[Congressional Record Volume 156, Number 152 (Friday, November 19, 2010)]
[Senate]
[Pages S8116-S8121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, in the aftermath of the November election
returns, there was talk on all sides about working together. We can do
so right now, without further delay, and in the interests of the
American people. As of today there are more than 100 vacancies on the
Federal courts around the country, 50 of them for vacancies deemed
judicial emergencies by the Administrative Office of the U.S. Courts.
The Senate has ready for consideration and confirmation 23 judicial
nominees of the President, all of whom have had hearings before the
Judiciary Committee and have been reported favorably to the Senate by a
majority of that committee. Sixteen of these judicial nominees were
reported unanimously. The Senate can confirm those 16 nominees today,
and we can then schedule such debate as needed on the remaining seven.
Our working together to do so would send the right message to the
American people. Let's work together and approve these nominations
without additional delay. Let's end the gridlock. Let's move forward.
As the Senate recessed for the elections, we were not allowed to
consider and confirm any of the 23 judicial nominations pending on the
Senate Executive Calendar--this despite the judicial vacancies crisis
in our Federal courts. As of today there are 108 current judicial
vacancies. We already know of 20 future vacancies. In addition, the
Senate has not acted on the request by the Judicial Conference of the
United States to authorize 56 additional judges, which will allow the
Federal judiciary to do its work. Accordingly, the Federal judiciary is
currently more than 180 judges short of those needed.
At the end of September, the President of the United States sent a
letter to Senate leaders expressing his justifiable concern with the
pace of judicial confirmations. The President wrote that the American
people and the Federal judiciary suffer from this inaction and that a
minority of Senators has, in his words ``systematically and
irresponsibly used procedural maneuvers to block or delay confirmation
votes on judicial nominees--including nominees that have strong
bipartisan support and the most distinguished records.''
All of these nominees have the backing of their home State Senators.
Indeed, President Obama has worked hard with home State Senators
regardless of party affiliation, and by so doing has done his part to
restore comity to the process.
Sixteen judicial nominees have been delayed despite the fact that
they were reported without a single vote in opposition from the Senate
Judiciary Committee. Regrettably, despite the President's efforts and
his selection of outstanding nominees the Senate has not reciprocated
by promptly considering his consensus nominees. To the contrary, as the
President has pointed out, nominees are being stalled who, if allowed
to be considered, would receive unanimous or near unanimous support, be
confirmed, and be serving in the administration of justice throughout
the country. This is counterproductive.
Like the President, I welcome debate and a vote on those few nominees
that some Republican Senators would oppose. Nominees like Benita
Pearson of Ohio, William Martinez of Colorado, Louis Butler of
Wisconsin, Edward Chen of California, John McConnell of Rhode Island,
Goodwin Liu of California and Robert Chatigny of Connecticut. I have
reviewed their records and considered their character, background and
qualifications. I have heard the criticisms of the Republican Senators
on the Judiciary Committee as they have voted against this handful of
nominees. I disagree, and believe the Senate would vote, as I have, to
confirm them. That they will not be conservative activist judges should
not disqualify them from serving.
But that is not what is happening. We are not debating the merits of
those nominations, as Democratic Senators did when we opposed the most
extreme handful of nominees of President Bush. What is happening is
that judicial confirmations are being stalled virtually across the
board. What is new and particularly damaging is that 16 judicial
nominees who were all reported unanimously by the Senate Judiciary
Committee, without Republican opposition, are still being delayed.
These nominees include Albert Diaz and Catherine Eagles of North
Carolina. They are both supported by Senator Hagan and Senator Burr.
Sadly, Senator Burr's support has not freed them from the across the
board Republican hold on all judicial nominees. Judge Diaz was reported
unanimously in January, almost 11 months ago, and still waits for
agreement from the minority in order for the Senate to consider his
nomination so that he may be confirmed.
Also being delayed for no good reason from joining the bench of the
most overloaded Federal district in the country in the Eastern District
of California is Kimberly Mueller, whose nomination was reported last
May, more than 6 months ago, without any opposition. Her nomination is
one of four circuit and district nominations to positions in the Ninth
Circuit currently on the Executive Calendar that Republicans are
blocking from Senate consideration. In addition to the Liu and Chen
nominations, the nomination of Mary Murguia from Arizona to the Ninth
Circuit has been stalled since August despite the strong support of
Senator Kyl, the assistant Republican leader.
