[Congressional Record Volume 158, Number 145 (Wednesday, November 14, 2012)]
[Senate]
[Pages S6787-S6790]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, now that the elections are over, I renew my
call
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for all of us to come together to do what is right and to act in the
interests of the American people. We should come together to avert the
fiscal cliff and the automatic cuts that will otherwise occur in
domestic and defense spending.
I am hopeful that, working together, Democrats and Republicans can
come to an agreement so that we can avoid sequestration. The automatic
cuts from sequestration would further damage our Federal courts.
According to the sequestration report released by the Office of
Management and Budget, the sequestration would lead to a $555 million
reduction below fiscal year 2012 levels for our independent judiciary.
The impending across-the-board cuts under sequestration would reduce
Federal court allotments to fiscal year 2006 levels, despite
considerably higher caseloads. The impact of sequestration on Federal
court operations nationwide could be devastating. It could result in
the Federal courts eliminating as many as 6,300 employees, about one-
third of their staff, or implementing court employees furloughs for
more than a month system-wide.
If we do not find a solution to both the vacancy crisis and the
threat to judicial resources, it will be harder for Americans to obtain
justice in our Federal courts. Our courts are already overburdened, and
the sequester will result in cuts that will force courts to hear fewer
cases, which means that court proceedings will be delayed even longer.
This will be especially damaging in civil cases, where there are
already over 40,000 cases that have been pending for more than 3 years.
Sequestration cuts could even result in the suspension of civil jury
trials. Even more alarming is what is at stake in the criminal context.
If probation and pretrial services offices are downsized or closed,
Federal courts and their staff will be unable to properly supervise
thousands of persons under pretrial release and convicted felons
released from Federal prisons. It is critical, then, that we work
together.
And we should complete the task of considering the judicial nominees
who have already had their hearings before the Senate recessed for the
elections. There is no justification for holding up final Senate action
on these judicial nominations. These are not judgeships that
Republicans can claim they wish to keep open in order to be filled by
nominees from President Obama's successor next year. The American
people have decided that President Obama will continue to lead our
Nation. In accordance with the will of the American people, it is time
for the obstruction to end and for the Senate to complete action on
these nominees so that they may serve the American people without
further delay. Even Senate Republicans' contorted application of the
Thurmond Rule can no longer serve as any sort of rationale for
inaction. Delay for delay's sake is wrong and should end. The Senate
should start by acting on the 19 judicial nominations that have been
approved by the Judiciary Committee and have been awaiting final Senate
action without further delay.
Two months ago, the Senate recessed without taking action on 19
judicial nominations. All were supported by their home State Senators,
Republican and Democratic. Almost all had bipartisan support. I cannot
remember a time when the Senate refused to act on nominees with such
bipartisan support. There was no precedent for the filibuster of Robert
Bacharach of Oklahoma to the Tenth Circuit and that filibuster should
end. After Senator Coburn failed to vote for cloture to end the
filibuster of the Bacharach nomination last July, he indicated that he
expected Judge Bacharach to be confirmed before the end of the year if
President Obama was reelected. The junior Senator from Texas also
indicated that the circuit judges would be voted on if President Obama
was reelected. Well, now that the people of this country have spoken,
we should be working together to approve these judicial nominees so
they can provide justice for the American people.
I urge Senate Republicans to come together and work with us to
consider these judicial nominees without further delay. They should
agree to debate and then to let the Senate vote on the nominations of
Judge Patty Shwartz of New Jersey to the Third Circuit, Richard Taranto
to the Federal Circuit, William Kayatta of Maine to the First Circuit,
Robert Bacharach of Oklahoma to the Tenth Circuit, and the district
court nominees from Connecticut, Maryland, Florida, Oklahoma, Michigan,
California, New York, Pennsylvania, and Illinois. I am also working to
have the Judiciary Committee complete its consideration of five more
judicial nominees who had their hearing in September. With the
confirmation of these nominees, we can eliminate the backlog here in
the Senate and take a significant step toward filling a good portion of
the judicial vacancies that have been plaguing our courts, including
filling over a dozen judicial emergency vacancies.
