[Congressional Record (Bound Edition), Volume 158 (2012), Part 2]
[Senate]
[Pages 2322-2324]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SCHUMER. Mr. President, I thank my colleague from Illinois for 
his usual articulate and prescient comments about our judicial crisis, 
and that is what we have here in the Senate and in the third branch of 
government.
  I rise today, along with many of my colleagues, to address a serious 
problem for which there is an easy solution. We have a crisis in our 
third independent branch of government, and it is one that only we in 
the Senate can solve. We can solve it. We need to come together as we 
have in the past and confirm judges to our article III courts and 
dispense with petty politics and hostage-taking.
  Let me give just one example of how our process has broken down. In 
December, for the second year in a row, my colleagues across the aisle 
refused to consent to confirm even a single judicial nomination before 
the end of the Senate session. This senseless rejection of the Senate's 
longstanding practice of confirming consensus nominees is starting to 
do real damage to our Federal courts. One out of 10 on the Federal 
bench, 1 out of 10 seats on the Federal bench is currently vacant. 
Judicial vacancies are double, two times what they were at this point 
in President Bush's first term. We have confirmed only 3 judicial 
nominees this session, only 5 in the past 2 months, and only 11 in the 
last 90 days. And of the three judges we have confirmed this session, 
we had to file cloture on two of them. This is not a responsible use of 
the Senate's advice and consent powers; rather, this is a handful of 
people--plain and simple--using the Senate's procedures to thwart the 
will of the majority of Americans. The vast majority of Americans want 
us to confirm good, moderate, pragmatic judges to the U.S. district 
courts. After all, judges on the district court don't make law, they 
follow law. They are not supposed to make law at all. Courts of appeal 
have a little more latitude, and, of course, the Supreme Court can make 
law, although they are supposed to follow tradition and precedent, and 
they claim they do. We can discuss that a different day.
  A few outside groups are trying to accomplish in the third branch of 
government what they have been unable to accomplish in the other 
branches of government by making sure that judges with moderate, 
pragmatic credentials don't get confirmed in the hopes they can fill 
the bench with people who meet their narrow ideology at some point in 
the future.
  Now, to be sure, my colleagues have offered a wide variety of reasons 
to explain their inability to consent to votes on district court 
judges. Some have said they are upset about the President's improper 
use of his recess appointment powers, powers about which five experts 
can give five different opinions. What that has to do with the judicial 
appointments is beyond me. Some have said they are upset about the 
ability to get floor time on something that is not even germane to 
judicial nominations.
  To hold the third branch of government hostage because they have a 
different beef on a legislative issue is virtually unprecedented, at 
least certainly to the extent it has been done here. Some have given 
into terrible, misleading, and sometimes even vicious attacks on 
pending nominees. I have seen material circulated by outside groups 
that appear ready to oppose nominees using any and all tactics. Some of 
them--not all, not most, but some, and any one is too many--can only be 
described as bigoted. I have seen it. I have seen the letters to our 
colleagues here in an attempt to pressure them.
  This behavior needs to be stopped, and it certainly needs to stop 
having an effect on any Member in this body. I have seen material that 
twists a candidate's record beyond all recognition. In fact, just 
before recess one group circulated patently inaccurate quotes that were 
supposed to be from a brief written by now Judge Jesse Furman for a 
client.
  I have said time and time again--and I will say once more today--the 
Senate certainly has an obligation to take a hard look at the 
President's judicial nominees. My view is that ideology does matter and 
every Senator here has the right to make sure a President's judicial 
nominees are within the mainstream. I would even admit that some 
definitions of mainstream are different from others, but when nominee 
after nominee--many of whom were reported unanimously out of the 
Judiciary Committee, which has some very conservative as well as some 
very liberal members--are held up by a handful of people, we are not 
talking about views outside of the mainstream. We are talking about 
something larger and, frankly, less defensible.
  There will always be nominees, especially to the courts of appeals, 
about whom we will disagree. There will be those whom some of us view 
as so extreme that we will refuse to give consent to holding an up-or-
down vote. But let's be clear; that is not what is going on today.
  What is going on today is obstruction, plain and simple--obstruction 
against anybody, any nominee, and obstruction at unprecedented levels. 
