[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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