Leahy: “Time Is Running Out” To Consider Nominations

[WASHINGTON, Wednesday, Dec. 15 – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) released the following statement today about the status of pending judicial and executive nominations, including the nomination of Jim Cole to be the Deputy Attorney General.  The New York Times today published an editorial, “Advise and Obstruct,” about the delays in considering pending judicial nominations.  The Washington Post today published an editorial, “An Unacceptable Delay,” about continuing objections by Senate Republicans to considering the Cole nomination.]


Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
December 15, 2010


This morning, both The New York Times and The Washington Post published strong editorials condemning the delays in Senate consideration of the President’s nominees.  The Washington Post wrote about the extraordinary and damaging treatment of Jim Cole, who is nominated to serve as the number two official at the Justice Department, a position with extensive responsibilities for national security and law enforcement.  The New York Times wrote about the across-the-board objections to Senate consideration of judicial nominees, including dozens who have been reported without opposition by all Republicans and Democrats on the Judiciary Committee. 

“An Unacceptable Delay”

Two weeks ago, I came to the Floor and asked unanimous consent that the Senate consider the long-pending nomination of Jim Cole to be the Deputy Attorney General, and that the Senate schedule for debate and a vote without further delay.  Senator Sessions objected to my request and we continue to be prevented from acting on this critical national security nomination.

I ask consent to place into the Record at the conclusion of my statement today’s editorial from The Washington Post entitled, “An Unacceptable Delay.”  The editorial notes:

“James M. Cole appeared well on his way in July to filling the important No. 2 slot at the Justice Department after earning a favorable vote from the Senate Judiciary Committee.

But the full Senate has yet to vote on Mr. Cole's nomination to what is essentially the post of chief operating officer of the mammoth department. The five months between committee and floor vote appear to be longest delay endured by any deputy attorney general nominee.

The slow crawl comes courtesy of some Senate Republicans who question Mr. Cole's approach to terrorism cases and his role as an independent monitor for struggling financial giant American International Group (AIG). These concerns should not derail Mr. Cole's confirmation -- and they certainly should not be used to block a vote.”

Mr. Cole’s nomination has been pending on the Senate’s Executive Calendar since it was reported favorably by the Judiciary Committee in July.  Those continuing to block this nomination from debate and a vote are wrong.   As the editorial observes: “There is no suggestion that Mr. Cole suffers from the kind of ethical or legal problems that would disqualify a nominee.”   If Senators disagree, they are free to vote against the nomination.   But it is long past the time to end the stalling.

I noted two weeks ago that the letter from eight former Deputy Attorneys General of the United States who served in the administrations of President Reagan, President George H.W. Bush, President Clinton, President George W. Bush, as well as the current administration, correctly observed that “the Deputy is also a key member of the president’s national security team, a function that has grown in importance and complexity in the years since the terror attacks of September 11.”  They are right.  This is a dangerous game that partisans are playing in stalling this important nomination in what is really an unprecedented way.

Mr. Cole’s nomination has been pending five times longer than the longest-pending Deputy Attorney General nomination in the last 20 years.  All four of the Deputy Attorneys General who served under President Bush were confirmed by the Senate by voice vote an average of 21 days after they were reported by the Judiciary Committee.   In fact, we confirmed President Bush’s first nomination to be Deputy Attorney General the day it was reported by the Committee.  We treated those nominations of President Bush with the “enormous deference in executive branch appointments” that the Post editorial today states that every President deserves. 

Jim Cole served as a career prosecutor at the Justice Department for a dozen years, and has a well-deserved reputation for fairness, integrity and toughness.  As he demonstrated during his confirmation hearing months ago, he understands the issues of crime and national security that are at the center of the Deputy Attorney General’s job.  Nothing suggests that he will be anything other than a steadfast defender of America’s safety and security.  His critics are wrong about Jim Cole’s approach to terrorism.  He has testified strongly that the President should use every power and weapon and tool he possesses in this fight. 