I want to put into the Record a letter we received this week from
Ninth Circuit Chief Judge Alex Kozinski, a President Reagan appointee,
and the other members of the Judicial Council of the Ninth Circuit
writing ``to emphasize our desperate need for judges'' in the Nation's
largest Federal circuit. They write that ``[c]ourts cannot do their
work if authorized judicial positions remain vacant'' and urge ``that
the Senate act on judicial nominees
[[Page S8117]]
without delay.'' This letter echoes the serious warning I have
previously spoken about 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.''
The District of Columbia suffers from four vacancies on its Federal
District Court. Two nominees could help that court, but they are now
being delayed from final consideration. Beryl Howell was reported by
the committee unanimously. She is well known to many of us from her 10
years of service as a counsel on the Senate Judiciary Committee. She is
a decorated former Federal prosecutor and the child of a military
family. Robert Wilkins was also reported without opposition. The
distinguished Chief Judge of the District Court, Chief Judge Royce
Lamberth sent a recent letter to Senate leaders urging prompt action on
these nominations.
John Gibney of Virginia, James Bredar and Ellen Hollander of
Maryland, Susan Nelson of Minnesota, Edmond Chang of Illinois, Leslie
Kobayashi of Hawaii, and Denise Casper of Massachusetts are the other
district court nominees reported unanimously from the Judiciary
Committee and could have been confirmed as consensus nominees long ago.
Another district court nominee is Carlton Reeves of Mississippi, who
is supported by Senator Cochran and is a former president of the
Magnolia Bar Association. Only Senator Coburn asked to be recorded as
opposing his nomination. I believe Mr. Reeves would receive a strong
bipartisan majority vote for confirmation.
Counting Judge Diaz, there are five consensus nominees to the circuit
courts who are being stalled. Judge Ray Lohier of New York would fill
one of the four current vacancies on the United States Court of Appeals
for the Second Circuit. He is another former prosecutor with support
from both sides of the aisle. His confirmation has been stalled for no
good reason for more than 6 months, as well. Scott Matheson is a Utah
nominee with the support of Senator Hatch who was reported without
opposition. Mary Murgaia is from Arizona and is supported by Senator
Kyl and was reported without opposition. Finally, Judge Kathleen
O'Malley of Ohio, nominated to the Federal circuit, was reported
without opposition.
Many of these nominees could have been considered and confirmed
before the August recess. All of them could have been considered and
confirmed before the October recess. They were not. They were not
because of Republican objections that, I suspect, have nothing to do
with the qualifications or quality of these nominees. These are not
judicial nominations whose judicial philosophy Republicans question.
The President noted in his September letter to Senate leaders that
the ``real harm of this political game-playing falls on the American
people, who turn to the courts for justice'' and that the unnecessary
delay in considering these noncontroversial nominations ``is
undermining the ability of our courts to deliver justice to those in
need . . . from working mothers seeking timely compensation for their
employment discrimination claims to communities hoping for swift
punishment for perpetrators of crimes to small business owners seeking
protection from unfair and anticompetitive practices.''
President Obama has reached out to Republican home State Senators
regarding his judicial nominations. They should reciprocate. As the
President said in his inaugural address calling for a new era of
responsibility, he called for ``an end to the petty grievances . . .
recriminations and worn-out dogmas that for far too long have strangled
our politics.'' The President recalled the words of Scripture as he
urged ``the time has come to set aside childish things.'' Let the
Senate end this across the board blockade against confirming
noncontroversial judicial nominees. Democrats did not engage in such a
practice with President Bush and Republicans should not continue their
practice any longer. With more than 100 vacancies plaguing the Federal
courts, we do not have the luxury of indulging in such games.
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. By this date in President Bush's second year in
office, the Senate, with a Democratic majority, had confirmed 100 of
his Federal circuit and district court nominations. They were all
considered and confirmed during the 17 months I chaired the Senate
Judiciary Committee. Not a single nominee reported by the Judiciary
Committee remained pending on the Senate's Executive Calendar at the
end of the Congress.
