[Congressional Record (Bound Edition), Volume 156 (2010), Part 10]
[Senate]
[Pages 13848-13850]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, earlier this week, I came to the Senate 
with the respected senior Senator from Tennessee and sought a time 
agreement to consider Jane Stranch of Tennessee, a judicial nomination 
that has been stalled by the Republican leadership for more than 8 
months. It is one of more than 20 judicial nominations being delayed 
from Senate consideration by Republican objection. Despite the support 
of Senator Alexander, the senior Senator from Tennessee who is part of 
the Republican leadership, the Republican leader objected to a time 
agreement to consider the Stranch nomination to the Sixth Circuit. I 
was disappointed, as I have been repeatedly by Republican obstruction 
since President Obama was elected.
  Senate Republicans have further ratcheted up the obstruction and 
partisanship that have regrettably become commonplace this Congress 
with regard to judicial nominees. We asked merely for a time agreement 
to debate and vote on the nomination. I did not foreclose any 
Republican Senator from voting against the nominee or speaking against 
the nominee but simply wanted a standard agreement in order to allow 
the majority leader to schedule the debate and get to a vote. This is 
for a nomination reported favorably by the Judiciary Committee over 
eight months ago with bipartisan support. Yet the Republican leader 
objected and blocked our consideration.
  No one should be confused: the current obstruction and stalling by 
Senate Republicans is unprecedented. There is no systematic counterpart 
by Senate Democrats. In fact, during the first 2 years of the Bush 
administration, the 100 judges confirmed were considered by the 
Democratically controlled Senate an average of 25 days from being 
reported by the Judiciary Committee. The average time for confirmed 
Federal circuit court nominees was 26 days. The average time for the 36 
Federal circuit and district and circuit court judges confirmed since 
President Obama took office is 82 days and the average time for Federal 
circuit nominees is 126 days. So when Republicans say that we are 
moving faster than we did during the first 2 years of the Bush 
administration they are wrong. It was not until the summer of 2001 that 
the Senate majority shifted to Democrats, but as soon as it did, we 
proceeded on the judicial nominations of President Bush, a Republican 
President. Indeed, by this date during the second year of the Bush 
administration, the Senate had confirmed 58 of his judicial nominations 
and we were on the way to confirming 100 by the end of the year. By 
contrast, Republican obstruction of President Obama's judicial nominees 
has meant that only 36 of his judicial nominees have been confirmed. We 
have fallen dramatically behind the pace set for consideration of 
President Bush's nominees.
  With respect to Senate Republican leadership's current practice of 
holding, delaying and obstructing Senate consideration of judicial 
nominees reported favorably by the Judiciary Committee, this is a 
tactic they reserve for nominees of Democratic Presidents. Indeed, when 
President Bush was in the White House, Senate Republicans took the 
position that it was unconstitutional and wholly inappropriate not to 
vote on nominees approved by the Senate Judiciary Committee. With a 
Democratic President, they have reverted to the secret holds that 
resulted in pocket filibusters of more than 60 nominees during the 
Clinton years. Last year, Senate Republicans successfully stalled all 
but a dozen Federal circuit and district court nominees. That was the 
lowest total number of judges confirmed in more than 50 years. They 
have continued that practice despite the fact that judicial vacancies 
continue to hover around 100, with more than 40 declared judicial 
emergencies.
  Since the nomination of Jane Stranch of Tennessee is for a vacancy in 
the Sixth Circuit, when the Republican leader blocked consideration of 
her nomination earlier this week, I provided the history of how 
nominees to the Sixth Circuit by Presidents Clinton and Bush had been 
treated. Despite the fact that Senate Republicans had pocket 
filibustered President Clinton's nominees, Senate Democrats proceeded 
to consider President Bush's.
  Today I would like to outline the recent history of the Fourth 
Circuit. Two nominees from North Carolina to the Fourth Circuit were 
the subject of a request for a time agreement by the Senator from North 
Carolina last week. The Republican leader objected to any agreement to 
debate and vote on those nominations, as well. I note that one of those 
North Carolina nominations was reported unanimously by the Judiciary 
Committee, and the other received six Republican votes in favor and 
only one vote against. They are supported by both Senators from North 
Carolina, one a Republican and one a Democrat. Still the Republican 
leadership refuses to allow the Senate to consider them.
