[Congressional Record Volume 158, Number 20 (Tuesday, February 7, 2012)]
[Senate]
[Pages S362-S363]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, I see the distinguished Senator from 
Oklahoma and I know he is waiting to go and I appreciate his courtesy 
that I might go first. Let me speak in my capacity as chair of the 
Judiciary Committee.
  Two weeks ago, when the Senate confirmed only 1 of the 19 judicial 
nominations on which votes were delayed from last year, I urged Senate 
Republicans to join with Democrats and take long overdue steps to 
remedy the serious vacancies crisis on Federal courts throughout the 
country. Nearly 1 out of every 10 Federal judgeships is vacant. 
Nonetheless, Senate Republicans refuse to consent to votes on consensus 
nominees who could fill many of those vacancies without further delay. 
These are well-qualified judicial nominees who were reported 
unanimously by the Judiciary Committee many months ago; there has been 
no explanation for the delay in their confirmation. During the last 2 
months, Senate Republicans have consented to votes on only 2 of the 23 
judicial nominees ready for final Senate action.
  Of the 19 judicial nominations now awaiting a final vote by the 
Senate, 16 were reported by the Judiciary Committee with the support of 
every Senator on the Committee, Democratic and Republican. No Senator 
can or should have any reason to oppose these nominees in the Senate. 
But, month after month and year after year, Senate Republicans find new 
reasons and new tactics to delay confirmation of consensus judicial 
nominees for no good reason. I have never seen anything like this. 
These delays are a disservice to the American people. They prevent the 
Senate from fulfilling its constitutional duty. And they are damaging 
to the ability of our Federal courts to provide justice to Americans 
around the country.
  Regrettably, the last 2 weeks evidences more of the same, a 
continuation of the delaying tactics we have seen for years, as Senate 
Republicans continue their across-the-board obstruction of President 
Obama's judicial nominations. For the second year in a row, Senate 
Republicans refused to consent to votes on judicial nominations before 
the end of the Senate's session in December. At the end of 2011, they 
again refused to follow Senate's traditional, longstanding practice of

[[Page S363]]

