[Congressional Record Volume 157, Number 1 (Wednesday, January 5, 2011)]
[Senate]
[Pages S55-S56]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, in the closing days of the 111th Congress,
a brief flurry of activity led to the confirmation of 19 long-pending
judicial nominations. Regrettably, the stalemate that had prevented the
Senate from confirming a single nomination between September 13 and
December 16 resumed when Senate Republicans denied action on 19 other
well-qualified, consensus judicial nominations reported by the Senate
Judiciary Committee. Ultimately, these nominations were returned to the
President, including 15 nominations that received unanimous or near
unanimous support in the committee. I suspect that when the President
renominates these qualified individuals, they will be confirmed with
overwhelming bipartisan support. The only question will be why we were
unable to take action on them sooner.
In his ``Year-End Report on the Federal Judiciary,'' Chief Justice
Roberts rightly called attention to the problem facing many
overburdened district and circuit courts across the country. The rise
in judicial vacancies, which topped 110 in 2010, and an increasing
number of judicial emergencies is of great concern to all Americans who
seek justice from our courts.
Unfortunately, the unprecedented obstruction of judicial nominations
seen in the last Congress, and the dramatic departure from the Senate's
long-standing tradition of regularly considering consensus,
noncontroversial nominations, marked a new chapter in what Chief
Justice Roberts calls the ``persistent problem'' of filling judicial
vacancies. A New York Times editorial from January 4, 2011, refers to
Senate Republicans' ``refusal to give prompt consideration to
noncontroversial nominees'' a ``terrible precedent.'' I agree, and I
will ask that the Times' editorial be printed in the Record.
Nearly all of the mere 60 district and circuit court nominations the
Senate was allowed to consider last year were confirmed with the
overwhelming, bipartisan support of the Senate. Yet nearly a third of
these nominations--19--were held up for more than 100 days, only to be
confirmed unanimously. As the Times editorializes, ``apart from
partisan gamesmanship, there was no reason that Republicans
[[Page S56]]
held up these nominations for months only to unanimously approve nearly
all of them in the waning days of the lame duck session.'' Among these
nominations was that of Kimberly Mueller, nominated to fill a vacancy
in the Eastern District of California. Chief Justice Roberts cited this
confirmation as one of the most sorely needed. Yet for more than 7
months, the Senate was prevented from considering the nomination to
fill this vacancy. Judge Mueller's nomination was unanimously reported
by the Judiciary Committee in May; her nomination was unanimously
confirmed on December 16. No Senator objected to her qualifications,
her record, or her fitness to serve. This sort of delay is the real
crisis facing the Federal judiciary.
Lifetime appointments to the Federal bench should not be granted
without due consideration. No Senator, Democrat or Republican, should
simply rubberstamp the nominations of any President. In the first
Congress of the Bush administration, the Democratic majority worked to
confirm 100 judicial nominations, turning the page on the Republicans'
pocket-filibusters of the 1990s. We proceeded with regular
consideration of noncontroversial, consensus nominations, most of which
received unanimous support in the Senate. We confirmed 20 nominations
during the lameduck session in 2002, including two controversial
circuit court nominations which were favorably reported by the Senate
Judiciary Committee in the lameduck session. Senate Republicans'
decision in December to object to consideration of 19 judicial
nominations favorably reported by the Judiciary Committee--including 15
nominations with overwhelming bipartisan support--has established a new
low with regard to judicial nominations. They set back the progress we
have tried to make in confirming judges.
I suspect that President Obama will renominate these qualified
individuals. I hope to work with the Judiciary Committee's new ranking
Republican, Senator Grassley, to promptly consider and report these
nominations to the full Senate. I hope that Senator Grassley will work
with me to ensure the timely confirmation of these and other
noncontroversial, consensus nominations, which will help reduce
vacancies and address the judicial crisis.
The American people turn to our courts for justice. Likewise, the
Senate must return to the time-honored traditions of the Senate, and
work together to secure the confirmation of the President's judicial
nominations. Judicial vacancies hinder the Federal judiciary's ability
to fulfill its constitutional role. Working together, we can restore
the judicial confirmation process.
Mr. President, I ask unanimous consent to have printed in the Record
the New York Times Article to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 3, 2011]
The Missing Judges
The annual report on the federal judiciary by the chief
justice of the United States is not a place you would
normally go for political agitation. But that is just what
Chief Justice John Roberts Jr. offered by using a portion of
his year-end review to deplore the ``acute difficulties''
created for the justice system by the Senate's slowness in
approving President Obama's nominees for federal judgeships.
Justice Roberts is right to be concerned that mounting
federal court vacancies are creating crushing caseloads in
some jurisdictions and hampering courts' ability to fulfill
their vital role. Given his office, we understand why he did
not point a partisan finger in his report. But he diluted his
message a bit by suggesting that blame for this undermining
of the judicial branch rests evenly with both parties. The
main culprit is an unprecedented level of Republican
obstructionism.
Democrats sought to block a handful of President George W.
Bush's controversial nominees for circuit court seats, but
were open about stating their objections, and promptly
allowed up or down votes on other nominees once approved by
the Judiciary Committee.
In the last Congress, Republicans typically refused to
publicly explain their opposition to individual nominees and
their prolonged blockade of candidates who had cleared the
committee either unanimously or with just a couple of
negative votes. Between Congress's return from its August
recess and the start of the lame duck session, Senate
Republicans consented to vote on just a single judicial
nomination.
Before adjourning, Senate Republicans allowed action on 19
well-qualified nominees--some of whom had been left in limbo
for nearly a year after clearing the Judiciary Committee.
That was welcome progress. But apart from partisan
gamesmanship, there was no reason that Republicans held up
these nominations for months only to unanimously approve
nearly all of them in the waning days of the lame duck
session.
Partisan obstruction was also the only plausible reason
that Republicans declined to allow confirmation of 15 other
nominees who were considered noncontroversial and were
cleared by the committee after the November election. Those
nominations have been returned to the president, ensuring
further delays in filling seats when those individuals are
renominated and a newly reconstituted Judiciary Committee
must hold new hearings.
Four other nominees approved by the committee by a party-
line vote were also denied Senate consideration. That list
includes Goodwin Liu, a well-qualified law professor and
legal scholar whose main problem for Republicans, it seems,
is his potential to fill a future Supreme Court vacancy.
The dismal net result, laments Senator Patrick Leahy, the
Judiciary Committee chairman, is that the Senate confirmed
just 60 district and circuit court judges--the smallest
number of judges for the first two years of a presidency in
more than three decades.
The Republicans' refusal to give prompt consideration to
noncontroversial nominees sets a terrible precedent. It gives
Democrats something to consider as they weigh possible rules
changes in the Senate to curb the auto-pilot filibusters and
secret holds that mindlessly delay essential business, like
the confirmation of federal judicial nominees.
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