[Congressional Record Volume 159, Number 65 (Thursday, May 9, 2013)]
[Senate]
[Pages S3305-S3308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF NELSON STEPHEN ROMAN TO BE UNITED STATES DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nominations,
which the clerk will report.
The assistant legislative clerk read the nominations of Shelly
Deckert Dick, of Louisiana, to be United States District Judge for the
Middle District of Louisiana, and Nelson Stephen Roman, of New York, to
be United States District Judge for the Southern District of New York.
The PRESIDING OFFICER. Under the previous order, there will now be 30
minutes of debate equally divided in the usual form.
Mr. LEAHY. Mr. President, over the last month, Senate Republicans
have failed to refute the facts of what they have done to President
Obama's judicial nominations. The Senate's work on judicial nominations
should not be about partisan point-scoring; it should be about ensuring
the American people have access to justice. I rejected that partisan
tit-for-tat approach while moving to confirm 100 of President Bush's
judicial nominees in just 17 months in 2001 and 2002.
The question for the Senate is, Are we doing enough to ensure that
hard working Americans have access to justice so that they can have
their rights protected? At a time when 10 percent of the Federal bench
remains vacant, I do not think that we are. The standard we set during
the Bush administration for quickly moving to confirm noncontroversial
nominees is not being met.
Senate Republicans who take such pride in the number of nominees
being confirmed this year ignore how many were needlessly delayed from
confirmation last year and what they have done during the last 4 years.
That is why after the 14 confirmations this year, we remain more than
20 confirmations behind the pace we set for President Bush's circuit
and district nominees, and vacancies remain nearly twice as high as
they were at this point during President Bush's second term. For all
their self-congratulatory statements, they cannot refute the following:
We are not even keeping up with attrition. Vacancies have increased,
not decreased, since the start of this year. President Obama's judicial
nominees have faced unprecedented delays and obstruction by Senate
Republicans. We have yet to finish the work that could and should have
been completed last year. There are still a dozen judicial nominees
with bipartisan support being denied confirmation.
A recent report by the nonpartisan Congressional Research Service
compares the whole of President Obama's first term to the whole of
President Bush's first term, and the contrast could not be more clear.
The median Senate floor wait time for President Obama's district
nominees was five times longer than for President Bush's. President
Obama's circuit nominees faced even longer delays, and their median
wait time was 7.3 times longer than for President Bush's circuit
nominees. The comparison is even worse if we look just at nominees who
were reported and confirmed unanimously. President Bush's unanimously
confirmed circuit nominees had a median wait time of just 14 days.
Compare that to the 130.5 days for President Obama's unanimous
nominees. That is more than nine times longer. Even the nonpartisan CRS
calls this a ``notable change.'' There is no good reason for such
unprecedented delays, but those are the facts.
The confirmations in the last few months does not change the reality
of what has happened over the last 4 years. If a baseball player goes
0-for-9, and then gets a hit, we do not say he is an all-star because
he is batting 1.000 in his last at bat. We recognize that he is just 1-
for-10 and not a very good hitter.
So while I welcome the confirmations this year, I note both that 10
of the 14 could and should have been confirmed last year and that there
are another dozen nominees pending before the Senate, including four
who also could have been confirmed last year. We can and must do more
for Americans who look to our courts for justice. They deserve better
than long delays and empty courtrooms. With 10 percent of our Federal
bench vacant and a backlog of nominees on the Senate Executive
Calendar, it is clear that the Senate is not working up to its full
capacity on nominations.
It is true that some vacancies do not have nominees. I wish
Republican home State Senators would work with President Obama to fill
these vacancies. Nor do those vacancies excuse their unwillingness to
complete action on the consensus judicial nominees who are ready to be
confirmed but whose confirmations are being delayed. Mark Barnett,
Claire Kelly, Shelly Dick, William Orrick, Nelson Roman, Sheri
Chappell, Michael McShane, Nitza Quinones Alejandro, Luis Restrepo,
Jeffrey Schmehl, Kenneth Gonzales, and Gregory Phillips are awaiting
confirmation and Sri Srinivasan, Ray Chen, and Jennifer Dorsey can be
reported to the Senate today, without further delay. So long as there
is a backlog of nominees before the Senate, the fault for failing to
confirm these nominees lies solely with Senate Republicans.