In sharp contrast, during President Obama's first 2 years in office,
the minority has allowed only 41 Federal circuit and district court
nominees to be considered by the Senate. In 2002, we proceeded in the
lame duck session after the election to confirm 20 of President Bush's
judicial nominees. This year there are 23 judicial nominations ready
for Senate consideration and another 11 noncontroversial nominations on
the committee's business agenda that could have been reported out
yesterday. Those 11 nominations were needlessly held over another two
weeks by Republican Senators but could be reported to the Senate at our
next business meeting. That is more than 30 additional confirmations
that could be easily achieved with a little cooperation from the
minority. That would increase the confirmations from the historically
low level of 41, where it currently stands, to between 70 and 75. That
would be in the range of judicial confirmations during President George
H.W. Bush's first 2 years, 70, while resting far below President
Reagan's first 2 years, 87, and 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, 127.
I come before the Senate today to make a proposal to end this
impasse. This is a proposal the American people will understand and, I
believe, support. It, too, has scriptural roots. I ask the Republican
leadership to follow the Golden Rule with respect to these judicial
nominations. This is not complicated. It is something we teach our
children from a young age. It is a basic rule of good behavior. Do unto
these nominations as you would have done to the nominations of a
Republican President. Following this basic precept would lead to the
confirmation without further delay of the nominations reported without
opposition. They can be confirmed today. If someone wishes to ask for
rollcall votes on these nominations, tell the majority leader so that
he can schedule that vote without further delay. End this across the
board stall on judicial nominations by allowing the many
noncontroversial nominations to proceed without further objection,
obstruction or delay.
The new tactic of objecting to consideration of noncontroversial
nominations is an escalation of the so-called ``judge wars.'' The
attempted justification as some kind of tit-for-tat is wrong. But my
proposal does not depend on whether you agree with me or side with
partisans from across the aisle. While seeking to justify ``an eye for
an eye'' would require a look back and a factual accounting, the Golden
Rule is a rule of current and prospective behavior. I hope those on the
other side will remember our shared values and adopt the Golden Rule
going forward from this day. That would be a step toward returning to
our Senate traditions and allow the Senate better to fulfill its
responsibilities to the American people and the Federal judiciary.
During these 17 months I chaired the Judiciary Committee during
President Bush's first 2 years, 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. The
committee held its 25th hearing for President Obama's Federal circuit
and district court nominees this week. I have not altered my approach
and neither have Senate Democrats.
One thing that has changed is that we now receive the paperwork on
the nominations, the nominee's completed questionnaire, the
confidential background investigation and the American
[[Page S8118]]
Bar Association, ABA, peer review almost immediately after a nomination
is made, allowing us to proceed to hearings more quickly. 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 the 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, in 2001 and 2002, during the 17
months I chaired the committee during President Bush's first two 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.
Regrettably, the Senate 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.
This vacancies crisis alarms the President of the United States. It
alarms Supreme Court Justices. It alarms the Federal Bar Association.
It alarms the American Bar Association. I ask unanimous consent that
the President's September 30 letter, Chief Judge Lamberth's November 4
letter, and statements by the Federal Bar Association and American Bar
Association be printed in the Record at the conclusion of my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. LEAHY. 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. If Senators would follow
the Golden Rule, that would happen without further delay.
I ask unanimous consent that the Judicial Council letter be printed
in the Record.
There being no objection the material was orderd to be printed in the
Record, as follows:
November 15, 2010.
Hon. Harry Reid,
Majority Leader,
U.S. Senate, Washington, DC.
Hon. Mitch McConnell,
Minority Leader,
U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Chair, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Gentlemen: We write on behalf of the courts of the Ninth
Circuit. As you know, the Ninth Circuit is by far the largest
federal circuit in the country, encompassing the 9 western
states, plus the territory of Guam and the Commonwealth of
the Northern Mariana Islands. Approximately one fifth of the
population of the United States lives within the borders of
the Ninth Circuit. Our case-load reflects the diversity of
our territory and the people that inhabit it and is heavily
impacted by increased immigration enforcement, drug
interdiction activities, prison litigation, bankruptcy and
environmental cases--to name just a few of the most active
areas.
