12.11.12

Leahy: The Senate Must Consider All Pending Judicial Nominees

WASHINGTON –The Senate late Tuesday confirmed two long-pending district court nominees, while 13 additional district court nominees and four circuit court nominees await action before the end of the year. In a statement for the Congressional Record, Judiciary Committee Chairman Senator Patrick Leahy (D-Vt.) said the Senate must clear this needless backlog before the end of the year.

 “Both of these nominees were voted out of the Judiciary Committee by voice vote before the August recess and should have been confirmed months ago,” Leahy said of John Dowdell, nominated to a district court seat in Oklahoma and Jesus Bernal, nominated to a district court seat in California.  “These confirmations today will demonstrate that there was no good reason for the delay—just more partisan delay for delay’s sake.” 

Bernal’s confirmation fills one of 34 emergency vacancies throughout the country. Of the 13 pending district court nominees on the Senate calendar, 11 would fill emergency vacancy seats. The four circuit court nominees have been pending as far back as March, and two of those, William Kayatta of Maine and Robert Bacharach of Oklahoma, enjoy the support of their Republican home state Senators.

“With the American people’s reelection of President Obama there is no good purpose to be served by this further delay,” Leahy said.  “But Robert Bacharach and nearly a dozen judicial nominees, who could be confirmed and who would fill four circuit court vacancies and five additional judicial emergency vacancies, are being forced to wait until next year – or perhaps forever – by the Senate Republican leadership.”

A vast majority of the nominations pending on the calendar—13—were reported out of the Judiciary Committee before the August recess. According to the Congressional Research Service, no nominee with bipartisan support reported before the August break has ever been denied a vote during a lameduck session in the Senate. Leahy urged the Senate to follow in this bipartisan tradition and take up these qualified and long-stalled judicial nominees.

Leahy said: “That is our history and recent precedent.  Those who contend that judicial confirmation votes during lame duck sessions do not take place are wrong.  I have urged the Senate Republican leadership to reassess its damaging tactics, but apparently in vain.  Their new precedent is bad for the Senate, the Federal courts and, most importantly, for the American people.”

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Nominations Pending On The Senate Calendar

Patty Shwartz (3rd Circuit)

Reported on March 8, 2012

Richard Gary Taranto (Federal Circuit)

Reported on March 29, 2012

William J. Kayatta, Jr. (1st Circuit)

Reported on April 19, 2012

Robert E. Bacharach (10th Circuit)

Reported on June 7, 2012

Brian J. Davis* (MD FL)

Reported on June 21, 2012

Lorna G. Schofield (SD NY)

Reported on July 12, 2012

Frank Paul Geraci, Jr.* (WD NY) 

Reported on July 19, 2012

Fernando M. Olguin* (CD CA)

Reported on July 19, 2012

Matthew W. Brann* (MD PA) 

Reported on July 19, 2012

Malachy Edward Mannion* (MD PA) 

Reported on July 19, 2012

Thomas M. Durkin* (ND IL) 

Reported on August 2, 2012

William H. Orrick, III* (ND CA)

Reported on August 2, 2012

Jon. S Tigar* (ND CA)

Reported on August 2, 2012

Katherine Polk Failla (SD NY)

Reported on December 6, 2012

Troy L. Nunley* (ED CA)

Reported on December 6, 2012

Sheri Polster Chappell* (MD FL)

Reported on December 6, 2012

Pamela Ki Mai Chen* (ED NY)

Reported on December 6, 2012

Mark A. Barnett (CIT)

Reported on December 6, 2012

*Indicates this nominee will fill a Judicial Emergency

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Statement of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Confirmations of John Dowdell to the United States District Court for the Northern District of Oklahoma and Jesus Bernal to the United States District Court for the Central District of California

December 11, 2012

I want to begin by recognizing a significant achievement by the senior Senator from Iowa, our ranking Republican on the Judiciary Committee.  Today Senator Grassley has served for 31 years, 11 months and six days as a member of our Committee.  His tenure now exceeds that of our friend, former chairman, longtime member and current Vice President, Joe Biden.  Senator Grassley is now the sixth longest-serving member in the history of the Senate Judiciary Committee.  Senator Grassley and I know how the Committee should operate in its best traditions.  I will continue to work with him to achieve all we can for the American people. 