The Judicial Conference recently released their judgeship
recommendations. Based upon the caseloads of our Federal courts, the
conference recommended the creation of 91 new judgeships. That is in
addition to the 86 judgeships that are currently vacant. This means
that the effective vacancy rate on the Federal bench is over 18
percent. A vacancy rate this high is harmful to the individuals and
businesses that depend on our courts for speedy justice. The damage is
even more acute in the busiest district courts, such as those in border
States that have heavy immigration-related caseloads. In a Washington
Post article about the CRS report, Jonathan Bernstein wrote: ``Ordinary
people who just want to get their legal matters taken care of promptly
have suffered because of all the vacancies on federal courts.'' I ask
unanimous consent to have the article entitled ``New report confirms
GOP obstructionism is unprecedented'' printed in the Record at the
conclusion of my statement.
Unneccessarily prolonged vacancies are not the only way that
partisanship in Washington is hurting our courts. Sequestration
continues to affect our justice system. The chief judge of the Fourth
Circuit, William B. Traxler, Jr., has written: ``The impact of
sequestration on the Judiciary is particularly harsh because the courts
have no control over their workload. They must respond to all cases
that are filed . . . .'' He went on to say:
[A] significant problem arises when budget cuts impact our
responsibilities under the Constitution. This happens when we
cannot afford to fulfill the Sixth Amendment right to
representation for indigents charged with crimes. The
predictable result is that criminal prosecutions will slow
and our legal system will not operate as efficiently. This
will cost us all in many different ways.
I share Chief Judge Traxler's concern, and I ask unanimous consent to
have his statement printed in the Record at the conclusion of my
remarks.
Our Federal judiciary provides justice to 310 million Americans and
gives full effect to the laws that we pass here in the Senate. We have
a constitutional responsibility to those 310 million Americans to make
sure that they can count on our Federal courts to provide justice.
Federal courts should not be held hostage to partisan obstruction, and
we need to keep our courts fully funded so that they can continue to
meet the promise of timely justice that is embedded in our
Constitution.
Shelly Dick is nominated to fill a vacancy on the U.S. District Court
for the Middle District of Louisiana. Since 1994, she has been in
private practice at the Law Offices of Shelly D. Dick, LLC, in Baton
Rouge and was previously an associate with the law firm of Gary Field
Landry and Dornier. Additionally, since 2008, she has served as an ad
hoc hearing officer for the Louisiana Workforce Commission. Shelly Dick
has the bipartisan support of her home State Senators, Ms. Landrieu and
Mr. Vitter, and was reported unanimously by the Judiciary Committee
over 2
[[Page S3306]]
months ago. She is one of the pending nominees who could have been
expedited and confirmed last year. When confirmed, Shelly Dick will be
the first woman to serve on the U.S. District Court for the Middle
District of Louisiana.
Nelson Roman is nominated to fill a judicial emergency vacancy on the
U.S. District Court for the Southern District of New York. He currently
serves as an associate justice for the New York State Supreme Court,
Appellate Division, First Department. He previously served as a justice
of the New York State Supreme Court, Civil Term, Bronx County, as a
judge for the New York City Civil Court, Bronx County, and as a judge
of the housing part of the New York City Civil Court, Bronx County.
Prior to becoming a judge, he was an assistant district attorney in
Kings County, NY, as well as a special narcotics assistant district
attorney in New York City. From 1995 to 1998, Justice Roman served as a
law clerk to the Honorable Jose A. Padilla, Jr. of the New York County
Civil Court. He has the support of his home State Senators, Mr. Schumer
and Mrs. Gillibrand, and was reported unanimously by the Judiciary
Committee over 2 months ago.
Senate Republicans have a long way to go to match the record of
cooperation on consensus nominees that Senate Democrats established
during the Bush administration, but I hope that the confirmations so
far this year indicate that they are finally reconsidering their
wholesale obstruction of President Obama's nominees. After today's
votes, 10 more judicial nominees remain pending, and all were reported
with bipartisan support. All Senate Democrats are ready to vote on each
of them to allow them to get to work for the American people. We can
make real progress if Senate Republicans are willing to join us.
I ask unanimous consent that the article and statement to which I
referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, May 3, 2013]
New Report Confirms GOP Obstructionism is Unprecedented
(By Jonathan Bernstein)
The nonpartisan Congressional Research Service has released
an important new report that details Barack Obama's record on
nominating judges during his first term. It's no surprise:
Republican obstruction against his selections was
unprecedented. For example:
``President Obama is the only one of the five most recent
Presidents for whom, during his first term, both the average
and median waiting time from nomination to confirmation for
circuit and district court nominees was greater than half a
calendar year (i.e., more than 182 days).''
A quick look at the report's summary confirms that Obama's
nominees have been treated more roughly than those of
Presidents Reagan, Bush, Clinton, and the other Bush.
