Mr. SESSIONS. I think most of us in this body who were here remember that soon after President Bush was elected in 2000, a group of well-known liberal professors--Laurence Tribe, Marsha Greenberger, and Cass Sunstein--he is the one who has recently been appointed by President Obama to one of his administration posts who believes animals should have [Page: S10753] lawyers appointed for them--met with the Democratic leadership. The New York Times reported at that time that they proposed changing the ground rules of the confirmation process. They proposed that Senators consider a nominee's ideology. For the first time in the history of the country, they proposed that the burden be shifted to the nominee to somehow prove they were worthy of the appointment instead of having the Senate respect the presumptive power of the President to make the nomination and then object if there was a disagreement. This was a major change in the history of the Senate. It was done by the Democrats when we had a Republican President.

It was clear to me then that as a result of that meeting, a majority of the Democratic Members of the Senate agreed. After the Democrats took control of the Senate a few months later when Senator Jeffords changed parties, the Senate confirmed only 6 of President Bush's 25 circuit court nominees. Five nominees had bipartisan support, and two were prior Clinton nominees. President Bush renominated two prior Clinton nominees. They confirmed them, but only a few others were confirmed. Yet the majority of President Bush's first nominees nominated on May 9, 2001, waited years for confirmation.

Priscilla Owen was nominated to the Fifth Circuit, a fabulous supreme court justice in Texas. It took 4 years for her to be confirmed. She was on the short list for the Supreme Court. She is a brilliant justice.

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

Jeffrey Sutton, another brilliant nominee to the Sixth Circuit Court of Appeals, was confirmed but only after 2 years in 2003.

Deborah Cook was nominated for the Sixth Circuit--it took 2 years to get her nomination confirmed.

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

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

Terrence Boyle waited almost 8 years, until his nomination lapsed at the end of President Bush's term. He never got a vote.

Perhaps the most disturbing story was that of Miguel Estrada, who was a brilliant, outstanding, well-qualified consensus nominee. He was nominated to the DC Circuit on May 9, 2001. He waited 16 months just to get a hearing--16 months--only to be confronted with unreasonable requests for more information. After almost 2 1/2 years in limbo and a protracted 6-month long filibuster battle, we brought his name up a number of times, and he was blocked by filibuster. Mr. Estrada withdrew his name from further consideration, and we remain baffled as to why such a fine nominee was treated so poorly. His character was attacked and his nomination was ultimately blocked for no reason other than the fact that some said he was so capable he would have been on the short list for the U.S. Supreme Court.

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

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

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

Now, I think President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first circuit court nominee. Judge Hamilton's nomination is clearly controversial. It was only exacerbated by the rushed hearing schedule on his nomination. Indeed, I think it is fair to say he is outside the mainstream of even President Obama's nominees. Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced this empathy standard, this feeling standard. Whatever that is, it is not law. It is not a legal standard. He has said that he believes a judge will ``reach different decisions from time to time ..... taking into account what happened and its effect on both parties, what are the practical consequences.'' Judge Hamilton also appears to have embraced the idea of a living Constitution. In 2003, he indicated in a speech that a judge's role included writing footnotes to the Constitution. I am not aware that a judge has the power to write footnotes to the Constitution, which has been ratified by we the people of the United States of America.

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

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

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

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

In 2008, a Washington Post editorial stated that: Blocking Mr. Rosenstein's confirmation hearing ..... would elevate ideology and ego above substance and merit and would unfairly penalize a man who people on both sides of this question agree is well qualified for a judgeship.

So after a few weeks went by, the Democrats were already blaming the Republicans, saying they are not moving fast enough on Mr. Davis, who has some serious problems in his background, and I just have to say I am [Page: S10754] concerned about it. He has been reversed quite a number of times. But he certainly has had his hearing. He had a hearing 27 days after his nomination, and he was voted out of committee on a split vote just 36 days later.

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

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

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

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

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