[Congressional Record Volume 154, Number 90 (Tuesday, June 3, 2008)]
[Senate]
[Pages S4961-S4963]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, before the last recess, the Senate
confirmed Judge G. Steven Agee of Virginia to the United States Court
of Appeals for the Fourth Circuit. His confirmation lowered the
remaining vacancies on that circuit to less than there were at the end
of the Clinton administration, when a Republican-controlled Senate had
refused to consider any nominees to the Fourth Circuit during the last
2 years of the Clinton Presidency. The Republican Senate majority used
the Clinton years to more than double circuit court vacancies around
the country. By contrast, we have already reduced circuit court
vacancies by almost two-thirds, in the process reducing them to zero or
only a single vacancy in nearly every circuit. We have already reduced
vacancies among the 13 Federal circuit courts throughout the country
from 32--which is what it was when I became chairman of the Judiciary
Committee in the summer of 2001--to 11, the lowest number of vacancies
in more than a decade.
When Republican Senators are ready to allow us to consider and
confirm the President's nominations to fill the last two remaining
vacancies on the Sixth Circuit, yet another circuit will be without any
vacancies. We will reduce the total number of circuit court vacancies
to single digits for the first time in decades. Lost in all the
agitating from the other side of the aisle is the fact that we have
succeeded in reducing circuit court vacancies to historically low
levels.
In addition, this work period we have the opportunity to complete
Senate consideration of five additional nominees for lifetime
appointment to Federal courts, which are pending on the Senate's
Executive Calendar. The Judiciary Committee has favorably reported the
nominations of Mark Davis of Virginia to fill a vacancy in the Eastern
District of Virginia, David Kays of Missouri to fill a vacancy in the
Western District of Missouri, Stephen Limbaugh of Missouri to fill a
vacancy in the Eastern District of Missouri, William Lawrence of
Indiana to fill a vacancy in the Southern District of Indiana and
Murray Snow of Arizona to fill a vacancy there. In addition, when the
Judiciary Committee considers the nominations of Judge Helene White and
Ray Kethledge to the Sixth Circuit, we will also consider the
nomination of Stephen Murphy to the Eastern District of Michigan. Thus,
with cooperation from across the aisle, the Senate should be in
position to have confirmed four circuit court judges and 11 district
court judges before the Fourth of July recess, for a total of 15
additional Federal judges.
By comparison, during the 1996 session when a Republican Senate
majority was considering the judicial nominees of a Democratic
President in a Presidential election year, not a single judge was
confirmed before the Fourth of July recess--not even one. That was the
same session in which they failed to confirm a single circuit court
nominee.
Another stark comparison is that on June 1, 2000, when a Republican
Senate majority was considering the judicial nominees of a Democratic
President in a Presidential election year, there were 66 judicial
vacancies. Twenty were circuit court vacancies, and 46 were district
court vacancies. Those vacancies were the result of years of Republican
pocket filibusters of judicial nominations. This year, by comparison
there are just 47 total vacancies with only 11 circuit vacancies and 36
district court vacancies. If we can continue to make progress this
month, the current vacancies could be reduced to fewer than 40, with
only 9 circuit court vacancies and 30 district court vacancies.
The history is clear. When Republicans were busy pocket filibustering
Clinton nominees, Federal judicial vacancies grew to more than 100, and
circuit vacancies to more than 30.
When I became chairman for the first time in the summer of 2001, we
quickly--and dramatically--lowered vacancies. The 100 nominations we
confirmed in only 17 months, while working with a most uncooperative
White House, reduced vacancies by 45 percent.
After the 4 intervening years of a Republican Senate majority,
vacancies remained about level.
It is the Democratic Senate majority that has again worked hard to
lower them in this Congress. We have gone from more than 110 vacancies
to less than 50. With respect to Federal circuit court vacancies, we
have reversed course from the days during which the Republican Senate
majority more than doubled circuit vacancies. Circuit vacancies have
been reduced by almost two-thirds and have not been this low since
1996, when the Republican tactics of slowing judicial confirmations
began in earnest.
Consider for a moment the numbers: After another productive month,
just 9
[[Page S4962]]
of the 178 authorized circuit court judgeships will remain vacant--just
9--a vacancy rate down from 18 percent to just 5 percent. With 168
active appellate judges and 104 senior status judges serving on the
Federal Courts of Appeals, there are 272 circuit court judges. I expect
that is the most in our history.
I regret to report that when I tried to expedite consideration of
President Bush's two Sixth Circuit nominations last month, I
encountered only criticism from the Republican side of the aisle, as
did one of the nominees. Senator Brownback publicly apologized for his
actions at the hearing, and I commended him for doing so.
We have now received the updated ABA rating for President Bush's
nomination of Judge Helene White to the Sixth Circuit. She received a
well qualified rating. That did not come as any surprise. She has
served ably on the Michigan state appellate courts and acquired
additional experience in the decade since when she was nominated by
President Clinton and the Republican Senate majority refused to
consider her nomination. The White and Kethledge nominations to the
Sixth Circuit break a logjam after 7 long years.
