[Congressional Record Volume 156, Number 163 (Friday, December 10, 2010)]
[Senate]
[Pages S8782-S8784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, I have been urging Republicans and
Democrats in the Senate to come together and take action to begin to
end the vacancy crisis that is threatening the administration of
justice by our Federal courts. I asked only that Senators follow the
Golden Rule. Regrettably that has not happened. Now 38 judicial
nominees whose qualifications are well established are being delayed.
They should be confirmed before we adjourn.
Adherence to the Golden Rule, a 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.
I was encouraged last week when Senator Sessions, the Judiciary
Committee's ranking Republican, provided assurance that the many
judicial nominees who have been stalled for months and months without
Senate action will be confirmed before we adjourn. He is in a position
to know. As the Republican leader on the committee, he works directly
with the Republican leadership that continues to hold up virtually all
judicial nominees, just as it has for months and months. At our
Judiciary Committee business meeting on December 1, Senator Sessions
said: ``The truth is except for a few nominees, the overwhelming
majority have moved with bipartisan unanimous support and will be
confirmed on the floor.'' He went on to predict that a number ``will
clear before the session is over.'' I hope this assurance is true. I
look forward to working with Senator Sessions to ensure that the Senate
acts before adjourning.
He is right: The overwhelming majority of the judicial nominees
awaiting final action have strong bipartisan support. This makes the
Republican obstruction of their confirmation all the more mystifying.
Twenty-nine of the judicial nominees whose confirmations are being
stonewalled were not opposed by any Senator, Republican or Democrat,
during Judiciary Committee consideration. Two others had only one or
two votes in opposition. Committee Republicans voted in lockstep to
oppose only 4 of the 38 pending nominations. I believe that if debated
by the Senate, those nominations, too, would be confirmed.
Had we adhered to the Golden Rule, the judicial nominees who have
been delayed for weeks and months would already be confirmed. That had
been our practice and tradition. Democratic Senators did not stall the
nominees of President Bush in this way. Senate Republicans should end
their across the board blockade of noncontroversial judicial nominees.
With 111 vacancies--a historically high number--plaguing our Federal
courts today, the American people cannot afford this gamesmanship.
Despite these skyrocketing vacancies, the Senate has not been
permitted by Republicans to consider a single judicial nomination since
September 13, when we confirmed Jane Stranch of Tennessee to the Sixth
Circuit. Only after 10 months of delay was the Senate permitted to act.
The Stranch nomination was the only nomination we were permitted to
consider that entire work period. In fact, the Republican blockade of
judicial nominations has been so complete that the Senate has been
permitted to confirm only five Federal circuit and district court
nominations since the fourth of July recess. While one in eight Federal
judgeships remains vacant, Senate Republicans consented to confirm only
a single judicial nomination in July. They consented to consider only
four judicial nominations before the August recess, despite 21
nominations then on the calendar. We have considered only the Stranch
nomination since returning from that recess. I do not recall a time
when one party so thoroughly prevented the Senate from acting on
consensus nominees with bipartisan support.
I have been trying to end this obstruction, yet it continues.
Democratic Senators have sought agreement on the floor to debate and
consider nominations, but the Republican leadership has objected time
and time again. The Democratic cloakroom has sought consent from the
Republican cloakroom to move nominations, but there has been no
consent.
The Judiciary Committee has favorably reported 80 of President
Obama's
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Federal circuit and district court nominees. Due to Republican
obstruction we have been able to consider only 41 of these. That is
barely half. This is in sharp contrast to the first 2 years of
President Bush's first term when I was chairman of the Judiciary
Committee and the Senate confirmed all 100 of the judicial nominations
reported by the Judiciary Committee to the Senate. In 2002, we
proceeded in the lameduck session after the election to confirm 20 of
President Bush's judicial nominees.This year by contrast none have been
considered since the November elections.
I have also urged for many months that the Senate debate and vote on
those few nominees that some Republican Senators decided to oppose in
committee. These nominees include 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. Each of these nominees
has been reported favorably by the Judiciary Committee, several of them
two or three times, and each deserves an up or down vote. That they
will not be conservative activist judges should not disqualify them
from serving.
But that is not what is happening. We are not debating the merits of
those nominations, as Democratic Senators did when we opposed the most
extreme handful of nominees of President Bush. What is new and
particularly damaging about this Republican strategy of obstruction is
that dozens of nominees reported unanimously by the Senate Judiciary
Committee, without Republican opposition, are still being delayed.
The Senate has received letters from Chief Judges of the Ninth
Circuit Court of Appeals and the United States District Courts in
California, Colorado, Illinois and the District of Columbia. They have
all pleaded with us to end the blockade and confirm judges nominated to
fill vacancies in their courts.
The vacancies on the Federal courts around the country have doubled
over the last 2 years and now are at the historically high level of
111. Fifty-one of these vacancies have been deemed judicial emergency
vacancies by the nonpartisan Administrative Office of the U.S. Courts.
Due to the Republicans' obstruction, we have not been able to keep up
with attrition over the last 2 years.
