06.02.10

Leahy Presses Senate Leaders To Schedule Votes On Pending Judicial Nominations

The Chairman of the Senate Judiciary Committee Wednesday sent a letter to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.), urging them to schedule votes on pending judicial nominations.  Senator Patrick Leahy (D-Vt.) has pressed for prompt Senate consideration of the more than two dozen judicial nominations that have been reported by the Judiciary Committee but not yet scheduled for a final vote. 

Despite efforts from Senate Democrats to secure time agreements to debate and vote on pending nominees, Senate Republicans have refused to advance dozens of nominations, including 26 judicial nominations, which were reported favorably by the Judiciary Committee as long ago as November.

“As the Senate recessed for Memorial Day, there remained a backlog of 26 judicial nominees awaiting final Senate action,” Leahy wrote.  “Nineteen of the 26 were reported by the Judiciary Committee without a single negative vote from any Republican or any Democratic Senator on the Committee.  In my view the cause of that backlog is Republican refusal to agree to consider these nominations in a timely fashion.”

The Senate has confirmed just 25 federal district and circuit court nominations this Congress, compared to 57 nominations in the same period during the Bush administration, when the Democratic Senate Majority routinely agreed to prompt votes on pending nominees.  Twenty-one of the nominations confirmed this year received unanimous votes, yet confirmed circuit court nominations waited more than 120 days for a final vote, and confirmed district court nominations waited more than 50 days for a vote.  By contrast, circuit and district court nominees during the first Congress of the Bush administration waited roughly 25 days to be confirmed after being reported by the Committee. 

“As I have consistently urged since last December, the Senate should vote on these nominations without further obstruction or delay,” Leahy continued.  “The Republican leadership must work with the Majority Leader to schedule immediate votes on consensus nominations – many of which I expect will be confirmed unanimously – and consent to time agreements on those on which debate is requested.  If there are judicial nominations that Republicans truly wish to filibuster -- after arguing during the Bush administration that such action would be unconstitutional and wrong -- then they should so indicate to allow the Majority Leader to seek cloture to end the filibuster.” 

As chairman of the Judiciary Committee from June 2001 through 2002, Leahy worked to confirm 100 of President Bush’s judicial nominees.  In contrast, Senate Republicans last year allowed votes on just 12 district and circuit court nominations, the lowest confirmation total in more than 50 years.

The full text of Leahy’s letter follows.  A PDF is available online.  For information about pending nominations, visit the Senate Judiciary Committee website.

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June 2, 2010

The Honorable Harry Reid
Majority Leader
United States Senate
S-221
The Capitol
Washington, D.C. 20510

The Honorable Mitch McConnell
Minority Leader
United States Senate
S-230
The Capitol
Washington, D.C. 20510

Dear Senate Leaders:

I was very disappointed that in his statement last Thursday evening about the lack of progress on filling judicial vacancies Senator McConnell left the impression that the halting pace of Senate consideration of President’s Obama’s judicial nominations is merely a “sequencing” of judicial nominations that “is acceptable to both sides.”  I do not think that is an accurate description of what has led to only 12 Federal circuit and district court nominees being considered all last year and only 13 so far this year.   

As you know, I have spoken to these matters a number of times over the last several months and have since last December been urging the Republican leadership to agree to consider and approve the noncontroversial nominees and enter into time agreements to debate those they believe require Senate discussion, but to end the obstruction and unnecessary delays.  

As the Senate recessed for Memorial Day, there remained a backlog of 26 judicial nominees awaiting final Senate action.  Nineteen of the 26 were reported by the Judiciary Committee without a single negative vote from any Republican or any Democratic Senator on the Committee.  In my view the cause of that backlog is Republican refusal to agree to consider these nominations in a timely fashion.  In addition, six of the seven Republicans on the Committee voted in favor of Judge Wynn to the Fourth Circuit, and nearly half the Republicans on the Committee supported Jane Stranch’s nomination to the Fourth Circuit.  I have been supporting Senator Alexander’s efforts to get Senate consideration of the Stranch nomination for months.  The same is true of the two North Carolina nominees to the Fourth Circuit supported by Senators Hagan and Burr.  It is Republican refusal to enter into time agreements on these nominations that has preventing their consideration and confirmation by the Senate.  In all, 26 judicial nominations are currently being stalling from consideration and confirmation of which only three have been scheduled for consideration next week. 

Senate Republicans have only allowed the Senate to consider 25 Federal circuit and district court nominations during the entire Obama presidency.  The dozen considered in 2009 was the lowest confirmation total in more than 50 years.  The stalling and obstruction is unprecedented. 

The Senate is well behind the pace I set for President Bush’s judicial nominees in the second half of 2001 and through 2002.  By this date in President Bush’s presidency, the Senate had confirmed 57 of his judicial nominees.  Despite the fact that President Obama began sending us judicial nominations two months earlier than President Bush had, the Senate has only confirmed 25 of his Federal circuit and district court nominees to date.  The comparison is 25 to 57—and this is while Federal judicial vacancies around the country remain over 100 with 40 of those vacancies categorized as “judicial emergency vacancies” by the Administrative Office of the United States Courts. 

During the 17 months that I chaired the Judiciary Committee during President Bush’s first two years in office, the Senate confirmed 100 of his judicial nominees.  Rather than continue that kind of cooperation, Senate Republicans have chosen to delay consideration of virtually every judicial nominee of President Obama’s.  Judge David Hamilton was unsuccessfully filibustered.  The Majority Leader was forced to file cloture to get votes on the nominations of Judge Barbara Keenan and Judge Denny Chin.  Both were then confirmed unanimously by the Senate. These are a few of the more than 20 nominations on which the Majority Leader has had to file cloture in order to secure a vote.

Before the Memorial Day recess in 2002, there were only six judicial nominations reported by the Senate Judiciary Committee left awaiting final consideration by the Senate and they had all been reported within the last week before the recess began.  They were each confirmed promptly in the June 2002 work period.  This year, by contrast, Senate Republicans have stalled nominations reported as long ago as last November and only one of the 26 was reported close to this recess.  More than two dozen judicial nominees have been languishing without final Senate action because of Republican obstruction.  This is not how the Senate should act, nor how the Senate has conducted its business in the past.  This is new and it is wrong.   

The judicial nominations on the Senate Executive Calendar number 26.  They were each considered and favorably reported by the Senate Judiciary Committee after a hearing.  They are each still awaiting final Senate action because the Republican leadership has refused for some time to agree to their consideration.  As I have consistently urged since last December, the Senate should vote on all of them without further obstruction or delay.  The way to do that is for the Republican leadership to work with the Majority Leader and agree to time agreements on those on which debate is requested.  If there are judicial nominations that Republicans truly wish to filibuster--  after arguing during the Bush administration that such action would be unconstitutional and wrong-- then they should so indicate and the Majority Leader can proceed to that matter and seek cloture to end the filibuster.   

I again urge the Republican leadership, as I have consistently since last December, to work with the Majority Leader to take up and confirm the judicial nominees that are not controversial and can be confirmed without further delay by voice vote or a roll call and to enter into time agreements on the others so that the Majority Leader can schedule their consideration by the Senate.

Sincerely,

PATRICK LEAHY

Chairman

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