  When I became chairman of the Judiciary Committee midway through

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President Bush's first tumultuous year in office, I worked very hard to 
make sure Senate Democrats did not perpetuate the judge wars as tit-
for-tat. In fact, we did not. Senate Republicans had pocket 
filibustered more than 60 of President Clinton's judicial nominations 
and refused to proceed on them. Included among these was one of the 
nominees from North Carolina now pending before us again, Judge Wynn. 
Nevertheless, during the 17 months I chaired the Judiciary Committee 
during President Bush's first 2 years in office, the Senate proceeded 
to confirm 100 of his judicial nominees. The Fourth Circuit was 
problematic, as I will explain, but we were able to make progress there 
as well. It was not as much progress as I would have liked, but during 
the Bush administration we were able to reduce the number of vacancies 
in the Fourth Circuit.
  In contrast to the Republican Senate majority during the Clinton 
administration that obstructed nominations and more than doubled 
circuit court vacancies, Senate Democrats contributed to the reduction 
of circuit court vacancies by two-thirds during the Bush 
administration. The Senator from Kentucky complained last week about 
two nominations made during the 7th and 8th years of the Bush 
administration, including one that did not have the support of home 
State Senators. He did not mention that, during the Clinton 
administration, Senate Republicans pocket filibustered five of 
President Clinton's nominations to the Fourth Circuit, resulting in a 
doubling of Fourth Circuit vacancies, which rose from two to five. The 
Republican leader did not mention that Senate Republicans did not 
proceed on even one of President Clinton's Fourth Circuit nominees 
during the last three years of his administration or the fact that, by 
contrast, Senate Democrats did proceed to confirm Judge Agee of 
Virginia to the Fourth Circuit in the last few months of the Bush 
administration.
  The fact is that Senate Democrats did not do what Republicans are 
apparently now doing--retaliating for perceived slights. We did not 
engage in tit-for-tat. When I became chairman of the Judiciary 
Committee midway through President Bush's first year in office, the 
first nominee the Judiciary Committee and the Senate considered was a 
Virginia nominee to the Fourth Circuit. Judge Roger Gregory had been 
pocket filibustered by Senate Republicans after being nominated by 
President Clinton. We also considered and confirmed the controversial 
nomination of Judge Dennis Shedd from South Carolina to the Fourth 
Circuit before the end of that Congress. Senate Democrats cooperated in 
order to break a longstanding logjam that had prevented any North 
Carolina representation on the Fourth Circuit for many years with the 
confirmation of Judge Allyson Duncan to the Fourth Circuit in 2003.
  In 2008, under my chairmanship of the Judiciary Committee, we moved 
forward to confirm Judge G. Steven Agee of Virginia to the Fourth 
Circuit. The confirmation of Judge Agee was one more Fourth Circuit 
confirmation than Senate Republicans would allow during the last 3 
years of the Clinton administration and allowed us to reduce the 
vacancies on the circuit during the Bush administration by one. While I 
would have liked to have been more productive, and would have been had 
the Bush administration not been intent on packing the court, we were 
able to reduce the vacancies on the Fourth Circuit during the Bush 
administration and reverse the effect of Senate Republicans' 
obstruction of President Clinton's nominees. That is a more accurate 
snapshot of the recent history of the Fourth Circuit than the isolated 
nominations at the end of the Bush administration that the Republican 
leader referenced as if they justified his objection to proceeding to 
debate and vote on the consensus nominations of Judge James Wynn and 
Judge Albert Diaz now.
  The Fourth Circuit is a good example of how much time and effort was 
wasted on ideological nominations by President Bush. For example, there 
was the highly controversial and failed nomination of William ``Jim'' 
Haynes II, to the Fourth Circuit. Senator Graham of South Carolina 
criticized that nomination just recently during the Judiciary Committee 
consideration of the nomination of Elena Kagan to the Supreme Court. As 
general counsel at the Department of Defense, he was the architect of 
many discredited policies on detainee treatment, military tribunals, 
and torture. Mr. Haynes never fulfilled the pledge he made to me under 
oath at his hearing to supply the materials he discussed in an extended 
opening statement regarding his role in developing these policies and 
their legal justifications.