His critics are also wrong to try to blame him for the actions of AIG.  His role was limited to a monitor of other corporate functions and there is no showing he did not perform his assignment well.  In fact, former Republican Senator Jack Danforth introduced him to the Committee and gave him a strong endorsement.  Let us hold those responsible at AIG accountable.  Those who disagree are free to vote against the nomination of this good man if they choose, but they should end the holds and the stalling and let the Senate decide whether to consent to this nomination.  As today’s editorial concludes, “have the decency to hold a floor vote and give him a thumbs down.”  I am confident that when allowed a vote, he will be confirmed.  He should be confirmed with bipartisan support and that vote should have been taken months ago. The months of delay of this nomination have been unnecessary, debilitating and wrong.

I urge those Senators who are objecting to debate and a vote to turn away from their destructive approach so that we can consider and confirm Jim Cole immediately and he can finally begin his important work to help protect the American people.

“Advise and Obstruct”

For over a year now, I have been urging all Senators, Democrats and Republicans, to join together to take action to end the crisis of skyrocketing judicial vacancies now threatening the ability of Federal courts throughout the country to administer justice for the American people.  That has not happened.  I have asked that we return to longstanding practices that the Senate used to follow when considering nominations from Presidents of both parties.  This has not happened.  As a result, 38 judicial nominations that have been favorably reported by the Judiciary Committee continue to be stalled without final Senate action on the Senate’s Executive Calendar.

I ask unanimous consent to place in the Record at the end of my statement today’s editorial from The New York Times entitled “Advise and Obstruct.”  It rightly calls for an end to the across-the-board obstruction of President Obama’s judicial nominations.  The editorial notes that the Senate has been blocked from considering a single judicial nomination since September 13.  In fact, the Senate has only considered five Federal circuit and district court nominations since the July 4th recess.  Of the 80 judicial nominations reported by the Judiciary Committee and sent to the Senate for final action in order to fill Federal circuit and district court vacancies, only 41 have been considered.  That is a historically low number and percentage.  Meanwhile, dozens of judicial nominees with well-established qualifications and the support of their home state Senators from both parties have been ready and kept waiting for Senate consideration all year.

The editorial also points to the high costs of obstruction “at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts.”  The editorial is right.  The vacancies on the Federal courts around the country have doubled over the last two years and now are at the historically high level of 111.  Fifty-two of these vacancies are deemed judicial emergency vacancies by the nonpartisan Administrative Office of the U.S. Courts.   The Senate has received letters from courts around the country calling for help to address their crushing caseloads, including letters from the Chief Judges of the Ninth Circuit Court of Appeals and the United States District Courts in California, Colorado, Illinois and the District of Columbia.  They have pleaded with us to end the blockade and confirm judges to fill vacancies in their courts. 

The Times editorial accurately portrays a grim picture of where we are in considering these nominations and also points the way forward:

“At this point, the Senate has approved 41 — barely half — of President Obama’s federal and district court nominees reported by the Judiciary Committee. Compare that with the first two years of the George W. Bush administration when the Senate approved all 100 of the judicial nominations approved by the committee. The final days of the lame-duck session are a chance to significantly improve on this dismal record and to lift the judicial confirmation process out of the partisan muck.”

The editorial calls for a vote on all 38 judicial nominations awaiting final action by the Senate.  I agree and have been calling for votes on all of these nominations.  We should do as we did during President Bush’s first two years in office and consider every judicial nomination favorably reported by the Senate.  During those two years the Judiciary Committee favorably reported 100 judicial nominations and the Senate confirmed every one of them, including controversial circuit court nominations reported during the lame duck session in 2002.  In contrast, we have during President Obama’s first two years favorably reported 80 circuit and district court nominations, but considered only 41, barely half.

I have been trying to end this obstruction, yet it continues.  Agreements to debate and consider nominations have been sought repeatedly, but the Republican leadership has objected time and time again.   

Of the 38 judicial nominations currently stalled on the Executive Calendar, 29 of them were reported unanimously, without a single negative vote from the 19 Republican and Democratic members of the Committee.  Another three were reported with strong bipartisan support and only a small number of no votes.  Of these 32 bipartisan, consensus nominees, 17 of them were nominated to fill judicial emergency vacancies.  They should all have been confirmed within days of being reported, not obstructed with weeks and months of delay.  It will be a travesty if they are not all confirmed before the 111th Congress adjourns.