That's only half the story. George H.W. Bush had to deal
with an opposition party Senate for his entire first term,
and Bill Clinton and George W. Bush had that during about
half of their first terms. It's at least plausibly legitimate
for opposite party Senators, when they have the majority, to
argue that they should have a larger role in filling judicial
vacancies, and to act accordingly. At the very least, if they
simply oppose some of those nominees, they will defeat them
in ``up or down'' votes.
But Obama, like Ronald Reagan, had a same-party Senate
majority during his first term. He should have had among the
best results over any recent president, all things being
equal.
What changed when Obama took office, however, was the
extension of the filibuster to cover every single nominee.
Republicans didn't always vote against cloture (or even
demand cloture votes), but they did demand 60 votes for every
nominee. That's brand new. It's true that Democrats
filibustered selected judicial nominations during the George
W. Bush presidency, but only at the circuit court level, and
not every single one.
That meant that despite solid Democratic majorities and
solid support from those Democrats, Obama's judicial approval
statistics are basically the worse of any of the recent
presidents. He doesn't show up last on every measure--for
example, George H.W. Bush had a lower percentage of district
court nominees confirmed--but he's fourth or fifth out of
five of these presidents on almost every way that CRS slices
the numbers, and it adds up to by far the most obstruction
faced by any recent president.
And remember: the losers here aren't just the president and
liberals who want to see his judges on the bench. Ordinary
people who just want to get their legal matters taken care of
promptly have suffered because of all the vacancies on
federal courts.
It's really a disgrace. Especially those picks that were
delayed for months, only to wind up getting confirmed by
unanimous votes. Especially the foot-dragging on district
court nominees. Just a disgrace.
____
Statement of Chief Judge William B. Traxler, Jr., Chairman of the
Executive Committee of the Judicial Conference of the United States,
April 19, 2013
1. The Executive Committee of the Judicial Conference is
responsible for developing a spending plan for the federal
Judiciary's annual Congressional appropriation. This process
involves significant input from Conference committees, and
under the best of circumstances, is a difficult and complex
task.
The current fiscal year presents unparalleled challenges.
Budget sequestration has reduced the Judiciary's overall
funding by nearly $350 million from the level provided in
Fiscal Year 2012. The impact of sequestration on the
Judiciary is particularly harsh because the courts have no
control over their workload. They must respond to all cases
that are filed, whether they are by individuals, businesses,
or the government.
In February 2013, the Executive Committee implemented a
series of emergency measures that were intended to mitigate
the impact of sequestration to the best extent possible.
Nevertheless, significant shortfalls remain.
Funds have been reduced for probation and pretrial
staffing, which means less deterrence, detection, and
supervision of released felons from prison. Related funding
for drug testing, drug treatment and mental health treatment
were cut by 20 percent. Money for security systems and
equipment has been cut 25 percent and court security officer
hours have been reduced. Cuts in court staffing and hours
threaten to impact public access and slow case processing.
National information technology upgrades to improve
infrastructure and financial management have been delayed.
Sequestration is impacting federal court operations and
programs throughout the country, including a $51 million
shortfall in the FY 2013 funds in the Defender Services
account.
The Judiciary is committed to doing its part to reduce the
fiscal deficit our country faces. However, a significant
problem arises when budget cuts impact our responsibilities
under the Constitution. This happens when we cannot afford to
fulfill the Sixth Amendment right to representation for
indigents charged with crimes. The predictable result is that
criminal prosecutions will slow and our legal system will not
operate as efficiently. This will cost us all in many
different ways.
With regard to the Defender account shortfall, at its April
16, 2013, meeting the Executive Committee examined all
aspects of this account, scrubbed expenses where possible,
and approved a final spending plan. After lengthy discussion,
the Committee determined to allocate the available funds in a
manner that, without further impacting payments to private
attorneys, will at least limit the number of days that any
defender organization staff must be furloughed. The result is
that some federal defender offices will still be forced to
furlough their employees up to 15 days. The Committee also
approved deferral of payments to private panel attorneys for
the last 15 business days of the fiscal year.
The defender program has no flexibility to absorb cuts of
this magnitude without impacting payments to private counsel
appointed under the Criminal Justice Act and Federal Defender
Organizations, which pay for government lawyers to provide
counsel to eligible defendants. Federal defender offices
already have fired and furloughed staff, as well as
drastically cut essential services. Criminal prosecutions
have been delayed because defender organizations do not have
the staff necessary to continue their representation of the
defendant or the funds to pay for experts or other cases
costs.
The Executive Committee's allocation of funds is not a
solution to the $51 million shortfall. It represents a
conscientious effort to mitigate the adverse impact on both
personnel and services. It also means that millions of
dollars in expenses in this account will be shifted to FY
2014, even though they were not part of the Judicial Branch
budget submission to Congress. This level of funding is
unsustainable without relief from Congress.
