10.03.11

Senate Confirms 6 Of 27 Pending Judicial Nominees

WASHINGTON (Monday, Oct. 3, 2011) – The U.S. Senate Monday night unanimously confirmed six of the more than two dozen judicial nominees approved by the Senate Judiciary Committee.  Committee Chairman Patrick Leahy (D-Vt.) welcomed the action, expressing hope that the Senate has turned a new page in the consideration of pending judicial nominations, which has slowed to a crawl during the Obama administration.

If this is an indication that the needless stalling is ending, that Senate Republicans will abandon their insistence on harmful delay for delay’s sake, and that qualified judicial nominees will no longer wait three months or more after being fully considered by the Judiciary Committee for a final vote, then this is a good sign that we may finally be able to end the judicial vacancies crisis that has gone on for far too long, to the detriment of our courts and the American people,” said Leahy.

More than 20 judicial nominees remain pending on the Senate’s executive calendar, and the Judiciary Committee is poised to consider as many as 10 additional nominees during a business meeting this week.  Five of the six nominees confirmed by the Senate Monday night were reported by the Judiciary Committee in May or June; the sixth nominee, Jennifer Zipps, will fill a judicial emergency on the district court in Arizona.  Zipps will fill the vacancy created by the tragic murder of Chief Judge Roll earlier this year. 

Despite the Judiciary Committee’s regular consideration of pending nominees, President Obama’s judicial nominees have waited extended lengths of time after being favorably reported by the Judiciary Committee.  The Congressional Research Service recently reported that the federal judiciary is now in the longest period of historically high vacancy rates in the last 35 years.  Vacancies have remained near or above 90 for more than two years.

“More than half of all Americans—nearly 170 million—live in districts or circuits that have a vacancy that would be filled today if the Senate would act,” Leahy said.  “More than half of all states—26—are served by courts that have nominations currently pending on the Senate’s Executive Calendar.  The Republican leadership should explain to the millions of Americans in these states why they will not vote.”

Nominees confirmed Monday night include:

  • ·         Henry Floyd, Fourth Circuit – Unanimously reported on May 12
  • ·         Nannette J. Brown, Eastern District of Louisiana – Unanimously reported on May 26
  • ·         Nancy Torresen, District of Maine – Unanimously reported on May 26
  • ·         William F. Kuntz, II, Eastern District of New York – Unanimously reported on May 26
  • ·         Marina G. Marmolejo, Southern District of Texas – Unanimously reported on May 26
  • ·         Jennifer G. Zipps, District of Arizona – Unanimously reported on September 8

The Senate has also entered into an agreement to consider four other judicial nominees, each of which was reported by the Judiciary Committee in July.  Those votes are expected as early as October 11.

After the Senate’s action Monday night, 21 judicial nominees remain pending on the calendar, including 17 nominees that won unanimous support from the Judiciary Committee.  Of these 21 nominees, 11 enjoy support from Republican home state Senators, and seven are nominated to fill judicial emergencies.

For more information about pending judicial nominations, visit the Senate Judiciary Committee’s website.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
October 3, 2011

Today’s consideration of six qualified, consensus judicial nominations is welcome, and all too rare.  I commend the Majority Leader for pressing for Senate votes on all 27 of the judicial nominees fully considered by the Senate Judiciary Committee and awaiting final action by the Senate. 

These six nominees were reported unanimously by the Judiciary Committee.  Some have been unnecessarily stalled from confirmation for four and five months despite the need to fill judicial emergency vacancies. Today the Senate will confirm consensus nominee who could and should have been confirmed before the August recess. 

If this is an indication that the needless stalling is ending, that Senate Republicans will abandon their insistence on harmful delay for delay’s sake, and that qualified judicial nominees will no longer wait three months or more after being fully considered by the Judiciary Committee for a final vote, then this is a good sign that we may finally be able to end the judicial vacancies crisis that has gone on for far too long, to the detriment of our courts and the American people.  The Senate will need to vote on four to six nominations judicial nominees a week, not just this week or next week, but throughout the fall if we are to make a real difference and make real progress. With a judicial vacancy rate that stands at 11 percent and with 95 vacancies on Federal courts around the country, we need to build on today’s effort with the regular consideration of nominations without needless delays. 

Among the nominees selected for Senate action today from the 27 awaiting final consideration is the nomination of Magistrate Judge Jennifer Guerin Zipps of Arizona.  She will fill a vacancy in Tucson created by the tragic murder of Chief Judge Roll earlier this year.  This confirmation sets the benchmark for how judicial nominations should be being treated.  It has been little more than 70 days since her nomination was sent to the Senate, and Judge Zipps has participated in a hearing, was considered by the Committee and is now being confirmed by the Senate.  If, on the other hand, Senate Republicans had adhered to the timeframe that they have utilized during the last two years for delaying consideration of consensus nominees, Judge Zipps would not be considered or confirmed until next year.  I know this nomination is important to Senator Kyl and I am glad to be able to support it and work with him to have it considered by the Senate.  I hope that the Arizona Senators will now give consent for the Committee to move forward with the nomination of Rosemary Marquez to fill another emergency vacancy in Arizona so that we can do more to help meet the critical needs on the Federal court in their state.

