12.13.12

Senate Approves Two District Court Nominees, 16 Judicial Nominees Awaiting Consideration

WASHINGTON (Thursday, December 13, 2012) – On Thursday, the Senate voted to confirm two district court nominees who each waited five months on the calendar before received a floor vote, an unreasonable amount of time that U.S. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said only hurts the courts and Americans who seek justice in our Federal courts.

“We have a constitutional responsibility to advise and consent, and we must also help our courts uphold their constitutional responsibility to provide speedy justice,” Leahy said in a statement. “The judges whose confirmations Senate Republicans are delaying are not nominees they will oppose on the merits.  They are by and large consensus nominees.”

The Senate easily approved the nominations of Lorna Schofield and Frank Geraci, two district court nominees from New York. Like other nominees considered this year, Schofield and Geraci were held up for months on the calendar only to be widely approved on the Senate floor. Eleven more district court nominees are awaiting Senate consideration, and four district court nominees are also being stalled. The obstruction of these nominees only means the Senate will only be further behind as it works through a judicial backlog again next year.

“This forces the Senate to waste time in the new year working on nominations that should have been confirmed the year before,” Leahy warned.

Leahy also pointed out that that the Judiciary Committee and a Democratic majority in the Senate worked to clear more than two dozen of President George W. Bush’s nominees within two weeks of their hearings in order to help respond to the judicial vacancy crisis that plagues Federal courts in every state throughout the country. He called on Republicans to operate with that same level of bipartisanship these final weeks of the year.

“If we are willing to follow Senate precedent, and to protect Americans’ access to justice, we should vote on the nominees being delayed,” Leahy said. “I see no reason why the Senate should not confirm them before the end of the year.  We should allow these nominees to get to work on behalf of the American people.”

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Statement of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On the Confirmations of Lorna Schofield to the United States District Court for the Southern District of New York and Judge Frank Geraci to the United States District Court for the Western District of New York

December 13, 2012

Today, the Senate will finally be allowed to vote on the nominations of Judge Frank Geraci to fill a judicial emergency vacancy on the U.S. District Court for the Western District of New York and Lorna Schofield to fill a vacancy on the U.S. District Court for the Southern District of New York.  Both of these nominees were voted out of the Judiciary Committee virtually unanimously before the August recess and should have been confirmed months ago.

By now no one should be surprised that it has taken so long to have a simple up-or-down vote on two consensus nominees, even though one would fill a judicial emergency vacancy and the other would fill a vacancy on one of our Nation’s busiest courts. 

There is an editorial in today’s New York Times that explains the slow pace of confirmations, and I ask consent that it appear in the Record after my statement.  The editorial notes:

“A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations."

This is the new practice that Senate Republicans adopted when President Obama was elected.  They delay and obstruct judicial nominations for no good reason.  There are currently 13 circuit and district court nominees still pending on the Senate Executive Calendar who were reported before the August recess, and should all have been confirmed before the recess.  Most are consensus nominees.  All have the support of their home state Senators, including their home state Republican Senators.

The Federal Bar Association wrote a letter earlier this week to Senate leaders that said:

“[W]e write to urge you to promptly schedule floor votes on pending, noncontroversial United States circuit court nominees and district court nominees who have cleared the Judiciary Committee with strong bipartisan support and who await a final up-or-down vote.  The high number of existing judicial vacancies – 81, of which 35 constitute judicial emergencies – underscores the need for prompt attention by the Senate in fulfilling its Constitutional responsibilities.”

They are absolutely right.  I ask consent that a copy of that letter be printed in the Record at the conclusion of my statement.  We have a constitutional responsibility to advise and consent, and we must also help our courts uphold their constitutional responsibility to provide speedy justice.

The judges whose confirmations Senate Republicans are delaying are not nominees they will oppose on the merits.  They are by and large consensus nominees.

Senate Republicans’ obstruction on these important nominations is especially damaging at the end of the year.  Starting in 2009, Senate Republicans broke from longstanding tradition and prevented votes on eight judicial nominees as the Senate adjourned at the end of the year.  It took until September 2010 for the last of those nominees to have an up-or-down vote.  Senate Republicans did the same thing – their new version of a pocket filibuster – to 19 nominees in both 2010 and 2011.  This forces the Senate to waste time in the new year working on nominations that should have been confirmed the year before.  This year it took until May to confirm the 19 left from last year.  That is why we have confirmed only 23 nominees reported by the Judiciary Committee this year, and that is why we face this current backlog of 18 nominees and an additional four who had a hearing earlier this week and could also be considered and confirmed before adjournment.

