Five Months And Counting – Leahy Statement On Filibuster Of Furman Nomination

WASHINGTON (Thursday, Feb. 16, 2012) – Senator Patrick Leahy (D-Vt.) spoke on the Senate floor Thursday morning about the filibuster of the nomination of Jesse Furman to be a judge on the U.S. District Court for the Southern District of New York.  Furman’s nomination was approved by the Judiciary Committee unanimously on September 15, now over five months ago.  Senate Majority Leader Harry Reid filed cloture on the nomination Wednesday.  Senate Republicans have not consented to scheduling a confirmation vote on the nomination. 


It is the second cloture motion on a judicial nomination considered by the Senate this week.  On Monday, the Senate overwhelmingly invoked cloture on the nomination of Judge Adalberto Jordan to the Eleventh Circuit Court of Appeals.  However, the objections of one senator prevented the yielding back of post-cloture debate time.  The Senate voted on the Jordan nomination on Wednesday; the nominee was confirmed overwhelmingly.


Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On The Nomination Of Jesse Furman To The Southern District Of New York

February 16, 2012

The Senate was forced to spend the better part of this week ending a filibuster against the nomination of Judge Adalberto Jordan of Florida to fill a judicial emergency vacancy on the Eleventh Circuit.  Finally, after a four month Republican filibuster that was broken on Monday by an 89-5 cloture vote, and after Republicans insisted on two additional days of delay, the Senate was allowed to vote on the nomination.  We voted 94-5 to confirm Judge Jordan.  I suspect the vote would have been the same four months and two days sooner.  It was a colossal waste of the Senate’s time and another week lost to obstruction and delay.  

Now the Senate Majority Leader has been required to file another cloture petition on yet another consensus nominee.  This is the ninth time the Majority Leader has had to file a cloture petition to overcome a Republican filibuster of one of President Obama’s superbly-qualified judicial nominees.  The nomination of Jesse Furman to fill a vacancy on the Southern District of New York has been stalled for more than five months after being reported unanimously from the Senate Judiciary Committee.  Consensus nominations like this to Federal district courts have nearly always been taken up and confirmed by the Senate within days or weeks, whether nominated by a Democratic or a Republican President.  Certainly that was the approach taken by Senate Democrats when President Bush sent us consensus nominees.  That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades and how we confirmed 205 of President Bush’s judicial nominees in his first term.  Yet, in an almost complete reversal of this approach, Mr. Furman’s nomination has been blocked by Senate Republicans for over five months, without reason or explanation.

Regrettably, for the second time, we will have to vote to end a Republican filibuster of one of President Obama’s district court nominations.  I cannot recall a single instance in which a President's judicial nomination to a Federal trial court, a Federal district court, was blocked by a filibuster.  Yet, Senate Republicans nearly did so last year when they sought to filibuster Judge Jack McConnell’s nomination to the Rhode Island District Court, despite the strong support of both home state Senators who know their state best.  At that time I emphasized the danger of rejecting the Senate’s traditional deference to home state Senators and beginning to filibuster district court nominations.  Fortunately, the Senate rejected that filibuster and that path and Judge McConnell was confirmed.   I trust the Senate will do so again, bringing to an end another filibuster, this time for a district court nominee, Mr. Furman, who was reported unanimously by the Judiciary Committee.

Like the needless delay in Judge Jordan’s confirmation, the Republican filibuster of Jesse Furman, who by any traditional measure is a consensus nominee, is another example of the tactics that have all but paralyzed the Senate confirmation process and are damaging our Federal courts.  It should not take five months and require a cloture motion for the Senate to proceed to vote on this nomination.  At a time when nearly one out of every 10 judgeships is vacant and we have over 20 judicial nominations reported favorably by the Committee, 16 of which have been stalled on the Senate calendar since last year, nearly all of them superbly-qualified consensus nominees, our Federal courts and the American people cannot afford more of these partisan tactics.

I read with interest this morning Gail Collins’ column in The New York Times on the approval rating of Congress.  She notes that Congress is “unpopular like the Ebola virus, or zombies…like TV shows about hoarders with dead cats in their kitchens.”  She goes on to discuss the Republican filibusters of judicial nominees and write: 

“This week, the Senate confirmed Judge Adalberto Jose Jordan to a seat on the federal Court of Appeals for the 11th Circuit in Atlanta.  A visitor from another country might not have appreciated the proportions of this achievement, given that Jordan, who was born in Cuba and who once clerked for Sandra Day O’Connor, had no discernible opposition.” 

I ask consent that a copy of Ms. Collins’ column be placed in the Record at the conclusion of my remarks.