The total number of Federal circuit and district judges confirmed 
during the first 3 years of the Obama administration is far less than 
for previous Presidents. The Senate is more than 40 confirmations 
behind the pace we set confirming President Bush's nominees between 
2001 and 2004. The sheer amount of resistance to President Obama's 
district court judges indicates the level of obstruction we are facing.
  In 3 years President Obama's nominees have received five times as 
many no votes as President Bush's district court nominees did over 8 
years. Isn't that incredible?
  The proof is in the pudding. The President's nominees for district 
court are not out of the mainstream. Almost all of them have logged 
years in public service or worked in law firms or excelled in other 
ways that characterized the nominees of previous Presidents.

[[Page 2323]]

The issue is that the standard has changed. It is no longer, will this 
judge be good for the country and meet the standards we demand from an 
article III judge. Now, it is, did I personally approve of this judge; 
and if I didn't, what can I get by voting for him or her or I am going 
to block that judge and tie the Senate in a knot so judges only in my 
narrow viewpoint can be appointed, even though the President is of a 
different party and of a different philosophy, even though the majority 
of the Senate on both sides of the aisle are of a different philosophy. 
This is nothing short of tragic.
  I implore my colleagues to think about what they are doing. Let's 
come together, as I know we can, and confirm qualified district court 
judges without further gamesmanship, without further obstruction, and 
without the further view: It is my way or the highway, and if I don't 
get my way, I am going to try and cripple 1 out of 10 vacancies and 
cripple the article III branch of government. It is getting close to 
that.
  There are emergencies on many circuits. The future of our courts and 
even this body could well depend on it.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I heard the remarks of the 
distinguished Senator from New York, and, obviously, I agree and I 
guess I would like to add my 2 cents to the arguments presented.
  I am a 19-year member of the Judiciary Committee, so I have had a 
front-row seat for judicial nominations for a long time. Over 800 
judges have been confirmed since I came to the Senate.
  Now, it was not so long ago that liberals and conservatives could 
easily win confirmation as long as they were well qualified, fair-
minded, and had judicial temperament. They were confirmed. It may even 
surprise some that Justice Ruth Bader Ginsburg was confirmed by a vote 
of 96 to 3, and Justice Antonin Scalia was confirmed 98 to 0. That was 
a different time.
  Today partisanship has stalled even the most uncontroversial judicial 
appointments. Senate Republicans allowed no nominees to be confirmed at 
the end of the last session and have allowed only five so far this 
year. In this environment even those reported out of committee by voice 
vote without any controversy are unable to receive a floor vote for 
many months if they ever receive one at all.
  Let me give a recent example, a judge I recommended to the President. 
Judge Cathy Bencivengo's nomination to the Southern District of 
California was approved by the Judiciary Committee by voice vote. Yet 
she waited 4 months for a floor vote. Then she was ultimately confirmed 
90 to 6, showing that there simply was no need to hold up the 
nomination in the first place. This level of obstruction is relatively 
new and has impeded the confirmation process for both judicial and 
executive branch nominees.
  Let's do a quick comparison. Nearly 80 percent of President George W. 
Bush's judicial nominees during his first term were confirmed--80 
percent. In contrast, less than 60 percent of President Obama's 
judicial nominees have been confirmed. As a result, the judicial 
vacancy rate stands at nearly 10 percent. That is double what it was 
when President Bush left office.
  Similarly, during the first session of the 112th Congress, the 
confirmation rate of President Obama's executive branch appointments 
was only 51 percent. President George W. Bush and Bill Clinton each had 
a confirmation rate of over 70 percent during comparable periods in 
their Presidency.
  So, clearly, there has been a change post-Bush, and I think that is 
what we are talking about. This is not good for the judiciary, it is 
not good for this body, and it is not good as standard operating 
practice of the Senate. It is clear we are seeing a degree of 
obstruction that is unprecedented and that hampers the ability of the 
judicial and executive branches to perform their constitutional 
functions. It is preventing us, the legislative branch, from fulfilling 
the responsibility that we owe to the two other branches of government.
  In my State we have three nominees, each for positions the judicial 
conference has declared to be judicial emergencies, which means 
extraordinarily heavy caseloads. These should win confirmation without 
delay.