voting to confirm consensus nominations before the end of the Senate 
session, a practice followed by Democrats and Republicans with 
Presidents Reagan, George H.W. Bush, Clinton and George W. Bush.
  Their tactics have worked, to the detriment of the Federal courts and 
the American people. By nearly any measure we are well behind where we 
should be. Three years into President Obama's first term, the Senate 
has confirmed a lower percentage of President Obama's judicial nominees 
than those of any President in the last 35 years. The Senate has 
confirmed just over 70 percent of President Obama's circuit and 
district nominees, with more than one in four not confirmed. This is in 
stark contrast to the nearly 87 percent of President George W. Bush's 
nominees who were confirmed, nearly nine out of every 10 nominees he 
sent to the Senate.
  We remain well behind the pace set by the Senate during President 
Bush's first term. By this date in President Bush's first term, the 
Senate had confirmed 170 Federal circuit and district court nominations 
on the way to 205, and had lowered judicial vacancies to 46. By the 
time Americans went to the polls in November 2004, we had reduced 
vacancies to 28 nationwide, the lowest level in the last 20 years. In 
contrast, the Senate has confirmed only 125 of President Obama's 
district and circuit nominees, and judicial vacancies remain over 85. 
The vacancy rate is double what it was at this point in the Bush 
administration.
  I wonder when I hear some Republican Senators claim credit for 
progress on nominations and point to what they like to call ``positive 
action''--how they can ignore the 19 judicial nominations being blocked 
for no reason. I wonder how they can claim progress for the American 
people when judicial vacancies remain well above 80 more than 3 years 
into President Obama's first term. In this setting, after years of 
delay and lack of real progress, it is troubling to hear Senate 
Republicans already talking about how they plan to resort to the 
Thurmond Rule to shut down all judicial confirmations for the rest of 
the year. Their obstruction has already resulted in the Senate having 
confirmed 45 fewer judicial nominations after 3 years of the Obama 
administration than after 3 years of the Bush administration. We still 
have a long way to go to catch up and to lower judicial vacancies 
before anyone talks about a confirmation shutdown.
  I wish Senate Republicans would abandon their rhetoric and do as 
Senate Democrats did when we worked to confirm 100 of President Bush's 
judicial nominees in 17 months. In fact, we continued to work to reduce 
judicial vacancies by considering and confirming President Bush's 
judicial nominations late into the Presidential election years of 2004 
and 2008, reducing the vacancy rates in those years to their lowest 
levels in decades.
  The cost of this across the board Republican obstruction is borne by 
the American people. More than half of all Americans, nearly 160 
million, live in districts or circuits that have a judicial vacancy 
that could be filled today if Senate Republicans just agreed to vote on 
the nominations that have been reported favorably by the Judiciary 
Committee. It is wrong to delay votes on these qualified, consensus 
judicial nominees. The Senate should fill these numerous, extended 
judicial vacancies, not delay final action for no good reason.
  The result of the Senate Republicans' inaction is that the people of 
New York, California, West Virginia, Florida, Nebraska, Missouri, 
Washington, Utah, the District of Columbia, Nevada, Louisiana, and 
Texas are without the judges they need. The result is that judicial 
emergency vacancies in Florida, Utah, California, Nevada and Texas 
remain unfilled.
  Our courts need qualified Federal judges, not vacancies, if they are 
to reduce the excessive wait times that burden litigants seeking their 
day in court. It is unacceptable for hardworking Americans who seek 
their day in Federal court to suffer unnecessary delays. When an 
injured plaintiff sues to help cover the cost of medical expenses, that 
plaintiff should not have to wait for 3 years before a judge hears the 
case. When two small business owners disagree over a contract, they 
should not have to wait years for a court to resolve their dispute. 
With one in 10 Federal judgeships currently vacant, the Senate should 
have come together to remedy the serious judicial vacancies crisis on 
Federal courts around the country.
  This Republican obstruction began long before President Obama's 
recent recess appointment of a handful of Executive branch nominees 
needed for the Consumer Financial Protection Bureau and the National 
Labor Relations Board to function. Indeed, despite 3 years of delays 
and across the board obstruction of his judicial nominations, President 
Obama has not recess appointed a single judicial nominee. That is 
something President Bush did, not President Obama. Senate Democrats 
that year consented to consider noncontroversial judicial nominations, 
confirming a total of 205 circuit and district court nominations in 
President Bush's first term and lowering judicial vacancies 
dramatically. In fact, the Senate proceeded to an up or down vote and 
confirmed 1 of the judicial nominees President Bush had recess 
appointed, William Pryor to the Eleventh Circuit.
  Senate Republicans have been blocking votes on 18 of the President's 
judicial nominees since last year. Eight of the judicial nominations 
Republicans are blocking were reported unanimously by the Judiciary 
Committee in September and October last year. Another 5 nominations 
were reported in November, and 4 in December. All of these judicial 
nominations could and should have been considered by the Senate last 
year. Indeed, when Republicans held up scores of nominees in December, 
including these judicial nominees, they did so to ``punish'' the 
administration for not assuring them that the President would not use 
his recess appointment power. That delay, now of more than 2 months, 
has already taken a measure of revenge. They continue to hurt the 
country by engaging in more obstruction and delay now to seek a double 
measure of retaliation.
  Instead of exacerbating the conflict, Senate Republicans should 
reconsider their tactics and moderate their use of filibusters and 
stalling. This President has reached out to work with Senators from 
both parties with respect to judicial nominations. Every one of the 19 
judicial nominations awaiting final Senate action has the support of 
his or her home State Senators, Republican as well as Democratic. There 
is no excuse for continued stalling of President Obama's consensus 
judicial nominees. The courts and the country cannot afford another 
year of across the board delays of President Obama's judicial 
nominations. I urge votes on Jesse Furman for the Southern District of 
New York, Cathy Bencivengo for the Southern District of California, 
Gina Groh for the Northern District of West Virginia, Margo Brodie for 
the Southern District of New York, Adalberto Jordan for the Eleventh 
Circuit, Beth Phillips for the Western District of Missouri, Thomas 
Rice for the Eastern District of Washington, David Nuffer for the 
District of Utah, Stephanie Thacker for the Fourth Circuit, Michael 
Fitzgerald for the Central District of California, Ronnie Abrams for 
the Southern District of New York, Rudolph Contreras for the District 
of Washington DC, Susie Morgan for the Eastern District of Louisiana, 
Jacqueline Nguyen for the Ninth Circuit, Gregg Costa for the Southern 
District of Texas, David Guaderrama for the Western District of Texas, 
and Brian Wimes for the Eastern and Western Districts of Missouri.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.

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