Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, again we are moving forward under the regular order and procedures of the Senate. This year we have been in session for about 37 days, including today. During that time we will have confirmed 15 judges. That is an average of better than one confirmation for every 2 1/2 days we have been in session. With the confirmations today, the Senate will have confirmed nearly 75 percent of President Obama's article III judicial nominations.

Despite this progress, we still hear complaints about the judicial vacancy rate. We are filling those vacancies. But again, I would remind my colleagues that of the 82 current vacancies, 50 have no nominee. That is over 60 percent of vacancies with no nominee.

Another complaint we hear, which is a distortion of the record, is the so-called delay in confirming nominees. Those who raise this complaint only focus on the time a nominee is reported out of committee until confirmation. But the confirmation process is more than just Senate floor action.

For those who may not be familiar with the confirmation process, let me review. Once a nomination is received, the committee takes an appropriate amount of time to review the nominee's Senate questionnaire and background and review written materials. The Committee holds a hearing on judicial nominees and then holds the record open for additional written questions. Of course there is debate on the nomination in committee, then the nomination is reported to the floor. All of this takes time. Every step is important. Not all nominees make it through each step.

The average time for this process for President Bush's circuit judge nominees was 350 days. That means it took, on average, nearly 12 months from the time a nomination was received in the Senate until final confirmation.

For President Obama's circuit nominees the average time from nomination to confirmation is 243 days. That means President Obama's circuit nominees are being confirmed faster than those of President Bush. So to those who ask What's different about this President? I would respond that one thing that is different is that this President's circuit nominees are being treated much more fairly than President Bush's nominees were treated.

As I stated, not all nominees make it through every step of the process. In the case of our nominee today, she completed that process in about 220 days, below the average for President Obama and much quicker than the average for President Bush. She will likely be confirmed and take her place on the Court of Appeals for the fourth circuit.

This was not the outcome for many of President Bush's nominees to the fourth circuit. Let me review just a few of the highlights from those failed nominations.

I wonder if my colleagues remember William Haynes, President Bush's nominee to sit on the fourth circuit. In the 108th Congress, my Democratic colleagues held up his nomination for 638 days on the Senate calendar alone before it was returned to the President. All in all, he put his life on hold for 1,173 days and never received an up-or-down vote.

Later, at a point during the 110th Congress, the fourth circuit had a vacancy rate of 33 percent and desperately required judges. The President did his duty and submitted four nominations. Unfortunately, all of them were needlessly delayed.

Judge Robert Conrad was nominated to a seat on the fourth circuit which had been designated as a judicial emergency, Both home State Senators supported his nomination. Furthermore, he had received unanimous support from the Senate on two prior occasions--first when he was confirmed to be a United States Attorney and again when he was confirmed by voice vote to be a United States District Judge for the Western District of North Carolina. The American Bar Association's Standing Committee on the Federal Judiciary unanimously gave him a rating of well qualified.

Judge Conrad met every standard to be considered a well qualified, noncontroversial, consensus nominee. Yet, his nomination stalled. He was nominated on July 17, 2007. Despite his extensive qualifications, a hearing was never scheduled. On October 2, 2007 Senators Burr and Dole sent a letter to the chairman asking for a hearing for Judge Conrad. On April 15, 2008 they sent a second letter to the chairman requesting a hearing for Judge Conrad.

Their request was never granted. After waiting 585 days for a hearing that never came, Judge Conrad's nomination was returned on January 2, 2009.

Steve Matthews was another nominee to the fourth circuit, nominated on September 6, 2007. He was a graduate of Yale Law School and had a distinguished career in private practice in South Carolina. He also had the support of his home State Senators. On April 15, 2008 Senators Graham and DeMint sent a letter to the chairman asking for a hearing for Mr. Matthews. Despite his qualifications, Mr. Matthews waited 485 days for a hearing that never came. His nomination was returned on January 2, 2009.

