[Congressional Record Volume 161, Number 126 (Wednesday, August 5, 2015)]
[Senate]
[Pages S6368-S6369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, we began this year with a new Republican
majority in the Senate promising to govern responsibly. Unfortunately,
this promise has so far proven hollow. Beginning with the shameful
treatment of the nomination of Loretta Lynch to be Attorney General,
the Republican leadership has used excuse after excuse to keep the
Senate from voting on those nominated to serve in our justice system.
It took 4 months for the Republican majority to schedule a vote on a
single judicial nomination. So far this year, the Republican-controlled
Senate has allowed confirmation votes on just five judicial nominees.
The slow trickle of confirmations is a dereliction of the Senate's
constitutional duty to provide advice and consent on judicial nominees.
Since the beginning of this year, the number of Federal court vacancies
deemed to be ``judicial emergencies'' by the nonpartisan Administrative
Office of the U.S. Courts has increased by 158 percent. There are now
31 judicial emergency vacancies that are affecting communities across
the country. Many are concerned that this obstruction threatens the
functioning of our independent judiciary, as Juan Williams recently
pointed out. I ask unanimous consent that his column in The Hill titled
``The GOP's judicial log jam'' be printed in the Record.
There is a different way to lead. Similar to the balance of power
today, in the last 2 years of the George W. Bush administration the
Democrats were in control of the Senate. And by this time in 2007, when
I was chairman of the Judiciary Committee, we had confirmed 26 judges.
In contrast, this Congress, the Republican majority has confirmed just
five judicial nominees appointed by President Obama. That is more than
five times more judges confirmed under a Democratic majority with a
President of the opposite party than today's Senate Republican
majority.
The delay and obstruction is occurring even though all 14 of the
current judicial nominees pending on the Executive Calendar have
bipartisan support and were voted out of the Judiciary Committee by
voice vote.
These nominees are highly qualified and deserve better treatment from
Senate Republicans. Of great concern is the treatment of Judge Luis
Felipe Restrepo, who will fill an emergency vacancy on the U.S. Court
of Appeals for the Third Circuit in Pennsylvania. Judge Restrepo was
unanimously confirmed 2 years ago by the Senate to serve as a district
court judge. I have heard no objection to his nomination. Yet it took 7
months just to get him a hearing in the Judiciary Committee.
He has strong bipartisan support from the two Pennsylvania Senators,
and was voted out of the Judiciary Committee unanimously by voice vote.
Once confirmed, Judge Restrepo will be the first Hispanic judge from
Pennsylvania to ever serve on this court and only the second Hispanic
judge to serve on the Third Circuit. He has the strong endorsement of
the nonpartisan Hispanic National Bar Association, HNBA. At his hearing
in June, Senator Toomey stated that ``there is no question [Judge
Restrepo] is a very well qualified candidate to serve on the Third
Circuit'' and underscored the fact that he recommended Judge Restrepo
to the White House. Senator Toomey then described Judge Restrepo's life
story as ``an American Dream story'' recounting how Judge Restrepo,
born in Medellin, Colombia, came to the United States, became a U.S.
citizen, and rose to the very top of his profession by ``virtue of his
hard work, his intellect, his integrity.''
Given his remarkable credentials, recent Senate confirmation, and
strong bipartisan support, you would think this Chamber would have
confirmed Judge Restrepo months ago. No Senate Democrat opposes a vote
on his nomination. Senate Republicans are the only thing holding up his
nomination. I know Senator Toomey can be a fierce advocate for issues
he cares passionately about, and I hope he will get a firm commitment
from the majority leader on a date for a vote on his confirmation. The
continued delay on such a qualified judicial nominee is a poor
reflection on this body. I ask unanimous consent that a recent column
by Carl Tobias in the Pittsburgh Tribune-Review titled ``Confirm Judge
Restrepo'' also be printed in the Record.
Another eminently qualified nominee who is also strongly supported by
the HNBA is Armando Bonilla. Mr. Bonilla has been nominated to serve on
the U.S. Court of Federal Claims, and would be the first Hispanic judge
to hold a seat on that court. Mr. Bonilla has spent his entire career--
now spanning over two decades--as an attorney for the Department of
Justice. He was hired out of law school in the Department's prestigious
Honors Program, and has risen to become the Associate Deputy Attorney
General in the Department. Despite these outstanding credentials, the
junior Senator from Arkansas objected to a request to vote on his
nomination, along with any of the four other nominations to the Court
of Federal Claims. These CFC nominees have been waiting for more than
10 months for a vote, and were twice voted out of the Judiciary
Committee unanimously by voice vote.
