04.10.08

Judicial Confirmations

Senate Confirms Five Judicial Nominations, Including Circuit Court Nominee Chamber Continues Progress To Reduce Vacancies On Federal Bench

WASHINGTON (Thursday, April 10, 2008) – The Senate today confirmed five nominations to Federal courts across the country, including a nomination to fill the final vacancy on the Fifth Circuit of the U.S Court of Appeals.

 

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) steered the circuit court nomination, as well as four nominations to district courts in four states, through the confirmation process.  In the less than three years of Leahy’s chairmanship during the Bush administration, the Senate has confirmed 145 judicial nominations.  Forty judicial nominations were confirmed by the Judiciary Committee in 2007 – more than were confirmed in any of the preceding three years under Republican control.

 

Republicans Thursday suggested the Senate was moving too slowly in the consideration of judicial nominations, many of which do not currently have the necessary support of their home-state senators.  However, with today’s circuit court confirmation, the Senate has surpassed the total number of circuit judges confirmed by the Republican-controlled Senate in the 1996 session.  In that same election year, the Senate failed to vote on a single judicial nomination before July 10.

 

“We are three months ahead of the schedule followed by Republican leadership during that presidential election year,” said Leahy of consideration of judicial nominations in 1996.  “I would rather see us work with the President on the selection of nominees the Senate can proceed to confirm than waste precious time fighting about controversial nominees selected to score political points.” 

 

Despite allegations from the Republican leadership and members of the Judiciary Committee that the nominations have been stymied under Leahy’s chairmanship, the Committee has held five hearings this year for 15 nominees.  During the past year, the Committee has reported 10 nominations for high-ranking positions in the Department of Justice, including the Department’s top three positions – Attorney General, the Deputy Attorney General and the Associate Attorney General. 

 

The Senate this afternoon voted to confirm Catharina Haynes to the Fifth Circuit, Brian Stacy Miller for the Eastern District of Arkansas, James Randal Hall for the Southern District of Georgia, John A. Mendez for the Eastern District of Californian, and Stanley Thomas Anderson for the Western District of Tennessee.  Leahy’s prepared statement follows.

 

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For background information on judicial nominations, click here.

 

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Statement of Senator Patrick Leahy

Chairman, Senate Judiciary Committee

On Judicial Confirmations

April 10, 2008

 

The Senate makes significant progress today by confirming yet another appointment to one of our important Federal circuit courts, as well as four lifetime appointments of Federal district court nominees.  The circuit court nomination we are considering is that of Judge Catharina Haynes of Texas.  Not only will her confirmation fill the last vacancy on the important Court of Appeals for the Fifth Circuit, but it fills another vacancy listed as a judicial emergency.  I begin by acknowledging the support of Senator Cornyn and his work with me to schedule her nomination for a hearing, and to report it from the Judiciary Committee last week.  

 

Despite the progress we continue to make and will make today, some of the rhetoric from the other side of the aisle suggests that judicial confirmations is the most pressing and unsatisfied need facing the country.  With an economic recession now facing Americans, the massive job losses this year and the home mortgage foreclosures and credit crisis, any partisan effort to create an issue over judicial confirmations is misplaced. 

 

The recent job loss reports from the Department of Labor are dramatic— in the first three months of this year, the U.S. economy lost 232,000 jobs.  March marked the greatest loss of jobs during one month in at least five years.  Instead of adding the 100,000 jobs that we would need each month just to prevent unemployment from rising further, we have experienced three months in a row of significant job losses. This year alone we are already half a million jobs behind where we need to be just to stay even and not lose economic ground.  

 

Yet last week when I convened the Judiciary Committee to make progress on bills to help homeowners in bankruptcy and to improve the False Claims Act to better target fraud, the priority of Republicans was none of those important legislative issues.  Instead, they engaged in a back and forth on judicial nominations.  This administration is apparently more worried about the jobs of a handful of controversial nominees, many without the necessary support of their home-state Senators, than the jobs and lives of hundreds of thousands of Americans. 

 

With that massive loss of jobs, the Nation’s unemployment rate has risen dramatically to over 5.1 percent.  For just a moment, let us take a look at where we are now.  During the Bush administration, unemployment is up more than 20 percent; the price of gas has more than doubled and is now at a record high average heading toward $3.50 to $4 a gallon; trillions of dollars in budget surplus have been turned into trillions of dollars of debt, with an annual budget deficit of hundreds of millions of dollars; and a trade deficit has approaching $1 trillion a year.  It costs more than $1 billion a day - $1 billion a day - just to pay down the interest on the national debt and the massive costs generated by the disastrous war in Iraq.  That’s $365 billion this year that would be better spent on priorities like health care for all Americans, better schools, fighting crime, and treating diseases at home and abroad.  In contrast, one of the few numbers going down as the President winds down his tenure is that of judicial vacancies. 

