Senate Votes To Confirm Kelly To Eighth Circuit
April 24, 2013
WASHINGTON–The Senate voted unanimously Wednesday to approve the nomination of Jane Kelly to serve on the Eighth Circuit Court of Appeals. Chairman Patrick Leahy (D-Vt.) praised the Senate’s approval of this highly-qualified nominee, who was reported by the Judiciary Committee last month, and said other nominees should be taken up just as quickly. Leahy added that Kelly has “proven the exception to the practice of Republicans of holding up confirmations of circuit nominees for no good reason for months.”
On average President Obama’s circuit court nominees wait 132 days for a vote in the Senate, compared to just 18 days for President Bush’s nominees. While Kelly was quickly approved after pending one month on the Senate calendar, 12 other judicial nominees still await consideration, including four who were held over from last year. Leahy called on the Senate to vote on those nominees.
“Senate Republicans have a long way to go to match the record of cooperation on consensus nominees that Senate Democrats established during the Bush administration,” Leahy said. “Like Jane Kelly, they deserve swift consideration and an up-or-down vote.”
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Statement of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Nomination of Jane Kelly of Iowa to the United States Court of Appeals for the Eighth Circuit
April 24, 2013
Just last month Senate Republicans filibustered the nomination of Caitlin Halligan to fill a vacancy on the D.C. Circuit that arose when Chief Justice Roberts left the D.C. Circuit to join the Supreme Court eight years ago. Caitlin Halligan is a woman who is extraordinarily well-qualified and amongst the most qualified judicial nominees I have seen from any administration. The smearing of her distinguished record of service was deeply disappointing.
Senate Republicans blocked an up-or-down vote on her confirmation with multiple filibusters of her nomination and procedural objections that required her to be nominated five times over the last three years. To do so they turned upside down the standard they had used and urged upon the Senate for nominees of Republican Presidents. In those days they proclaimed that everything President Bush’s controversial nominees had done in their legal careers should be viewed as merely legal representation of clients. They abandoned that standard with the Halligan nomination and contorted her legal representation of the State of New York into what they contended was judicial activism. It was not just disappointing but fundamentally unfair to a public servant and well qualified nominee.
Also disconcerting were the comments and tweets by Republican Senators after their filibuster in which they gloated about payback. That, too, is wrong. It does our Nation and our Federal Judiciary no good when they place their desire to engage in partisan tit-for-tat over the needs of the American people. I rejected that approach while moving to confirm 100 of President Bush’s judicial nominees in just 17 months in 2001 and 2002.
Had Caitlin Halligan received an up-or-down vote, I am certain she would have been confirmed and been an outstanding judge on the United States Court of Appeals for the District of Columbia Circuit. Instead, all Senate Republicans but one supported the filibuster and refused to vote up or down on this highly-qualified woman to fill a needed judgeship on the D.C. Circuit. Now that Senate Republicans have during the last four years filibustered more of President Obama’s moderate judicial nominees than were filibustered during President Bush’s entire eight years—67 percent more—I urge them to cease their practice of sacrificing outstanding judges based on their misguided sense of partisan payback.
Regrettably, however, Senator Republicans are expanding their efforts through a “wholesale filibuster” of nominations to the D.C. Circuit by introducing a legislative proposal to strip three judgeships from the D.C. Circuit. I am tempted to suggest that they amend their bill to make it effective whenever the next Republican President is elected. I say that to point out that they had no concerns with supporting President Bush’s four Senate-confirmed nominees to the D.C. Circuit. Those nominees filled the very vacancies for the ninth, tenth, and even the eleventh judgeship on the court that Senate Republicans are demanding be eliminated now that President Obama has been reelected by the American people. The target of this legislation seems apparent when its sponsors emphasize that it is designed to take effect immediately and acknowledge that “[h]istorically, legislation introduced in the Senate altering the number of judgeships has most often postponed enactment until the beginning of the next President’s term” but that their legislation “does not do this.” It is just another of their concerted efforts to block this President from appointing judges to the D.C. Circuit.
In its April 5, 2013 letter, the Judicial Conference of the United States, chaired by Chief Justice John Roberts, sent us recommendations “based on our current caseload needs.” They did not recommend stripping judgeships from the D.C. Circuit but state that they should continue at 11. Four are currently vacant. According to the Administrative Office of U.S. Courts, the caseload per active judge for the D.C. Circuit has actually increased by 50 percent since 2005, when the Senate confirmed President Bush’s nominee to fill the eleventh seat on the D.C. Circuit. When the Senate confirmed Thomas Griffith – President Bush’s nominee to the eleventh seat in 2005 – the confirmation resulted in there being approximately 119 pending cases per active D.C. Circuit judge. There are currently 188 pending cases for each active judge on the D.C. Circuit, more than 50 percent higher.
