12.09.09

Nominees Should Be Confirmed Before Winter Recess

WASHINGTON (Wednesday, Dec. 9, 2009) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Wednesday urged the Senate to consider and confirm the nearly two dozen Judiciary Committee-reported nominations pending on the Senate Executive Calendar, several of which have been pending for months.
 
Nine nominations for federal courts across the country, as well as several nominations for critical leadership positions in the Department of Justice, await Senate confirmation.  The Judiciary Committee is scheduled to consider another seven nominations, including three judicial nominations, at a business meeting on Thursday.
 
“This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations,” said Leahy in a statement.  “We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously.  I hope that instead of withholding consent and threatening filibusters of President Obama's judicial nominees, Senate Republicans will treat the nominees of President Obama fairly.”
 
Leahy continued, “During President Bush’s last year in office, we reduced judicial vacancies to as low as 34, even though it was a presidential election year.  Judicial vacancies have now spiked.  There are currently 97 vacancies on our Federal circuit and district courts, and 23 more have already been announced.  This is approaching record levels.  I know we can do better.  Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.”
 
The Senate has confirmed just 10 nominations to fill circuit and district court vacancies across the country.  By this date in President Bush’s first year in office, the Senate, led by Democrats, had confirmed 21 judicial nominations.  Five judicial nominees have been pending for more than six weeks, including one which has been pending for three months.  There are nearly 100 judicial vacancies across the country, and more than 20 future vacancies have been announced.
 
In addition, 11 executive nominations reported by the Judiciary Committee are pending on the executive calendar, including three Assistant Attorney General nominations.  The nomination of Dawn Johnsen to lead the Office of Legal Counsel has been pending since March 19; the nomination of Mary Smith to lead the Tax Division has been pending since June 11; and the nomination of Christopher Schroeder to lead the Office of Legal Policy has been pending since July 28.
 
The full list of pending nominations follows.  For information about nominations, visit the Senate Judiciary Committee’s website.  For the full text of Leahy’s statement, see below.

Judicial Nominations Pending On Executive Calendar

Beverly Baldwin Martin, 11th Circuit Reported: September 10
Days Pending: 90
Joseph A. Greenaway, 3rd Circuit Reported: October 1
Days Pending: 70
Edward Milton Chen, North. Dist., Calif. Reported: October 15
Days Pending: 55
Dolly Gee, Cen. Dist., Calif. Reported: October 15
Days Pending: 55
Richard Seeborg, North. Dist., Calif. Reported: October 15
Days Pending: 55
Barbara Milano Keenan, 4th Circuit  
Reported: October 19
Days Pending: 41
Jane Branstetter Stranch, 6th Circuit Reported: November 19
Days Pending: 20
Thomas I. Vanaskie, 3rd Circuit         
Reported: December 3
Days Pending: 6
Louis B. Butler, Jr., West. Dist., Wis. Reported: December 3 Days Pending: 6

Executive Nominations Pending On Executive Calendar

Dawn Johnsen                         
Assistant Attorney General, OLC
Reported: March 19
Days Pending: 265
Mary Smith                                         
Assistant Attorney General, Tax Division
Reported: June 11
Days Pending: 181
Christopher Schroeder                        
Assistant Attorney General, OLP
Reported: July 28
Days Pending: 134
Ketnaji Brown Jackson                        
U.S. Sentencing Commission
Reported: November 5
Days Pending: 34
Benjamin Tucker                                 
Office of National Drug Control Policy
Reported: November 19 Days Pending: 20
Susan B. Carbon                                  
Director, Violence Against Women Office
Reported: December 3 Days Pending: 6
John Laub                                           
Director, National Institute of Justice
Reported: December 3 Days Pending: 6
Stanford Coats, U.S. Attorney       
Reported: December 3 Days Pending: 6
Mary Phillips, U.S. Attorney   Reported: December 3 Days Pending: 6
Stephen James Smith, U.S. Marshal Reported: December 3 Days Pending: 6
Sharon Lubinski, U.S. Marshal Reported: December 3 Days Pending: 6

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Pending Nominations
December 9, 2009

Last week, I challenged Senate Republicans to do as well as Senate Democrats did in December 2001 when we proceeded to confirm 10 of President Bush’s Federal judicial nominees.  Regrettably my plea has been ignored.  Since the confirmation of Judge Jacqueline Nguyen last Tuesday to fill a vacancy on the Federal bench for the Central District of California, Republican objections and delay have prevented progress on any of the nine judicial nominees pending on the Senate Executive Calendar.  Judge Nguyen was herself delayed almost six weeks, from October 15 until she was at last confirmed on December 1.  When Republicans finally agreed to allow a vote, she was confirmed unanimously, 97 to zero.  Why the six-week delay? Why the stalling? That question was not answered.  In fact, during the time reserved for debate on this nomination no Republican spoke a word about it.
 
I know how hard pressed the Federal judges in Los Angeles are, and only wish we followed the action on Judge Nguyen’s nomination by proceeding, as well, to the confirmation of another nominee for a vacancy on that court.  Dolly Gee’s nomination to the Central District of California remains pending before the Senate.  She was reported by voice vote and without dissent from the Senate Judiciary Committee on October 15, as well.  Once confirmed, she will be able to go to work helping to eliminate the backlog and delays in that court.  
 
