[Congressional Record Volume 159, Number 45 (Monday, April 8, 2013)]
[Senate]
[Pages S2449-S2452]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 JACKSON, MOORE, AND NUNLEY NOMINATIONS

  Mr. LEAHY. Mr. President, last month, I spoke at the Judicial 
Conference about the damaging effect of sequestration on our Federal 
courts and our system of justice. These indiscriminate cuts are already 
causing both Federal prosecutors and Federal public defenders to be 
furloughed. The Administrative Office of U.S. Courts has done its best 
to address these cuts, but the judicial system can only weather the 
effects of sequestration for so long before it is irreparably harmed. 
In a letter dated March 5, 2013, Judge Thomas Hogan, the director of 
the Administrative Office of U.S. Courts, wrote that the cuts from 
sequestration could not be ``sustained beyond fiscal year 2013 and will 
be difficult and painful to implement.'' He went on to note: ``The 
Judiciary cannot continue to operate at such drastically reduced 
funding levels without seriously compromising the constitutional 
mission of the federal courts.'' In that same letter, he wrote that 
sequestration will mean reduced funding for drug testing and mental 
health treatment, and fewer probation officers.
  Along the same lines, last month Andrew Cohen wrote an article in The 
Atlantic entitled ``How the Sequester Threatens the U.S. Legal 
System.'' He suggests that sequestration will threaten defendants' 
constitutional rights, and law enforcement's ability to effectively 
fight crime, writing: ``Beyond a reasonable doubt, the sequester is 
having a profound and pernicious effect on the government's ability to 
observe its constitutional commands--and to provide justice to its 
citizens.''
  I ask unanimous consent that copies of Judge Hogan's letter and the 
article from The Atlantic be printed in the Record at the conclusion of 
my remarks.
  Justices Stephen Breyer and Anthony Kennedy testified before the 
House Appropriations Committee last month about the impact of 
sequestration and budget cuts. Justice Kennedy said that funding for 
programs like drug testing and mental health services is ``[A]bsolutely 
urgent for the safety of society.'' The Justices also noted the harm 
that would result from cuts to public defenders, as the government 
would then have to pay private defense attorneys to provide counsel. 
Justice Breyer highlighted the additional costs to the government from 
mistakes being made in trials, including wrongful convictions.
  These budget cuts to our courts are also bad for our economy. Fewer 
court staff will mean further delays for civil and bankruptcy cases. 
There are already more than 30,000 civil cases that have been pending 
for more than 3

[[Page S2450]]

