Senate Confirms Long-Pending Second Circuit Judicial Nominee

WASHINGTON (Tuesday, May 17, 2011) – A bipartisan majority of the U.S. Senate Tuesday voted to confirm a long-pending nominee to the U.S. Court of Appeals for the Second Circuit, Susan Carney of Connecticut. 

Carney was first nominated in May 2010, and appeared before the Senate Judiciary Committee in September.  Her nomination received strong bipartisan support in the Judiciary Committee, but was one of 19 nominations approved by the Committee yet returned to the President at the conclusion of the 111th Congress. Carney’s nomination was again reported to the full Senate in February.  She was confirmed Tuesday to a seat designated as a judicial emergency by the Administrative Office of the U.S. Courts.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) delivered remarks on the Senate floor before the vote.  The text of his full statement for the record is below.

There are now 14 judicial nominations pending on the Senate’s Executive Calendar.  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
May 17, 2011

Today, the Senate finally considers the nomination of Susan Carney of Connecticut to fill a judicial emergency vacancy on the Court of Appeals for the Second Circuit.  Ms. Carney has twice been considered by the Judiciary Committee and has twice been reported with strong bipartisan support, first last year and again in February.  The majority of the Republicans on the Judiciary Committee have twice joined in supporting this nomination.  I expect that she will be confirmed with significant bipartisan support.

This is one of several judicial nominations that the minority refused to consider, despite being favorably reported by the Judiciary Committee last year.  Hers will be the sixteenth nomination confirmed this year that could, and in my view should, have been considered last year.  That is right: Of the 24 judicial nominations the Senate will have considered and confirmed this year, including Ms. Carney, almost 70 percent were delayed from last year.  We have only been able to confirm eight judicial nominees that had hearings and were reported for the first time this year.  So when some say we are taking “positive action” on large percentages of nominees, what this shows is how many unobjectionable nominees were stalled last year by objections from the minority. 

This is only the third circuit court nominations the Senate has been allowed to consider all year.  There are several others awaiting final Senate action.  Caitlin Halligan is an outstanding nominee to the D.C. Circuit.  Bernice Donald of Tennessee has the support of her home state Republican Senators, and should be confirmed promptly to the Sixth Circuit.  Henry Floyd of South Carolina has the support of his home state Republican Senators and should not be delayed from serving on the Fourth Circuit.  The circuit nominee stalled the longest is Professor Goodwin Liu of California.  He is nominated to the Ninth Circuit and is strongly supported by his home state Senators.  He is qualified and will make an outstanding judge.  He is brilliant and understands the role of a judge.  He has been reported three times by the Senate Judiciary Committee.  The stalling on his nomination should end.  The Senate should vote and confirm Goodwin Liu. 

Susan Carney, currently the Deputy General Counsel of Yale University, has a career of distinguished service.  After graduating with honors from Harvard College and Harvard Law School, Ms. Carney clerked for Judge Levin H. Campbell of the Court of Appeals for the First Circuit.  She then spent 17 years in private practice, obtaining significant appellate litigation experience, before becoming the Associate General Counsel of the Peace Corps.  Ms. Carney has spent the last 13 years in the Office of the General Counsel at Yale University, and is now Yale’s second highest ranking legal officer.

Ms. Carney’s nomination has the strong support of both of her home state Senators, Senator Lieberman and Senator Blumenthal, along with the Federal Judiciary Committee of the Connecticut Bar Association and The New York City Bar Association’s Committee on the Judiciary.  Ms. Carney’s nomination also had the strong support of Senator Dodd, the distinguished former Senator from Connecticut.  Before he retired from the Senate, Senator Dodd introduced Ms. Carney to the Judiciary Committee at her nomination hearing.  He said of Ms. Carney:

“Throughout her career, Susan Carney has developed a professional versatility and breadth of legal knowledge well suited to serve on the Second Circuit Court of Appeals. And perhaps even more important, I believe she has exhibited the kind of temperament and unflinching respect for the rule of law that are absolutely critical components, in my view, of serving on the Federal courts.”

