[Congressional Record Volume 156, Number 155 (Wednesday, December 1, 2010)]
[Senate]
[Pages S8318-S8323]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, 2 weeks ago, before the Thanksgiving Day 
recess, I urged Republicans and Democrats in the Senate to come 
together and take action to begin to end the vacancy crisis that is 
threatening our Federal courts. My call was not extreme nor radical nor 
partisan. I asked only that Senators follow the Golden Rule. 
Regrettably, that did not happen, and that is really too bad for the 
country.
  There are now 38 judicial nominees being delayed who could be 
confirmed before we adjourn--38 judicial nominees who have had their 
hearings and whose qualifications are well established.
  Two weeks ago, I asked the Republican leadership to treat President 
Obama's nominees as they would have those of a Republican President. I 
asked for nothing more than that we move forward together in the spirit 
that we teach our children from a young age by referring to a nearly 
universal rule of behavior that extends across most major religions and 
ethical behavior systems.
  I urged adherence to the Golden Rule as a way to look forward and 
make progress. I had hoped that we could remember our shared values. 
That simple step would help us return to our Senate traditions and 
allow the Senate to better fulfill its responsibilities to the American 
people and the Federal judiciary.
  Yesterday, I listened to my dear friend, the senior Senator from 
Connecticut, Mr. Dodd. He gave a lesson similar to others I have heard 
from Senators over the years--it could have been said by Senators of 
either party--about why in the Senate we need to work together on 
certain shared issues. We have 300 million Americans, but only 100 of 
us have the privilege to serve in this body to represent all 300 
million. Senators should certainly stand up for their political 
positions, but there are certain areas in which the American people 
expect us to come together. They certainly do not expect us to stall 
judicial nominations for the sake of stalling, especially nominations 
that have the strong support of both Republicans and Democrats and that 
come out of the Judiciary Committee unanimously.

  Had we adhered to the Golden Rule, 16 of the judicial nominees being 
held hostage without a vote, who were each reported unanimously by all 
Republicans and Democrats on the Judiciary Committee, would have been 
confirmed before Thanksgiving. So too would an additional nominee 
supported by all but one of the committee's 19 members. They would be 
on the Federal bench and Federal judicial vacancies would have been 
reduced to less than 100. Instead, the across-the-board stalling of 
judicial nominations that I have been trying to end has continued. We 
have noncontroversial nominations being delayed and obstructed for no 
good reason. 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 merely 
follow the Golden Rule, that would have happened.
  As the Senate recessed, the Washington Post and the Charlotte 
Observer each criticized the stalling of noncontroversial judicial 
nominees in editorials published the weekend of November 19. The 
Washington Post entitled its editorial ``Unconscionable Delays for 
President Obama's Court Picks'' and recognized that ``even nominees 
without a whiff of opposition are being blocked'' and concluded ``the 
hold-up of nominees who have garnered unanimous, bipartisan support is 
particularly offensive.'' The Charlotte Observer entitled its editorial 
``Senate Must End Games, Confirm Strong N.C. Judges'' and called what 
is going on ``infantile political gamesmanship'' and ``partisan high 
jinks'' in its comments about the delays in considering Judge Albert 
Diaz and Judge Catherine

[[Page S8319]]

Eagles. In an opinion column in Politico, a former judge appointed by a 
Democratic President and one appointed by a Republican joined together 
to call for the Senate to address the judicial vacancies crisis. They 
cited the use of ``secret holds and filibusters to block the votes'' 
and observed:

       Fewer nominees have been confirmed during the Obama 
     administration than at any time since President Richard Nixon 
     was in office. These tactics are, as one senator noted, 
     ``delay for delay's sake.'' They are creating an 
     unprecedented shortfall of judicial confirmations and, 
     ultimately, a shortage of judges available to hear cases. For 
     many Americans, this means justice is likely to be 
     unnecessarily delayed--and often denied.