In order to do our work, and serve the public as Congress
expects us to serve it, we need the resources to carry out
our mission. While there are many areas of serious need, we
write today to emphasize our desperate need for judges. Our
need in that regard has been amply documented (See attached
March 2009 Judicial Conference Recommendations for Additional
Judgeships). Courts cannot do their work if authorized
judicial positions remain vacant.
While we could certainly use more judges, and hope that
Congress will soon approve the additional judgeships
requested by the Judicial Conference, we would be greatly
assisted if our judicial vacancies--some of which have been
open for several years and declared ``judicial
emergencies''--were to be filled promptly. We respectfully
request that the Senate act on judicial nominees without
delay.
Sincerely,
Alex Kozinski, Chief Judge, Ninth Circuit;
Sidney R. Thomas, Circuit Judge, Ninth Circuit;
Ronald M. Gould, Circuit Judge, Ninth Circuit;
Audrey B. Collins, Chief Judge, Central District of
California;
Vaughn R. Walker, Chief Judge, Northern District of
California;
Procter Hug, Jr., Senior Judge, Ninth Circuit;
Raymond C. Fisher, Circuit Judge, Ninth Circuit;
Johnnie B. Rawlinson, Circuit Judge, Ninth Circuit;
Roger L. Hunt, Chief Judge, District of Nevada;
Robert H. Whaley, Senior Judge, Eastern District of
Washington.
chief judges, u.s. district courts of the ninth circuit
Ralph R. Beistline, Chief Judge, District of Alaska;
Irma E. Gonzalez, Chief Judge, Southern District of
California;
Susan Oki Mollway, Chief Judge, District of Hawaii;
Richard F. Cebull, Chief Judge, District of Montana;
Lonny R. Suko, Chief Judge, Eastern District of
Washington;
Anthony W. Ishii, Chief Judge, Eastern District of
California;
Frances Marie Tydingco-Gatewood, Chief Judge, District of
Guam;
B. Lynn Winmill, Chief Judge, District of Idaho;
Ann L. Aiken, Chief Judge, District of Oregon;
Robert S. Lasnik, Chief Judge, Western District of
Washington.
____
Exhibit 1
The White House,
Washington, DC, September 30, 2010.
Hon. Harry Reid,
Majority Leader,
U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Chairman, Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Mitch McConnell,
Republican Leader,
U.S. Senate, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Senator Reid, Senator McConnell, Senator Leahy, and
Senator Sessions: I write to express my concern with the pace
of judicial confirmations in the United States Senate.
Yesterday, the Senate recessed without confirming a single
one of the 23 Federal judicial nominations pending on the
Executive Calendar. The Federal judiciary and the American
people it serves suffer the most from this unprecedented
obstruction. One in eight seats on the Federal bench sits
empty, and the Administrative Office of the U.S. Courts has
declared that many of those vacancies constitute judicial
emergencies. Despite the urgent and pressing need to fill
[[Page S8119]]
these important posts, a minority of Senators has
systematically and irresponsibly used procedural maneuvers to
block or delay confirmation votes on judicial nominees--
including nominees that have strong bipartisan support and
the most distinguished records. The minority has even been
blocking non-controversial nominees--a dramatic shift from
past practice that could cause a crisis in the judiciary.
The Judiciary Committee has promptly considered my judicial
nominees. Nonetheless, judicial confirmation rates in this
Congress have reached an all-time low. At this point in the
prior Administration (107th Congress), the Senate had
confirmed 61% of the President's judicial nominations. By
contrast, the Senate has confirmed less than half of the
judicial nominees it has received in my Administration.
Nominees in the 107th Congress waited less than a month on
the floor of the Senate before a vote on their confirmation.
The men and women whom I have nominated who have been
confirmed to the Courts of Appeals waited five times longer
and those confirmed to the District Courts waited three times
longer for final votes.
