prior time for the district court. So at the beginning of this Congress, when the president tried yet again to fill a vacancy on the fifth circuit that had existed for his entire presidency, he did not resubmit a nominee who the Democrats opposed. Instead he quite reasonably nominated someone whom committee Democrats had already approved, Judge Southwick....

So how did the Democrats on the committee respond? With one exception, they did an about-face and actually tried to filibuster Judge Southwick's nomination.

Unfortunately, Judge Southwick isn't the only, quote, "consensus nominee," end quote, who became controversial. Judge Robert Conrad is the chief judge of the federal district court in North Carolina. The Senate has already confirmed him, not once but twice, to important positions. The ABA gave him its highest rating -- unanimously well- qualified. Former Attorney General Janet Reno called him an excellent prosecutor. She said she was impressed with his judgment and his knowledge of the law....

Again, to resolve a dispute, this time over a fourth circuit seat, President Bush chose not to submit a nominee whom Senate Democrats opposed. As with Judge Southwick, he nominated someone whom they had already approved -- Judge Robert Conrad. Guess what happened. Well, nothing happened. This Thursday, Judge Conrad will have been sitting in the committee for 365 days without a hearing, even though he meets all of Chairman Leahy's criteria....

What is the result of all this? While Judge Conrad waits in committee, the circuit court to which he is nominated is over 25 percent vacant. Its chief judge states that to keep up with its work, the court must rely heavily on district court judges. In short, it is robbing Peter to pay Paul. "It goes without saying," she says, "that having to use visiting judges puts a strain on our circuit. In particular, it forces the circuit's district judges to perform double duty."...

Still, the committee refuses to move Judge Conrad's nomination or any other pending fourth circuit nominee. For example, we're told that Democrats do not support Rod Rosenstein's nomination to the fourth circuit, which is supported by The Washington Post, because he's doing too good a job in his current position as U.S. attorney. Enough said about that excuse....

Now, look, no party is without blame in the confirmation process, but what is going on -- or, more accurately, what is not going on -- is yet another step backward in the politicization of a process we had all hoped we could get beyond....

We have an impressive panel of experts from various fields sitting here in front of us with various backgrounds to discuss the situation, and we look forward to hearing from them. And again, I want to thank Senator Alexander and Senator Specter for presiding over the hearing. Thank you very much....

Thank you very much, Senator McConnell.

We'll now proceed in order of arrival under the early-bird rule. Senator Dole.

Thank you very much. And I'd like to begin today by commending my good friend, Senator Arlen Specter, who's chairing today's hearing; Lamar Alexander, who is also chairing....

But I want to say about Arlen Specter for his tireless efforts on one of the body's toughest committee assignments, as chairman of the Judiciary Committee, he oversaw the confirmation of a large number of wonderfully qualified District and Circuit Court nominees who are today serving our nation's courts with distinction....

And of course, none of us will ever forget the seemingly effortless civility with which Arlen Specter conducted the hearings for Chief Justice Roberts and Justice Alito -- hearings which all fair-minded observers agree resulted in two outstanding additions to the United States Supreme Court....

Unfortunately, Senator Specter's tenure as chairman came to an end this Congress. The committee today is under new management and the pace of judicial confirmations has slowed greatly -- in many instances, slowed egregiously....

But my colleagues and I have looked on with admiration and amazement as Senator Specter has redoubled his efforts in his role as ranking member of the committee. Without his hardworking leadership, holding feet to the fire and insisting on simple fairness for the president's nominees, I shudder to think what worse condition the confirmation process might be in today. He has taken the time to sit down and meet North Carolina's District Court nominee, Tom Farr, who will have waited 600 days by the end of this month without a hearing. And he has spearheaded a call for a hearing for 4th Circuit Court nominee, Judge Robert Conrad, who has now been waiting almost 365 days....

So as we begin this review of the current state of affairs, let me take this opportunity to simply say, thank you, Arlen. Thank you for all the work that you have done and that you continue to do....

Let me also welcome our witnesses appearing here today and thank them in advance for sharing their insight and their expertise on this issue.

I'm particularly pleased to see Mr. David Bohm here today -- assistant executive director of the North Carolina Bar Association. I had the pleasure of attending and participating in a forum at the North Carolina Bar Association just a couple of weeks ago....

Our federal judiciary is of vital importance to the function of our government and our society. There's often a too simplistic focus on federal courts as the great arbitrators of the grand, philosophical questions of our day. But the real work of our federal courts is in sorting through the enormously complex civil cases in areas like anti- trust and patent infringement. It's in trying and sentencing drug smugglers who would poison and even destroy our communities....

The critical work of our federal courts is the evenhanded application of the law to real world situations and individual people with their lives, liberty and property at stake. The courts are the front lines and most common point of contact between citizens and their government. So let no one be mistaken that obstructing the judicial process is just playing politics....

With many of our courts in states of emergency, judicial vacancies means some part of this work risks going undone. The saying goes that justice delayed is justice denied. That's certainly true of civil litigants, it's true for criminal defendants and it's doubly true for the nominees awaiting action by the United States Senate....

I look forward to the testimony we'll hear and conferring with my colleagues on what solutions we'll reach in the limited time left in this Congress.

Thank you, Mr. Chairman.

Thank you, Senator Dole.

We turn now in order of arrival, to Senator Alexander, the chairman of the Republican Conference who has organized this proceeding, for which we thank you, Lamar, and look forward to your participation....

SEN. LAMAR ALEXANDER (R-TN): Thank you, Arlen.

I thank you and of our colleagues for coming to this forum. And I especially thank the witnesses, whom I look forward to hearing.

If there's one thing I hear more than anything else when I'm in Tennessee it's, why don't you senator get together and agree on important things and get things done -- whether it applies to gas prices, or whether it applies to confirming well-qualified judicial nominees, which is what this forum is about....

There's no excuse for not considering and voting upon a well- qualified judicial nominee in the United States of America today. I mean we -- just because it's a presidential election year is no excuse for us to take a vacation. And we're here. We're ready to go to work. Justice needs to be served. Cases need to be heard. Well- qualified nominees are pending. They need to be voted on and they need to go to work. And what we're saying today is they're being prevented from going to work by purely partisan action, which is the last thing the American people want to see from us today....

I especially want to solute Senator Specter, who I think all of us would agree more than any other senator, has taken up this battle of fairness and pointed it out. And he's able to do that even more effectively, because he has quite a record of fairness himself. He's made certain that when Republicans went over the line, in his opinion, on fairness, he pointed that out to us. And he has a record of independence and of fairness. And when Arlen Specter says that it's not fair to the American people nor to the nominees for partisan politics to block these judges, then that's worth listening to....

So I'm here to listen. I thank the witnesses. And I especially thank Senator Specter.

Well, thank you, Senator Alexander, for organizing this important forum. And thank you for those kind words.

It is true that my criticism has been leveled at both caucuses when they've held up the process. And regrettably, as is so often the case here, blame is equally divided. Both parties have done it and it's time we have a halt. And I'm glad to see this is being carried on CSPAN-3. It is very hard to attract the attention of the American people to any issue, given the problems in America today, but it is very gratifying to see eight senators on a Monday afternoon early. And it is even more gratifying to see standing-room-only in this reasonably spacious hearing room....