  I will ask that copies of these pieces be printed in the Record at 
the end of my statement.
  In addition to letters from the President of the United States, the 
Chief Judge of the United States Court of Appeals for the Ninth 
Circuit, the Chief Judge of the United States District Court for the 
District of Columbia, and the American Bar Association that I placed in 
the record with my statement on November 18, I have now received a copy 
of the November 19 letter to Senators Reid and McConnell from the 
Federal Bar Association that I will ask also be print in the Record at 
the conclusion of my statement.
  The Federal Bar Association President notes that ``the large number 
of judicial vacancies prevents the prompt and timely administration of 
justice'' and that this ``is causing unnecessary hardship and increased 
costs on individuals and businesses with lawsuits pending in the 
federal courts.'' She also notes that seven of the judicial nominees 
who were reported with near unanimity but are being stalled would fill 
judicial emergency vacancies: Albert Diaz of North Carolina, Kimberly 
Mueller of California, Ray Lohier of New York, John Gibney of Virginia, 
Susan Nelson of Minnesota, Mary Murguia of Arizona and Charlton Reeves 
of Mississippi.
  As of today there are 110 vacancies on the Federal courts around the 
country; 50 of them are for vacancies deemed judicial emergencies by 
the nonpartisan Administrative Office of the U.S. Courts. 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. So we are currently more than 190 judges short of those 
needed. I urged, before the last Presidential election, that we pass 
legislation to create additional judgeships, but unfortunately it was 
blocked.
  The vast majority of the President's judicial nominees are consensus 
nominees and should be confirmed by large bipartisan majorities. Many 
of them will be confirmed unanimously. These are well-qualified 
nominees with the support of their home State Senators, both 
Republicans and Democrats. I have not proceeded in the Judiciary 
Committee with a single nominee who is not supported by both home State 
Senators. I have worked with all Republican Senators to make sure they 
were included in this process. President Obama has worked hard with 
home State Senators regardless of party affiliation, and by doing so 
has done his part to restore comity to the process, as have I as 
chairman.
  Regrettably, despite our efforts and the President's selection of 
outstanding nominees, the Senate is not being allowed to promptly 
consider 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.
  We have had nominees on whom we have had to file cloture to get to a 
vote, then the rollcall vote is 100 to 0 or 99 to 0. This makes no 
sense. It breaks with every tradition in this body. I speak as one who 
has been here 36 years. There is only one Member of this body who 
served here longer than I have. I know both Republican and Democratic 
leaders and Republican and Democratic Presidents and we have never seen 
this happen. It 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, 
and Goodwin Liu of California. 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. Republican Senators 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 26 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 12 months ago, and still waits for an 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 seven 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.
  Justice Anthony Kennedy, a Republican nominated by a Republican 
President, spoke to the Ninth Circuit Judicial 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 added:

       If judicial excellence is cast upon a sea of congressional 
     indifference, the rule of law is imperiled.

  The Advisory Board of the Ninth Circuit sent a letter last week to 
the majority and minority leaders urging action on pending nominations 
to address the growing vacancy crisis in that circuit. The Board 
writes: ``Allowing the current judicial vacancy crisis to continue and 
expand--as it inevitably will if nothing changes--is unacceptable. The 
current situation places unreasonable burdens on sitting judges and 
undermines the ability of our federal courts to serve the people and 
businesses of the Ninth Circuit.'' I will ask that this letter be 
printed in the Record at the conclusion of my statement.
  The District of Columbia suffers from four vacancies on its Federal 
District Court. We have four outstanding nominees who could help that 
court, but they are now being delayed. 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. James 
Boasberg and Amy Jackson could have been reported before Thanksgiving, 
but were needlessly delayed in Committee for another 2 weeks.
  John Gibney of Virginia, James Bredar and Ellen Hollander of 
Maryland, Susan Nelson of Minnesota, Edmond Chang of Illinois, Leslie

[[Page S8320]]