The president of the Hispanic National Bar Association wrote a letter
to the Senate Leaders in September saying: ``The fact that Congress is
adjourning without confirming these candidates is of great concern, and
is a disservice to the Federal Courts and the people they serve.'' He
was right. Now that the election is over, let us come together as the
Senate of the United States and make progress on behalf of the American
people.
The New York Times noted in an editorial last month entitled
``Politics and the Courts'' that: ``During the Obama years, nominees
presenting no ideological threat have been held up in the Republicans'
campaign of partisan attack and obstruction--even against trial judges.
* * * The holdups have cost Americans dearly--in justice delayed (it
now generally takes two years to get a federal civil trial) and justice
denied.'' Now that the election is over, let us do what we can to
mitigate the damage and move forward.
The number of judicial vacancies has, again, risen above 80. I have
heard from judges around the country whose courts have vacancies. 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.
Recently, Professor Carl Tobias summed up the vacancy crisis that has
been plaguing us for the last four years. Professor Tobias is right,
and we need to expeditiously confirm our judicial nominees so they can
deliver justice for the American people. I ask consent that his full
article in The Hill, entitled, ``Obstruction in Senate Taking Its Toll
on the Courts,'' appear in the Record at the conclusion of my remarks.
We can begin to help address the vacancy crisis by confirming the 19
nominees who are currently waiting for final Senate action. The four
circuit court nominees have each been waiting at least 5 months for a
vote. One has been stalled for more than 8 months. The 15 district
court nominees have all been waiting at least 3 months, with some
stalled for as long as 7 months.
The Republican Senator from Pennsylvania wrote a letter to the
Majority leader and Senator McConnell asking that the two nominees for
the Middle District of Pennsylvania be considered. I want to see those
nominees, as well as the dozen whose Senate votes have been delayed
even longer, and all the judicial nominees who have had a hearing,
acted upon by the Senate.
The Senate should not continue down the path of unprecedented
obstruction and delay. President Obama had not sought to pick an
ideological fight with the Senate on judicial nominees as his
predecessor had done. By way of example, the Republican Senators from
Oklahoma have said that they support Robert Bacharach, and the
Republican Senators from Maine strongly support William Kayatta. It is
unprecedented to have this many consensus judicial nominees not acted
upon before the election recess in a presidential election year.
The American people deserve better, and I know the Senate can do
better. After the midterm election in 2002, Senate Democrats worked
with Senate Republicans to confirm 20 of President Bush's judicial
nominees in 1 week, including 18 in just 1 day. Again, in 2010, the
Senate proceeded to confirm 19 judicial nominees during the lameduck
session after the election. Unfortunately, Republican delays in 2010
had backlogged 38 judicial nominees and the confirmations of 19 went
only halfway to what we should have done.
When Ronald Reagan, George H.W. Bush and George W. Bush were
President, Senate Democrats cleared the calendar of all but the most
controversial and extreme ideological judicial
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nominations. The Senate needs to be allowed to vote on President
Obama's judicial nominees now so that our Federal courts are better
able to function and fulfill the fundamental guarantee of providing
access to justice. I hope that now that President Obama has been
reelected, Senate Republicans will work with us to fill these
longstanding judicial vacancies. The American people deserve no less.
When an injured plaintiff sues to help cover the cost of his or her
medical expenses, or when two small business owners disagree over a
contract, they should not have to wait years for a court to resolve
their dispute. 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 make it hard to
keep this promise, the Senate should work in a bipartisan manner to
help.
I ask unanimous consent that the letters to which I referred be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Hispanic National Bar Association,
Washington, DC, September 25, 2012.
Hon. Harry Reid,
Senate Majority Leader,
Washington, DC.
Hon. Mitch McConnell,
Republican Leader,
Washington, DC.