Right now, 23 judicial nominees await simple up-or-down
votes. All of these nominees have the strongest backing from
their home-state Senators--a fact that usually counsels in
favor of swift confirmation, rather than delay. Sixteen of
those men and women received unanimous support in the
Judiciary Committee. Nearly half of the nominees on the floor
were selected for seats that have gone without judges for
anywhere between 200 and 1,600 days. But despite these
compelling circumstances, and the distinguished careers led
by these candidates, these nominations have been blocked.
Judge Albert Diaz, the well-respected state court judge I
nominated to the U.S. Court of Appeals for the Fourth
Circuit, has waited 245 days for an up-or-down vote--more
than 8 months. Before becoming a judge, Diaz served for over
10 years in the United States Marine Corps as an attorney and
military judge. If confirmed, he would be the first Hispanic
to sit on the Fourth Circuit. The seat to which he was
nominated has been declared a judicial emergency. Judge Diaz
has the strong support of both of North Carolina's Senators.
Senator Burr has publicly advocated for Judge Diaz to get a
final vote by the Senate. And just before the August recess,
Senator Hagan went to the floor of the Senate to ask for an
up-or-down vote for Judge Diaz. Her request was denied.
We are seeing in this case what we have seen in all too
many others: resistance to highly qualified candidates who,
if put to a vote, would be unanimously confirmed, or
confirmed with virtually no opposition. For example, Judge
Beverly Martin waited 132 days for a floor vote--despite
being strongly backed by both of Georgia's Republican
Senators. When the Senate finally held a vote, she was
confirmed to the Eleventh Circuit unanimously. Jane Stanch
was recently confirmed by an overwhelming majority of the
Senate, after waiting almost 300 days for a final vote. Even
District Court nominees have waited 3 or more months for
confirmation votes--only to be confirmed unanimously.
Proceeding this way will put our judiciary on a dangerous
course, as the Department of Justice projects that fully half
of the Federal judiciary will be vacant by 2020 if we
continue on the current pace of judicial confirmations. The
real harm of this political game-playing falls on the
American people, who turn to the courts for justice. By
denying these nominees a simple up-or-down vote, the
Republican leadership is undermining the ability of our
courts to deliver justice to those in need. All Americans
depend on having well-qualified men and women on the bench to
resolve important legal matters--from working mothers seeking
timely compensation for their employment discrimination
claims to communities hoping for swift punishment for
perpetrators of crimes to small business owners seeking
protection from unfair and anticompetitive practices.
As a former Senator, I have the greatest respect for the
Senate's role in providing advice and consent on judicial
nominations. If there is a genuine concern about the
qualifications of judicial nominees, that is a debate I
welcome. But the consistent refusal to move promptly to have
that debate, or to confirm even those nominees with broad,
bipartisan support, does a disservice to the greatest
traditions of this body and the American people it serves. In
the 107th Congress, the Judiciary Committee reported 100
judicial nominees, and all of them were confirmed by the
Senate before the end of that Congress. I urge the Senate to
similarly consider and confirm my judicial nominees.
Sincerely,
Barack Obama.
____
U.S. District Court
for the District of Columbia,
Washington, DC, November 4, 2010.
Re: Judicial Vacancies--United States District Court for the
District of Columbia.
Hon. Harry Reid,
Majority Leader, U.S. Senate,
The Capitol, Washington, DC.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
The Capitol, Washington, DC.
Dear Senator Reid and Senator McConnell: On behalf of the
judges of the United States District Court for the District
of Columbia, I request that the Senate act soon to fill the
vacancies that exist at our Court.
Of our 15 authorized judgeships, we currently have four
vacancies. One has been vacant since January 2007. With the
additional vacancy that will result from Judge Ricardo M.
Urbina's assumption of senior status, effective January 31,
2011, this Court faces the prospect of having only 10 of its
15 authorized judgeships filled. The severe impact of this
situation already is being felt and will only increase over
time. The challenging caseload that our Court regularly
handles includes many involving national security issues, as
well as other issues of national significance. A large number
of these complex, high-profile cases demand significant time
and attention from each of our judges.
Without a complement of new judges, it is difficult to
foresee how our remaining active judges will be able to keep
up with the heavy volume of cases that faces us. A 33 percent
vacancy ratio is quite extraordinary.
