11.21.13

Leahy Supports Change In Senate Rules To Address Unprecedented Filibusters

“As a result of Republican obstruction of nominees, the Senate has failed to do its job for the courts and for the American people”

U.S. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Thursday voted in favor of making changes to the Senate rules to overcome Republican abuse of filibuster rules and ensure the Senate’s ability to confirm qualified nominees to judicial and executive posts. Leahy, the President Pro Tempore and the Senate’s longest-serving member, presided over the series of procedural votes.

In recent weeks, Senate Republicans have blocked three highly qualified nominees to serve on the D.C. Circuit.  Since 2009, 14 circuit court nominees have been filibustered, and Senate Republicans have forced cloture to end filibusters on nearly three dozen of President Obama’s judicial nominees.  Meanwhile, federal judicial vacancies have consistently hovered around 90.  The obstruction, Leahy said, “is damaging our ability to fulfill the Senate’s unique constitutional responsibility of advice and consent to ensure that the judicial branch has the judges it needs to do its job.”

“I have always believed in the Senate’s unique protection of the minority party, even when Democrats held a majority in the Senate,” Leahy said.  “When the minority has stood in the way of progress, I have defended their rights and held to my belief that the best traditions of the Senate would win out; that the 100 of us who stand in the shoes of over 310 million Americans would do the right thing.  That is why I have always looked skeptically at efforts to change the Senate rules.”

Today, Leahy said, the Senate “is faced with what to do to overcome this abuse and what action we should take to restore this body’s ability to fulfill its constitutional duties and do its work for the American people.”  

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Abuse of Filibuster and Senate Rules by Senate Republicans
November 21, 2103

[Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) delivered the following floor statement Thursday after the Senate moved to make changes to the rules in order to consider qualified nominees to fill judicial vacancies and executive posts. Leahy, the President Pro Tempore and the Senate’s longest-serving member, spoke in support of these changes and presided over the series of procedural votes earlier in the day.]

During my nearly four decades serving in the United States Senate, I have served with Democratic majorities and Republican majorities, through both Republican and Democratic administrations.  Though there have been moments of crisis in the past when I worried that our political differences risked outweighing the Senate’s common responsibility, we have always been able to steer our way out of trouble.  Majorities of both parties have come and gone, but I have never before lost faith in our ability to set aside our divisions and come together for the sake of the Nation.

I have always believed in the Senate’s unique protection of the minority party, even when Democrats held a majority in the Senate.  When the minority has stood in the way of progress, I have defended their rights and held to my belief that the best traditions of the Senate would win out; that the 100 of us who stand in the shoes of over 310 million Americans would do the right thing.  That is why I have always looked skeptically at efforts to change the Senate rules.

Yet over the past five years, Senate Republicans have changed the tradition of the Senate with an escalating obstruction of nominations.  Through this obstruction, Senate Republicans have crossed the line from use of the Senate rules to abuse of the rules.  This same abuse recently, and needlessly, shut down our government. It also poses a real threat to the independent, judicial branch of government.

As Chairman of the Judiciary Com­mittee, I am especially concerned with how Republican obstruction is damaging our ability to fulfill the Senate’s unique constitutional responsibility of advice and consent to ensure that the judicial branch has the judges it needs to do its job. Unfortunately, Senate Republicans have abandoned this responsibility, using unprecedented filibusters to delay and obstruct President Obama from appointing to the Federal bench even nominations that enjoy bipartisan support.  Senate Republicans have forced cloture to end filibusters on 34 nominees, nearly twice as many nominees than required cloture during President Bush’s 8 years in office.  Almost all of these nominees were, by any standard, noncontroversial and ultimately were confirmed overwhelmingly. Republican obstruction has left the federal judiciary often with 90 or more vacancies over the past 5 years.

Take for example the Republican filibuster of a judicial nominee to the Tenth Circuit, Robert Bacharach last year, despite the support of the Republican Senators from Oklahoma.  This marked a new and damaging milestone.  Never before had the Senate filibustered and refused to vote on a judicial nominee with such strong bipartisan support, and who was voted out of the Judiciary Committee with virtually unanimous support.   Republicans continued to block Senate action on the Bacharach nomination through the end of last Congress and forced his nomination to be returned without action to the President.  There is no good reason—none—why Robert Bacharach was not confirmed to serve the people of Oklahoma and the Tenth Circuit as a Federal judge last year.  He was finally confirmed this year unanimously.

Republicans last year also filibustered William Kayatta, another consensus circuit nominee who had the support of both Republican home state Senators.  Like Judge Bacharach, Mr. Kayatta received the ABA Standing Committee on the Federal judiciary’s highest possible rating and had strong bipartisan support and unimpeachable credentials. The same also applies to Richard Taranto, whose nomination was returned to the President at the end of last year after Republicans blocked action on his nomination to a vacancy on the Federal Circuit for more than eight months, despite no opposition in the Senate and despite the support of both Paul Clement and the late Robert Bork.  Neither of these nominees faced any real opposition.  Yet Republicans stalled both of them through the end of last Congress and forced their nomination to be returned without action to the President.  They were both confirmed this year with overwhelming bipartisan support.   

