[Congressional Record Volume 158, Number 129 (Friday, September 21, 2012)]
[Senate]
[Pages S6609-S6611]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Mr. LEAHY. Mr. President, Senate Republicans' partisan obstructionism
has reached a new low. There are 17 district court nominees pending
before the Senate, and 12 of them would fill judicial emergency
vacancies on our Federal trial courts. In an unprecedented breaking
from our tradition, Senate Republicans have decided that they will
recess for the election and deny almost all of these consensus nominees
confirmation. Worse, they have decided to extend the delays that
Americans face in our overburdened Federal courts by denying new judges
to those courts. We all know that justice delayed is justice denied. By
denying confirmation votes to 15 of these 17 nominations, Senate
Republicans are denying justice to the American people. By refusing to
vote on these 15 nominations, Senate Republicans have declared that
they are unconcerned about the millions of Americans who will continue
to lack adequate access to our Federal courts and speedy justice.
=========================== NOTE ===========================
On page S6609, September 21, 2012, the Record reads: The
nominations were confirmed. JUDICIAL NOMINATIONS Senate
Republicans' partisan obstructionism
The online Record has been corrected to read: The nominations
were confirmed. Mr. LEAHY. Mr. President, Senate Republicans'
partisans obstructionism
========================= END NOTE =========================
Sadly this is just one more example of Senate Republicans putting
partisanship ahead of the interests of the American people. The refusal
to allow votes on consensus nominees has become standard operating
procedure for Senate Republicans. They refused to vote on 10 judicial
nominees at the end of 2009, left 19 judicial nominees pending at the
end of 2010, and blocked votes on 19 judicial nominees pending at the
end of 2011. It took through May of this year to clean up the backlog
left from last year. Then in June Senate Republicans declared their
shutdown of confirmations. I have served in the Senate for 37 years,
and I have never seen so many judicial nominees, reported with
bipartisan support, be denied a simple up-or-down vote for four months,
five months, six months, even 11 months. I have never seen such twisted
applications of their ``Thurmond Rule'' and never have I seen the
Thurmond Rule used to block votes on consensus district court nominees.
And if there was any doubt that Senate Republicans insist on being the
party of ``no'', their current decision to deny votes on these highly-
qualified, noncontroversial district court nominees, supported by their
home State Senators both Republican and Democratic, while our Federal
courts still have almost 80 vacancies, shows that they care more about
opposing this President's nominees than helping the American people.
Before the American people elected Barack Obama as our President,
district court nominees were generally confirmed within a couple of
weeks of being reported by the Judiciary Committee. This was true of
those nominated by Republican Presidents and Democratic Presidents.
Deference was traditionally afforded to home State Senators and
district court nominees supported by home State Senators were almost
always confirmed unanimously.
However, Senate Republicans have raised the level of partisanship so
that district court nominees have now become wrapped around the axle of
partisanship. And that is unfortunate. In just this year, the Majority
Leader has been forced to file cloture on 23 of President Obama's
judicial nominees, including 19 district court nominees. Every single
one of those 23 nominees had bipartisan support, and when the Senate
was finally allowed to vote on them, all of the 22 who did receive an
up-or-down vote were confirmed with votes from both Republican and
Democratic Senators.
In spite of this unprecedented obstruction of President Obama's
nominees, Senate Republicans are oblivious to their foot-dragging and
the harm it is creating for Americans seeking justice from our Federal
courts across the country.
There are currently 78 Federal judicial vacancies. Judicial vacancies
during the last few years have been at historically high levels and
have remained near or above 80 for nearly the entire first term of the
President. Nearly one out of every 11 Federal judgeships is currently
vacant. Vacancies on the Federal courts are more than two and one half
times as many as they were on this date during the first term of
President Bush. That is not what any objective observer would call
``consistent progress.''
The fact is that due to across-the-board obstruction by Senate
Republicans, we remain well behind the pace we set during President
Bush's first term. According to the Congressional Research Service, 95
percent of President Bush's district court nominees were confirmed in
his first term. We would have had to confirm all 17 of the district
court nominees the Majority Leader sought consent earlier this week,
just to get close to parity with that level. Moreover, President
Obama's district court nominees have been consistently stalled, being
forced to wait nearly three times longer for a Senate vote once
reported by the Judiciary Committee.