years. We know that justice delayed is justice denied, and hardworking 
Americans who look to our courts to protect their rights deserve 
better.
  Even before sequestration went into effect, our Federal courts have 
spent nearly 4 years burdened by unnecessarily high numbers of judicial 
vacancies. Judicial vacancies have been near or above 80, and for over 
2 years were at ``historically high'' levels, according to the 
Congressional Research Service. The Senate must do much more to fill 
these vacancies and make real progress.
  Unfortunately, Senate Republicans have been unwilling to work with 
President Obama. The Judiciary Committee's ranking Republican member 
recently expressed concern that not all judicial emergency vacancies 
have nominees. Of the 35 judicial emergency vacancies, 24 are in States 
with Republican Senators. In fact, close to half of all judicial 
emergency vacancies are in just three States, each of which is 
represented by two Republican Senators. Those Senators should be 
working with the White House to fill those vacancies. Even for judicial 
emergency vacancies in those three states that have a nominee, 
Republican Senators have not supported moving forward. So I encourage 
Republican Senators to work with the President to find good nominees 
for those important vacancies and to allow qualified nominees to move 
forward. I take very seriously our responsibilities of both advise and 
consent on nominations. Senators should stop pocket filibustering the 
President's nominees and work with him to fill these judicial 
vacancies.
  Regrettably, qualified, consensus nominees are being delayed, even 
nominees who are supported by home State Republican Senators. They are 
subjected to unnecessary and unprecedented delays on the Senate floor. 
These nominees have been vetted in a lengthy process, and often have 
the support of all Senators on the Judiciary Committee, so there is no 
reason we cannot consider them in regular order. For the last 4 years, 
Senate Republicans have consistently refused to consent to what used to 
be the routine consideration of consensus judicial nominees. That is 
why the Majority Leader has been forced to file cloture on 30 of 
President Obama's nominees, which is already over 65 percent more 
nominees than had cloture filed during the 8 years of the George W. 
Bush administration. Many of those nominees are then confirmed 
unanimously after months or even a year of waiting. There is no good 
reason the Senate cannot consider them more expeditiously. These 
deliberate delaying tactics hurt the Senate, our courts, and the 
American people.
  Before the most recent recess, the Senate was finally allowed to vote 
on the nomination of Ketanji Brown Jackson to fill a judicial vacancy 
on the U.S. District Court for the District of Columbia. She currently 
serves as Vice Chair and Commissioner of the U.S. Sentencing 
Commission, to which the Senate previously confirmed her. Previously, 
Ketanji Jackson was a counsel at Morrison & Foerster LLP and an 
Assistant Federal Public Defender in the Office of the Federal Public 
Defender in the District of Columbia. After graduating, cum laude, from 
Harvard Law School, where she served as Supervising Editor of the 
Harvard Law Review, she served as a law clerk to Judge Patti Saris of 
the District of Massachusetts, Judge Bruce Selya of the First Circuit, 
and Justice Stephen Breyer of the U.S. Supreme Court. When confirmed, 
she will be the first female African-American judge appointed to the 
court in 32 years and the only one currently serving on the court. She 
had her hearing last year and her confirmation could have been 
expedited then. It was not and she is among those who had to be 
renominated by the President this year. Her nomination was then 
reported unanimously in February by the Judiciary Committee.
  The Senate was finally allowed to consider, as well, the nomination 
of Troy Nunley to fill a judicial emergency vacancy in the Eastern 
District of California. That court has one of the heaviest caseloads 
per judge of any in the country. Judge Nunley could and should have 
been confirmed last year when the Judiciary Committee reported his 
nomination unanimously. Instead, he was among those Republican Senators 
refused to consider before adjourning. The President had to renominate 
him and the Senate Judiciary Committee again voted unanimously to 
proceed with his confirmation this year more than a month ago. He is 
currently a judge of the Superior Court of California and he served 
previously as Deputy Attorney General for the California Department of 
Justice and as Deputy District Attorney for both the Sacramento County 
District Attorney's Office and the Alameda County District Attorney's 
Office. He has the support of both his home State Senators, Senator 
Feinstein and Senator Boxer.
  The Senate will also vote on the nomination of Raymond Moore to fill 
a judicial emergency vacancy in the District of Colorado. He currently 
serves as the Federal Public Defender in the Federal Public Defender's 
Office for the Districts of Colorado and Wyoming in Denver, CO, where 
he formerly served as the Acting Federal Public Defender and as an 
Assistant Federal Public Defender. Raymond Moore has also worked in 
private practice and served as a Federal prosecutor. He received the 
ABA Standing Committee on the Federal Judiciary's highest possible 
rating, unanimously ``well qualified,'' and has the support of his home 
State Senators, Senator Udall and Senator Bennet. He was reported 
unanimously last February by the Judiciary Committee.
  There are still another 15 judicial nominees pending before the 
Senate. All of these nominees had to be renominated after being 
returned at the end of the last Congress. It is unusual to have such a 
backlog so early in a Congress, and this is the result of Senate 
Republicans' refusal to allow votes on 11 nominees at the end of last 
year, including Judge Nunley, and their refusal to consider another 
four, which included the D.C. district court nominee being confirmed 
today, who had hearings and could have been expedited. We have yet to 
work our way through the nominees who were available for Senate 
consideration and confirmation last year. The delayed consideration of 
those nominees, at this pace, could easily extend into June. I urge 
Senate Republicans to join with us so that we can clear the calendar 
and confirm these consensus nominees during the current work period. 
Let us come together in a bipartisan manner and restore the best 
traditions of the Senate. The Americans who depend on our courts for 
justice deserve no less.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          [From the Atlantic]

