[Congressional Record Volume 156, Number 150 (Wednesday, November 17, 2010)]
[Senate]
[Pages S7949-S7952]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, recently I spoke to the Senate on the
occasion of the consideration of the nomination of Jane Branstetter
Stranch of Tennessee to the Sixth Circuit. It was nearly 10 months
after her nomination was favorably reported by the Senate Judiciary
Committee that Senate Republicans finally consented to a time agreement
and vote, despite the support of the senior Senator from Tennessee, a
member of the Republican leadership. Nevertheless, I said then that if
consideration of the Stranch nomination, after months of needless
delay, represented a bipartisan willingness to return to the Senate's
tradition of offering advice and consent without extensive delays, I
welcomed it. I urged the Senate to consider the other 16 judicial
nominations then on the Senate Executive Calendar favorably reported by
the Judiciary Committee without further delay.
Regrettably, since Judge Stranch was approved by a bipartisan
majority on September 13, the Senate has not considered a single
additional judicial nomination, although some were reported as long ago
as January. Indeed,
[[Page S7950]]
during the rest of this work period the list of judicial nominations
stalled on the calendar has grown to 23, including 16 that were
reported by the committee unanimously. Meanwhile judicial vacancies
around the country continue to rise and now number 104. These include
48 vacancies that the Judicial Conference has designated as judicial
emergencies.
The Senate is well behind the pace set by a Democratic majority in
the Senate considering President Bush's nominations during his first 2
years in office. Republicans have allowed the Senate to consider and
confirm only 41 of President Obama's circuit and district court
nominations over the last 2 years. In stark contrast, by this date in
President Bush's second year in office, the Senate with a Democratic
majority had confirmed 78 of his Federal circuit and district court
nominations. That number reached 100 by the end of 2002, all considered
and confirmed during the 17 months I chaired the Senate Judiciary
Committee.
During those 17 months, I scheduled 26 hearings for the judicial
nominees of a Republican President and the Judiciary Committee worked
diligently to consider them. During the 2 years of the Obama
administration, I have tried to maintain that same approach, and the
committee has held 25 hearings for President Obama's Federal circuit
and district court nominees. I have not altered my approach and neither
have the Senate Democrats.
One thing that has changed is that we have been able to hold hearings
for nominees more regularly because we now receive the paperwork on the
nominations, the nominee's completed questionnaire, the confidential
background investigation and the America Bar Association, ABA, peer
review almost immediately after a nomination is made, allowing us to
proceed. During 2001 and 2002, President Bush abandoned the procedure
that President Eisenhower had adopted and that had been used by
President George H.W. Bush, President Reagan and all Presidents for
more than 50 years. Instead, President George W. Bush delayed the start
of the ABA peer review process until after the nomination was sent to
the Senate. That added weeks and months to the timeline in which
hearings were able to be scheduled on nominations.
When I became chairman of the Judiciary Committee midway through
President Bush's first tumultuous year in office, I worked very hard to
make sure Senate Democrats did not perpetuate the ``judge wars'' as
tit-for-tat. Despite that fact that Senate Republicans pocket
filibustered more than 60 of President Clinton's judicial nominations
and refused to proceed on them while judicial vacancies skyrocketed
during the Clinton administration to more than 110, in 2001 and 2002,
during the 17 months I chaired the committee during President Bush's
first 2 years in office, the Senate proceeded to confirm 100 of his
judicial nominees.
By refusing to proceed on President Clinton's nominations while
judicial vacancies skyrocketed during the 6 years they controlled the
pace of nominations, Senate Republicans allowed vacancies to rise to
more than 110 by the end of the Clinton administration. As a result of
their strategy, Federal circuit court vacancies doubled. When Democrats
regained the Senate majority halfway into President Bush's first year
in office, we turned away from these bad practices. As a result,
overall judicial vacancies were reduced during the Bush years from more
than 10 percent to less than four percent. During the Bush years, the
Federal court vacancies were reduced from 110 to 34 and Federal circuit
court vacancies were reduced from a high of 32 down to single digits.