Senate Republicans also seek to misuse caseload numbers. The D.C. Circuit Court of Appeals is often considered “the second most important court in the land” because of its special jurisdiction and because of the important and complex cases that it decides. The Court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11. These cases make incredible demands on the time of the judges serving on this Court. It is misleading to cite statistics or contend that hardworking judges have a light or easy workload. All cases are not the same and many of the hardest, most complex and most time-consuming cases in the Nation end up at the D.C. Circuit.
Today’s nominee is fortunate to be from Iowa and nominated to a vacancy on the Eighth Circuit Court of Appeals. I fully support confirming her and commend Senator Harkin for recommending her to the President and Senator Grassley for also supporting her confirmation.
The confirmation to fill a vacancy on the Eighth Circuit also demonstrates that the caseload argument that Senate Republicans sought to use as justification for their unfair filibuster of Caitlin Halligan was one of convenience rather than conviction. With the confirmation today, the Eighth Circuit will have the lowest number of pending appeals per active judge of any circuit in the country. Yes, lower than the D.C. Circuit. The sponsors of the partisan bill directed as a wholesale filibuster of the D.C. Circuit do not propose the Eighth Circuit, which covers Iowa, Missouri, Arkansas, Minnesota, Nebraska, North Dakota and South Dakota, be stripped of any judgeships.
Although they unnecessarily delayed the confirmation from last year to this year of Judge Bacharach of Oklahoma to the Tenth Circuit, Senate Republicans all voted in favor of confirming him. They did not object, vote against, filibuster or seek to strip that circuit of judgeships even though its caseload per judge is 139, well below that of the D.C. Circuit.
This Iowa nominee has also proven the exception to the practice of Republicans of holding up confirmations of circuit nominees with reason for months. The Senate is being allowed to proceed to her confirmation barely a month after it was reported by the Judiciary Committee. I would like to think that this signals a new willingness to abandon their delaying tactics but fear that it is an exception. To expedite this nomination meant skipping over a number of nominees, including some who have been waiting since last year for the Senate to vote on their confirmations.
President Obama’s other circuit court nominees have faced filibusters and unprecedented levels of obstruction. Senate Republicans used to insist that the filibustering of judicial nominations was unconstitutional. The Constitution has not changed, but as soon as President Obama was elected they reversed course and filibustered President Obama’s very first judicial nomination. Judge David Hamilton of Indiana was a widely-respected 15-year veteran of the Federal bench nominated to the Seventh Circuit and was supported by Senator Dick Lugar, the longest-serving Republican in the Senate. They delayed his confirmation for seven months. Senate Republicans then proceeded to obstruct and delay just about every circuit court nominee of this President, filibustering 10 of them. They delayed confirmation of Judge Patty Shwartz of New Jersey to the Third Circuit for 13 months. They delayed confirmation of Judge Richard Taranto to the Federal Circuit for 12 months. They delayed confirmation of Judge Albert Diaz of North Carolina to the Fourth Circuit for 11 months. They delayed confirmation of Judge Jane Stranch of Tennessee to the Sixth Circuit and Judge William Kayatta to the First Circuit for 10 months. They delayed confirmation of Judge Robert Bacharach of Oklahoma to the Tenth Circuit for eight months. They delayed confirmation of Judge Ray Lohier of New York to the Second Circuit for seven months. They delayed confirmation of Judge Scott Matheson of Utah to the Tenth Circuit and Judge James Wynn, Jr. of North Carolina to the Fourth Circuit for six months. They delayed confirmation of Judge Andre Davis of Maryland to the Fourth Circuit, Judge Henry Floyd of South Carolina to the Fourth Circuit, Judge Stephanie Thacker of West Virginia to the Fourth Circuit, and Judge Jacqueline Nguyen of California to the Ninth Circuit for five months. They delayed confirmation of Judge Adalberto Jordan of Florida to the Eleventh Circuit, Judge Beverly Martin of Georgia to the Eleventh Circuit, Judge Mary Murguia of Arizona to the Ninth Circuit, Judge Bernice Donald of Tennessee to the Sixth Circuit, Judge Barbara Keenan of Virginia to the Fourth Circuit, Judge Thomas Vanaskie of Pennsylvania to the Third Circuit, Judge Joseph Greenaway of New Jersey to the Third Circuit, Judge Denny Chin of New York to the Second Circuit, and Judge Chris Droney of Connecticut to the Second Circuit for four months. They delayed confirmation of Judge Paul Watford of California to the Ninth Circuit, Judge Andrew Hurwitz of Arizona to the Ninth Circuit, Judge Morgan Christen of Alaska to the Ninth Circuit, Judge Stephen Higginson of Louisiana to the Fifth Circuit, Judge Gerard Lynch of New York to the Second Circuit, Judge Susan Carney of Connecticut to the Second Circuit, and Judge Kathleen O’Malley of Ohio to the Federal Circuit for three months.
