Leahy: Pattern Of Obstruction And Filibusters Hurts Our Federal Courts

[Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke Tuesday on the Senate floor about the obstruction of judicial nominations pending before the full Senate.  On Monday, Majority Leader Harry Reid filed cloture on 17 judicial nominations to fill vacancies on federal district courts across the country, some of which were reported by the Judiciary Committee with unanimous support in October.  The Senate is expected to turn to the nominations on Wednesday.]


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

Chairman, Senate Judiciary Committee,

On Ending the Republican Filibuster of 17 Judicial Nominations

March 13, 2012

Yesterday, the Majority Leader took serious action to try to bring to an end the across the board Republican filibusters of President Obama’s judicial nominations.  By filing for cloture, the Leader seeks to secure Senate votes for the 17 highly-qualified Federal district court nominations favorably reported by the Judiciary Committee who are being blocked by Senate Republicans.  I hope that Republicans and Democrats join together to end these damaging filibusters.  We must work together to ensure that the Federal courts have the judges they need to provide justice for all Americans without needless delay.  

Federal district court judges are the trial court judges who hear cases from litigants across the country and preside over Federal criminal trials, applying the law to facts and helping settle legal disputes.   They handle the vast majority of the caseload of the Federal courts and are critical to making sure our Federal courts remain available to provide a fair hearing for all Americans.  Nominations to fill these critical positions, whether made by a Democratic or Republican President, have always been considered with deference to the home state Senators who know the nominees and their states best, and have always been confirmed quickly with that support. Never before in 37 years I have been in the Senate have I seen anything like what is currently happening.  Never before in the Senate’s history have we seen these district court nominees blocked for months as we have seen since President Obama’s election. 

Consensus nominations like these to Federal district courts have nearly always been taken up and confirmed by the Senate within days or weeks, whether nominated by a Democratic or a Republican President.  Certainly that was the approach taken by Senate Democrats when President Bush sent us consensus nominees.  That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades and how we confirmed 205 of President Bush’s judicial nominees in his first term. 

Yet, in an almost complete reversal of this approach, Senate Republicans have ensured that nominees who in the past would have been confirmed promptly by the Senate are now blocked for months.  An unprecedented number of President Obama’s highly-qualified district court nominees have been targeted for opposition and obstruction while extreme outside groups tar their records and reputations with invented controversies.  This is unprecedented.  It comes at a cost to our Federal courts and Americans seeking justice before them.

Two weeks ago at a meeting of the Judiciary Committee, the Senator from Utah conceded that a “new standard” is being applied to President Obama’s nominations.  He was only saying out loud what has been apparent from the start of President Obama's term—that Republican Senators have applied a different and unfair standard to President Obama's judicial nominees.  Looking at nearly any measure it is clear that this “new standard” has meant that President Obama’s nominees are being treated differently than those of any President, Democratic or Republican, before him.  President Obama’s district court nominees have been forced to wait more than four times as long to be confirmed by the Senate as President Bush’s district court nominees at this point in his first term, taking an average of 93 days after being voted on by the Senate Judiciary Committee. 

When I hear Republican Senators claim there is no obstruction and that there is no reason for the Majority Leader to push for votes on these nominations, I wonder if they have looked even at the Senate’s recent history.  In President Bush’s first term, 57 of his District Court nominations were confirmed within one week of being favorably reported by the Judiciary Committee.  In stark contrast, only two of President Obama’s District Court nominations have been confirmed within a week of first being reported, less than one-twenty-fifth the number of President Bush’s.  More than half of the nominations on which the Leader has now filed cloture have been pending since last year, many months, not days.  This must be the new standard the Senator from Utah has said Republicans are using for President Obama’s nominations.

Indeed, 10 of the nominations on which the Majority Leader has been required to file cloture in order to end the Republican filibuster and get a vote have been awaiting a vote since last year.  Nine of them had the support of every Republican as well as every Democratic Senator serving on the Judiciary Committee.  They all should have been considered and confirmed last year.

I understand and share the Majority Leader’s frustration.  He has been unable to obtain the usual cooperation from the minority to schedule debates and votes on these widely supported, consensus nominees.  I regret that the Majority Leader has been forced to take this action but the millions of Americans seeking justice in their courts should not be forced to wait any longer. 