This progress has not continued with a Democratic President back in
office. Instead, Senate Republicans have returned to the strategy they
used during the Clinton administration of blocking the nominations of a
Democratic President, again leading to skyrocketing vacancies. Last
year the Senate confirmed only 12 Federal circuit and district court
judges, the lowest total in 50 years. This year we have yet to confirm
30 Federal circuit and district judges. We are not even keeping up with
retirements and attrition. As a result, judicial vacancies are, again,
over 100 and, again, more than 10 percent.
This trend should alarm the American people who expect justice from
the Federal courts. I will ask consent to have printed in the Record at
the conclusion of my statement a recent column by Attorney General Eric
Holder about the cost to the American system of justice. He writes:
The federal judicial system that has been a rightful source
of pride for the United States--the system on which we all
depend for a prompt and fair hearing of our cases when we
need to call on the law--is stressed to the breaking point.
Last year, 259,000 civil cases and 75,000 criminal cases
were filed in the federal courts, enough to tax the abilities
of the judiciary even when it is fully staffed. But today
there are 103 judicial vacancies--nearly one in eight seats
on the bench. Men and women who need their day in court must
stand in longer and longer lines.
I will also ask consent to have printed in the Record at the
conclusion of my statement a recent article that appeared on Slate by
Dahlia Lithwick and Professor Carl Tobias, pointing out that thousands
of hard-working Americans seeking justice in our courts bear the cost
of justice delayed and denied as a result of vacant courtrooms and
overburdened judges. Many senior and retired judges continue to try to
carry the workload, but we fall farther behind. They write:
It stands to reason that if you can't get into a courtroom,
if the docket is too packed for your case to be heard
promptly, or if the judge lacks sufficient time to address
the issues raised, justice suffers. This will directly affect
thousands of ordinary Americans plaintiffs and defendants
whose liberty, safety, or job may be at stake and for whom
justice may arrive too late, if at all. In some
jurisdictions, civil litigants may well wait two to three
years before going to trial. In jurisdictions with the most
vacancies, it will often take far longer for published
opinions to be issued, or courts will come to rely on more
unpublished opinions. More worrisome still, because the
Speedy Trial Act requires that courts give precedence to
criminal cases, some backlogged courts have had to stop
hearing civil cases altogether.
Earlier this month, I spoke to the Senate about the serious warning
issued by Justice Anthony Kennedy at the Ninth Circuit Conference about
skyrocketing judicial vacancies in California and throughout the
country. He said, ``It's important for the public to understand that
the excellence of the federal judiciary is at risk.'' He noted that
``if judicial excellence is cast upon a sea of congressional
indifference, the rule of law is imperiled.'' A recent editorial in the
Los Angeles Times focuses on the acute problems in the Ninth Circuit
and urges the Senate to act on three nominations to fill vacancies in
Federal courts in California.
President Obama has not made nominations opposed by home State
Senators but has, instead, reached out and worked with home State
Senators from both parties. Likewise, I have respected the minority. We
have tried to develop and improve the cooperation between parties and
branches. It is disappointing to see others take the opposite approach.
We could help to address this vacancies crisis just by acting on the
judicial nominations ready for action but which remain stalled on the
Executive Calendar.
I have worked closely with the ranking Republicans on the Judiciary
Committee while serving as its chairman. I have enjoyed my relationship
with the current Ranking Republican, and I have often thanked Senator
Sessions for his cooperation in working with me to hold hearings and
consider nominations in committee. I was disappointed by his statement
to the Senate last week, however. He is entitled to his own perspective
on these matters, of course. I feel very strongly that Democrats in the
Senate treated President Bush's judicial nominations better and more
fairly than Republicans had those of President Clinton, and certainly
better than President Obama's nominees are currently being treated. The
comparison of vacancy rates and the number of judges confirmed in
President Bush's first 2 years with a Democratic majority--100,
including 17 circuit court nominations--bear that out. I also believe
that there was a clear difference in the smaller number of judicial
nominees opposed by Democratic Senators and the open manner in which
Democrats made clear the basis of their opposition in contrast to the
secret holds and across the board nature of the Republican opposition.