Dear Senators Reid and McConnell: On behalf of the Hispanic
National Bar Association (HNBA), which represents the
interests of the 100,000 Hispanic attorneys, judges, and law
professors in the United States and Puerto Rico, we write
expressing our concern that Congress is adjourning without
confirming the remaining Latino nominees and HNBA endorsed
nominees pending on the Senate Executive Calendar. As a bar
association, one of our greatest priorities is to advocate
for a diverse judiciary and legal profession, and we believe
that having a judiciary that is reflective of the citizenry
should be one of Congress' priorities.
Fernando Olguin and Jesus Bernal, who have been nominated
for seats in the Central District of California, and William
Kayatta, who has been nominated to the First Circuit in
Maine, are all highly qualified, noncontroversial candidates
with bipartisan support who were voted out of the Senate
Judiciary Committee by voice. Despite their qualifications
and the lack of any substantive opposition to their
nominations, they have been pending on the Senate calendar
for months--Mr. Olguin and Mr. Bernal for over two months,
and Mr. Kayatta for over five months--waiting to be
confirmed. This is especially concerning considering both Mr.
Bernal and Mr. Olguin are nominated to seats that have been
deemed judicial emergencies, and Mr. Kayatta is nominated for
the First Circuit. The fact that Congress is adjourning
without confirming these candidates is of great concern, and
is a disservice to the Federal Courts and the people they
serve.
It is of utmost importance for the operational capacity and
overall integrity of our judicial system that we appoint and
confirm quality and experienced individuals to serve in the
Federal judiciary in a timely manner. Given the number of
judicial emergencies and growing caseloads across the
country, the need to fill vacancies efficiently and
expeditiously has become paramount. It is of vital importance
that qualified, noncontroversial nominees are confirmed as
quickly as possible. With that, we again urge your
consideration of the Latino nominees and HNBA endorsed
nominees currently pending on the Senate Calendar.
Sincerely,
Peter M. Reyes, Jr.,
National President, Hispanic National
Bar Association.
____
[From the New York Times, Oct. 16, 2012]
Politics and the Courts
The winner of the presidential election will have scores of
federal judgeships to fill and the chance to shape the
courts--even aside from potential Supreme Court vacancies
should one or more of the current justices retire.
After a slow start, the Obama administration picked up the
pace in filling judgeships, but it will end up with more
vacancies on Election Day than the day the president took
office. Currently, 32 positions, considered ``judicial
emergencies'' by court administrators, are unfilled, creating
heavy workloads for judges on those courts.
On the federal appeals courts, the final arbiters on all
but the tiny percentage of cases decided by the Supreme
Court, there are now 14 judgeships open out of 179 total
seats. With about six judges a year taking senior status,
working only part time, the next president could have as many
as 40 appellate openings to fill by the end of 2016.
On the trial courts, which resolve around 325,000 cases a
year, six times the number of appeals court cases, there are
now 62 vacancies out of 677 positions.
Much of the problem, of course, has been the broken
confirmation process in the Senate, where Republicans have
used the filibuster to block judicial nominees for no reason
except to prevent President Obama from filling the seats. In
the next Congress, the Senate should ensure every nominee an
up-or-down vote within 90 days.
The United States Court of Appeals for the District of
Columbia, one of the nation's most important courts, has
suffered particularly in this process, with three unfilled
seats and no judge confirmed for the court since 2006.
Politicization has also crept into the process for
approving district court nominees. In the 101st Congress in
1989 and 1990, 96 percent of the district court nominees
picked by President George H. W. Bush were confirmed, and the
confirmation process took on average just 77 days. Twenty
years later, only 56 percent of President Obama's nominees
were confirmed and the process took on average 174 days.
During the Obama years, nominees presenting no ideological
threat have been held up in the Republicans' campaign of
partisan attack and obstruction--even against trial judges
whose decisions are rarely ideological and can be appealed.
The holdups have cost Americans dearly--in justice delayed
(it now generally takes two years to get a federal civil
trial) and justice denied. It is time to adopt a more
efficient, less political approach to district court
confirmations. The courts must be brought to full strength so
they can meet the demands for justice. The next president and
the new Senate should make reforming the confirmation process
a paramount priority.