Two nominees (Beryl Howell and Robert Wilkins) have been
reported out of the Senate Judiciary Committee and await
floor votes; two nominees (James Boasberg and Amy Jackson)
have had their hearings and hopefully will soon be reported
out of Committee.
We hope the Senate will act quickly to fill this Court's
vacancies so the citizens of the District of Columbia and the
Federal Government and other litigants who appear before us
continue to enjoy the high quality of justice they deserve.
Sincerely,
Royce C. Lamberth,
Chief Judge.
____
American Bar Association,
Chicago, IL, August 5, 2010.
Hon. Barack Obama,
President of the United States of America,
The White House, Washington, DC.
Hon. Harry Reid,
Majority Leader,
U.S. Senate, Washington, DC.
Hon. Mitch McConnell,
Minority Leader,
U.S. Senate, Washington, DC.
Hon. Patrick Leahy,
Chair, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Dear President Obama, Majority Leader Reid, Minority Leader
McConnell, Chairman Leahy, and Senator Sessions: Now that the
Senate has concluded another historic debate and vote on a
nominee to the U.S. Supreme Court and is about to recess for
its summer break, I am writing to express the American Bar
Association's mounting concern over the persistently high
number of judicial vacancies on our federal district courts
and courts of appeals. I urge you, upon your return to
Washington in September, to make the filling of judicial
vacancies a priority for the Administration and for the
Senate. As lawyers who represent our clients in federal
courts across this nation, members of the American Bar
Association know first hand that longstanding vacancies and
protracted delays in the nomination and confirmation process
do great harm to the federal judiciary and to public life.
Despite the confirmation of 37 Article III judges during
the 111th Congress, the vacancy rate has not dropped below 10
percent since last August. For the past six months, the
vacancy rate has remained at over 11 percent, and the number
of vacancies has hovered around the 100 mark. The lack of
progress in reducing the vacancy rate this session is
especially worrisome in light of the number of judges who
have reached, or are fast approaching, retirement age:
eighteen judges have announced their intention to retire in
the next year, and several additional vacancies will no doubt
arise as a result of judicial elevations, deaths and
resignations. If the nomination and confirmation process does
not speed up significantly, confirmations will not even keep
pace with the rate of attrition. The high number of
vacancies, combined with the low number of confirmations, has
created a problem that is fast approaching crisis
proportions.
Vacancies have different effects on different courts. Those
courts with relatively normal caseloads per judgeship and a
sufficient number of active judges may be able to absorb the
extra workload and operate normally if vacancies are filled
within a reasonable time. In contrast, courts that already
are operating with staggering caseloads and too few
authorized judgeships are strained beyond capacity by
unfilled vacancies and are unable to keep up with the
workload.
In these jurisdictions, persistent vacancies make it
impossible for the remaining judges on the court to give each
case the time it deserves; community and business life
suffers because shorthanded courts have no choice but to
delay civil trial dockets due to the Speedy Trial Act; and
courts are forced to adopt time-saving procedures, some of
which may serve efficiency at the price of altering the
delivery and quality of justice over time in ways not
intended. The harm caused by persistent vacancies on these
courts may reach into the future, too: if no abatement of
these conditions is in sight, the specter of this kind of
work environment is likely to result in additional judicial
retirements and resignations and deter excellent attorneys
from seeking positions on the federal bench.
[[Page S8120]]
Lawyers who practice regularly in the federal courts and
their clients who expect timely judicial resolution of their
disputes are deeply concerned that the partisanship that has
long characterized the process and the persistently high
number of vacancies are creating strains that will inevitably
reduce the quality of our justice system and erode public
confidence in the independence and impartiality of our
federal courts. This is a result we, as a nation, can ill-
afford: all three branches must be robust and strong to
advance the important work of government.
We urge you to take immediate action to avert a potential
crisis and preserve the quality and vitality of the federal
judiciary, and we offer the following suggestions:
1. The President and the Senate should make the prompt
filling of federal judicial vacancies a priority. Each party
to the process should commit sufficient time and resources to
the endeavor, and resolve to work cooperatively and across
the political aisle to reduce the vacancy rate as quickly as
possible. A commitment should be made to cultivate a process
that is dominated by common purpose and a spirit of mutual
respect and bipartisan cooperation.
