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For Immediate Release
February 13, 2012

Recess Appointments and Judicial Nominee Adalberto Jose Jordan

Prepared Floor Statement of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
Adalberto Jose Jordan to be United States Circuit Judge for the Eleventh Circuit
Monday, February 13, 2012

Mr. President: 

Today we turn to the nomination of Judge Jordan, to be a United States Circuit Judge for the Eleventh Circuit.  He will fill the vacancy that has been created by Judge Susan Black taking senior status.  

Looking back, I think the Senate accomplished much last year, passing important legislation and confirming a significant number of judicial and executive nominees.  I would note that even the Majority Leader recognized that we have done a good job on nominations and have accomplished quite a bit. 

We could have confirmed more nominees, had the President indicated that he would respect the practice and precedent on recess appointments.  He would not give the Senate that assurance, so a number of nominations could not be confirmed and remain on the Executive Calendar.  As it turned out, the President went on to violate the practice and precedent.

I want to remind my colleagues and those who might be listening that the Constitution outlines two ways in which the President may make appointments.  One is with the advice and consent of the Senate.  The other is he may make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.  Given that the Senate was not in recess, it seems clear to me that advice and consent was required, but not obtained.

It is for the Senate to determine its own rules and procedures, including designation of when it is in recess, within the constraints of the constitutional provisions found in Article I.   This is not a matter within the purview of the executive branch. 

These so-called recess appointments break a longstanding tradition.  They violate precedents followed as recently as 2008, with President Bush. 

This is a matter of concern to my Republican colleagues, as it should be for all senators.  In fact, I am quite puzzled and disappointed by the silence from the other side.  This is more than just a policy issue or disagreement on a particular nominee.  The underlying concern is a power-grab by this President.  I would think that all senators would rise to defend the prerogatives of the Senate and the constitutional principles which have been violated by the President.

When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say that the Constitution does not stand in the way.   

At that point, a President is no longer a constitutional figure with limited powers as the founders intended.  Quite the contrary, the President looks more and more like a king that the Constitution was designed to replace

Generally, I am willing to give the President's nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined.  But as I indicated over the past few weeks, we are not operating under normal circumstances.  The atmosphere the President has created with his disregard for constitutional principles has made it difficult to give his nominees any benefit of the doubt. 

Despite the conditions the President has created, the committee is moving forward with hearings and mark-ups.  And, as we see, we continue to have floor votes and confirmations.  We are making real progress. 

This will be President Obama's 26th circuit nominee that we have confirmed.  That means that over 62 percent of the President's circuit judge nominees have been confirmed.   This is the same pace of confirmation for President Bush's circuit nominees at the comparable point in his first term. 

Furthermore, President Obama's nominees are moving through the process at a quicker pace.   The average time for President Obama's circuit nominees to be confirmed is about 140 days.  For President Bush the average time was 350 days.

With regard to judicial vacancies, I would note that progress has been made.  We have made significant reductions in the vacancy rate.   I hear some mistakenly state that the vacancy rate is at historic highs.  This claim is not true.  I would point out that the current vacancy rate is about where it was at the beginning of the Presidency of George W. Bush.  And in terms of historical highs, let me remind my colleagues of some history.  When George H.W. Bush assumed the Presidency, the vacancy rate was around 5 percent.  During his term, the Democratic majority in the Senate let that vacancy rate rise to 16 percent, nearly double what it is today. 

Those who continue to complain about vacancy rate should also be reminded that for more than half of the vacancies, the President has failed to submit a nomination.  This has been a pattern throughout this administration.  This is the case even for the vacancies designated as judicial emergencies - 19 of the 33 vacancies have no nominee.    Furthermore, President Obama is significantly behind in the number of nominations he has made.  So it is no surprise that he would be a little behind in confirmations as well.

I would like to say a few words about the nominee we will be voting on today.  Judge Jordan presently serves as a United States District Judge for the Southern District of Florida.  He was appointed to that court by President Clinton in 1999, and was confirmed by the Senate later that year.  

    He received a Bachelor of Arts from the University of Miami in 1984, his Juris Doctorate from University of Miami Hall School of Law in 1987. 

    Upon graduating law school, the nominee clerked for Thomas A Clark of the United States Court of Appeals for the Eleventh Circuit and then for Supreme Court Justice Sandra Day O'Connor. He then began his legal career as an associate attorney with Steel Hector & Davis where he handled First Amendment matters and commercial litigation cases.

    In 1994, he became an Assistant United States Attorney in the Appellate Division of the US Attorney's Office for the Southern District of Florida. He was made Deputy Chief of the Division in 1996 and Chief in 1998.  The nominee also worked as an adjunct professor of law at the University of Miami School of Law since 1990. He has taught many courses, including a Death Penalty Seminar, Federal Courts, a Judicial Inherent Power Seminar and a Federal Criminal Practice Seminar.

    Since becoming a District Judge in 1999, he has presided over nearly 200 cases and has set by designation frequently on the Eleventh Circuit Court of Appeals.

The American Bar Association Standing Committee on the Federal Judiciary has rated this nominee with a unanimous "Well Qualified" rating.    I concur in that rating and will support the nomination.

I thank the Chair and yield the floor.