____
[The Hill's Congress Blog, Oct. 31, 2012]
Obstruction in the Senate Takes Its Toll on Courts
(By Carl Tobias)
Halloween is the perfect occasion for analyzing scary
federal judicial selection with three judges assuming senior
status on October 31. The bench experiences 83 vacancies in
the 858 appellate and district judgeships. The openings first
spiked to 90 in August 2009 and have since remained near ten
percent. These empty seats are ghost-like apparitions that do
nothing to resolve huge caseloads. Thus, President Barack
Obama must promptly nominate, and the Senate expeditiously
confirm, lower court nominees, or the nation will confront
the nightmare of a judiciary that cannot deliver justice.
Since 1987, Republican and Democratic accusations,
countercharges and paybacks have haunted selection mainly
because of divided government. Democrats now control the
White House and the Senate. However, the party should
continue cooperating with Republicans to reduce these
counterproductive dynamics because the process has stopped
until the November lame duck session.
President Obama has vigorously consulted with Republican
and Democratic senators from states where vacancies
materialized before actual nominations. Obama has proffered
uncontroversial nominees, of even temperament, who are smart,
ethical, diligent and independent and diverse in terms of
ethnicity, gender and ideology.
Senator Patrick Leahy (D-Vt.), the Judiciary Committee
chairman, has rapidly conducted hearings and votes,
condemning (sending) nominees to unending nights of the
living dead on the floor where many languished over months.
For example, in late September, the Senate confirmed two
nominees, although it could easily have voted on another 19
nominees with committee approval. Indeed, the Senate recessed
without considering any of those well qualified nominees,
most of whom the committee reported absent substantive
opposition, because the GOP refused to vote.
Republicans should stop their tricks and treat the process
more cooperatively. The primary bottleneck has been the
floor. Senator Mitch McConnell (R-Ky.), the minority leader,
has played the role of Dracula, sucking the lifeblood out of
qualified nominees' candidacies by rarely agreeing to final
votes. Even the dreaded Ninth Circuit nominee Goodwin Liu--
whom McConnell and his colleagues outrageously characterized
as the Second Coming of Earl Warren and refused any vote--has
proved to be a remarkably mainstream California Supreme Court
Justice. Most problematic has been Republican rejection of
votes on noncontroversial strong nominees, inaction that
violates Senate customs. When the chamber has ultimately
voted, it has approved many nominees unanimously or by
substantial majorities.
The 179 appellate judgeships, 15 of which are open, are
crucial because the dozen circuits are courts of last resort
in their regions for 99 percent of appeals. Obama has
proposed seven exceptional nominees, and he should keep
working with Leahy and Senator Harry Reid (D-Nev.), the
majority leader, who arranges floor votes, and their
Republican counterparts to facilitate smooth confirmation
while nominating strong candidates for the eight openings
that lack nominees. On June 13, the GOP leadership invoked
the ``Thurmond Rule,'' which masqueraded as a binding
mandate, saying it would oppose votes on all appellate
nominees until the election. Because this notion does not
apply to excellent, consensus nominees, like First, Tenth,
and Federal Circuit nominees William Kayatta, Robert
Bacharach and Richard Taranto, the Senate must vote on them
soon.
The 679 district judgeships, 68 of which are open, are
essential, as district judges conduct federal trials and
ascertain the facts, while appeals courts uphold 80 percent
of
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lower court decisions. Obama has nominated 27 excellent
individuals and must quickly suggest candidates for the 41
vacancies without nominees. For its part, the Senate must
swiftly confirm nominees.
The vacancies in 83 judgeships resulting from GOP
obstruction have, like Dr. Frankenstein, created monstrous
dockets that jeopardize expeditious, inexpensive and fair
case resolution. Thus, President Obama must promptly
nominate, and senators rapidly confirm, numerous superb
judges, so the courts can deliver justice. Boo!
____________________