[Congressional Record (Bound Edition), Volume 155 (2009), Part 23]
[Senate]
[Pages 31804-31806]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          PENDING NOMINATIONS

  Mr. LEAHY. Mr. President, two weeks ago, 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 nominees as Federal 
judges. Regrettably, my plea has been ignored. Senate Republicans are 
failing the challenge. The Senate has been allowed to confirm only one 
judicial nominee all month. On December 1, after almost 6 weeks of 
unexplained delays, the Senate was allowed to consider the nomination 
of Judge Jacqueline Nguyen to fill a vacancy on the Federal Court for 
the Central District of California. When finally considered, she was 
confirmed unanimously by a vote of 97 to 0. Since then, not a single 
judicial nominee has been considered. It is now 2 weeks later, December 
15.
  Judicial nominees have been and are available for consideration. This 
lack of action is no fault of the President. He has made quality 
nominations. They have had hearings and have been considered by the 
Senate Judiciary Committee and favorably reported to the Senate. 
Indeed, the logjam has only grown over the last 2 weeks. Five 
additional judicial nominations have been added to the Senate calendar 
since December 1, bringing the total number of judicial nominations 
ready for Senate action, yet delayed by Republican obstruction, to 12. 
One has been ready for Senate consideration for more than 13 weeks, 
another more than 10 weeks, and the list goes on. The majority leader 
and Democratic Senators have been ready to proceed. The Republican 
Senate leadership has not.
  There are now more judicial nominees awaiting confirmation on the 
Senate's Executive Calendar than have been confirmed since the 
beginning of the Obama administration. Due to delays and obstruction by 
the Republican minority, we have only been able

