[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.

                          ____________________