To understand how unusual and wrongheaded this is, consider the following:  Republicans are opposing judicial nominees they support. They are stalling Senate action for weeks and month on judicial nominees who they do not oppose and who they vote to confirm once their filibuster can be ended and the vote scheduled.  That is what happened after a four-month filibuster when the Senate finally voted on the nomination of Judge Barbara Keenan. That is what happened when after a five-month filibuster, the Senate finally voted on the nomination of Judge Denny Chin.  Once the Republican filibusters were ended, they were confirmed unanimously.  That is what happened after an eleven-month delay before confirmation of Judge Albert Diaz of North Carolina. That is what happened after seven-month delays before confirmations of Judge Kimberly Mueller of California, Judge Catherine Eagles of North Carolina, Judge John Gibney, Jr. of Virginia, and Judge Ray Lohier of New York.  That is what happened after six-month delays before the confirmations of Judge James Bredar and Judge Ellen Hollander of Maryland; Judge Susan Nelson of Minnesota, Judge Scott Matheson of Utah and Judge James Wynn, Jr. of North Carolina.  That is what happened after five-month delays before confirmations of Judge Nannette Brown of Louisiana, Judge Nancy Torresen of Maine, Judge William Kuntz of New York, and Judge Henry Floyd of South Carolina. This is what happened after four-month delays before the confirmations of Judge Edmond Chang of Illinois, Judge Leslie Kobayashi of Hawaii, Judge Denise Casper of Massachusetts, Judge Carlton Reeves of Mississippi, Judge John Ross of Missouri, Judge Timothy Cain of South Carolina, Judge Marina Marmolejo of Texas, Judge Beverly Martin of Georgia, Judge Joseph Greenaway of New Jersey, Judge Mary Murguia of Arizona, and Judge Chris Droney of Connecticut. 

So, too, I expect the district court nominee to fill a judicial emergency vacancy in Utah, supported by Senator Hatch, will not be controversial once the vote takes place. The district court nominees to fill judicial emergency vacancies in Texas, supported by Senator Hutchison and Senator Cornyn, should easily be confirmed.  The nominees to judicial emergency vacancies in Illinois supported by Senator Kirk, should not be controversial.  The district court nominee in Louisiana supported by Senator Vitter, should not be controversial.  The district court nominee in Missouri supported by Senator Blunt, should not be controversial.  The district court nominee in Arkansas supported by Senator Boozman, should not be controversial.  The district court nominee in Massachusetts supported by Senator Brown, should not be controversial.  The district court nominee in South Carolina supported by Senator Graham, should not be controversial.  The district court nominee in Ohio supported by Senator Portman, should not be controversial. 

Senate Democrats never applied this standard to President Bush's district court nominees, whether we were in the majority or the minority. During his eight years in office, President Bush saw only five of his district court nominees have any opposition on the floor and that opposition had to do with doubts about those nominees’ suitability to be a Federal judges.  After only three years, 19 of President Obama’s district court nominees have already received opposition.  Even though President Obama has worked with Republican and Democratic home state Senators to identify highly-qualified, consensus nominees, his district court nominees have already received more than five times as many no votes in three years as President Bush’s district court nominees did in his eight years over his two terms.  This is further proof of the Republicans’ new standard.

It is no accident that one out of every 10 Federal judgeships remains vacant in the fourth year of President Obama’s first term.  It is not happenstance that judicial vacancies are nearly double what they were at this point in President Bush’s first term.  The extended crisis in judicial vacancies is the result of deliberate obstruction and delays by Senate Republicans. 

Only a few years after Republican Senators insisted that filibusters of President Bush’s judicial nominees were unconstitutional, they reversed course and filibustered President Obama’s very first judicial nomination, that of Judge David Hamilton of Indiana, a widely- respected 15-year veteran of the Federal bench who had the support of the most senior and longest-serving Republican in the Senate, Senator Lugar.  The Senate rejected that filibuster and Judge Hamilton was confirmed, but the pattern of partisan obstruction of President Obama’s judicial nominees was set from the very start. 

