Leahy: Courts Facing Vacancy Crisis While Senate Fails To Act On Nominations

WASHINGTON (Friday, Nov. 19, 2010) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) released the following statement today, urging the Senate to act on more than 20 judicial nominations pending before the full Senate, including 16 nominations reported by the Judiciary Committee unanimously.

“Regrettably, the Senate is not being allowed to consider the consensus, mainstream judicial nominees favorably reported from the Judiciary Committee,” said Leahy.  “There is no good reason to hold up consideration for weeks and months of nominees reported without opposition from the Judiciary Committee.  I have been urging since last year that these consensus nominees be considered promptly and confirmed.”

There are more than 100 federal judicial vacancies nationwide, including 50 that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.  The Senate has confirmed just 41 district and circuit court nominations this Congress.  On average, 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 Senate has taken three times longer to confirm district court nominations after being favorably reported by the Judiciary Committee.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
November 19, 2010

In the aftermath of the November election returns, there was talk on all sides about working together.  We can do so right now, without further delay, and in the interests of the American people.  As of today there are more than 100 vacancies on the Federal courts around the country, 50 of them for vacancies deemed judicial emergencies by the Administrative Office of the U.S. Courts.  The Senate has ready for consideration and confirmation 23 judicial nominees of the President, all of whom have had hearings before the Judiciary Committee and have been reported favorably to the Senate by a majority of that Committee.  Sixteen of these judicial nominees were reported unanimously.  The Senate can confirm those 16 nominees today, and we can then schedule such debate as needed on the remaining seven.  Our working together to do so would send the right message to the American people.  Let’s work together and approve these nominations without additional delay.  Let’s end the gridlock.  Let’s move forward.

As the Senate recessed for the elections, we were not allowed to consider and confirm any of the 23 judicial nominations pending on the Senate Executive Calendar—this despite the judicial vacancies crisis in our Federal courts.  As of today there are 108 current judicial vacancies.  We already know of 20 future vacancies.  In addition, the Senate has not acted on the request by the Judicial Conference of the United States to authorize 56 additional judges, which will allow the Federal judicial to do its work.  Accordingly, the Federal judiciary is currently more than 180 judges short of those needed. 

At the end of September, the President of the United States sent a letter to Senate leaders expressing his justifiable concern with the pace of judicial confirmations.  The President wrote that the American people and the Federal judiciary suffer from this inaction and that a minority of Senators has, in his words “systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees—including nominees that have strong bipartisan support and the most distinguished records.”  

All of these nominees have the backing of their home-state Senators.  Indeed, President Obama has worked hard with home-state Senators regardless of party affiliation, and by so doing has done his part to restore comity to the process. 

Sixteen judicial nominees have been delayed despite the fact that they were reported without a single vote in opposition from the Senate Judiciary Committee.  Regrettably, despite the President’s efforts and his selection of outstanding nominees the Senate has not reciprocated by promptly considering his consensus nominees.  To the contrary, as the President has pointed out, nominees are being stalled who, if allowed to be considered, would receive unanimous or near unanimous support, be confirmed, and be serving in the administration of justice throughout the country. This is counterproductive. 

Like the President, I welcome debate and a vote on those few nominees that some Republican Senators would oppose. Nominees like Benita Pearson of Ohio, William Martinez of Colorado, Louis Butler of Wisconsin, Edward Chen of California, John McConnell of Rhode Island, Goodwin Liu of California and Robert Chatigny of Connecticut.  I have reviewed their records and considered their character, background and qualifications.  I have heard the criticisms of the Republican Senators on the Judiciary Committee as they have voted against this handful of nominees.  I disagree, and believe the Senate would vote, as I have, to confirm them.  That they will not be conservative activist judges should not disqualify them from serving. 

But that is not what is happening.  We are not debating the merits of those nominations, as Democratic Senators did when we opposed the most extreme handful of nominees of President Bush.  What is happening is that judicial confirmations are being stalled virtually across the board.  What is new and particularly damaging is that 16 judicial nominees who were all reported unanimously by the Senate Judiciary Committee, without Republican opposition, are still being delayed.  These nominees include Albert Diaz and Catherine Eagles of North Carolina.  They are both supported by Senator Hagan and Senator Burr.  Sadly, Senator Burr’s support has not freed them from the across the board Republican hold on all judicial nominees.  Judge Diaz was reported unanimously in January, almost 11 months ago, and still waits for agreement from the minority in order for the Senate to consider his nomination so that he may be confirmed. 

Also being delayed for no good reason from joining the bench of the most overloaded Federal district in the country in the Eastern District of California is Kimberly Mueller, whose nomination was reported last May, more than six months ago, without any opposition.  Her nomination is one of four circuit and district nominations to positions in the Ninth Circuit currently on the Executive Calendar that Republicans are blocking from Senate consideration.  In addition to the Liu and Chen nominations, the nomination of Mary Murguia from Arizona to the Ninth Circuit has been stalled since August despite the strong support of Senator Kyl, the Assistant Republican Leader. 

