09.13.10

Leahy Again Calls For Votes On Long-Pending Judicial Nominations

WASHINGTON (Monday, September 13, 2010) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Monday afternoon spoke on the Senate floor, urging prompt action on more judicial nominations that have been reported by the Judiciary Committee. 

The Senate confirmed the nomination of Jane Stranch of Tennessee to fill a vacancy on the Sixth Circuit Court of Appeals in a bipartisan vote of 71-21.  Her nomination languished on the Senate’s calendar since being reported by a bipartisan majority of the Judiciary Committee on November 19, 2009.  In July, Leahy requested consent to consider the nomination in the full Senate.  The request was supported by Tennessee’s senior Senator, Republican Lamar Alexander, but Senate Minority Leader Mitch McConnell (R-Ky.) objected to the request.

“There is no good reason to hold up consideration for weeks and months of nominees reported unanimously from the Judiciary Committee,” said Leahy Monday.  “President Obama has not made nominations opposed by home state Senators but has, instead, reached out and worked with home state Senators from both parties.  Likewise, I have respected the minority.  We have tried to strengthen the cooperation between parties and branches.  It is disappointing to see others take the opposite approach.”

During the Bush administration, Senate Democrats in the majority worked to reduce judicial vacancies to as low as 34, and circuit court vacancies were reduced to single digits.  Today, judicial vacancies total more than 100, including 20 circuit court vacancies.  A total of 16 judicial nominations are now pending on the Senate floor.  A Fourth Circuit Court of Appeals nomination reported by a unanimous roll call vote in the Judiciary Committee has been pending since January.

Leahy said, “If the consent to schedule this debate and vote today is a signal that other nominations reported favorably by the Judiciary Committee will also be scheduled for final consideration without further, unnecessary delay, I will be encouraged.  We can, and must, do a better job responding to the judicial vacancy crisis.”

In the first Congress of the Obama administration, the Senate has taken more than five times longer to confirm circuit court nominations after being favorably reported by the Judiciary Committee than it did in the first Congress of the Bush administration.  The chamber has taken three times longer to confirm district court nominations after being favorably reported by the Judiciary Committee.

Senate Democrats have repeatedly sought time agreements to debate and vote on pending nominations.  In a series of floor statements before the August recess, Senators Mark Udall (D-Colo.), Michael Bennet (D-Colo.), Amy Klobuchar (D-Minn.), Herb Kohl (D-Wis.), Sheldon Whitehouse (D-R.I.), Jack Reed (D-R.I.), Ben Cardin (D-Md.), Tom Carper (D-Del.), and Ted Kaufman (D-Del.) spoke on the Senate floor about pending nominations, and requested consent to schedule debate and votes on pending judicial nominations.  Republicans objected to the requests.

For more information about pending judicial nominations, visit the Senate Judiciary Committee website.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
September 13, 2010

This evening, the Senate will finally consider and vote on the nomination of Jane Branstetter Stranch of Tennessee to the Sixth Circuit.  A native of Nashville, Ms. Stranch has practiced law in that community for 32 years, and has often appeared before the Sixth Circuit, the court to which she is now nominated.  She has decades of experience in labor and employment law, an expertise made useful when she taught a class on labor law at Nashville’s Belmont University.  Ms. Stranch also has an active appellate practice, as well as significant experience with alternative forms of dispute resolution, such as mediation and arbitration.  She is a leader in her community who dedicates significant time to pro bono work, civic matters, and her church.  She also has impressive academic credentials, having earned both her J.D., Order of the Coif, and her B.A., summa cum laude and Phi Beta Kappa, from Vanderbilt University. 

Ms. Stranch’s nomination is supported by her home state Senators, both Republicans.  Her nomination was reported by a bipartisan majority of the Judiciary Committee last November, nearly 10 months ago.  Since then, every Democratic Senator has been prepared to debate and vote on it.  I have spoken many times about our willingness and the need to consider this nomination. 

In mid-July, I came before the Senate to take the extraordinary step of propounding a unanimous consent request to consider this nomination.  The senior Senator from Tennessee supported that request.  I made clear that I was in no way faulting the senior Senator from Tennessee, who has supported this nomination from the outset.  Indeed, this nomination is an example of how President Obama has reached out and worked with Senators from both sides of the aisle. Regrettably, after pending on the Executive Calendar for eight months, there was an objection to my request to consider the nomination.  I thank the Senate Majority Leader and the Republican leader for facilitating the agreement that finally allows her consideration this evening.

I trust that the Senate will be allowed to turn to the other judicial nominations that have been stalled before the Senate.  One nomination, that of Albert Diaz from North Carolina, to the Fourth Circuit, for instance, was reported unanimously by the Judiciary Committee, but has been stalled since January.  Others include Scott Matheson of Utah, nominated to the Tenth Circuit, and Janet Murguia of Arizona nominated to the Ninth Circuit.  All are supported by their Republican home state Senators and were reported by the Judiciary Committee without a single objection.  Another is Ray Lohier of New York, whose nomination to the Second Circuit was reported without objection.  In addition, there are 12 district court nominations on the Senate calendar that should be considered and confirmed without further delay.  They were reported as long as seven months ago.   

A number of recent articles have discussed the judicial vacancy crisis that has been created by the Republican strategy of slow-walking Senate’s consideration of non-controversial nominations.  These include district court nominations, which have traditionally been considered without delays, and have never before been targeted for obstruction by Democrats or Republicans when supported by their home state Senators.  Last year the Senate was allowed to confirm only 12 Federal circuit and district court judges all year.  That was the lowest total in more than 50 years.  So far this year, we have confirmed only 28 more to achieve what one recent news story noted is the lowest number of confirmations in more than 40 years. 

