[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[Senate]
[Pages 18051-18056]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, in the aftermath of the November election 
returns, there was talk on all sides about working together. We can do 
so right now, without further delay, and in the interests of the 
American people. As of today there are more than 100 vacancies on the 
Federal courts around the country, 50 of them for vacancies deemed 
judicial emergencies by the Administrative Office of the U.S. Courts. 
The Senate has ready for consideration and confirmation 23 judicial 
nominees of the President, all of whom have had hearings before the 
Judiciary Committee and have been reported favorably to the Senate by a 
majority of that committee. Sixteen of these judicial nominees were 
reported unanimously. The Senate can confirm those 16 nominees today, 
and we can then schedule such debate as needed on the remaining seven. 
Our working together to do so would send the right message to the 
American people. Let's work together and approve these nominations 
without additional delay. Let's end the gridlock. Let's move forward.
  As the Senate recessed for the elections, we were not allowed to 
consider and confirm any of the 23 judicial nominations pending on the 
Senate Executive Calendar--this despite the judicial vacancies crisis 
in our Federal courts. As of today there are 108 current judicial 
vacancies. We already know of 20 future vacancies. In addition, the 
Senate has not acted on the request by the Judicial Conference of the 
United States to authorize 56 additional judges, which will allow the 
Federal judiciary to do its work. Accordingly, the Federal judiciary is 
currently more than 180 judges short of those needed.
  At the end of September, the President of the United States sent a 
letter to Senate leaders expressing his justifiable concern with the 
pace of judicial confirmations. The President wrote that the American 
people and the Federal judiciary suffer from this inaction and that a 
minority of Senators has, in his words ``systematically and 
irresponsibly used procedural maneuvers to block or delay confirmation 
votes on judicial nominees--including nominees that have strong 
bipartisan support and the most distinguished records.''
  All of these nominees have the backing of their home State Senators. 
Indeed, President Obama has worked hard with home State Senators 
regardless of party affiliation, and by so doing has done his part to 
restore comity to the process.
  Sixteen judicial nominees have been delayed despite the fact that 
they were reported without a single vote in opposition from the Senate 
Judiciary Committee. Regrettably, despite the President's efforts and 
his selection of outstanding nominees the Senate has not reciprocated 
by promptly considering his consensus nominees. To the contrary, as the 
President has pointed out, nominees are being stalled who, if allowed 
to be considered, would receive unanimous or near unanimous support, be 
confirmed, and be serving in the administration of justice throughout 
the country. This is counterproductive.
  Like the President, I welcome debate and a vote on those few nominees 
that some Republican Senators would oppose. Nominees like Benita 
Pearson of Ohio, William Martinez of Colorado, Louis Butler of 
Wisconsin, Edward Chen of California, John McConnell of Rhode Island, 
Goodwin Liu of California and Robert Chatigny of Connecticut. I have 
reviewed their records and considered their character, background and 
qualifications. I have heard the criticisms of the Republican Senators 
on the Judiciary Committee as they have voted against this handful of 
nominees. I disagree, and believe the Senate would vote, as I have, to 
confirm them. That they will not be conservative activist judges should 
not disqualify them from serving.
  But that is not what is happening. We are not debating the merits of 
those nominations, as Democratic Senators did when we opposed the most 
extreme handful of nominees of President Bush. What is happening is 
that judicial confirmations are being stalled virtually across the 
board. What is new and particularly damaging is that 16 judicial 
nominees who were all reported unanimously by the Senate Judiciary 
Committee, without Republican opposition, are still being delayed. 
These nominees include Albert Diaz and Catherine Eagles of North 
Carolina. They are both supported by Senator Hagan and Senator Burr. 
Sadly, Senator Burr's support has not freed them from the across the 
board Republican hold on all judicial nominees. Judge Diaz was reported 
unanimously in January, almost 11 months ago, and still waits for 
agreement from the minority in order for the Senate to consider his 
nomination so that he may be confirmed.
  Also being delayed for no good reason from joining the bench of the 
most overloaded Federal district in the country in the Eastern District 
of California is Kimberly Mueller, whose nomination was reported last 
May, more than 6 months ago, without any opposition. Her nomination is 
one of four circuit and district nominations to positions in the Ninth 
Circuit currently on the Executive Calendar that Republicans are 
blocking from Senate consideration. In addition to the Liu and Chen 
nominations, the nomination of Mary Murguia from Arizona to the Ninth 
Circuit has been stalled since August despite the strong support of 
Senator Kyl, the assistant Republican leader.
  I want to put into the Record a letter we received this week from 
Ninth Circuit Chief Judge Alex Kozinski, a President Reagan appointee, 
and the other members of the Judicial Council of the Ninth Circuit 
writing ``to emphasize our desperate need for judges'' in the Nation's 
largest Federal circuit. They write that ``[c]ourts cannot do their 
work if authorized judicial positions remain vacant'' and urge ``that 
the Senate act on judicial nominees without delay.'' This letter echoes 
the serious warning I have previously spoken about issued by Justice 
Anthony Kennedy at the Ninth Circuit Conference about skyrocketing 
judicial vacancies in California and throughout the country. He said: 
``It's important for the public to understand that the excellence of 
the federal judiciary is at risk.'' He noted that ``if judicial 
excellence is cast upon a sea of congressional indifference, the rule 
of law is imperiled.''
  The District of Columbia suffers from four vacancies on its Federal 
District Court. Two nominees could help that court, but they are now 
being delayed from final consideration. Beryl Howell was reported by 
the committee unanimously. She is well known to many of us from her 10 
years of service as a counsel on the Senate Judiciary Committee. She is 
a decorated former Federal prosecutor and the child of a military 
family. Robert Wilkins was also reported without opposition. The 
distinguished Chief Judge of the District Court, Chief Judge Royce 
Lamberth sent a recent letter to Senate leaders urging prompt action on 
these nominations.