I'll turn now to Senator Wayne Allard of Colorado. Wayne.

SEN. WAYNE ALLARD (R-CO): Well, Senator Specter, thank you very much. I want to join the chorus that so far have been praising you for your leadership on judicial issues....

I'd also like to thank Lamar Alexander for helping put this together so that those of us who have problems in the various federal courts in our district have an opportunity to make our case....

We're unique in the state of Colorado in that we have only one federal district court and we have several members on that particular court. Right now we have three vacancies on a seven-member court. I believe that classifies as an emergency situation....

Colorado, as do all the other states and federal district courts, deserve the most qualified individuals to serve on the U.S. district court. Currently, only four U.S. court judges are carrying a full case load in Denver. Two vacancies opened last year when Judge Lewis Babcock and Walker Miller took semi-retirement. And another opened this year with the death of U.S. District Court Judge Philip Figa. Now, nearly half that bench is empty....

The delay in appointing three judges to serve Colorado's federal district court has already resulted in the significant backlog of cases. This backlog is growing with every day that these vacancies remain. The chief federal judge for Colorado -- Judge Edward Nottingham -- had made personal visits to both my office and the office of my fellow senator from Colorado, pleading the case for filling the vacancies immediately....

Fortunately, the process moved forward last week with news of the White House sending nominations to the Judiciary Committee. President Bush nominated three individuals that the White House considers to be well-qualified for the job. While I'm pleased with this development, I'm not comforted, nor will I be, until the Judiciary Committee reports the nominees and the Senate as the opportunity to vote. And this must be done quickly....

If the judicial vacancies are not quickly filled, the threat of an eminent judicial crisis facing Colorado will almost certainly come to fruition.

Colorado's legal community has expressed the desperate situation it faces with the nearly 50 percent vacancy on the District Court. The current judges on Colorado's District Court, as well as litigants who have cases in the Court, are worried that a backlog will continue to exacerbate the lengthy procedural delays that already exist....

I remain optimistic that Colorado's junior senator will come to decide that filling Colorado's three vacancies in a timely manner is a decision made in the best interests of Colorado. I remain hopeful that my colleague, the Judiciary Committee, and the entire Senate will work with me achieving this goal....

The legal community of Colorado and all its citizens need our help. They are asking us to do our job so the judiciary can do its job.

Lastly, I am hopeful that we've put aside partisan politics and demonstrate that the U.S. Senate is committed to maintaining the integrity of the judicial nominating process. Qualified judicial nominations should not be trumped by partisan politics....

Thank you, Mr. Chairman.

Thank you very much, Senator Allard.

We turn now to Senator John Kyl of Arizona.

Thank you, Mr. Chairman.

We're obviously here to hear witnesses and so I'm going to make a very brief statement. It's obvious that you sense a great deal of frustration here by senators who support nominees who deserve to be considered by the Senate....

Peter Keisler, who's been waiting for a Committee vote for over 750 days -- this isn't fair to him, to his family, or to the members of the court which he could join -- and two Fourth Circuit nominees, Robert Conrad, waiting for 360 days, and Steve Matthews, waiting for 310 days....

The Washington Post in December of last year, lamenting the dire straits of the Fourth Circuit, stated, and I quote, "The Senate should act in good faith to fill the vacancies, not as a favor to the president, but out of respect for the residents, businesses, defendants and victims of crime in the region the Fourth Circuit covers....

"Two nominees, Mr. Conrad and Steve A. Matthews, should receive confirmation hearings as soon as possible." And I would mention that The Washington Post has also editorialized in favor of Peter Keisler receiving consideration by the Senate....

These are just three of the people who ought to be considered, who could be considered quickly, who could take their posts and help serve the American people. And I'm hopeful that we will hear from our four witnesses here today information that could hopefully persuade our colleagues to act on these nominees as soon as possible....

Thank you, Mr. Chairman.

Thank you very much, Senator Kyl.

We now turn to Senator John Cornyn of Texas.

SEN. JOHN CORNYN (R-TX): Thank you, Senator Specter, and I join the others in thanking you for your leadership on this important issue. I thank Senator Lamar Alexander, Conference chairman, for arranging this forum....

And I want to first say that after -- in a former life, after serving 13 years on the state court bench in my home state of Texas, I came to realize that the one thing that litigants always wanted, whether they won or whether they lost, but they always wanted their day in court. They wanted to be heard....

And there was a certain catharsis that came just from that opportunity to be heard in a fair and impartial forum and to be able to tell your story. And these -- I think the worst thing that's happened to these nominees who've been left hanging and twisting in the wind for so long is they have not had a chance to tell their story. They have not had a chance to be heard....

And unfortunately, some of them have been the subject of some very vicious personal attacks which causes me concern, not only about their right to rebut those attacks in a forum like a hearing before the United States Senate Judiciary Committee, but also the impact it has on discouraging good men and women from even accepting the call when the president says I would like to nominate you to a federal bench....

It's clear to me that the judicial confirmation process is broken, and as I say, the saddest part is watching nominees being sacrificed to a partisan blood feud that seems to have nothing to do with them or their qualifications....

So it's not personal, but how much more personal can it be if you are the one whose career and whose reputation is affected?

It's a shame because, as I say, so many of these nominees are among our nation's finest lawyers, judges, and public servants. And they, of course, deserve to be judged on the merits. Instead, the Senate has tended to treat these men and women as nothing more than fodder for stoking decades-old partisan grievances....

Chairman Leahy explicitly justifies his obstruction of qualified judicial nominees on the basis of perceived grievances from nearly a decade ago, citing the Thurmond rule that allegedly blocked President Clinton's nominees in 1999 and 2000. As I expect we'll hear from the witnesses today, the Thurmond rule never existed....

But unless there's an end to the cycle of partisan payback, Republicans will likely cite the treatment that their nominees have received under the Leahy rule when blocking -- being tempted to block qualified judicial nominees in the future. And so the Senate cycle of grievance and revenge has the possibility of continuing....

And, like the feuding families, whether it's in Huckleberry Finn or even in "Romeo and Juliet," no one in either -- on either side can remember when or how the feud began but knows -- we all know, we should know that it's time for it to end....

I was not yet in the Senate when the cycle of grievance started and within months of assuming my seat in the United States Senate I was proud to join nine other of our newest senators in a bipartisan letter calling for an end to the feud culture of the judicial confirmation process. We asked for a fresh start. Just because the system had been broken for so long is no reason for putting off a solution now....

My daughters, like most of our children, have understood that "everybody does it," and "she started it" or "he started it" was never good enough, from the time they reached kindergarten. And it's time the Senate recognizes that it should be and is better than that....

We will not escape the revenge-based politics of the past without substantial action now, and it will take courage on the part of our Democrat friends to stand up and say we recognize that this cycle is detrimental not only to the nominees, but also to the Senate itself....

And indeed now is the perfect time for a new politics of judicial confirmation to arise where Republicans and Democrats work together to confirm qualified men and women to the federal bench....

Now is the perfect time because, of course, we're in a presidential election year and no one yet knows who the next president will be. What a unique opportunity to establish that regardless of the next president's party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles....