           How the Sequester Threatens the U.S. Legal System

                           (By Andrew Cohen)

       When the chief justice of the United States and the chief 
     judges of each of the federal circuits gavel down the semi-
     annual meeting of the Judicial Conference of the United 
     States on Tuesday, they will have on their agenda an unusual 
     item: the alarming impact of the funding ``sequester'' on the 
     nation's federal court system. The world won't end if 
     students are denied the chance to tour the White House. It 
     will not end if our National Parks open days late this 
     spring. But citizens everywhere will see vital legal rights 
     denied or delayed by the forced budget cuts.
       All of the constituencies of the judiciary agree on this 
     issue. Federal trial judges are quietly seething at the 
     inability of the legislative and executive branches to avoid 
     sequester. Federal public defenders, whose budgets have been 
     cut twice in two months, are furloughing and laying off 
     staff. The attorney general of the United States has 
     expressed grave concern on behalf of prosecutors and federal 
     law enforcement officials. And court administrators are 
     expressing alarm over the effect of the cuts upon federal 
     judicial services.
       At the core of the problem is the fact that the judicial 
     branch is financially beholden to the other two branches of 
     government. This separation of powers was designed by our 
     nation's founders to limit the judiciary's independence, and 
     it has, and nowhere is this dynamic more visible than when a 
     chief justice like John Roberts has to grovel for funding or 
     otherwise justify the judiciary's minuscule portion of the 
     budget. If the sequester isn't unconstitutional per se, it is 
     causing an unconstitutional effect upon the swift, fair and 
     equal administration of justice.


                    For Federal Court Administrators

       In a letter forwarded last week to members of the House and 
     Senate Appropriations and Judiciary committees, U.S. District 
     Judge Thomas F. Hogan, the Reagan appointee who now serves as 
     director of the Administrative Office of the U.S. Courts, 
     succinctly described the scope of the problem:
       Public safety will be impacted because there will be fewer 
     probation officers to supervise criminal offenders released 
     in our

[[Page S2451]]

     communities. Funding for drug testing and mental health 
     treatment will be cut 20 percent. Delays in the processing of 
     civil and bankruptcy cases could threaten economic recovery. 
     There will be a 30 percent cut in funding for court security 
     systems and equipment and court security officers will be 
     required to work reduced hours, thus creating security 
     vulnerabilities throughout the federal court system. In our 
     defender services program, federal defender attorney staffing 
     levels will decline, which could compromise the integrity of 
     the defender function . . .
       Dennis Courtland Hayes, president of the American 
     Judicature Society, the non-partisan national organization 
     dedicated to the preservation and improvement of the American 
     legal system, was even blunter in late February with the 
     statistics he offered:
       Nationally, up to 2,000 more court staff could be laid off 
     or furloughed under sequestration. This would come on top of 
     the more than 1,800 positions eliminated by the courts over 
     the past 18 months, representing a potential 18% reduction in 
     court staff since July 2011 . . . Of particular concern to 
     the American Judicature Society, which has worked for decades 
     to improve access to the courts for self-represented 
     litigants, those people seeking justice without a lawyer 
     would have fewer services to help them navigate the judicial 
     system.
       ``Sequestration's almost $350 million cut will not be fully 
     felt in one day, one month or even one year,'' Judge Hogan 
     wrote last week. ``Reductions of this magnitude strike at the 
     heart of our entire system of justice and spread throughout 
     the country. The longer the sequestration stays in place, the 
     more severe will be its impact on the courts and those who 
     use them.'' The federal judiciary is being held hostage, in 
     other words, because of the failure or the refusal of 
     Congress and the White House to make a responsible budget 
     deal.


