Prepared Floor Statement of Senate Judiciary Committee Ranking Member Chuck Grassley
Stephen A. Higginson to be United States Circuit Judge for the Fifth Circuit
Monday, October 31, 2011
Mr. President:
Today the Senate will vote on the nomination of Stephen A. Higginson to serve as a United States Circuit Judge for the Fifth Circuit, a seat which has been deemed to be a judicial emergency. This is the 15th judicial nomination we will have confirmed this month. With this vote today, we will have confirmed 51 Article III judicial nominees during this Congress. 30 of those confirmations have been for judicial emergencies. Despite this brisk level of activity, we continue to hear complaints about “lack of real progress by the Senate.”
Let me set the record straight regarding the real progress that the Senate has made, with regard to President Obama’s judicial nominees. We have taken positive action on 87 percent of the judicial nominations submitted during this Congress. The Senate has confirmed 71 percent of President Obama’s nominees since the beginning of his Presidency, including two Supreme Court Justices.
We continue to remain ahead of the pace set forth in the 108th Congress under President Bush. So far, we have held hearings on 85 percent of President Obama’s judicial nominees. That is compared to only 79 percent at this point in President Bush’s presidency. I would note we have another nominations hearing scheduled in the Judiciary Committee for this Wednesday. We’ve also reported 76 percent of the judicial nominees received this Congress, with 5 more scheduled for consideration on Thursday. A comparable 75 percent were reported at this time in the 108th Congress.
Critics may dismiss the activity we accomplish in committee as not making real progress. But everyone knows that no votes can take place on the Senate floor until committee action is complete, including hearings and markups.
Furthermore, when it comes to floor action, we are making real progress. We are well ahead in this session, of the confirmation pace of previous sessions of Congress. As I mentioned, after this vote, we will have confirmed 51 judicial nominees during this session of Congress. I would point out that this exceeds the average number of judicial confirmations, going back to the 1st Session of the 97th Congress. That session was the beginning of President Reagan’s first term in 1981. The average since then is 44 judicial confirmations per session. This puts the current Session of Congress in the top 10, over the past 30 years.
This means that during this session, President Obama has had better results with his judicial nominees than President Reagan had in 7 sessions of Congress. It is more confirmed in 5 of the 8 sessions of Congress during President Clinton’s administration. President George W. Bush had 6 sessions of Congress with fewer nominees confirmed. So, insinuations that there is something different about this President, or that he is being treated unfairly, just don’t hold up to analysis.
To support the “lack of real progress,” some would argue that the only valid measure of progress is how quickly a nominee is confirmed after being reported out of committee. But that is only one piece of the confirmation process. Hearings and committee markups are also necessary components. To ignore those elements distorts the picture.
For example, Mr. Higginson was nominated May 9, 2011. He had his hearing 30 days later. The total time from nomination to confirmation is 175 days. Compare this to the record of the nomination of Edith Brown Clement. She was the nominee of President Bush, to be United States Circuit Judge for the Fifth Circuit. Like Mr. Higginson, she is from Louisiana. First nominated on May 9, 2001, her nomination was returned during the August recess that year, and she was renominated on September 4, 2001. She had to wait 148 days for her hearing. The total time from initial nomination to confirmation was 188 days. That is nearly two weeks longer than Mr. Higginson’s confirmation wait.
This is just one example of how cherry-picking one piece of the confirmation process over another can lead to unfounded conclusions. If one argues that Mr. Higginson has been treated unfairly because of how long he has waited for confirmation, then certainly Judge Clement was treated worse. I would note that Judge Clement was approved by the committee by a unanimous vote and confirmed 99-0.
With regard to the matter before us today, I support the nomination of Mr. Higginson. He received his Bachelor of Arts from Harvard College, summa cum laude, in 1983 and his Juris Doctorate from Yale Law School in 1987. Upon graduating from law school, the nominee served as a law clerk for Chief Judge Patricia Wald in the United States Court of Appeals for the D.C. Circuit. He then clerked at the Supreme Court of the United States for Associate Justice Bryon White.
Since these clerkships, Mr. Higginson has served as an Assistant United States Attorney. From 1989 to 1993 he served in the United States Attorney’s Office for the District of Massachusetts. In 1993 he transferred to Eastern District of Louisiana, continuing with criminal trial work and became Chief of Appeals in 1995. From 1997 through 1998 he was detailed by the Department of Justice to work for the United States Department of State as Deputy Director of the Presidential Rule of Law Initiative. In 2004 he became a part-time Assistant United States Attorney while serving as a full-time Associate Professor of law at Loyola University New Orleans, College of Law.
The American Bar Association Standing Committee on the Federal Judiciary has rated Mr. Higginson with a unanimous “Well Qualified” rating.
I thank the Chair and yield the floor.
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