08.03.11

Senate Confirms Just Four Of 24 Pending Judicial Nominees Before Recess

WASHINGTON (Tuesday, August 2, 2011) – The Senate Tuesday evening confirmed just four pending judicial nominees before the chamber recessed for the August in-state work period, leaving 20 nominees approved by the Judiciary Committee on the Senate’s calendar.

The Senate has confirmed just 11 judicial nominations since the Memorial Day recess in May, and just 35 nominees this year.

The Senate’s failure to take action and vote on 20 of the 24 judicial nominees reviewed by the Judiciary Committee and reported favorably to the Senate is yet another in a long line of missed opportunities to come together for the American people,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).  “This is not how the Senate has acted in years past with other Presidents’ judicial nominees.  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.”

The Senate Tuesday night confirmed Sara L. Darrow to the Central District of Illinois, Richard B. Jackson to the District of Colorado, Kathleen M. Williams to the Southern District of Florida, and Nelva G. Ramos to the Southern District of Texas.  Of the 20 judicial nominations left pending on the Senate’s calendar before the August recess, 16 were reported by the Judiciary Committee without any dissenting votes, and eight were reported as long ago as May or earlier.

Leahy’s full statement, included in the Congressional Record, follows.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
August 2, 2011

For the second year in a row, the Senate has failed to take significant steps before the August recess to address the serious crisis of judicial vacancies on courts around the country.  Last August, Senate Republicans left 17 judicial nominations pending and consented to confirm only four Federal circuit and district court nominations before the recess. I noted at that time what a serious blow that was to our ability to make progress addressing the judicial vacancies crisis that had already persisted for well over a year.  Today, as the Senate recesses with judicial vacancies still near 90 as they were a year ago, the Senate is doing even worse, confirming only four judicial nominations of the 24 nominees already considered by the Judiciary Committee and awaiting a Senate vote.

Last week, I urged the Senate to confirm the two dozen judicial nominations already fully considered by the Judiciary Committee and ready for final action by the Senate.  Of them, 20 were unanimously reported, without a single negative vote.  Many have been pending without final action for months.  I am, again, disappointed as Senate Republicans continue to delay these much needed and long awaited confirmations. 

Even though Federal judicial vacancies have remained near or above 90 for more than two years, the Senate’s Republican leadership has refused to consent to vote on these qualified, consensus nominations, leaving 16 of the 20 unanimously reported nominees in limbo.  This is not the way to make real progress. The American people should not have to wait more weeks and months for the Senate to do its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.

In the past, we were able to confirm consensus nominees more promptly.  They were not forced to languish for months.  In the second year of the Bush administration, in 2002, before the August recess the Senate moved ahead to confirm a dozen judicial nominees.  The next year, with a Republican Senate majority, Senate Democrats consented to seven confirmations before the August recess.  With the delays that have been backlogging confirmations for years now, we have 20 unanimously reported judicial nominees who could all have been confirmed before this recess.  Regrettably 16 will not go forward today because Republicans refuse to consent.

At a time when judicial vacancies remain near 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 around the country. 

Just last week, the Congressional Research Service released a report that confirms what many of us have been saying for some time: This is the longest sustained period of historically high vacancy rates on the Federal judiciary in the last 35 years. 

This is hardly surprising.  Republican obstruction kept the total confirmations in the first year of the President’s term to the lowest total for a first year in more than 50 years, when only 12 judicial nominees were allowed to be considered.  Republican obstruction kept the two-year total of confirmations to the lowest total in 35 years, for the first two years of a President’s term, with only a total of 60 Federal circuit and district court nominations confirmed during the course of those entire first two years of the Obama administration.  Accordingly, judicial vacancies have perpetuated needlessly, and caused needless delay on consensus nominees. 

We are seeing it, again, this week as we approach the August recess in the third year of the Obama administration.  In the 17 months I chaired the Judiciary Committee during President Bush’s first term, the Senate confirmed 100 of his Federal circuit and district court nominees.  It looks like it will take twice as long to reach 100 confirmations of President Obama’s Federal circuit and district court nominees.  President Obama has been in office for 31 months and only 95 of his Federal circuit and district court nominees have been confirmed.  There are two dozen more that are stalled, awaiting final Senate action.  By the August recess in the third year of the Bush administration, the Senate had confirmed 143 Federal circuit and district court judges.  This year, the comparable number is only 95. 

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. 

I have always taken seriously the responsibility of the Senate to make sure that the Federal judiciary has the resources it needs.  Senate Republicans had pocket filibustered more than 60 of President Clinton’s judicial nominations and refused to proceed on them while judicial vacancies skyrocketed to more than 110.  Despite that, in the 17 months I chaired the Judiciary Committee during President Bush’s first two years in office, the Senate proceeded to confirm 100 of his judicial nominees.  During the next 24 months, with a Republican majority in the Senate, confirmed 105 more, for a total of 205 confirmed judges during President Bush’s first term.  We have a long way to go for the Senate to be as productive as we were during President Bush’s first term.

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.  Over the eight years of the Bush administration, from 2001 to 2009, we reduced judicial vacancies from 110 to a low of 34.  They now stand at 88 vacancies.  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. 

