[Congressional Record (Bound Edition), Volume 159 (2013), Part 13]
[Senate]
[Pages 19481-19483]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      JUDICIAL NOMINATIONS IN 2013

  Mr. LEAHY. Madam President, Republicans are once again--for the fifth 
year in a row--rejecting the longstanding Senate practice of scheduling 
confirmation votes on consensus nominees before the end of the session. 
Rather than working in a bipartisan fashion to confirm consensus 
nominees to fill judgeships as we wind down for the year, Senate 
Republicans have deliberately refused to agree to vote on consensus 
nominees who could and should be confirmed without delay. The result is 
that we will spend a significant portion of the next year on the Senate 
floor doing work that should have been completed this year. And now the 
Republican abuse of Senate rules has further escalated--Republicans 
have, for the first time ever, refused to allow any currently pending 
judicial nominees to be held over so that they could be ready for 
immediate action next year. For purely political reasons, Senate 
Republicans are forcing us to duplicate work next year that we have 
already completed in 2013. It is a waste of taxpayer dollars and 
valuable resources that could be spent addressing the difficult issues 
facing our Nation.
  As it stands, nine judicial nominations pending on the Senate 
Executive Calendar--all reported by the Judiciary Committee unanimously 
or with significant bipartisan support--are being returned to the 
President. Another 15 judicial nominees who could have been reported to 
the full Senate and confirmed by the end of this year had Senate 
Republicans not blocked the Judiciary Committee's ability to meet to 
report these nominees to the full Senate are being returned to the 
President. Another 31 judicial nominees pending in the Senate Judiciary 
Committee will also be returned to the President. Each of these 
nominations represents a significant amount of work by the nominees 
themselves, the White House, the Department of Justice, and Senate 
staff on both sides of the aisle. The only judicial nomination not 
being returned to the President is Robert Wilkins' nomination to the 
U.S. Court of Appeals for the D.C. Circuit because the procedural 
posture of his nomination enables the Senate to hold his nomination 
over until next year. I am pleased that Judge Wilkins' nomination will 
not be returned, which allows for quick action next year, but there is 
no good reason to return any of the other 55 judicial nominations 
pending in the Senate.
  Senate Republicans' persistent obstruction over the last 5 years has 
led to record-high vacancies in Federal courts throughout the country. 
At the end of 2009, Senate Republicans left 10 nominations on the 
Executive Calendar without a vote. Two of those nominations were 
returned to the President, and it subsequently took 9 months for the 
Senate to take action on the other eight. This resulted in the lowest 
1-year confirmation total in at least 35 years. At the end of 2010 and 
again in 2011, Senate Republicans left 19 nominations on the Senate 
Executive Calendar. It then took nearly half the following years for 
the Senate to confirm these nominees. Last year they blocked 11 
judicial nominees from votes and refused to expedite consideration of 
others who had already had hearings. And this year, they have escalated 
their obstruction and delay of judicial nominations by indiscriminately 
requiring that nominees be sent back to the President at the end of 
this first session of the 113th Congress, the effect of which is to 
needlessly cause delay in the Senate's ability to process these 
nominations and prevent more judges from getting to work for the 
American people.
  Senate Republicans will argue that the change in Senate precedent a 
few weeks ago on nominations is the cause of their refusal to 
cooperate, but history shows that this is simply not true. The truth 
is, from the first day President Obama took office, Senate Republicans 
pursued a path of delay and obstruction on judicial nominees that 
departed dramatically from Senate tradition. That it took 5 years into 
this