Another indisputable fact is the judicial vacancy crisis during the
Clinton administration that has been recreated since President Obama
was elected. By contrast, during the Bush administration
[[Page S7951]]
Senate Democrats worked to reduce vacancies and the result was that we
did so dramatically.
Indeed, much of Senator Sessions' statement last Wednesday reads like
an attempted justification for some sort of payback. He does concede
that we proceeded promptly to confirm President Bush's district court
nominations, but unfortunately attributes a sinister cast even to those
actions. Sometimes the statement does not merely attribute the wrong
motive or mischaracterize what happened, but is a misstatement of the
facts. For example, the Senator suggested that the Senate confirmed
only 6 of President Bush's 25 circuit court nominees. In fact, we
worked hard to confirm 17 circuit court nominees in the 17 months that
I chaired the committee during 2001 and 2002.
By contrast, only 11 of President Obama's circuit court nominees have
been confirmed these 2 years--this, despite the fact that 17 have, so
far, been reported by the Judiciary Committee. Five of the six circuit
court nominations stalled and still being prevented from being
considered were reported unanimously, one as long ago as January. This
is another good illustration of the difference in how Republican and
Democratic Senators have treated judicial nominations by the President
of the other party.
Democratic Senators did not stall such consensus nominations for
spite or payback. And when we opposed nominations we said why. Unlike
President Bush, President Obama has not made a series of judicial
nominees designed to pack the courts with ideologues. Instead, he has
worked with home State Senators and selected highly qualified,
predominately moderate nominees.
Nor have we sought to force through nominations by ignoring the rules
and traditions of the Senate or the committee, as Republicans did.
Those practices are detailed in my contemporaneous statements at the
time but ignored in the statement made last Wednesday. For example,
when I became chairman in 2001, I made home State Senators' ``blue
slips'' public for the first time, preventing Senators from anonymously
blocking committee action on judicial nominees. That was a bad practice
that led to the pocket filibusters of more than 60 of President
Clinton's judicial nominees. Also ignored in last Wednesday's statement
was the history of earlier filibusters, such as that of the Supreme
Court nomination of Abe Fortas to be the Chief Justice and of President
Clinton's nominations to the Ninth Circuit.
The statement was in many regards ahistorical or anti-historical. In
complaining about a handful of Fourth Circuit nominees in the last 2
years of President Bush's administration, the statement ignored the
fact that we had broken the logjam caused by 8 years of Republican
obstruction of President Clinton's nominations to that circuit and that
the examples cited were after vacancies had been reduced and in light
of opposition from home State Senators to some of the nominees. Indeed,
we might have made even more progress had President Bush not proceeded
for years to make several extreme nominations. The statement also seems
unaware of the work we did to resolve the impasse in the Sixth Circuit,
resulting in every single vacancy in the circuit being filled by
President Bush.
Regrettably, the Senate this year is not being allowed to consider
the consensus, mainstream judicial nominees favorably reported from the
Judiciary Committee. It has taken nearly five times as long to consider
President Obama's judicial nominations as it did to consider President
Bush's during his first 2 years in office. During the first 2 years of
the Bush administration, the 100 judges confirmed were considered by
the Senate an average of 25 days from being reported by the Judiciary
Committee. The average time for confirmed circuit court nominees was 26
days. By contrast, the average time for the 41 Federal circuit and
district and circuit court judges confirmed since President Obama took
office is 90 days and the average time for circuit nominees is 148
days--and that disparity is increasing.
Senate Republicans have refused to allow prompt consideration even to
those consensus nominations that are reported unanimously and without
opposition by the Judiciary Committee. There is no good reason to hold
up consideration for weeks and months of nominees reported without
opposition from the Judiciary Committee. I have been urging since last
year that these consensus nominees be considered promptly and
confirmed.
