09.06.11

Senate Confirms First Circuit Court Judicial Nomination In Nearly Four Months

WASHINGTON – The U.S. Senate Tuesday night voted overwhelmingly to confirm a nominee to the Sixth Circuit Court of Appeals, Judge Bernice Donald of Tennessee.  Donald’s nomination was unanimously reported by the Senate Judiciary Committee nearly four months ago. 

The nomination is also the first circuit court nomination confirmed by the Senate since May.  There remain 19 judicial nominations pending on the Senate’s executive calendar.  Before the August recess, the Senate confirmed just four of the two dozen judicial nominations then pending.  Of the 19 nominations remaining on the calendar, half have been pending for over two months, and 15 received unanimous support from the Judiciary Committee.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has for months urged the Senate to consider long-pending nominations. 

I hope that this month Senators will finally join together to begin to bring down the excessive number of vacancies that have persisted on Federal courts throughout the Nation for far too long,” said Leahy in a statement.  “We can and must do better.”

The Senate Judiciary Committee has scheduled a hearing on September 7 for five additional judicial nominees, and another 10 judicial nominations are listed on the Committee’s agenda for an executive business meeting to be held on September 8.

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

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Bernice Donald To The Sixth Circuit
September 6, 2011

I was disappointed that, before the August recess, the Senate was not allowed to take greater steps to address the serious judicial vacancies crisis on Federal courts around the country.  As we resume consideration of pending judicial nominations, there are 20 nominees fully considered by the Senate Judiciary Committee and ready for final Senate action.  Of those, 16 were approved by the Judiciary Committee unanimously, without a single Republican or Democratic Senator in opposition. 

The nomination of Judge Bernice Donald of Tennessee is one such nomination.  This is a nomination that has been waiting for Senate consideration, despite the support of her Republican home state Senators, since May 9 – nearly four months ago, the Judiciary Committee favorably reported her nomination without opposition.  This is reminiscent of the nomination of Jane Stranch of Tennessee.  She, too, had the support of her Republican home state Senators, but her confirmation was nonetheless stalled – inexplicably – by Senate Republicans.  Judge Stranch was finally confirmed in September 2010, after an extended and unnecessary 10-month delay.  These Tennessee nominations were the subject of a column by Professor Carl Tobias in early August, which I inserted in the Record on August 2.  I, too, had hoped the Senate would be allowed to vote on this nomination last month.  I am glad that we finally have agreement for a vote tonight.

At this point in the presidency of George W. Bush, 144 Federal circuit and district court judges had been confirmed.  On September 6 of the third year of President Clinton’s administration, 162 Federal circuit and district court judges had been confirmed.  By comparison, although there are 20 judicial nominees stalled and awaiting final consideration by the Senate -- many of them stalled since May and June -- even after the confirmation of Judge Donald, the total confirmations of Federal circuit and district court judges confirmed during the first three years of the Obama administration will only be 96. 

In the 17 months I chaired the Judiciary Committee during President Bush’s first term, the Senate confirmed 100 Federal circuit and district judges.  By contrast, President Obama is approaching his 32nd month in office and we have yet to reach that total.  The Senate has a long way to go before the end of next year to match the 205 confirmations of President Bush’s judicial nominees during his first term.

To understand the strain on the Federal judiciary and the American people, it is important to note another set of comparisons.  The number of judicial vacancies was reduced during the first years of the Bush and Clinton administration.  The vacancies in early September in the third year of the Bush administration had been reduced to 54.  The vacancies in early September in the third year of the Clinton administration had been reduced to 55.  By contrast, the judicial vacancies now in September of the third year of the Obama administration stand at 93.  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. 

Even though Federal judicial vacancies have remained near or above 90 for more than two years, the Senate’s Republican leadership continues to delay votes on many qualified, consensus nominations.  After tonight, there will remain 15 unanimously reported nominees stalled on the calendar. This is not the way to make real progress. In the past, we were able to confirm consensus nominees more promptly, often within days of being reported to the full Senate.  They were not forced to languish for months.  The American people should not have to wait more 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.

