[Congressional Record Volume 156, Number 168 (Friday, December 17, 2010)]
[Senate]
[Pages S10506-S10508]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, last night, as snow fell in Washington, DC, 
the Senate freeze on confirming judges began to thaw a bit. I thank the 
leaders for clearing 4 of the 38 judicial nominations awaiting final 
action by the Senate. These nominations will fill a few of the 
historically high number of Federal judicial vacancies around the 
country, including in the Eastern District of California, one of the 
districts with the highest workloads in the country. All the 
nominations confirmed last night were reported by the Judiciary 
Committee without objection way back in May and early June. I hope this 
is an indication that the other 34 judicial nominees pending in the 
Senate will receive consideration and a vote by the Senate before the 
Senate adjourns.
  Senate consideration of the four nominations we confirmed last night 
was long overdue. In fact, these are the first judicial confirmations 
the Senate has considered since September 13, more than 3 months ago. 
For months, these nominations and many others have languished before 
the Senate, without explanation and for no reason. As a result of these 
needless delays, of the 80 judicial nominations reported favorably by 
the Judiciary Committee, only 45 have been considered by the Senate. 
Even with yesterday's confirmations, that remains a historically low 
number and percentage. Meanwhile, 34 judicial nominees with well-
established qualifications and the support of their home State Senators 
from both parties are still waiting for Senate consideration. Some were 
sent to the Senate for final action as long ago as last January after 
being reported unanimously by all Republicans and Democrats on the 
Judiciary Committee.
  Last night, we unanimously confirmed Catherine Eagles to the Middle 
District of North Carolina, Kimberly Mueller to the Eastern District of 
California, John Gibney to the Eastern District of Virginia, and James 
Bredar to the District of Maryland. Judge Eagles and Judge Mueller were 
reported unanimously by the Judiciary Committee on May 6; Mr. Gibney's 
nomination was reported unanimously on May 27; and Judge Bredar's 
nomination was reported unanimously on June 10. Judge Mueller's 
confirmation is particularly welcome news for the Eastern District of 
California, which maintains the highest weighted caseload among all 
Federal judicial districts across the country. There is no reason and 
still no explanation for these delays.
  Since last year, I have been urging all Senators, Democrats and 
Republicans, to join together to take action to end the crisis of 
skyrocketing judicial vacancies. That has not happened. I have asked 
that we return to the longstanding practices that the Senate used to 
follow when considering nominations from Presidents of both parties. 
This has not happened. As a result, 34 judicial nominations that have 
been favorably reported by the Judiciary Committee continue to be 
stalled on the Senate's Executive Calendar awaiting final consideration 
and their confirmation.
  I hope that our action yesterday in considering a handful of 
nominations

[[Page S10507]]

