[Congressional Record (Bound Edition), Volume 155 (2009), Part 23]
[Senate]
[Pages 30746-30748]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          PENDING NOMINATIONS

  Mr. LEAHY. Mr. President, last week, I challenged Senate Republicans 
to do as well as Senate Democrats did in December 2001 when we 
proceeded to confirm 10 of President Bush's Federal judicial nominees. 
Regrettably my plea has been ignored. Since the confirmation of Judge 
Jacqueline Nguyen last Tuesday to fill a vacancy on the Federal bench 
for the Central District of California; Republican objections and delay 
have prevented progress on any of the nine judicial nominees pending on 
the Senate Executive Calendar. Judge Nguyen was herself delayed almost 
6 weeks, from October 15 until she was at last confirmed on December 1. 
When Republicans finally agreed to allow a vote, she was confirmed 
unanimously, 97 to zero. Why the 6-week delay? Why the stalling? That 
question was not answered. In fact, during the time reserved for debate 
on this nomination no Republican spoke a word about it.

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  I know how hard pressed the Federal judges in Los Angeles are, and 
only wish we followed the action on Judge Nguyen's nomination by 
proceeding, as well, to the confirmation of another nominee for a 
vacancy on that court. Dolly Gee's nomination to the Central District 
of California remains pending before the Senate. She was reported by 
voice vote and without dissent from the Senate Judiciary Committee on 
October 15, as well. Once confirmed, she will be able to go to work 
helping to eliminate the backlog and delays in that court.
  I was glad we were finally allowed to proceed with Judge Nguyen's 
nomination, but urged at that time that Senate Republicans allow votes 
on the other nominations as well. That has not happened. I noted that 
we had shown what we can do when we want to make progress. The Senate 
confirmed Judge Christina Reiss of Vermont and Judge Abdul Kallon of 
Alabama before the Thanksgiving recess, and 17 days after their 
hearing. That prompt action by the Senate demonstrates what we can do 
working together in good faith. It should not take weeks for the 
Judiciary Committee to report nominations, and additional weeks and 
months before Senate Republicans allow nominations to be considered by 
the Senate.
  There remain nine judicial nominations that have been given hearings 
and favorable consideration by the Senate Judiciary Committee but that 
remain stalled before the Senate. They are: Beverly Martin of Georgia, 
nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, 
nominated to the Third Circuit; Edward Chen, nominated to the Northern 
District of California; Dolly Gee, nominated to the Central District of 
California; Richard Seeborg, nominated to the Northern District of 
California; Barbara Keenan of Virginia, nominated to the Fourth 
Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; 
Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; and 
Louis Butler, nominated to Western District of Wisconsin. These nine 
nominees all await final action by the Senate. Some have been waiting 
since being reported by the Senate Judiciary Committee as long as 12 
weeks ago.
  Acting on these nominations, we can confirm 10 nominees this month. 
That is what we did in December 2001 when a Democratic Senate majority 
proceeded to confirm 10 of President Bush's nominees, and ended that 
year having confirmed 28 new judges nominated by a President of the 
other party. We achieved those results with a controversial and 
confrontational Republican President after a mid-year change to a 
Democratic majority in the Senate. We did so in spite of the attacks of 
September 11; despite the anthrax-laced letters sent to the Senate that 
closed our offices; and while working virtually around the clock on the 
PATRIOT Act for 6 weeks.
  It is now December 9 and the Republican minority has consented to 
allow votes on only nine of President Obama's nominations to fill 
district and circuit court vacancies. We confirmed a tenth, Judge David 
Hamilton, after invoking cloture to overcome a Republican leadership-
led filibuster. In comparison, by this date in 2001, we had confirmed 
21 of President Bush's nominations, including six to fill circuit court 
vacancies. We will certainly fall well short of the total of 28 
judicial confirmations our Democratic Senate majority worked to confirm 
in President Bush's first year in office.
  This year we have witnessed unprecedented delays in the consideration 
of qualified and noncontroversial nominations. We have had to waste 
weeks seeking time agreements in order to consider nominations that 
were then confirmed unanimously. Judge Nguyen is the most recent 
