[Congressional Record Volume 157, Number 130 (Tuesday, September 6, 2011)]
[Senate]
[Pages S5324-S5326]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                  Iraq

  Mr. President, as many Members know, I opposed the war in Iraq, 
believing it had nothing to do with 9/11. It turned out it had nothing 
to do with 9/11. I thought there were no weapons of mass destruction. 
It turned out there were no weapons of mass destruction. Iraq is a 
country that bore no threat to the United States. It did to Iran but 
not to the United States.
  We have spent hundreds of billions, ultimately well over a trillion 
dollars, in Iraq. Year after year that money is just sent--no offset; 
it is put on the credit card. It is time to get out of Iraq and start 
thinking about people in America. It is time to take care of Americans. 
The needs of Americans are not just in a disaster but in the needs of 
Americans in their education, their medical care, our scientific 
research to find cures for cancer and Alzheimer's, to take care of the 
housing needs of America, to take care of our rivers and bridges. It is 
time to start worrying about this great country of ours. It is time to 
start paying for that which can give benefits immediately to Americans 
and make sure we have enough to care for the families and our returning 
soldiers who so bravely answered the call. Let's start thinking about 
the needs of 325 million Americans. Let's come home to the things we 
need. Because if we do that, we can then still be the force for good 
throughout the world. We can still fulfill commitments, legitimate 
commitments we have around the world. We can still be the humanitarian 
nation we have always been when there have been disasters in Haiti, in 
Indonesia, in Africa, or elsewhere. But we have neglected America too 
long.
  Mr. President, I understand I have some time.
  The PRESIDING OFFICER. The Senator has 8 minutes remaining.
  Mr. LEAHY. How much?
  The PRESIDING OFFICER. Eight minutes remaining.
  Mr. LEAHY. I thank the Presiding Officer.
  Mr. President, I was disappointed that before the August recess, the 
Senate was not allowed to take greater steps to address the serious 
judicial vacancies crisis on Federal courts around the country. As we 
resume consideration of pending judicial nominations, there are 20 
nominees fully considered by the Senate Judiciary Committee and ready 
for final Senate action. Of those, 16 were approved by the Judiciary 
Committee unanimously, without a single Republican or Democratic 
Senator in opposition.
  The nomination of Judge Bernice Donald of Tennessee is one such 
nomination. This is a nomination that has been waiting for Senate 
consideration, despite the support of her Republican home State 
Senators, since May 9. Nearly 4 months ago, the Judiciary Committee 
favorably reported her nomination without opposition. This is 
reminiscent of the nomination of Jane Stranch of Tennessee. She, too, 
had the support of her Republican home State Senators, but her 
confirmation was nonetheless stalled--inexplicably--by Senate 
Republicans. Judge Stranch was finally confirmed in September 2010, 
after an extended and unnecessary 10-month delay. These Tennessee 
nominations were the subject of a column by Professor Carl Tobias in 
early August, which I inserted in the Record on August 2. I, too, had 
hoped the Senate would be allowed to vote on this nomination last 
month. I am glad that we finally have agreement for a vote tonight.
  At this point in the Presidency of George W. Bush, 144 Federal 
circuit and district court judges had been confirmed. On September 6 of 
the third year of President Clinton's administration, 162 Federal 
circuit and district court judges had been confirmed. By comparison, 
although there are 20 judicial nominees stalled and awaiting final 
consideration by the Senate--many of them stalled since May and June--
even after the confirmation of Judge Donald, the total confirmations of 
Federal circuit and district court judges confirmed during the first 3 
years of the Obama administration will only be 96.
  In the 17 months I chaired the Judiciary Committee during President 
Bush's first term, the Senate confirmed 100 Federal circuit and 
district judges. By contrast, President Obama is approaching his 32nd 
month in office and we have yet to reach that total. The Senate has a 
long way to go before the end of next year to match the 205 
confirmations of President Bush's judicial nominees during his first 
term.
  To understand the strain on the Federal judiciary and the American 
people, it is important to note another set of comparisons. The number 
of judicial vacancies was reduced during the first years of the Bush 
and Clinton administration. The vacancies in early September in the 
third year of the Bush administration had been reduced to 54. The 
vacancies in early September in