[[Page 18052]]

  John Gibney of Virginia, James Bredar and Ellen Hollander of 
Maryland, Susan Nelson of Minnesota, Edmond Chang of Illinois, Leslie 
Kobayashi of Hawaii, and Denise Casper of Massachusetts are the other 
district court nominees reported unanimously from the Judiciary 
Committee and could have been confirmed as consensus nominees long ago.
  Another district court nominee is Carlton Reeves of Mississippi, who 
is supported by Senator Cochran and is a former president of the 
Magnolia Bar Association. Only Senator Coburn asked to be recorded as 
opposing his nomination. I believe Mr. Reeves would receive a strong 
bipartisan majority vote for confirmation.
  Counting Judge Diaz, there are five consensus nominees to the circuit 
courts who are being stalled. Judge Ray Lohier of New York would fill 
one of the four current vacancies on the United States Court of Appeals 
for the Second Circuit. He is another former prosecutor with support 
from both sides of the aisle. His confirmation has been stalled for no 
good reason for more than 6 months, as well. Scott Matheson is a Utah 
nominee with the support of Senator Hatch who was reported without 
opposition. Mary Murgaia is from Arizona and is supported by Senator 
Kyl and was reported without opposition. Finally, Judge Kathleen 
O'Malley of Ohio, nominated to the Federal circuit, was reported 
without opposition.
  Many of these nominees could have been considered and confirmed 
before the August recess. All of them could have been considered and 
confirmed before the October recess. They were not. They were not 
because of Republican objections that, I suspect, have nothing to do 
with the qualifications or quality of these nominees. These are not 
judicial nominations whose judicial philosophy Republicans question.
  The President noted in his September letter to Senate leaders that 
the ``real harm of this political game-playing falls on the American 
people, who turn to the courts for justice'' and that the unnecessary 
delay in considering these noncontroversial nominations ``is 
undermining the ability of our courts to deliver justice to those in 
need . . . from working mothers seeking timely compensation for their 
employment discrimination claims to communities hoping for swift 
punishment for perpetrators of crimes to small business owners seeking 
protection from unfair and anticompetitive practices.''
  President Obama has reached out to Republican home State Senators 
regarding his judicial nominations. They should reciprocate. As the 
President said in his inaugural address calling for a new era of 
responsibility, he called for ``an end to the petty grievances . . . 
recriminations and worn-out dogmas that for far too long have strangled 
our politics.'' The President recalled the words of Scripture as he 
urged ``the time has come to set aside childish things.'' Let the 
Senate end this across the board blockade against confirming 
noncontroversial judicial nominees. Democrats did not engage in such a 
practice with President Bush and Republicans should not continue their 
practice any longer. With more than 100 vacancies plaguing the Federal 
courts, we do not have the luxury of indulging in such games.
  The Senate is well behind the pace set by a Democratic majority in 
the Senate considering President Bush's nominations during his first 2 
years in office. By this date in President Bush's second year in 
office, the Senate, with a Democratic majority, had confirmed 100 of 
his Federal circuit and district court nominations. They were all 
considered and confirmed during the 17 months I chaired the Senate 
Judiciary Committee. Not a single nominee reported by the Judiciary 
Committee remained pending on the Senate's Executive Calendar at the 
end of the Congress.
  In sharp contrast, during President Obama's first 2 years in office, 
the minority has allowed only 41 Federal circuit and district court 
nominees to be considered by the Senate. In 2002, we proceeded in the 
lame duck session after the election to confirm 20 of President Bush's 
judicial nominees. This year there are 23 judicial nominations ready 
for Senate consideration and another 11 noncontroversial nominations on 
the committee's business agenda that could have been reported out 
yesterday. Those 11 nominations were needlessly held over another two 
weeks by Republican Senators but could be reported to the Senate at our 
next business meeting. That is more than 30 additional confirmations 
that could be easily achieved with a little cooperation from the 
minority. That would increase the confirmations from the historically 
low level of 41, where it currently stands, to between 70 and 75. That 
would be in the range of judicial confirmations during President George 
H.W. Bush's first 2 years, 70, while resting far below President 
Reagan's first 2 years, 87, and pale in comparison to the 100 confirmed 
in the first 2 years of the George W. Bush administration or those 
confirmed during President Clinton's first 2 years, 127.
  I come before the Senate today to make a proposal to end this 
impasse. This is a proposal the American people will understand and, I 
believe, support. It, too, has scriptural roots. I ask the Republican 
leadership to follow the Golden Rule with respect to these judicial 
nominations. This is not complicated. It is something we teach our 
children from a young age. It is a basic rule of good behavior. Do unto 
these nominations as you would have done to the nominations of a 
Republican President. Following this basic precept would lead to the 
confirmation without further delay of the nominations reported without 
opposition. They can be confirmed today. If someone wishes to ask for 
rollcall votes on these nominations, tell the majority leader so that 
he can schedule that vote without further delay. End this across the 
board stall on judicial nominations by allowing the many 
noncontroversial nominations to proceed without further objection, 
obstruction or delay.
  The new tactic of objecting to consideration of noncontroversial 
nominations is an escalation of the so-called ``judge wars.'' The 
attempted justification as some kind of tit-for-tat is wrong. But my 
proposal does not depend on whether you agree with me or side with 
partisans from across the aisle. While seeking to justify ``an eye for 
an eye'' would require a look back and a factual accounting, the Golden 
Rule is a rule of current and prospective behavior. I hope those on the 
other side will remember our shared values and adopt the Golden Rule 
going forward from this day. That would be a step toward returning to 
our Senate traditions and allow the Senate better to fulfill its 
responsibilities to the American people and the Federal judiciary.
  During these 17 months I chaired the Judiciary Committee during 
President Bush's first 2 years, I scheduled 26 hearings for the 
judicial nominees of a Republican President and the Judiciary Committee 
worked diligently to consider them. During the 2 years of the Obama 
administration, I have tried to maintain that same approach. The 
committee held its 25th hearing for President Obama's Federal circuit 
and district court nominees this week. I have not altered my approach 
and neither have Senate Democrats.
  One thing that has changed is that we now receive the paperwork on 
the nominations, the nominee's completed questionnaire, the 
confidential background investigation and the American Bar Association, 
ABA, peer review almost immediately after a nomination is made, 
allowing us to proceed to hearings more quickly. During 2001 and 2002, 
President Bush abandoned the procedure that President Eisenhower had 
adopted and that had been used by President George H.W. Bush, President 
Reagan and all Presidents for more than 50 years. Instead, President 
George W. Bush delayed the start of the ABA peer review process until 
after the nomination was sent to the Senate. That added weeks and 
months to the timeline in which hearings were able to be scheduled on 
nominations.
  When I became chairman of the Judiciary Committee midway through 
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.