Mr. Chairman, thank you for the opportunity to be here and present a few views, and I look forward to hearing from the witnesses.

Thank you very much, Senator Cornyn.

And now, Senator Chuck Grassley of Iowa.

Thank you, Senator Specter, for holding this hearing. It's very necessary to shed light on the very slow pace -- too slow and unjustified slowness -- by which this judicial nominee process is proceeding....

Overall there's been some serious foot-dragging by our friends on the other side of the aisle with respect to moving President Bush's judicial nominations, and that's particularly true of the circuit courts. And as our witnesses will testify, and contrary to what our Democrat friends say, this snail's pace is unprecedented....

The lack of progress is evident from the smaller number of judge hearings held by the Committee, as well as a much longer time of the confirmation process. If you start comparing total judicial confirmation numbers for President Clinton and President Bush for their entire terms, President Bush is way behind, and there's absolutely no question about that....

The reality is that the Senate has slowed the judicial confirmation process to unprecedented levels. The Judiciary Committee under Democrat control has scheduled fewer judicial nomination hearings overall, resulting in a much lower judicial confirmation rate for President Bush, compared to recent presidents....

I won't go into statistics because I know our witnesses are going to testify to the numbers, but I think we can sum it up that it's unacceptable.

We have several circuit nominees who have been waiting months for a hearing. These nominees have complete files and a blue slip submitted from both state senators, and that seems to always have been a litmus test for moving ahead. These individuals should have hearings scheduled right now. They should be processed through the Senate. There's really no reason for holding up the nominees....

Moreover, there are district court nominees who have completed -- have completed files and necessary blue slips, and who are waiting around for months, they too should get hearings and mark-up schedule. We're hearing testimony today about the so-called "Thurmond Rule," and that the Congressional Research Service has researched it. We really need to set the record straight on this because Democrats are using the so-called Thurmond Rule to justify grinding the judicial nomination process to a halt....

Well, I've been on the Judiciary committee now for 25 years or more, and I'm sorry to say that claims by my fellow Democrats that this slow-down of judicial nominees is justified, and that we're now past the time of the Thurmond Rule -- that's just plain bunk. The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president's term....

Unfortunately, the Democrats have been employing some fast and fancy footwork to avoid their Constitutional responsibility giving President Bush judicial nominees fair hearings. The leaders of the other party are doing nothing more than burning down the clock on the president's nominees, having dreamt up every stalling tactic in the book to prevent qualified Americans from serving on the federal bench....

It's just too bad that the Democratic leadership is putting partisan advantage ahead of the health of our judicial system where not filling vacancies can create delays and injustices in the administration of that justice....

Thank you, Senator Grassley.

Eight senators have spoken in 34 minutes. We may have established some sort of a record here today. (Laughter.)

We now turn to our distinguished panel, and our first witness is Professor John McGinnis, a Stanford Clinton professor of law at Northwestern law school. He has a bachelor's degree, magna cum laude from Harvard; a master's from the (Balliol ?) College at Oxford; and a law degree -- doctor of laws, magna cum laude, also from Harvard....

He has an extraordinary professional background in the Department of Justice, and is clerk; and also extensive work in the trade field, with the Office of Trade Representative. A fuller resume will be made a part of the record, but so that we can turn now to hear from Professor McGinnis, we will put that in the record and welcome you here, and look forward to your testimony....

Professor.

Well, thank you so much, Senator Specter -- (inaudible) --

: Wait until the light comes on

May I say, as you are activating your microphone, that the time for the panelists is five minutes each --

Certainly.

-- same time as for senators.

I want to think Senator Specter for his invitation to participate in the hearings on these deep and persistent problems in the judicial confirmation process. The judicial confirmation process has regressively broken down in the last few years in a cycle of partisan revenge. Its decline has real costs to our country -- both in the terms of the nominees of both parties who've been denied even a hearing, and in terms of fine lawyers who are deterred from the partisan process that has occurred....

I want to focus on one of the departures from what I think sound process is, and that -- that has characterized the last two decades, and that's been the denial of hearing and committing votes to nominees who are extremely plausible nominees for the circuit and district courts. Such refusals to hold hearings are not in the public interest because they make the confirmation process less transparent and democratic. Without hearings, it's harder for the public to hold the Senate accountable for blocking good nominees, and the president accountable for sending up bad nominees....

Unless the nominees are blocked by a Senate vote, it is likely to be no connection between nominees who don't get on the bench, and their qualifications. Indeed, an opposition party determined to block nominees regardless of their merits has incentives to refuse hearings on the best qualified nominees. And that's what I think has happened in the past. Democracy depends ultimately on information; on evaluating the qualifications of candidates; and on having senators vote on nominees, particularly those in the committee....

And in that sense, the so-called "Thurmond Rule," which at best is an inchoate notion -- no one could call it a rule, is particularly problematic because it prevents hearings and votes at the time of an election when the public is paying most attention. That's the time democracy needs more information about the position of the president, and their senators, on nominees, not less information. So, the Thurmond Rule is quite perverse from the point of view of the public interest....

The need to reform this nomination process can be understood by the role of nominees who've been denied hearings and committee votes. I know two of them up today. I know there are many others who are very well qualified, though I worked with Steve Matthews at the Department of Justice, and he's an outstanding attorney and someone of just unimpeachable integrity and personal kindness....

Peter Keisler, whom I've also had the pleasure of working with on occasion, is one of the most obviously distinguished attorneys in this, in this town. And recent events, from an inspector general's report of the Department of Justice, have again shown his non-partisan attitude toward the administration of justice, which surely should be reciprocated, I think, by members of the Judiciary committee....

But the problem can't be laid only at the door of Democrats. One nominee in the Clinton Administration, who I also know quite well, Elena Kagan, now the dean -- I think the most successful dean in many generations at the Harvard Law School, was denied a hearing as well when she was nominated to the D.C. Circuit....

So the question is really not -- at least from my perspective, so much a partisan one, as a structural one. What can be done to assure hearings and votes on qualified nominees? And I think the Judiciary committee should adopt a rule that says that there will be a timeline -- of perhaps six months, perhaps less than that, requiring a hearing on any nominee, unless two-thirds of the committee agree there shouldn't be a hearing....

Note that a two-thirds rule would require members of the minority party to agree if there should not be a hearing. And then there may be some instances of that when a nominee is so not plausible -- is so clearly unqualified that it would waste everyone's time to have a hearing. But, otherwise, such a rule will require hearings. And after that I think there should be, within one month, a vote required, again, unless there is a super majority of the committee -- two-thirds of the committee say a vote is not necessary....

In that way, the citizens of the United States will get the information they need. There's nothing wrong with senators deciding when a nominee is not qualified. What is wrong is the silent blackball that is going on in the Judiciary committee occasionally, I fear, by both parties. That hurts the process of nominees; it makes well-qualified nominees less likely to -- willing to go through the process; but most of all, it deprives our citizens of the information they need to decide who -- what are the kind of judicial nominees we want in this nation....

That's what we need to hear. We need to hear it all the more in an election year. I thank the senator very much.

Thank you very much, Professor McGinnis.