At the end of each of the last two years, the Senate Republican leadership continued this obstruction by ignoring long-established precedent and refusing to agree to schedule votes on dozens of consensus judicial nominees before the December recess.   Last year it took us until June to confirm nominees who should have been confirmed in 2010.  This year we have had to end two more of the nine Republican filibusters of President Obama’s judicial nominations to confirm nominees who should have been confirmed the year before and fully a dozen judicial nominees from last year remain to be considered.  And here we are in the middle of March, having to fight to hold votes on 10 district court nominees who should have been confirmed last year. 

This obstruction is purposeful and it is damaging.  The people who bear the brunt of this Republican obstruction are the American people.  The result of the Senate Republicans’ obstruction is that the ability of our Federal courts to provide justice to Americans around the country is compromised.  Millions of Americans, who are in overburdened districts and circuits, experience unnecessary delays in having their cases resolved.  Nearly one hundred and sixty million Americans live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans would just agree to vote on the nominations now pending on the Senate calendar.  It is wrong to delay votes on qualified, consensus judicial nominees. 

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court.  It is unacceptable for hardworking Americans who turn to their courts for justice to suffer unnecessary delays.  When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait three years before a judge hears the case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute.

When Senate Democrats opposed some of President Bush’s most ideological nominees, we did so openly, saying why we opposed them.  At the same time, we continued to move consensus nominees quickly so they could begin serving the American people.  That is what I did as Chairman for 17 months during the first two years of the Bush administration and how we were able to lower judicial vacancies by confirming 100 of his circuit and district court nominees.  That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades, half of what they are now.  That is how we had already confirmed 172 of President Bush’s circuit and district nominees by this point in his first term, as compared to only 131 of President Obama’s and being 40 confirmations and nine months behind the pace we set then.  We did so because we put the needs of the American people before partisanship and obstruction.

We had another discussion of these matters in the Senate Judiciary Committee two weeks ago.  Senator Coburn said that this is “exactly what makes Americans sick of what we are doing.”  I agree.  I have been saying for some time that this needless obstruction is what has driven approval ratings of Congress down to single digits.  The Senator from Oklahoma observed that it would behoove us all to get back to the days when these lower court judicial nominations were not areas of partisan conflict.  I agree.  I have tried to do my part in that regard by treating Republican Senators fairly and protecting their rights.  President Obama has done his part by consulting with Republican home state Senators and selecting moderate, well-qualified nominees.  It is time for Senate Republicans to do their part and not abuse their rights under our Senate rules and procedures.  It is time for them to end the partisan stalling.  It is time for Senate Republicans to agree to schedule votes on these long-delayed and much-needed judges.

Once we have overcome these unprecedented filibusters of President Obama’s district court nominations, I hope that it will not take more delays and more cloture petitions to end the filibusters against the five outstanding nominees by President Obama to fill vacancies on our Federal circuit courts.  Two delayed from last year are outstanding women:  Stephanie Dawn Thacker of West Virginia, nominated to the Fourth Circuit, and Judge Jacqueline Nguyen of California, nominated to fill one of the many judicial emergency vacancies on the Ninth Circuit.  Ms. Thacker, an experienced litigator and prosecutor, has the strong support of her home state Senators, Senators Rockefeller and Manchin.  Judge Nguyen, whose family fled to the United States in 1975 after the fall of South Vietnam, was confirmed unanimously to the district court in 2009 and would become the first Asian Pacific American woman to serve on a U.S. Court of Appeals.  Last week, The Sacramento Bee ran an editorial about Judge Nguyen’s nomination that noted that “for those of us in the real world – particularly those seeking justice in the federal courts – it would be far, far better if these qualified jurists could get to work.”  I ask consent that the article appear at the conclusion of my remarks.  Both Ms. Thacker and Judge Nguyen were reported unanimously by the Judiciary Committee last year and both should be considered and confirmed by the Senate without additional damaging delays.

I hope that Republicans and Democrats can join together to put an end to this damaging pattern of obstruction and filibusters.  We must work together ease the burdens on our Federal courts that risk delaying justice for the American people.  

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