[[Page 18053]]

Despite the fact that Senate Republicans pocket filibustered more than 
60 of President Clinton's judicial nominations and refused to proceed 
on them while judicial vacancies skyrocketed during the Clinton 
administration, in 2001 and 2002, during the 17 months I chaired the 
committee during President Bush's first two years in office, the Senate 
proceeded to confirm 100 of his judicial nominees.
  By refusing to proceed on President Clinton's nominations while 
judicial vacancies skyrocketed during the 6 years they controlled the 
pace of nominations, Senate Republicans allowed vacancies to rise to 
more than 110 by the end of the Clinton administration. As a result of 
their strategy, Federal circuit court vacancies doubled. When Democrats 
regained the Senate majority halfway into President Bush's first year 
in office, we turned away from these bad practices. As a result, 
overall judicial vacancies were reduced during the Bush years from more 
than 10 percent to less than four percent. During the Bush years, the 
Federal court vacancies were reduced from 110 to 34 and Federal circuit 
court vacancies were reduced from a high of 32 down to single digits.
  This progress has not continued with a Democratic President back in 
office. Instead, Senate Republicans have returned to the strategy they 
used during the Clinton administration of blocking the nominations of a 
Democratic President, again leading to skyrocketing vacancies. Last 
year the Senate confirmed only 12 Federal circuit and district court 
judges, the lowest total in 50 years. This year we have yet to confirm 
30 Federal circuit and district judges. We are not even keeping up with 
retirements and attrition. As a result, judicial vacancies are, again, 
over 100 and, again, more than 10 percent.
  Regrettably, the Senate is not being allowed to consider the 
consensus, mainstream judicial nominees favorably reported from the 
Judiciary Committee. It has taken nearly five times as long to consider 
President Obama's judicial nominations as it did to consider President 
Bush's during his first 2 years in office. During the first 2 years of 
the Bush administration, the 100 judges confirmed were considered by 
the Senate an average of 25 days from being reported by the Judiciary 
Committee. The average time for confirmed circuit court nominees was 26 
days. By contrast, the average time for the 41 Federal circuit and 
district and circuit court judges confirmed since President Obama took 
office is 90 days and the average time for circuit nominees is 148 
days--and that disparity is increasing.
  This vacancies crisis alarms the President of the United States. It 
alarms Supreme Court Justices. It alarms the Federal Bar Association. 
It alarms the American Bar Association. I ask unanimous consent that 
the President's September 30 letter, Chief Judge Lamberth's November 4 
letter, and statements by the Federal Bar Association and American Bar 
Association be printed in the Record at the conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. There is no good reason to hold up consideration for weeks 
and months of nominees reported without opposition from the Judiciary 
Committee. I have been urging since last year that these consensus 
nominees be considered promptly and confirmed. If Senators would follow 
the Golden Rule, that would happen without further delay.
  I ask unanimous consent that the Judicial Council letter be printed 
in the Record.
  There being no objection the material was orderd to be printed in the 
Record, as follows:

                                                November 15, 2010.
     Hon. Harry Reid,
     Majority Leader,
     U.S. Senate, Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader,
     U.S. Senate, Washington, DC.
     Hon. Patrick J. Leahy,
     Chair, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Gentlemen: We write on behalf of the courts of the Ninth 
     Circuit. As you know, the Ninth Circuit is by far the largest 
     federal circuit in the country, encompassing the 9 western 
     states, plus the territory of Guam and the Commonwealth of 
     the Northern Mariana Islands. Approximately one fifth of the 
     population of the United States lives within the borders of 
     the Ninth Circuit. Our case-load reflects the diversity of 
     our territory and the people that inhabit it and is heavily 
     impacted by increased immigration enforcement, drug 
     interdiction activities, prison litigation, bankruptcy and 
     environmental cases--to name just a few of the most active 
     areas.
       In order to do our work, and serve the public as Congress 
     expects us to serve it, we need the resources to carry out 
     our mission. While there are many areas of serious need, we 
     write today to emphasize our desperate need for judges. Our 
     need in that regard has been amply documented (See attached 
     March 2009 Judicial Conference Recommendations for Additional 
     Judgeships). Courts cannot do their work if authorized 
     judicial positions remain vacant.
       While we could certainly use more judges, and hope that 
     Congress will soon approve the additional judgeships 
     requested by the Judicial Conference, we would be greatly 
     assisted if our judicial vacancies--some of which have been 
     open for several years and declared ``judicial 
     emergencies''--were to be filled promptly. We respectfully 
     request that the Senate act on judicial nominees without 
     delay.
           Sincerely,
         Alex Kozinski, Chief Judge, Ninth Circuit;
         Sidney R. Thomas, Circuit Judge, Ninth Circuit;
         Ronald M. Gould, Circuit Judge, Ninth Circuit;
         Audrey B. Collins, Chief Judge, Central District of 
           California;
         Vaughn R. Walker, Chief Judge, Northern District of 
           California;
         Procter Hug, Jr., Senior Judge, Ninth Circuit;
         Raymond C. Fisher, Circuit Judge, Ninth Circuit;
         Johnnie B. Rawlinson, Circuit Judge, Ninth Circuit;
         Roger L. Hunt, Chief Judge, District of Nevada;
         Robert H. Whaley, Senior Judge, Eastern District of 
           Washington.


        chief judges, u.s. district courts of the ninth circuit

         Ralph R. Beistline, Chief Judge, District of Alaska;
         Irma E. Gonzalez, Chief Judge, Southern District of 
           California;
         Susan Oki Mollway, Chief Judge, District of Hawaii;
         Richard F. Cebull, Chief Judge, District of Montana;
         Lonny R. Suko, Chief Judge, Eastern District of 
           Washington;
         Anthony W. Ishii, Chief Judge, Eastern District of 
           California;
         Frances Marie Tydingco-Gatewood, Chief Judge, District of 
           Guam;
         B. Lynn Winmill, Chief Judge, District of Idaho;
         Ann L. Aiken, Chief Judge, District of Oregon;
         Robert S. Lasnik, Chief Judge, Western District of 
           Washington.
                                  ____


                               Exhibit 1


                                              The White House,

                               Washington, DC, September 30, 2010.
     Hon. Harry Reid,
     Majority Leader,
     U.S. Senate, Washington, DC.
     Hon. Patrick J. Leahy,
     Chairman, Judiciary Committee,
     U.S. Senate, Washington, DC.
     Hon. Mitch McConnell,
     Republican Leader,
     U.S. Senate, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Senator Reid, Senator McConnell, Senator Leahy, and 
     Senator Sessions: I write to express my concern with the pace 
     of judicial confirmations in the United States Senate. 
     Yesterday, the Senate recessed without confirming a single 
     one of the 23 Federal judicial nominations pending on the 
     Executive Calendar. The Federal judiciary and the American 
     people it serves suffer the most from this unprecedented 
     obstruction. One in eight seats on the Federal bench sits 
     empty, and the Administrative Office of the U.S. Courts has 
     declared that many of those vacancies constitute judicial 
     emergencies. Despite the urgent and pressing need to fill 
     these important posts, a minority of Senators has 
     systematically and irresponsibly used procedural maneuvers to 
     block or delay confirmation votes on judicial nominees--
     including nominees that have strong bipartisan support and 
     the most distinguished records. The minority has even been 
     blocking non-controversial nominees--a dramatic shift from 
     past practice that could cause a crisis in the judiciary.
       The Judiciary Committee has promptly considered my judicial 
     nominees. Nonetheless, judicial confirmation rates in this 
     Congress have reached an all-time low. At this

