[Congressional Record (Bound Edition), Volume 155 (2009), Part 24]
[Senate]
[Pages 33143-33145]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   JUDICIAL AND EXECUTIVE NOMINATIONS

  Mr. LEAHY. Mr. President, I have been calling on the Republican 
leadership to end the delays and obstruction of judicial nominations 
and join with us to make progress in filling some of the many vacancies 
on Federal circuit and district courts. I have done so repeatedly for 
most of the year, and several times over this last month. Regrettably, 
as we head into the winter recess and the end of the first session of 
the 111th Congress, Republican obstruction is setting a new low for the 
Senate in our consideration of judicial nominations.
  The Senate has been allowed to confirm only one judicial nominee all 
month. It is now December 23. By this date in President Bush's first 
year in office, the Senate with a Democratic majority confirmed 10 
nominations just in December to reach a total of 28 confirmed Federal 
circuit and district court nominees in the first session of the 107th 
Congress. That is 10 times as many nominations as the Senate has 
considered and confirmed this month. During the first year of President 
Bush's tumultuous administration, with the Senate majority changing in 
the middle of the year and Democrats then in the majority, we worked 
from July through December to confirm 28 judicial nominees. That was, 
of course, the year of the September 11 attacks and the anthrax attacks 
in the Senate, but we continued our work. The Senate proceeded to 
confirm 6 judicial nominees by voice vote in December 2001, a total of 
10 judicial nominees that month, a total of 28 in the last 6 months of 
that year, and 100 in the 17 months I served as chairman of the Senate 
Judiciary Committee during President Bush's first term.
  By contrast, thus far this month, with 12 judicial nominees now 
available to the Senate for final consideration, Senate Republicans 
have only allowed a vote on Judge Jacqueline Nguyen to the Central 
District of California. She was confirmed unanimously after been 
delayed 6 weeks. They have even refused to consider the nomination of 
Beverly Martin of Georgia to the Eleventh Circuit, despite strong 
support from her home state Senators, both Republicans. Instead of 
acting of her nomination, which has been awaiting final action since 
September 10, and that of Judge Greenaway of New Jersey, who has been 
nominated to the Third Circuit and was reported on October 1, they 
insist on delaying debate on that nomination for at least a month. I 
hope we will be able to turn to that nomination when the Senate returns 
in late January.
  The refusal by the Republican minority to enter into customary time 
agreements to consider non-controversial nominees has led us to fall 
well short of the confirmations achieved in the first years of other 
Presidents. On the eve of the end of the session, the Senate has 
confirmed little more than one-third as many of President Obama's 
circuit and district court nominees as it confirmed of President George 
W. Bush's--28--or of President Clinton's--27--in their first years. In 
fact, President Obama is on pace to have the fewest judicial nominees 
confirmed by a President in his first year since President Eisenhower, 
who only made nine nominations in 1953. Of course, all nine were 
confirmed. The total this year stands to be the fewest confirmed in any 
President's first year in more than 50 years, and the fewest in any 
year since the Republican majority confirmed only 17 in the 1996 
session, a Presidential election year.
  The unprecedented obstruction we have seen by Senate Republicans on 
issue after issue--over 100 filibusters this year alone, by some 
calculations, which have affected 70 percent of all Senate action--have 
ground Senate consideration of judicial nominations to a crawl. Instead 
of time agreements and the will of the majority, the Senate is faced 
with filibusters, and anonymous and Republican leadership holds. Those 
who just a short time ago said that a majority vote is all that should 
be needed to confirm a nomination, and that filibusters of nominations 
are unconstitutional, have hypocritically reversed themselves and now 
employ any delaying tactic they can.
  Judicial nominees have been and are available for consideration. This 
lack of Senate action is attributable to Senate Republicans and no one 
else. The President has reached across the aisle to consult and has 
made quality nominations. We have held the hearings, and the Senate 
Judiciary Committee has favorably reported 12 judicial nominees to the 
Senate on which action has not been permitted. There are now more 
judicial nominations stalled on the Senate Executive Calendar--12--than 
the number that have been confirmed all year. One has been ready for 
Senate consideration for more than 13 weeks, another more than 10 
weeks, and the list goes on. Nor are these controversial nominees. 
Eight of the 12 were reported from the Judiciary Committee without a 
single dissenting vote. The majority leader and all Democratic Senators 
have been ready to proceed. The Republican Senate leadership is not. It 
has stalled and delayed and obstructed.
  Unlike his predecessor, President Obama has reached out and across 
the aisle to work with Republican Senators in making his 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 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 Eleventh Circuit from Georgia, 
supported by Senators Isakson and Chambliss, which the Senate will not 
consider until the end of January because of Republican objection, and 
his nomination to the Sixth Circuit from Tennessee, supported by 
Senator Alexander.
  Last week we held a confirmation hearing for two more well-respected 
and well-qualified nominees that were the result of President Obama's 
effort to reach out and consult with home state Senators from both 
sides of the aisle, Judge James Wynn and Judge Albert Diaz. Judge Wynn 
and Judge Diaz