In 2001 and 2002, the first 2 years of the Bush administration, the
Senate with a Democratic majority confirmed 100 judicial nominees. We
obviously will not reach that level or reduce judicial vacancies as
effectively as we did in those 2 years. What we can do is consider the
23 judicial nominations already on the calendar. That could bring us to
64 Federal circuit and district court confirmations. If we also
completed action on the 11 additional judicial nominees who
participated in September hearings, that could bring us to a
respectable total of 75 circuit and district court confirmations. That
would be in the range of judicial confirmations during President
Reagan's first 2 years (88) and President George H.W. Bush's, 72, but
pale in comparison to the 100 confirmed in the first 2 years of the
George W. Bush administration or those confirmed during President
Clinton's first 2 years, 126.
Mr. President, I ask unanimous consent to have printed in the Record
those materials to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From The Washington Post, Sep. 28, 2010]
Now Vacant: A Confirmation Crisis in our Courts
(By Eric H. Holder, Jr.)
More than a year ago, President Obama nominated Jane
Stranch, a respected Nashville labor lawyer, to a seat on the
U.S. Court of Appeals for the 6th Circuit. That vacancy had
been declared a ``judicial emergency'' because the Sixth
Circuit does not have enough judges to promptly or
effectively handle the court's caseload, leading to serious
delays in the administration of justice to people in
Tennessee and other parts of the 6th Circuit. Yet despite the
fact that Judge Stranch enjoyed the support of both of her
Republican home-state senators and bipartisan support in the
Senate Judiciary Committee, she was forced to wait almost 300
days for an up-or-down vote by the full Senate. When she
finally received that vote earlier this month, she was
confirmed overwhelmingly.
Unfortunately, her story is all too typical. Nominee after
nominee has languished in the Senate for many months, only to
be confirmed by wide bipartisan margins when they finally do
receive a vote. As Congress finishes its last week in session
before the November elections, our judicial system
desperately needs the Senate to act.
Today, 23 judicial nominees--honest and qualified men and
women eager to serve the cause of justice--are enduring long
delays while awaiting up-or-down votes, even though 16 of
them received unanimous bipartisan approval in the Judiciary
Committee. The confirmation process is so twisted in knots
that we are losing ground--there are more vacancies today
than when President Obama took office. The men and women
whose confirmations have been delayed have received high
marks from the nonpartisan American Bar Association, have the
support of their home-state senators (including Republicans),
and have received little or no opposition in committee. These
outstanding lawyers and jurists deserve better, as do
litigants who bring cases to increasingly understaffed
courts.
In the Eastern District of California, in Sacramento, there
are 1,097 cases filed per judge annually. Six months ago, the
president nominated California Judge Kimberly Mueller to help
relieve that workload. Judge Mueller is a distinguished
jurist with seven years' experience as a magistrate judge, a
unanimous rating of well qualified from the American Bar
Association and the unanimous backing of the Senate Judiciary
Committee. Yet she has still not been confirmed.
For the 4th Circuit, the president nominated Albert Diaz,
an experienced state court judge and former Marine and
officer in the Navy's Judge Advocate General Corps, to a seat
on the U.S. Court of Appeals that has been vacant for more
than three years. He was approved unanimously by the Senate
Judiciary Committee in January and is strongly backed by both
of North Carolina's senators. Yet Judge Diaz has waited 242
days for a vote by the full Senate.
In the rotunda outside my Justice Department office, it is
inscribed that ``The United States wins its point whenever
justice is done its citizens in the courts.'' As attorney
general, I have the privilege of leading a strong department
in which public servants seek justice every day. But the
quotation that has greeted attorneys general for the past 70
years serves as a reminder that justice depends on effective
courts. The federal judicial system that has been a rightful
source of pride for the United States--the system on which we
all depend for a prompt and fair hearing of our cases when we
need to call on the law--is stressed to the breaking point.
[[Page S7952]]
Last year, 259,000 civil cases and 75,000 criminal cases
were filed in the federal courts, enough to tax the abilities
of the judiciary even when it is fully staffed. But today
there are 103 judicial vacancies--nearly one in eight seats
on the bench. Men and women who need their day in court must
stand in longer and longer lines.
