[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.

                          ____________________