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 seven consensus nominees to the 
circuit courts who are being stalled on the Senate Executive Calendar. 
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 
Murguia is from Arizona and is supported by Senator Kyl and was 
reported without opposition. Judge Kathleen O'Malley of Ohio, nominated 
to the Federal Circuit, was reported without opposition. Susan Carney 
of Connecticut was reported with 17 bipartisan votes by the Judiciary 
Committee to serve on the Second Circuit. James Graves of Mississippi 
was reported unanimously to serve on the Fifth Circuit.
  Many of these nominees could have been considered and confirmed 
before the August recess. 23 of them could have been considered and 
confirmed before the October recess. They could and should have been 
confirmed before the Thanksgiving recess. They were not. They are being 
held in limbo. They do not know where their life should be at this 
point, and their courts are empty.
  They were not considered because of Republican objections that, I 
suspect, have nothing to do with the qualifications or quality of these 
nominees. These are not judicial nominees whose judicial philosophy 
Republicans question. Most of them were voted for by every single 
Republican on the Senate Judiciary Committee.
  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 judicial 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 of perpetrators of crimes to small business owners seeking 
protection from unfair and anticompetitive practices.''
  I think the Senate should 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 in their practice any longer. With 110 vacancies plaguing the 
Federal courts, we do not have the luxury of indulging in these kinds 
of games.
  The Senate is well behind the pace set by the Democratic majority in 
the Senate considering President Bush's nominations during his first 2 
years in office. In fact, at the end of President Bush's second year in 
office, the Senate, with a Democratic majority, had confirmed 100 of 
his Federal circuit and district court nominations. I know because they 
all, every one of them, were 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 fact, in 2002, we proceeded 
in the lameduck session after the election to confirm 20 more of 
President Bush's judicial nominees. There are 34 judicial nominees 
ready for Senate consideration and another 4 noncontroversial 
nominations on the committee's business agenda. That is 38 additional 
confirmations that could be easily achieved with a little cooperation 
from Republicans. That would increase the confirmation from the 
historically low level of 41 where it currently stands, to almost 80. 
That would be in the range of judicial confirmations during President 
George H.W. Bush's first 2 years, 70, while resting 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.
  During the 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 25 hearings for President Obama's Federal circuit and 
district court nominees this Congress. 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 America 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.
  I was puzzled to hear the ranking Republican on the Senate Judiciary 
Committee say a few weeks ago that ``President Obama's nominees have 
fared better and moved better than President Bush's nominees.'' I have 
worked with the ranking Republican in connection with our consideration 
and confirmation of the President's two nominees to the Supreme Court, 
Justice Sotomayor and Justice Kagan. He opposed both, but agreed that 
the process was fair. I have worked with him on procedures to consider 
the President's other nominees and with some exceptions we have been 
able to have the Judiciary Committee consider and report them. In terms 
of comparisons, however, we actually reviewed far more of President 
Bush's nominees during his first 2 years than we have been allowed to 
consider during President Obama's first 2 years.
  The comparison is that I held 26 hearings for 103 of President Bush's 
Federal circuit and district court nominees and the committee favorably 
reported 100 of them. All 100 were confirmed by the Senate. We did that 
in 17 months. By comparison, during the 19 months the committee has 
been holding hearings on President Obama's Federal circuit and district 
court nominees, we have held 25 hearings for 80 nominees. Of the 75 
favorably reported, only 41 have been considered by the Senate. Several 
required cloture petitions and votes to end unsuccessful Republican 
filibusters. There were no Democratic filibusters of President Bush's 
nominees during the first 2 years of his Presidency.

  In sum, the bottom line is that the Senate has been allowed to 
consider and confirm less than half of the Federal circuit and district 
court nominees we proceeded to confirm during President Bush's first 2 
years. Forty-one confirmations does not equal or exceed the 100 
confirmations we achieved during the first 2 years of the Bush 
administration. For that matter, the 75 Federal circuit and district 
court nominees voted on and favorably reported on by the Senate 
Judiciary Committee does not equal the 100 we reported out in less time 
during the Bush administration. How the ranking Republican can contend 
that President Obama's nominees ``have fared better and moved faster 
than President Bush's nominees'' during their first 2 years in office 
is beyond me.
  When I became chairman of the Senate Judiciary Committee midway 
through President Bush's first tumultuous year in office, I worked hard 
to