Today, the Senate will finally be allowed to vote on the nominations of Jesus Bernal to fill a judicial emergency vacancy on the U.S. District Court for the Central District of California and John Dowdell to fill a vacancy on the U.S. District Court for the Northern District of Oklahoma.  Both of these nominees were voted out of the Judiciary Committee by voice vote before the August recess and should have been confirmed months ago.  These confirmations today will demonstrate that there was no good reason for the delay—just more partisan delay for delay’s sake.  This unnecessary obstruction is particularly egregious in connection with Jesus Bernal’s nomination because it perpetuated a judicial emergency vacancy since the middle of July for no good reason and to the detriment of the people of Los Angeles and the Central District of California. 

Also disconcerting is the Senate Republicans’ continuing filibuster against another Oklahoma nominee.  Although he had had the support of his two Republican home state Senators, Senate Republicans filibustered in July the nomination of Robert Bacharach of Oklahoma to a judgeship on the Tenth Circuit.  Senate Republicans continue to object to voting on this nomination and are apparently intent on stopping his confirmation for the remainder of the year.  This, despite the reassuring comments that were made by Republican Senators when they joined the filibuster in September and excused their participation by saying that after the election he would receive Senate action.  With the American people’s reelection of President Obama there is no good purpose to be served by this further delay.  But Robert Bacharach and nearly a dozen judicial nominees, who could be confirmed and who would fill four circuit court vacancies and five additional judicial emergency vacancies, are being forced to wait until next year – or perhaps forever – by the Senate Republican leadership.  Among those nominations is that of William Orrick III to fill another judicial emergency vacancy in the Northern District of California and that of Brian Davis to fill a judicial emergency vacancy in the Middle District of Florida. 

A perceptive and long-time observer of these matters is Professor Carl Tobias.  I ask that a copy of his recent article entitled “Obama, Senate Must Fill Judicial Vacancies” from The Miami Herald be included in the Record at the conclusion of my remarks.  He recently wrote how these vacancies on our Federal trial courts “erode speedy, economical and fair case resolution.”  He correctly points out that this President, unlike his predecessor, “assiduously” consults with home state Senators from both parties.  Senate Republicans nonetheless stall confirmations virtually across the board.  For example, they are filibustering the Bacharach nomination from Oklahoma and the Kayatta nomination from Maine, despite the support of Republican home state Senators. 

Professor Tobias observes that the judicial nominees of President Obama are “noncontroversial

. . . of balanced temperament, who are intelligent, ethical, industrious, independent and diverse vis a vis ethnicity, gender and ideology.”  None of these characteristics or their outstanding qualifications matter to Senate Republicans intent on obstruction.  The explanations that Republicans offer for their unprecedented stalling of nominees with bipartisan support, indicate that Republicans are fixated on a warped sense of partisan payback.  They recognize none of the distinctions with the circumstances in 2004 when President Bush was seeking to pack the Federal courts with conservative activist ideologues and Senate Republicans ran roughshod over Senate practices and traditions.  They ignore the history since 2004, the resolution of the impasse by recognition of a standard  limiting filibusters only to situations of  “exceptional circumstances,” or the marked difference in the role they have been accorded by President Obama and me in connection with his judicial nominations from their home states.

After this vote, the Senate remains backlogged with 18 judicial nominations reported by the Judiciary Committee, including 13 nominations from before the August recess.  They should be confirmed before the Senate adjourns for the year.  If the Senate were allowed to act in the best interests of the American people, it would vote to confirm these nominees and reduce the judicial vacancies that are plaguing our Federal courts and that delay justice for the American people.  Sadly, it appears that Senate Republicans will persist in the bad practices they have followed since President Obama was elected and insist on stalling nearly a dozen judicial nominees who could and should be confirmed before the Senate adjourns this month.