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. 

Republican obstruction has led to a backlog of two dozen judicial nominations pending on the Senate’s Executive Calendar.  More than half of the judicial nominations on the calendar would fill judicial emergency vacancies.  Yet, due to Republican objections we have lost another opportunity to make progress by confirming consensus nominations.

Before the Memorial Day recess, I urged that the Senate to take up and vote on the many consensus judicial nominations then on the calendar and ready for final action.  But Republican Senators would not agree to consider a single one.  With nearly 20 judicial nominees available to the Senate for final action, only one was considered before the July 4th recess.  In fact, the Senate has now considered only 11 nominations in the last 10 weeks, and has only confirmed a total of 18 judicial nominees who had their hearings this year. 

Senate Republicans have departed from the Senate’s traditional practice by refusing to confirm even unanimous, consensus nominees.  I still await an explanation from the other side of the aisle why these nominations could not be considered and confirmed.  Republican leadership should explain to the people and Senators from Tennessee, South Carolina, Florida, Texas, Missouri, Louisiana, Maine, New York, Arkansas, Connecticut, and Pennsylvania why there continue to be vacancies on the Federal courts in their states that could easily be filled if the Senate would do its constitutional duty and vote on the President’s nominations.  These judicial nominees have the support of Republican home state Senators.  In fact, there are multiple nominees still pending from Louisiana and Pennsylvania. Yet those nominees still wait for months on the Senate’s calendar without explanation for the damaging delays, leaving the people of those states to bear the brunt of having too few judges.

All 24 of the judicial nominations on the calendar 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.

Last week, the President of the American Bar Association, Stephen Zack, wrote to the Senate leaders, “to urge [them] to redouble [their] efforts to fill existing judicial vacancies promptly so that the federal courts will have the judges they need to uphold the rule of law and deliver timely justice.”  He wrote:

“As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

Mr. Zack’s concerns echo those of Chief Justice Roberts, the President, the Attorney General, bar associations and chief judges around the country who have also urged us to join together to end the judicial vacancies crisis.  The Senate can and should be doing a better job working to ensure the ability of our Federal courts to provide justice to Americans around the country. 

The four nominees the Senate will consider today like so many others left on the calendar have the strong support of their home state Senators – Republicans and Democrats – and all were reported unanimously by the Senate Judiciary Committee. 

Kathleen Williams was first nominated over a year ago to fill a judicial emergency vacancy in the Southern District of Florida.  Her nomination has the support of both of her home state Senators – Senator Bill Nelson, a Democrat, and Senator Rubio, a Republican, and was reported without objection by the Judiciary Committee on May 12.  Ms. Williams has been the Federal Public Defender for the Southern District of Florida for 15 years, having been appointed five times by the Eleventh Circuit, most recently earlier this year.  Ms. Williams was previously a Federal Prosecutor in the Southern District of Florida, and she also worked in private civil litigation.  Her balance of experience as a prosecutor and as a public defender providing legal services to thousands of defendants who cannot afford their own attorney will serve her well on the Federal bench. 

Sara Darrow was nominated over eight months ago to fill a judicial vacancy in the Central District of Illinois.  Ms. Darrow has the bipartisan support of her home state Senators, Senator Durbin, a Democrat, and Senator Kirk, a Republican.  Ms. Darrow has been a prosecutor for over 12 years, working as a State’s Attorney for Illinois and later as a Federal prosecutor in Illinois and Iowa.  She is currently Chief of the Violent Crimes Unit in the U.S. Attorney’s Office for the Central District of Illinois.  Her nomination was reported by the Judiciary Committee without objection on May 12.

Nelva Gonzales Ramos was nominated in January of this year to fill a judicial emergency vacancy in the Southern District of Texas.  Her nomination has the strong support of both her Republican home state Senators, Senators Cornyn and Hutchinson and was reported by the Judiciary Committee without objection May 12.  She has served for over 12 years as a state judge in Texas, where she has presided over more than 1200 cases.  Judge Ramos has been reelected twice by the people of Texas to serve as a state judge.  Prior to joining the bench, she also had a successful career as a litigator in private practice.   

Richard Brooke Jackson was first nominated over 10 months ago to fill a judicial emergency vacancy in the District of Colorado.  He is currently the Chief Judge for the First Judicial District in Colorado, where he has served for over 13 years, earning recognitions as the “Best State Judge in Colorado” in 2010.  Prior to joining the bench, Judge Jackson practiced law for 26 years in Denver, Colorado, where he was made a fellow of the American College of Trial Lawyers.  Judge Jackson’s nomination has the strong support of both of his home state Senators, Senator Udall and Senator Bennett and was reported by the Judiciary Committee without objection on May 12.

The Senate’s failure to take action and vote on 20 of the 24 judicial nominees reviewed by the Judiciary Committee and reported favorably to the Senate is yet another in a long line of missed opportunities to come together for the American people.  This is not how the Senate has acted in years past with other Presidents’ judicial nominees.  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. 

I hope that when we return from the August, recess Senators can 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.

I ask unanimous consent that a recent letter from the President of the American Bar Association and a recent column by Professor Carl Tobias be included in the Record at the conclusion of my remarks.

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