I was glad we were finally allowed to proceed with Judge Nguyen’s nomination, but urged at that time that Senate Republicans allow votes on the other nominations as well.  That has not happened.  I noted that we had shown what we can do when we want to make progress.  The Senate confirmed Judge Christina Reiss of Vermont and Judge Abdul Kallon of Alabama before the Thanksgiving recess, and 17 days after their hearing.  That prompt action by the Senate demonstrates what we can do working together in good faith.  It should not take weeks for the Judiciary Committee to report nominations, and additional weeks and months before Senate Republicans allow nominations to be considered by the Senate.  
 
There remain nine judicial nominations that have been given hearings and favorable consideration by the Senate Judiciary Committee, but that remain stalled before the Senate.  They are: Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the Northern District of California; Dolly Gee, nominated to the Central District of California; Richard Seeborg, nominated to the Northern District of California, Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; and Louis Butler, nominated to Western District of Wisconsin.  These nine nominees all await final action by the Senate.  Some have been waiting since being reported by the Senate Judiciary Committee as long as 12 weeks ago.
 
Acting on these nominations, we can confirm 10 nominees this month.  That is what we did in December 2001 when a Democratic Senate majority proceeded to confirm 10 of President Bush’s nominees, and ended that year having confirmed 28 new judges nominated by a President of the other party.  We achieved those results with a controversial and confrontational Republican President after a mid-year change to a Democratic majority in the Senate.  We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for six weeks.
 
It is now December 9, and the Republican minority has consented to allow votes on only nine of President Obama’s nominations to fill district and circuit court vacancies.  We confirmed a tenth, Judge David Hamilton, after invoking cloture to overcome a Republican leadership-led filibuster.  In comparison, by this date in 2001, we had confirmed 21 of President Bush’s nominations, including six to fill circuit court vacancies.  We will certainly fall well short of the total of 28 judicial confirmations our Democratic Senate majority worked to confirm in President Bush’s first year in office.
 
This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations. We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously.  Judge Nguyen is the most recent example.  We have seen nominees strongly supported by their home state Senators, both Republican and Democratic, delayed for months and unsuccessfully filibustered.   I have been concerned that these actions by the Republican leadership signal a return to their practices in the 1990s, which resulted in more than doubling circuit court vacancies and led to the pocket filibuster of more than 60 of President Clinton's nominees. The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years.

I hope that instead of withholding consent and threatening filibusters of President Obama's judicial nominees, Senate Republicans will treat the nominees of President Obama fairly. I made sure that we treated President Bush's nominees more fairly than President Clinton's nominees had been treated. In the 17 months that I served as chairman of the Senate Judiciary Committee during President Bush's first term, the Senate confirmed 100 of his judicial nominations.
 
I want to continue that progress, but we need Republican cooperation to do so.  I urge them to turn away from their partisanship and begin to work with the President and the Senate Majority Leader.
 
Unlike his predecessor, President Obama has reached out, reached across the aisle to work with Republican Senators in making judicial nominations.  The nomination of Judge Hamilton, which the Republican leadership filibustered, was supported by the most senior Republican in the United States Senate, my respected friend from Indiana, Senator Lugar.  Other examples are the recently confirmed nominees to vacancies in Alabama supported by Senators Sessions and Shelby, in South Dakota supported by Senator Thune, and in Florida, supported by Senators Martinez and LaMieux.  Still others are the President’s nomination to the 11th Circuit from Georgia, supported by Senators Isakson and Chambliss, his nomination to the 6th Circuit from Tennessee, supported by Senator Alexander, and his recent nominations to the 4th Circuit from North Carolina, supported by Senator Burr.   President Obama has reached out and consulted with home state Senators from both sides of the aisle regarding his judicial nominees.
 
Instead of praising the President for consulting with Republican Senators, the Republican leadership has doubled back on what they demanded when a Republican was in the White House.  No more do they talk about each nominee being entitled to an up-or-down vote.  That position is abandoned and forgotten.  Instead, they now seek to filibuster and delay judicial nominations.  They have also walked back from their position at the start of this Congress, when they threatened to filibuster nominees on which home state Senators were not consulted.  We saw with Judge Hamilton that they filibustered a nominee supported by Senator Lugar.
 
When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees.  When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees.  I fear that Senate Republican delaying tactics will yield the lowest judicial confirmation total in modern history.  If Senate Republicans continue their delaying tactics, the total could be as low as that during the 1996 session, during President Clinton’s first term, when a Republican Senate majority would only allow 17 judicial confirmations, none for circuit courts.
 
Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled.  That is wrong.  The American people deserve better.  As I have noted, there are nine more qualified judicial nominations awaiting Senate action on the Senate Executive Calendar.  In addition there are another four pending before the Senate Judiciary Committee that have been given hearings and could be reported to the Senate before Christmas.  They will be available to be considered by the Senate once approved by the Judiciary Committee.  The Senate should do better, and could if Senate Republicans would remove their holds and stop the delaying tactics.  

During President Bush’s last year in office, we reduced judicial vacancies to as low as 34, even though it was a presidential election year.  Judicial vacancies have now spiked.  There are currently 97 vacancies on our Federal circuit and district courts, and 23 more have already been announced.  This is approaching record levels.  I know we can do better.  Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.

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