I want to put into the record a letter we received this week from Ninth Circuit Chief Judge Alex Kozinski, a President Reagan appointee, and the other members of the Judicial Council of the Ninth Circuit writing “to emphasize our desperate need for judges” in the Nation’s largest federal circuit.  They write that “[c]ourts cannot do their work if authorized judicial positions remain vacant” and urge “that the Senate act on judicial nominees without delay.”  This letter echoes the serious warning I have previously spoken about issued by Justice Anthony Kennedy at the Ninth Circuit Conference about 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.” 

The District of Columbia suffers from four vacancies on its Federal District Court.  Two nominees could help that court, but they are now being delayed from final consideration.  Beryl Howell was reported by the Committee unanimously.  She is well known to many of us from her 10 years of service as a counsel on the Senate Judiciary Committee.  She is a decorated former Federal prosecutor and the child of a military family.  Robert Wilkins was also reported without opposition.  The distinguished Chief Judge of the District Court, Chief Judge Royce Lamberth sent a recent letter to Senate leaders urging prompt action on these nominations.

John Gibney of Virginia, James Bredar and Ellen Hollander of Maryland, Susan Nelson of Minnesota, Edmond Chang of Illinois, Leslie Kobayashi of Hawaii, and Denise Casper of Massachusetts are the other district court nominees reported unanimously from the Judiciary Committee and could have been confirmed as consensus nominees long ago.

Another district court nominee is Carlton Reeves of Mississippi, who is supported by Senator Cochran and is a former president of the Magnolia Bar Association.  Only Senator Coburn asked to be recorded as opposing his nomination.  I believe Mr. Reeves would receive a strong bipartisan majority vote for confirmation.

Counting Judge Diaz, there are five consensus nominees to the circuit courts who are being stalled.  Judge Ray Lohier of New York would fill one of the four current vacancies on the United States Court of Appeals for the Second Circuit. He is another former prosecutor with support from both sides of the aisle.  His confirmation has been stalled for no good reason for more than six months, as well. Scott Matheson is a Utah nominee with the support of Senator Hatch who was reported without opposition.  Mary Murgaia is from Arizona and is supported by Senator Kyl and was reported without opposition.  Finally, Judge Kathleen O’Malley of Ohio, nominated to the Federal Circuit, was reported without opposition. 

Many of these nominees could have been considered and confirmed before the August recess.  All of them could have been considered and confirmed before the October recess.  They were not.  They were not because of Republican objections that, I suspect, have nothing to do with the qualifications or quality of these nominees.  These are not judicial nominations whose judicial philosophy Republicans question. 

The President noted in his September letter to Senate leaders that the “real harm of this political game-playing falls on the American people, who turn to the courts for justice” and that the unnecessary delay in considering these noncontroversial nominations “is undermining the ability of our courts to deliver justice to those in need . . . from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.” 

President Obama has reached out to Republican home state Senators regarding his judicial nominations.  They should reciprocate.  As the President said in his inaugural address calling for a new era of responsibility, he called for “an end to the petty grievances . . . recriminations and worn-out dogmas that for far too long have strangled our politics.”  The President recalled the words of Scripture as he urged “the time has come to set aside childish things.”  Let the Senate end this across the board blockade against confirming noncontroversial judicial nominees.  Democrats did not engage in such a practice with President Bush and Republicans should not continue their practice any longer.  With more than 100 vacancies plaguing the Federal courts, we do not have the luxury of indulging in such games.

The Senate is well behind the pace set by a Democratic majority in the Senate considering President Bush’s nominations during his first two years in office.  By this date in President Bush’s second year in office, the Senate, with a Democratic majority, had confirmed 100 of his Federal circuit and district court nominations.  They were all considered and confirmed during the 17 months I chaired the Senate Judiciary Committee.  Not a single nominee reported by the Judiciary Committee remained pending on the Senate’s executive calendar at the end of the Congress.

In sharp contrast, during President Obama’s first two years in office, the minority has allowed only 41 Federal circuit and district court nominees to be considered by the Senate.  In 2002, we proceeded in the lame duck session after the election to confirm 20 of President Bush’s judicial nominees.  This year there are 23 judicial nominations ready for Senate consideration and another 11 noncontroversial nominations on the Committee’s business agenda that could have been reported out yesterday.  Those 11 nominations were needlessly held over another two weeks by Republican Senators but could be reported to the Senate at our next business meeting.  That is more than 30 additional confirmations that could be easily achieved with a little cooperation from the minority.  That would increase the confirmations from the historically low level of 41, where it currently stands, to between 70 and 75.  That would be in the range of judicial confirmations during President George H.W. Bush’s first two years (70), while resting far below President Reagan’s first two years (87), and pale in comparison to the 100 confirmed in the first two years of the George W. Bush administration or those confirmed during President Clinton’s first two years (127).