[[Page S5325]]

the third year of the Clinton administration had been reduced to 55. By 
contrast, the judicial vacancies now in September of the third year of 
the Obama administration stand at 93. As the Congressional Research 
Service confirmed in a recent report, this is a historically high level 
of vacancies and this is now the longest period of historically high 
vacancy rates on the Federal judiciary in the last 35 years.
  Even though Federal judicial vacancies have remained near or above 90 
for more than 2 years, the Senate's Republican leadership continues to 
delay votes on many qualified, consensus nominations. After tonight, 
there will remain 15 unanimously reported nominees stalled on the 
calendar. This is not the way to make real progress. In the past, we 
were able to confirm consensus nominees more promptly, often within 
days of being reported to the full Senate. They were not forced to 
languish for months. The American people should not have to wait more 
weeks and months for the Senate to fulfill its constitutional duty and 
ensure the ability of our Federal courts to provide justice to 
Americans around the country.
  It is not accurate to pretend that real progress is being made in 
these circumstances. Vacancies are being kept high, consensus nominees 
are being delayed, and it is the American people and the Federal courts 
that are being made to suffer. This is another area in which we must 
come together for the American people. There is no reason Senators 
cannot join together to finally bring down the excessive number of 
vacancies that have persisted on Federal courts throughout the Nation 
for far too long.
  At a time when judicial vacancies remain near or above 90, these 
needless delays perpetuate the judicial vacancies crisis that Chief 
Justice Roberts wrote of last December and that the President, the 
Attorney General, bar associations, and chief judges around the country 
have urged us to join together to end. The Senate can and should be 
doing a better job working to ensure the ability of our Federal courts 
to provide justice to Americans across the country.
  We were able to lower vacancies dramatically during President Bush's 
years in office, cutting them in half during his first term. The Senate 
has reversed course during the Obama administration, and with 
Republican objections slowing the pace of confirmations, judicial 
vacancies have been at crisis levels for over 2 years. As a recent 
report by the Constitutional Accountability Center noted, ``Never 
before has the number of vacancies risen so sharply and remained so 
high for so long during a President's term.'' I ask unanimous consent 
that an August 5 letter to the editor of the Washington Post from Wade 
Henderson, entitled ``Remiss in confirming judges,'' and an August 4 
article in Politico from Andrew Blotky and Doug Kendall entitled ``It's 
Senate's duty to confirm judges,'' be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (see 
Exhibit 1.)
  Mr. LEAHY. Over the 8 years of the Bush administration, from 2001 to 
2009, we reduced judicial vacancies from 110 to a low of 34. The 
vacancy rate--which we reduced from 10 percent to 6 percent by this 
date in President Bush's third year, and ultimately to less than 4 
percent in 2008--is back above 10 percent. Federal judicial vacancies 
now stand at 93.
  Time and time again over the last 2\1/2\ years, I have urged the 
Senate to come together and work to address this crisis. At the 
beginning of this year, I called for a return to regular order in the 
consideration of nominations. We have seen that approach work on the 
Judiciary Committee. I have thanked the Judiciary Committee's ranking 
member, Senator Grassley, many times for his cooperation with me to 
make sure that the committee continues to make progress in the 
consideration of nominations. His approach has been the right approach. 
Regrettably, it has not been matched on the floor, where the refusal by 
Republican leadership to come to regular time agreements to consider 
nominations has put our progress--our positive action--at risk.
  I expect the committee in the weeks ahead to continue to make 
progress and favorably report superbly qualified, consensus judicial 
nominations to fill vacancies in States throughout the country, in 
States with Democratic and Republican Senators. Most of these 
nominations will, I expect, join the 15 on the calendar after tonight's 
vote that were reported unanimously. I hope that the Americans in those 
districts will not have to wait for months for the Senate to act to 
fill the vacancies and ensure that the Federal courts in their States 
have the judges they need.
  Republican obstruction has led to a backlog of dozens of judicial 
nominations pending on the Senate's Executive Calendar. Half of the 
judicial nominations on the calendar would fill judicial emergency 
vacancies. Many were ready for final consideration and confirmation in 
May and June.
  Republican leadership should explain to the people and Senators from 
South Carolina, Missouri, Louisiana, Maine, New York, Texas, 
Connecticut, Pennsylvania, and Florida why there continue to be 
vacancies on the Federal courts in their States that could easily be 
filled if the Senate would vote on the President's qualified, consensus 
nominees. Yet those nominees still wait for months on the Senate's 
calendar. These damaging delays leave the people of these States to 
bear the brunt of having too few judges available to do the work of the 
Federal courts.
  All 20 of the judicial nominations on the calendar today have been 
favorably reported by the Judiciary Committee after a fair but thorough 
process. We review extensive background material on each nominee. All 
Senators on the committee, Democratic and Republican, have the 
opportunity to ask the nominees questions at a live hearing. Senators 
also have the opportunity to ask questions in writing following the 
hearing and to meet with the nominees. All of these nominees have a 
strong commitment to the rule of law and a demonstrated faithfulness to 
the Constitution. They should not be delayed for weeks and months 
needlessly after being so thoroughly and fairly considered by the 
Judiciary Committee.
  I continue to urge the Senate to join together to end the judicial 
vacancies crisis that concerns Chief Justice Roberts, the President, 
the Attorney General, bar associations, and chief judges around the 
country. I hope that this month Senators will finally join together to 
begin to bring down the excessive number of vacancies that have 
persisted on Federal courts throughout the Nation for far too long. We 
can and must do better. Vacancies are being kept high, consensus 
nominees are being delayed, and it is the American people and the 
Federal courts that are being made to suffer.