While the Republican forums are ordinarily attended only by Republicans because of the controversial nature of the Thurmond Rule, I invited Senator Leahy and the Democrats on the Judiciary committee to participate, and extended the invitation to suggest witnesses. I'm going to make a part of the record my letter of July 8, 2008 to Chairman Leahy on the, on this subject....

We now turn to the assistant executive director of the North Carolina Bar Association, Mr. David Bohms (sic) -- outstanding academic record; bachelor's from Washburn, magna cum laude; master's from Loyola; doctor of law from Washburn University School of Law; an outstanding community record and professional record -- which will be made a part of the record....

In the interest of brevity, I will say no more and welcome you here, Mr. Bohm. And coming from a state which has a number of judges who have not been accorded a hearing process and regular confirmation we look forward to your testimony....

Thank you very much for the invitation. Thank you very much for the invitation and not only that, the opportunity to be here today. I'm here today on behalf of the North Carolina Bar Association, a 14,000-member nonpartisan voluntary association North Carolina judges and lawyers. We unequivocally join in the chorus calling for North Carolina nominations in the Fourth Circuit to move forward immediately, specifically Judge Robert Conrad's nomination and Thomas Farr's nomination. We believe that further delay in the nominations causes more harm than good and to continue to have the state of North Carolina underrepresented in the circuit is a misfortunate unnecessary detriment to the public and the legal community of the state of North Carolina....

Why do such delay continue in spite of such a detriment? Our members have indicated that Judge Conrad has distinguished himself at every stage in his career. In fact, the American Bar Association has rated Judge Conrad as unanimously well qualified several times. I understand that the support for his nomination among lawyers who practice in Judge Conrad's court is deep, broad, and bipartisan. While the legal community will hate to lose Judge Conrad from the Western -- excuse me, from the district court bench, we know that he will be a tremendous asset to the Fourth Circuit....

On the merits, confirming Judge Conrad should have always been an easy call and that has not changed to date. However, his nomination is only one step in the right direction. North Carolina is the largest and fastest growing state in the Fourth Circuit, the tenth largest state in the Union -- over 9 million people as of July of 2007 -- and yet of the 15 seats on the court only one is held by a North Carolinian -- Judge Allison Duncan. Proportionately based on the population, North Carolina should have had a minimum of four seats on this -- on the court. This underrepresentation is a chronic problem. The seat for which Judge Conrad has been nominated has been open for 14 years and counting, and between 1999 and 2003 North Carolina has had no representation on the Fourth Circuit, an absolute travesty given that the state -- that a state has had no circuit court representation only twice in the history of the United States....

Having only one North Carolina judge does nothing to build confidence in our federal judicial system or respect for the administration of justice. The credibility of the court is at stake. Indeed, it may be said that judicial representation of one out of 15 comes close to adjudication without representation. This has been a disturbing fact for much too long and is easily correctible. We implore the system to do the right thing to correct this inequity immediately....

In addition, Thomas Farr has been nominated for district court in the Eastern District of North Carolina. Our members indicate that he too has distinguished himself in his career and support for his nomination is well received and bipartisan. The American Bar Association has rated Tom as unanimously well qualified several times. Tom was nominated almost 600 days ago, an -- excuse me, an inordinate amount of time to ask an individual to place on hold a career, family, and life for what should have been an easy call. The first step in the right direction is to quickly move Judge Conrad's and Tom Farr's nominations to a Judiciary Committee hearing and to the Senate floor for a vote. On behalf of 14,000 North Carolina lawyers and judges, we urge the Senate to move forward with these nominations. Thank you....

Thank you very much, Mr. Bohm. We now turn to Mr. Roscoe Howard, partner of Sanders, a LLP law firm in Washington.

(Audio break) -- testimony and I hope that's in the record.

It is a part of the record.

Thank you. I think there are just a few points I want to make. First, in the District of Columbia there -- there is a growing caseload and there will be a growing caseload. For whatever reason, with election years the D.C. circuit gets inundated with new cases and in this situation with a new administration one way or the other -- either with a President McCain or a President Obama -- there will be growing litigation. It'll be over the running of the federal government, it'll be over the issues with Guantanamo Bay. It will be over issues coming out of the war in Iraq, and to not have a -- the -- a vacancy filled I think is just wrong. It's going to cause lots of problems for this district. It's going to cause a lot of problems for making sure that justice is done in this city....

The one thing I've learned -- I think I've known this while I was in the government but I'm certainly learning it a lot more in private practice -- is that it's expensive. When you are a litigant, especially a litigant in federal court, the nature of being in federal court makes your litigation important. But when you are a private litigant you are carrying that burden, and as you fail to fill vacancies all it does is stretch -- stretch out the time that cases are filed and finally decided on. It's expensive. I think it's unfair to the citizens of this city. I think it's unfair of the citizen of any circuit that is failing to fill vacancies....

And there's another impact I wanted to talk about. I'm not going to talk about the numbers as much as some of my colleagues up here will but there is an impact on those who serve at the Justice Department. When you sit at the Justice Department and you see the individuals who are being nominated for these positions -- three of the names I know personally, one that wasn't mentioned by Senator Allard; I know that he just sent a name over -- you know who they are, you know what they're capable of, and as a prosecutor you really hope for that person to come forward. You want them to be on the bench. You know who handles your -- your cases. You know who you're going to argue in front of....

There is always a -- a certain amount of trepidation when -- when someone of the caliber of a Judge Conrad -- of a Peter Keisler -- of a Rod Rosenstein who I know very well, and then Senator Allard has just nominated Christine Arguello from the University of Colorado where she is the general counsel to the -- to the bench there -- when you know who they are and you see that they're not getting hearings there's sort of a sense that the system isn't working the way it should. You are being deprived of the very people that you want to be in front of regardless of their political persuasion. And I just want to give you just a little perspective. I came to become the United States attorney and I was a partisan. I'd love to say that I was active in -- in politics. I wasn't. I was a law professor. As a matter of fact, when I got the call I was grading criminal procedure exams....

And so now when I look at these nominees I don't look at them as Republicans or Democrats. I look at them as attorneys and -- and I certainly applaud the -- any committee who came up with these names. They are exceptional. I'll refer to my letter of July 24th that I sent to you, Senator Specter, along with Senator Leahy on Judge Conrad. The other nominees are exceptional. Peter Keisler I have done work for and he's the sort of person that the people of the Justice Department want to be in front of, and it also -- it's a point that I think Professor McGinnis made earlier -- it discourages people from coming forward and taking these jobs....

When they -- when you look and you see that these four people can't get a hearing -- when someone that you want on the bench regardless of the party is -- is tapped and say how about you, go, why put myself through this? Why put my family through this? Why should I do it? It's just not going to get done. You deprive the -- the circuit. You deprive all circuits of an ability to -- to have people and listening to these cases that you want to have listening to these cases....

And the circuit's about to change. D.C. is about to change. You've got five of the 10 justices who have birthdays that came before 1945. One has announced that he will be taking senior status. The cases here are complicated. The Second Amendment case was just heard here. You're going to -- the Guantanamo cases are not going to be easy. It -- this is not the time to hold on to vacancies. Now is the time to get people in that can do the job. Let the -- let this circuit have the advantage of a Peter Keisler. Let the Fourth Circuit have the advantage of a Rod Rosenstein and a Robert Conrad so that we can get on with the People's business and we can help this country move forward. Thank you....