[[Page 18054]]

     point in the prior Administration (107th Congress), the 
     Senate had confirmed 61% of the President's judicial 
     nominations. By contrast, the Senate has confirmed less than 
     half of the judicial nominees it has received in my 
     Administration. Nominees in the 107th Congress waited less 
     than a month on the floor of the Senate before a vote on 
     their confirmation. The men and women whom I have nominated 
     who have been confirmed to the Courts of Appeals waited five 
     times longer and those confirmed to the District Courts 
     waited three times longer for final votes.
       Right now, 23 judicial nominees await simple up-or-down 
     votes. All of these nominees have the strongest backing from 
     their home-state Senators--a fact that usually counsels in 
     favor of swift confirmation, rather than delay. Sixteen of 
     those men and women received unanimous support in the 
     Judiciary Committee. Nearly half of the nominees on the floor 
     were selected for seats that have gone without judges for 
     anywhere between 200 and 1,600 days. But despite these 
     compelling circumstances, and the distinguished careers led 
     by these candidates, these nominations have been blocked.
       Judge Albert Diaz, the well-respected state court judge I 
     nominated to the U.S. Court of Appeals for the Fourth 
     Circuit, has waited 245 days for an up-or-down vote--more 
     than 8 months. Before becoming a judge, Diaz served for over 
     10 years in the United States Marine Corps as an attorney and 
     military judge. If confirmed, he would be the first Hispanic 
     to sit on the Fourth Circuit. The seat to which he was 
     nominated has been declared a judicial emergency. Judge Diaz 
     has the strong support of both of North Carolina's Senators. 
     Senator Burr has publicly advocated for Judge Diaz to get a 
     final vote by the Senate. And just before the August recess, 
     Senator Hagan went to the floor of the Senate to ask for an 
     up-or-down vote for Judge Diaz. Her request was denied.
       We are seeing in this case what we have seen in all too 
     many others: resistance to highly qualified candidates who, 
     if put to a vote, would be unanimously confirmed, or 
     confirmed with virtually no opposition. For example, Judge 
     Beverly Martin waited 132 days for a floor vote--despite 
     being strongly backed by both of Georgia's Republican 
     Senators. When the Senate finally held a vote, she was 
     confirmed to the Eleventh Circuit unanimously. Jane Stanch 
     was recently confirmed by an overwhelming majority of the 
     Senate, after waiting almost 300 days for a final vote. Even 
     District Court nominees have waited 3 or more months for 
     confirmation votes--only to be confirmed unanimously.
       Proceeding this way will put our judiciary on a dangerous 
     course, as the Department of Justice projects that fully half 
     of the Federal judiciary will be vacant by 2020 if we 
     continue on the current pace of judicial confirmations. The 
     real harm of this political game-playing falls on the 
     American people, who turn to the courts for justice. By 
     denying these nominees a simple up-or-down vote, the 
     Republican leadership is undermining the ability of our 
     courts to deliver justice to those in need. All Americans 
     depend on having well-qualified men and women on the bench to 
     resolve important legal matters--from working mothers seeking 
     timely compensation for their employment discrimination 
     claims to communities hoping for swift punishment for 
     perpetrators of crimes to small business owners seeking 
     protection from unfair and anticompetitive practices.
       As a former Senator, I have the greatest respect for the 
     Senate's role in providing advice and consent on judicial 
     nominations. If there is a genuine concern about the 
     qualifications of judicial nominees, that is a debate I 
     welcome. But the consistent refusal to move promptly to have 
     that debate, or to confirm even those nominees with broad, 
     bipartisan support, does a disservice to the greatest 
     traditions of this body and the American people it serves. In 
     the 107th Congress, the Judiciary Committee reported 100 
     judicial nominees, and all of them were confirmed by the 
     Senate before the end of that Congress. I urge the Senate to 
     similarly consider and confirm my judicial nominees.
           Sincerely,
     Barack Obama.
                                  ____

                                               U.S. District Court


                                 for the District of Columbia,

                                 Washington, DC, November 4, 2010.
     Re: Judicial Vacancies--United States District Court for the 
         District of Columbia.