  The Haynes nomination led the Richmond Times-Dispatch to write an 
editorial in late 2006 entitled ``No Vacancies,'' about the President's 
counterproductive approach to nominations in the Fourth Circuit. The 
editorial criticized the Bush administration for pursuing political 
fights at the expense of filling vacancies. According to the Times-
Dispatch, ``The president erred by renominating . . . and may be 
squandering his opportunity to fill numerous other vacancies with 
judges of right reason.'' The Times-Dispatch editorial focused on the 
renomination of Mr. Haynes, but could just as easily have been written 
about other controversial Fourth Circuit nominees.
  Another example is President Bush's nominations of Duncan Getchell, 
over the objections of both his home State Senators, a Republican and a 
Democrat. That nomination was later withdrawn.
  Another example is President Bush's nomination of Claude Allen to a 
vacancy in Maryland, despite the fact that he was opposed by both 
Maryland Senators. That nomination was withdrawn and Allen was later 
arrested and convicted of fraud.
  The President insisted on nominating and renominating Terrence Boyle 
over the course of 6 years to a North Carolina vacancy on the Fourth 
Circuit. This despite the fact that as a sitting U.S. district judge 
and while a circuit court nominee, Judge Boyle ruled on multiple cases 
involving corporations in which he held investments. The President 
should have heeded the call of North Carolina Police Benevolent 
Association, the North Carolina Troopers' Association, the Police 
Benevolent Associations from South Carolina and Virginia, the National 
Association of Police Organizations, the Professional Fire Fighters and 
Paramedics of North Carolina, as well as the advice of the Senator from 
North Carolina who opposed the nomination. Law enforcement officers 
from North Carolina and across the country opposed the nomination. 
Civil rights groups opposed the nomination. Those knowledgeable and 
respectful of judicial ethics opposed the nomination. President Bush 
persisted for 6 years before withdrawing the Boyle nomination.
  I mention these ill-advised nominations because Senate Republicans 
seem to have forgotten this recent history and why there are continuing 
vacancies on the Fourth Circuit. The efforts and years wasted on 
President Bush's ideological nominations followed in the wake of the 
Republican Senate majority's refusal to consider President Clinton's 
Fourth Circuit nominees. All four nominees from North Carolina to the 
Fourth Circuit were blocked from consideration by the Republican Senate 
majority. These outstanding nominees included U.S. District Court Judge 
James Beaty, Jr., U.S. Bankruptcy Judge J. Richard Leonard, North 
Carolina Court of Appeals Judge James Wynn, and Professor Elizabeth 
Gibson. The failure to proceed on these nominations has yet to be 
explained. Had either Judge Beaty or Judge Wynn been considered and 
confirmed, he would have been the first African-American judge 
appointed to the Fourth Circuit.
  In contrast, I worked to break through the impasse and to confirm 
Judge Allyson Duncan of North Carolina to the Fourth Circuit when 
President Bush nominated her. I also worked to reduce Federal judicial 
vacancies in North Carolina by confirming eight district court judges 
during the Bush administration. By contrast, during the entire 8 years 
of the Clinton administration, only one district court judge was 
allowed to be confirmed for North Carolina.

[[Page 13850]]

  Overall judicial vacancies were reduced during the Bush years to less 
than 4 percent. Federal judicial vacancies are now over 10 percent. 
During the Bush years, the Federal circuit court vacancies were reduced 
from a high of 32 down to single digits after Senate Republicans had 
more than doubled circuit court vacancies during the last 6 years of 
the Clinton administration. Our progress has not continued with 
President Obama. Instead, Republican obstruction is putting that 
progress at risk. During the Bush years, we reduced vacancies on nine 
circuits. Since then, vacancies on six circuits have risen and circuit 
court vacancies have doubled from their low point.
  There did come a time in the 108th Congress when President Bush and 
Senate Republicans were intent on packing the courts with ideologues, 
and the Republican chairman of the Judiciary rewrote or broke our rules 
and practices in his attempt to assist that effort. They forced 
filibusters of nominees. Most of those were ultimately confirmed and 
some withdrew, including Miguel Estrada who withdrew when the Bush 
administration would not accommodate Senate requests for access to 
information about his work. Senate Democrats did not replicate or 
retaliate for Republican excesses during the Clinton years. As chairman 
I proceeded on judicial nominees I opposed, I made blue slips public 
and Senate Democrats debated judicial nominees in public and gave their 
reasons for opposition rather than relying as Senate Republicans had on 
secret holds and pocket filibusters.