The problem is about to get worse. Because of projected
retirements and other demographic changes, the number of
annual new vacancies in the next decade will be 33 percent
greater than in the past three decades. If the historic pace
of Senate confirmations continues, one third of the federal
judiciary will be vacant by 2020. If we stay on the pace that
the Senate has set in the past two years--the slowest pace of
confirmations in history--fully half the federal judiciary
will be vacant by 2020.
As Justice Anthony Kennedy recently noted, the ``rule of
law is imperiled'' if these important judicial vacancies
remain unfilled. In 2005, Senate Republican leader Mitch
McConnell called on Congress to return to the way the Senate
operated for over 200 years, and give nominees who have
majority support in the Senate an up-or-down floor vote.
I agree. It's time to address the crisis in our courts.
It's time to confirm these judges.
____
[From Slate.com, Sep. 27, 2010]
Vacant Stares--Why Don't Americans Worry About How an Understaffed
Federal Bench is Hazardous to Their Health?
(By Dahlia Lithwick and Carl Tobias)
The prospect of a federal bench with nearly one out of
every eight judicial seats vacant should scare the pants off
every American. Yet few Americans are as worked up about it
as those of us who think and worry about it a lot. Our
argument was already a tough sell before the threat of global
terrorism and a collapsed economy ate up every moment of the
national political conversation. Now a 10 percent judicial
vacancy rate seems like a Code Beige emergency in a Code Red
world.
Part of the problem is politics: It has often seemed that
the only people screaming for speedy judicial confirmations
are panicked because it's their judges being blocked. The
party not currently in control of the White House and Senate
often sees less crisis than opportunity in a dwindling bench.
Moreover, when the entire judicial selection process has been
as fiercely politicized as it is has become lately, most
Americans may suspect that empty benches might be better for
democracy than full ones. But judicial vacancies are
disastrous for Americans, all Americans, and not merely for
partisan reasons, but also for practical ones. That's why in
a recent speech, Justice Anthony Kennedy warned: ``[I]t's
important for the public to understand that the excellence of
the federal judiciary is at risk. If judicial excellence is
cast upon a sea of congressional indifference, the rule of
law is imperiled.''
Yet this issue, which seems to light up editorial writers
and Brookings scholars with such ease, appears to leave the
rest of you cold. So here we are taking one last crack at
scaring your pants off with some strictly nonpartisan facts
about the dangers of judicial vacancies.
Justice delayed truly is justice denied. There are
approximately 850 lower-court federal judgeships, of which
more than 100 are currently vacant, while 49 openings in 22
states are classified ``judicial emergencies.'' Eighty-three
of these are on the district courts--the trial courts that
decide every important federal question in the country, on
issues ranging from civil rights to environmental, economic,
privacy, and basic freedoms. Whereas judicial obstruction
once reached no further than the federal appeals courts, for
the first time even noncontroversial district court nominees
are being stalled by arcane Senate reindeer games. It stands
to reason that if you can't get into a courtroom, if the
docket is too packed for your case to be heard promptly, or
if the judge lacks sufficient time to address the issues
raised, justice suffers. This will directly affect thousands
of ordinary Americans--plaintiffs and defendants--whose
liberty, safety, or job may be at stake and for whom justice
may arrive too late, if at all. In some jurisdictions, civil
litigants may well wait two to three years before going to
trial. In jurisdictions with the most vacancies, it will
often take far longer for published opinions to be issued, or
courts will come to rely on more unpublished opinions. More
worrisome still, because the Speedy Trial Act requires that
courts give precedence to criminal cases, some backlogged
courts have had to stop hearing civil cases altogether.
Overtaxed federal judges can't do justice at some point.
Take, for instance, the federal court based in Denver, where
five active judges are doing the work that ought to be done
by seven. The Judicial Conference of the United States
suggests the court needs another judgeship and has labeled
the two vacancies a ``judicial emergency'' because the judges
there each carry 593 instead of the 430 cases deemed optimal.