example. We have seen nominees strongly supported by their home state 
Senators, both Republican and Democratic, delayed for months and 
unsuccessfully filibustered. I have been concerned that these actions 
by the Republican leadership signal a return to their practices in the 
1990s, which resulted in more than doubling circuit court vacancies and 
led to the pocket filibuster of more than 60 of President Clinton's 
nominees. The crisis they created eventually led even to public 
criticism of their actions by Chief Justice Rehnquist during those 
years.
  I hope that instead of withholding consent and threatening 
filibusters of President Obama's judicial nominees, Senate Republicans 
will treat the nominees of President Obama fairly. I made sure that we 
treated President Bush's nominees more fairly than President Clinton's 
nominees had been treated. In the 17 months that I served as chairman 
of the Senate Judiciary Committee during President Bush's first term, 
the Senate confirmed 100 of his judicial nominations.
  I want to continue that progress, but we need Republican cooperation 
to do so. I urge them to turn away from their partisanship and begin to 
work with the President and the Senate majority leader.
  Unlike his predecessor, President Obama has reached out, reached 
across the aisle to work with Republican Senators in making judicial 
nominations. The nomination of Judge Hamilton, which the Republican 
leadership filibustered, was supported by the most senior Republican in 
the U.S. Senate, my respected friend from Indiana, Senator Lugar. Other 
examples are the recently confirmed nominees to vacancies in Alabama 
supported by Senators Sessions and Shelby, in South Dakota supported by 
Senator Thune, and in Florida, supported by Senators Martinez and 
LaMieux. Still others are the President's nomination to the 11th 
Circuit from Georgia, supported by Senators Isakson and Chambliss, his 
nomination to the 6th Circuit from Tennessee, supported by Senator 
Alexander, and his recent nominations to the 4th Circuit from North 
Carolina, supported by Senator Burr. President Obama has reached out 
and consulted with home State Senators from both sides of the aisle 
regarding his judicial nominees.
  Instead of praising the President for consulting with Republican 
Senators, the Republican leadership has doubled back on what they 
demanded when a Republican was in the White House. No more do they talk 
about each nominee being entitled to an up-or-down vote. That position 
is abandoned and forgotten. Instead, they now seek to filibuster and 
delay judicial nominations. They have also walked back from their 
position at the start of this Congress, when they threatened to 
filibuster nominees on which home state Senators were not consulted. We 
saw with Judge Hamilton that they filibustered a nominee supported by 
Senator Lugar.
  When President Bush worked with Senators across the aisle, I praised 
him and expedited consideration of his nominees. When President Obama 
reaches across the aisle, the Senate Republican leadership delays and 
obstructs his qualified nominees. I fear that Senate Republican 
delaying tactics will yield the lowest judicial confirmation total in 
modern history. If Senate Republicans continue their delaying tactics, 
the total could be as low as that during the 1996 session, during 
President Clinton's first term, when a Republican Senate majority would 
only allow 17 judicial confirmations, none for circuit courts.
  Although there have been nearly 110 judicial vacancies this year on 
our Federal circuit and district courts around the country, only 10 
vacancies have been filled. That is wrong. The American people deserve 
better. As I have noted, there are nine more qualified judicial 
nominations awaiting Senate action on the Senate Executive Calendar. In 
addition there are another four pending before the Senate Judiciary 
Committee that have been given hearings and could be reported to the 
Senate before Christmas. They will be available to be considered by the 
Senate once approved by the Judiciary Committee. The Senate should do 
better, and could if Senate Republicans would remove their holds and 
stop the delaying tactics.
  During President Bush's last year in office, we reduced judicial 
vacancies to as low as 34, even though it was a Presidential election 
year. Judicial vacancies have now spiked. There are currently 97 
vacancies on our Federal circuit and district courts, and 23 more

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have already been announced. This is approaching record levels. I know 
we can do better. Justice should not be delayed or denied to any 
American because of overburdened courts and the lack of Federal judges.

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