Thank you very much, Mr. Howard.

Thank you, Senator.

We now turn to Mr. Steve Rutkus of the Congressional Research Service. He is a specialist on the federal judiciary in the government and finance division of Congressional Research Service, a nonpartisan arm of the Congress who research a variety of legal issues. Mr. Rutkus has his Bachelor's from Stanford, a law degree from George Washington University, and I'll put a more extensive summary of his resume in the record. Thank you for joining us and thank you for the work that CRS has done on a very, very timely subject. We look forward to your testimony....

Well, thank you, Senator Specter and your staff for inviting me to speak at this event.

Before beginning my statements, I just wanted to note that my boss, the director of CRS, has asked that I respectfully remind the panel that congressional guidelines on objectivity and nonpartisanship require that I confine my presentation to technical and professional and non-advocative aspects of issues under consideration, and I will therefore limit my remarks to my field of expertise, such as it is....

And so far in the 110th Congress senators have differed as to whether a sufficient number of court of appeals nominees have been confirmed or are on track to be confirmed. Some have asserted that in a presidential election year the Senate customarily slows the processing of judicial nominees at an earlier point than in other years. Others, however, had disputed the notion that such slowdowns are customary or appropriate....

Much of this debate has revolved around the question of whether the Senate and its Judiciary Committee customarily observe a practice referred to by some as the Thurmond rule, named after the late Senator Strom Thurmond of South Carolina....

Those who maintain the existence of the Thurmond rule contend it originated in 1980 when Senator Edward Kennedy of Massachusetts chaired the Judiciary Committee and Senator Thurmond served as the Committee's ranking member....

The Thurmond rule has been expressed in various ways, differing, for instance, as to precisely when in the year the slowdown occurs. Nevertheless, almost all senators who have cited it have characterized it as an established practice according to which, at some point in a presidential election year the Judiciary Committee and the Senate no longer act on judicial nominations, with exceptions sometimes made for nominees who have bipartisan support from Senate committee and Party leaders....

It is important to keep in mind that there is no written Senate or Judiciary Committee rule concerning judicial nominations in a presidential election year....

Some Senate Democrats assert that the Thurmond rule dates back to July 1980 when Senator Thurmond reported urged Ronald Reagan, the Republican Party's presidential candidate, to call on Senate Republicans to block further confirmation of President Jimmy Carter's judicial nominations....

Conversely, some Republican senators reject the existence of a Thurmond rule in the Senate as well as the notion that Senator Thurmond in 1980 supported blocking judicial nominations....

In short, the debate over whether there is or has ever been a Thurmond rule appears to arise largely out of different meanings attached to events involving Senator Thurmond in 1980....

A review by CRS of the public record of congressional and press sources for relevant events in 1980 revealed the following: According to brief media accounts of the 1980 Republican National Convention, presidential nominee Ronald Reagan agreed, at the urging of Senator Thurmond, to call on Senate Republicans to block all presidential nominations by President Jimmy Carter until after the November 4th elections....

One account, without directly quoting Senator Thurmond, reported him as having said that by withholding their consent, senators could prevent appointments that would continue beyond Jimmy Carter's term, should he be defeated in the general election....

Shortly thereafter it was reported that the Senate Republican Conference had detailed three senators to review all of President Jimmy Carter's pending nominations to the judiciary and executive branch agencies. One press account characterized this review as a campaign to impede confirmation of President Carter's lower-court nominations as well as pending nominations to a wide range of appointive positions in the executive branch....

Following the 1980 Republican convention, however, the Judiciary Committee processed district and circuit court nominations, although not all of those (referred to ?) -- (inaudible). This occurred without Senator Thurmond alluding to any call to block President Carter's appointments....

The Judiciary Committee continued to hold hearings and report judicial nominations during August and September, although the Committee reported only one circuit court nomination during this period....

The Senate, in turn, in September confirmed 12 judicial nominations, 11 district and one circuit. In late September, in floor remarks preceding the Senate's en bloc confirmation of 10 district court nominations, Senator Mark Hatfield of Oregon, one of the senators of the three-member Republican review committee referred to earlier, said that confirmation of the judicial nominations that day would be, quote, "strong evidence that we want to try to minimize what may have been a tradition in this body in years past of holding up nominations per se in an election year," unquote....

Although in 1980 the Senate processed lower-court nominations in September and one in December, it is important to note that such late actions have not occurred in recent presidential election years....

In a congressional distribution memo provided earlier to Elizabeth Hays (sp), CRS researched for each presidential election year between 1900 and -- between 1980 and 2004 the last dates on which there were hearings, Committee votes, and Senate floor votes on court of appeals nominations....

CRS found that the final dates for Senate action on court of appeals nominations occurred earliest in the three most recently completed presidential election years, those of 1996, 2000 and 2004. Whereas the Senate confirmed court of appeals nominees after July in four consecutive presidential election years from 1980 to 1992, the Senate, in the three subsequent presidential election years, 1996, 2000 and 2004, confirmed no court of appeals nominations after July....

That concludes my remarks, and thank you very much.

Thank you very much, Mr. Rutkus.

We'll now proceed by -- for senators' questioning for five minutes.

Mr. Rutkus, I begin with you and thank the Congressional Research Service for what you have done, emphasizing your nonpartisan basis and strictly reporting facts. The question I put to you is whether there is any Thurmond rule. The Thurmond rule has been cited in an effort to give legitimacy to what is being done in a historical partisan basis....

In my introductory remarks I traced the history -- my time hasn't started, so timekeeper, start it, please.

In my introductory remarks I traced the history where both Republicans and Democrats were at fault. Equal blame. And that the Thurmond rule is now being cited by the Democrats to try to give legitimacy to their position, to try to state a precedent so that it is not something they're pulling out of the hat now....

But we do know on May 4th of the year 2000 when the Democrats were seeking to confirm judges with a Republican-controlled Senate, Senator Leahy said, quote, "There is a myth that judges are not traditionally confirmed in presidential election years. That is not true." Senator Reid similarly said on March 7th, 2000, "It is a myth that judges are not traditionally confirmed in presidential election years. It is simply not true."...

If you take a look at 1984 when there were five circuit judges confirmed in October, or 1988 where there were two circuit judges confirmed in October, or 1992 where there were six circuit judges confirmed in October, it's obvious that there has not been an application of the so-called Thurmond rule....

And how about the genesis itself? Senator Thurmond reportedly made a statement in July that you -- 1980 -- which you have referenced, but there's not a quote about it....

But more important than any non-specific generalized statement attributable to Senator Thurmond, what are the facts? He held up on September 10th 13 nominees because, as he said in the record, which I read earlier, the investigation hadn't been completed. But then he withdrew those objections on September 17th. Ten were reported out. And later in September, the 29th, all were confirmed....

And the most conclusive evidence of all about the absence of a Thurmond rule is Justice Breyer on the First Circuit. He was nominated on November 13th, after President Reagan had been elected. The way we regard circuit nominees today, they're more precious than hen's teeth -- all-out war, nuclear option, abolish the filibuster rule, not a chance....