signals a new effort to address the vacancies that have doubled over 
the last 2 years. Vacancies are now at the historically high level of 
108. Fifty of these vacancies are deemed judicial emergency vacancies 
by the nonpartisan Administrative Office of the U.S. Courts. The Senate 
has received letters from courts around the country calling for help to 
address their crushing caseloads, including letters from the Chief 
Judges of the Ninth Circuit Court of Appeals and the U.S. District 
Courts in California, Colorado, Illinois and the District of Columbia. 
They have pleaded with us to end the blockade and confirm judges to 
fill vacancies in their courts.
  The Senate should vote on all of the judicial nominations awaiting 
final action by the Senate. We should do as we did during President 
Bush's first 2 years in office, and consider every judicial nomination 
favorably reported by the Judiciary Committee. During those 2 years, 
the Judiciary Committee favorably reported 100 judicial nominations and 
the Senate confirmed every one of them, including controversial circuit 
court nominations reported during the lame duck session in 2002. In 
contrast, during this first Congress of President Obama's 
administration, the Senate has considered just 45 of the 80 nominations 
reported by the Judiciary Committee.
  I hope we can build on the belated progress made last night. 
Agreements to debate and consider nominations have been sought 
repeatedly. Of the 34 judicial nominations currently stalled on the 
Executive Calendar, 25 of them were reported unanimously by the 19 
Republican and Democratic members of the committee. Another three were 
reported with strong bipartisan support and only a small number of no 
votes. Of these 28 bipartisan, consensus nominees, 15 of them were 
nominated to fill judicial emergency vacancies. They all should have 
been confirmed within days of being reported. It will be a travesty if 
they are not all confirmed before the 111th Congress adjourns.
  These consensus nominees yet to be considered include six unanimously 
reported circuit court nominees, and another circuit court nominee 
supported by 17 of the 19 Senators on the Judiciary Committee. The 
nomination of a respected and experienced jurist, Judge Albert Diaz of 
North Carolina, for a judicial emergency vacancy on the Fourth Circuit 
has been stalled for 11 months, since last January, despite the support 
of both his home state Senators, a Democrat and a Republican. Four of 
the other consensus circuit court nominations would also fill judicial 
emergency vacancies, and three of them came through the committee with 
the strong support of two home State Republican Senators. All seven 
circuit court nominees are superbly qualified and I predict if 
considered would be confirmed with strong bipartisan support.
  Last night we confirmed four district court nominations, but 26 are 
still being blocked from consideration. Some were reported as long ago 
as February. Senate inaction on these nominations is a dramatic 
departure from the traditional practice of considering them 
expeditiously and with deference to the home State Senators. These 26 
district court nominations include 19 nominations reported unanimously 
by the Judiciary Committee. Thirteen of these nominations are for seats 
designated as judicial emergencies. All 26 nominees have well-
established qualifications and are at the top of the legal community in 
their home States. All have put their lives and practices on hold in an 
attempt to serve their country and their community. There is no cause 
for continuing to block the Senate from considering their nominations 
and no precedent for extending these delays further.
  For the last 17 years, Catherine Eagles has served North Carolina as 
a superior court judge. Before that, she spent nearly a decade as an 
attorney in private practice. Her nomination has had the support of 
both of her home State Senators, Senator Burr, a Republican, and 
Senator Hagan, a Democrat--as does the nomination of Alberto Diaz to 
the Fourth Circuit from North Carolina that remains stalled without 
final action. The American Bar Association, ABA, Standing Committee on 
the Federal Judiciary unanimously rated Judge Eagles well-qualified--
its highest possible rating--to serve as a District Court Judge. With 
her confirmation, Judge Eagles will become the first woman to serve on 
the Middle District of North Carolina, and only the second in the 
State.
  The nomination of Kimberly Jo Mueller to fill a judicial emergency 
vacancy on the Eastern District of California, one of the busiest 
courts in the country, was held on the Executive Calendar for more than 
7 months. Judge Mueller has served the Eastern District as a Magistrate 
Judge since 2003. Prior to becoming an attorney, she was a 6-year term 
as a Sacramento city councilmember before earning her J.D. from 
Stanford Law School. Her nomination has the strong support of both of 
her home State Senators and she was unanimously rated well qualified by 
the ABA Standing Committee on the Federal Judiciary, its highest 
possible rating. Judge Mueller will be the only female judge in the 
Eastern District of California.
  John A. Gibney, Jr. was nominated more than eight months ago to fill 
a judicial emergency vacancy. That Mr. Gibney has the strong support of 
both Virginia Senators is no surprise since he has a long and 
distinguished career, practicing law in Richmond, VA, for more than 30 
years. Mr. Gibney has represented a wide variety of clients, from 
business to local governments to private individuals. Currently, he is 
a partner and a civil litigator in the Richmond, VA, firm 
ThompsonMcMullan. Mr. Gibney earned his B.A., Phi Beta Kappa, from the 
College of William & Mary and his J.D. from the University of Virginia. 
After graduation, he clerked for Justice Harry L. Carrico of the 
Supreme Court of Virginia.
  Judge James Bredar has served for 12 years as a Federal Magistrate 
Judge on the District Court to which he is now nominated. As a lawyer, 
Judge Bredar saw the justice system from both sides, first as a Federal 
prosecutor in Colorado and then as a Federal public defender in 
Maryland. Judge Bredar will be the first Federal defender to serve as a 
Federal judge in Maryland. His nomination has the support of both of 
his home State Senators and received the highest possible rating from 
the ABA Standing Committee on the Federal Judiciary.
  The 34 judicial nominations remaining on the calendar should be 
accorded the same up-or-down vote as the four considered last night. 
They should have the same up-or-down vote given to all 100 of President 
Bush's judicial nominations reported by the committee in his first 2 
years. Even if Republican Senators will not follow our example and 
treat President Obama's nominees as we treated President Bush's, they 
should at least listen to their own statements from just a few years 
ago. They said that every judicial nomination reported by the Senate 
Judiciary Committee was entitled to an up-or-down vote. They spoke then 
about the constitutional duty of the Senate to consider every judicial 
nomination. The Constitution has not changed; it has not been amended. 
The change from the days in which they made those statements is that 
the American people elected a new President and he is making the 
nominations.
  The Senate should also debate and a vote on those few nominees that 
Republican Senators opposed 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. As I have said before, 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 on their 
confirmation. Each of these nominees have 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 consideration by the 
Senate or serving on the bench.
  President Obama has reached out and worked with Senators from both 
sides of the aisle in selecting well-qualified judicial nominees. As 
chairman of the Judiciary Committee, I have made sure that we have not 
proceeded on any judicial nominees without the support of

[[Page S10508]]

both home State Senators. There has been consultation and a thorough 
and fair process for evaluating nominations. There has been more than 
enough time for Senators to decide how they want to vote. Now it is 
time to return to the Senate's longstanding traditions and reject the 
obstruction that has blocked us month after month from considering 
judicial nominations. Now is the time to act to address the needs of 
the Federal courts and the American people who depend on them for 
justice.

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