The judicial emergency vacancy Judge Zipps will fill is important, just as the action to fill the judicial emergencies in New York, Texas and on the Fourth Circuit that we will fill today is much needed.  There are other nominees ready for final Senate action to fill judicial emergency vacancies on the Second, Fifth and Ninth Circuits and in New York, Pennsylvania, Florida and Texas.  Given the extensive delays in filling vacancies, and the historically high level of vacancies that inaction on confirming President Obama’s nominees has perpetuated, it is no surprise that so many pending nominees will fill judicial emergency vacancies.  Of the 17 judicial nominations Republicans have not consented to consider, that are stuck before the Senate, seven of them would fill judicial emergency vacancies, as well.

I have repeatedly thanked Senator Grassley for his cooperation in making sure that the Senate Judiciary Committee regularly considers nominations.  Regrettably, our work has not been matched on the Senate floor, where the refusal by the Republican leadership to promptly consider consensus nominations has contributed to the longest period of historically high vacancy rates in the last 35 years.  The six nominees we consider today are double the number allowed to be considered since the August recess. Such unnecessary and unexplained delays are wrong, and are harmful to the Federal judiciary and to the American people who depend on it.

Only one of the nominations which the Republican leadership has agreed to consider will fill a vacancy on our courts of appeals.  This is in spite of the fact that four circuit court nominees, all for judicial emergency vacancies and all unanimously voted out of the Judiciary Committee, are awaiting final Senate action.  The nomination of Judge Henry Floyd of South Carolina to fill a judicial emergency vacancy the Fourth Circuit is finally being considered after a wait of nearly five months.  This is only the fifth circuit court nomination the Senate has been allowed to consider this entire Congress. This stands in sharp contrast to the 17 circuit court nominations in 17 months that we confirmed when I chaired the Judiciary Committee in 2001 and 2002 and President Bush was in the White House.

The nomination of Judge Floyd is another example of how President Obama is working with home state Republican Senators to select a qualified, consensus nominee.  Judge Floyd received the highest possible rating from the American Bar Association’s Standing Committee on the Federal Judiciary and has the support, as do all the nominees awaiting final Senate action, of both of his home state Senators, in this case two Republican Senators.  A Federal District Court Judge for the District of South Carolina since 2003, Judge Floyd previously served as a state court judge for 11 years, and before that he spent 19 years in private practice.  It is no surprise that his nomination was reported unanimously by the Judiciary Committee.  What is disappointing is that it has taken almost five months for Republicans to consent to Senate consideration of this nomination.  The people of South Carolina and the other states of the Fourth Circuit—Virginia, Maryland, West Virginia, and North Carolina—should have had a circuit court judge and not a judicial emergency vacancy for the last several months.

They are not alone.  There are qualified, consensus nominees who were reported unanimously by the Judiciary Committee now on the Senate calendar to fill judicial emergency vacancies on the Second, Fifth and Ninth Circuits.   Those judicial emergency vacancies affect the people of Vermont, Connecticut and New York; Mississippi, Louisiana and Texas; and Washington, Oregon, Montana, Wyoming, Idaho, Nevada, Arizona and California.  These are not controversial nominees.  The Senate should be able to take up and confirm nominees like Stephen Higginson of Louisiana, nominated to a judicial emergency vacancy on the Fifth Circuit with the support of his home state Senators, one a Democrat, and the other a Republican.  His nomination was reported unanimously nearly three months ago.  The Senate should be able to take up and confirm the nomination of Christopher Droney of Connecticut, nominated to a judicial emergency vacancy on the Second Circuit, who has the support of both of his home state Senators, Senator Blumenthal, a Democrat, and Senator Lieberman, an Independent.  The Senate should be able to take up and confirm the nomination of Morgan Christen of Alaska, nominated to a judicial emergency vacancy on the Ninth Circuit, who has the support of both of her home state Senators, Senator Murkowski, a Republican, and Senator Begich, a Democrat.  Each of these circuit nominees received the unanimous support of all Democrats and all Republicans serving on the Judiciary Committee.  Each is being delayed from filling a judicial emergency vacancy and serving the people of their state and their circuit. 

Republicans who will not consent to votes on these nominations should explain to the people of the many states that comprise the Second Circuit—Vermont’s circuit—and the, Fifth and Ninth Circuits why those important Federal appeals courts are short on badly needed judges who could be confirmed today.

The Senate’s Republican leadership continues to delay votes on qualified, consensus district court nominations, as well, leading to the backlog we have today of over two dozen judicial nominations pending on the Senate’s Executive Calendar-- nearly half of them to fill judicial emergency vacancies.  They continue to refuse to consent to votes on 17 of the 27 nominations and have unnecessarily delayed votes on all of them for months. 

Millions and millions of Americans are directly affected by this obstruction.  More than half of all Americans—nearly 170 million—live in districts or circuits that have a vacancy that would be filled today if the Senate would act.  More than half of all states—26—are served by courts that have nominations currently pending on the Senate’s Executive Calendar.  The Republican leadership should explain to the millions of Americans in these states why they will not vote.  They should explain to the people of New York, Texas, Pennsylvania, Florida, Wyoming, Alaska, California, and Delaware why they will not consent to votes today on qualified, consensus nominees to fill vacancies on the Federal trial courts in their states. 

