[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)]
[Senate]
[Pages S8375-S8377]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION DISCHARGED
Mr. REID. Mr. President, I ask unanimous consent that the Veterans'
Affairs Committee be discharged from further consideration of following
nomination: PN 2024; that the nomination be confirmed; the motion to
reconsider be considered made and laid upon the table, with no
intervening action or debate; that no further motions be in order to
the nomination; that any related statements be printed in the Record;
and that the President be immediately notified of the Senate's action
and the Senate then resume legislative session.
The PRESIDING OFFICER. Without objection, it is so ordered.
The nomination considered and confirmed is as follows:
the judiciary
William S. Greenberg, of New Jersey, to be a Judge of the
United States Court of Appeals for Veterans Claims for the
term of fifteen years, vice a new position created by Public
Law 100-389, approved October 10, 2008.
Mr. LEAHY. Mr. President, over the last four years, Senate
Republicans have chosen to depart dramatically from Senate traditions
in their efforts to delay and obstruct President Obama's judicial
nominations.
For example, until 2009, Senators deferred to the President and to
home State Senators on district court nominees. During the 8 years that
George W. Bush served as President, only 5 of his district court
nominees received any opposition on the floor. In just 4 years, Senate
Republicans have voted against 39 of President Obama's district court
nominees, and the Majority Leader has been forced to file cloture on 20
of them.
Federal district court judges are the trial court judges who hear
cases from litigants across the country and preside over Federal
criminal trials, applying the law to facts and helping settle legal
disputes. They handle the vast majority of the caseload of the Federal
courts and are critical to making sure our Federal courts remain
available to provide a fair hearing for all Americans. Nominations to
fill these critical positions, whether made by a Democratic or
Republican President, have always been considered with deference to the
home State Senators who know the nominees and their States best, and
have been confirmed quickly with that support. Never before in the 37
years I have been in the Senate have I seen anything like what has
happened in the last 4 years. Never before in the Senate's history have
we seen district court nominees blocked for months and opposed for no
good reason. Many are needlessly stalled and then confirmed virtually
unanimously with no explanation for the obstruction. Senate Republicans
have politicized even these traditionally non-partisan positions. This
is harmful to our Federal courts and the American people.
Until 2009, Senators who filibustered circuit court nominees
generally had reasons to do so, and were willing to explain those
reasons. When Senate Democrats filibustered President Bush's
controversial circuit court nominees, it was over substantive concerns
about the nominees' records and Republicans' disregard for the rights
of Democratic Senators. When we opposed Janice Rogers Brown, it was
because of her long record on the California Supreme Court of deciding
cases based on extreme views, and having argued that Social Security
was unconstitutional. When we opposed Priscilla Owen, it was because
her rulings on the Texas Supreme Court were so extreme that they drew
the condemnation of even the conservative judges on that court.
On the other hand, Senate Republicans have filibustered and delayed
nearly all of President Obama's circuit court nominees even when those
nominees have the support of their Republican home State Senators. Take
the examples of Judge Robert Bacharach and William Kayatta, two
consensus circuit nominees who have the support of their Republican
home State Senators. Both these nominees received the ABA Standing
Committee on the Federal Judiciary's highest possible rating, that of
unanimously ``Well Qualified.'' They have strong bipartisan support,
and unimpeachable credentials, and there is no reason why they should
not have been confirmed months ago. Republicans continue to stall them
without final confirmation votes approximately 8 months after they were
considered and approved by the Senate Judiciary Committee.
The irony and dangerous new development is that neither of these
nominees faces any real Republican opposition. Senator Coburn, one of
Judge Bacharach's home State Senators, has said: ``[Judge Bacharach]
has no opposition in the Senate. . . . There's no reason why he
shouldn't be confirmed.'' Still, Senate Republicans refuse to allow for
a vote on his nomination. The same also applies to Richard Taranto, who
was reported more than eight months ago to a vacancy on the Federal
Circuit by voice vote and faces no Republican opposition. This also
applies to William Kayatta of Maine, who was reported nearly eight
months ago and has the support of his two home State Republican
Senators.