Senate Republicans used to insist that the filibustering of judicial nominations was unconstitutional.  The Constitution has not changed, but as soon as President Obama took office Republicans reversed course and filibustered his very first judicial nomination.  There are the examples of Mr. Bacharach and Mr. Kayatta, and David Hamilton before that.  Judge Hamilton of Indiana was a widely-respected 15-year veteran of the Federal bench nominated to the Seventh Circuit.  President Obama reached out to the longest-serving Republican in the Senate, Senator Dick Lugar, to select a nominee he supported.  Yet, Senate Republicans filibustered his nomination, requiring a cloture vote before his nomination could be confirmed after a delay of seven months.

Senate Republicans have obstructed and delayed nearly every circuit court nominee of this President, filibustering 14 of them.  They abused the Senate’s practices and procedures to delay confirmation of Judge Albert Diaz of North Carolina to the Fourth Circuit for 11 months, before he was confirmed by voice vote.  They delayed confirmation of Judge Jane Stranch of Tennessee to the Sixth Circuit for 10 months before she was confirmed 71-21.  Senate Republicans used procedural tactics to delay for months the Senate confirmation of nominations with the strong support of Republican home state Senators—including Judge Scott Matheson of Utah to the Tenth Circuit; Judge James Wynn, Jr. of North Carolina to the Fourth Circuit; Judge Henry Floyd of South Carolina to the Fourth Circuit; Judge Adalberto Jordan of Florida to the Eleventh Circuit; Judge Beverly Martin of Georgia to the Eleventh Circuit; Judge Mary Murguia of Arizona to the Ninth Circuit; Judge Bernice Donald of Tennessee to the Sixth Circuit; Judge Thomas Vanaskie of Pennsylvania to the Third Circuit; Judge Andrew Hurwitz of Arizona to the Ninth Circuit; Judge Morgan Christen of Alaska to the Ninth Circuit; and Judge Stephen Higginson of Louisiana to the Fifth Circuit.

The results are clear and devastating.  The nonpartisan Congressional Research Service has reported that the median time circuit nominees had to wait before a Senate vote has skyrocketed from 18 days for President Bush’s nominees during his first term in office to 132 days for President Obama’s nominees during his first term in office.  This is the result of Republican obstruction and abuse of Senate rules.  In most cases, Senate Republicans have delayed and stalled without explanation.  How do you explain the filibuster of the nomination of Judge Barbara Keenan of Virginia to the Fourth Circuit who was ultimately confirmed 99-0?  And how else do you explain the needless obstruction of Judge Denny Chin of New York to the Second Circuit, who was filibustered for four months before he was confirmed 98-0? 

In 2012, Senate Republicans refused to consent to a vote on a single circuit court nominee until the Majority leader filed cloture, even for nominees with home state Republican support like Adalberto Jordan of Florida — strongly supported by Senator Rubio — and Andrew Hurwitz of Arizona, strongly supported by Senator Kyl.  They blocked the Senate from voting on a single circuit court nominee nominated by President Obama last year.  Since 1980, the only other presidential election year in which there were no circuit nominees confirmed who was nominated that same year was in 1996, when Senate Republicans shut down the process against President Clinton’s circuit nominees.

The level of partisanship and obstruction by Senate Republicans has become so extreme that for the first time in history it has extended to the Federal trial courts.  Until 2009, Senators deferred to the President and to home state Senators on district court nominees.  During the eight years that George W. Bush served as President, only five of his district court nominees received any opposition on the floor.  In just 5 years, Senate Republicans have voted against 42 of President Obama’s district court nominees, and the Majority Leader has been forced to file cloture on 20 of them.

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 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 been confirmed quickly with that support.  Never before in the Senate’s history have we seen district court nominees blocked for months and opposed for no good reason.  Many are needlessly stalled and then confirmed virtually unanimously with no explanation for the obstruction.  Senate Republicans have politicized even these traditionally non-partisan positions. 

As Chairman of the Judiciary Committee I have always acted fairly and consistently whether the president has been a Democrat or a Republican.  I have not filibustered nominees with bipartisan support.  I have steadfastly protected the rights of the minority and I have done so despite criticism from Democrats.  I have only proceeded with judicial nominations supported by both home state Senators.  I will put my record of consistent fairness up against that of any chairman and never acted as some Republican chairmen have acted in blatantly disregarding evenhanded practices to ram through the ideological nominations of President George W. Bush.