One of the nominations Senate Republicans are holding up is that of Judge Robert Bacharach to the Tenth Circuit, who they filibustered earlier this year.  Senator Coburn, one of his home state Senators, said: “He has no opposition in the Senate…There’s no reason why he shouldn’t be confirmed.”  His words apply to almost all the judicial nominees being delayed.

When George W. Bush was President, Democrats cooperated in moving judicial nominees quickly through the Committee and to a confirmation vote at the end of the year.  I did so whether I was Chairman or the ranking member.  I have said that I am willing to do the same for the nominees who had their hearing yesterday and expedite Committee consideration of their nominations so that they can be voted on this year.  By way of example, in 2008 we confirmed five of President Bush’s nominees just three days after their hearing.  We have often been able to do this at the end of a Congress, and this year should be no exception – especially given the high level of judicial vacancies plaguing our Federal courts. 

Yesterday, the Judiciary Committee had a hearing for four more of President Obama’s outstanding, consensus judicial nominees.  Senators from both sides of the aisle appeared to endorse nominees to vacancies in their home states.   Representative Paul Ryan, the Republican candidate for Vice President, appeared to testify in favor of a nominee to fill a vacancy on the District Court for the District of Columbia.  So did Representative Eleanor Holmes Norton.  After Congressman Ryan’s endorsement the Committee’s ranking Republican member quipped that after hearing Congressman Ryan “we could just vote you out right away.”  He is right.  The Senate should confirm her and the others without delay.  That is how we used to proceed as we approached the end of a Congress.  We used to expedite confirmations of consensus nominees.  Now Senate Republicans insist on stalling proceedings and slowing things down and carrying large numbers of them over into the next year and needlessly delaying them for months and months.  

I remind Senate Republicans that the Senate confirmed an Alabama nominee to the district court within two days of his vote by the Judiciary Committee just a couple of years ago.  There have literally been hundreds of judicial confirmations within 14 days of our Judiciary Committee hearing including more than 600 confirmed since World War II within just one week of their hearings.  In contrast, obstruction by Senate Republicans has caused President Obama’s district court nominees to wait an average of 102 days for a Senate vote after being reported by the Judiciary Committee.  This destructive practice of delaying for no good reason must end.

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.  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 of 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.  The reason that I am not listing confirmations for the lame duck session at the end of 2008 is because that year we had proceeded to confirm the last 10 judicial nominees approved by the Judiciary Committee in September and long before the lame duck session.

That is our history and recent precedent.  Those across the aisle who contend that judicial confirmations votes during lame duck sessions do not take place are wrong.  It is past time for votes on the four circuit nominees and the other 13 district court nominees still pending on the Executive Calendar.  We should expedite confirmations for the four consensus nominees who had their hearing yesterday.  Let us do our jobs so that all Americans can have access to justice.

Lorna Schofield is nominated to serve on the U.S. District Court for the Southern District of New York.  She has served as a Federal prosecutor, and since 1988 has worked at the law firm Debevoise & Plimpton LLP where she was a partner for two decades and where she currently serves as Of Counsel.  She serves as Chair of the Litigation Section of the ABA where she has actively promoted pro bono activities including programs for children’s rights and litigation assistance for military personnel.  The ABA Standing Committee on the Federal Judiciary unanimously gave her its highest possible rating of “Well Qualified.” 

Judge Frank Geraci is nominated to fill a judicial emergency vacancy on the U.S. District Court for the Western District of New York.  Since 1999 Judge Geraci has served as a Monroe County Court Judge, and since 2005 he has also served as an Acting Supreme Court Justice on the New York State trial court.  Judge Geraci has presided over 555 civil proceedings that have gone to judgment.  He has also served as both a state and Federal prosecutor. 

Both of these nominations have the support of both their home state Senators.  They were voted on by the Judiciary Committee five months ago and stalled unnecessarily since then for no good reason.

If we are willing to follow Senate precedent, and to protect Americans’ access to justice, we should vote on the nominees being delayed.  Many are nominees whose nominations have been pending for many months, and many of them would fill judicial emergency vacancies.  I see no reason why the Senate should not confirm them before the end of the year.  We should allow these nominees to get to work on behalf of the American people.

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