  I will give you one: Judge Jacqueline Nguyen, a nominee for the Ninth 
Circuit. She is a remarkable jurist with an impeccable record. She was 
confirmed to the district court 97 to 0 in 2009. She was approved by 
the Judiciary Committee for the Ninth Circuit by a bipartisan voice 
vote. Yet her nomination has been pending on the floor for nearly 3 
months. This is an easy one: unanimously passed, has served as a 
district court judge, could be voted for and passed if not by 100 
percent, very close to it. The Ninth Circuit, which has by far more 
pending cases per appellate panel than any other appellate court, needs 
her to be confirmed without further delay.
  There is a reason for this. I think Republicans don't like some of 
the appellate courts; therefore, what they try to do, candidly, is keep 
the positions vacant and hope that after the election there will be a 
Republican President and they will get their nominees through. Well, 
what is sauce for the goose is sauce for the gander, and this is not a 
good way to handle judicial appointments.
  Let me give another one: Paul Watford should be confirmed quickly to 
the Ninth Circuit. He is eminently qualified. He clerked for 
conservative Ninth Circuit Judge Alex Kozinski and Justice Ruth Bader 
Ginsburg. He served as a Federal prosecutor, and he has been a 
distinguished practitioner of appellate law in California for many 
years. He is uncontroversial. He has been endorsed by the former 
president of the Los Angeles Chapter of the Federalist Society by 
conservative law professor Eugene Volokh and by the general counsels of 
several major corporations that he has represented in appellate cases. 
The Senate should confirm him without delay.
  Michael Fitzgerald, a nominee to the Central District of California, 
should also be confirmed quickly. This is a court that ranks as the 
ninth busiest in the Nation in terms of filings per judgeship. Mr. 
Fitzgerald is an extraordinarily qualified nominee with 25 years of 
experience as a Federal prosecutor and as a lawyer in private practice. 
His nomination was also reported by the Judiciary Committee by a 
bipartisan voice vote. Yet his nomination has been waiting for a vote 
on the floor for nearly 4 months. All of this is unnecessary. They 
could go through by unanimous consent.
  Now, I understand that some of my Republican colleagues believe 
President Obama's recent recess appointments are a reason to delay 
needed confirmations to overburdened courts around the country. I would 
simply remind my colleagues of a bit of history and ask them to think 
carefully about whether they want to go down this very dangerous path.
  Many will recall that President Bush made two controversial recess 
appointments to the Eleventh Circuit and the Fifth Circuit in early 
2004. Like Republicans now, Democrats were upset about the President's 
appointments. Nevertheless, in the months that followed, Democrats 
permitted numerous circuit court and district court nominees to be 
confirmed. The Senate continued to act on such nominees until September 
of 2004--2 months before the Presidential election.
  So I say to my colleagues--and say this respectfully--take a step 
back. Do not obstruct every judicial nomination from this President. 
Our judicial system depends on a Senate willing to do its 
constitutional duty and provide advice and consent on judicial 
nominees. Most pending nominees are well-qualified, consensus choices 
for courts that urgently need them to begin their service. We should 
confirm them without delay.
  Our job is to vote. Our job is not to obstruct, to delay. It is to 
vote. We function on a majority system. If you do not think someone is 
qualified, if you do not believe they have the judicial temperament, if 
you do not believe they have enough experience, if you do not like them 
for any reason, vote no.

[[Page 2324]]

That is entirely within the prerogative of a Senator. But to hold them 
up, despite judicial emergencies, despite high caseloads, is to impact 
the system of justice.
  I think this 10-percent vacancy factor now indicates that the 
condition of justice is, in fact, being affected throughout our 
country, particularly in the Ninth Circuit and in California as well as 
in many other States.
  I thank the Acting President pro tempore and yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COONS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Feinstein). Without objection, it is so 
ordered.
  Mr. COONS. Madam President, I rise today to continue to address an 
issue which I have just had the joy of hearing the Presiding Officer 
and the Senators from New York and Illinois speak to, and that concern 
I raise today is the ongoing crisis in our courts, the nearly 10-
percent vacancy rate in judicial positions all across the United 
States.
  I rise today as the junior Senator from Delaware but also as a member 
of the Delaware Bar and as a former Federal court clerk, and as someone 
who has, I think, a personal sense, from that experience and my service 
on the Judiciary Committee, of the consequences of these delays--the 
consequences of steadily climbing caseloads, significant judicial 
vacancies, judicial emergencies in districts across our great country, 
including in the State of California, and what that means for people, 
for companies, for communities for whom justice is being delayed and 
thus denied.