Regrettably, the answer to my fairness and to my commitment to protecting the rights of the minority has been unprecedented and meritless obstruction.  Even though President Obama has nominated qualified, mainstream lawyers, Republicans in the Senate have done away with regular order, imposing unnecessary and damaging delays.  Until 2009, judicial nominees reported by the Judiciary Committee with bipartisan were generally confirmed quickly.  That has changed, with district nominations taking over four times longer and circuit court nominees over seven times longer than it took to confirm them during the Bush administration.  Until 2009, we observed regular order and usually confirmed four to six nominees per week, and we cleared the Senate Executive Calendar before long recesses.  Since then, Senate Republicans have refused to clear the calendar and slowed us down to a snail’s pace.  Until 2009, if a nominee was filibustered, it was almost always because of a substantive issue with the nominee’s record.  We know what has happened since 2009—Republicans have required cloture to consider even those nominees later confirmed unanimously. 

This obstruction was not merely a product of extreme partisanship in a presidential election year—it has been a constant and across the board practice since President Obama took office.  At the end of each calendar year, Senate Republicans have deliberately refused to vote on several judicial nominees just to take up more time the following year.  At the end of 2009 Republicans denied 10 nominations pending on the Executive Calendar a vote. The following year, it took 9 months for the Senate to take action on 8 of them.  At the end of 2010 and 2011, Senate Republicans left 19 nominations on the Senate Executive Calendar, taking up nearly half the following year for the Senate to confirm them.  Last year they blocked 11 judicial nominees from votes, and refused to expedite consideration of others who already had hearings.

The effects of this obstruction have been clear.  When the Senate adjourned last year, Senate Republicans had blocked more than 40 of President Obama’s circuit and district nominees from being confirmed in his first term.  That obstruction has led to a damagingly high level of judicial vacancies persisting for over four years.    

This year, Senate Republicans reached a new depth of pure partisanship.  They have decided to shut down the confirmation process altogether for an entire court — the U.S. Court of Appeals for the D.C. Circuit, even though there are three vacancies on that court.  Senate Republicans attempt to ­justify their opposition to filling any of the three vacancies on the D.C. Circuit with an argument that the court's caseload does not warrant the appointments.

We all know that this ploy is a transparent attempt to prevent a Democratic president from appointing judges to this important court.  In 2003, the Senate unanimously confirmed John Roberts by voice vote to be the 9th judge on the D.C. Circuit — at a time when its caseload was lower than it is today – and, in fact, his confirmation marked the lowest caseload level per judge on the D.C. Circuit in 20 years.  Not a single Senate Republican raised any concerns about whether the caseload warranted his confirmation, and during the Bush administration, they voted to confirm 4 judges the D.C. Circuit – giving the court a total of 11 judges in active service.  Today there are only eight judges on the court.

We also should not be comparing the D.C. Circuit’s caseload with that of other circuits, as Republicans have recently done.  The D.C. Circuit is often understood to be the second most important court in the land because of the complex administrative law cases that it handles.  The court reviews complicated decisions and rulemakings of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11, 2001.  Comparing the D.C. Circuit’s caseload to other circuits is a false comparison, and those who are attempting to make this comparison are not being fully forthcoming with the American public.  Years ago, one of the senior most Republican Senators on the Judiciary Committee said this:  “[C]omparing workloads in the D.C. Circuit to that of other circuits is, to a large extent, a pointless exercise.  There is little dispute that the D.C. Circuit’s docket is, by far, the most complex and time consuming in the Nation.”  Now, however, that same Senator has engaged in the precise pointless exercise he once railed against.

This is an unprecedented level of obstruction.  I have seen substantive arguments mounted against judicial nominees, but I have never seen a full blockade against every single nominee to a particular court, regardless of the individual’s qualifications.  Republicans attempted to take this type of hardline stance with certain executive positions last year and earlier this year, when they refused to allow a vote for any nominee to the Consumer Financial Protection Bureau and the National Labor Relations Board.  Rather than representing substantive opposition to these individual nominees, this obstruction was a partisan attempt to sabotage and eviscerate these agencies which protect consumers and American workers.  I have heard some call this tactic “nullification.”  It is as if the Republicans have decided that the President did not actually win the election in 2008, and was not re-elected in 2012.

Senate Republicans backed off this radical and unprecedented hardline stance on executive nominees earlier this year, but they have shown no signs of doing the same with the D.C. Circuit.  And it is not for lack of qualified nominees.  This year, Senate Republicans filibustered the nominations of three exceptionally qualified women: Caitlin Halligan, Patricia Millett and Nina Pillard.  Earlier this week Republicans filibustered another stellar nominee to this court, Judge Robert Wilkins.

Such tactics are not just bad for the Senate, they are a disaster for our Nation’s overburdened courts.  Persistent vacancies force fewer judges to take on growing caseloads, and make it harder for Americans to have access to justice.  While they have delayed and obstructed, the number of judicial vacancies has remained historically high and it has become more difficult for our courts to provide speedy, quality justice for the American people.  In short, as a result of Republican obstruction of nominees, the Senate has failed to do its job for the courts and for the American people, and failed to live up to its constitutional responsibilities.

The Senate today is faced with what to do to overcome this abuse and what action we should take to restore this body’s ability to fulfill its constitutional duties and do its work for the American people.  

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