By this point in President Bush’s first term we had reduced judicial vacancies to 28.  In stark contrast, there are still close to 80 judicial vacancies today.  If the Senate were allowed to confirm the 20 judicial nominations currently pending, we could take a significant step forward by filling more than one-quarter of current vacancies and could reduce vacancies around the country below 60 for the first time since President Obama took office.  Even that would be twice as many vacancies as existed toward the end of President Bush’s first term. 

That so many judicial nominations have been delayed by Senate Republicans into this lame duck session need not prevent the Senate from doing what is right for the American people.  Those who contend that  it would be “unprecedented” to confirm long-stalled nominations in this lame duck session are wrong.  The fact is that from 1980 until this year, when a lame duck session followed a presidential election, every single judicial nominee reported with bipartisan Judiciary Committee support has been confirmed.  That is the precedent that Senate Republicans are breaking.  According to the nonpartisan Congressional Research Service, no consensus nominee reported prior to the August recess has ever been denied a vote – before now.  That is something Senate Democrats have not done in any lame duck session, whether after a presidential or midterm election. 

Senate Democrats allowed votes on 20 of President George W. Bush’s judicial nominees, including three circuit court nominees, in the lame duck session after the elections in 2002.  I remember, I was the Chairman of the Judiciary Committee who moved forward with those votes, including one on a very controversial circuit court nominee.  The Senate proceeded to confirm judicial nominees in lame duck sessions after the elections in 2004 and 2006.  In 2006 that included confirming another circuit court nominee.  We proceeded to confirm 19 judicial nominees in the lame duck session after the elections in 2010, including five circuit court nominees. 

That is our history and recent precedent.  Those who contend that judicial confirmation votes during lame duck sessions do not take place are wrong.  I have urged the Senate Republican leadership to reassess its damaging tactics, but apparently in vain.  Their new precedent is bad for the Senate, the Federal courts and, most importantly, for the American people.

Further, their partisan spin on the past does nothing to help fill longstanding vacancies on our Federal courts, which are in dire need of additional assistance.  Arguments about past Senate practice do not help the American people obtain justice.  There are no good reasons to hold up the judicial nominations currently being stalled on the Senate Executive Calendar.  A wrongheaded desire for partisan payback for some imagined offense from years ago is no good reason.  A continuing effort to gum up the workings of the Senate and to delay Senate action on additional judicial nominees next year is no good reason. 

It is past time for votes on the four circuit nominees and the other 14 district court nominees reported by the Senate Judiciary Committee.  When we have consensus nominees before us who can fill judicial vacancies, especially judicial emergency vacancies, the Senate should be taking action on these nominations to help the American people.  Doing so is consistent with Senate precedent, and it is right.  Let us do our jobs so that all Americans can have access to justice.

John Dowdell is nominated to serve on the U.S. District Court for the Northern District of Oklahoma.  He is currently a shareholder and director at the Tulsa law firm of Norman Wohlgemuth Chandler & Dowdell, where he has worked for nearly 30 years.  After law school he served as a law clerk to Judge William J. Holloway, Jr. on the United States Court of Appeals for the Tenth Circuit.  His nomination was reported nearly unanimously by the Judiciary Committee last June. 

Jesus Bernal is nominated to fill a judicial emergency vacancy on the U.S. District Court for the Central District of California.  Since 1996 he has served as a Deputy Federal Public Defender and is currently the Directing Attorney in the Riverside Branch Office.  After graduating from law school he served as a law clerk to Judge David V. Kenyon of the U.S. District Court for the Central District of California.  His nomination was reported by voice vote by the Senate Judiciary Committee last July. 

Today, we are finally being allowed to vote on two consensus nominees who were stalled for months for no good reason. 

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