[[Page S8321]]

make sure Senate Democrats did not perpetuate the judge wars as a 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 2 years in office, the Senate 
proceeded to confirm 100 of his judicial nominees.
  This chart shows where we were. President Clinton became president 
and in the first couple of years we went from the 109 vacancies down to 
49. Then the Republicans took over, they started pocket-filibustering, 
and the vacancies went up to 110.
  Democrats were in charge for 17 months with a Republican President. 
We said we were not going to play the games that they did with 
President Clinton. We brought judicial vacancies down to 60 under 
President Bush. We actually moved judges faster for President Bush than 
the Republicans did when they regained control of the Senate.
  Towards the end of President Bush's presidency, we got the vacancies 
down to 34. However, since President Obama has been in power, 
confirmations have been held up, and vacancies again reached 110. That 
might sound good in some kind of fund-raising letter. It doesn't sound 
good if you are the one trying to have your case heard in a court. It 
does not sound very good if you are the prosecutor and you want a 
criminal prosecuted and the judge is not there.
  What I cannot understand is why, having worked with President Bush to 
bring the Federal court vacancies down from 110 to 34, and the Federal 
circuit vacancies which were at a high of 32, down to single digits, 
judges are still being blocked. It looks like old habits die hard.
  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 4 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 are returning 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. The judiciary is not 
supposed to be political or politicized. When litigants are in a 
Federal court, they assume they will get impartial justice, regardless 
of whether they are a Republican or a Democrat. But this kind of game 
playing, of holding up nominees of a Democratic President, hurts the 
whole administration of justice.
  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 at 110, more than 10 percent.
  There are also the personal consequences. We have highly qualified 
people who get nominated for the Federal court, with backing from the 
Republican and Democratic Senators from their State. They are in a law 
practice, and everybody congratulates them. However, their firms are 
limited in what cases they can take if the nominee stays on, and they 
end up in limbo.
  Many of those people are taking a huge cut in pay to go on the 
Federal bench. Suddenly, they are forced to wait for 6, 7, 8 months, 
without being able to earn anything. Then eventually they are confirmed 
100 to 0. This needs to change.
  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 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.
  Mr. President, I ask unanimous consent that the materials to which I 
referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Nov. 19, 2010]

        Unconscionable Delays for President Obama's Court Picks

       Mary Helen Murguia enjoys the support of her two Republican 
     home state senators, Jon Kyl and John McCain of Arizona. The 
     Senate Judiciary Committee unanimously approved her 
     nomination in August. Yet Ms. Murguia, President Obama's pick 
     for a seat on the U.S. Court of Appeals for the 9th Circuit, 
     has yet to receive a full vote on the Senate floor.
       Albert Diaz, a 4th Circuit nominee, has waited even 
     longer--nearly one year--for his floor vote after receiving a 
     thumbs-up from all 19 of the Judiciary Committee's members 
     and winning the backing of his Republican home state senator, 
     North Carolina's Richard Burr.
       Even trial court nominees--typically not the target of 
     stall tactics or intense attacks--are getting caught up in 
     the perplexing political game. Kimberly J. Mueller, for 
     example, also earned unanimous approval from the Judiciary 
     Committee for a California trial court that is among the 
     busiest in the country; she has spent the past six months 
     waiting for final approval.
       In all, 23 of Mr. Obama's nominees are awaiting a Senate 
     floor vote; 16 of them received unanimous approval from the 
     Judiciary Committee and the vast majority were deemed ``well 
     qualified'' by the American Bar Association. Eight--including 
     the three mentioned above--have been tapped for seats 
     designated ``judicial emergencies'' because of the length of 
     the vacancy and the workload of the court.
       There is plenty of blame to go around for the delays, 
     starting with the president, who has been slow and often late 
     in sending up names. The White House has also been timid in 
     fighting for nominees. Senate Majority Leader Harry M. Reid 
     (D-Nev.) has not been assertive in scheduling floor votes, 
     and the push by some interest groups to win confirmation for 
     liberal favorites such as controversial 9th Circuit pick 
     Goodwin Liu may be holding up progress on the broader slate 
     of more moderate nominees. Republicans, including Minority 
     Leader Mitch McConnell (Ky.), have been all too eager to 
     object to votes even on nominees with bipartisan support. The 
     stall tactics are undoubtedly payback for Democratic 
     filibusters of controversial but highly qualified nominees of 
     President George W. Bush. The difference today is that even 
     nominees without a whiff of opposition are being blocked.
       Presidents deserve significant deference in judicial 
     nominations, and every nominee deserves an up-or-down vote. 
     But the hold-up of nominees who have garnered unanimous, 
     bipartisan support is particularly offensive. These nominees 
     should be confirmed swiftly before Congress recesses next 
     month.
                                  ____