                      For Federal Public Defenders

       If federal court administrators offer the big picture 
     impact of the sequestration, federal public defenders all 
     over the country are sharing the details on an office-by-
     office basis. These stories are bad in two dimensions. First, 
     there is the grim business of laying off desperately needed 
     federal workers. Second, there is the impact those layoffs 
     will have on ordinary people who for one reason or another 
     are involved in the federal court system. It's really quite 
     simple: The people being laid off try each day to help the 
     rest of us secure our constitutional rights.
       Let's start with Jon Sands, the longtime Federal Public 
     Defender for the District of Arizona. Last month, Sands was 
     forced to lay off 10 employees from the defenders' office. 
     There were more cuts to federal public defenders' offices 
     earlier this month (the Defender Program budget was slashed 
     5.17 percent in February and another 5.52 percent last week). 
     ``Even with the layoffs, I still must furlough,'' Sands told 
     me this weekend via email. He wrote:
       We have clients who need mental health experts to examine 
     them, but whom must wait until the next budget allotment 
     comes. We have investigators who can no longer go to the 
     scenes of crimes, but call instead. We watch pennies so we 
     can order transcripts. The impact of sequestration in 
     criminal justice further makes the playing field uneven, 
     with DOJ able to shift resources, while we can't. We are 
     seeing offices shuttered, and staff sent home for 30, 40 
     even possibly 90 days.
       In Utah, when news of furloughs hit the federal PDs office, 
     Kathy Nester told me over the weekend that ``several 
     [Assistant Federal Public Defenders] stepped up to take extra 
     days because we have staff that are single moms and this 
     financial blow would be devastating to them and their kids.'' 
     Another federal public defender, who asked to remain 
     unidentified because of the nature of the situation, is 
     facing a thirty-day furlough and had to lay off four 
     employees. His story:
       I laid off a young off a young [Assistant Federal Public 
     Defender] Thursday, and he said he still wanted to work for 
     us full-time while looking for other work. Makes me want to 
     cry. Laid off a clerical type in another office. She is going 
     for disability, but meanwhile, may come back 3 days a week 
     with no pay, and staff there are covering her bus fare and 
     coffee and lunch each day out of their own pockets. 
     Definitely makes me want to cry.
       Other federal public defenders have been more formal with 
     their expressions of concern. In the Eastern District of 
     Virginia, Michael Nachmanoff, the Federal Public Defender, 
     informed the 4th U.S. Circuit Court of Appeals via letter 
     last week that ``at least seven public defender offices (and 
     one community defender office) . . . will be required to turn 
     down major case assignments--such as death penalty cases, 
     large white collar cases and representation of defendants 
     facing civil commitment''--as a result of the sequester.
       Nachmanoff's counterpart in the Western District of New 
     York, Marianne Mariano, offers more examples of the impact of 
     the sequester upon federal judicial employees. In a letter 
     last week to Dennis Jacobs, the Chief Judge of the 2nd U. S. 
     Circuit Court of Appeals, Mariano wrote: ``I anticipate all 
     attorneys and staff will be furloughed 22 days. I have one 
     employee who volunteered to take 28 days of leave without 
     pay.'' In the Northern District of Texas, federal public 
     defenders just warned judges that they ``anticipate a likely 
     need to withdraw from cases that require expert witnesses 
     because our budget for expert witnesses has been decimated.''


                        For the American People

       One federal public defender, who also asked to remain 
     anonymous because of the sensitivity of the current 
     situation, offered this overview of what sequestration will 
     mean to those who often need legal help and guidance the 
     most. He wrote:
       Sequestration has hit the truly indigent clients of the 
     Federal Defender particularly hard. For example, Spanish-
     speaking families often write moving letters of support for 
     relatives facing federal sentencing. Defenders have routinely 
     paid to translate these letters translated into English, and 
     these mitigation documents have played a central role in 
     federal sentencing. With budget cuts, however, Defenders can 
     no longer afford to pay outside interpreters the translation 
     fees. As a result, Spanish-speaking families have effectively 
     been silenced at sentencing, depriving indigent clients of 
     critical evidence in mitigation.
       The cuts have been particularly brutal for mentally-ill 
     defendants. Many federal defendants suffer from a host of 
     mental illnesses, and retained psychiatric evaluations are 
     critical in determining competency, challenging allegations, 
     and ensuring proper psychotropic medication is administered. 
     Sequestration has devastated funds for these psychiatric 
     experts. As a result, Defenders are forced to rely on their 
     own lay knowledge, ``talk'' their client through appearances 
     and pleas, and struggle with the risk of first submitting to 
     an evaluation by government psychiatrists.
       Even if you are not mentally ill, the sequester will impact 
     you. If you are a creditor or a debtor and you want to 
     resolve a bankruptcy in a timely fashion. If you are on 
     federal probation and you can't get in to see your officer. 
     If you are a state or local prosecutor and you no longer have 
     federal funds to help you prosecute drug cases. If you are 
     waiting for a federal drug test. If you are responsible for 
     courthouse security or care about the safety of judges and 
     court staff. If you want to go to trial in a civil case or 
     are charged with a federal crime.