It makes no sense for Senate Republicans to continue filibustering
these nominations, but it fits with their track record over the last 4
years. Senate Republicans used to insist that the filibustering of
judicial nominations was unconstitutional. The Constitution has not
changed but as soon as President Obama was elected they reversed course
and filibustered President Obama's very first judicial nomination.
Judge David Hamilton of Indiana was a widely-respected 15-year veteran
of the Federal bench nominated to the Seventh Circuit and was supported
by Senator Dick Lugar, the longest-serving Republican in the Senate.
They delayed his confirmation for 7 months. Senate Republicans then
proceeded to obstruct and delay just about every circuit court nominee
of this President, filibustering 10 of them. They delayed confirmation
of Judge Albert Diaz of North Carolina to the Fourth Circuit for 11
months. They delayed confirmation of Judge Jane Stranch of Tennessee to
the Sixth Circuit for 10 months. They delayed confirmation of Judge Ray
Lohier of New York to the Second Circuit for 7 months. They delayed
confirmation of Judge Scott Matheson of Utah to the Tenth Circuit and
Judge James Wynn, Jr. of North Carolina to the Fourth Circuit for 6
months. They delayed confirmation of Judge Andre Davis of Maryland to
the Fourth Circuit, Judge Henry Floyd of South Carolina to the Fourth
Circuit, Judge Stephanie Thacker of West Virginia to the Fourth
Circuit, and Judge Jacqueline Nguyen of California to the Ninth Circuit
for 5 months. They delayed confirmation of Judge Adalberto Jordan of
Florida to the Eleventh Circuit, Judge Beverly Martin of Georgia to the
Eleventh Circuit, Judge Mary Murguia of Arizona to the Ninth Circuit,
Judge Bernice Donald of Tennessee to the Sixth Circuit, Judge Barbara
Keenan of Virginia to the Fourth Circuit, Judge Thomas Vanaskie of
Pennsylvania to the Third Circuit, Judge Joseph Greenaway of New Jersey
to the Third Circuit, Judge Denny Chin of New York to the Second
Circuit, and Judge Chris Droney of Connecticut to the Second Circuit
for 4 months. They delayed confirmation of Judge Paul Watford of
California to the Ninth Circuit, Judge Andrew Hurwitz of Arizona to the
Ninth Circuit, Judge Morgan Christen of Alaska to the Ninth Circuit,
Judge Stephen Higginson of Louisiana to the Fifth Circuit, Judge Gerard
Lynch of New York to the Second Circuit, Judge Susan Carney of
Connecticut to the Second Circuit, and Judge Kathleen O'Malley of Ohio
to the Federal Circuit for 3 months.
The nonpartisan Congressional Research Service has reported that the
[[Page S8376]]
median time circuit nominees have had to wait before a Senate vote has
skyrocketed from 18 days for President Bush's nominees to 132 days for
President Obama's. This is the result of Republican obstruction.
This unprecedented and meritless obstruction means that when the
Senate adjourns, Senate Republicans will have blocked more than 40 of
President Obama's circuit and district nominees from being confirmed.
This obstruction is also why a damagingly high level of judicial
vacancies has persisted for over 3\1/2\ years. While such tactics are
bad for the Senate, they are also bad for our Nation's overburdened
courts. Persistent vacancies force fewer judges to take on growing
caseloads, and make it harder for Americans to have access to justice.
While they have delayed and obstructed, the number of judicial
vacancies has been historically high and it has become more difficult
for our courts to provide speedy, quality justice for the American
people. In fact, five of the judicial nominees pending on the Senate
calendar on whom Republicans refuse to allow a vote would fill judicial
emergency vacancies.
For almost 4 years now, ever since President Barack Obama took
office, we have heard the same spurious arguments from Senate
Republicans for why they refuse to help our Federal courts function.
Senate Republicans claim that we have not confirmed more judges because
President Obama has not made a sufficient number of nominations. It is
Senate Republicans themselves, and their unwillingness to work with a
President who has reached out to them to submit recommendations and to
work with him that has delayed many nominations.
Unlike his predecessor, President Obama has worked hard to solicit
recommendations from home State Senators, including those from the
other party. This President has consistently selected qualified,
mainstream nominees. For the judicial vacancies in States with two
Republican Senators, just 21 percent have a nominee. Four such
vacancies exist in Texas--including three judicial emergency vacancies.