Nor has the Senate even been allowed to keep pace with the progress
that Senate Democrats made on President Bush's district court nominees
in 2008, the last year of his presidency. That year, the Committee
reported 24 district court nominees and all 24 were confirmed. We
continued holding hearings and the Committee reported and the Senate
then confirmed nominees into September of that presidential election
year. This year, the Senate has been allowed to confirm only 13
district court nominees reported this year. Because of Republican
obstruction, the Senate has barely accomplished half of what we did in
2008.
Indeed, in September 2008, the Judiciary Committee held hearings on
and then reported 10 district court nominees, all of whom were then
confirmed by unanimous consent in that same month. Contrary to the
assertion from the Republican leader, they were not backed up and long
delayed. We did not do what Senate Republicans are now doing. We moved
promptly on consensus trial court nominees. This year,
[[Page S6610]]
Republicans have backlogged consensus nominees who were reported in
April, five months ago. None of these nominees has been pending for
less than seven weeks. To date, the Senate has been allowed to confirm
one district court nominee this September while 17 other Federal trial
court nominees await Republicans agreeing to a vote so that they can be
confirmed and get to work for the American people.
There are still far too many judicial vacancies and the Republican
leader's efforts to slice and dice various numbers in ways most
flattering to this obstruction do nothing to explain why we cannot make
more progress. The Majority Leader is not ``jamming'' through nominees
when he asks for votes that should have taken place before the Memorial
Day, Fourth of July, and August recesses.
Despite the Republican filibuster against Caitlin Halligan to serve
on the D.C. Circuit, Patty Shwartz of New Jersey to serve on the Third
Circuit; their filibuster of Judge Barbara Keenan of Virginia to serve
on the Fourth Circuit; their opposition to Justice Sonia Sotomayor,
Justice Elena Kagan, Judge Jane Stranch of Tennessee to serve on the
Sixth Circuit, Judge Susan Carney of Connecticut to serve on the Second
Circuit, Judge Bernice Donald of Tennessee to serve on the Sixth
Circuit, Judge Morgan Christen of Alaska to serve on the Ninth Circuit,
Judge Stephanie Thacker of West Virginia to serve on the Fourth
Circuit, Judge Jacqueline Nguyen of California to serve on the Ninth
Circuit, Judge Nancy Freudenthal of the District of Wyoming, Judge
Benita Pearson of the Northern District of Ohio, Judge Susan Hickey of
the Western District of Arkansas, Judge Ali Nathan of the Southern
District of New York, Judge Cathy Bissoon of the Western District of
Pennsylvania, Judge Yvonne Rogers of the Northern District of
California, Judge Sharon Gleason of the District of Alaska, Judge Cathy
Bencivengo of the Southern District of California, Judge Margo Brodie
of the Eastern District of New York, Judge Beth Phillips of the Western
District of Missouri, Judge Gina Groh of the Northern District of West
Virginia, Judge Ronnie Abrams of the Southern District of New York,
Judge Susie Morgan of the Eastern District of Louisiana, Judge Miranda
Du of the District of Nevada and Judge Mary Lewis of the District of
South Carolina, there is one area in which we have been able to make
progress is spite of Senate Republican obstruction. With the
confirmation last week of Judge Stephanie Rose to the district court in
Iowa, President Obama has already, in his fourth year in office,
appointed as many women to the Federal bench as President Bush had in
all eight years in which he was President. I hope that all Americans
are proud of President Obama's outstanding effort to increase diversity
in the Federal judiciary and to ensure that it better reflects all
Americans. Those commendable efforts are not preventing votes on the 17
Federal trial court nominees ready for final Senate action. Senate
Republicans are preventing those votes.
I wish Senate Republicans approached this as something other than an
ill-conceived game of tit for tat. This obstruction has real costs to
the American people. Last week I inserted in the Record an article
about the ``Human Costs of Judicial Confirmation Delays.'' The author,
Andrew Cohen, described the problems facing just one of our Nation's 94
district courts. In the Middle District of Pennsylvania, where there
are two judicial emergency vacancies, a litigant had to wait nearly two
months for an ``urgent injunction hearing'' because there ``simply
aren't enough federal judges in the Middle District of Pennsylvania to
handle his case.'' In that District, senior judges have had to take on
far more cases than they would otherwise. Four of those senior judges
are at least 86 years old. The Chief Judge of that district called it
an ``absurdity.'' It is not fair to the senior judges, and it is not
fair to the litigants who rely on the court to do justice. Two of the
Federal trial court nominees being held hostage by Senate Republicans
would fill judicial emergency vacancies in the Middle District of
Pennsylvania.
