[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

[[Page S8783]]

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

[[Page S8784]]

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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