     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     The Capitol, Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     The Capitol, Washington, DC.
       Dear Senator Reid and Senator McConnell: On behalf of the 
     judges of the United States District Court for the District 
     of Columbia, I request that the Senate act soon to fill the 
     vacancies that exist at our Court.
       Of our 15 authorized judgeships, we currently have four 
     vacancies. One has been vacant since January 2007. With the 
     additional vacancy that will result from Judge Ricardo M. 
     Urbina's assumption of senior status, effective January 31, 
     2011, this Court faces the prospect of having only 10 of its 
     15 authorized judgeships filled. The severe impact of this 
     situation already is being felt and will only increase over 
     time. The challenging caseload that our Court regularly 
     handles includes many involving national security issues, as 
     well as other issues of national significance. A large number 
     of these complex, high-profile cases demand significant time 
     and attention from each of our judges.
       Without a complement of new judges, it is difficult to 
     foresee how our remaining active judges will be able to keep 
     up with the heavy volume of cases that faces us. A 33 percent 
     vacancy ratio is quite extraordinary.
       Two nominees (Beryl Howell and Robert Wilkins) have been 
     reported out of the Senate Judiciary Committee and await 
     floor votes; two nominees (James Boasberg and Amy Jackson) 
     have had their hearings and hopefully will soon be reported 
     out of Committee.
       We hope the Senate will act quickly to fill this Court's 
     vacancies so the citizens of the District of Columbia and the 
     Federal Government and other litigants who appear before us 
     continue to enjoy the high quality of justice they deserve.
           Sincerely,
                                                Royce C. Lamberth,
     Chief Judge.
                                  ____



                                     American Bar Association,

                                      Chicago, IL, August 5, 2010.
     Hon. Barack Obama,
     President of the United States of America,
     The White House, Washington, DC.
     Hon. Harry Reid,
     Majority Leader,
     U.S. Senate, Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader,
     U.S. Senate, Washington, DC.
     Hon. Patrick Leahy,
     Chair, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear President Obama, Majority Leader Reid, Minority Leader 
     McConnell, Chairman Leahy, and Senator Sessions: Now that the 
     Senate has concluded another historic debate and vote on a 
     nominee to the U.S. Supreme Court and is about to recess for 
     its summer break, I am writing to express the American Bar 
     Association's mounting concern over the persistently high 
     number of judicial vacancies on our federal district courts 
     and courts of appeals. I urge you, upon your return to 
     Washington in September, to make the filling of judicial 
     vacancies a priority for the Administration and for the 
     Senate. As lawyers who represent our clients in federal 
     courts across this nation, members of the American Bar 
     Association know first hand that longstanding vacancies and 
     protracted delays in the nomination and confirmation process 
     do great harm to the federal judiciary and to public life.
       Despite the confirmation of 37 Article III judges during 
     the 111th Congress, the vacancy rate has not dropped below 10 
     percent since last August. For the past six months, the 
     vacancy rate has remained at over 11 percent, and the number 
     of vacancies has hovered around the 100 mark. The lack of 
     progress in reducing the vacancy rate this session is 
     especially worrisome in light of the number of judges who 
     have reached, or are fast approaching, retirement age: 
     eighteen judges have announced their intention to retire in 
     the next year, and several additional vacancies will no doubt 
     arise as a result of judicial elevations, deaths and 
     resignations. If the nomination and confirmation process does 
     not speed up significantly, confirmations will not even keep 
     pace with the rate of attrition. The high number of 
     vacancies, combined with the low number of confirmations, has 
     created a problem that is fast approaching crisis 
     proportions.
       Vacancies have different effects on different courts. Those 
     courts with relatively normal caseloads per judgeship and a 
     sufficient number of active judges may be able to absorb the 
     extra workload and operate normally if vacancies are filled 
     within a reasonable time. In contrast, courts that already 
     are operating with staggering caseloads and too few 
     authorized judgeships are strained beyond capacity by 
     unfilled vacancies and are unable to keep up with the 
     workload.
       In these jurisdictions, persistent vacancies make it 
     impossible for the remaining judges on the court to give each 
     case the time it deserves; community and business life 
     suffers because shorthanded courts have no choice but to 
     delay civil trial dockets due to the Speedy Trial Act; and 
     courts are forced to adopt time-saving procedures, some of 
     which may serve efficiency at the price of altering the 
     delivery and quality of justice over time in ways not 
     intended. The harm caused by persistent vacancies on these 
     courts may reach into the future, too: if no abatement of