                      For Federal Law Enforcement

       It's not easy on the other side of the fence, either. On 
     the one hand, Congress and the Obama Administration want 
     aggressive enforcement of criminal laws. On the other hand, 
     they have been willing through the sequester to financially 
     neuter the organizations directly responsible for such 
     enforcement. National Public Radio's Carrie Johnson, in a 
     smart report last week, revealed that Justice Department 
     employees already are receiving their furlough notices. The 
     FBI's abilities will be harmed, she reports. And then there 
     is this:
       At that meeting in Washington this week, state attorneys 
     general worried about their share of the pie under a huge 
     federal grant program. Janet Mills, the attorney general in 
     Maine, was waving her hand with a question for Holder. 
     ``Could you please comment on the prospects for continued 
     funding through the Byrne grants for drug enforcement and 
     drug prosecutions and other criminal justice measures?'' 
     Mills asked. Holder said the states are right to worry about 
     federal participation in drug task forces and other money the 
     department sends to the states to help fight crime.
       Crime--and specifically border patrol work. Word in Arizona 
     is that Operation Streamline, the longtime federal program of 
     aggressive arrest and prosecution of unlawful immigrants, 
     reportedly has been eased in the Ajo sector of the state as a 
     result of the sequester--evidently there isn't enough money 
     to pay for the overtime for law enforcement officials. For 
     his part, Attorney General Eric Holder told Senate Judiciary 
     Committee members during his appearance last week:
       As we speak, these cuts are already having a significant 
     negative impact not just on Department employees, but on 
     programs that could directly impact the safety of Americans 
     across the country. Important law enforcement and litigation 
     programs are being disrupted. Our capacity--to respond to 
     crimes, investigate wrongdoing, and hold criminals 
     accountable--has been reduced. And, despite our best efforts 
     to limit the impact of sequestration, unless Congress quickly 
     passes a balanced deficit reduction plan, the effects of 
     these cuts--on our entire justice system, and on the American 
     people--may be profound.
       Beyond a reasonable doubt, the sequester is having a 
     profound and pernicious effect on the government's ability to 
     observe its constitutional commands--and to provide justice 
     to its citizens. That's why the members of the Judicial 
     Conference have a difficult and delicate task this week. The 
     judges and administrators must adequately express the scope 
     of their concern, and effectively explain the impact the 
     sequester will have on the judiciary, without offending the 
     very politicians who control the federal judiciary's budget. 
     It's not right. It's not fair. It's a terrible testament to 
     judicial independence. But sadly it's the way the politics of 
     law works in America today.

[[Page S2452]]