                               Exhibit 1

                [From the Washington Post, Aug. 5, 2011]

                      Remiss in Confirming Judges

                          (By Wade Henderson)

       In Ben Pershing's close-to-complete Aug. 2 Fed Page roundup 
     of the most important stories overshadowed by the debt-
     ceiling debate [``Debt debate isn't only story on Capitol 
     Hill,'' In Session], one story that failed to make the cut 
     was how the Senate's refusal to vote on 20 judicial nominees 
     before recess has led to almost as many vacancies on the 
     federal bench--111--as there were in January.
       During the past two months, the Senate Judiciary Committee 
     has steadily processed nominations, yet the Senate has voted 
     on a mere nine judges. There is no reason to delay confirming 
     every one of the nominees pending before the full Senate. All 
     but one enjoyed strong bipartisan support in committee. In 
     fact, 17 of the 20 were approved without recorded opposition.
       Many of these seats have been designated as ``judicial 
     emergencies'' by the Administrative Office of the U.S. 
     Courts, meaning there are simply not enough judges to get the 
     work done. More and more people seeking to protect their 
     rights in a court of law are forced to wait, and justice 
     delayed is all too often justice denied.
                                  ____


                     [From Politico, Aug. 3, 2011]

                  It's Senate's Duty To Confirm Judges

                  (By Andrew Blotky and Doug Kendall)

       While Washington has been consumed by the debt ceiling 
     crisis, another serious crisis demands the attention of 
     President Barack Obama and the Senate: the threat to justice 
     by our overworked federal judiciary.
       There aren't enough judges to hear the cases piling up in 
     federal courtrooms across the country--which for countless 
     Americans means justice significantly delayed and denied.
       Our federal courts, which hear cases brought by ordinary 
     Americans to vindicate rights guaranteed by the Constitution, 
     are overworked and understaffed. Today's federal judiciary 
     resembles our armed forces--