 

Judicial vacancies are less than half of what they were during the last Democratic administration, when the Republican majority in the Senate chose to stall consideration of scores of nominees in order to maintain vacancies. They succeeded in doubling circuit vacancies during those years and those vacancies rose to a high of 32 with the resignations that that accompanied the change of administrations.  By contrast, we helped reduce circuit court vacancies across the country to as low as 13 in 2007, and that will be the number of remaining circuit court vacancies today after the confirmation of Judge Haynes.  That is half what they were at the end of the last Democratic administration when a Republican-led Senate was in charge.  

 

During the last Democratic administration, the Republican chairman of the Judiciary Committee argued that the 103 vacancies that then existed did not constitute a “vacancy crisis.”  He also argued on numerous occasions that 67 vacancies meant “full employment” on the Federal courts.  After today’s confirmations, the Administrative Office of the U.S. Courts will list 47 vacancies, 20 vacancies below what Republicans used to deem “full employment” and below half the vacancy level they more than tolerated during the last administration.  

 

In the 17 months I chaired the Judiciary Committee during President Bush’ first term, we acted faster and more favorably on more of this President’s judicial nominees than under either of the Republican Chairmen who succeeded me.  During those 17 months, the Senate confirmed 100 judicial nominations.  When I reassumed the chairmanship last year, the Committee and the Senate continued to make progress with the confirmation of 40 more lifetime appointments of judges to our Federal courts.  That is more than were confirmed during any of the three preceding years under Republican leadership and more than were confirmed in 1996, 1997, 1999, and 2000, when a Republican-led Senate was considering a Democratic President’s judicial nominations.  During this presidency, while I have served as Judiciary Chairman, the Senate has proceeded to confirm 140 lifetime appointments in only three years, as compared to 158 during the more than four years of Republican control.

 

When the Senate confirms Judge Haynes today, we will have surpassed the total number of circuit judges confirmed during the entire 1996 session.  That was the session when the Republican majority would not consider or confirm a single circuit nomination of President Clinton’s, not one.   Indeed, the first confirmation of any judge that session did not take place until July 10.  So we are also three months ahead of the schedule followed by Republican leadership during that presidential election year.

 

Some will undoubtedly repeat the partisan Republican “talking point” that the Senate must confirm 15 circuit judges this Congress to match a mythical “statistical average” of selected years.  It is true that during the last two years of this President’s father’s term, a Democratic-led Senate confirmed an extraordinary number of circuit nominees – 20.  It is true that during the last two years of the Reagan administration, a Democratic-led Senate confirmed 17 circuit court nominees.  It is only by taking advantage of those numbers produced by Democratic Senate majorities that Republicans can construct their mythical statistical average.

 

Our actions were not reciprocated by the Republican majority when a Democrat was next in the White House.  Instead, the Republican-led Senate made sure that judicial vacancies skyrocketed to historic levels.  It got to the point that the Chief Justice Rehnquist, hardly a Democratic partisan, weighed in publicly to criticize the Republican-led Senate. Republicans do not talk about what they did, and cannot bear an accurate comparison of what we have accomplished with what they did not.  

 

I wonder, when the Republican Leader and others who come to the floor with accusations about slow-walking nominations, will explain their roles during the Clinton years.  Why was it that during that 1996 session, the last of President Clinton’s first term, the Republican-led Senate did not confirm a single circuit nomination? 

 

Why was it that Bonnie Campbell, the former Attorney General of Iowa, who was supported by both Senator Harkin – a Democrat – and Senator Grassley – a Republican – was never allowed to be considered by the Judiciary Committee or the Senate after her hearing? 

 

Why was it that Kent Markus of Ohio, a law professor and former high-ranking Department of Justice official supported by both of his home-state Senators – both Republicans – was never considered by the Judiciary Committee or the Senate? 

 

Why was it that so many circuit vacancies were left without any nominees considered during the last years of the last Democratic administration when Republicans controlled the Senate?

 

Republican Senators have many questions to answer before they level accusations of any kind.    

To any objective observer, the answer is clear.  The Republican Senate chose to stall consideration of circuit nominees and maintain vacancies during the last Democratic administration in anticipation of a Republican presidency.  Vacancies rose to over 100.  Circuit vacancies doubled.

