12.01.10

Leahy: Senate Must Act On Judicial Nominations

WASHINGTON (Wednesday, Dec. 1, 2010) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke on the Senate floor today, again urging the Senate to act on more than 30 judicial nominations pending before the full Senate.  The Judiciary Committee Wednesday morning voted to advance another 11 judicial nominations – 10 of them unanimously – to the full Senate. 

There are now 34 judicial nominations awaiting final votes by the full Senate, including 26 nominations that received unanimous support from the Judiciary Committee.

“The across the board stalling of judicial nominations continues, with many noncontroversial nominations being delayed and obstructed for no good reason,” said Leahy.  “The vast majority of the President’s judicial nominees are consensus nominees and should be confirmed by large bipartisan majorities. These are well-qualified nominees with the support of their home state Senators, both Republicans and Democrats.”

Leahy continued, “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.”

During the first Congress of the Bush administration, the Senate Judiciary Committee, led by Leahy, reported 100 judicial nominations to the full Senate for consideration.  The Senate confirmed all 100 of the nominations, including 20 during the lame duck session in 2002.  The Judiciary Committee this Congress has advanced 75 judicial nominations to the full Senate, but only 41 have received votes.  The last confirmation of a judicial nominee was September 13.  Nominations reported as long ago as January 28 have been stalled on the Senate’s calendar.

Vacancies on the federal judiciary have swelled to 110, a more than 100 percent increase since the start of the Obama administration.  Among the pending vacancies are 50 that have been designated as judicial emergencies by the Administrative Office of the U.S. Courts.   Senate Republicans have objected to requests from Senate Democrats for time agreements to debate and vote on nominations.  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
December 1, 2010

 

To read Senator Leahy’s full statement for the record, click here.

As Prepared

Two weeks ago, before the Thanksgiving Day recess, I again urged Republicans and Democrats in the Senate to come together and take action to begin to end the vacancy crisis that is threatening our Federal courts.  My call was not extreme nor radical nor partisan.  I asked only that Senators follow the Golden Rule.  Regrettably that did not happen.  That is too bad. 

There are now 38 judicial nominees being delayed who could be confirmed before we adjourn, 38 judicial nominees who have had their hearings and whose qualifications are well established.   

Two weeks ago, I asked the Republican leadership to treat this President’s nominees as they would have those of a Republican President.  I asked for nothing more than that we move forward together in the spirit that we teach our children from a young age by referring to a nearly universal rule of behavior that extends across most major religions and ethical behavior systems.

I urge adherence to the Golden Rule as a way to look forward and make progress.  I had hoped that we could remember our shared values.  That simple step would help us return to our Senate traditions and allow the Senate better to fulfill its responsibilities to the American people and the Federal judiciary. 

Instead, the across the board stalling of judicial nominations that I have been trying to end continues, with many noncontroversial nominations being delayed and obstructed for no good reason.   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 merely follow the Golden Rule, that would have happened.

As of today, there are 110 vacancies on the Federal courts around the country, 50 of them are for vacancies deemed judicial emergencies by the Administrative Office of the U.S. Courts.  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 judiciary to do its work.  Accordingly, the Federal judiciary is currently more than 180 judges short of those needed. 

The vast majority of the President’s judicial nominees are consensus nominees and should be confirmed by large bipartisan majorities. These are well-qualified nominees with the support of their home state Senators, both Republicans and Democrats.  I have not proceeded in the Judiciary Committee with a single nominee who was not supported by both home state Senators and I have worked with all Republican Senators to ensure that they were included in the process.  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, as have I as Chairman. 

Regrettably, despite our efforts and the President’s selection of outstanding nominees, the Senate is not being allowed to promptly consider 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.  What is happening is that judicial confirmations are being stalled virtually across the board. 

Justice Anthony Kennedy spoke to the Ninth Circuit Judicial 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.” 

Many of these nominees could have been considered and confirmed before the August recess.  Twenty three of them could have been considered and confirmed before the October recess.  They could and should have been confirmed before the Thanksgiving 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 nominees 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.” 

The Senate should 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 nearly 110 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.  At the end of 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.  There are 34 judicial nominations ready for Senate consideration and another four noncontroversial nominations on the Committee’s business agenda.  That is 38 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 almost 80. 

The bottom line is that the Senate has been allowed to consider and confirm less than half of the Federal circuit and district court nominees we proceeded to confirm during President Bush’s first two years.  Forty-one confirmations does not equal or exceed the 100 confirmations we achieved during the first two years of the Bush administration.  For that matter, the 75 Federal circuit and district court nominees voted on and favorably reported by the Senate Judiciary Committee does not equal the 100 we reported out in less time during the Bush administration. 

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, near 110, more than 10 percent.

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