Flood Insurance and Modernization Act

Floor Speech

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Mr. LEE. Mr. President, I rise today to express my support for the minority leader's decision to invoke the longstanding Senate tradition, known as the Leahy-Thurmond rule. Pursuant to this tradition and precedent, the Senate will cease confirming nominees to the Federal courts of appeals until after the Presidential election in November. Many of my colleagues from the other side of the aisle have previously affirmed the propriety of this rule and enforced its standard. For example, in the last year of the Bush administration, the majority leader noted that ``in a Presidential election year, it is always very tough for judges. That is the way it has been for a long time, and that is why we have the Thurmond rule.''

The chairman of the Judiciary Committee, who has cited the Thurmond rule more frequently than any other Senator, has likewise stated that ``in a Presidential election year, after Spring, no judges go through except by the consent of the Republican and Democratic leaders.''

Statements from several of my Democratic colleagues likewise confirm that it is proper to invoke the Leahy-Thurmond rule at this point in a Presidential election year. In 2008, for example, one of my colleagues on the Judiciary Committee argued that for Federal appeals court nominees, once ``it comes to June ..... generally everything stops in an election year.'' Indeed, on June 12 of that same year, another Judiciary Committee colleague stated that the Senate was already ``way past the time of the Thurmond rule.''

History further confirms the propriety of invoking the Leahy-Thurmond rule at this time. It is extremely rare for the Senate to confirm an appeals court nominee after June of a Presidential election year. In fact, it has happened only once in almost two decades, when in 2000 the Republican-controlled Senate confirmed one of President Clinton's nominees. It is simply not true, as comments from some of my colleagues have implied, that in recent Presidential election years we have confirmed appellate court nominees in July, August, or September.

Moreover, this year we have already confirmed five of President Obama's Federal appeals court nominees. This, incidentally, is the same number of appeals court nominees the Senate confirmed in 2008, the most recent Presidential election year on record. In 2004 the Senate confirmed only four such nominees. Indeed, dating back over 100 years, from President William Howard Taft to President Obama, the Senate has confirmed an average of just four appeals court nominees during Presidential election years. This year we have already exceeded the historical average and confirmed five of President Obama's appeals court nominees.

There is no reason to depart further from the historical norm and confirm additional nominees.

The suggestion by some that application of the Leahy-Thurmond rule somehow affects court vacancies deemed ``judicial emergencies'' is false, and recklessly so. Of the four judicial emergencies on the Federal court of appeals, President Obama has nominated only one individual, and because that nomination was so recent, even absent the Leahy-Thurmond rule, that nominee would not be scheduled for a vote anytime soon.

I also remind my colleagues that Democrats enforced the Leahy-Thurmond rule in June 2008, during a time when there were twice as many judicial emergencies in the circuit courts as there are right now. Likewise, the overall vacancy rate on our circuit courts was much higher in June 2004 when President Bush was in the final year of his term. Yet Democrats did not hesitate to block several qualified appellate court nominees in the months leading up to the 2004 Presidential election.

Enforcement of the Leahy-Thurmond rule does not currently apply to district court nominees. This year the Senate has already confirmed 23 of President Obama's district court nominees--many more than were confirmed during comparable years during the President Bush and Clinton Presidencies. And we will continue to confirm more qualified nominees. Application of the Leahy-Thurmond rule, beginning now, will thus not implicate any district court judicial emergencies.

The urgency for such vacancies lies not in the Senate, which to this day has acted responsibly on nominees, but with President Obama, who to this day has failed to nominate individuals for many of these seats.

There are, I add, other good reasons in addition to tradition and historical precedent to enforce the Leahy-Thurmond rule now rather than waiting longer to do so. Doing so now prevents a particular President from packing the courts at the end of his term by appointing influential, life-tenured appellate court judges whose service will span numerous other Presidential administrations.

The Leahy-Thurmond rule also ensures that Presidential politics during an election season will not overshadow or interfere with the Senate's advice and consent role on such judicial nominees.

The last point bears special emphasis. The Constitution assigns to the Senate the right and the duty to advise and consent to the President's judicial and executive branch nominees.

It is essential for the Constitution's separation of powers that the Senate protect its necessary and legitimate role in the nominations process against encroachment by the executive branch of government.

Earlier this year, we witnessed a troubling demonstration of what can happen when the President violates the Constitution's separation of powers and tramples on the Senate's rightful prerogatives in the advise and consent process. On January 4, 2012, at a time when the Senate was conducting brief sessions approximately every 72 hours, President Obama nonetheless bypassed the Senate and unilaterally appointed four significant executive branch nominees. By asserting the power to make recess appointments, even when the Senate--according to its own rules--was not in recess, the President simply ignored the Senate's legitimate constitutional right to advise and consent to nominees made by the President.

President Obama's unconstitutional appointments cut to the very heart of our Constitution's separation of powers and the institutional prerogatives that rightfully belong right here, in this body. Accordingly, since the time of those appointments, I have sought to protect the Senate's interests by opposing President Obama's judicial nominees. I have made clear I would do the same were a Republican President to make similarly unconstitutional appointments under the recess appointments clause.

As the chairman of the Senate Judiciary Committee noted at a recent Judiciary Committee hearing, I have stated my concern with President Obama's unconstitutional recess appointments very clearly, but I have also been, in his words, extremely responsible in my opposition and have not hindered the work of the Senate. In light of President Obama's unconstitutional appointments, it is all the more proper we invoke the Leahy-Thurmond rule now.

I agree with the ranking member of the Senate Judiciary Committee that we should have invoked that rule back in January, at the time of the unconstitutional appointments. By enforcing the Leahy-Thurmond rule now, we will demonstrate for the historical record the Senate did not acquiesce in President Obama's unconstitutional recess appointments and, instead, took action to protect the Senate's institutional prerogatives. When we have done so, I will again be in a position to vote in favor of qualified consensus District Court nominees.

But I will always remain vigilant in seeking to protect the Senate against unconstitutional encroachment by the executive branch. As Members of this body, we have an institutional responsibility to safeguard the Senate's essential advise and consent role and to confirm only those nominees who are properly qualified to serve in the positions for which they have been rightfully nominated.

I yield the floor.

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