Alliance for Justice today put out a new report on the
jurisdictions designated as judicial emergencies. Among their
findings: Judicial emergencies have more than doubled over
the first 20 months of the Obama administration, and judicial
emergencies now exist in 30 states. In many jurisdictions,
judges who should have retired years ago are still actively
hearing cases on courts that can't afford to lose even one
more judge. This places unfair, undue pressure on every
federal judge now sitting. Most judges have been stoic in the
face of mounting work and caseloads. Few openly complain,
lest they appear to be taking sides in the confirmation wars.
Still the crisis is so urgent that some judges have begun to
speak out: In May, Chief Judge Wiley Daniel of the U.S.
District Court in Denver wrote to the majority and minority
leaders in the Senate urging prompt confirmation and
explaining that lingering vacancies impede public access to
justice. Six highly regarded retired federal judges at the
same time wrote to the senators that the current gridlock is
not tenable for a nation ``that believes in the rule of
law.'' In 1997 and again in 2001, Chief Justice William
Rehnquist admonished the White House and Senate, then in
control of opposite parties, to fill the many vacancies for
the good of the nation. Imagine how you would feel if your
heart surgeon had to perform thousands of surgeries each day.
That's how worried you should be about federal judges forced
to manage ever-expanding caseloads.
Potential judges won't agree to be nominated. Depending on
who's doing the calculations, the average length of time
between being nominated and confirmed has more than
quadrupled in the Obama administration. As a result of
procedural shenanigans in the Senate, nominees may remain in
limbo for months, with careers and law practices stuck on
hold as they await a vote that may never come. Indeed, 6th
Circuit Judge Jane Stranch waited 13 months for a 71-21 vote,
while Judge Albert Diaz, a 4th Circuit nominee, has waited
nearly 11. As the wait for confirmation drags on ever longer,
the best nominees will be inclined to start to wonder whether
it's worth the bother. Many excellent potential nominees may
not even entertain the prospect of judicial service anymore.
As President Stephen Zack, president of the American Bar
Association, recently put it: ``The current gridlock
discourages anyone from subjecting themselves to the judicial
nomination process.''
The more seats remain vacant, the greater the incentive to
politicize the process. In the George W. Bush administration,
the judicial-vacancy rate dropped to 4 percent. Now it's up
to 10 percent again. The stakes become higher and higher as
the opportunity to significantly reshape the federal bench
becomes more real. The incentive for a Senate minority to
obstruct nominees also grows with the vacancy rate. The party
not in control of the White House invariably believes it will
recapture the presidency in the next election and thus has
the opportunity to appoint judges more to its liking.
Accordingly, each nominee obstructed now is another vacancy
reserved for the out-of-power party's president. These
dynamics are evident with the midterm elections approaching:
The process has now essentially shut down. That's why only
one appellate nominee even received floor consideration
between April 23 and Sept. 12 of this year.
The rampant politicization of the selection process is
undermining public respect for the co-equal branches of
government. President George W. Bush's use of the White House
for a ceremony introducing his first 11 appellate nominees
and his promotion of his judicial nominees exacerbated the
sense that federal judgeships were a political prize for the
winning party. Obama has attempted to depoliticize the
confirmation process by naming judges generally regarded as
centrist and moderate--much to the dismay of many liberals.
But it has changed nothing. When the Senate confirmation
process degenerates into cartoonish charges of judicial
unfitness, name-calling, recriminations, and endless
paybacks, the consequences go far beyond the legitimacy of
Congress, to the legitimacy of the courts themselves. As
courts are batted around for partisan political purposes,
nominees and judges appear to be purely political actors--no
different than members of Congress or the president. That
doesn't just hurt judges. It hurts those of us who rely on
judges to deliver just outcomes.
Americans watching the confirmation wars won't ultimately
recall which president named which judge or what the final
vote was. But they may begin to accept as normal an
inaccurate and deeply politicized vision of judges as a bunch
of alternating partisan hacks and a federal bench that is
limping, rather than racing, to do justice.
____________________