These 170 million Americans should not have to wait additional weeks and months for the Senate to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.  They should not have to bear the brunt of having too few judges available to do the work of the Federal courts.  At a time when judicial vacancies have remained at historically high levels for over two years, these needless delays perpetuate the judicial vacancies crisis that Chief Justice Roberts wrote of last December and that the President, the Attorney General, bar associations and chief judges around the country have urged us to join together to end.  The Senate can and should be doing a better job working to ensure the ability of our Federal courts to provide justice to Americans across the country. 

We could easily act today to improve this situation dramatically and alleviate the crisis.  Of the 17 nominations the Republicans continue to obstruct, 15 were reported by the Committee unanimously.  All of these consensus nominees have been favorably reported after a fair but thorough process, including extensive background material on each nominee and the opportunity for all Senators on the Committee, Democratic and Republican, to meet with and question the nominees.  They have a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution.   These are the kinds of consensus nominees that in past years would have been considered and confirmed within days or weeks of being reported, not delayed for weeks and months. 

During the first years of the Bush and Clinton administrations, we were able to reduce vacancies significantly by confirming judges.  The vacancies that had numbered over 100 early in those administrations were dramatically reduced by this juncture.  By early October in the third year of the Bush administration judicial vacancies had been reduced to 46.  By early October in the third year of the Clinton administration they had been reduced to 57.  In contrast, the judicial vacancies now in October of the third year of the Obama administration stand at 95, with a vacancy rate of 11 percent.  That is a vacancy rate that is more than double where it stood at this point in President Bush’s third year. 

Rather than coming down as they have in the past with Republican and Democratic presidents, Federal judicial vacancies have remained near or above 90 for more than two years.  As the Congressional Research Service confirmed in a recent report, this is a historically high level of vacancies, and this is now the longest period of historically high vacancy rates on the Federal judiciary in the last 35 years. 

I hope that we can come together to return to regular order in the consideration of nominations as we have on the Judiciary Committee.  The refusal by Republican leadership to come to regular time agreements for the Senate to vote on nominations continues to put our progress—our positive action—at risk. It does no good for the Judiciary Committee to vote on judicial nominees if the Senate does not act to confirm them.  The hard work of the Judiciary Committee is being squandered. When the Senate is prevented from acting, as it has been with respect to 17 of the 27 judicial nominations left pending before it, the vacancies persist and the American people are not being served.

Last month, a Republican Senator was in error when he told the Senate and the American people that the Senate had already confirmed 67 Article III judges this year.  Had we, the Federal judicial vacancies would not remain at crisis levels.  I wish he had been correct, but sadly he was not.  At the time, only 38 nominees had been confirmed.  Even if Senate Republicans were to abandon their obstructionist tactics and allow votes on all 27 of the judicial nominations currently awaiting final Senate action, we would still fall short of his proclamation. 

In fact, even after an additional six confirmations today, the Senate will have confirmed only 44 judicial nominations, less even than last year.  The first year of the Obama administration, Republicans would only allow 12 judicial nominees to be confirmed.  That was the lowest total in more than 50 years.  After last year, the total number of judicial nominees allowed to be confirmed was the lowest total for the first two years of an administration in 35 years.  Last year, the Senate adjourned and left 19 judicial nominees without final action.  Most had to be renominated again this year.  The last of those nominees was not confirmed until June 21 of this year.  Last year’s stalling took us an extra six months to remedy.  Accordingly, the Senate’s confirmation of judicial nominees who had their hearings and were considered by the Committee this year will total only 27 after the confirmations today.

Some seek to justify their continuing failure to take serious action to address the vacancies crisis by recalling selected instances where Democrats opposed some of President Bush’s most controversial nominees.  That is no justification for the across-the-board stalling on consensus judicial nominees.  And this ignores the fact that we were able to make real progress in those years to confirm judicial nominees and fill vacancies.  We confirmed 100 judges in the 17 months I chaired the Judiciary Committee in 2001 and 2002.  The Senate will not confirm the 100th of President Obama’s circuit and district court judges until today, during the 33rd month of the Obama administration, nearly twice as long.

At the end of President Bush’s first four years in office, the Senate had confirmed 205 of his judicial nominees.  We have a long way to go to reach that total before the end of next year.  At this point in the presidency of George W. Bush, 162 Federal circuit and district court judges had been confirmed.  On October 3 of the third year of President Clinton’s administration, 163 Federal circuit and district court judges had been confirmed.  By comparison, after today we will have confirmed only 104 of President Obama’s circuit and district court nominees.  To match the total at end of President Bush’s first term the Senate will need to confirm more than 100 Federal circuit and district court judges during the next year.  That means doubling to tripling the pace at which the Senate has been acting.

We can and must do better to address the serious judicial vacancies crisis on Federal courts around the country that has persisted for over two years. We can and must do better for the nearly 170 million Americans being made to suffer by these unnecessary delays. 

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