[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.