03.16.10

Leahy Echoes Call For Up-Or-Down Votes On Nominations

Judiciary Committee Chairman Announces Hearing For 9th Circuit Nominee

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Tuesday repeated his recent calls to end the obstruction that has prevented confirmation votes on many of the more than 80 executive and judicial nominations awaiting final action in the Senate, including 26 nominations reported by the Senate Judiciary Committee.

“There have already been 17 filibusters of President Obama’s nominees,” said Leahy.  “That is the same number of Federal circuit and district nominees the Senate has confirmed during the entirety of the Obama administration.  And that comparison does not include the many other nominees who were delayed or who are being denied up or down votes by Senate Republicans refusing to consent to time agreements to consider even noncontroversial nominees.”

This Congress, the Judiciary Committee has reported 35 nominations for federal circuit and district court judgeships to the full Senate for consideration.  Less than half have been confirmed.  Of the 18 judicial nominations pending on the Senate floor, 12 were reported by the Judiciary Committee without dissent.  Fourteen of the 17 judicial nominations that have been confirmed this Congress were confirmed unanimously.

“Of the 17 Federal circuit and district court judges confirmed, 14 have been confirmed unanimously,” Leahy continued.  “The delay and obstruction is so baseless that when votes are finally taken, they are overwhelmingly in favor and most often unanimous.  I urge Senate Republicans to reconsider their destructive strategy and to work with us to provide final consideration without further delay to the 18 judicial nominees on the Senate Executive Calendar awaiting final action.  We can make real progress if they will join with us and we work together.” 

Also on Tuesday, Leahy announced that the Judiciary Committee will hold a hearing on Wednesday, March 24, to consider the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals.  Liu has earned national recognition as a professor and legal scholar.  He is a graduate of Stanford University and Yale Law School, and is a Rhodes scholar.  Liu clerked for Supreme Court Justice Ruth Bader Ginsburg and Judge David Tatel of the Circuit Court of Appeals for the District of Columbia.  Additional nominees are likely to appear at the hearing, and are expected to be announced in the coming days.

More than a dozen Democratic Senators spoke on the Senate floor Tuesday about the objections to considering executive and judicial nominations.  Leahy has spoken several times in recent months about the slow pace of confirmations, particularly for judicial nominations.

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

Chairman, Senate Judiciary Committee,

On Obstruction Of Judicial And Executive Nominations

March 16, 2010

 

Senate Floor

 

Many Senators are speaking on the Senate floor today about the Republican delays and obstruction of President Obama’s nominations to fill critical posts throughout the executive branch. 

Republicans have engaged in a partisan effort to block scores of nominations, preventing up-or-down votes in the Senate.  This Republican effort has prevented the Senate from considering well-qualified public servants like Professor Chris Schroeder, who was first nominated by President Obama on June 4, 2009.  He appeared before the Senate Judiciary Committee last June, and was reported favorably in July by voice vote, with no dissent.  His nomination then languished on the Senate’s Executive Calendar for nearly five months.  Not a single Republican explained the reason for the delay.

Republican Senators objected to carrying over Professor Schroeder’s nomination into the new session.  It was returned to the President with no action.  President Obama nominated Professor Schroeder again this year, and again his nomination was reported by the Judiciary Committee with Republican support.  An esteemed scholar and public servant who has served with distinction on the staff of the Senate Judiciary Committee and in the Justice Department, Professor Schroeder has support across the political spectrum. 

We treated President Bush’s nominations to run the Office of Legal Policy much more fairly than Republicans are treating President Obama’s, confirming all four nominees to lead that office quickly.  We confirmed President Bush’s first nominee to that post by a vote of 96 to one just one month after he was nominated, and only a week after his nomination was reported by the Judiciary Committee.  In contrast Professor Schroeder’s nomination has been pending since last June.  It is time for an up-or-down vote on his nomination.

In addition to the many executive branch nominees currently stalled on the Senate calendar, there are 18 judicial nominees that have been reported favorably by the Judiciary Committee—most of them unanimously—who await Senate consideration.  That is more nominees than the total of President Obama’s circuit and district court nominees—17—that have been confirmed since he took office.  This sorry state of affairs is the result of a Republican strategy to stall, obstruct, and delay that has existed throughout President Obama’s time in office.  The casualties of this effort are the American people who seek justice in our increasingly overburdened Federal courts.

