I rise in support of the nomination of Kevin McNulty to be United States District Judge for the District of New Jersey.
Although it is the practice and tradition of the Senate to not confirm Circuit nominees in the closing months of a Presidential election year, we continue to confirm consensus district judge nominees. Today’s vote will be the 153rd nominee of this President confirmed to the district and circuit courts.
I continue to hear some of my colleagues repeatedly ask the question “What is different about this President that he has to be treated differently than all these other presidents?” I won’t speculate as to any inference that might be intended by that question, but I can tell you that this President is not being treated differently than previous presidents.
By any objective measure, this President has been treated fairly and consistent with past Senate practices. For example, with regard to the number of confirmations, let me put that in perspective for my colleagues with an apples-to-apples comparison. As I mentioned, we have confirmed 152 district and circuit nominations of this President. We have also confirmed two Supreme Court nominations during President Obama’s first term. Everyone understands that Supreme Court nominations take a great deal of Committee time. When Supreme Court nominations are pending in the Committee, all other nominations work is put on hold.
The last time the Senate confirmed two Supreme Court nominees was during President Bush’s second term. And during that term the Senate confirmed a total of only 119 district and circuit court nominees. With Mr. McNulty’s confirmation today, we will have confirmed 34 more district and circuit nominees for President Obama than we did for President Bush in similar circumstances.
During the last presidential election year, 2008, the Senate confirmed a total of 28 judges, 24 district and four circuit. This presidential election year we have already exceeded those numbers. We have confirmed five circuit nominees, and this will be the 26th district judge confirmed. So those who say that this President is being treated differently either fail to recognize history or want to ignore the facts.
Another statistic that is often misused to allege a campaign of Republican obstructionism is the days to confirmation. My colleagues on the other side want to focus on one particular phase of the confirmation process, the time from being reported out of committee to confirmation. They ignore the timeline for the rest of the process. The fact is, for both presidents, the average time from nomination to confirmation is roughly equivalent – 211 days for President Bush’s judicial nominees and 224 days for President Obama’s judicial nominees.
Let me turn to another issue which is repeatedly raised, that of the vacancy rate, as if Republicans are to blame for that as well. Let me review the record and set the facts out for all to hear.
When President Obama took office, there were 59 judicial vacancies. I would note that at the beginning of 2008, there were 43 vacancies. So, the practice for Democrats who controlled the Senate during that last year of President Bush’s term was to allow vacancies to increase by more than 37 percent.
By mid-March 2009, when the first Obama judicial nomination was sent up to the Senate, there were 70 judicial vacancies. Over the next three months, despite the rise in vacancies, only five more circuit nominations were sent to the Senate. By the end of June, when the Senate received its first district nomination, there were 80 vacancies. The failure or delay in submitting nominations for vacancies has been the practice of this administration.
By the end of 2009, there were 100 vacancies, with only 20 nominees. In December 2010, more than half of the 108 vacancies had no nominee. At the beginning of this year, only 36 nominees were pending for the 82 vacancies. At present, still more than half of the 78 vacancies have no nominee.
I would remind my colleagues that all of this starts with the White House. So when one wants to complain about judicial vacancies, start first by looking there and then to the Democrats who have controlled the Senate during this period.
Because of those delays in nominations, and decisions made by the Senate Democratic leadership, only 13 judges were confirmed during President Obama’s first year. That was the choice of Democrats who controlled the White House and the Senate, not because of a Republican minority. Yet, Democrats now argue that President Obama is somehow behind in confirmations. And, based on that flawed logic, there is some perceived notion that he is entitled to catch-up on confirmations.
The fact is, we have confirmed over 78 percent of President Obama’s district nominees. At this point in his presidency, 75 percent of President Bush’s nominees had been confirmed. President Obama is running ahead of President Bush on district confirmations as a percentage. It is not the fault of Republicans that this President has fewer nominations.
Finally, let me respond to some criticisms I have heard or read lately regarding the Thurmond rule. Last week in the Los Angeles Times, for example, an editorial with the headline “Reject the ‘Thurmond Rule” was based on factual errors and omissions. This editorial echoed many of the Democratic talking points that we hear on the floor.
The suggestion that we are operating any differently than Democrats did in 2004 and 2008 is simply without merit. Democrats stalled and blocked numerous highly qualified circuit nominees during those Presidential election years, including nominees with bipartisan support.
For instance, the Fourth Circuit provides a prime example of the tactics employed by the Democrats. Democrats refused to process Judge Robert Conrad even though he had already been confirmed unanimously as a U.S. Attorney and District Court Judge. Democrats refused to process Judge Glen Conrad even though he had strong bipartisan home state support. Steve Matthews also had strong home-state support yet the Democrats in Committee refused to give him a vote. The Democrats even tried to justify blocking the nomination of U.S. Attorney Rod Rosenstein to the Fourth Circuit by claiming he was doing “too good of a job” as U.S. Attorney to be promoted.
By refusing to give these nominees a vote in Committee, the Democrats engaged in a pocket filibuster of all four of these candidates to the Fourth Circuit. This was at a time when the Fourth Circuit’s vacancy rate was over 25 percent.
The bottom line is that the Democratic leadership has invoked the Thurmond Rule repeatedly to justify stalling nominees, even those with bipartisan support. And, now they doesn’t want us to enforce the Rule that they helped establish.
But as I have pointed out, this President is not being treated differently. In many respects he is being treated better. We have been more than fair. And we shouldn’t have two different sets of rules around here.
With regard to the nominee Mr. McNulty, I support the nomination and congratulate him on confirmation, which I anticipate will happen here in a few minutes.
Mr. McNulty received his B.A. from Yale University, in 1976, and his J.D. from New York University School of Law in 1983. Upon graduation, Mr. McNulty served as a law clerk to Judge Frederick B. Lacey, United States District Judge for the District of New Jersey. After his clerkship, Mr. McNulty began his legal career as a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison. From 1984 through 1987, he worked at the firm handling civil litigation and white-collar criminal defense in both state and federal court.
From 1987 to 1998, he was a federal prosecutor in the U.S. Attorney’s Office for the District of New Jersey. From 1987 to 1991, he was a member of the Criminal Division, where he prosecuted a variety of firearms, narcotics, fraud, and immigration offenses. In 1990, he was selected to head the Organized Crime and Drug Enforcement Task Force which handled the largest cases in the Criminal Division, including RICO prosecutions. From 1991 to 1992, he prosecuted large white-collar fraud cases in the Frauds Division. In 1992, he was appointed Deputy Chief of the Criminal Division. In 1995, he was named Chief of Appeals. In that position, he briefed and argued criminal appeals to the United States Court of Appeals for the Third Circuit, supervised other attorneys in the division, served as Ethics Officer, and acted as general legal adviser to the Office and U.S. Attorney.
In 1998, he joined Gibbons P.C., where he presently is a director and chairs the firm’s appellate practice. He is also a member of the Business & Commercial Litigation department. His time there is equally divided between appeals and trial work. The majority of his clients are corporations. He handles litigation between commercial entities, typically including anti-trust, securities, patent, and contract disputes, while also encompassing constitutional and other claims.
The ABA Standing Committee on the Federal Judiciary unanimously rated Mr. McNulty as “Well Qualified.”