This has prompted a retired Federal judge in Hawaii to move to Texas to
help the overburdened judges with their caseload. I urge Senate
Republicans to do a better job providing consensus recommendations and
fulfilling their own constitutional responsibility to ``advise'' the
President on nominations and work with President Obama to fill these
vacancies.
At the end of each calendar year, Senate Republicans now deliberately
refuse to vote on several judicial nominees who could and should be
confirmed in order to consume additional time the following year
confirming these nominees. At the end of 2009, they left 10 nominations
on the Executive Calendar without a vote. Two of those nominations were
returned to the President, and it subsequently took 9 months for the
Senate to take action on the other 8. This resulted in the lowest 1-
year confirmation total in at least 35 years. For the last 2 years,
Senate Republicans left 19 nominations on the Senate Executive Calendar
at the end of each year. It then took nearly half the following year
for the Senate to confirm these nominees. This year they are insisting
on leaving 11 judicial nominees without action and another 4 have had
hearings but Senate Republicans refused to expedite their
consideration.
Senate Republicans claim that their delays and obstruction should be
excused because, despite their opposition, the Senate confirmed the
President's two Supreme Court Justices. Senate Republicans ignore the
fact that during President Bush's first 4 years 205 circuit and
district court nominees had been confirmed, and that judicial vacancies
were reduced to as low as 28. During his second term, vacancies were
reduced to 34. Vacancies have stood at nearly or above for most of
President Obama's first four years and will not dip below 60. Vacancies
remain more than twice what they were at the end of President Bush's
first term. The 173 judges that we have been able to confirm fall more
than 30 short of the total for President Bush's first term. Moreover,
when the Senate confirmed two Justices during President Clinton's first
term and President George H.W. Bush's term, the Senate also confirmed
200 and 192 circuit and district nominees, respectively. Their
obstruction of needed confirmations cannot be justified on account of
the two Supreme Court vacancies.
Until 2009, when a judicial nominee had been reported by the
Judiciary Committee with bipartisan support, they were generally
confirmed quickly. Until 2009, we observed regular order and usually
confirmed four to six nominees per week, and we cleared the Senate
Executive Calendar before long recesses. Until 2009, if a nominee was
filibustered, it was almost always because of a substantive issue with
the nominee's record. We know what has happened since 2009. The average
district nomination is stalled 4.3 times as long as it took to confirm
them during the Bush administration, and the average circuit court
nomination is stalled on average 7.3 times as long as it took to
confirm them during the Bush administration. Nor has any other
President's judicial nominees had to wait an average of over 100 days
for a Senate vote after being reported by the Judiciary Committee.
No one is happier than I that a dozen district court nominees will be
confirmed during this lame duck session but that is hardly something
justifying Republican chest beating. What it starkly demonstrates is
that they have been stalling consensus nominees for months without
cause. All of these nominees could and should have been confirmed
before the August recess and should have been at work administering
justice for the American people. In most other years, like in 2008,
judicial nominees, especially those who are qualified, consensus
nominees with bipartisan support and the support of their home State
Senators, are confirmed before the election recess. They are not
stalled and not dragged over into a lame duck session after the
election. This is not success, unless you believe that perpetuating
vacancies and forcing hardworking Americans to wait even longer to have
their day in court is something of which to be proud.
Senate Republicans have also forced the Majority Leader to file
cloture on 30 nominees, which is already more than 50 percent more
nominees than had cloture filed during President Bush's 8 years in
office. Almost all of these 30 nominations were noncontroversial and
were ultimately confirmed overwhelmingly. Barely 80 percent of
President Obama's judicial nominees have been confirmed, compared to
almost 90 percent of President George W. Bush's first term nominees.
While this is not even close to a full account of the precedents
broken in the last 4 years, the record is clear: Senate Republicans
have engaged in an unprecedented effort to obstruct President Obama's
judicial nominations. Pretending it has not taken place is an insult to
the American people. The American people know better. Chief Justice
Roberts, in his year-end Report on the Federal Judiciary in 2010
pointed to the ``[P]ersistent problem [that] has developed in the
process of filling judicial vacancies. . . . This has created acute
difficulties for some judicial districts. Sitting judges in those
districts have been burdened with extraordinary caseloads. . . . There
remains, however, an urgent need for the political branches to find a
long-term solution to this recurring problem.'' Despite bipartisan
calls to address the judicial vacancy crisis, Senate Republicans
continued their obstruction of judicial confirmations.