  I have not done what the Republican chairman did. I have respected 
and protected the rights of the minority. I have followed our rules and 
practices. President Obama has not done what President Bush did by 
making nominations opposed by home State Senators. Instead, President 
Obama has reached out and worked with home State Senators from both 
parties. He has identified well-qualified nominees. Despite our 
efforts, the qualifications of the nominees, and the support of home 
State Senators, including Republican Senators, Senate Republicans have 
filibustered, obstructed and delayed consideration of President Obama's 
judicial nominees favorably reported by the Judiciary Committee.
  I have tried to ratchet up the cooperation between parties and 
branches in my role as chairman. It is disappointing to see the Senate 
Republican leadership take the opposite approach. They are holding up 
for no good reason consideration of nominees reported from the 
Judiciary Committee for weeks and months. Their pattern is to stall and 
obstruct. Republicans' sense of injury is misplaced in my view. 
Moreover, the disproportionateness of their response to perceived 
slights disserves the American people and our Federal justice system.
  I was interested to see the Republican leader in his statement last 
week claim credit for the confirmations of Judge Andre Davis of 
Maryland and Judge Barbara Keenan of Virginia to the Fourth Circuit. I 
would be delighted to praise the Republican leader were he to work with 
us, and I look forward to doing so were he to agree without further 
delay to debates and prompt votes on the more than 20 judicial nominees 
now being stalled by Republican objection.
  Let us remember what happened with the two nominees he now mentions: 
the nomination of Judge Andre Davis was stalled for 5 months after 
being reported by the Judiciary Committee with a strong bipartisan 
majority by a vote of 16 to 3. Some would say this nomination was 
delayed for 10 years since Judge Davis had been nominated by President 
Clinton toward the end of his administration in 2000 and was not 
confirmed until 2010. Judge Davis was a well-respected judge who had 
served for 14 years as a Federal district judge and before that for 8 
years as a Maryland State court judge and had received the highest 
rating by the ABA. I understand why the Republican leader ultimately 
voted for him, along with more than 70 other Senators who provided a 
strong bipartisan majority once Republicans allowed the vote to 
proceed. It is up to each Senator how he or she chooses to vote. My 
concern is that the debate and vote on the nomination was needlessly 
stalled for 5 months.
  The case of Judge Barbara Keenan is even more troubling. Judge Keenan 
had been a judge for 29 years and served on each of the four levels of 
Virginia State courts. The ABA awarded her its highest rating as did 
the Virginia State Bar. Judge Keenan's nomination was reported 
unanimously by the Judiciary Committee on October 29, 2009. It took 
until March 2, more than 4 months, to get the Senate to debate and vote 
on this nomination after it was unanimously reported. And even that 
does not fully indicate the Republican obstruction. It also took the 
majority leader's filing a cloture petition to bring the nomination to 
a vote. Having refused to agree to a time agreement on this consensus 
nomination, the Senate had to invoke cloture to end the stalling. When 
the vote was finally taken, it was unanimous. No Senator voted against 
this nomination or spoke against it. So, I asked, why the stalling? 
Tragically, that stalling and obstruction has continued and is 
continuing. I said then that even when Republicans cannot say no, they 
nonetheless demand that the Senate go slow. This is wrong. Judge 
Keenan's nomination is just one example from several where after 
stalling and delaying consideration for weeks and months for no good 
reason, Senate Republicans do not vote against the nomination.
  I suspect that will happen again with the North Carolina nominees to 
the Fourth Circuit whose consideration the Republican leader objected 
to last week. After all, they were reported 18 to 1 and 19 to 0. Judge 
James Wynn of North Carolina and Judge Albert Diaz of North Carolina 
are examples of the judicial nominees being stalled who would be 
confirmed by the Senate if the Senate Republican leadership would agree 
to debate and vote on them. The list includes not only the 21 Federal 
circuit and district court nominees currently stalled by Republican 
objection from final Senate consideration, but also many of the 36 
confirmed but who were needlessly delayed. What is being perpetuated is 
a shame that does harm to the American people and the Federal courts.

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