              [From the Charlotte Observer, Nov. 21, 2010]

Senate Must End Games, Confirm Strong N.C. Judges; Congress' Failure To 
                    Approve Diaz, Eagles Is Shameful

       So here we are, 297 days after the Senate Judiciary 
     Committee unanimously--unanimously!--recommended Judge Albert 
     Diaz of Charlotte for a seat on the federal appeals court. 
     Thanks to infantile political gamesmanship, the Senate still 
     has not confirmed him. And so a judge that most everyone 
     agrees is well-qualified languishes in limbo and a busy court 
     one step below the U.S. Supreme Court remains in a staffing 
     crisis.
       Time is running out on the Senate to do the right thing. If 
     it does not confirm Diaz in the current lame duck session, 
     his nomination expires. That would be an ignominious chapter 
     for that once-august body. Facing the same fate: Catherine 
     Eagles of Greensboro, another qualified, non-controversial 
     nominee who in May easily won the Judiciary Committee's 
     approval for a federal judgeship in North Carolina.
       Diaz and Eagles are among a couple dozen capable judges 
     whose careers are being hamstrung by partisan high jinks. The 
     whole farce helps explain why the public is disgusted with 
     how Congress operates these days. Many members put party 
     before country.
       Democrats and Republicans alike have blocked skilled 
     judicial nominees over the years, particularly in North 
     Carolina. Today,

[[Page S8322]]

     each party claims that the other is to blame for the current 
     impasse. It appears, though, that Sen. Mitch McConnell, R-
     Ky., is the biggest impediment.
       Republican Sen. Richard Burr and Democratic Sen. Kay Hagan 
     both support Diaz and Eagles. Burr should publicly and 
     privately work to persuade McConnell to permit up-or-down 
     votes on these nominees, without a paralyzing 30 hours of 
     debate on each and every one of them.
       This all matters because dozens of seats have reached a 
     level of ``judicial emergency,'' according to the 
     Administrative Office of the U.S. Courts, meaning the 
     workload is unsustainable and judges are needed. That 
     includes the 4th U.S. Circuit Court of Appeals in Richmond, 
     Va. North Carolina is the largest of five states in the 
     circuit but until recently had only one of its three seats on 
     the bench filled.
       Diaz, a special Superior Court judge specializing in 
     complex business litigation, is trying to fill a seat that 
     has been vacant for three and a half years. Eagles, a senior 
     resident Superior Court judge, would fill a judgeship that 
     has been vacant for nearly two years. Both received the 
     highest rating from the American Bar Association--
     ``unanimously well qualified.''
       McConnell recently reversed his position on earmarks. If he 
     has any sense, he'll now reverse himself on blocking 
     qualified judges this state and the nation need.
                                  ____


                   [From the Politico, Nov. 18, 2010]

                   Let's Fix Judicial Nominee Process

                 (By: Abner J. Mikva and Timothy Lewis)

