08.09.13

Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the Nomination of Raymond Chen

Three months ago, I noted in my statement on April 18 that it had taken the Senate almost one year longer to confirm 150 of President Obama’s district court nominees than it took the Senate to confirm the same number of President Bush’s district court nominees.  Unfortunately, we have not picked up the pace, and we remain almost one year behind the record we set from 2001 to 2005.  Today, the Senate confirms the 200th of President Obama’s circuit and district nominees.  Thanks to Senate Republicans’ concerted effort to filibuster, obstruct and delay his moderate judicial nominees, it took almost one year longer to reach this milestone than it did when his Republican predecessor was serving as President, over 10 months in fact.  I have repeatedly asked Senate Republicans to abandon their destructive tactics.  Their continued unwillingness to do so shows that Senate Republicans are still focused on obstructing this President, rather than helping meet the needs of the American people and our judiciary.

Earlier this month, the Senior Senator from Tennessee observed that at the time there were only three circuit and district nominees on the Executive Calendar.  He said, correctly, that we could clear those three nominees in just one afternoon.  Weeks later, we are now being permitted to vote on just one of those nominees.  As Senator Alexander said, we could very easily be voting on several others as well.  There are now 12 circuit and district nominees pending before the Senate.  The only reason we are not voting on all 12 is the refusal of Senate Republicans to give consent.  This refusal means that by the time the Senate returns in September, our district courts will once again be facing a period of what the nonpartisan Congressional Research Service calls “historically high” vacancy levels, which they last experienced two years ago.  So the Republicans’ effort to obstruct and delay the confirmations of President Obama’s nominees means that we have essentially not been permitted to make any net progress in filling vacancies.  We have barely kept up with attrition.

Over the past month, some Senate Republicans have been claiming that “at this same point in their presidenc[ies]” President Obama has had more circuit and district nominees confirmed than President Bush did.  Of course, these Senators fail to mention that they are referring only to the fifth year of those presidencies, and ignoring both presidents’ first terms.  Such comparisons are misleading – the reason President Bush had so few confirmations in his fifth year is that we had made such good progress already in his first term – but I appreciate the Ranking Member of the Judiciary Committee for at least being honest when he makes this comparison by saying that it is between fifth years, and not entire Presidencies. 

The assertion by some Senate Republicans that “there is no difference in how this President’s nominees are being treated versus how President Bush’s nominees were treated” is simply not supported by the facts.  Compared to the same point in the Bush administration, there have been more nominees filibustered, fewer confirmations, and longer wait times for nominees, even though President Obama has nominated more people and there are more vacancies.  Anyone can point to this example or that example, but when you look at the whole picture, it is clear that President Obama’s nominees have faced unprecedented delays on the Senate floor, and that his nominees have been less likely to be confirmed than President Bush’s at the same point.

But if Senators wish to claim that there is no obstruction of the Senate’s consideration of judicial nominees, or that we are matching or even exceeding the pace of confirmations from the Bush administration, let us make it a reality.  According to the nonpartisan Congressional Research Service, it would require 27 additional circuit and district confirmations this year to reach the same number of confirmations as President Bush had achieved by the end of his fifth year in office.  That means we must pick up the pace, since we have had only 26 circuit and district confirmations so far this year, and just two confirmations in the past month.

Fortunately, the Senate had already received more than enough judicial nominees to make this happen.  There are eight circuit and district nominees pending on the Calendar today, and another four were reported this morning.  One of the nominees reported today is Patricia Millett, one of three well-qualified nominees for the vacancies on the D.C. Circuit.  I hope that Senate Republicans will end their misguided attempt to strip the D.C. Circuit of three seats and that we will be allowed to consider her nomination on the merits of the nominee.  Five more nominees had a hearing last week, as the Judiciary Committee continues to do its job.  If we do confirm 27 more nominees this year, we might even bring the number of vacancies below 70 for the first time in more than four years.

However, even if we do bring the number of vacancies down to 70, that number is still far too high.  These vacancies impact millions of people, all across America, who depend on our Federal courts for justice.  In addition to the 87 current vacancies, the Judicial Conference has identified the need for 91 new judgeships, so that the people who live in the busiest districts can nonetheless have access to speedy justice.  Earlier this week, Senator Coons and I introduced a bill to create those judgeships, and I hope that we can pass this long-overdue legislation into law.  The Nation’s growing demands on our courts also shows how important it is that we reverse the senseless cuts to our legal system from sequestration.  I continue to hear from judges and other legal professionals about the serious problems sequestration either has caused, or will cause if we do not fix it.  Last week the Judiciary Committee’s Subcommittee on Bankruptcy and the Courts held a hearing on the impact of sequestration and highlighted how it is devastating out public defender service.  This was an important and timely hearing, and I commend Chairman Coons for chairing it.

Today the Senate will vote on the nomination of Raymond Chen, who is nominated for the United States Court of Appeals for the Federal Circuit.  Mr. Chen currently serves as Deputy General Counsel for Intellectual Property Law and Solicitor in the Office of the Solicitor at the United States Patent and Trademark Office, a position he has held since 2008.  Prior to 2008, he was an Associate Solicitor in the Office of the Solicitor at the USPTO, a Technical Assistant for the Federal Circuit, and an Associate at Knobbe, Martens, Olson & Bear.  Before practicing law, Mr. Chen was a scientist at Hecker & Harriman.  The ABA Standing Committee on the Federal Judiciary unanimously gave him its highest rating of “well qualified.”  Mr. Chen was reported by the Senate Judiciary Committee over three months ago by voice vote.

We must work to reduce the number of judicial vacancies, so that Americans seeking justice are not faced with delays and empty courtrooms.  So let us act quickly on consensus nominees.  And if Senate Republicans have concerns about a nominee, let us debate that nominee, for however long is necessary, and then have an up-or-down vote.  Eleven of the twelve circuit and district nominees currently pending before the Senate were reported by voice vote.  There is no reason we cannot consider all 12 today.  If Senators are willing to work together to focus on meeting the needs of the Federal judiciary, then I am confident that we will be able to make real progress for the millions of Americans who depend on our courts for justice.

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