[[Page 18055]]

     these conditions is in sight, the specter of this kind of 
     work environment is likely to result in additional judicial 
     retirements and resignations and deter excellent attorneys 
     from seeking positions on the federal bench.
       Lawyers who practice regularly in the federal courts and 
     their clients who expect timely judicial resolution of their 
     disputes are deeply concerned that the partisanship that has 
     long characterized the process and the persistently high 
     number of vacancies are creating strains that will inevitably 
     reduce the quality of our justice system and erode public 
     confidence in the independence and impartiality of our 
     federal courts. This is a result we, as a nation, can ill-
     afford: all three branches must be robust and strong to 
     advance the important work of government.
       We urge you to take immediate action to avert a potential 
     crisis and preserve the quality and vitality of the federal 
     judiciary, and we offer the following suggestions:
       1. The President and the Senate should make the prompt 
     filling of federal judicial vacancies a priority. Each party 
     to the process should commit sufficient time and resources to 
     the endeavor, and resolve to work cooperatively and across 
     the political aisle to reduce the vacancy rate as quickly as 
     possible. A commitment should be made to cultivate a process 
     that is dominated by common purpose and a spirit of mutual 
     respect and bipartisan cooperation.
       Politics and bipartisanship are not mutually exclusive. 
     Even though the judicial nomination and confirmation process 
     is political by design and gives each branch an opportunity 
     to exercise a check on the quality of the federal bench, it 
     should not serve as a battleground for other political 
     disputes. A renewed spirit of bipartisanship is essential to 
     reducing the backlog of vacancies and improving the process.
       2. The Administration should make a concerted effort to 
     shorten the time between vacancy and nomination and to submit 
     a nomination to the Senate for every outstanding Article III 
     judicial vacancy. The Administration should make a special 
     effort to act with due diligence to nominate individuals to 
     the vacant judicial seats that the Administrative Office of 
     the United States Courts has classified as ``judicial 
     emergencies'' (42 now exist), based on a combination of the 
     length of time the seat has been vacant and the number of 
     weighted or adjusted case filings for that seat.
       We commend the Administration for its commitment to engage 
     in meaningful prenomination consultation with home-state 
     senators, a concept that the ABA endorsed in 2007 as a means 
     to reduce partisanship. As a result, many nominations have 
     had the backing of both home-state senators, regardless of 
     party affiliation. Unfortunately, even though prenomination 
     consultation has increased bipartisan accord during the 
     initial phases of the process, it has not insulated nominees 
     from partisan politics on the Senate floor: senators have 
     blocked or delayed the consideration of numerous nominees who 
     have the support of their home-state senators as well as the 
     overwhelming support of the Senate Judiciary Committee.
       3. The Senate should give every nominee an up-or-down vote 
     within a reasonable time after the nomination is reported by 
     the Senate Judiciary Committee.
       Dilatory tactics have been used repeatedly to stall Senate 
     floor consideration of judicial nominees, starting with the 
     first nomination to reach the floor for a vote. Even though 
     the Senate has confirmed 25 nominees this session, the Senate 
     Judiciary Committee has reported out nominees far faster than 
     the Senate has scheduled votes. As a result, the backlog of 
     nominees awaiting floor action has steadily increased over 
     the course of the session.
       Twelve of the 21 nominees currently awaiting floor 
     consideration were approved by unanimous consent, unanimous 
     vote, or voice vote of the committee; two were approved with 
     little dissent, and only seven received significant 
     opposition. That almost two-thirds of them had no or little 
     opposition in committee, combined with the fact that many 
     prior nominees subjected to delayed floor consideration 
     ultimately were confirmed by unanimous or almost unanimous 
     vote, strongly suggests that the failure to schedule timely 
     floor votes on many pending nominees has little or nothing to 
     do with their qualifications.
       Tactics to delay votes on nominees that are launched for 
     reasons not associated with their qualifications blatantly 
     inject politics into the process. Such tactics waste the time 
     of the Senate and increase the time a nominee is in limbo. 
     Worst of all, they needlessly deprive the federal courts of 
     the judges they sorely need.
       Senate leaders should seek to avoid scheduling delays over 
     nominees who have bipartisan support and should discourage 
     and dissuade their colleagues from using the judicial 
     confirmation process to advance or defeat other legislative 
     objectives. If legitimate concerns are raised over a 
     nominee's qualifications for a lifetime appointment to the 
     federal bench, sufficient time should be scheduled to permit 
     the Senate to engage in full debate. The objective should not 
     be to rush consideration of nominees whose qualifications are 
     questioned, but to assure timely consideration of every 
     judicial nominee whose nomination has been approved by the 
     Senate Judiciary Committee and forwarded to the Senate for a 
     confirmation vote.
       We urge all members of the Senate to remain cognizant of 
     the central importance of a fully staffed federal judiciary 
     and to make an effort to reach across the aisle to try to 
     find constructive ways to support the judiciary and protect 
     it from excessive political zeal. We believe that a true 
     respect for the importance of the federal courts will best 
     inform each senator's decision with regard to action on 
     pending judicial nominations.
       Our judicial system is predicated on the principles that 
     each case deserves to be evaluated on its merits, that 
     justice will be dispensed even-handedly, and that justice 
     delayed is justice denied. There may be disagreements with 
     individual decisions rendered by the federal courts, but few 
     would dispute their essential role in our system of 
     government and their impact on daily life. Congress should 
     take action to support, not undermine, the vital work of the 
     federal courts.
       We urge the President and the Senate to take all necessary 
     steps to fill existing vacancies promptly and to restore 
     bipartisan accord to the nomination and confirmation process 
     so that the federal courts will not be deprived of the judges 
     they need to do their important work.
           Sincerely,
                                                  Carolyn B. Lamm,
     President.
                                  ____


