[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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