Those who serve in this body understand that no one Senator can stop
a judicial nominee from being confirmed. One Senator can stop a
unanimous consent agreement, but not a vote. The delay and obstruction
of the 14 judicial nominees pending on the Executive Calendar,
including Judge Restrepo and Mr. Bonilla, is at the hands of the
Republican leadership and in the hands of the other Republican
Senators, who have allowed their leadership to delay these accomplished
jurists and prosecutors, even when it hurts their own constituents.
Republican leadership can still reverse course and lead responsibly.
Although they have only allowed 5 judicial nominees to be confirmed
this year, they can make immediate progress by moving to confirm the 14
nominees pending on the Executive Calendar. They should schedule a vote
for outstanding nominees like Judge Restrepo and Mr. Bonilla. They
should schedule a vote for the pending judicial nominees from Missouri,
California, New York, and Tennessee.
In the last 2 years of President Bush's tenure, the Democratic
majority moved 68 district and circuit judges through the process to
confirmation. In the last 2 years of President Reagan's tenure, a
Democratic majority confirmed 85 judges. Let us go back to treating the
Federal judiciary like the coequal branch that it is and hold
confirmation votes on the nominees before us. There is no reason for
the double standard based on who is in the majority. We made it clear
we would not do that with President Reagan and President Bush. We
should uphold the same standard for President Obama.
I hope that we return to the regular order that existed for the
nominees of past administrations and clear the Senate Executive
Calendar of consensus nominations before the upcoming recess. The time
to act on the 14 consensus judicial nominations pending before the full
is Senate is now.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Hill, July 27, 2015]
The GOP's Judicial Logjam
(By Juan Williams)
As the hot Washington summer approaches August, the
Senate's Republican majority is already on vacation from the
work of confirming judges. At the current torpid pace, they
will put the lowest number of judges on the federal bench in
any year since 1969.
Do you think this crashed system for filling the federal
bench has anything to do with the GOP Senate majority's
distaste for the liberal in the White House--even if he was
chosen by the American people twice as their president and
given the constitutional authority to nominate judges?
Yes, this involves a heavy dose of simple obstruction by
the GOP. Keep in mind that if it were not for Republican
judges blocking President Obama's executive order on
immigration, the GOP would have already lost that fight. So
in a politically polarized nation, Republicans have reason to
keep an eye on the partisan make-up of the courts.
[[Page S6369]]
That is just one of the many political backroom plots being
played out in the Senate over control of the nation's courts.
The game begins with GOP payback for the Democrats having
changed the filibuster rules in 2013 to allow confirmation
with a simple majority vote. That ``nuclear option'' broke
the GOP hold on judicial nominations while Democrats still
held the majority and cleared the way for 96 judges to take
their seats.
Now the GOP holds the Senate majority and Republicans have
slammed the lid on new judges from Obama. This makes judicial
nominations a valuable point of leverage in future
negotiations with the White House over budget issues,
regulation and more.
And with a presidential election next year, the GOP hopes
to soon have a president of its own sending over nominations,
beginning January 2017. Then, there is the reality that four
of the five current Supreme Court justices are over the age
of 75--including Justice Anthony Kennedy, the ``swing vote.''
Republicans have little incentive to allow Obama to put more
Democrats throughout the nation's judiciary.
The extreme Republican anger at the federal courts is
already a big issue in the 2016 presidential race. Last week,
Sen. Ted Cruz (R-Texas), chairman of the Judiciary
Committee's oversight panel for the federal courts, held a
hearing titled: ``With Prejudice: Supreme Court Activism and
Possible Solutions.'' He called the hearing to show the
depths of his upset with the recent decisions to uphold
ObamaCare and grant same-sex couples the right to marry.
Cruz, a former Supreme Court law clerk, used the hearing to
trash a court with a majority of five conservatives, led by a
conservative--Chief Justice John Roberts--and by all measures
a strongly conservative record in rulings on guns, campaign
spending, and blocking Environmental Protection Agency
regulation of airborne chemicals.
As a candidate for the GOP's 2016 presidential nomination,
Cruz knows the high court's standing among Republican voters
is low. After the ObamaCare and gay marriage decisions, only
18 percent of Republicans told Gallup last week that they
approve of the court. Cruz set the tone for his hearing by
saying he wanted to review ``options the American people have
to rein in judicial tyranny.''
Sen. Cruz is a fan of extreme action to deal with this
``tyranny.'' He is proposing having Supreme Court justices
stand for retention election every eight years.
Former Arkansas Gov. Mike Huckabee, another candidate for
the GOP presidential nomination, favors term limits.
Sen. Jeff Sessions (R-Ala.) declared during the hearing
that the current court has a ``foreign, unhistorical approach
to law.''
Between the Senate Republicans' success at clogging the
judicial appointment process and the burst of harsh rhetoric,
there is a growing risk of a serious erosion of the public
trust in the nation's judicial system.