I took serious note of the remarks of Justice Anthony Kennedy, speaking last month at the Ninth Circuit Conference, about the costs of skyrocketing judicial vacancies in California and throughout the country.  He said, “It’s important for the public to understand that the excellence of the federal judiciary is at risk.”  He noted that “if judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”  I hope that all Senators heed Justice Kennedy’s serious warning, and do not let partisan calculations stand in the way of doing our job for the American people.

If, in fact, the action we are taking this evening represents a bipartisan willingness to return to the Senate’s tradition of offering advice and consent without extensive delays, then I welcome it.  I hope that we can promptly consider the other 16 judicial nominations that remain on the Executive Calendar, which have already been considered and favorably reported by the Judiciary Committee. 

When I became Chairman of the Judiciary Committee midway through President Bush’s first tumultuous year in office, I worked very hard to make sure Senate Democrats did not perpetuate the “judge wars” as tit-for-tat.  Despite that fact that Senate Republicans pocket filibustered more than 60 of President Clinton’s judicial nominations while judicial vacancies skyrocketed to more than 110, during the 17 months I chaired the Committee in President Bush’s first two years in office, the Senate proceeded to confirm 100 of his judicial nominees.  By contrast, during these first two years of President Obama’s term, Senate Republicans have allowed only 40 Federal circuit and district court nominees to be considered by the Senate.

The history of the Sixth Circuit is detailed in my July 29, 2002, Senate statement in support of another Tennessee nominee, Judge Julia Gibbons.  As Chairman, I proceeded to a confirmation hearing for Judge Gibbons in April 2002.  That was the first hearing for a Sixth Circuit nominee in five years, despite well-qualified nominations made by President Clinton.  Republicans refused to consider the nominations of Judge Helene White, an experienced state court judge; Kathleen McCree Lewis, an accomplished attorney and the daughter of former Solicitor General of the United States and former Sixth Circuit Judge Wade McCree; and Kent Markus, a law professor and former Justice Department official who had the support of his Republican home State Senator.  By proceeding with President Bush’s 2002 Sixth Circuit nomination of Judge Julia Gibbons of Tennessee and then his nomination of Judge John Rogers of Kentucky, the Democratic Senate majority acted to break the logjam. 

When I resumed the chairmanship of the Judiciary Committee in 2007, we were able to fill the last remaining vacancies on the Sixth Circuit when we confirmed President Bush’s nominations of Judge Helene White and Judge Ray Kethledge of Michigan to the Sixth Circuit.  During the Bush years, the Sixth Circuit went from half vacant to full.

Overall judicial vacancies were reduced during the Bush years from more than 10 percent to less than four percent.  Federal judicial vacancies are now again over 10 percent. During the Clinton years, Federal circuit vacancies doubled.  During the Bush years, the Federal circuit court vacancies were reduced from a high of 32 down to single digits.  That progress has not continued with President Obama.  During the Bush years, we reduced vacancies on nine circuits.  Since then, vacancies on six circuits have risen. 

During the first two years of the Bush administration, the 100 judges confirmed were considered by the Senate in an average of 25 days after being reported by the Judiciary Committee.  The average time for confirmed circuit court nominees was 26 days.  By contrast, the average time for the Federal circuit and district and circuit court judges confirmed since President Obama took office, including the confirmation of Jane Stranch, is 90 days after being reported and the average time for circuit nominees is 147 days.  

President Obama has not made nominations opposed by home state Senators but has, instead, reached out and worked with home state Senators from both parties.  Likewise, I have respected the minority.  We have tried to strengthen the cooperation between parties and branches.  It is disappointing to see others take the opposite approach.

There is no good reason to hold up consideration for weeks and months of nominees reported unanimously from the Judiciary Committee.  Over the recent recess, tensions increased, again, when someone from the other side of the aisle anonymously objected to the standard practice of holding nominations in place during the August recess and insisted that five judicial nominees reported favorably by the Senate Judiciary Committee be returned to the President. Ironically, it was just days before that objection that the President and the Republican leader had met and agreed to work together.  Republicans used to contend that any nomination reported by the Committee to the Senate was entitled to an up-or-down vote.  Their objection prevented that.  Indeed, 24 judicial nominations favorably reported by the Senate Judiciary Committee have not been acted upon by the Senate because of Republican objections.  

We have fallen well off the pace we set on nominations in 2001 and 2002.   When the Senate entered its August recess in 2002, we had confirmed 72 of President Bush’s circuit and district nominations, including our confirming eight nominations by voice vote as the Senate wrapped up before the recess.  Only six nominations remained on the Executive Calendar and all of them were later confirmed.  No judicial nominations were returned to the President.  By this date in 2002, we had already confirmed five more judicial nominations after the August recess for a total of 77 of President Bush’s district and circuit nominees confirmed by a Democratic Senate.

In stark contrast, this year we have confirmed only 40 of President Obama’s circuit and district court nominations, the Republicans permitting us to confirm only four non-controversial nominations as we headed into the recess, and insisted on sending five judicial nominations back to the President to be renominated, beginning the process again.  As a result, 17 judicial nominations remain stalled on the Executive Calendar today.  I thank the Ranking Republican, Senator Sessions, for his cooperation in working with me to hold hearings and consider nominations in the Judiciary Committee.  Regrettably, the Senate has taken more than five times as long to consider President Obama’s reported circuit court nominations as we did to consider President Bush’s during his first two years in office.   

As I have said, if the consent to schedule this debate and vote today is a signal that other nominations reported favorably by the Judiciary Committee will also be scheduled for final consideration without further, unnecessary delay, I will be encouraged.  We can, and must, do a better job responding to the judicial vacancy crisis.

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