By this date during President Bush’s first term, the Senate had confirmed 41 Federal circuit and district court nominations.  That was a tumultuous period in which Senate Democrats worked hard to make progress with a staunchly partisan Republican President.  It included the period of the 9/11 attacks and the anthrax attacks upon the Senate.  In contrast, the Senate has confirmed just 17 Federal and circuit court nominees—just 17—during President Obama’s first term.

We are currently on pace to confirm fewer than 30 Federal circuit and district court nominees during this Congress, which would be easily the lowest in memory.  That number stands in sad contrast to the 100 judges we confirmed when I chaired the Judiciary Committee for 17 months during President Bush’s first term.  When we were reviewing the judicial nominees of a President of the other party, and one who consulted across the aisle far less than President Obama has, we confirmed 100 judges in just 17 months.  President Obama is in his 14th month and Senate Republicans have allowed only 17 Federal circuit and district court judges to be confirmed.  We are 24 behind the pace we set in 2001 and 2002. 

The Judiciary Committee has favorably reported 35 of President Obama’s Federal circuit and district court nominees to the Senate for final consideration and confirmation.  Eighteen of those nominees are still awaiting a vote by the Senate.  The Senate can more than double the total number of judicial nominations it has confirmed by considering the other judicial nominees already before the Senate awaiting final action.  We should do that now, without more delay, without additional obstruction.  There are another five judicial nominations set to be reported by the Judiciary Committee this week.  They will bring the total awaiting final action by the Senate to 23.  Confirming them without unnecessary delay would put us back on track.  

While Republican Senators stall, judicial vacancies continue to skyrocket.  Vacancies have already grown to more than 100, undoing years of our hard work repairing the damage done by Republican pocket filibusters of President Clinton’s judicial nominees.  When I chaired the Judiciary Committee during President Bush’s last year in office, we reduced judicial vacancies to as low as 34, even though it was a presidential election year.  When President Bush left office, we had reduced vacancies in nine of the 13 Federal circuits.  As matters stand today, judicial vacancies have spiked and are being left unfilled.  We started 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.

More than 30 of the vacancies on our Federal courts today are classified as “judicial emergencies.”  This is another reversal of our hard work during the Bush administration when we reduced judicial emergencies by more than half.  Those vacancies have now increased dramatically, encumbering judges across the country with overloaded dockets and preventing ordinary Americans from seeking justice in our overburdened Federal courts.  This is wrong.   We owe it to the American people to do better.

President Obama deserves praise for working closely with home state Senators, whether Democratic or Republican, to identify and select well-qualified nominees to fill vacancies on the Federal bench.  Yet Senate Republicans delay and obstruct even nominees chosen after consultation with Republican home state Senators.  President Obama has worked closely with home state Republicans Senators, but Senate Republicans have still chosen to treat his nominees badly.  Last year, President Obama sent 33 Federal circuit and district court nominations to the Senate, but the Senate confirmed only 12 of them, the fewest judicial nominees confirmed in the first year of a Presidency in more than 50 years. 

Senate Republicans unsuccessfully filibustered the nomination of Judge David Hamilton of Indiana to the Seventh Circuit, despite support for his nomination from the senior Republican in the Senate, Dick Lugar of Indiana.  Republicans delayed for months Senate consideration of Judge Beverly Martin of Georgia to the Eleventh Circuit despite the endorsement of both her Republican home state Senators.  When Republicans finally agreed to consider her nomination on January 20, she was confirmed unanimously.  Whether Jeffrey Viken or Roberto Lange of South Dakota, who were supported by Senator Thune, or Charlene Edwards Honeywell of Florida, who was supported by Senators Martinez and LeMieux, virtually all of President Obama’s nominees have been denied prompt Senate action by Republican objections.

I noted when the Senate considered the nominations of Judge Christina Reiss of Vermont and Mr. Abdul Kallon of Alabama relatively promptly that they should serve as the model for Senate action.  Sadly, they are the exception rather than the model.  They show what the Senate could do, but does not.  Time and again, noncontroversial nominees are delayed.  When the Senate does finally consider them, they are confirmed overwhelmingly.

