SJC Chairman Leahy Calls For Consideration Of Judicial Nominees In Lameduck

[WASHINGTON (Friday, November 30, 2012) – Judiciary Committee Chairman Patrick Leahy (D-Vt.), in a Congressional Record statement published Friday, highlighted the list of judicial nominees who have been pending on the Senate calendar as far back as March. While those nominees continue to wait, the number of judicial vacancies nationwide hovers at 80.  Leahy called on Republicans to drop unfounded opposition and follow the precedent of previous lameduck sessions after presidential elections, when the Senate has confirmed every single judicial nominee reported by the Judiciary Committee, and with bipartisan support.] 


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Statement of Senator Patrick Leahy,
Chairman, Senate Judiciary Committee,
On Judicial Nominations
November 29, 2012

It has now been more than three weeks since President Obama was reelected by the American people, and Senate Republicans are still blocking votes on 19 judicial nominations who should have received confirmation votes before the Senate recessed for the election.  Some of these nominees have been waiting close to nine months for a vote.  It is time for us to come together to do what is right and to act in the interests of the American people. 

We should begin by having an up or down vote on the longest-pending nomination.  The nomination of Patty Shwartz to the Third Circuit Court of Appeals has been ready for a final vote since last March 8.  Judge Shwartz received a unanimous well-qualified rating from the nonpartisan ABA Standing Committee on the Federal Judiciary, its highest possible rating, and it is well past time for the Senate to vote on her nomination.

Regrettably, the Senate has not been allowed to make real progress for the American people by reducing the number of judicial vacancies.  There were more than 80 vacancies when the year began.  There were more than 80 vacancies when in March the Majority Leader was forced to take the extraordinary step of filing cloture petitions on 17 district court nominations.  There are now more than 80 vacancies once again.  In stark contrast, there were only 29 vacancies at this point in President George W. Bush’s first term.

There is no justification for holding up final Senate action on the 19 judicial nominations that have been approved by the Senate Judiciary Committee and are pending on the Senate Executive Calendar.  President Obama has consistently reached across the aisle, consulted with home state Senators from both parties and appointed moderate, well-qualified judicial nominees.  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.  Delay for delay’s sake is wrong and should end.

Senate Republicans have engaged in unprecedented obstruction and a contorted rewriting of the “Thurmond Rule” in their refusal to proceed on consensus nominees.  Whatever justification Senate Republicans contended they had by resort to their misapplication of the Thurmond Rule to stall judicial nominations before the election is gone.  The American people have voted and chosen to reelect President Obama.  It is time for the Senate to vote.

From 1980 until this year, when a lame duck session followed a presidential election, every single judicial nominee reported with bipartisan Judiciary Committee support has been confirmed.  According to the nonpartisan Congressional Research Service, no consensus nominee reported prior to the August recess has ever been denied a vote.  That is something Senate Democrats have not done in any lame duck session, whether after a presidential or midterm election. 

Senate Democrats allowed votes on 20 of President George W. Bush’s judicial nominees, including one very controversial circuit court nominee, in the lame duck session after the elections in 2002.  I remember, I was the Chairman of the Judiciary Committee who moved forward with those votes.  The Senate proceeded to confirm judicial nominees in lame duck sessions after the elections in 2004 and 2006, and proceeded to confirm 19 judicial nominees in the lame duck session after the elections in 2010, as well.  The reason that I am not listing confirmations for the lame duck session at the end of 2008 is because that year we had proceeded to confirm the last 10 judicial nominees approved by the Judiciary Committee before the election recess in September. 

Republicans can no longer claim the “Thurmond Rule” is the reason they are holding up nominations since the American people reelected President Obama.  Having said in September that they objected to proceeding because of the impending election, Senate Republicans cannot now say that their insistence on delay has made it too late in the year to proceed with confirmations.  That is wrong and it results in denying Americans the judges they need to administer justice around the country. 

I implore Senators to put their partisanship aside and work with the President on behalf of the American people.  That is what the American people voted for in the last election.  Delaying confirmation votes on nominees for the sole purpose of delay is precisely what the American people repudiated when they cast their ballots.  Further delays on the 19 nominees before us do not benefit the American people. 

I am encouraged that several Republican Senators have recognized this, and have said that they want votes on their home state nominees.  The Republican Senators from Oklahoma and Maine, and Senator Toomey from Pennsylvania have all advocated for up or down votes on nominees during this lame duck session, and they are right to do so.  They know that filling those judicial vacancies in their states is important.

A judge in Florida has written that persistent vacancies “jeopardize our Court’s ability to deliver the quality of justice that the citizens of Florida deserve and will inhibit our citizens’ access to justice.”  Sadly, Senate Republicans’ tactics of delay and obstruction has perpetuated the high level of judicial vacancies around the country.  Continuing these tactics hurt the Federal courts and the American people they are intended to serve. This is a problem that has a commonsense solution:  Let the Senate vote on consensus nominees that have been stalled.

With the number of judicial vacancies now at 83, and with all pending nominees having waited at least four months for a vote, it is past time for Senate Republicans to abandon these tactics. This obstruction is not good for the country.  How does preventing a vote on Patty Shwartz benefit the people of New Jersey, Pennsylvania, and Delaware?  How does preventing a vote on Richard Taranto benefit Americans who seek to have their claims resolved by the Federal Circuit?  How does preventing a vote on William Kayatta benefit the people of Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico?  How does preventing a vote on Robert Bacharach benefit the people of Oklahoma, Colorado, Kansas, New Mexico, Utah, and Wyoming?  How does preventing a vote on Michael Shea benefit the people of Connecticut?  How does preventing a vote on John Dowdell benefit the people of Oklahoma?  How does preventing a vote on Paul Grimm benefit the people of Maryland?  How does preventing votes on Mark Walker and Brian Davis benefit the people of Florida?  How does preventing a vote on Terrence Berg benefit the people of Michigan?  How does preventing votes on Jesus Bernal, Fernando Olguin, William Orrick, and Jon Tigar benefit the people of California?  How does preventing votes on Lorna Schofield and Frank Geraci benefit the people of New York?  How does preventing votes on Matthew Brann and Malachy Mannion benefit the people of Pennsylvania?  How does preventing a vote on Thomas Durkin benefit the people of Illinois?  How does preventing votes on these nominees help the American people receive speedy justice?

If we can just have up or down votes on these 19 nominees, we can fill almost one-quarter of our nation’s judicial vacancies, and almost one-third of all judicial emergency vacancies.  Most importantly, we can make it easier for hardworking Americans to have access to justice. 

President Obama has worked with home state Senators and all of these nominees have the support of their home state Senators.  Seven of them are supported by Republican home state Senators.  Seventeen of these nominees received bipartisan support on the Judiciary Committee. 

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.  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. 

I have asked, now that the American people have reelected President Obama, for Senate Republicans to work with us to fill these longstanding judicial vacancies.  The American people deserve no less.

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