[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!

                          ____________________