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to consider 10 judicial nominations to the Federal circuit and district 
courts all year, and for one of them, although supported by the longest 
serving Republican in the Senate, we had to overcome a full-fledged 
filibuster led by the Republican leadership. As a result, we will not 
only fall well short of the total of 28 judicial confirmations the 
Democratic Senate majority worked to confirm in President Bush's first 
year in office, but we threaten to achieve the lowest number of 
judicial confirmations in the first year of a new Presidency in modern 
history.
  It is clear that the Republican leadership has returned 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. Their delays this year may leave us well short even 
of their low point during President Clinton's first term, when the 
Republican Senate majority would only allow 17 judicial confirmations 
during the entire 1996 session. That was a Presidential election year 
and the end of President Clinton's first term. By contrast, this is 
just the first year of the Obama administration.
  We need to act on the judicial nominees on the Senate Executive 
Calendar without further delay. 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. We have seen nominees strongly supported by their home 
State Senators, both Republican and Democratic, delayed for months and 
unsuccessfully filibustered.
  The 12 judicial nominations that have been given hearings and 
favorable consideration by the Senate Judiciary Committee and that 
remain stalled before the Senate 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 District 
Court for the Northern District of California; Dolly Gee, nominated to 
the District Court for the Central District of California; Richard 
Seeborg, nominated to the District Court for 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; Louis 
Butler, nominated to the District Court for the Western District of 
Wisconsin; Denny Chin of New York, nominated to the Second Circuit; 
Rosanna Malouf Peterson, nominated to the District Court for the 
Eastern District of Washington; and William Conley, nominated to the 
District Court for the Western District of Wisconsin.
  Acting on these nominations, we can confirm 13 nominees this month. 
In December 2001, 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 midyear 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.
  At the end of the Senate's 2001 session, only four judicial 
nominations were left on the Senate Executive Calendar, all of which 
were confirmed soon after the Senate returned in 2002. At the end of 
the first session of Congress during President Clinton's first term, 
just one judicial nominee was left on the Senate Executive Calendar. At 
the end of the President George H.W. Bush's first year in office, a 
Democratic Senate majority left just two judicial nominations pending 
on the Senate Executive Calendar. At the end of the first year of 
President Reagan's first term--a year in which the Senate confirmed 41 
of his Federal circuit and district court nominees--not a single 
judicial nomination was left on the Senate Executive Calendar.
  In stark contrast, there are now 12 judicial nominees on the Senate 
Executive Calendar and no agreement from Senate Republicans to consider 
a single one. That is a significant change from our history and 
tradition of confirming judicial nominations that have been reported 
favorably by the Senate Judiciary Committee by the end of a session.
  The record of obstruction of the Senate Republicans is just as 
disappointing when we consider the executive nominations that have been 
reported by the Judiciary Committee. There are currently 15 executive 
nominations that have been reported favorably by the Senate Judiciary 
Committee pending on the Senate Executive Calendar, including 
nominations for Assistant Attorneys General to run three of the 11 
divisions at the Department of Justice. Each of these nominations has 
been pending 4 months or longer.
  The President nominated Dawn Johnsen to lead the Office of Legal 
Counsel on February 11. Her nomination has been pending on the Senate 
Executive Calendar since March 19. That is the longest pending 
nomination on the calendar by over 2 months. We did not treat President 
Bush's first nominee to head the Office of Legal Counsel the same way. 
We confirmed Jay Bybee to that post only 49 days after he was nominated 
by President Bush, and only 5 days after his nomination was reported by 
the Senate Judiciary Committee.
  Mary Smith's nomination to be the Assistant Attorney General in 
charge of the Tax Division has been pending on the Senate's Executive 
Calendar since June 11--more than 6 months. We confirmed President 
Bush's first nomination to that position, Eileen O'Connor, only 57 days 
after her nomination was made and 1 day after her nomination was 
reported by the Senate Judiciary Committee. Her replacement, Nathan 
Hochman, was confirmed without delay, just 34 days after his 
nomination.
  Among the nominations still waiting for consideration is that of 
Christopher Schroeder, nominated on June 4 to be Assistant Attorney 
General for the Office of Legal Policy, OLP. Mr. Schroeder's nomination 
has been pending before the Senate since July of this year when he was 
reported by the Senate Judiciary Committee by voice vote and without 
dissent. There was no objection from the Republican members of the 
committee on his nomination, so it puzzles me why we cannot move to a 
vote.
  President Bush appointed four Assistant Attorneys General for the 
Office of Legal Policy. Each was confirmed expeditiously by the Senate. 
In fact, his first nominee to that post, Viet Dinh, was confirmed by a 
vote of 96 to 1 just 1 month after he was nominated and only a week 
after his nomination was reported by the Senate Judiciary Committee. 
Professor Schroeder's nomination has been pending for over 4 months. 
President Bush's three subsequent nominees to head OLP--Daniel Bryant, 
Rachel Brand, and Elisebeth Cook--were each confirmed by voice vote in 
a shorter time than Professor Schroeder's nomination has been pending.
  Senate Republicans should not further delay consideration of these 
important nominations.
  Returning to judicial nominations, I hope that instead of withholding 
consent and threatening filibusters of President Obama's nominees, 
Senate Republicans will treat President Obama's nominees fairly. I made 
sure that we treated President Bush's nominees more fairly than 
President Clinton's nominees had been treated. 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.
  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 Senate Republican leadership has doubled back

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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. 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.
  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 12 more qualified judicial 
nominations awaiting Senate action on the Senate Executive Calendar. 
Another nomination should be considered by the Judiciary Committee this 
week. I hope that with the session drawing to a close Judge Rogeriee 
Thompson of Rhode Island will not be needlessly delayed. 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 had reduced judicial 
vacancies to as low as 34, even though it was a Presidential election 
year. As matters stand today, judicial vacancies have spiked, and we 
will start 2010 with the highest number of vacancies on article III 
courts since 1994, when the vacancies created by the last comprehensive 
judgeship bill were still being filled. While it has been nearly 20 
years since we enacted a Federal judgeship bill, judicial vacancies are 
nearing record levels, with 97 current vacancies and another 23 already 
announced. If we had proceeded on the judgeship bill recommended by the 
U.S. Courts to address the growing burden on our Federal judiciary and 
provide access to justice for all Americans, vacancies would stand at 
160, by far the highest on record. 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.
  There is still time to act on these nominations before the Senate 
recesses this year. I hope Senate Republicans will lift their 
objections and allow us to proceed on the 27 nominations reported by 
the Judiciary Committee. Absent cooperation to confirm nominations, 
this Congress will be recorded in history as one of the least 
productive in the confirmation of judicial nominations. I hope the New 
Year will bring a renewed spirit of cooperation.

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