In light of Republican criticism of my efforts to expedite
consideration of President Bush's Sixth Circuit nominations, I have
said that the nominations would be scheduled for committee
consideration after we received updated ratings from the ABA. Now we
have and I plan to include them on the agenda for the committee's
business meeting on June 12. I trust that all Senators will be prepared
to consider and vote on the nominations at that time. That should
provide the Senate with the opportunity to consider them before the
July 4 recess.
The President has not nominated anyone to 16 current judicial
vacancies. He has refused since 2004 to work with the California
Senators on a successor to Judge Trott on the Ninth Circuit. The
district court vacancies without nominees span from those that arose in
Mississippi and Michigan in 2006, to several from 2007 in Pennsylvania,
Michigan, Indiana and the District of Columbia, to others that arose
earlier this year in Kansas, Virginia, Washington, and several in
Colorado and Pennsylvania.
Disputes over a handful of controversial judicial nominations have
wasted valuable time that could be spent on the real priorities of
every American. I have sought, instead, to make progress where we can.
The result is the significant reduction in judicial vacancies.
The alternative is to risk becoming embroiled in contentious debates
for months. The most recent controversial Bush judicial nomination took
5\1/2\ months of debate after a hearing before Senate action was
possible. I am sure there are some who prefer partisan fights designed
to energize a political base during an election year, but I do not. I
will continue in this Congress, and with a new President in the next
Congress, to work with Senators from both sides of the aisle to ensure
that the Federal judiciary remains independent, and able to provide
justice to all Americans, without fear or favor.
In fact, our work has led to a reduction in vacancies in nearly every
circuit, reducing vacancies on almost every circuit to only one or
none. Both the Second and Fifth Circuits had circuit-wide emergencies
due to the multiple simultaneous vacancies during the Clinton years
with Republicans in control of the Senate. Both the Second Circuit and
the Fifth Circuit now are without a single vacancy. We have already
succeeded in lowering vacancies in the Second Circuit, the Fourth
Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the
Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, the DC Circuit,
and the Federal Circuit. Circuits with no current vacancies include the
Seventh Circuit, the Eighth Circuit, the Tenth Circuit, the Eleventh
Circuit and the Federal Circuit. When we are allowed to proceed with
President Bush's nominations of Judge White and Ray Kethledge to the
Sixth Circuit, it will join that list of Federal circuits without a
single vacancy.
My approach has been consistent throughout my chairmanships during
the Bush Presidency. The results have been positive. Last year, the
Judiciary Committee favorably reported 40 judicial nominations to the
Senate and all 40 were confirmed. That was more than had been confirmed
in any of the three preceding years when a Republican chairman and
Republican Senate majority managed the process.
Still, some partisans seem determined to provoke an election year
fight over nominations. The press accounts are filled with threats of
Republican reprisals. The May 14 issue of Roll Call boasted the
following headline: ``GOP Itching for Fight Over Judges; Reid's Pledge
to Move Three Before Recess Fails to Appease Minority.'' Then in a
recent article in The Washington Times, we read that the Republican
fixation on judges is part of an effort to bolster Senator McCain's
standing among conservatives. There seem to be no steps we could take
to satisfy Senate Republicans on nominations because they are using it
as a partisan issue to rev up their partisan political base.
Among the reasons that Republican complaints about the Fourth Circuit
ring hollow is that the emergency vacancy on the Fourth Circuit from
North Carolina exists only because the Republican Senate majority
refused to consider any of President Clinton's nominees to fill that
vacancy. All four nominees from North Carolina to the Fourth Circuit
were blocked from consideration by the Republican Senate majority. That
also prevented President Clinton from integrating the Fourth Circuit
through appointment of Judge Beaty or Judge Wynn.
Of course, during the Clinton administration, Republican Senators
argued that the Fourth Circuit vacancies did not need to be filled
because the Fourth Circuit had the fastest docket time to disposition
in the country. That was the period when Fourth Circuit vacancies rose
to five. One of those vacancies--to a seat in North Carolina--still
exists because the President insisted on nominating and renominating
Terrence Boyle over the course of 6 years to fill that vacancy. That
highly controversial nomination persisted for years despite the strong
opposition of law enforcement officers from across the country, civil
rights groups, and those knowledgeable and respectful of judicial
ethics opposed the nomination.
The Fourth Circuit now has fewer vacancies than it did when
Republicans claimed no more judges were needed, and fewer vacancies
than at the end of the Clinton administration. I have already said that
once the paperwork on President Bush's nomination of Judge Glen Conrad
to the Fourth Circuit is completed, if there is sufficient time, I hope
to move to that nomination.
This is not the first time we have heard false complaints about our
progress on nominations. One of the Republicans' favorite talking
points is to use a mythical ``statistical average'' of selected years
to argue that the Senate must confirm 15 circuit judges in this
Congress. They only achieve this inflated so-called ``historical
average'' by taking advantage of the high confirmation numbers of
Democratic-led Senates confirming the nominees of President Reagan and
the first President Bush. They ignore their own record of doubling
vacancies during the Clinton administration, including during the 1996
session when the Republican-led Senate refused to confirm a single
circuit court nominee.