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Presidency for the rules to change has been the result of certain 
Senators, including me, who have been reluctant to change prior Senate 
practice. But once the government stops functioning, the right course 
of action is to do what needs to be done so that the American people 
have a government that works to make their lives better. The American 
people do not want to hear about tit-for-tat politics or their 
representatives playing the blame game. They are tired of Congress 
wasting time and resources when there is so much to be done. They want 
their representatives to work, vote, and fulfill their constitutional 
obligations. They want their representatives to fulfill their duty of 
advice and consent so that our courts have the necessary judges to 
provide speedy, quality justice.
  The reality, unfortunately, falls short of the American peoples' 
expectation. During 2013, the same obstruction that has plagued the 
Senate during the first term of the Obama administration continued to 
delay the rate of confirmations to appointments on the Federal bench. 
The 113th Congress began with a high level of vacancies on the Federal 
Judiciary. As of January 2013, there were 77 vacancies in the Federal 
judiciary, and, of these, the Administrative Office of the U.S. Courts 
determined 27 of them to be ``judicial emergencies.'' Over the course 
of 2013, the number of vacancies has hovered around 90. Right now, at 
the end of the fifth year of the Obama administration, there are a 
total of 88 judicial vacancies, 36 of which are judicial emergency 
vacancies. In stark contrast, at the end of the fifth year of the Bush 
administration, there were less than 50 judicial vacancies, and only 16 
of those were judicial emergency vacancies.
  As the year closes, judicial vacancies remain at crisis levels. 
However, despite these high levels, Republican obstructionism continues 
to impose severe delays on the confirmations process, particularly in 
those States that faced significant obstruction from Republican home 
State Senators, such as Arizona and Texas.
  A year after the American people voted to reelect President Obama, 
Senate Republicans decided to escalate their obstruction to an 
unimaginable level this year, preventing the President from filling any 
of the three vacancies on what is often considered the second most 
important court in the Nation--the U.S. Court of Appeals for the D.C. 
Circuit. Senate Republicans chose to filibuster all three nominees to 
that court without even considering their qualifications. This type of 
wholesale obstruction was simply unacceptable.
  Republicans attempted to justify their opposition to filling any of 
the three vacancies on the D.C. Circuit by arguing that the court's 
caseload did not warrant the appointments. We all knew that this was a 
transparent attempt to prevent a Democratic President from appointing 
judges to this court. In 2003, the Senate unanimously confirmed John 
Roberts by voice vote to be the ninth judge on the D.C. Circuit--at a 
time when its caseload was lower than it is today. In fact, his 
confirmation marked the lowest caseload level per judge on the D.C. 
Circuit in 20 years. Not a single Senate Republican raised any concerns 
about whether the caseload warranted his confirmation, and during the 
Bush administration, they voted to confirm four judges to the D.C. 
Circuit, providing the court with 11 active judges. In light of this 
double standard, I finally agreed that past precedent had to be 
revisited because a faction of the minority party should not be 
permitted to nullify an election by blocking the President's nominees 
without regard to their qualifications.
  I am pleased to say that in the last few weeks, after taking action, 
we were finally able to confirm Patricia Millett and Nina Pillard--two 
highly qualified attorneys--to the 9th and 10th seats on the D.C. 
Circuit. With the confirmation of these two women, there will now be 
five women and five men actively serving as judges on the D.C. 
Circuit--this is a historic first for any Federal appellate court. I 
am, however, disappointed that Senate Republicans refused to allow us 
to take a vote on Judge Robert Wilkins, another well qualified nominee 
whose confirmation would enable the D.C. Circuit to function at full 
strength, with 11 judges. I am hopeful that we will have a vote on his 
nomination early next year.
  Other historic firsts for women serving on our Federal judiciary also 
occurred this year. In April, Jane Kelly became the first woman from 
Iowa to sit on the U.S. Court of Appeals for the Eight Circuit, and, in 
May, Shelly Dick was confirmed as the first woman to serve on the U.S. 
District Court for the Middle District of Louisiana. Late last week, 
after the majority leader was forced to file cloture over Republican 
opposition to moving forward on district court nominees, three more 
nominees were confirmed to serve as the first women on their respective 
courts: Elizabeth Wolford, to be U.S. district judge for the Western 
District of New York; Landya McCafferty, to be U.S. district judge for 
the District of New Hampshire; and Susan Watters to be U.S. district 
judge for the District of Montana.
  After an extraordinarily long delay of nearly 22 months since his 
nomination, we were also finally able to confirm Brian Davis to fill a 
judicial emergency vacancy on the U.S. District Court for the Middle 
District of Florida. I am disappointed that it required overcoming a 
Republican filibuster on his nomination. He is a superb nominee. The 
ABA Standing Committee on the Federal Judiciary has unanimously rated 
him to be ``well qualified'' to serve on the Federal bench. For the 
past 20 years he has served as a State court judge, where he has 
presided over 600 cases in both civil and criminal matters that have 
gone to verdict or judgment. Prior to becoming a State court judge, he 
served for a total of 9 years as a state prosecutor, including 3 years 
as chief assistant State attorney. Judge Davis also has experience in 
private practice, where he was a partner at the law firm of Terrell 
Hogan. He will make a fine Federal judge.
  I am pleased that despite continued Republican attempts to block or 
delay confirmation of judicial nominees, we were able to continue to 
move forward on these and other nominees this year. I have heard, 
however, some suggestion that Republicans will now seek to delay 
judicial nominations by exploiting a Senate tradition known as the 
``blue slip.'' The Constitution requires that judicial appointments be 
made ``with the Advice and Consent of the Senate.'' For nearly 100 
years, chairmen of the Senate Judiciary Committee have sought to give 
meaning to this constitutional edict by a blue slip policy to ensure 
that Senators are given an opportunity to advise the President about 
potential judicial nominees before they are nominated to fill lifetime 
positions in their home State. A blue slip is a piece of paper sent by 
the chairman to home State Senators asking that it be signed and 
returned with an indication of whether they approve of or oppose the 
judicial nomination made by the President.
  Over the years, other chairmen have taken a more flexible view of the 
blue slips, but during my chairmanship of the Senate Judiciary 
Committee, I have protected the rights of Senators--whether Republican 
or Democrat--to be meaningfully consulted. Honoring the blue slip 
policy allows judicial nominations to move forward in committee only 
after receiving positive blue slips from home State Senators. Another 
improvement I made when I first became chairman of the Senate Judiciary 
Committee in 2001 was to make home State Senators more accountable for 
their blue slip decisions by making the process transparent for the 
first time. I will continue to honor the blue slip policy as it 
currently stands, but I hope that Republicans will not abuse this 
tradition and force me to reconsider.
  As we approach the new year, I hope that reasonable Republicans will 
join us in restoring the Senate's ability to fulfill its constitutional 
duties and do its work for the American people.

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