[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
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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.
____________________