This is the kind of obstruction that is hard to explain to the American people.  This Republican filibuster, like that of Judge Jordan, is very hard to understand.  Jesse Furman is an experienced Federal prosecutor who has prosecuted international narcotics trafficking and terrorism and consulted on some of the Southern District’s most complex cases, including the Galleon insider trading case, the prosecution of former Madoff employees, and the Times Square bomber case.  A dedicated public servant, Mr. Furman has been a law clerk at all three levels of the Federal judiciary, including as a clerk to Supreme Court Justice David Souter. 

I got to know Mr. Furman when he was the counselor to Attorney General Michael Mukasey.  That is right: The Senate Republicans are filibustering someone strongly supported by President Bush’s Attorney General who was himself a Federal judge.  When Mr. Furman’s nomination was before the Committee last summer, Attorney General Mukasey wrote to the Committee in strong support:

      “All I can hope to add is my own belief that he is a person to whom one can entrust decisions that are consequential to the lives of people and to the general welfare of the populace, with confidence that they will be made wisely and fairly… and I urge that he be confirmed.” 

Former Supreme Court clerks who served at the same time as Mr. Furman, including clerks for conservative Justices such as Chief Justice Rehnquist, Justice Thomas, and Justice Scalia wrote in support of Mr. Furman’s nomination, stating that, “Mr. Furman has demonstrated his deep respect for and commitment to the rule of law, over and above politics or ideology.”

With this bipartisan support, the strong support of his home state Senators, and his impressive background, Mr. Furman’s nomination was reported by the Judiciary Committee on September 15, without opposition from a single member of the Committee.  We should have voted on his nomination many months ago, and certainly before the end of the last session.  Senate Republicans have blocked this nomination for over five months without any explanation. 

Sadly, this is not the first New York judge to be filibustered by Senate Republicans.  Just a few years ago, Judge Denny Chin, an outstanding nominee with 16 years judicial experience, was delayed from being elevated to the Second Circuit for four months until the Majority Leader forced a vote and he was confirmed 98-0. 

Last May, the Majority Leader was required to file for cloture to end the filibuster of Judge Jack McConnell of Rhode Island.  By rejecting that filibuster, the Senate took a step toward restoring a longstanding tradition of deference to home state Senators with regard to Federal District Court nominations.  The Senate turned away from a precipice.  It is wrong now for us to approach that precipice again.  Filibustering this nomination would set a new standard for obstruction of judicial nominations.

Indeed, I have looked back over the last six decades and found only four district court nominations--four in over 60 years, on which cloture was even filed. For two of those, the cloture petitions were withdrawn after procedural issues were resolved. In connection with the other two, the Senate voted on cloture and it was invoked and the filibuster ended.  All of those nominations were confirmed.

From the start of President Obama's term, Republican Senators have applied a heightened and unfair standard to President Obama's district court nominees. Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home state Senators who know the needs of their states best. Instead, an unprecedented number of President Obama's highly-qualified district court nominees have been targeted for opposition and obstruction.   That approach is a serious break from the Senate's practice of advice and consent. Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate.  Out of these 2,100 nominees, only six have been reported by party-line votes. Only six total in the last 65 years. Five of those six party-line votes have been against President Obama's highly-qualified district court nominees.  Indeed, only 22 of those 2,100 district court nominees were reported by any kind of split roll call vote at all, and eight of those, more than a third, have been President Obama's nominees.

Democrats never applied this standard to President Bush's district court nominees, whether in the majority or the minority. And certainly, there were nominees to the district court put forth by that administration that were considered ideologues. All told, in eight years, the Judiciary Committee reported only a single Bush district court nomination by a party line vote.  President Obama’s nominees are being treated differently than those of any President, Democratic or Republican, before him.

When I first became Chairman of the Judiciary Committee in 2001, I followed a time when Senate Republicans, who had been in the majority, had pocket filibustered more than 60 of President Clinton’s judicial nominations, blocking them with secret holds in backrooms and cloakrooms, obstructing more with winks and nods, but with little to no public explanation or accountability.  I worked hard to change that and to open up the process.  I sought to bring daylight to the process by making the consultation with home state Senators public so that the Senate Republicans’ abuses during the Clinton years would not be repeated.

When Senate Democrats opposed some of President Bush’s most ideological nominees, we did so openly, saying why we opposed them.  And when there were consensus nominees—nominees with the support of both Democrats and Republicans-- we moved them quickly so they could begin serving the American people.  That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades.  That is how we confirmed 205 of President Bush’s circuit and district nominees in his first term.