       When the Senate left for the election recess, it had 
     confirmed just one of the 48 pending judicial nominees. Its 
     failure to consider nominations has exacerbated a vacancy 
     crisis for our federal courts that has reached critical 
     proportions.
       Almost one in eight seats on the federal bench is empty and 
     has been for months. This grave problem is only likely to 
     worsen as more judges retire and senators block efforts to 
     appoint new ones.
       As federal judges appointed by presidents from different 
     parties, we urge the Senate to end the excessive 
     politicization of the confirmation process that is creating 
     these delays.
       This obstruction and the way it undermines our democratic 
     process would be outrageous at any time. But it is especially 
     shameful now, because many of these qualified nominees 
     received bipartisan support when nominated and were then 
     approved by the Senate Judiciary Committee with broad 
     support. Yet they have waited more than a year to be 
     confirmed because the Senate never put their nomination to a 
     vote.
       Instead of confirming these nominees, some senators have 
     used secret holds and filibusters to block the votes, leaving 
     nominees in limbo for a year or more and undermining the 
     credibility of our judiciary. Fewer nominees have been 
     confirmed during the Obama administration than at any time 
     since President Richard Nixon was in office.
       These tactics are, as one senator noted, ``delay for 
     delay's sake.'' They are creating an unprecedented shortfall 
     of judicial confirmations and, ultimately, a shortage of 
     judges available to hear cases. For many Americans, this 
     means justice is likely to be unnecessarily delayed--and 
     often denied.
       There are now 106 vacancies on the federal courts, almost 
     half deemed so debilitating that they are labeled 
     ``emergencies'' by the Administrative Office of the U.S. 
     Courts. An additional six seats are slated to become vacant 
     in the next few months. This is untenable for a country that 
     believes in the rule of law.
       An increasing number of public officials are now speaking 
     out. President Barack Obama called on the Senate to ``stop 
     playing games'' with the judicial nominations process. 
     Supreme Court Justices Anthony Kennedy and Ruth Bader 
     Ginsburg each independently criticized the partisanship that 
     has permeated the confirmation process. Several other former 
     federal judges joined us in writing a letter to Senate 
     leaders, expressing our dismay and calling for a better 
     confirmation process.
       With the Senate now back for the lame-duck session, 
     political pressure on nominations may not be so intense. This 
     is the time for the Senate to return to an effective process 
     for confirming judges--one that can eliminate the appearance 
     of excessive partisanship and apply to both Democratic and 
     Republican administrations.
       Only in this way can we begin to restore the public's faith 
     in the integrity of our judiciary, a crucial element of our 
     Constitution's delicate system of checks and balances and 
     fundamental to our democratic system of government.
                                  ____