And here you had a Republican elected president, and the hearing was held on November 17th, four days later. They had to have a waiver-of-the-week rule. But he was confirmed on December 9th, just as the Senate was getting ready to go out of session, which it did a week later....

So recognizing your nonpartisan standing, Mr. Rutkus, is there any answer you can give other than there is no Thurmond rule?

Well, Senator, your first question was, "Is there a Thurmond rule?" And, of course, as I note in this testimony, at the risk of being overly repetitious, there is no written Senate or Judiciary Committee rule concerning judicial nominees in a presidential election year....

I will just briefly allude to something that was mentioned in our congressional distribution memo, an article in 2004 in the Capitol Hill newspaper The Hill, which aptly noted that the Thurmond rule has meant different things to different people. But whatever interpretation you use, the phrase stands for customary practices which the Senate and Senate Judiciary Committee, in the view of some senators, are purported to follow or are expected to follow in processing judicial nominations in a presidential election year....

There has never been a bipartisan agreement, however, reached or any Judiciary Committee or Senate votes taken regarding such a rule or the practice it is said to stand for....

Mr. Rutkus, I understand your answer in the context of your work on the Congressional Research Service. But you have provided facts to us where the conclusion is obvious. So unlike some questioning, I will not press you behind the extraordinary factual basis you have provided which allows us to come to the obvious conclusion there is no Thurmond rule....

My clock didn't start at the beginning, and then suddenly about two minutes expired simultaneously. So I have one question which I'd like to ask the three people to comment on, and that is, what judicial emergency means to people who are waiting in court. What does it mean to somebody who has a personal injury claim, who has big medical bills and is out of work? Or what does it mean to somebody who's trying to assert constitutional rights in one form or another for a major commercial transaction which involves jobs? I'll not repeat the question, but if you could briefly answer, Professor McGinnis, and then Mr. Bohm and Mr. Howard....

(Off mike.) It creates obviously concrete losses to people across the nation. And abstractly, it's an erosion of the rule of law. The rule of law depends on judges operationalizing it. And that has costs not only to those people, but ripple costs around the nation as people are not as confident that they're going to get justice in a timely way. So it's not only -- I absolutely agree, it's very particular cost to people, but it's cost -- (inaudible) -- throughout society as people don't have as much confidence that they can get into court in a timely way....

Mr. Bohm.

I would echo that same sentiment. I think it just comes down to the reality of saying, you know, are they losing faith in the judicial system as a result of this? Is it something that we can fix by having judicial nominees in place?...

Mr. Howard.

I certainly echo all that. And I'd wrap it up. I'd say everything. What you'll find out with litigants is when they're in litigation, especially in federal court, they've spent a good part of their savings to get there. Now they're waiting for a decision. Between the filing and issuance of an opinion, these people are on pins and needles....

This is a system that operates on faith. And when they start losing that faith in the system that it's not operating the way it's supposed to and things lengthen out, it gets it hard for other people to believe in it, and it really undermines everything that we do in this country....

Thank you.

Senator McConnell.

Thank you, Senator Specter. I think it's clear that there is no Thurmond rule. And I think the facts demonstrate that. And I thank you for pointing that out....

Mr. Rutkus, in your report, you compare the delay facing President Bush's judicial nominees with the delays faced by judicial nominees of his predecessors. Your report contains two charts that illustrate those delays, one for circuit court judges and one for district court judges. We have a chart over here, if you could just -- it's a reproduction of what's in your report....

The first chart shows the average number of days from the first nomination to the final Senate action, both for those who were confirmed and those who were unconfirmed, for Carter through Bush 43. My question of you is, how do President George W. Bush's circuit court nominees fare as compared to other presidencies?...

Well, as you can see, those colored bars are a bit higher for President Bush than the others. And --

A bit higher?

Well, I'm just saying visually, we can see that. And when we get to the numbers, we get very quantitative at CRS in terms of -- and we had noted that President Bush's appeals nominees experienced on average the highest number of days elapsed from first nomination to final Senate action of the recent presidents' circuit court nominees....

The average time to final action for President George W. Bush's confirmed nominees to the courts of appeals, which we have here as -- we believe the number is actually 350 days, but that (isn't ?) far off from the chart. I think that's our latest figure. Three hundred fifty days is 47 percent greater than the average time to final action for President Clinton's confirmed nominees to the courts of appeals and 407 percent greater than the average time to final action for President Carter's confirmed nominees to the courts of appeals. And I don't have our calculation for the unconfirmed nominees, but it would appear to be that those percentages would be even higher....

Yeah, I do. President George W. Bush's unconfirmed nominees to the court of appeals, not including those current pending in the Senate, is 906 days. That's 106 percent greater than the average time to final action for President Clinton's unconfirmed court of appeals nominees and 365 percent greater than the average time to final action for President Carter's unconfirmed court of appeals nominees....

We also have from your report a second chart that shows the average number of days from the first nomination to final Senate action for district court nominees. Could you give us the rundown of what your chart reflects on that?...

President George W. Bush's district court nominees experienced on average the highest number of days elapsed from first nomination to final Senate confirmation in comparison with the nominees for the four preceding presidents....

The average time to final action for President George W. Bush's confirmed nominees to the district courts -- and we have 182 days -- is 34 percent greater than the average time to final action for President Clinton's confirmed nominees to the district courts and 156 percent greater than the average time to final action for President Carter's confirmed nominees to the district courts. And I don't have with me the percentages -- comparable percentages for the unconfirmed nominees, but I believe you probably do....

Yeah, I do. The final action for the current President Bush's unconfirmed nominees to the district courts, not including those currently pending in the Senate, 520 days, is 30 percent greater than the average time to final action for President Clinton and 206 percent greater than the average time to final action for President Carter's unconfirmed district court nominees....

So the facts speak for themselves. You do represent a nonpartisan organization, but the facts are indisputable. The current president has been treated dramatically worse by the Judiciary Committee, dramatically worse than any president in the last 30 years. Opinions may vary, but the facts are not in dispute....

Thank you, Mr. Rutkus.

Thank you, Senator McConnell.

Senator Kyl.

Actually, I think it's Senator Dole next. But I'm going to have to go, and I just wanted to thank the witnesses for being here, especially the personal comments you made about some of the nominees who are pending. We really need to get action on them. And I appreciate very much your personal knowledge of that in your testimony....

Thank you, Senator Dole.

Senator Dole.

Yes, indeed.

Mr. Bohm --

Yes.

-- you're the one representative of a state bar association sitting on the panel, and there's a good reason for that. It appears that no state in the Union has a more urgent need to have judicial vacancies filled than North Carolina. And the two federal North Carolina vacancies have been designated judicial emergencies, correct?...

That's correct.

Perhaps no state has been more ill-served by the Senate than North Carolina. I'm sure you're aware that the Fourth Circuit seat to which Judge Robert Conrad has been nominated has been vacant since 1994. That makes it the longest federal judicial vacancy in the United States history. And Judge Conrad has yet to be given a hearing, as we all know, by the Judiciary Committee. And he's just been waiting one year this Thursday....