Politics and bipartisanship are not mutually exclusive.
Even though the judicial nomination and confirmation process
is political by design and gives each branch an opportunity
to exercise a check on the quality of the federal bench, it
should not serve as a battleground for other political
disputes. A renewed spirit of bipartisanship is essential to
reducing the backlog of vacancies and improving the process.
2. The Administration should make a concerted effort to
shorten the time between vacancy and nomination and to submit
a nomination to the Senate for every outstanding Article III
judicial vacancy. The Administration should make a special
effort to act with due diligence to nominate individuals to
the vacant judicial seats that the Administrative Office of
the United States Courts has classified as ``judicial
emergencies'' (42 now exist), based on a combination of the
length of time the seat has been vacant and the number of
weighted or adjusted case filings for that seat.
We commend the Administration for its commitment to engage
in meaningful prenomination consultation with home-state
senators, a concept that the ABA endorsed in 2007 as a means
to reduce partisanship. As a result, many nominations have
had the backing of both home-state senators, regardless of
party affiliation. Unfortunately, even though prenomination
consultation has increased bipartisan accord during the
initial phases of the process, it has not insulated nominees
from partisan politics on the Senate floor: senators have
blocked or delayed the consideration of numerous nominees who
have the support of their home-state senators as well as the
overwhelming support of the Senate Judiciary Committee.
3. The Senate should give every nominee an up-or-down vote
within a reasonable time after the nomination is reported by
the Senate Judiciary Committee.
Dilatory tactics have been used repeatedly to stall Senate
floor consideration of judicial nominees, starting with the
first nomination to reach the floor for a vote. Even though
the Senate has confirmed 25 nominees this session, the Senate
Judiciary Committee has reported out nominees far faster than
the Senate has scheduled votes. As a result, the backlog of
nominees awaiting floor action has steadily increased over
the course of the session.
Twelve of the 21 nominees currently awaiting floor
consideration were approved by unanimous consent, unanimous
vote, or voice vote of the committee; two were approved with
little dissent, and only seven received significant
opposition. That almost two-thirds of them had no or little
opposition in committee, combined with the fact that many
prior nominees subjected to delayed floor consideration
ultimately were confirmed by unanimous or almost unanimous
vote, strongly suggests that the failure to schedule timely
floor votes on many pending nominees has little or nothing to
do with their qualifications.
Tactics to delay votes on nominees that are launched for
reasons not associated with their qualifications blatantly
inject politics into the process. Such tactics waste the time
of the Senate and increase the time a nominee is in limbo.
Worst of all, they needlessly deprive the federal courts of
the judges they sorely need.
Senate leaders should seek to avoid scheduling delays over
nominees who have bipartisan support and should discourage
and dissuade their colleagues from using the judicial
confirmation process to advance or defeat other legislative
objectives. If legitimate concerns are raised over a
nominee's qualifications for a lifetime appointment to the
federal bench, sufficient time should be scheduled to permit
the Senate to engage in full debate. The objective should not
be to rush consideration of nominees whose qualifications are
questioned, but to assure timely consideration of every
judicial nominee whose nomination has been approved by the
Senate Judiciary Committee and forwarded to the Senate for a
confirmation vote.
We urge all members of the Senate to remain cognizant of
the central importance of a fully staffed federal judiciary
and to make an effort to reach across the aisle to try to
find constructive ways to support the judiciary and protect
it from excessive political zeal. We believe that a true
respect for the importance of the federal courts will best
inform each senator's decision with regard to action on
pending judicial nominations.
Our judicial system is predicated on the principles that
each case deserves to be evaluated on its merits, that
justice will be dispensed even-handedly, and that justice
delayed is justice denied. There may be disagreements with
individual decisions rendered by the federal courts, but few
would dispute their essential role in our system of
government and their impact on daily life. Congress should
take action to support, not undermine, the vital work of the
federal courts.