Today, the Senate is finally being allowed to vote on 3 but only 3 of
the 14 judicial nominees pending on the Senate Executive Calendar.
Judge Malachy Mannion is nominated to fill a judicial emergency
vacancy in the U.S. District Court for the Middle District of
Pennsylvania, where he currently serves as the Chief U.S. Magistrate
Judge. He has been a Magistrate Judge in that District for over 10
years, where he has presided over 104 cases that have gone to verdict
or judgment. Prior to his appointment as a U.S. Magistrate Judge, Judge
Mannion served as Federal prosecutor for over 10 years, where he rose
to become the Chief of the Office's Organized Crime Enforcement Task
Force. The ABA Standing Committee on the Federal Judiciary unanimously
gave him its highest possible rating of ``Well Qualified.'' His
nomination has the bipartisan support of his home State Senators. He
was approved by the Judiciary Committee 5 months ago by voice vote.
[[Page S8377]]
Matthew Brann is nominated to fill a judicial emergency vacancy in
the U.S. District Court for the Middle District of Pennsylvania. He has
been in private practice for over 2 decades, where he specializes in
complex corporate and commercial transactions, real estate, probate,
and estate planning. He has tried 20 cases to verdict, judgment, or
final decision. He has the support of his home State Senators, and he
was voted out of the Judiciary Committee by voice vote 5 months ago.
Judge Jon Tigar is nominated to fill a judicial emergency vacancy in
the U.S. District Court for the Northern District of California. Judge
Tigar is currently a Superior Court Judge for Alameda County, where he
has presided over 175 cases that have gone to verdict or judgment. He
previously spent 10 years as a litigator in private practice at two
prominent law firms in San Francisco. He earned his law degree from the
University of California at Berkeley. After law school, he clerked for
the Honorable Robert S. Vance in the U.S. Court of Appeals for the
Eleventh Circuit. The ABA Standing Committee on the Federal Judiciary
unanimously gave him its highest possible rating of ``Well Qualified.''
His nomination has the support of his home State Senators, and he was
approved by the Judiciary Committee more than four months ago by voice
vote.
After today's vote, there will still be 11 judicial nominees on the
Senate Executive Calendar, 6 of whom were voted out of the Judiciary
Committee before the August recess. There is no reason why we cannot
confirm all of them today. I have also been urging Republicans to
expedite consideration of the 4 judicial nominees who participated in
hearings last Wednesday. That would lead to 11 more confirmations
before the Senate adjourns to help address the judicial vacancies that
currently exist in our Federal courts.
If we adjourn today without confirming these additional nominees, we
will leave those 11 vacancies and 5 emergency vacancies open for even
longer, and there will be at least 80 vacancies when President Obama
begins his second term. Recall that during President Bush's entire
second term, the 4 years from January, 2005 through January, 2009,
vacancies never exceeded 60. So far during President Obama's first 4
years in office and as far into the future as we can see there have
never been less than 60 vacancies, and for much of that time many, many
more. This is a prescription for overburdened courts and a Federal
justice system that does not serve the interests of the American
people.
I commend President Obama for nominating such a diverse group of
qualified judges. In his first 4 years, President Obama has appointed
as many women judges as President Bush did during his entire 8 years in
office. In just 4 years, President Obama has also nominated more
African Americans, more Asian Americans, and more openly gay Americans
than his predecessor did in 8 years. Americans can be proud of
President Obama's efforts to increase diversity in the Federal
judiciary and to ensure that it better reflects all Americans.
I hope that next year, and in the next 4 years, Senate Republicans
will end their misguided and harmful obstruction and work with us in a
bipartisan manner to do what is right for the country. President Obama
has nominated qualified, mainstream lawyers, and the Senate should
consider them in regular order, without unnecessary delays. That is
what we had done for as long as I have served in the Senate, whether
the nominations came from a Democratic or a Republican president. We
should work together to restore and uphold the best traditions of the
Senate.
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