[Congressional Record (Bound Edition), Volume 159 (2013), Part 2]
[Senate]
[Pages 2361-2362]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Mr. REID. Mr. President, four-time Prime Minister of the United 
Kingdom William Gladstone said something we all have repeated many 
times: ``Justice delayed is justice denied.'' By that measure millions 
of Americans who rely on courts that are overworked and understaffed 
are being denied the justice they rightly deserve.
  With 1 out of every 10 Federal judgeships today vacant, Americans can 
no longer rely on fairness and speedy trials. More than one-half of the 
Nation's population lives in a part of the country that has been 
declared a judicial emergency--more than one-half.
  The high number of vacancies isn't due to a lack of qualified lawyers 
to take these jobs; it is due, instead, to blatant partisanship. I am 
going to lay out in a few minutes what is remarkable.
  President Obama's judicial nominees have waited on average four times 
longer to be confirmed than those nominated by the second George W. 
Bush. Even highly qualified nominees--nominees who are eventually 
confirmed unanimously or almost unanimously--routinely wait for months 
to be confirmed because of the delay tactics used by my Republican 
colleagues.
  Tomorrow we are going to consider highly qualified Caitlin Joan 
Halligan to be a D.C. circuit judge. She has been waiting more than 2 
years to be confirmed. She was nominated for the second time to fill a 
vacancy on the U.S. Court of Appeals for the D.C. Circuit. This is a 
court that was formed some 65 years ago. It was done because the 
Supreme Court couldn't do the cases--they didn't have time to do them, 
and the circuit courts were overwhelmed with work they couldn't do.
  Many consider the D.C. Circuit to be just a tiny notch below the 
Supreme Court. In fact, Pat Leahy, the chairman of the Judiciary 
Committee, said yesterday many believe it is more important than the 
Supreme Court because they have such wide-ranging jurisdiction. Once 
they make a decision, rarely does the Supreme Court take up their 
cases. They consider complex appeals of Federal regulations, among 
other things, and have jurisdiction over vital national security 
challenges.
  It is also one of the many courts in crisis across the country. Mr. 
President, 36 to 37 percent of the D.C. Circuit seats are vacant. There 
are four vacancies now. The last appointment to the D.C. Circuit was 
made in 2006. It is now 2013. In the years since the number of pending 
cases per judge has grown to almost 200 from a little over 100.
  When Ms. Halligan was nominated to the D.C. Circuit in 2010, she was 
nominated to fill one of two vacancies.

[[Page 2362]]

Many Republicans said they voted against her then because there was no 
need; the D.C. Circuit had enough judges. Now it is four short.
  More than 2 years after she was first turned down, her nomination is 
again before the Senate, and the D.C. Circuit has four empty seats. The 
last time the Senate considered Ms. Halligan's nomination, some of my 
Republican colleagues claimed the D.C. Circuit didn't need any more 
judges, so they filibustered the confirmation. No one could credibly 
make that argument today. If my Republican colleagues choose to 
filibuster her confirmation a second time, their naked partisanship 
will certainly be exposed.
  For example, Patricia Wald, who served on that court for 20 years--
for 5 years she was the chief judge--said of the confirmation process:

       The constitutional system of nomination and confirmation 
     can work only if there is good faith on the part of both the 
     president and the Senate to move qualified nominees along, 
     rather than withholding consent for political reasons.

  For example, if someone doesn't want to vote for her, tell them to 
vote no. Have them vote no. I invite them to vote no. But don't stop 
her from having an up-or-down vote.
  I was very troubled with Justice Thomas, who was then a circuit court 
judge. A decision had to be made by me and many others: Should we allow 
Justice Thomas an up-or-down vote? The decision was made, yes, we 
should. He barely made it. He got 2 or 3 votes more than 50. It would 
have been so easy to stop that nomination, but it would have been the 
wrong thing to do. As bad as I feel he has been as a jurist, it doesn't 
matter. He should have had the ability to have an up-or-down vote. A 
Republican President sent that name forward, and he was entitled to a 
vote. That was a decision I and many other Democratic Senators made.
  If my Republican colleagues don't like this woman, for whatever 
reason, vote against her. Don't stop her from having an up-or-down 
vote. A second partisan filibuster of this highly qualified nominee by 
my Republican colleagues would be in very bad faith. I repeat: If for 
some reason you don't like her, vote against her. Don't stop her from 
having a vote.
  One qualified, consensus judicial nominee ought to be treated as 
another regardless of the political party of the President who made the 
nomination.
  President Obama is the only President in 65 years--since this court 
was formed--to not have a single person put on the D.C. Circuit. That 
is how important this court is, and this is how Ms. Halligan and others 
have been stymied from getting on this court.
  It is not because President Obama's nominees are anything but totally 
qualified. Ms. Halligan's colleagues have called her a brilliant legal 
mind. She has outstanding credentials, strong support from lawyers, a 
vast number of Republicans, former judges, law enforcement officials, 
and more than 20 former Supreme Court clerks from across the political 
spectrum.
  She graduated with honors from Princeton and Georgetown Law School. 
She clerked for Justice Patricia Wald, whom I just quoted, and this 
woman was a judge in the D.C. Circuit for 20 years, 5 years as a chief 
judge.
  If a truly exceptional candidate such as Caitlin Halligan isn't 
qualified to be a judge in the United States, I don't know who would 
be. I think it is very delicate ground Republicans are walking on if 
they think they can filibuster this woman and get away with it. It 
would be wrong. If they don't like her, vote against her.
  Mr. President, 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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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