Are you aware that of the pending vacancies on federal district courts, the vacancy that has existed the longest is in the eastern district of North Carolina?...

I am.

That seat, to which Tom Farr has been nominated, has been vacant since the end of 2005. And Mr. Farr was nominated December 6th, 2006. If I were to tell you that the Administrative Office of the United States Courts, which measures weighted case filings across the country, has reported that the North Carolina eastern district has the highest number of cases per authorized judgeship in the Fourth Circuit, would you not agree that this is an additional reason the Senate should act on Mr. Farr's nomination?...

That's correct.

Now, I'd like to turn to the Fourth Circuit generally for a moment. That circuit includes not only North Carolina but also Maryland, Virginia, West Virginia and South Carolina. It has been the most understaffed circuit in the country, with 26 percent of its seats unfilled. I find this to be absolutely outrageous....

To what extent does the Fourth Circuit rely on visiting circuit judges, district judges and senior judges? And would the courts be able to manage without those visiting judges taking on that workload? When judges visit from another jurisdiction, it takes away from the work that they could be doing for their own home jurisdictions, doesn't it?...

Correct.

I'll give you a chance to answer, but I do want to just mention Karen Williams, chief judge of the Fourth Circuit, who noted, and I quote from her, "It is not unheard of for up to one-third of our court to be composed of district judges during an oral argument term."...

Does it not strain our district judges to have this sit on appellate panels when they already have a caseload to manage at the trial level?

To simply answer each one of those questions is absolutely. How often do they have visiting circuit judges? I understand that it's on a regular basis. It's not something that's an anomaly, but it happens more often than not, something that shouldn't be happening if those nominations were filled. Are they able to manage those without having the visiting judges taking on the cases and the workloads?...

I think that they've done a very good of managing that stuff to date, and I think it'd be very hard-pressed for them to do it without it, if they could. I'm not sure that they'd be able to do it without the use of the visiting judges on there. And it most certainly causes a strain when you have these visiting judges, in effect, based on where these judges are coming from, as to what they have back in their home state, their home territory, to deal with, absolutely....

Tom Farr is in private practice, and nominations to federal judgeships have been known to affect the professional and the personal lives of these nominees. Are you aware, from Mr. Farr's colleagues, the effect this delay since December 6th, 2006 has had on his law practice?...

I've heard from his colleagues that it's had a significant impact upon his law practice. And as I was coming up here today to participate in this forum, I kind of jotted down some ideas of how it would affect me personally if I was going through that process, and I came up with very quickly six areas....

It lowers the practice opportunities. If you are in this position, you are not going to be handed cases or workload. It also increases your pressure to produce with your partners. You're not working solo. You've got other people to answer to, and they're expecting you to produce. And that's hard to do in an environment where you've been nominated. It also affects your family life if you have the additional pressures, the additional strains that are out there, that your family is going through close scrutiny....

It affects your clients because of the uncertainty that your clients do not know if you're going to be there or not or if you're going to be a judge. So you maybe start off with a client but you may not end up with that client....

It's difficult in dealing also with the court. If you are in front of a judge but you've been nominated, you might have a different demeanor, or, when you're up there participating in front of the judge, have a different circumstance....

And then also, the longer you wait for a nomination process, the more it gives groups time to come up with questions that maybe stretch reality. If we had the nomination process go through in a much faster basis, you just get the serious questions that come through, as opposed to the longer you wait, the more you can stretch out a question that is probably beyond reality....

Thank you very much.

Thank you, Mr. Chairman.

Thank you, Senator Dole. I think it appropriate to note the tenacity that you have worked on the issue generally, but especially your North Carolina judges; a lot of the serious circumstances. When Judge Conrad came into Washington, I had a long meeting with him. He brought in Tom Farr; meeting with him. We had -- (inaudible) -- where Mr. Howard testified on the issue of the delays with special knowledge of the North Carolina situation. And there are many people in your state who are being denied an opportunity to have their cases move forward. There are a lot of individual cases and individual stories that ride behind all of these (statistics ?). So thank you for the --...

Thank you very much --

-- outstanding job you're doing.

-- for your assistance.

Senator Cornyn.

Thank you, Senator Specter.

We've talked about the disparity in nominees that have actually been confirmed, whether it be from President Carter, President Reagan, President George Herbert Walker Bush, President Clinton, President George W. Bush. We've also talked about the impact on the nominees themselves and the discouraging way in which the Judiciary Committee in the Senate has treated them and what potential impact that might have on people willing to step forward. But I want to just get your thoughts starting perhaps Professor McGinnis on the impact on the litigant -- whether it's a crime victim, whether it's a -- somebody who's been cheated out of some -- some money, who's suffered some damage who needs access to a court in order to address that grievance....

I remember, and what prompts my thinking is back in the '80s I think it was when Chief Justice Berger was on the United States Supreme Court he -- he basically issued a call to arms about cost and delay of civil litigation, saying that the cost of civil litigation really effectively barred people from access to court as effectively as if you'd padlocked the front door, in some instances, and likewise delay. From the time an injury actually occurs until the time you could actually get heard has really a substantial impact on people's sense that justice has been served and justice has been done....

But could you speak for a moment about how lack of access to justice because these benches, especially judicial emergencies in places like the Fourth Circuit and in North Carolina, when those benches are not filled what that impact has in terms of cost and delay on the individual litigant's access to justice?...

Thank you. Well, it certainly has a tremendous impact on the individual litigants. It's hard to quantify in some sense because it's so large -- because it's not only -- as I think I suggested before it's not only the loss to those individual litigants. The rule of law of which fast justice is a part really undergirds everything we do in the United States, right? The -- the ability to be sure you can go in and get justice on a contract influences people and how willing they are to make contracts....

So it's not only the litigants, who I absolutely agree are tremendously hurt. It's all sorts of unnamed people -- people who are -- become a little less certain that they're going to get justice in our courts in any timely manner. They're not going to take actions and that has an effect on the whole productivity of society because the ability particularly to get contracts enforced in a timely manner is what undergirds a market economy. So the costs are great to the litigants but the costs are great to the rest of us as well....

I know that businesses when they look to move to certain parts of the country take into account the -- the justice system. In my state, we passed various tort reform provisions which have -- although controversial have passed nonetheless because -- and as a result I think one of the reasons why we've been a -- so attractive to business is because the stability and the predictability of our civil justice environment. But I would suspect that lack of access to courts because of a lack of judges actually sitting on those benches could have a negative impact in terms of the business environment -- in terms of the ability of a state or a region to actually attract job creation. Mr. Bohm, do you have a -- an opinion or -- on that?...

Yeah. I would echo exactly what you said there. I think the impact is that's going to be one of the factors they're looking at when looking to a particular state or a particular circuit as to whether or not to open business because as you know time is money. The longer you wait the more it's going to cost you to have that go through, and most certainly that would be one of the factors in the operations of a business is to look at -- is to see what that access to justice would be....

