03.06.08

Executive Business Meeting On Judicial And Executive Nominations

Leahy: Committee Making Progress On Nominations Committee Approves Four Judicial And Three Executive Nominations

WASHINGTON (Thursday, March 6, 2008) – The Senate Judiciary Committee Thursday voted to report seven of President Bush’s nominations to the full Senate for consideration, making progress in filling vacancies on the Federal bench and in the Department of Justice, Chairman Patrick Leahy (D-Vt.) said today.

Three executive nominations, including that of the Associate Attorney General, the third highest position in the Department of Justice, were passed unanimously by the Committee.  Additionally, four nominations for lifetime appointments to the Federal judiciary were unanimously approved at the Committee business meeting Thursday.

Leahy emphad the progress the Committee has made this Congress in filling vacancies.

“Including the nominations on today’s agenda, our Committee will have favorably reported 26 executive nominations already in this Congress,” said Leahy.  “By the time we adjourned the first session of this Congress, the Senate had already confirmed 22 executive nominations.”

Last year, the Senate confirmed 40 judicial nominations, more than were confirmed in any of the three preceding years with Republican Chairmen, and the Committee has succeeded in cutting the judicial vacancy rate to half of what it was at the end of President Clinton’s term.

The Committee has held three nominations hearings this year for two executive nominations and seven judicial nominations, including one circuit court nominee.  Another hearing is scheduled for March 11, when the Committee will consider the nomination of Grace Becker to be the Assistant Attorney General for the Civil Rights Division at the Department of Justice.

According to the Administrative Office of the U.S. Courts, there are currently 49 judicial vacancies.  The White House has yet to send nominations to the Senate for consideration for 20 of those vacancies.  Additionally, 23 U.S. Attorney offices across the country do not have presidentially appointed, Senate confirmed U.S. Attorneys.  The White House has not sent nominees for 19 of those vacancies.

 

Leahy’s statement on the Committee’s vote today on nominations follows.

 

We continue today to make progress in filling high level vacancies at the Department of Justice and in considering the President’s nominations for lifetime positions on the Federal bench.

 

Despite my efforts in February, when the Judiciary Committee held two hearings for seven judicial nominees, including a circuit nominee, Republican Members of the Judiciary Committee effectively boycotted our business meetings and obstructed our ability to report judicial nominations and high-ranking Justice Department nominations.  I adjourned both our February 14 and February 28 meetings for lack of a quorum.  At the first meeting I think only one or two Republican Senators remained present.  At the latter, the Ranking Member chose to leave. 

 

Despite the partisan posturing by the President and Senate Republicans, I have continued to move forward and sought to make progress but, I must admit, my patience is wearing thin. Two weeks ago, during the congressional recess, I chaired our third nominations hearing of the year.  At that time, the Committee considered three judicial nominations, including that of Catharina Haynes of Texas to be a Circuit Judge on the Fifth Circuit.  I knew that this nomination was important to Senator Cornyn.  So, in spite of her participation at the recent partisan political rally and photo op at the White House, I moved forward with that previously scheduled hearing.  

 

We have the fourth nominations hearing of this year scheduled for next week.  Senator Kennedy will chair a confirmation hearing for the President’s nominee to head the Civil Rights Division at the Department of Justice.

 

Earlier this week, the Senate confirmed Mark Filip as the Deputy Attorney General. This administration knew from at least May 14, 2007, when Mr. McNulty announced that he was resigning, and should have known for weeks before, that there was to be a vacancy in the important position of Deputy Attorney General.  Yet, even after the former Deputy announced his resignation and proceeded to resign months later, the administration failed to work with the Senate to fill this vital position.

 

Regrettably, this important nomination had been stalled for over a month due to the bad faith of the Bush-Cheney administration in failing to process Democratic recommendations to independent boards and commissions and Senate Republicans’ rejection of up or down votes on nominations to the Federal Election Commission.

 

I commended the Majority Leader Monday for his efforts to resolve this impasse. I also thanked him for agreeing with me to allow the Filip nomination to proceed.  It is a demonstration of good faith on his part.

 

Today we can make further progress on both top executive and lifetime judicial nominations.

 

We again have the nominations of Kevin O’Connor to be Associate Attorney General, the number three position at the Department, and Gregory G. Katsas, to be Assistant Attorney General of the Civil Division, on the agenda.  I thank Senator Whitehouse for chairing their hearing.  With our consideration of these nominations, we continue our efforts to restore the Justice Department and fill several of its key offices, which were decimated by resignations in the wake of the U.S. Attorney firing scandal.

