Statement of Senator Patrick Leahy On Judicial Nominations

Now that the elections are over, I renew my call for all of us to come together to do what is right and to act in the interests of the American people.  We should come together to avert the fiscal cliff and the automatic cuts that will otherwise occur in domestic and defense spending. 

I am hopeful that, working together, Democrats and Republicans can come to an agreement so that we can avoid sequestration.  The automatic cuts from sequestration would further damage our Federal courts.  According to the sequestration report released by the Office of Management and Budget, the sequestration would lead to a $555 million reduction below fiscal year 2012 levels for our independent judiciary.  The impending across-the-board cuts under sequestration would reduce Federal court allotments to fiscal year 2006 levels, despite considerably higher caseloads.  The impact of sequestration on Federal court operations nationwide could be devastating.  It could result in the Federal courts eliminating as many as 6,300 employees, about one-third of their staff, or implementing court employees furloughs for more than a month system-wide.

If we do not find a solution to both the vacancy crisis and the threat to judicial resources, it will be harder for Americans to obtain justice in our Federal courts.  Our courts are already overburdened, and the sequester will result in cuts that will force courts to hear fewer cases, which means that court proceedings will be delayed even longer.  This will be especially damaging in civil cases, where there are already over 40,000 cases that have been pending for more than three years.  Sequestration cuts could even result in the suspension of civil jury trials.  Even more alarming, is what is at stake in the criminal context.  If probation and pretrial services offices are downsized or closed, Federal courts and their staff will be unable to properly supervise thousands of persons under pretrial release and convicted felons released from Federal prisons.  It is critical, then, that we work together.

And we should complete the task of considering the judicial nominees who have already had their hearings before the Senate recessed for the elections.  There is no justification for holding up final Senate action on these judicial nominations.  These are not judgeships that Republicans can claim they wish to keep open in order to be filled by nominees from President Obama’s successor next year.  The American people have decided that President Obama will continue to lead our Nation.   In accordance with the will of the American people, it is time for the obstruction to end and for the Senate to complete action on these nominees so that they may serve the American people without further delay.  Even Senate Republicans’ contorted application of the Thurmond Rule can no longer serve as any sort of rationale for inaction.  Delay for delay’s sake is wrong and should end.  The Senate should start by acting on the 19 judicial nominations that have been approved by the Judiciary Committee and have been awaiting final Senate action without further delay.

Two months ago, the Senate recessed without taking action on 19 judicial nominations.  All were supported by their home state Senators, Republican and Democratic.  Almost all had bipartisan support.  I cannot remember a time when the Senate refused to act on nominees with such bipartisan support.  There was no precedent for the filibuster of Robert Bacharach of Oklahoma to the Tenth Circuit and that filibuster should end.  After Senator Coburn failed to vote for cloture to end the filibuster of the Bacharach nomination last July, he indicated that he expected Judge Bacharach to be confirmed before the end of the year if President Obama was reelected.  The junior Senator from Texas also indicated that the circuit judges would be voted on if President Obama was reelected.  Well, now that the people of this country have spoken, we should be working together to approve these judicial nominees so they can provide justice for the American people.

I urge Senate Republicans to come together and work with us to consider these judicial nominees without further delay.  They should agree to debate and then to let the Senate vote on the nominations of Judge Patty Shwartz of New Jersey to the Third Circuit, Richard Taranto to the Federal Circuit, William Kayatta of Maine to the First Circuit, Robert Bacharach of Oklahoma to the Tenth Circuit, and the district court nominees from Connecticut, Maryland, Florida, Oklahoma, Michigan, California, New York, Pennsylvania, and Illinois.  I am also working to have the Judiciary Committee complete its consideration of five more judicial nominees who had their hearing in September.  With the confirmation of these nominees, we can eliminate the backlog here in the Senate and take a significant step toward filling a good portion of the judicial vacancies that have been plaguing our courts, including filling over a dozen judicial emergency vacancies.

The president of the Hispanic National Bar Association wrote a letter to the Senate Leaders in September saying: “The fact that Congress is adjourning without confirming these candidates is of great concern, and is a disservice to the Federal Courts and the people they serve.”  He was right.  Now that the election is over, let us come together as the Senate of the United States and make progress on behalf of the American people.

The New York Times noted in an editorial last month entitled “Politics and the Courts” that:  “During the Obama years, nominees presenting no ideological threat have been held up in the Republicans’ campaign of partisan attack and obstruction – even against trial judges….  The holdups have cost Americans dearly – in justice delayed (it now generally takes two years to get a federal civil trial) and justice denied.”  Now that the election is over, let us do what we can to mitigate the damage and move forward. 

I ask consent that both the HNBA letter and the New York Times editorial appear in the Record at the conclusion of my remarks.

The number of judicial vacancies has, again, risen above 80.  I have heard from judges around the country whose courts have vacancies.  They are working hard to keep their courts functioning, but they need help to ensure that all Americans have access to courts and to justice.  Recently, Professor Carl Tobias summed up the vacancy crisis that has been plaguing us for the last four years.  Professor Tobias is right, and we need to expeditiously confirm our judicial nominees so they can deliver justice for the American people.  I ask consent that his full article in The Hill, entitled, “Obstruction in Senate Taking its Toll on the Courts,” appear in the Record at the conclusion of my remarks.

We can begin to help address the vacancy crisis by confirming the 19 nominees who are currently waiting for final Senate action.  The four circuit court nominees have each been waiting at least five months for a vote.  One has been stalled for more than eight months.  The 15 district court nominees have all been waiting at least three months, with some stalled for as long as seven months.  

The Republican Senator from Pennsylvania wrote a letter to the Majority leader and Senator McConnell asking that the two nominees for the Middle District of Pennsylvania be considered.  I want to see those nominees, as well as the dozen whose Senate votes have been delayed even longer, and all the judicial nominees who have had a hearing, acted upon by the Senate.  

The Senate should not continue down the path of unprecedented obstruction and delay.  President Obama had not sought to pick an ideological fight with the Senate on judicial nominees as his predecessor had done.  By way of example, the Republican Senators from Oklahoma have said that they support Robert Bacharach, and the Republican Senators from Maine strongly support William Kayatta.  It is unprecedented to have this many consensus judicial nominees not acted upon before the election recess in a presidential election year. 

The American people deserve better, and I know the Senate can do better.  After the midterm election in 2002, Senate Democrats worked with Senate Republicans to confirm 20 of President Bush’s judicial nominees in one week, including 18 in just one day.  Again, in 2010, the Senate proceeded to confirm 19 judicial nominees during the lameduck session after the election.  Unfortunately, Republican delays in 2010 had backlogged 38 judicial nominees and the confirmations of 19 went only half-way to what we should have done.

When Ronald Reagan, George H.W. Bush and George W. Bush were President, Senate Democrats cleared the calendar of all but the most controversial and extreme ideological judicial nominations.  The Senate needs to be allowed to vote on President Obama’s judicial nominees now so that our Federal courts are better able to function and fulfill the fundamental guarantee of providing access to justice.  I hope that now that President Obama has been reelected, Senate Republicans will work with us to fill these longstanding judicial vacancies.  The American people deserve no less.

When an injured plaintiff sues to help cover the cost of his or her medical expenses, or when two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.  Americans are rightfully proud of our legal system and its promise of access to justice and speedy trials.  This promise is embedded in our Constitution.  When overburdened courts make it hard to keep this promise, the Senate should work in a bipartisan manner to help. 

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