 

As soon as a Republican President was elected, they sought to turn the tables and take full advantage of the vacancies they had prevented from being filled.  They have been extraordinarily successful.  Currently, more than 60 percent of active judges on the Federal circuit courts were appointed by Republican presidents, and more than 35 percent have been appointed by this President.  Another way to look at their success and compare the better treatment already shown to this President is to observe that the Senate has already confirmed more than three-quarters of this President’s circuit court nominees, compared to only half of President Clinton’s.   

 

As Chairman of the Judiciary Committee, I have turned the other cheek and worked hard to improve the treatment of nominees.  To make progress, I even chaired the Judiciary Committee’s hearing on the circuit nomination before us today during a congressional recess.  I said that we would treat this President’s nominees more fairly than Republicans treated President Clinton’s, and we have.  We have not pocket-filibustered more than 60 of this President’s judicial nominees, as was done to President Clinton’s nominees.  We have not opposed them in secret or anonymously.  In fact, during my chairmanship, the views of home-state Senators, as reflected in the “blue slips” submitted to the Committee, were made public for the first time.  We have considered nominations openly and on the record.   We have proceeded with consideration of nominations I opposed, which never happened under previous Republican leadership.    

 

I began by noting that with the confirmation of Judge Haynes, the Fifth Circuit will have no vacancies.  We have proceeded despite the fact that 12 of the 16 active judges on this Court have been appointed by Republican Presidents.  Republican efforts to stack this court included stalling consideration of Judge Jorge Rangel of Texas, Enrique Moreno of Texas, and Alston Johnson of Louisiana, who were never accorded the consideration that Judge Haynes is receiving.  In stark contrast to Republican practice, I have held hearings on all six of the Fifth Circuit nominees of this President during my chairmanship, and with today’s vote, the Senate will have voted on all of them.  Vacancies on the Fifth Circuit are at an all-time low – zero after today.  Contrast this with the situation during the Clinton years when the Chief Judge of the Fifth Circuit declared a circuit emergency.  That circuit-wide emergency was due to multiple, simultaneous vacancies caused by the fact that the Republican led Senate would not act on the nominees of a Democratic President.  

 

I hope to meet soon with the White House counsel to, again, urge cooperation.  That is what I suggested at the start of this President’s tenure and have urged throughout it.  But time is running short.  I would rather see us work with the President on the selection of nominees the Senate can proceed to confirm than waste precious time fighting about controversial nominees selected to score political points.

 

Judge Catharina Haynes, a former Texas state trial judge on the 191st District Court for the State of Texas, currently works as a Partner at the law firm of Baker & Botts, LLP in Dallas.  The Fifth Circuit has played an extraordinary and historic role in the protection of civil rights in this country, and I wish that we knew more about Judge Haynes’ attitudes toward civil rights than her record and testimony revealed.  I vote in favor of confirmation with the hope that she will treasure and follow the example of earlier judges on that court who displayed such a passionate commitment to the rights of all Americans.

 

I congratulate Judge Haynes and her family on her confirmation today.

 

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****For Background****

 

Nominations Stats

 

Judges Confirmed Under President Bush

Chairman

Circuit

District

Total noms (includes CIT and SCOTUS)

 

 

 

 

Leahy 1st Tenure (17 months)

17

83

100

 

 

 

 

Leahy 2nd Tenure (15 months)

7

38

45

 

 

 

 

Leahy total (32 months)

24

121

145

 

 

 

 

Hatch (2 years)

18

85

104

 

 

 

 

Specter (2 years)

16

35

54

 

Nominations Made vs. Nominations Confirmed

 

As of 4/10/08

 

District Court Nominations

Circuit Court Nominations

Total District and Circuit

George W. Bush

(107th to 110th,

2001-2008)

[As of 4/8/08]

Nominations Made

264

80

344

Nominations Confirmed

241

58

299

Percent Confirmed

90.3%

72.5%

86.9%

 

 

 

 

 

William J. Clinton

(103rd to 106th,

1993-2000)

Nominations Made

382

115

497

Nominations Confirmed

307

65

372

Percent Confirmed

80.4%

56.5%

74.8%

 

Judicial Vacancies

 

At the end of Clinton administration (January 21, 2001)

Total vacancies: 80 (This rose to 100 with retirements early in Bush administration)

Circuit vacancies: 26 (This rose to 32 with retirements early in Bush administration)

District vacancies: 54

Currently under Chairman Leahy (April 10, 2008)

Total vacancies: 47 (20 with no nominees)

Circuit vacancies: 13 (3 with no nominees)

District vacancies: 34 (17 with no nominees)

 

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Press Contact

David Carle: 202-224-3693

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