[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.
____________________