Leahy Calls On Senate To End Stalemate And Approve Pending Judicial Nominees

WASHINGTON (Thursday, August 2, 2012) – The Senate approved the nomination of Gershwin Drain to serve on the District Court for the Eastern District of Michigan Thursday afternoon, before the Senate recessed for the August break, but in a statement released Thursday, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) urged the Senate to consider the judicial nominations still pending before the full Senate.

Twenty-two nominations to federal district and circuit courts remain pending. Many, including the recently filibustered nomination of Robert Bacharach of Oklahoma to fill a vacancy on the 10th Circuit Court of Appeals, are supported by their home state Republican Senators. Leahy called on Senate Republicans to drop their opposition and clear the Senate calendar of pending judicial nominations.

“The Senate Republicans who took the floor earlier this week relied on their distorted application of the Thurmond Rule in seeking to justify their unprecedented filibuster of Judge Bacharach’s nomination,” said Leahy.  “The truth is that Senate Republicans are trying to find an excuse for their partisan inaction that is stalling almost two dozen judicial nominees.”

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

Chairman, Senate Judiciary Committee,

On The Nomination Of Gershwin Drain To The U.S. District Court For The

Eastern District Of Michigan

August 2, 2012

Earlier this week, Senate Republicans followed through on their partisan opposition to the President by slamming the door on a highly-qualified, consensus circuit court nominee with bipartisan support.  It was the first time in history that a circuit court nominee reported with bipartisan support from the Judiciary Committee was successfully filibustered.  Judge Robert Bacharach, who was nominated to the Tenth Circuit Court of Appeals, had had the strong support of his Republican home state Senators, Senator Coburn and Senator Inhofe. Unfortunately, they chose not to vote to end the unprecedented filibuster of his nomination and cloture fell just short.  This deprived the people of Oklahoma and the Tenth Circuit of an outstanding judge who could today be serving the American people as an appellate judge. The Bacharach nomination is one of the many judicial nominees ready for final action by the Senate but being delayed by Republican opposition. 

There was an article in The Washington Post this morning entitled “A Bench with Plenty of Room” about the judicial vacancies being perpetuated by partisanship all to the detriment of those seeking justice in our Federal courts.  It notes that a lower percentage of President Obama’s nominees have been confirmed than had been during the Bush administration and that at this point during the Bush presidency there were only 28 judicial vacancies.  It observes that “Obama, with 78 vacancies, may be the first president in decades to end his first term with more judicial vacancies than when he began.”  We can change that if Senate Republicans will cooperation in the consideration of the 23 judicial nominees on the Senate Executive Calendar awaiting a final, up-or-down confirmation vote. I ask that a copy of that article be included in the Record. 

The Senate Republicans who took the floor earlier this week relied on their distorted application of the Thurmond Rule in seeking to justify their unprecedented filibuster of Judge Bacharach’s nomination.  The truth is that Senate Republicans are trying to find an excuse for their partisan inaction that is stalling almost two dozen judicial nominees. 

We now have a President who has worked with home state Senators to select moderate, superbly-qualified judicial nominees. And yet, Republicans who support these nominees will not vote to end filibusters against them and will not stand up to the partisan obstruction. I am proud of my record of working to lower vacancies and to move nominations whether there is a Republican or Democratic President and of my role ensuring that nominees are treated fairly and that the rights of every Senator are protected in the Judiciary Committee.  But this is not about me.  This is about the American people.  This is about ensuring that they have functioning courts so they have access to justice. 

With our Federal courts still severely overburdened, I hope that Senate Republicans will consider the needs of the American people.  We need to do better, filling vacancies to ensure a functioning democracy, functioning courts, and do our job for the American people.

There are currently 19 district court nominees that have been reported favorably by the Judiciary Committee that can be voted on right now, almost all of them completely noncontroversial with significant bipartisan support.  Of the 19 district court nominees currently pending on the floor, 16 were supported by nearly all Republicans on the Committee.  All have the support of their home state Senators, including eight with Republican home state Senators.

The reason for this extensive backlog of nominees is that Senate Republicans have allowed for votes on just one district court nominee per week for the last seven weeks.  We cannot allow this slow pace of confirmations to continue with the judicial vacancy crisis that we face.  There are currently 78 vacancies.  Judicial vacancies during the last few years have been at historically high levels and have remained near or above 80 for three and one half years.  Nearly one out of every 11 Federal judgeships is currently vacant.  Vacancies on the Federal courts are more than two and one half times as many as they were on this date during the first term of President Bush.

In contrast to the dramatic reduction in judicial vacancies during President Bush’s first term, judicial vacancies are higher than they were when President Obama came into office  – another sad first.

We have heard lots of excuses from Senate Republicans, who have tried to shift the blame for the judicial vacancy crisis to the President.  They claim that the President has not made enough nominations.  However, there are 19 outstanding district court nominees that can be confirmed right now who are being stalled.  Let us act on them.  Let us vote them up or down. 

The Senate should proceed to confirm all 19 district court nominees that are ready for final confirmation votes.  I know we can do this because we have done this before.  On November 14, 2002, the Senate proceeded to confirm 18 judicial nominees on one day, and vacancies went down to 60 throughout the country.  If we confirm the 19 district nominees ready for final Senate action today, we can reduce vacancies down to 60 as well.  I hope that Senate Republicans will not extend their wrongheaded Thurmond Rule shut down to the confirmation of consensus, well-qualified district court nominees.  Given our overburdened Federal courts and the need to provide all Americans with prompt justice, we should all be working in a bipartisan fashion to confirm these nominees. 

Today, the Senate will vote on the nomination of Gershwin Drain to fill a judicial emergency vacancy in the U.S. District Court for the Eastern District of Michigan.  Judge Drain has the strong support of his home state Senators, Senator Levin and Senator Stabenow.  His nomination was reported favorably by the Judiciary Committee four months ago. 

Judge Drain has been a state and local trial court judge in Michigan for over 25 years, with jurisdiction over both civil and criminal matters.  In that time, he has presided over approximately 600 cases that have gone to verdict or judgment after trial.  The ABA Standing Committee on the Federal Judiciary has unanimously rated Judge Drain as “qualified” to serve on the U.S. District Court.

Currently a trial judge on the 3rd Circuit Court of Michigan, where he has been presiding since 1997, Judge Drain has also served on the Recorder’s Court for the City of Detroit for a decade.  Prior to that, he served briefly as a judge for the 36th District Court of Michigan.  Before becoming a judge, he was a trial attorney for the Federal Defenders Office for nearly a dozen years, where he tried over 140 cases to verdict or judgment.  Judge Drain’s vast experience as both a judge and a litigator makes him well prepared to take the Federal bench.

There are some Senators who have expressed concerns about Judge Drain’s views based on a few isolated public statements that Judge Drain made more than a decade ago.  However, Judge Drain’s 25 years on the bench demonstrate that he is more than capable of being a fair and neutral judge who faithfully applies the law.  His experience presiding over 600 civil and criminal matters provides further assurance that he makes his decision based on the law and nothing more. 

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