                 [From the Washington Watch, Oct. 2010]

          October 201: Vacancy Signs at the Federal Courthouse

                            (By Bruce Moyer)

       The federal judicial confirmation process is at one of its 
     most dysfunctional junctures in American history, and its 
     failure to move nominees has brought about a vacancy crisis 
     in our federal courts. This is not a partisan issue with 
     shades of black and white; the breakdown in the Senate owes 
     itself as much to one party as the other. This is a national 
     issue that speaks to the country's declining appreciation for 
     its courts, the increasing corrosiveness of our politics, and 
     the rising abuse in the Senate of its procedures.
       As the Senate departed Washington on Sept. 30 for a six-
     week election recess, 103 federal Article III judgeships 
     stood vacant, equaling nearly one out of every eight federal 
     judgeships. The Judicial Conference says that 48 of these 
     vacant judgeships constitute ``judicial emergencies,'' 
     meaning they have been vacant for at least 18 months and are 
     in districts or circuits dealing with pressing caseloads.
       Judicial vacancies are harmful. They prevent the courts 
     from operating at their full capacity in dispensing fair, 
     prompt justice. Vacancies mean larger dockets, longer delay, 
     and greater pressure and expense for lawyers and litigants. 
     As Slate legal columnists Dahlia Lithwick and Carl Tobias 
     recently commented, ``Crowded dockets mean longer waits for 
     cases to be heard promptly. This affects thousands of 
     ordinary Americans--plaintiffs and defendants--whose liberty, 
     safety, or job may be at stake and for whom justice may 
     arrive too late, if at all.'' Justice Anthony Kennedy said it 
     best, in comments to the Los Angeles Times: ``It's important 
     for the public to understand that the excellence of the 
     federal judiciary is at risk. If judicial excellence is cast 
     upon a sea of congressional indifference, the rule of law is 
     imperiled.''
       Under the Constitution, the U.S. Senate is the sole entity 
     charged with the responsibility to ``advise and consent'' 
     upon the President's appointment of judges. Despite the 
     Founders' straightforward wishes, the judicial confirmation 
     process has grown distorted before our very eyes. Over the 
     past 30 years, the Senate has increasingly stonewalled or 
     rejected the President's judicial nominees, regardless of 
     party. Confirmation rates at 18 months into a presidency have 
     fallen from the high-water mark set in 1982 by President 
     Reagan (93 percent) to 47 percent today (the percentage of 
     President Obama's nominees who have won Senate confirmation). 
     These numbers--along with opaque, obstructionist ``secret 
     holds'' on nominations and unprecedented use of the 
     filibuster--reflect a process more like ``Advice & Dissent,'' 
     the apt title of Sarah Binder and Forrest Maltzman's recent 
     work on the struggle to shape the federal judiciary.
       Finger pointing by the two main U.S. political parties is 
     in overdrive over how the process has devolved and who is at 
     fault. If the confirmation wars expand and increase, 
     regardless of which party takes control of the Senate, the 
     implications for the future are even more troubling. In 
     August, Assistant Attorney General Christopher H. Schroeder 
     warned an audience of Ninth Circuit judges and lawyers that 
     if the current rate of replacing retired, resigned, and 
     deceased judges continues, nearly half of the 875 federal 
     judgeships could be vacant by the end of the decade.
       When the Senate left Washington for its election recess, it 
     abandoned its responsibility to provide an up-or-down vote on 
     16 federal judicial nominees--all of whom were favorably 
     approved by the Senate Judiciary Committee with strong 
     bipartisan support. One nominee, Albert Diaz, who would be 
     the first Hispanic judge on the U.S. Circuit

[[Page 18056]]

     Court of Appeals for the Fourth Circuit, has waited the 
     longest: the Senate Judiciary Committee favorably reported 
     his nomination to the Senate back in January.
       The Federal Bar Association's mission is to promote the 
     effective crafting and administration of justice and 
     jurisprudence in our federal courts. That cannot happen if 
     judgeships remain vacant at current levels. Over the past 
     year, the FBA has called upon Senate leaders of both parties 
     to hasten their work on judicial confirmations to assure that 
     nominees who have been favorably reported out of the Senate 
     Judiciary Committee are assured of a prompt up-or-down vote 
     in the Senate. The association also has encouraged the 
     President to promptly nominate qualified nominees with 
     dispatch. FBA chapters in districts and circuits with pending 
     judicial nominees have contacted their home-state senators to 
     urge a prompt vote on their nominees. This advocacy must 
     continue.
       Will the FBA help to make a difference? If the FBA doesn't 
     raise its voice, who will?

                          ____________________