[[Page S5326]]

     stretched thin and deployed on multiple tours of duty.
       There are now almost 90 empty seats on the federal bench, 
     with 22 more retirements on the way.
       Make no mistake, judges now on the bench are doing their 
     part--and then some. Last month, federal Judge Malcolm Muir 
     died in his chambers at age 96, while working on Social 
     Security appeals. Muir had continued to work literally until 
     his last breath, to reduce the case backlog caused by a judge 
     shortage. He was the fourth oldest judge on the federal bench 
     when he died. Last December, U.S. District Judge James F. 
     McClure Jr. died at age 79--also while working at the 
     courthouse.
       With fewer new judges being confirmed, the third branch of 
     government is increasingly run by judges working well into 
     their 80s, 90s and even 100s.
       ``The way we are going,'' 7th U.S. Circuit Court of Appeals 
     Judge Richard Cudahy, age 84, said, ``it looks to me as if 
     most of the judicial work is going to be done by 80- and 90-
     year-olds like me . . . since they will be the only ones left 
     to do anything.''
       There have been at least 80 vacancies on the federal courts 
     for the past 760 straight days and counting, according to a 
     recent Constitutional Accountability Center study. At the 
     same time, only 35 new permanent judgeships have been 
     authorized by Congress in the past 20 years--even as the 
     overall federal caseload has expanded by fully a third.
       The third branch is deteriorating largely because of 
     unprecedented Republican obstruction. Senate Republicans 
     refuse to agree to votes for well-qualified nominees, who 
     enjoy the unanimous support of their Republican and 
     Democratic colleagues on the Senate Judiciary Committee. 
     Today, 16 such nominees are waiting for a vote by the Senate, 
     with four more qualified nominees approved by the Judiciary 
     Committee, and new nominations being added regularly to the 
     Senate calendar.
       Some Republican senators are blocking--or placing holds--on 
     judicial nominations for reasons unrelated to justice, to 
     serve their own political interests. Republican senators are 
     also delaying or blocking nominees who would fill seats in 
     courtrooms so overwhelmed with cases that they are deemed by 
     the Administrative Office of the United States Courts to be 
     ``judicial emergencies.'' It is a level of obstruction not 
     seen under any previous president in U.S. history.
       Again, numbers tell the story. The glacial pace of judicial 
     confirmations has seen the number of judicial vacancies 
     explode from 55, when Obama took office, to 88 today. By this 
     time in the Bush administration, the Senate had confirmed 40 
     percent more judges than it has during the Obama 
     administration.
       Astonishingly, in the past two months, the Senate has voted 
     on just 11 nominations. The chamber could have easily 
     confirmed judges while awaiting a final debt ceiling deal. 
     Instead Republicans blocked, stalled and delayed.
       The Senate has now recessed for a month, yet the work of 
     the courts continues.
       When judicial vacancies remain at such record levels, 
     needless delays create a crisis that has drawn concern from 
     all corners--including Chief Justice John Roberts, Attorney 
     General Eric Holder, federal judges around the country and 
     bar associations.
       The Senate is failing in one of its key constitutional 
     duties. It is preventing the third branch of government from 
     doing its job--and making it impossible for Americans to have 
     their cases heard in a timely fashion.
       The solution is simple. With no Supreme Court nomination 
     battle consuming Washington this fall, there are no excuses. 
     The Senate should vote on these waiting nominees at the 
     earliest possible moment when it returns from its August 
     recess.
       It is time for the Senate to do what the Constitution 
     commands--advise and consent to the nomination of qualified 
     judges. The long-term health of the third branch of 
     government depends on it--and so do the American people.

  Mr. LEAHY. I have outlined where we stand in comparison to the 
progress we made when the Senate moved to confirm 205 Federal circuit 
and district judges during President Bush's first term. Three years 
into President Obama's administration, we have yet to confirm 100 
judges. We are going to have to move pretty quickly to catch up, 
especially to what a Democratic-controlled Senate did for President 
Bush. I wish to be able to do the same for President Obama.