In December, I made several statements in this chamber about the need for progress on the nominees reported by the Senate Judiciary Committee.  I also spoke repeatedly to Senate leaders on both sides of the aisle and made the following proposal:  Agree to immediate votes on those judicial nominees that are reported by the Senate Judiciary Committee without dissent, and agree to time agreements to debate and vote on the others.  I have recently reiterated my proposal and urged Senate Republicans to reconsider their strategy of obstruction.  There is no justification for these nominations to be dragged out week after week, month after month.  

The last time the Senate considered judicial nominations was weeks ago.  Indeed, on March 2, the Republican filibuster and obstruction of the nomination of Justice Barbara Keenan of Virginia to be a Fourth Circuit Judge had to be ended by invoking cloture.  Senate Republicans would not agree to debate and vote on her nomination and the Majority Leader was required to proceed through a time consuming procedure to end the obstruction.  The votes to end debate and on her confirmation were both 99 to zero.  That nomination had been reported in October.  So after more than four months of stalling, there was no justification, explanation or basis for the delay.  That is wrong.  That was the 17th filibuster of President Obama’s nominations.

The 18 judicial nominees awaiting Senate consideration are: Jane Stranch of Tennessee, nominated to the Sixth Circuit; Judge Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Judge Denny Chin of New York, nominated to the Second Circuit; Justice Rogeriee Thompson of Rhode Island, nominated to the First Circuit; Judge James Wynn of North Carolina, nominated to the Fourth Circuit; Judge Albert Diaz of North Carolina, nominated to the Fourth Circuit; Judge Edward Chen, nominated to the Northern District of California; Justice Louis Butler, nominated to the Western District of Wisconsin; Nancy Freudenthal, nominated to the District of Wyoming; Denzil Marshall, nominated to the Eastern District of Arkansas; Benita Pearson, nominated to the Northern District of Ohio; Timothy Black, nominated to the Southern District of Ohio; Gloria M. Navarro, nominated to the District of Nevada; Audrey G. Fleissig, nominated to the Eastern District of Missouri; Lucy H. Koh, nominated to the Northern District of California; Jon E. DeGuilio, nominated to  the Northern District of Indiana; Tanya Walton Pratt, nominated to the Southern District of Indiana; and Jane Magnus-Stinson, nominated to the Southern District of Indiana.  Twelve of the 18 were reported from the Senate Judiciary Committee without opposition; one had a single negative vote.  The stalling and obstruction should end and these nominations should be considered by the Senate and voted upon without further delay.  When they are, they, too, will be confirmed overwhelmingly.

I also want to highlight my concern about the new standard the Republican minority is applying to many of President Obama’s district court nominees.  Democrats never used this standard with President Bush’s nominees, whether we were in the majority or the minority.  In eight years, the Judiciary Committee reported only a single Bush district court nomination by a party-line vote.   That was the controversial nomination of Leon Holmes, who was opposed not because of some litmus test, but because of his strident, intemperate, and insensitive public statements over the years.  During President Obama’s short time in office, not one, not two, but three district court nominees have been reported on a party-line vote as Senate Republicans look for any reason to oppose every nomination.  I hope this new standard does not become the rule for Senate Republicans.

Of the 17 Federal circuit and district court judges confirmed, 14 have been confirmed unanimously.  That is right.  The delay and obstruction is so baseless that when votes are finally taken, they are overwhelmingly in favor and most often unanimous.  There have been only a handful of votes cast against just three of President Obama's nominees to the Federal circuit and district courts.  One of those, Judge Gerry Lynch of the Second Circuit, garnered only three negative votes, and 94 votes in favor.  Judge Andre Davis of Maryland was stalled for months and then confirmed with 72 votes in favor.  Judge David Hamilton was filibustered in a failed effort to prevent an up or down vote.

So why all the obstruction and delay?  It is part of a partisan pattern.  Even when they cannot say “no,” Republicans nonetheless demand that the Senate go slow.  The practice is continuing.  There have already been 17 filibusters of President Obama’s nominees.  That is the same number of Federal circuit and district nominees the Senate has confirmed during the entirety of the Obama administration.  And that comparison does not include the many other nominees who were delayed or who are being denied up or down votes by Senate Republicans refusing to agree to time agreements to consider even noncontroversial nominees.

I urge Senate Republicans to reconsider their destructive strategy and to work with us to provide final consideration without further delay to the 18 judicial nominees on the Senate Executive Calendar awaiting final action.  We can make real progress if they will join with us and we work together.

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