No one can accuse this President of selecting nominees to meet an
ideological agenda. Senator Sessions has acknowledged that a vast
majority of these nominees are consensus nominees. These are well-
qualified nominees with the support of their home State Senators, both
Republicans and Democrats. The Judiciary Committee has not proceeded
with a single nominee who was not supported by both home State
Senators, and I have worked with all Republican Senators to ensure that
they were included in the process. Democrats have worked to restore
comity to the process.
Regrettably, despite these efforts and the outstanding nominees
before us, the Senate is not promptly considering judicial nominations.
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.
The North Carolina Bar Association recently urged the Senate to
consider one of the nominees who was reported by the Judiciary
Committee in a unanimous rollcall vote--19 to zero. Republicans have
objected to his consideration since January 28. For more than 10
months, Judge Albert Diaz, a respected and experienced jurist who
served in the Armed Forces, has been prevented from serving the people
of North Carolina and the Fourth Circuit. He is nominated to fill a
judicial emergency vacancy on the Fourth Circuit. He has the support of
both his home state Senators, one a Democrat and one a Republican.
Senator Burr asked nearly a year ago that the Judiciary Committee
``look for an expedited review and referral to the full Senate so that
that deficiency on the fourth circuit can be filled.'' The Senators who
serve on the Judiciary Committee from South Carolina and Maryland,
states also within the Fourth Circuit, also support him. The American
Bar Association rated him well qualified. The North Carolina Bar
Association describes him as ``very qualified and highly regarded.''
When will the blockade be lifted so that the Senate can confirm Judge
Albert Diaz of North Carolina?
Judge Diaz and six other consensus nominees to the circuit courts are
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. Scott Matheson is a nominee
from Utah supported by Senator Hatch; he was reported without
opposition. Mary Murguia, a nominee from Arizona supported by Senator
Kyl, was reported without opposition. Judge Kathleen O'Malley of Ohio
is nominated to the Federal Circuit and was reported without
opposition. Susan Carney of Connecticut was reported with the
bipartisan support of 17 of the 19 Senators on the Judiciary Committee
to serve on the Second Circuit. Justice James Graves of Mississippi was
reported unanimously to serve on the Fifth Circuit. These are not
nominees whose judicial philosophy Republicans even question.
The President noted in his September letter to Senate leaders that
the ``real harm of this political game-playing falls on the American
people, who turn to the courts for justice'' and that the unnecessary
delay in considering these noncontroversial nominations ``is
undermining the ability of our courts to deliver justice to those in
need . . . from working mothers seeking timely compensation for their
employment discrimination claims to communities hoping for swift
punishment for perpetrators of crimes to small business owners seeking
protection from unfair and anticompetitive practices.''
If the Senate were allowed to consider the 38 judicial nominees that
are currently on the Senate's Executive Calendar, their confirmations
would raise the total 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.
In the 17 months I chaired the Judiciary Committee during President
Bush's first 2 years in office, 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. What has changed is that Senate
Republicans, who used to contend that every judicial nominee reported
by the Judiciary Committee is entitled to a vote, have reversed
themselves and reverted to the practices they followed in obstructing
President Clinton's judicial nominees. The bottom line is that the
Senate has been allowed to consider and confirm just 41 Federal circuit
and district court nominees. That is less than half of the 100 such
nominees we proceeded to confirm during President Bush's first 2 years.
When I became chairman of the Judiciary Committee midway through
President Bush's first tumultuous year in office, I worked very hard to
make sure Senate Democrats did not perpetuate the ``judge wars'' as
tit-for-tat. 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 judicial vacancies
to rise to 110 by the end of the Clinton administration. As a result of
their strategy, Federal circuit
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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 have returned to the strategy they
used during the Clinton administration of blocking the nominations of a
Democratic President, again leading to skyrocketing vacancies. Last
year the Senate confirmed only 12 Federal circuit and district court
judges, the lowest total in 50 years. This year we have yet to confirm
30 Federal circuit and district judges. We are not even keeping up with
retirements and attrition. As a result, judicial vacancies are now at
111, again more than 10 percent.
Regrettably, the Senate is not being allowed to consider the
consensus, mainstream judicial nominees favorably reported from the
Judiciary Committee. It has taken nearly five times as long to consider
President Obama's judicial nominations as it did to consider President
Bush's during his first 2 years in office. During the first 2 years of
the Bush administration, the 100 judges confirmed were considered by
the Senate an average of 25 days from being reported by the Judiciary
Committee. The average time for confirmed circuit court nominees was 26
days. By contrast, if the Senate were allowed to consider the 34
judicial nominees being stalled by Republican objection and they were
all confirmed this week, the average time Federal circuit and district
and circuit court judges have been forced to wait after being
considered and favorably recommended by the Judiciary Committee since
President Obama took office would be five times that of those confirmed
during the first 2 years of the Bush administration.
Time is running out in this Congress for Republicans to turn away
from the disastrous strategy of blocking nominations across the board.
The Senate's longstanding traditions demand that we reject this
practice of obstruction. The Federal courts are suffering from rising
vacancies and crushing caseloads. The victims are the American people
who depend on the courts for justice.
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