The Judiciary will soon ask the Office of Management and
Budget to transmit an FY 2013 emergency supplemental funding
request to Congress to help ameliorate the impact of the
sequestration cuts to defender services, probation and
pretrial services, court staffing, and court security.
In his 2012 Year-End Report on the Federal Judiciary, the
Chief Justice said:
``A significant and prolonged shortfall in judicial funding
would inevitably result in the delay or denial of justice for
the people the courts serve.''
I share this grave concern.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I rise today to present to this Chamber
the nomination of Shelly Deckert Dick as a nominee for article III
judge on the U.S. Middle District Court of Louisiana. I was pleased to
recommend Ms. Dick to President Obama, and I am happy that he sent her
name to the Senate and that the committee has
[[Page S3307]]
unanimously recommended her for confirmation.
She is equipped with decades of Federal court litigation experience.
She brings with her a thorough understanding of the Federal court
system, having practiced for years before the court. From all
indications from her peers and colleagues, she is fair and evenhanded.
I think her temperament is appropriate for the bench.
She is a current resident of Baton Rouge but was born in El Paso, TX.
She earned her bachelor's degree in business administration from the
University of Texas at Austin and graduated on the dean's list with
honors.
She brings with her years of experience, not just in the private
sector. She has worked as a lawyer before the Federal bench. She has
also been extremely active in community affairs.
She graduated from Louisiana State University law school, where she
was a member of the Law Review. Demonstrating her commitment to public
service early in her legal career, she served as a law clerk to a woman
who went on--and was actually mentored by the first woman of our
Supreme Court--Kitty Kimble, who went on, of course, to become chief
justice of the Louisiana Supreme Court.
Following law school, at an early age, she became an associate
attorney at the firm of Gary, Field, Landry & Bradford before going on
to become a full partner in one of our strongest and best law firms in
Baton Rouge, LA.
She has extensive experience, as I said, in Federal court
representing both plaintiffs and defendants as well as government and
nongovernment clients. She has a well-rounded legal career and is very
active in the community, in her church, and has done missionary work
for many years throughout the world. She is also very active in the
American Bar Association, the Louisiana State Bar Association, the
Louisiana Association of Defense Counsel, and the Baton Rouge bar. She
was admitted to practice in the district courts of the Western, Middle,
and Eastern Districts, the Fifth U.S. Circuit Court of Appeals, and the
U.S. Supreme Court. She has written numerous articles for legal
publications and presented at legal seminars on a wide range of topics.
I have known Ms. Dick for a few years. She is a friend now. She was
not a close friend when my search committee went out and looked for the
most qualified individuals to step up and serve on our bench. She and
her credentials were brought to my attention by many members of the
community, and I am very happy to nominate Ms. Dick.
Ms. Dick will be the first woman to serve in the Middle District of
Louisiana. I think it is high time, after a couple of hundred years,
that we have women now qualified and stepping up to assume these
leadership positions. I have been very proud to help bring diversity
and excellence to our bench both at the prosecutor level and as judges
in the courts in Louisiana.
As I said, Shelly has also volunteered for international missions
overseas, particularly in Cambodia, South Africa, and Kenya. She has
worked with her church and other nonprofit organizations.
I think she is perfectly suited to be a judge with all the
prerequisite experience and legal degrees and academic degrees
required. Most importantly, she is enthusiastic and excited about
serving.
I am sorry it has taken us so long to get her to this point where the
Senate will hopefully confirm her--if not acclamation--by a strong and
overwhelming vote. I know of no opposition to her nomination.
These days it seems that these nominations seem to be going a lot
slower than they should. I thank her and her family for their patience
as they have waited and waited for this day to come. Hopefully she will
be able to put on that robe and get to that bench in the Middle
District and do a fine job for us both in Louisiana and around the
country.
I yield the floor.
The junior Senator from Louisiana may want to add a word.
The PRESIDING OFFICER. The Senator from you Louisiana.
Mr. VITTER. Mr. President, I rise for two reasons. First of all, I
look forward to supporting the confirmation of Shelly Dick to become a
judge in the Middle District of Louisiana, and I look forward to that
vote in 5 minutes. As I have said before, I believe she will serve
well.
Secondly, I also wanted to come to the floor to add my support to the
Landrieu flood insurance amendment. I am a cosponsor, and we are
working very hard on clearing a path for an important, substantive
version of that amendment.