[[Page 33144]]

have been nominated to fill two longstanding vacancies on the U.S. 
Court of Appeals for the Fourth Circuit. Both are from North Carolina. 
Senator Burr and Senator Hagan worked with each other and with the 
White House on these nominations. I thank them both for their testimony 
before the committee last week in strong support of these nominees.
  These nominations are just the most recent examples of this President 
reaching out to home State Senators from both parties to consult before 
making nominations. Just as I worked last year to end a decade-long 
impasse on the Sixth Circuit with the confirmations of Judge Helene 
White and Ray Kethledge of Michigan, I will work to see that these 
nominations from North Carolina are considered fairly and confirmed 
expeditiously. With the support of the senior Senator from North 
Carolina, a Republican, and the determined efforts of Senator Hagan, a 
Democrat, North Carolina will finally have the representation on the 
Fourth Circuit that it deserves.
  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. 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.
  The Republican obstruction and delay in considering well-qualified 
noncontroversial nominees comes at a tremendous cost to the ability of 
our Federal courts to provide justice for all Americans. We have seen a 
tremendous spike in judicial vacancies. 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.
  In only 5 months of President Bush's first year in office when I 
served as Senate Judiciary Committee chairman and with a Democratic 
Senate majority, we confirmed 28 judicial nominees. During 17 months of 
President Bush's first 2 years in office, we confirmed 100 of his 
judicial nominees. Although two Republicans chaired the Senate 
Judiciary Committee and Senate Republicans held the Senate majority for 
more than half of President Bush's time in office, more judges 
nominated by President Bush were confirmed by the Senate Democratic 
majority and when I served as Senate Judiciary Committee chairman. 
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. When President Bush left office, we had reduced vacancies in 9 of 
the 13 circuits since President Clinton left office.
  As matters stand today, judicial vacancies have spiked and are being 
left unfilled. 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 Judicial Conference to address the growing 
burden on our Federal judiciary, as we did in 1984 and 1990, in order 
to provide the resources the courts need, current vacancies would stand 
at 160 today. That is the true measure of how far behind we have 
fallen. 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.
  I, again, urge the Republican minority to allow Senate action on the 
12 judicial nominees on the Senate Executive Calendar before the end of 
the session. We have now wasted weeks having to seek time agreements in 
order to consider even nominations that were reported by the Judiciary 
Committee unanimously and confirmed unanimously by the Senate when 
finally allowed to be considered. The 12 judicial nominees 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.
  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 unless there is a burst of cooperation from 
Republicans, they will remain on the calendar awaiting Senate 
consideration beyond the end of this session and into next year. 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 an incredible 
20 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. An editorial in 
today's Washington Post entitled ``Nominees in Limbo'' and subtitled 
``The Senate should do its job before taking a vacation'' describes the 
Republican obstruction of the nomination of Dawn Johnson to head the 
Office of Legal Counsel, which has been stalled on the Senate Executive 
Calendar since March, as ``[p]erhaps the greatest nominations 
travesty.'' The editorial concludes: ``[T]he president should be given 
deference in choosing executive-branch officials who share his views. 
Ms. Johnsen is highly qualified and should be confirmed. At the very 
least, senators should have the decency to give her an up-or-down 
vote.''
  Senate Democrats treated President Bush's first nominations for these 
same posts quite differently than Senate Republicans are now treating

[[Page 33145]]

President Obama's nominees. We promptly reported the President's 
nominees to head the Office of Legal Counsel, the Office of Legal 
Policy, and the Tax Division, and they each received Senate 
consideration in a matter of days or weeks after they were reported by 
the committee. We still have heard no explanation for the five months 
of Republican obstruction of the nomination of Chris Schroeder to head 
the Office of Legal Policy after his nomination was reported by the 
committee in July by voice vote without dissent. The Washington Post 
editorial rightfully calls for Mr. Schroeder's confirmation as well as 
for the confirmation of the long-pending nomination of Mary Smith to 
run the Tax Division.
  As with the judicial nominations, the Republicans have employed new 
standards of demanding a supermajority and floor time and delays to 
consider even nominations that could be confirmed easily, grinding our 
progress to a halt. I hope that the Republican Senators and leadership 
will relent and end the year by making progress on these important 
nominations to put us on a better path for the next session.

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