I come before the Senate today to make a proposal to end this impasse.  This is a proposal the American people will understand and, I believe, support. It, too, has scriptural roots.  I ask the Republican leadership to follow the Golden Rule with respect to these judicial nominations.  This is not complicated.  It is something we teach our children from a young age.  It is a basic rule of good behavior.  Do unto these nominations as you would have done to the nominations of a Republican President.  Following this basic precept would lead to the confirmation without further delay of the nominations reported without opposition.  They can be confirmed today.  If someone wishes to ask for roll calls votes on these nominations, tell the Majority Leader so that he can schedule that vote without further delay.  End this across the board stall on judicial nominations by allowing the many noncontroversial nominations to proceed without further objection, obstruction or delay.   

The new tactic of objecting to consideration of noncontroversial nominations is an escalation of the so-called “judge wars.”  The attempted justification as some kind of tit-for-tat is wrong.  But my proposal does not depend on whether you agree with me or side with partisans from across the aisle.  While seeking to justify “an eye for an eye” would require a look back and a factual accounting, the Golden Rule is a rule of current and prospective behavior.  I hope those on the other side will remember our shared values and adopt the Golden Rule going forward from this day.  That would be a step toward returning to our Senate traditions and allow the Senate better to fulfill its responsibilities to the American people and the Federal judiciary. 

During these 17 months I chaired the Judiciary Committee during President Bush’s first two years, I scheduled 26 hearings for the judicial nominees of a Republican President and the Judiciary Committee worked diligently to consider them.  During the two years of the Obama administration, I have tried to maintain that same approach.  The Committee held its 25th hearing for President Obama’s Federal circuit and district court nominees this week. I have not altered my approach and neither have Senate Democrats.

One thing that has changed is that we now receive the paperwork on the nominations, the nominee’s completed questionnaire, the confidential background investigation and the America Bar Association (ABA) peer review almost immediately after a nomination is made, allowing us to proceed to hearings more quickly.  During 2001 and 2002, President Bush abandoned the procedure that President Eisenhower had adopted and that had been used by President George H.W. Bush, President Reagan and all Presidents for more than 50 years.  Instead, President George W. Bush delayed the start of the ABA peer review process until after the nomination was sent to the Senate.  That added weeks and months to the timeline in which hearings were able to be scheduled on nominations.

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 the fact that Senate Republicans pocket filibustered more than 60 of President Clinton’s judicial nominations and refused to proceed on them while judicial vacancies skyrocketed during the Clinton administration, in 2001 and 2002, during the 17 months I chaired the Committee during President Bush’s first two years in office, the Senate proceeded to confirm 100 of his judicial nominees. 

By refusing to proceed on President Clinton’s nominations while judicial vacancies skyrocketed during the six years they controlled the pace of nominations, Senate Republicans allowed vacancies to rise to more than 110 by the end of the Clinton administration.  As a result of their strategy, Federal circuit court vacancies doubled.   When Democrats regained the Senate majority halfway into President Bush’s first year in office, we turned away from these bad practices.  As a result, overall judicial vacancies were reduced during the Bush years from more than 10 percent to less than four percent.  During the Bush years, the Federal court vacancies were reduced from 110 to 34 and Federal circuit court vacancies were reduced from a high of 32 down to single digits.

This progress has not continued with a Democratic President back in office.  Instead, Senate Republicans have returned to the strategy they used during the Clinton administration of blocking the nominations of a Democratic President, again leading to skyrocketing vacancies.  Last year the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years.  This year we have yet to confirm 30 Federal circuit and district judges.  We are not even keeping up with retirements and attrition.   As a result, judicial vacancies are, again, over 100 and, again, more than 10 percent.

Regrettably, the Senate is not being allowed to consider the consensus, mainstream judicial nominees favorably reported from the Judiciary Committee.  It has taken nearly five times as long to consider President Obama’s judicial nominations as it did to consider President Bush’s during his first two years in office.  During the first two years of the Bush administration, the 100 judges confirmed were considered by the Senate an average of 25 days from being reported by the Judiciary Committee.  The average time for confirmed circuit court nominees was 26 days.  By contrast, the average time for the 41 Federal circuit and district and circuit court judges confirmed since President Obama took office is 90 days and the average time for circuit nominees is 148 days—and that disparity is increasing.  

This vacancies crisis alarms the President of the United States.  It alarms Supreme Court Justices.  It alarms the Federal Bar Association.  It alarms the American Bar Association.  I ask that the President’s September 30 letter, Chief Judge Lamberth’s November 4 letter, and statements by the Federal Bar Association and American Bar Association be included in the record at the conclusion of my statement.

There is no good reason to hold up consideration for weeks and months of nominees reported without opposition from the Judiciary Committee.  I have been urging since last year that these consensus nominees be considered promptly and confirmed.   If Senators would follow the Golden Rule, that would happen without further delay.

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