These consensus nominees include six unanimously reported circuit court nominees, and another circuit court nominee supported by 17 of the 19 Senators on the Judiciary Committee.  The nomination of Judge Albert Diaz of North Carolina, a respected and experienced jurist who served in the Armed Forces, for a judicial emergency vacancy on the Fourth Circuit has been stalled for 11 months despite the support of his home state Senators from both parties.  Judge Ray Lohier of New York would fill one of the four current vacancies on the United States Court of Appeals for the Second Circuit. He is another former prosecutor with support from both sides of the aisle.  His confirmation has been stalled for no good reason for more than seven months. Scott Matheson is a nominee from Utah supported by Senator Hatch; he was reported without opposition over six months ago.  Mary Murguia, a nominee from Arizona supported by Senator Kyl, was reported without opposition over four months ago.  Judge Kathleen O’Malley of Ohio is nominated to the Federal Circuit and was reported without opposition nearly three months ago.  Justice James Graves of Mississippi, whose nomination has the strong support of his home state Republican Senators, was reported unanimously to serve on the Fifth Circuit.  Also pending is a seventh consensus circuit court nomination, Susan Carney of Connecticut, who was reported with the strong bipartisan support of to fill another judicial emergency vacancy on the Second Circuit. 

The nominees currently being blocked from consideration also include 30 district court nominations, some reported as long ago as February.  The Republican blockade of these nominations is a dramatic departure from the traditional practice of considering them expeditiously and with deference to the home state Senators.  These 30 district court nominees include 23 nominees reported unanimously by the Judiciary Committee.  Fifteen of these nominations are for seats designated as judicial emergencies.  All of these nominees have well established qualifications and are at the top of the legal community in their home states.  All have put their lives and practices on hold in an attempt to serve their country and their community.  There is no cause for continuing to block the Senate from considering their nominations and no precedent for extending these delays further.


In addition, I have urged for many months that the Senate debate and a vote on those few nominees that Republican Senators decided to oppose in Committee.  These nominees include Benita Pearson of Ohio, William Martinez of Colorado, Louis Butler of Wisconsin, Edward Chen of California, John McConnell of Rhode Island, and Goodwin Liu of California.  As I have said before, I have reviewed their records and considered their character, background and qualifications.  I have heard the criticisms of the Republican Senators on the Judiciary Committee as they have voted against this handful of nominees.  I disagree, and believe the Senate would vote, as I have, to confirm them.  Each of these nominees have been reported favorably by the Judiciary Committee, several of them two or three times, and each deserves an up or down vote.  That they will not be conservative activist judges should not disqualify them from consideration by the Senate or serving on the bench. 

All 38 of these judicial nominations should have an up-or-down vote, just as all 100 of President Bush’s judicial nominations reported by the Committee in his first two years had a vote in the Senate.  Even if Republican Senators will not follow our example and treat President Obama’s nominees as we treated President Bush’s, even if they will not abide by the Golden Rule, they should at least listen to their own statements from just a few years ago.  They said that every judicial nomination reported by the Senate Judiciary Committee was entitled to an up-or-down vote.   They spoke then about the constitutional duty of the Senate to consider every judicial nomination. The Constitution has not changed; it has not been amended.  The change from the days in which they made those statements is that the American people elected a new President and he is making the nominations.  In fact, President Obama has reached out and worked with Senators from both sides of the aisle.  We have not sought to proceed on one of his judicial nominees without the support of both home state Senators. 

Time Is Running Out

Time is running out in this Congress to turn away from the disastrous strategy of blocking nominations across the board.  It is time to return to the Senate’s longstanding traditions and reject this obstruction.  The Federal courts and the American people who depend on the courts for justice are suffering. 

Today, December 15, is the anniversary of the ratification of the Bill of Rights, the first 10 amendments to the Constitution of the United States.  Let us renew our commitment to the Constitution, to our Bill or Rights, and to our liberty by turning away from the destructive partisanship that has delayed Senate consideration of these nominations.  Let us act in the spirit of the Founders, in the spirit of the season, and move forward together to consider and vote on these important nominations of a Deputy Attorney General and United States judges.

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