Obama also is playing the dangerous game.
He has not nominated anyone to fill 47 of the 63 open seats
on the federal bench. No doubt he feels it would be a waste
of time to keep pushing good money--in this case judicial
nominees--down a hole. The president does have seven judicial
nominees before the Senate and three would help with the
judicial emergencies.
For both liberals and conservatives, the current roadblock
has consequences. According to www.uscourts.gov, 28 federal
courts have now declared ``judicial emergencies'' because
they lack enough judges to hear pending cases.
Earlier this month, the Senate confirmed its fifth federal
judge for the year, Kara Stoll. The current Senate is so far
behind they have not reached the half-way point to match the
previous record low for confirmations, 12, set in President
Obama's first year in office.
The number of judges confirmed during President George W.
Bush's second term, higher than the current rate for Obama,
is still less than the number of judges confirmed in the
final two years of Presidents Reagan and Clinton.
But now that Republicans are in charge, the Bush record
looks generous.
``It's ridiculous,'' said Sen. Patrick Leahy (D-Vt.). He
chaired the Senate Judiciary Committee with the Democrats in
the majority. ``They are trying to politicize the courts. And
it's irresponsible. I refused to do it with President Reagan.
I refused to do that with President [George W.] Bush.''
Can the Senate expect better results with a President
Hillary Clinton or President Bernie Sanders? How about
President Jeb Bush or President Donald Trump? Most likely it
will be more of the same--a continuing loss of the bipartisan
trust and respect that once made America's courts the gold
standard of justice for the world.
____
[From Pittsburgh Tribune-Review, July 30, 2015]
Confirm Judge Restrepo
(By Carl Tobias)
Today, as in 2007, a Pennsylvania federal district court
judge's unopposed nomination to the Third Circuit requires a
final vote in a Senate the president's party does not
control. On March 15, 2007, a Democrat Senate confirmed
President George W. Bush's nomination of Pittsburgh District
Judge Thomas Hardiman one week after his Judiciary Committee
approval.
This precedent is one reason Senate Majority Leader Mitch
McConnell, R-Ky., must schedule an immediate vote on Judge
Luis Felipe Restrepo's nomination, which the committee
approved on July 9. Restrepo would fill one of 28 vacancies
the courts have declared judicial emergencies.
President Obama nominated the experienced, uncontroversial
jurist in November on the strong bipartisan recommendation of
Pennsylvania Sens. Bob Casey (D) and Pat Toomey (R).
Moreover, on July 1, Third Circuit Judge Marjorie Rendell
assumed senior status. This means that Judge Hardiman is one
of six active Pennsylvania members on the court, which
experiences two vacancies in 14 positions.
Toomey's spokesperson says that the senator has spoken
directly with McConnell ``to emphasize the importance of
getting Judge Restrepo confirmed'' but did not indicate
Toomey urged a prompt vote. As Senate Minority Leader Harry
Reid, D-Nev., said on July 7, if Toomey simply asked ``to
confirm Judge Restrepo immediately, (I'm confident) we could
confirm Judge Restrepo to the Third Circuit next week.''
Obama has consulted with Casey and Toomey, who have
cooperated in helping to fill one Pennsylvania Third Circuit
seat and 14 district court posts since 2011. They have
carefully reviewed applicants and proposed excellent
individuals whom Obama usually nominates.
However, the Senate slowly processes nominees. Most
critical have been Republican delays of floor votes. For
example, between November 2013 and late March 2014, the
Eastern District faced seven openings. The many prolonged
vacancies have slowed federal court litigation, requiring
people and businesses to wait interminably for case
resolution.
Casey and Toomey suggested Restrepo for the Eastern
District, and the Senate approved him on a June 2013 voice
vote. Each assumed credit for proposing Restrepo's Third
Circuit nomination in November press releases. Toomey
exclaimed that Restrepo would ``make a superb addition to the
Third Circuit,'' but the legislator retained his ``blue
slip''--which permits a nominee to proceed--from Nov. 12
until May 14, even though Casey submitted his in November.
The jurist's June 10 hearing was long overdue.
At his hearing, Restrepo comprehensively and candidly
answered questions and senators appeared satisfied. For
example, Sen. Thom Tillis, R-N.C., who chaired the hearing,
observed that Restrepo has been reversed only twice.
McConnell has not publicly stated when he would arrange a
floor debate and vote. However, on June 4, he suggested he
might not allow ballots for more Obama circuit nominees,
although he did finally accord Kara Farnandez Stoll, a
Federal Circuit candidate who had waited 10 weeks, July floor
consideration.
The Third Circuit needs all its members to deliver justice,
and Restrepo has languished over eight months. The Senate
must confirm him before the August recess.
____________________