It is not accurate to pretend that real progress is being made in these circumstances.  Vacancies are being kept high, consensus nominees are being delayed and it is the American people and the Federal courts that are being made to suffer.  This is another area in which we must come together for the American people.  There is no reason Senators cannot join together to finally bring down the excessive number of vacancies that have persisted on Federal courts throughout the Nation for far too long. 

At a time when judicial vacancies remain near or above 90, 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 were able to lower vacancies dramatically during President Bush’s years in office, cutting them in half during his first term.  The Senate has reversed course during the Obama administration, and with Republican objections slowing the pace of confirmations, judicial vacancies have been at crisis levels for over two years.  As a recent report by the Constitutional Accountability Center noted, “Never before has the number of vacancies risen so sharply and remained so high for so long during a President’s term.”  I ask unanimous consent that an August 5  letter to the editor of the Washington Post from Wade Henderson, entitled “Remiss in confirming judges,” and an August 4 article in Politico from Andrew Blotky and Doug Kendall entitled “It's Senate's duty to confirm judges,” be included in the record at the conclusion of my remarks.

Over the eight years of the Bush administration, from 2001 to 2009, we reduced judicial vacancies from 110 to a low of 34.  The vacancy rate -- which we reduced from 10 percent to six percent by this date in President Bush’s third year, and ultimately to less than four percent in 2008 – is back above 10 percent.  Federal judicial vacancies now stand at 93.

Time and time again over the last two and one-half years, I have urged the Senate to come together and work to address this crisis.  At the beginning of this year, I called for a return to regular order in the consideration of nominations.  We have seen that approach work on the Judiciary Committee.  I have thanked the Judiciary Committee’s Ranking Member, Senator Grassley, many times for his cooperation with me to make sure that the Committee continues to make progress in the consideration of nominations.  His approach has been the right approach.  Regrettably, it has not been matched on the floor, where the refusal by Republican leadership to come to regular time agreements to consider nominations has put our progress—our positive action -- at risk. 

I expect the Committee in the weeks ahead to continue to make progress and favorably report superbly qualified, consensus judicial nominations to fill vacancies in states throughout the country, in states with Democratic and Republican Senators.  Most of these nominations will, I expect, join the 15 on the calendar after tonight’s vote that were reported unanimously.  I hope that the Americans in those districts will not have to wait for months for the Senate to act to fill the vacancies and ensure that the Federal courts in their states have the judges they need.

Republican obstruction has led to a backlog of dozens of judicial nominations pending on the Senate’s Executive Calendar.  Half of the judicial nominations on the calendar would fill judicial emergency vacancies.  Many were ready for final consideration and confirmation in May and June.  

Republican leadership should explain to the people and Senators from South Carolina, Missouri, Louisiana, Maine, New York, Texas, Connecticut, Pennsylvania and Florida why there continue to be vacancies on the Federal courts in their states that could easily be filled if the Senate would vote on the President’s qualified, consensus nominees.  Yet those nominees still wait for months on the Senate’s calendar.  These damaging delays leave the people of these states to bear the brunt of having too few judges available to do the work of the Federal courts.

All 20 of the judicial nominations on the calendar today have been favorably reported by the Judiciary after a fair but thorough process.  We review extensive background material on each nominee.  All Senators on the Committee, Democratic and Republican, have the opportunity to ask the nominees questions at a live hearing.  Senators also have the opportunity to ask questions in writing following the hearing and to meet with the nominees.  All of these nominees have a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution.  They should not be delayed for weeks and months needlessly after being so thoroughly and fairly considered by the Judiciary Committee.

I continue to urge the Senate to join together to end the judicial vacancies crisis that concerns Chief Justice Roberts, the President, the Attorney General, bar associations and chief judges around the country.  I hope that this month Senators will finally join together to begin to bring down the excessive number of vacancies that have persisted on Federal courts throughout the Nation for far too long.  We can and must do better.  Vacancies are being kept high, consensus nominees are being delayed and it is the American people and the Federal courts that are being made to suffer. 

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