This is just one example of the damage done to our courts by
needlessly delayed confirmations. I have heard from judges around the
country whose courts have vacancies, including in Illinois and Florida.
They are working hard to keep their courts functioning, but they need
help to ensure that all Americans have access to courts and to justice.
There are also judicial emergency vacancies in California, New York and
Illinois that we could have filled this week but Senate Republicans
objected. Of the 17 district court nominees pending before the Senate a
dozen would fill judicial emergency vacancies.
These longstanding vacancies are harming the American people, but it
does not have to be this way. Americans seeking justice in Federal
trial courts in California, Connecticut, and Utah should not have to
wait five months for a judge because Senate Republicans will not
proceed with nominations that have bipartisan support and have been
considered and voted on by the Senate Judiciary Committee. Americans in
Florida, Illinois, Maryland, Michigan, New York, Pennsylvania, and
Oklahoma should not have to wait four and five extra months for their
courtrooms to have judges. If we were keeping pace with what Senate
Democrats did in President Bush's first term and as recently as 2008,
those nominees would be confirmed. They would be hearing cases and
providing justice today.
Some Senate Republicans have sought to justify their inaction on
nominations by complaining that the President has not sent us enough
nominees. The fact is that there are 17 district court nominees who can
be confirmed right now, including 12 who would fill emergency
vacancies. The names of these 17 nominees have been printed in the
Senate Executive Calendar every day for the last several months, every
day since they were voted on by the Senate Judiciary Committee months
ago. There is no excuse for not acting on them.
Today the Senate finally voted on the nomination of Gonzalo Curiel to
fill a judicial emergency vacancy on the U.S. District Court for the
Southern District of California. He has the support of his home State
Senators, Senator Feinstein and Senator Boxer. His nomination was
reported with a virtually unanimous voice vote by the Judiciary
Committee five months ago. The only objection came as a protest on
another issue by Senator Lee.
Judge Curiel currently serves as a judge on the Superior Court of
California in San Diego County. Prior to joining the State bench in
2006, Judge Curiel spent 17 years as a Federal prosecutor and 10 years
in private practice. As a Federal prosecutor he rose to become Chief of
the Narcotics Enforcement Section for the Southern District of
California, and led the successful investigation and prosecution of a
multibillion dollar trafficking organization responsible for over 100
drug-related murders in the United States and Mexico.
The Senate finally voted on the nomination of Robert Shelby to fill a
judicial emergency vacancy on the U.S. District Court for the District
of Utah. He is currently a shareholder at the Salt Lake City law firm
of Snow, Christensen & Martineau. After law school he served as a law
clerk to Judge J. Thomas Greene in the District of Utah, the same court
to which he is nominated. His nomination, which has the support of both
of Utah's Senators, Senator Hatch and Senator Lee, was reported nearly
unanimously by the Judiciary Committee by voice vote nearly five months
ago.
Further delays on the 15 additional district court nominees still
awaiting their confirmation votes do not help the American people.
These nominees should be providing justice for the American people.
Supreme Court Justice Anthony Kennedy said recently that this extreme
partisanship erodes the public's confidence in our courts and ``makes
the judiciary look politicized when it is not, and it has to stop.'' He
is right. If Senate Republicans have a good reason for why courts in
California and Illinois and Michigan and New York and Pennsylvania
should remain overburdened and unable to provide the quality and speedy
justice Americans deserve, then I wish they would let the American
people know what that reason is. The fact is, Senate Republicans have
not explained their unprecedented obstruction of President Obama's
consensus
[[Page S6611]]
nominees, they just try to pretend it does not exist. The American
people know better, and they deserve better.
Americans are rightfully proud of our legal system and its promise of
access to justice and speedy trials. This promise is embedded in our
Constitution. When overburdened courts made it hard to keep this
centuries-old promise, the Senate should work in a bipartisan manner to
fill judgeships and to create and fill new judgeships. That is what
Senate Democrats did when Ronald Reagan, George H.W. Bush, and George
W. Bush were President. Since the American people elected President
Obama, Senate Republicans have determined that they are no longer
interested in whether or not our courts are able to meet this
fundamental guarantee. They have decided that it is acceptable for
hardworking Americans to wait two months for ``urgent'' hearings, and
that the ten additional judicial emergency vacancies they could fill
right now should remain vacant for no good reason. The American people
deserve better.
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