                                          Federal Bar Association,


                                      Office of the President,

                               New Orleans, LA, November 19, 2010.
     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 Majority Leader Reid and Minority Leader McConnell: I 
     write on behalf of the approximately sixteen thousand members 
     of the Federal Bar Association (FBA) to encourage expedient 
     Senate floor action on the judicial candidates reported out 
     of the Senate Judiciary Committee and awaiting a Senate floor 
     vote. As the Senate reconvenes, there is a very real need--in 
     the interest of our federal court system--for the Senate to 
     fulfill its constitutional responsibility to vote on these 
     pending nominees.
       The FBA is the foremost national association of private and 
     public attorneys engaged in the practice of law before the 
     federal courts and federal agencies. We seek the fair and 
     swift administration of justice for all litigants in the 
     federal courts. We want to assure that the federal courts are 
     operating at their full, authorized capacity and that justice 
     is timely delivered by the federal courts. The large number 
     of judicial vacancies prevents the prompt and timely 
     administration of justice in the federal courts. This is 
     causing unnecessary hardship and increased costs on 
     individuals and businesses with lawsuits pending in the 
     federal courts.
       Our Association's interest is focused upon prompt, 
     dispositive action by the Senate in filling vacancies as they 
     arise on the federal bench. Prompt, dispositive action by the 
     Senate on judicial candidates will assure that lawsuits filed 
     in our federal courts are heard and decided with out delay. 
     The justice system suffers when vacancies are not filled in a 
     timely manner. Vacancies create a burden of added litigation 
     and economic costs that at times overwhelm the system and its 
     ability to hear and decide matters in a timely and effective 
     manner.
       Seventeen of the 23 federal judicial candidates who await a 
     Senate floor vote have been approved by the Senate Judiciary 
     Committee by unanimous consent or without controversy. These 
     candidates deserve an up-or-down vote before the 111th 
     Congress reaches an end.
       In particular, 7 of these 17 noncontroversial judicial 
     candidates cleared by the Senate Judiciary Committee have 
     been nominated to circuit and district court judgeships that 
     have stood vacant for substantial periods of time and are 
     associated with courts with especially high caseloads. These 
     vacancies have been designated as ``judicial emergencies'' by 
     the Judicial Conference, the policy-making body of the 
     federal judiciary, because each vacancy has existed for a 
     significant period of time and is associated with a court 
     that has caseloads that are considerably higher than normal.
       The 7 candidates associated with judicial vacancies that 
     have been designated as ``judicial emergencies'' are:
       Albert Diaz, nominated to the Fourth Circuit Court of 
     Appeals (North Carolina), to the judgeship vacated by Judge 
     William Wilkins on July 1, 2007; this vacancy has existed for 
     1237 days.
       Kimberly Mueller, nominated to the Eastern District of 
     California, to the judgeship vacated by Judge Frank C. 
     Damrell on January 1, 2009; this vacancy has existed for 1091 
     days and is located in the federal district court with the 
     highest caseload in the nation.
       Raymond Lohier, nominated to the Second Circuit Court of 
     Appeals (New York), to the judgeship vacated by Justice Sonia 
     Sotomayor on August 6, 2009; this vacancy has existed for 470 
     days.
       John A. Gibney, nominated to the Eastern District of 
     Virginia, to the judgeship vacated by Judge Robert E. Payne 
     on May 7, 2007; this vacancy has existed for 1293 days.
       Susan R. Nelson, nominated to the District Court of 
     Minnesota, to the judgeship vacated by Judge James R. 
     Rosenbaum on October 26, 2009; this vacancy has existed for 
     389 days.
       Mary H. Murguia, nominated to the Ninth Circuit Court of 
     Appeals (Arizona), to the judgeship vacated by Judge Michael 
     Daly Hawkins on February 12, 2010; this vacancy has existed 
     for 280 days.
       Carlton W. Reeves, nominated to the Southern District Court 
     of Mississippi, to the judgeship vacated by Judge William 
     Henry Barbour, Jr. on February 4, 2006; this vacancy has 
     existed for 1748 days, the longest period of any of these 
     seven candidates.
       The Federal Bar Association as a matter of policy takes no 
     position on the credentials or qualifications of specific 
     nominees to the federal bench. The FBA's foremost interest 
     lies in the assurance of prompt, dispositive action by the 
     President in nominating qualified federal judicial candidates 
     and the Senate in either confirming or not confirming them in 
     a prompt manner. Such action will ultimately reduce the 
     number of vacancies to a more tolerable level.
       The Federal Bar Association firmly believes that all 
     judicial candidates, once cleared by the Senate Judiciary 
     Committee, deserve a prompt up-or-down vote by the Senate. 
     Swift action is particularly needed on those candidates 
     associated with federal circuit and district courts whose 
     caseloads are in emergency status. We urge the Senate to vote 
     upon these pending nominees before the end of the current 
     legislative session.
       Thank you for your support of the nation's federal court 
     system and your consideration of our views.
           Sincerely yours,
     Ashley L. Belleau.
                                  ____



                          Advisory Board of the Ninth Circuit,

                                                November 24, 2010.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate, Washington, DC.
       Dear Senators Reid and McConnell: We write to you as 
     members of the Advisory Board of the Ninth Circuit to seek 
     your assistance and commitment to solve a growing--and 
     increasingly urgent--crisis facing the federal courts of the 
     Ninth Circuit: the ever expanding number of vacancies on both

[[Page S8323]]