Now we see the reverse of how we treated President Bush’s nominees.  Senate Republicans do not move quickly to consider consensus nominees, like the 14 still on the Senate Calendar that were reported unanimously last year and should have had a Senate vote last year.  Instead, as we are seeing today and have seen all too often, Senate Republicans obstruct and delay even consensus nominees, leaving us 43 judicial nominees behind the pace we set for confirming President Bush’s judicial nominees.  That is why vacancies remain so high, at 86, over three years into President Obama’s first term.  Vacancies are nearly double what they were at this point in President Bush’s third year.  That is why 130 million Americans live in circuits or districts with a judicial vacancy that could have a judge if Senate Republicans would only consent to vote on judicial nominees that have been favorably voted on by the Senate Judiciary Committee and have been on the Senate Executive Calendar since last year. 

This is an area where we should be working for the American people, and putting their needs first.  It is the American people who pay the price for the Senate’s unnecessary and harmful delay in confirming judges to our Federal courts.  It is unacceptable for hardworking Americans who are seeking their day in court to find seats on one in 10 of those courts vacant.  When an injured plaintiff sues to help cover the cost of medical expenses, that plaintiff should not have to wait for years before a judge hears his or her case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.  With over 20 judicial nominees favorably reported by the Committee and cloture motions being required for consensus nominees, the Senate is failing in its responsibility, harming our Federal courts and ultimately hurting the American people.  Is it any wonder that barely 10 percent of the American people view Congress favorably?

The slow pace of confirmations of President Obama’s judicial nominees is no accident or happenstance.  It is the result of deliberate obstruction and delays.  For the second year in a row, the Senate Republican leadership ignored long-established precedent and refused to schedule any votes before the December recess on the nearly 20 consensus judicial nominees who had been favorably reported by the Judiciary Committee.  Here we are in the middle of February fighting to hold a vote on one of the 18 nominees who should have been confirmed last year.  Fourteen of the nominees being blockaded by Senate Republicans were reported with the unanimous support of their home state Senators and every Republican and every Democrat on the Senate Judiciary Committee.  The result of these Republican delays tactics is clear-- we are far behind the pace set by the Senate during President George W. Bush’s first term, with a judicial vacancy rate nearly twice what it was at this point in his first term.

During President George W. Bush’s administration, Republican Senators insisted that filibusters of judicial nominees were unconstitutional.  They threatened the “nuclear option” in 2005 to guarantee up-or-down votes for each of President Bush’s judicial nominees.  Many Republican Senators declared that they would never support the filibuster of a judicial nomination—never.  Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama’s very first judicial nomination, that of Judge David Hamilton of Indiana, a widely- respected 15-year veteran of the Federal bench who had the support of the most senior and longest-serving Republican in the Senate, Senator Lugar.  The Senate rejected that filibuster and Judge Hamilton was confirmed. 

But the partisan delays and opposition have continued.  Senate Republicans have required cloture votes even for nominees who ended up being confirmed unanimously when the Senate finally overcame those filibusters and voted on their nomination.  So it was with Judge Barbara Keenan of the Fourth Circuit, who was confirmed 99-0 when the filibuster of her nomination finally ended in 2010, and Judge Denny Chin of the Second Circuit, an outstanding nominee with 16 years judicial experience, who was ultimately confirmed 98-0 when the Republican filibuster was overcome after four months of needless delays.  Just this week the long-delayed nomination of Judge Adalberto Jordan to the Eleventh Circuit was confirmed 94-5.

This obstruction is particularly damaging at a time when judicial vacancies remain at record highs.  There are currently 86 judicial vacancies across the country, meaning that nearly one out of every 10 Federal judgeships remains vacant.  The vacancy rate is nearly double what it had been reduced to by this point in the Bush administration, when we worked together to reduce judicial vacancies to 46. 

Some Senate Republicans are now seeking to excuse these months of delay by blaming President Obama for forcing them to do it.  They point to President Obama’s recent recess appointments of a Director for the Consumer Financial Protection Bureau and members of the National Labor Relations Board.  Of course, those appointments were made a few weeks ago, long after Judge Jordan’s nomination was already being delayed.  Moreover, the President took his action because Senate Republicans had refused to vote on those executive nominations and were intent on rendering the Government agencies unable to enforce the law and carry out their critical work on behalf of the American people.  Some Senate Republicans are doubling down on their obstruction in response.  They are apparently extending their blockage against nominees beyond executive branch nominees to these much-needed judicial nominees.  This needless obstruction accentuates the burdens on our Federal courts and delays in justice to the American people.   We can ill afford these additional delays and protest votes.  The Senate needs, instead, to come together to address the needs of hardworking Americans around the country. 

I, again, urge Senate Republicans to stop the destructive delays that have plagued our nominations process. I urge them to join us not only in rejecting the five-month filibuster of Mr. Furman’s nomination, but also in restoring the Senate’s longstanding practice of considering and confining consensus nominees without extended and damaging delays.  The American people deserve no less.       

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