Rod Rosenstein was nominated to a fourth circuit seat designated as a judicial emergency on November 15, 2007. The American Bar Association's Standing Committee on the Federal Judiciary unanimously rated him well qualified. Previously, in 2005 he had been confirmed by a noncontroversial voice vote as U.S. Attorney for Maryland. Prior to his service as U.S. Attorney, he held several positions in the Departm6nt of Justice under both Republican and Democratic administrations.

On June 24, 2008 Senator Specter, the ranking Republican Member, sent a letter to Mr. Rosenstein's home State Senators pointing out that the seat to which Mr. Rosenstein had been nominated had been vacant since August 2000--at the time nearly 8 years. He requested they return their blue slips on his nomination. That request was declined, reportedly because the nominee lacked ties to Maryland and was doing too good of a job as the U.S. Attorney for Maryland. I find that rationale somewhat perplexing, if not inconsistent.

Nevertheless, despite his stellar qualifications, Mr. Rosenstein waited 414 days for a hearing that never came. His nomination was returned on January 2, 2009.

Judge Glen Conrad was another failed nomination to the fourth circuit. Nominated on May 8, 2008 he had the support of his home State Senators, one a Republican, the other a Democrat. Judge Conrad had previously been supported by the full Senate when he was confirmed to be a United States District Judge for the Western District of Virginia by a unanimous, bipartisan vote of 89 0 in September 2003. Despite his extensive qualifications, Judge Glen Conrad waited 240 days for a hearing that never came. His nomination was returned on January 2, 2009.

What was the reaction to this Democratic obstruction to President Bush's fourth circuit nominees? A December 2007 Washington Post editorial lamented the dire straits of the fourth circuit writing: ``[T]he Senate should act in good faith to fill 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 4th Circuit covers. Two nominees--Mr. Conrad and Steve A. Matthews--should receive confirmation hearings as soon as possible.''

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

I would note that the seat to which Mr. Rosenstein was nominated went vacant for over 9 years. When President Obama made his nomination to that vacancy, the nominee fared far better. He received a hearing a mere 27 days after his nomination and received a committee vote just 36 days later.

So today, as we confirm another of President Obama's nominees to the fourth circuit, I hope my colleagues understand, recognize, and acknowledge that President Obama's nominees are being treated in a fair manner.

Stephanie Dawn Thacker is nominated to be United States Circuit Judge for the fourth circuit. She graduated with honors from West Virginia University College of Law in 1990 and received her B.A., magna cum laude, from Marshall University in 1987. Ms. Thacker began her legal career as an associate in the Pittsburgh office of Kirkpatrick & Lockhart, now K&L Gates. There she worked on complex commercial and asbestos defense litigation.

In 1992, she worked for a brief period as an assistant attorney general in the Environmental Division of the Office of the West Virginia Attorney General. There she represented the State of West Virginia on environmental issues involving permitting and compliance. She then joined King, Allen & Betts--now Guthrie and Thomas--as an associate, where she worked from 1992 to 1994 on cases involving commercial litigation defense, white collar criminal defense, and legal malpractice and professional responsibility defense.

In 1994, she joined the United States Attorney's Office for the Southern District of West Virginia as an assistant United States attorney in the General Criminal Division. As an assistant United States attorney, she prosecuted cases on a wide range of criminal matters including money laundering, fraud, firearms, and tax evasion matters. She eventually developed a niche in domestic violence, child support enforcement, and coal mine safety.

In 1999, she became a trial attorney with the Department of Justice's Child Exploitation and Obscenity Section. She was promoted to deputy chief for litigation in 2002 andl principal deputy chief in 2004. As a trial attorney, she prosecuted cases around the country involving child pornography, child sexual exploitation, sex trafficking, and obscenity. As deputy chief and principal deputy chief, she was responsible for the management and professional development of the section trial attorneys.

In 2006, she became a partner at Guthrie and Thomas--formerly King, Betts & Allen--where she previously worked basis as an associate. She has specialized in complex litigation, environmental and toxic tort litigation, representing large companies, as well as handling some criminal defense cases representing individuals.

A substantial majority of the ABA Standing Committee on the Federal Judiciary gave her a rating of well qualified; a minority of that committee rated her as qualified.

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