     
                                  ____
                                      Administrative Office of the


                                         United States Courts,

                                    Washington, DC, March 5, 2013.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: The Administrative Office of the United 
     States Courts (AO) recently received several requests for 
     information about how the Judiciary is preparing to handle 
     the impact of funding sequestration. The Judiciary's efforts 
     to address this budgetary emergency have been extensive, 
     involving countless hours spent by judges, and court and AO 
     staff working to determine how best to withstand the severe 
     cuts while still continuing to perform core constitutional 
     duties. As background, following months of information 
     gathering and planning, the Executive Committee met on 
     December 19, 2012, to consider proposed actions to deal with 
     the impact of sequestration on the federal courts. With 
     enactment of the American Taxpayer Relief Act of 2012 and the 
     subsequent delay in the effective date of sequestration, from 
     January 2 to March 1, 2013, the Executive Committee met again 
     on February 7, 2013, to finalize actions based on updated 
     sequestration calculations for the Judiciary.
       We consider the emergency measures approved by the 
     Executive Committee (discussed below) to be one-time only. 
     They cannot be sustained beyond fiscal year 2013 and will be 
     difficult and painful to implement. The Judiciary cannot 
     continue to operate at such drastically reduced funding 
     levels without seriously compromising the constitutional 
     mission of the federal courts. This is especially true if 
     those funding levels continue into fiscal year 2014 and 
     beyond. We are hopeful that Congress and the Administration 
     will ultimately reach agreement on alternative deficit 
     reduction measures that render the current sequestration cuts 
     unnecessary.
       The Executive Committee approved a number of emergency 
     measures that applied primarily to the non-salary parts of 
     the Judiciary budget. Because of our decentralized budget and 
     management system for the courts, the planning is primarily 
     done on the local level. The goal of the emergency measures 
     was to minimize the impact of sequestration on court staff by 
     providing maximum flexibility to court managers. This was 
     only partially successful. The sequestration cuts that went 
     into effect March 1, 2013, total nearly $350 million for the 
     Federal Judiciary. Fiscal year 2013 court allotments on a 
     national level would have declined by 14.6 percent below 
     fiscal year 2012 allotments. Instead, after applying the 
     emergency measures, court allotments have declined by 10.4 
     percent below fiscal year 2012 allotments. While this is a 
     marked improvement, the allotments, after sequestration and 
     implementation of the emergency measures, could still result 
     in up to 2,000 on-board employees being laid off or thousands 
     of employees facing furloughs for one day each pay period (a 
     10 percent pay cut). These sequestration staffing losses 
     would come on top of the almost 9 percent decline in staff 
     (over 1,800 probation officers and clerks' office staff) that 
     has already been experienced in the courts since July 2011.
       These budget reductions to the Judiciary will have serious 
     implications for the administration of justice and the rule 
     of law. Public safety will be impacted because there will be 
     fewer probation officers to supervise criminal offenders 
     released in our communities. Funding for drug testing and 
     mental health treatment will be cut 20 percent. Delays in the 
     processing of civil and bankruptcy cases could threaten 
     economic recovery. There will be a 30 percent cut in funding 
     for court security systems and equipment and court security 
     officers will be required to work reduced hours, thus 
     creating security vulnerabilities throughout the federal 
     court system. In our defender services program, federal 
     defender attorney staffing levels will decline, which could 
     compromise our defender function, and delay payments to 
     private attorneys appointed under the Criminal Justice Act 
     could for nearly three weeks in September. Sequestration will 
     also require deep cuts in our information technology programs 
     on which we depend for our daily case processing and on which 
     we have successfully relied in past years to achieve 
     efficiencies and limit growth in our budget.
       I have enclosed for your information a description of 
     guidance regarding sequestration given to federal courts 
     nationwide in late February. While some of it is technical in 
     nature, our guidance provides important information for the 
     courts on funding levels under sequestration as well as 
     practices for managing payroll and personnel activities under 
     sequestration. As the enclosed description indicates, 
     decisions about court closures, furloughing staff or other 
     adverse personnel actions, managing court operations at lower 
     funding levels, and salary policies under sequestration, 
     reside with each court unit. Allowing individual court units 
     to set their own funding priorities under sequestration is 
     consistent with the decentralized structure of the federal 
     court system and long established Judiciary budget execution 
     policies. I have, however, urged courts to delay 
     implementation of any involuntary personnel actions, such as 
     furloughs or terminations, until April when we hope to have a 
     clearer picture of full-year funding for fiscal year 2013.
       I hope this letter has provided you with insight into the 
     actions we are taking to address sequestration as well as the 
     devastating impact the cuts will have on the administration 
     of justice in this country.
       This letter is being provided in similar form to the 
     chairman and ranking minority member of the House and Senate 
     Judiciary Committees and to the chairman and ranking minority 
     member of the House and Senate Appropriations Committees and 
     their relevant subcommittees. If you require any additional 
     information, please contact our Office of Legislative 
     Affairs.
           Sincerely,
                                                  Thomas F. Hogan,
                                                         Director.
       Enclosure.

                          ____________________