Senator Landrieu and I have talked, and we have talked to others,
including Senator Boxer and many other supporters. We are working very
hard not to get into the weeds but to take care of some technical
issues, some budget points of order, and some other issues so we can
clear the path for a strong, substantive version of this amendment.
This is a big deal. It is a big deal for the country. It is a big
deal for any coastal area and certainly a big deal for South Louisiana.
We need to ensure that as the new Flood Insurance Program is
administered, it is done in a fair and reasonable way and that we don't
price anybody who has been following the rules out of their home
because their flood insurance rates increased so astronomically. That
is the fear, but that has not played out. The new rates are not out,
but that is the legitimate fear. Senator Landrieu and I are working
with our entire delegation to make sure we avoid that.
Right after this vote, I am going to travel to northern Virginia to
meet with a Louisiana group at the FEMA offices to talk about this very
issue. I am convinced FEMA has some authority under law already to
mitigate these issues in many ways but including by making sure they
get their LAMP process right and take into account all flood barriers
and protections in a given area as new areas are mapped. I am going
directly from this judge vote to that important meeting, and we will
all be following up in important ways to make sure we get it right,
make sure FEMA gets it right, hopefully including a good, workable
amendment that can be passed on this bill. We are all working toward
that goal.
I thank my colleague from Louisiana for that joint effort.
I yield back to the Chair.
The PRESIDING OFFICER (Ms. Heitkamp). The Senator from Louisiana.
Ms. LANDRIEU. Madam President, I wish to follow up on the comments
made by my colleague from Louisiana, Senator Vitter. I am pleased he
will accompany many of our elected officials to the FEMA office this
afternoon. I had a chance to meet with the FEMA officials yesterday. At
my request, they came to the Capitol to meet with me.
We are both very hopeful that there are some things within the new
mandates and new authorizations that FEMA can do to mitigate against
the projected 25-percent increases annually for some of our
policyholders--not the majority but for some of them. I am anticipating
that some of these issues are not going to be addressed
administratively and that it is going to take a change of law.
Again, the reason I am pushing this issue and pushing this bill is
because this new law that we are talking about, expressing frustration
about, and questioning never came to this floor for a vote. I am still
not clear at this point whether this bill was ever voted on by the full
House.
This bill, the flood insurance reform bill of last year, was tucked
into a larger bill, the national transportation bill, at the last
minute. The national transportation bill was widely supported. It funds
billions of dollars' worth of projects for everyone's district. It is a
very popular bill.
This relatively small but significant flood insurance bill was tucked
into a conference report, which is really not that usual, particularly
if the bill itself had not passed one body. There are lots of times
when things are put into a conference committee that have not passed
the Senate, but it passed the House, or it passed the House but not the
Senate, and there is an indication of broad support. We have to move
legislation, and sometimes we have to use an expedited means.
I am still waiting to get clear from the staff whether this bill ever
got a vote in the House of Representatives. I know it didn't get a vote
here, and it would probably, in its current form, not pass because the
delegations from
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Louisiana, Texas, Mississippi, California, and any numbers, would have
insisted on some amendments and some procedures to help our people who
are going to be affected by these very significant increases in flood
insurance, to give them more time to meet their obligations.
I know we are on a judgeship so I am going to yield the floor, but I
am hoping we can continue to work on this issue.
I thank Senator Vitter for his support, as well as Senator Boxer, as
we are continuing to work on the language of this amendment.
I yield back all time on the nominations.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the question is, Will the Senate advise and
consent to the nomination of Shelly Deckert Dick, of Louisiana, to be
United States District Judge for the Middle District of Louisiana?
The nomination was confirmed.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Nelson Stephen Roman, of New York, to be
United States District Judge for the Southern District of New York?
Mr. COATS. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
There is a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg) is necessarily absent.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Wyoming (Mr. Barrasso) and the Senator from Alaska (Ms.
Murkowski).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 97, nays 0, as follows:
[Rollcall Vote No. 118 Ex.]
YEAS--97
Alexander
Ayotte
Baldwin
Baucus
Begich
Bennet
Blumenthal
Blunt
Boozman
Boxer
Brown
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Coons
Corker
Cornyn
Cowan
Crapo
Cruz
Donnelly
Durbin
Enzi
Feinstein
Fischer
Flake
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heinrich
Heitkamp
Heller
Hirono
Hoeven
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kaine
King
Kirk
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murphy
Murray
Nelson
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schatz
Schumer
Scott
Sessions
Shaheen
Shelby
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NOT VOTING--3
Barrasso
Lautenberg
Murkowski
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motions to
reconsider are considered made and laid upon the table. The President
will be immediately notified of the Senate's action.
____________________