The nonpartisan Congressional Research Service has reported that the median time circuit nominees have had to wait before a Senate vote has skyrocketed from 18 days for President Bush’s nominees to 132 days for President Obama’s. This is the result of Republican obstruction. So while it is good that they have allowed this vote on Jane Kelly from Iowa, if it proves an exception rather than a change in their tactics of obstruction, we will recognize it for what it is. Senate Republicans have a long way to go to match the record of cooperation on consensus nominees that Senate Democrats established during the Bush administration.
Delay has been most extensive with respect to circuit court nominees but not limited to them. Consensus district court nominees are also being needlessly delayed. During President Bush’s first term alone, 57 district nominees were confirmed within just one week of being reported. By contrast, during his first four years only two of President Obama’s district nominees have been confirmed within a week of being reported by the Committee.
Just before the Thanksgiving recess in 2009, when Senator Sessions of Alabama was the ranking Republican on the Judiciary Committee, we were able to get Republican agreement to confirm Judge Abdul Kallon, a nominee from Alabama, and Judge Christina Reiss, our Chief Judge for the Federal District Court for the District of Vermont. They had their hearing on November 4, were voted on by the Judiciary Committee two weeks later on November 19, and were confirmed by the Senate on November 21. They were not stalled on the Senate Executive Calendar without a vote for weeks and months. They were confirmed two days after the vote by the Judiciary Committee. That should be the standard we follow, not the exception. It should not take being from the ranking Republican’s home state to be promptly confirmed as a noncontroversial judicial nominee.
The obstruction of President Obama’s nominees by Senate Republicans has contributed to the damagingly high level of judicial vacancies that has persisted for over four years. Persistent vacancies force fewer judges to take on growing caseloads, and make it harder for Americans to have access to speedy justice. While Senate Republicans delayed and obstructed, the number of judicial vacancies remained historically high and it has become more difficult for our courts to provide speedy, quality justice for the American people. There are today 83 judicial vacancies across the country. By way of contrast, that is nearly double the number of vacancies that existed at this point in the Bush administration. The circuit and district judges that we have been able to confirm over the last four years fall 20 short of the total for this point in President Bush’s second term.
There should be no doubt that these delays, and the vacancies they prolong, have a real impact on the American people. Last week, the president of the American Bar Association wrote in The Hill that:
Real costs are often borne by businesses whose viability relies on the timely resolution of commercial disputes, by defendants who lose jobs and sometimes family ties while languishing behind bars awaiting trial, and, ultimately, the public that expects courts to deliver on the promise of justice for all. Our economy depends on courts to enforce contracts, protect property and determine liability. Judicial vacancies increase caseloads per judge, creating delays that jeopardize the ability of courts to expeditiously deliver judgments. Delay translates into costs for litigants. Delay results in uncertainty that discourages growth and investment.
She concluded that “vacancies are potential job-killers.” I ask that that article, entitled “President and Congress must act to fill judicial vacancies,” appear in the Record at the conclusion of my statement.
Today the Senate will vote on the nomination of Jane Kelly to the U.S. Court of Appeals for the Eighth Circuit. She has a distinguished career in the Federal Defender’s Office, first as an Assistant Federal Public Defender and then as a Supervising Attorney. In addition to working in the Federal Defender’s Office, Jane Kelly has also served as a Visiting Instructor at the University of Illinois College of Law and taught at the University of Iowa College of Law. After law school, she served as a law clerk to two Federal judges: the Honorable Donald J. Porter of the U.S. District Court for the District of South Dakota and the Honorable David R. Hansen of the U.S. Court of Appeals for the Eighth Circuit. Jane Kelly was reported unanimously by the Judiciary Committee one month ago. I am especially pleased that her nomination is not being blocked the way Senate Republicans blocked the nomination of Bonnie Campell, the former Attorney General of Iowa and first head of the Justice Department’s Violence Against Women Office. In part because that nomination was blocked, Jane Kelly will be just the second woman ever to serve on the Eighth Circuit.
After today’s vote, a dozen judicial nominees remain pending on the Executive Calendar, including four who could and should have been confirmed last year. Like Jane Kelly, they deserve swift consideration and an up-or-down vote.
Finally, over the last several months, I have continued to speak out about the damaging effects of sequestration on our Federal courts and our system of justice. The harmful effects continue. As a result of sequestration, Federal prosecutors and Federal public defenders continue to be furloughed. In a column dated April 18, 2013, distinguished Federal Judges Paul Friedman and Reggie Walton from the United States District Court for the District of Columbia spoke out against the harmful impact of sequestration. They wrote:
[S]equestration poses an existential threat to the right of indigent defendants to have publicly funded legal representation – a right that the Supreme Court recognized 50 years ago in its landmark decision in Gideon v. Wainwright. . . .
[T]the effect of sequestration on the courts severely threatens the rights guaranteed by the Sixth Amendment to those accused of crimes and, in the process, threatens our federal judiciary’s reputation as one of the world’s premier legal systems. This is a price we cannot afford to pay.
I ask that this column be included in the Record at the conclusion of my statement.
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