They do not like to recall that during the 1996 session, when a
Republican majority controlled the Senate during a Presidential
election year, they refused to confirm any circuit court judges at
all--not one. Their practice of pocket filibustering President
Clinton's judicial nominees led Chief Justice Rehnquist to criticize
them publicly. Chief Justice Rehnquist was hardly a Democratic
partisan. Quite the contrary. Even he was appalled by the actions of
the Republican Senate majority. In his 1996 Year-End Report on the
Federal Judiciary, he wrote:
Because the number of judges confirmed in 1996 was low in
comparison to the number confirmed in preceding years, the
vacancy rate is beginning to climb. When the 104th Congress
adjourned in 1996, 17 new judges had been appointed and 28
nominations had not been acted upon. Fortunately, a
dependable corps of senior judges contributes significantly
to easing the impact of unfilled judgeships. It is hoped that
the Administration and Congress will continue to recognize
that filling judicial vacancies is crucial to the fair and
effective administration of justice.
When that shot across the bow did not lead the Republican Senate
majority to reverse course, Chief Justice
[[Page S4963]]
Rehnquist spoke up, again, in his 1997 Year-End Report on the Federal
Judiciary. It was a salvo from a Republican Chief Justice critical of
the Republican Senate leadership:
Currently, 82 of the 846 Article III judicial offices in
the federal Judiciary--almost one out of every ten--are
vacant. Twenty-six of the vacancies have been in existence
for 18 months or longer and on that basis constitute what are
called ``judicial emergencies.'' In the Court of Appeals for
the Ninth Circuit, the percentage of vacancies is
particularly troubling, with over one-third of its seats
empty.
Judicial vacancies can contribute to a backlog of cases,
undue delays in civil cases, and stopgap measures to shift
judicial personnel where they are most needed. Vacancies
cannot remain at such high levels indefinitely without
eroding the quality of justice that traditionally has been
associated with the federal Judiciary. Fortunately for the
Judiciary, a dependable corps of senior judges has
contributed significantly to easing the impact of unfilled
judgeships.
It was only after the scorching criticism by a Republican Chief
Justice that the Republican Senate majority modified its approach in
order to allow some of the nominations that had been held back for
years to finally proceed. Having built up scores of vacancies, some
were allowed to be filled while the Republican Senate majority
carefully kept vacant circuit court positions to be filled by President
Clinton's successor. It is in that context that Republican claims of
magnanimity must be seen for what it was. It is in that context that
the 8 circuit confirmations in 2000 must be evaluated while the
Republican Senate majority returned 17 circuit nominations to President
Clinton at the end of that session without action.
By contrast, the Democratic Senate majority has worked steadily and
steadfastly to lower vacancies and make progress, and we have. When
Senate Republicans allow the Senate to confirm President Bush's Sixth
circuit nominees, we will have achieved the average number of circuit
confirmations the Republican Senate majority achieved in presidential
election years and lowered circuit vacancies to an historically low
level.
Further, the Republican effort to create an issue over judicial
confirmations is sorely misplaced. Americans are now facing an economic
recession, massive job losses of 232,000 in the first 3 months of this
year, increasing burdens from the soaring price of gas, and a home
mortgage foreclosure and credit crisis.
Last month, the Commerce Department reported the worst plunge in new
homes sales in two decades. The press reported that new home sales fell
8.5 percent to the slowest sales pace since October 1991, and the
median price of a home sold in March dropped 13.3 percent compared to
the previous year. That was the biggest year-over-year price decline in
four decades. You would have to go back to July 1970 to find a larger
decline. Sales of existing homes also fell in March, as did employment
and orders for big ticket manufactured goods, both of which fell for
the third month in a row.
Unfortunately, this bad economic news for hard-working Americans is
nothing new under the Bush administration. During the Bush
administration, unemployment is up more than 20 percent; the price of
gas has more than doubled and is now at a record high national average
of over $3.94; trillions of dollars in budget surplus have been turned
into trillions of dollars of debt, with an annual budget deficit of
hundreds of millions of dollars. According to a recent poll, 81 percent
of Americans today believe that our country is headed in the wrong
direction. It costs more than $1 billion a day--$1 billion a day--just
to pay down the interest on the national debt and the massive costs
generated by the disastrous war in Iraq. That's $365 billion this year
that would be better spent on priorities like health care for all
Americans, better schools, fighting crime, and treating diseases at
home and abroad.
In contrast, one of the few numbers actually going down as the
President winds down his tenure is that of judicial vacancies. Senate
Democrats have worked hard to make progress on judicial nominations,
lowering circuit court vacancies by almost two-thirds from the level to
which the Republican Senate majority had build them. Any effort to turn
attention from the real issues facing Americans to win political points
with judicial nominations is neither prudent, nor productive.
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