     our district and appellate courts. This growing crisis 
     threatens the effective delivery of justice to the people and 
     businesses who come before our federal courts.
       We recognize that you cannot solve this problem alone. The 
     President must select and submit to the Senate for review 
     nominees to fill these vacancies. Consequently, we are 
     seeking the assistance and commitment of the President to 
     address this crisis as well.
       It is no exaggeration to call the growing number of 
     judicial vacancies on our federal courts a crisis. Between 
     1981 and 2008, there were on average 48 vacancies each year 
     for all of the lower federal courts, including vacancies 
     created by two bills expanding the number of federal judges. 
     Over this same period, the nomination and confirmation 
     process filled only 43 vacancies on average each year, 
     causing the vacancy rate to more than double in the last 30 
     years. In the Ninth Circuit, the number of vacancies has 
     doubled in the last 22 months.
       This fact alone would signal a serious problem but the 
     situation is very likely to get worse. Over the next decade, 
     the number of vacancies on the lower federal courts is likely 
     to increase because of the age of current judges and the need 
     to expand the judiciary to keep up with caseload growth. The 
     Justice Department has estimated that annual vacancies over 
     the coming decade will average closer to 60 positions each 
     year. In the last two years, however, only 41 federal judges 
     have been nominated and confirmed to the federal district and 
     appellate courts nationwide. Unless something changes quickly 
     and dramatically, at the end of the coming decade, half the 
     seats on the lower federal courts could be empty.
       The Ninth Circuit is fully immersed in this growing crisis. 
     There are currently 18 vacancies among the 142 authorized 
     appellate and district court Article III judges in the 
     Circuit. The President has forwarded to the Senate 
     nominations for ten of these vacancies but the Senate has yet 
     to act on them. While the Senate has confirmed seven nominees 
     to vacancies within the Circuit since January 1, 2009, seven 
     have been pending without a confirmation vote for more than 
     120 days and three of these have been voted out of the Senate 
     Judiciary Committee and forwarded to the full Senate for 
     action with little or no Committee opposition.
       As you know, our federal judiciary at all levels is a 
     beacon of justice across the country and around the world. 
     The judges who sit on our federal courts are dedicated to 
     their jobs and committed to both the rule of law and the 
     ideal of justice for all. Allowing the current judicial 
     vacancy crisis to continue and expand--as it inevitably will 
     if nothing changes--is unacceptable. The current situation 
     places unreasonable burdens on sitting judges and undermines 
     the ability of our federal courts to serve the people and 
     businesses of the Ninth Circuit.
       We recognize that both the President's role in nominating 
     individuals to serve as federal judges and the Senate's role 
     in reviewing and determining whether to confirm those 
     nominees are solemn and serious duties. The health and 
     integrity of an entire branch of our government depends on 
     the faithful and careful execution of these duties. We 
     believe, however, that a crisis in one of our branches of 
     government also demands swift, effective, and appropriate 
     action from the coordinate branches. According to the Library 
     of Congress, from 1977 to 2003, the average time from 
     nomination to confirmation for lower federal court judges was 
     less than 90 days. Current vacancies nationwide have been 
     pending for an unsustainable 516 days. On average, the 
     vacancies filled by the 41 judges confirmed during the 111th 
     Congress were pending 803 days from vacancy creation to 
     confirmation. We can and must do better.
       For this reason, we ask you to make a commitment to a 
     confirmation vote in the Senate for each judicial nominee 
     within no more than 120 days after the Senate receives a 
     nomination from the President. We will make a similar request 
     of the President to forward nominations to the Senate within 
     no more than 120 days after the President learns of a 
     judicial vacancy. While Congress will ultimately need to pass 
     legislation to expand the federal judiciary, filling the 
     current vacancies in a more timely manner will do much to 
     alleviate the immediate crisis and improve the delivery of 
     judicial services to those who come before the federal 
     courts.
       We are convinced that with your leadership and that of the 
     President we can solve the vacancy crisis facing our federal 
     courts. We urge you to make a clear and open commitment to 
     address the vacancy crisis in the Ninth Circuit as 
     expeditiously as possible. Thank you for your consideration 
     of this request.
           Sincerely,
         Todd D. True (Chair), Seattle, WA; Steve Cochran (Past-
           Chair), Los Angeles, CA; Robert A. Goodin, San 
           Francisco, CA; Margaret C. Toledo, Sacramento, CA; 
           Janet L. Chubb, Reno, NV; Miriam A. Vogel, Los Angeles, 
           CA; Robert S. Brewer, Jr., San Diego, CA; Eric M. 
           George, Los Angeles, CA; William H. Neukom, San 
           Francisco, CA; Norman C. Hile, Sacramento, CA; Harvey 
           I. Saferstein, Los Angeles, CA; Dana L. Christensen, 
           Kalispell, MT; Robert C. Bundy, Anchorage, AK.

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