  Earlier this month I attended the investiture ceremony of Judge 
Richard Andrews who was sworn into the U.S. District Court for 
Delaware. This is the first time in 6 years the very busy District 
Court of Delaware has had a full complement of district court judges.
  Although I am relieved and the people of Delaware are grateful to 
have a full bench, and although Judge Andrews is an extremely talented 
lawyer and a devoted public servant and utterly nonpartisan--just the 
sort of district court nominee about whom the Presiding Officer just 
spoke--his nomination took nearly 6 months to be confirmed by the 
Senate.
  I am glad Judge Andrews has made it through because in the Senate the 
confirmation process seems to be more broken this year than last. When 
I joined the Senate in 2010, judicial nominations had slowed to a 
crawl. I watched with dismay as folks whom I viewed as highly qualified 
were blocked.
  Goodwin Liu, for example--a brilliant and qualified legal scholar, a 
nominee twice to the Ninth Circuit--could not overcome a GOP 
filibuster, in part payback for a view, I believe, on the other side of 
the aisle of the rough handling of Miguel Estrada, whose nomination was 
defeated during the Bush Presidency.
  What I have been most concerned about as a freshman Senator is how 
the history lying about this Chamber seems to steadily pile up session 
after session, and the process seems to be weighed down by this burden 
of history.
  But next, Caitlin Halligan--an extremely competent attorney without a 
single partisan blemish on her record--was nominated to the DC Circuit, 
and her nomination, in my view, was also blocked based on a grotesque 
misrepresentation of her actual record. The major talking point against 
her nomination, if I recall right, was that the DC Circuit already had 
more than enough judges.
  Judge Halligan would have been the 9th judge on that court. Notably, 
all the GOP Members who spoke against her had no qualms when the Senate 
confirmed the 10th and 11th judges to sit on that very same circuit 
during the Bush nomination period. But I think these sorts of fine 
points of history are lost on the people, the communities, and the 
companies across our Nation who go to the courthouse seeking justice 
and find none.
  In 2012, as some of the previous Senators have stated, we have so far 
confirmed just five judges. Today, there are 19 nominees on the floor, 
12 of whom came out of our Judiciary Committee unanimously, who are now 
languishing on our Executive Calendar. Republicans have not stated 
objection to these nominees but refuse to grant consent for a vote to 
be scheduled.
  President Obama's nominees have waited four times longer after 
committee approval than did President Bush's nominees at this point in 
his first term, and the Senate is more than 40 confirmations behind the 
pace set during the Bush administration.
  It is not just judges who have been the subject of this ongoing 
weighting down. The Executive Calendar, which I have the privilege to 
flip through every time I preside, is filled with nominees for 
vacancies in every major department and in every major independent 
agency in this government. It is more than a dozen pages long of 
nominations that have sat for months and months.
  Last month, in response to the Republican obstructionism in moving 
this Executive Calendar and in filling these administrative vacancies, 
President Obama made recess appointments: the Consumer Financial 
Protection chief, Richard Cordray, and members of the National Labor 
Relations Board. Some of us on both sides of the aisle do agree that 
Congress, and not the President, has the right to declare when the 
Senate is in recess. But whatever one's view of these appointments, 
there is no questioning that in either case, Republicans forced the 
issue through their unprecedented refusal to vote the President's 
nominees up or down and allow him to proceed with the progress of our 
Nation.
  As Senators, we have a responsibility to advise the President as to 
his nominations and, where we agree, to consent; where we do not, each 
of us is free to vote no. Some Senators have suggested they will oppose 
all nominations in opposition to the President's recess appointments. 
In my opinion, a pledge to oppose all nominations is a pledge not to do 
his or her job. In my view, we ought not to make such a pledge. In my 
view, while so many Americans are out of work, and so many of us are 
here on the public payroll, we can, we should, and we must move forward 
with the judicial nominees.
  This morning, this session began with a very encouraging moment of 
harmony between the majority leader and the Republican leader on the 
concept of moving ahead with appropriations. It is my hope and prayer 
we will do the same on judicial nominations as well.
  I call upon my colleagues on the other side to rethink this strategy 
of obstruction at all costs because it is the American people who pay 
the price in the end.
  With that, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Texas is 
recognized.

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