We urge the President and the Senate to take all necessary
steps to fill existing vacancies promptly and to restore
bipartisan accord to the nomination and confirmation process
so that the federal courts will not be deprived of the judges
they need to do their important work.
Sincerely,
Carolyn B. Lamm,
President.
____
[From the Washington Watch, Oct. 2010]
October 201: Vacancy Signs at the Federal Courthouse
(By Bruce Moyer)
The federal judicial confirmation process is at one of its
most dysfunctional junctures in American history, and its
failure to move nominees has brought about a vacancy crisis
in our federal courts. This is not a partisan issue with
shades of black and white; the breakdown in the Senate owes
itself as much to one party as the other. This is a national
issue that speaks to the country's declining appreciation for
its courts, the increasing corrosiveness of our politics, and
the rising abuse in the Senate of its procedures.
As the Senate departed Washington on Sept. 30 for a six-
week election recess, 103 federal Article III judgeships
stood vacant, equaling nearly one out of every eight federal
judgeships. The Judicial Conference says that 48 of these
vacant judgeships constitute ``judicial emergencies,''
meaning they have been vacant for at least 18 months and are
in districts or circuits dealing with pressing caseloads.
Judicial vacancies are harmful. They prevent the courts
from operating at their full capacity in dispensing fair,
prompt justice. Vacancies mean larger dockets, longer delay,
and greater pressure and expense for lawyers and litigants.
As Slate legal columnists Dahlia Lithwick and Carl Tobias
recently commented, ``Crowded dockets mean longer waits for
cases to be heard promptly. This affects 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.'' Justice Anthony Kennedy said it
best, in comments to the Los Angeles Times: ``It'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.''
Under the Constitution, the U.S. Senate is the sole entity
charged with the responsibility to ``advise and consent''
upon the President's appointment of judges. Despite the
Founders' straightforward wishes, the judicial confirmation
process has grown distorted before our very eyes. Over the
past 30 years, the Senate has increasingly stonewalled or
rejected the President's judicial nominees, regardless of
party. Confirmation rates at 18 months into a presidency have
fallen from the high-water mark set in 1982 by President
Reagan (93 percent) to 47 percent today (the percentage of
President Obama's nominees who have won Senate confirmation).
These numbers--along with opaque, obstructionist ``secret
holds'' on nominations and unprecedented use of the
filibuster--reflect a process more like ``Advice & Dissent,''
the apt title of Sarah Binder and Forrest Maltzman's recent
work on the struggle to shape the federal judiciary.
Finger pointing by the two main U.S. political parties is
in overdrive over how the process has devolved and who is at
fault. If the confirmation wars expand and increase,
regardless of which party takes control of the Senate, the
implications for the future are even more troubling. In
August, Assistant Attorney General Christopher H. Schroeder
warned an audience of Ninth Circuit judges and lawyers that
if the current rate of replacing retired, resigned, and
deceased judges continues, nearly half of the 875 federal
judgeships could be vacant by the end of the decade.
When the Senate left Washington for its election recess, it
abandoned its responsibility to provide an up-or-down vote on
16 federal judicial nominees--all of whom were favorably
approved by the Senate Judiciary Committee with strong
bipartisan support. One nominee, Albert Diaz, who would be
the first Hispanic judge on the U.S. Circuit Court of Appeals
for the Fourth Circuit, has waited the longest: the Senate
Judiciary Committee favorably reported his nomination to the
Senate back in January.
The Federal Bar Association's mission is to promote the
effective crafting and administration of justice and
jurisprudence in our federal courts. That cannot happen if
judgeships remain vacant at current levels. Over the past
year, the FBA has called upon Senate leaders of both parties
to hasten their work on judicial confirmations to assure that
nominees who have been favorably reported out of the Senate
Judiciary Committee are assured of a prompt up-or-down vote
in the Senate. The association also has
[[Page S8121]]
encouraged the President to promptly nominate qualified
nominees with dispatch. FBA chapters in districts and
circuits with pending judicial nominees have contacted their
home-state senators to urge a prompt vote on their nominees.
This advocacy must continue.
Will the FBA help to make a difference? If the FBA doesn't
raise its voice, who will?
____________________