Last week I added to the agenda two judicial nominations from the hearing chaired by Senator Feinstein last month, and I thank her for her outstanding work at that difficult hearing.  Follow up questions are being asked in connection with the other nominations, which are requiring additional scrutiny.  This week, even though Republicans did not help make a quorum at either of our February meetings, I went the extra mile and added two more judicial nominations to the agenda from the hearing I chaired during the Presidents Day recess. 

Thus, on today’s agenda are four more of the President’s nominations to lifetime judicial appointments.

 

With these four judicial nominations on today’s agenda, we continue building on the progress we made last year in reviewing judicial nominations.  In 2007, the Committee reported out 40 lifetime appointments to the Federal courts and the Senate confirmed all 40 of them.  That is more than were confirmed by the Republican-led Senate in 1997, 1999, and 2000 when they were considering President Clinton’s nominations, and more than the Republican-led Senate confirmed in any of the last three years with a Republican President, in either 2004, 2005 or 2006. 

 

At the end of the Clinton administration, the Republican-led Senate returned to the President without action 17 of his appellate court nominees.  I do not intend to duplicate that record any more than I intend to see the Senate pocket filibuster more than 60 of President Bush’s judicial nominees, as Republicans did with President Clinton’s.  We have considered nominations – even those I do not support – openly and on the record. 

 

Republicans returned 17 circuit nominations to President Clinton without action at the end of his presidency.  The treatment of President Clinton’s nominees contrasted markedly with that accorded by Democrats to the nominations of Presidents Reagan and Bush in the presidential election years of 1988 and 1992, when nine circuit court nominees were confirmed on average.  Regrettably, the Republican Senate reversed that course in its treatment of President Clinton’s circuit court nominations, confirming none during the 1996 session and an average of only four in presidential election years. 

 

The Republican Senate chose to stall consideration of circuit nominees and maintain vacancies during the Clinton administration.  In those years, Senator Hatch justified the slow progress by pointing to the judicial vacancy rate.  When the vacancy rate stood at 7.2 percent, Senator Hatch declared that there is and has been no judicial vacancy crisis” and that this was a “rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.”  Because of Republican inaction, the vacancy rate continued to rise, reaching nearly 10 percent at the end of President Clinton’s term, including 26 circuit vacancies. 

 

By contrast, we have helped cut circuit court vacancies across the country in half, reducing the number to 13 in 2007.  In fact, circuit court vacancies reached a high water mark of 32 early in President Bush’s first term, with a number of retirements by Republican-appointed judges.  Indeed, the current judicial vacancy rate is around

five percent.  That is half of what it was at the end of President Clinton’s term, and significantly lower than when Senator Hatch described the vacancy rate as acceptably low.  If we applied Senator Hatch’s standard, we would have no more hearings or consideration of any of the remaining nominations.

 

Because of the success of the Republicans at stacking the courts and their success in preventing votes on nominees, the current situation on the circuit courts is that more than 60 percent of active judges were appointed by Republican presidents and more than 35 percent were appointed by this President.  If we did not act on another nominee, Republican presidents’ influence over the circuit courts is already out of balance. 

 

In the less than three years that I have chaired this Committee during President Bush’s administration, the Senate has confirmed 23 circuit court nominations and 140 total Federal judicial nominees.  During the four full years Republicans were in charge during the Bush administration the total number of nominees confirmed was just 158. 

 

The Administrative Office of the U.S. Courts currently lists 49 judicial vacancies.  Twenty of them – almost half – have no nominee.  In addition, several of the nominees do not have the support of their home-state Senators.  Of the 19 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for seven of them, more than a third. 

 

We also continue to make significant progress executive nominations.  Including the nominations on today’s agenda, our Committee will have favorably reported 25 executive nominations already in this Congress.  We also discharged four additional nominations, all of which were confirmed.  By the time we adjourned the first session of this Congress, the Senate had already confirmed 22 executive nominations, including the confirmations of nine U.S. Attorneys, four U.S. Marshals, and nominees to nine other important positions.  With two more high-level Justice Department nominations pending on the Senate calendar, we are poised to make even more progress.

 

I continue to try to work with this White House and to make progress, but I continue to be disappointed that my offers to work with the President and home-state senators to identify well-qualified consensus nominations seem to be for naught.  I would rather see us work together in the selection of nominees so that we can confirm judges rather than fight about them.

 

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