Mr. Howard, let me just ask you -- I think we can't just look at how -- how long it takes from the time someone suffers some injury whether it's a victim of a criminal act or some civil wrong until they can actually get to court but literally from the time that injury occurs until the matter is finally resolved, and it's -- it's a fact, is it not, that the trial court process is the -- just the beginning -- that it's really a matter of exhausting appeals? And in my experience I've seen particularly in criminal matters death penalty cases let's say, for example, some of these unresolved for literally decades or more. Has that been your experience as well?...

Exactly, Senator. The trial is the beginning. Obviously in any appeal you're looking to make sure (there are appeal issues ?). It's one of the reasons at the trial level in the criminal context you find so many pleas. What it does for the government it gives you some certainty that -- that it's ended and obviously for the defendant they kind of know what -- what price they have to pay to the -- to the piper. But when you get into the criminal context -- not moving it along, getting to a circuit court, having things held, especially somebody on death row to sit there not knowing whether you're going to live or die for years, decades -- obviously, I haven't been through it and I haven't had a death penalty client but I've certainly dealt with death penalty cases and it's hard for anybody to put themselves in that space....

And you look at civil cases -- certainly the Exxon Valdez case is one -- where people are expecting a certain payout. If they're not going to get it they'd like to know that 10 years ago. I know that corporations take a look at districts. If they think they can stretch things out they'll go there. If they think they need to be in quickly they'll go there. It depends on -- it's part of the litigation strategy and certainly if you got a district that's not fully housed, not fully staffed, and -- and you need the time or you think you can outweigh a -- the other side sure, you go there. And if there's something that you want to have contested quickly you go to a place that's got all their people there....

One of the things the vacancies does is it -- it makes the circuits uneven and it -- and it makes the -- that sort of forum shopping part of any litigation strategy. You sit down, you talk to your client, you figure out where you want to go, and certainly one of the things you want to do with these hearings is get it so that if people are making a decision it's for meritorious reasons as opposed to those kind of tactical reasons....

And as you alluded, not every litigant in a civil case is an insurance company or a corporation that can afford to bankroll litigation for years and perhaps decades and -- and in terms of the -- just the backbreaking cost associated with unnecessary delays in -- in resolution, that can have a real impact on people's sense that they've actually had access to a fair forum and an impartial system of justice....

Oh, exactly. When you're talking about especially in the -- in this day and age where lawyers charge by the hour it becomes a math problem. If -- if they're saying look, it's going to cost you $200, $300, $400, $500, $600 an hour for -- there's a difference between, say, for six months or a year versus four or five years. There -- individuals -- most individuals just can't carry that kind of burden and as a result if they've got issues it's never resolved in -- in a court, it's never resolved by the circuit, and I think it makes the country a poorer place....

People certainly talk about the explosion of litigation. I come from a -- from a little different view and that is the litigation is good. It gets people in court. It lets things be resolved. It lets courts decide what the law is and I think it makes us a -- a better place, and when you can get there quickly -- I think it was Judge Dole who said justice delayed is justice denied. I mean, you hear it all the time but when you get into practice you know it's true. The one thing the client ask you -- well, more than one thing but one of the things they ask you is when is this going to be done -- when will it be over....

When you start talking in terms of years there's certainly a depression that comes across and it's just something that the American people not -- not with our caliber of attorneys in this country and it's nothing that they should have to go through....

Have you noticed in the people that you've represented or perhaps been exposed to in litigation over the years that they don't regard litigation as in strict -- they don't see it through strictly the professional lens that lawyers and judges do? I mean, this can be something that can basically be a miserable experience left unresolved for years at a time....

I mean, not to disparage lawyers but, you know, sometimes our -- you know, the reputations are earned. We don't, you know, necessarily not all of us treat litigants the way they should. It -- it's tough. It's tough going in court and -- and a lot of times the questions you get is what happened, you know, what went on -- why are things acting the way -- the way they do. One of the things the circuits do is clear that up, hopefully in opinions and sometimes from the bench. They put them in words that make the -- make a -- any litigant understand that this is the way the law works. May not be understandable at a court just because of the pace of -- at a trial court because of the pace of a -- of a trial court. But no, it's -- it's not necessarily a pleasant experience for anybody who goes through litigation....

Thank you, sir.

I thank you very much, Senator Cornyn.

Just a few comments in conclusion. We thank the panelists for coming in today. Eight senators is a pretty good showing on a Monday afternoon, especially early, and the testimony I think has been very enlightening here today. I note we have a substantial Kansas connection here. Mr. Bohm, your file says you're from Osborne. How have you managed to maintain that Midwestern drawl deep in the South?...

I made it a point to come out here and participate in North Carolina. I just had to pick a place to be and that was the place I chose and not sure where the drawl comes from over the time....

Osborne is pretty close to Russell, Kansas where --

Forty-five miles away.

-- I went to high school pretty close to where Senator Dole has some extended roots with -- Senator Bob Dole having been a resident there, born and raised there. Russell is an interesting little town. It has one stoplight, one movie theater, and one Conference in --...

Yeah.

-- which is unusual. Professor Howard, you were at the University of Kansas, but you managed to avoid that flat drawl that David Bohm and Arlen Specter seem to have....

I'm a Jayhawk by adoption, not by birth. (Laughter.)

Uh-huh.

And I'll point out Senator Dole is a Washburn graduate if I'm not -- not mistaken -- Washburn Law School and a University of Kansas undergrad.

When you testify about what it means to people actually there who are being -- having their case delayed -- somebody who may be the victim of a crime, and there's no closure because the case goes on interminably, hanging over everybody's head, or if you're the defendant -- (inaudible) -- you have a constitutional right to a speedy trial, or if you're in custody you have a right to have a determination as to the -- as to whether you ought to be there, or if you're injured from some defective product or an auto case and you have big medical bills and you have lost wages you sit -- sit and wait....

Or it's a commercial transaction. Might be an antitrust case which involves a lot of jobs for a community. If the district judges aren't there they're off on the circuit and they're not supposed to be on the circuit. We have different standards for the circuit which is really in a practical sense the final appeal before the Supreme Court since cert is denied on so many cases. So there are real faces on -- on these cases and the judicial emergencies are all over, and you have Judge Conrad and Mr. Matthews -- Steve Matthews -- Pete Keisler sitting around and waiting interminably not knowing what's going to happen to their -- their careers....

And we thank CRS, especially Mr. Rutkus. You didn't have to come to a conclusion to particularly eloquently articulate inferentially that there is no Thurman Rule, and it's important to have that fact out there because if there is sufficient public indignation about what is going on in Washington on the gridlock and the bickering on this subject that it can have an effect -- can have an effect on what goes on in Washington....

But we have to strip away the argument of legitimacy where there is no Thurman Rule to give legitimacy. Have to strip away the commentary on precedent. People think if there's a precedence, been done all the time, well, okay. This is business as usual. But it's not. You had confirmations. In 1980 when the Thurman Rule was supposed to have been adopted after the president of another party had been elected and a hearing faster than the rules allowed and a confirmation in December -- unheard of in Washington in the year 2008 unless we can stir up enough opinion to have an effect....

Senator Dole, would you care to make a closing statement?

Thank you. Just thank you very much, each of you --

Thank you, Senator.

Senator Cornyn?

-- for adding so much to our -- (inaudible).

Thank you all very much. That concludes our hearing. END

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