[Congressional Record (Bound Edition), Volume 157 (2011), Part 1]
[Senate]
[Pages 58-59]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Mr. President, in the closing days of the 111th Congress, 
a brief flurry of activity led to the confirmation of 19 long-pending 
judicial nominations. Regrettably, the stalemate that had prevented the 
Senate from confirming a single nomination between September 13 and 
December 16 resumed when Senate Republicans denied action on 19 other 
well-qualified, consensus judicial nominations reported by the Senate 
Judiciary Committee. Ultimately, these nominations were returned to the 
President, including 15 nominations that received unanimous or near 
unanimous support in the committee. I suspect that when the President 
renominates these qualified individuals, they will be confirmed with 
overwhelming bipartisan support. The only question will be why we were 
unable to take action on them sooner.
  In his ``Year-End Report on the Federal Judiciary,'' Chief Justice 
Roberts rightly called attention to the problem facing many 
overburdened district and circuit courts across the country. The rise 
in judicial vacancies, which topped 110 in 2010, and an increasing 
number of judicial emergencies is of great concern to all Americans who 
seek justice from our courts.
  Unfortunately, the unprecedented obstruction of judicial nominations 
seen in the last Congress, and the dramatic departure from the Senate's 
long-standing tradition of regularly considering consensus, 
noncontroversial nominations, marked a new chapter in what Chief 
Justice Roberts calls the ``persistent problem'' of filling judicial 
vacancies. A New York Times editorial from January 4, 2011, refers to 
Senate Republicans' ``refusal to give prompt consideration to 
noncontroversial nominees'' a ``terrible precedent.'' I agree, and I 
will ask that the Times' editorial be printed in the Record.
  Nearly all of the mere 60 district and circuit court nominations the 
Senate was allowed to consider last year were confirmed with the 
overwhelming, bipartisan support of the Senate. Yet nearly a third of 
these nominations--19--were held up for more than 100 days, only to be 
confirmed unanimously. As the Times editorializes, ``apart from 
partisan gamesmanship, there was no reason that Republicans held up 
these nominations for months only to unanimously approve nearly all of 
them in the waning days of the lame duck session.'' Among these 
nominations was that of Kimberly Mueller, nominated to fill a vacancy 
in the Eastern District of California. Chief Justice Roberts cited this 
confirmation as one of the most sorely needed. Yet for more than 7 
months, the Senate was prevented from considering the nomination to 
fill this vacancy. Judge Mueller's nomination was unanimously reported 
by the Judiciary Committee in May; her nomination was unanimously 
confirmed on December 16. No Senator objected to her qualifications, 
her record, or her fitness to serve. This sort of delay is the real 
crisis facing the Federal judiciary.
  Lifetime appointments to the Federal bench should not be granted 
without due consideration. No Senator, Democrat or Republican, should 
simply rubberstamp the nominations of any President. In the first 
Congress of the Bush administration, the Democratic majority worked to 
confirm 100 judicial nominations, turning the page on the Republicans' 
pocket-filibusters of

[[Page 59]]

the 1990s. We proceeded with regular consideration of noncontroversial, 
consensus nominations, most of which received unanimous support in the 
Senate. We confirmed 20 nominations during the lameduck session in 
2002, including two controversial circuit court nominations which were 
favorably reported by the Senate Judiciary Committee in the lameduck 
session. Senate Republicans' decision in December to object to 
consideration of 19 judicial nominations favorably reported by the 
Judiciary Committee--including 15 nominations with overwhelming 
bipartisan support--has established a new low with regard to judicial 
nominations. They set back the progress we have tried to make in 
confirming judges.
  I suspect that President Obama will renominate these qualified 
individuals. I hope to work with the Judiciary Committee's new ranking 
Republican, Senator Grassley, to promptly consider and report these 
nominations to the full Senate. I hope that Senator Grassley will work 
with me to ensure the timely confirmation of these and other 
noncontroversial, consensus nominations, which will help reduce 
vacancies and address the judicial crisis.
  The American people turn to our courts for justice. Likewise, the 
Senate must return to the time-honored traditions of the Senate, and 
work together to secure the confirmation of the President's judicial 
nominations. Judicial vacancies hinder the Federal judiciary's ability 
to fulfill its constitutional role. Working together, we can restore 
the judicial confirmation process.
  Mr. President, I ask unanimous consent to have printed in the Record 
the New York Times article to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 3, 2011]

                           The Missing Judges

       The annual report on the federal judiciary by the chief 
     justice of the United States is not a place you would 
     normally go for political agitation. But that is just what 
     Chief Justice John Roberts Jr. offered by using a portion of 
     his year-end review to deplore the ``acute difficulties'' 
     created for the justice system by the Senate's slowness in 
     approving President Obama's nominees for federal judgeships.
       Justice Roberts is right to be concerned that mounting 
     federal court vacancies are creating crushing caseloads in 
     some jurisdictions and hampering courts' ability to fulfill 
     their vital role. Given his office, we understand why he did 
     not point a partisan finger in his report. But he diluted his 
     message a bit by suggesting that blame for this undermining 
     of the judicial branch rests evenly with both parties. The 
     main culprit is an unprecedented level of Republican 
     obstructionism.
       Democrats sought to block a handful of President George W. 
     Bush's controversial nominees for circuit court seats, but 
     were open about stating their objections, and promptly 
     allowed up or down votes on other nominees once approved by 
     the Judiciary Committee.
       In the last Congress, Republicans typically refused to 
     publicly explain their opposition to individual nominees and 
     their prolonged blockade of candidates who had cleared the 
     committee either unanimously or with just a couple of 
     negative votes. Between Congress's return from its August 
     recess and the start of the lame duck session, Senate 
     Republicans consented to vote on just a single judicial 
     nomination.
       Before adjourning, Senate Republicans allowed action on 19 
     well-qualified nominees--some of whom had been left in limbo 
     for nearly a year after clearing the Judiciary Committee. 
     That was welcome progress. But apart from partisan 
     gamesmanship, there was no reason that Republicans held up 
     these nominations for months only to unanimously approve 
     nearly all of them in the waning days of the lame duck 
     session.
       Partisan obstruction was also the only plausible reason 
     that Republicans declined to allow confirmation of 15 other 
     nominees who were considered noncontroversial and were 
     cleared by the committee after the November election. Those 
     nominations have been returned to the president, ensuring 
     further delays in filling seats when those individuals are 
     renominated and a newly reconstituted Judiciary Committee 
     must hold new hearings.
       Four other nominees approved by the committee by a party-
     line vote were also denied Senate consideration. That list 
     includes Goodwin Liu, a well-qualified law professor and 
     legal scholar whose main problem for Republicans, it seems, 
     is his potential to fill a future Supreme Court vacancy.
       The dismal net result, laments Senator Patrick Leahy, the 
     Judiciary Committee chairman, is that the Senate confirmed 
     just 60 district and circuit court judges--the smallest 
     number of judges for the first two years of a presidency in 
     more than three decades.
       The Republicans' refusal to give prompt consideration to 
     noncontroversial nominees sets a terrible precedent. It gives 
     Democrats something to consider as they weigh possible rules 
     changes in the Senate to curb the auto-pilot filibusters and 
     secret holds that mindlessly delay essential business, like 
     the confirmation of federal judicial nominees.

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