It is no surprise that Ms. Carney’s nomination has received such strong bipartisan support on the Judiciary Committee.  The Senate should have been able to debate and vote on her nomination before Senator Dodd left the Senate.  I am pleased we are finally going to vote on it today.

I am sorry that another outstanding nominee from Connecticut Judge Robert Chatigny was also prevented by the minority from receiving consideration and a vote by the Senate.  After he was favorably reported last year, Senate Republicans refused to agree to a debate and vote on his nomination, and insisted on returning it to the President without Senate consideration.  He is a fine judge whose record was distorted in their opposition to him.  That was a shame.

I thank the Majority and Republican leaders for agreeing to schedule the vote on Ms. Carney’s nomination today.  The Senate’s agreement to debate and vote on long-delayed nominations like that of Ms. Carney and of Judge Edward Chen of the Northern District of California last week show that the delays that have slowed our progress on nominations are unnecessary.  With the breakthrough earlier this month when 11 Republicans joined in ending the filibuster against another long-stalled nomination, that of Judge Jack McConnell of Rhode Island, we have begun to make progress and, in fact, take “positive action” of judicial nominations held up for months by the minority.  With vacancies still totaling almost 90 on Federal courts throughout the country with another dozen future vacancies on the horizon, we need to do more to ensure that the Federal judiciary has the resources it needs to fulfill its constitutional role. 

Including Ms. Carney’s nomination, there are 15 judicial nominations on the Senate Executive Calendar, more than half of which have been ready for final Senate action for weeks and, in some cases, many months.  I thank the Judiciary Committee’s Ranking Member, Senator Grassley, for working with me to consider nominations in the Judiciary Committee.  We have a fair but thorough process, including reviewing extensive background material on each nominee, and giving all Senators on the Committee, Democratic and Republican, the opportunity to ask the nominees questions at a live hearing and following the hearing in writing.  All of these nominees which the Committee reported to the Senate have a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution.  All have the support of their home state Senators, both Republican and Democratic.  They should not be delayed for weeks and months needlessly after being so thoroughly and fairly considered by the Judiciary Committee.

Our ability to make progress regarding nominations has been hampered by the creation of what I consider to be misplaced controversies about many nominees’ records.  I hope no Senator cites one such invented controversy as a basis for opposing Ms. Carney’s nomination.  In the time that the Senate has been prevented from voting on Ms. Carney’s nomination, some on the far right have made baseless allegations about Ms. Carney.  Their false claim is that Ms. Carney engaged in a cover up after another Yale administrator had erroneously confirmed to a Korean institution that a prospective hire earned a PhD from Yale.  In fact, the opposite is true.  It was Ms. Carney who informed the Korean institution that Yale had erred.  I hope no Senator is taken in by this smear campaign against a good nominee.

Concerns that Ms. Carney lacks sufficient experience to be an appellate judge are also misplaced. She has been a lawyer for 30 years and has a wealth of experience, including, as I mentioned, 17 years in private practice with experience in appellate litigation.  I have nonetheless heard this purported concern raised by the handful of Republican Senators who oppose Ms. Carney’s confirmation.  I believe that Ms. Carney’s wide range of experience as a lawyer in private practice and as Deputy General Counsel of one of the world’s leading educational and research institutions, one with an annual budget that exceeds $2 billion, have prepared her well to serve on the Second Circuit.  Along with Connecticut and New York, it is Vermont that is served by the Circuit Court to which

Ms. Carney has been nominated.  All Senators from states within the Second Circuit support her confirmation.  I also note that I did not hear Republican Senators raise any concerns about lack of judicial experience when President Bush nominated, and the Senate confirmed, 24 nominees to circuit courts with no prior judicial experience, and a number with little trial litigation experience. 

Even as some Republicans have opposed this nominee by saying that she does not have sufficient litigation experience, Republican Senators have recently tried to twist nominees’ litigation experience against them.  Their partisan attacks are not consistent.  When a nominee has extensive experience and is a successful trial lawyer, they complain that the nominee has too much experience and will be biased by it. 

Republicans opposed Judge McConnell of Rhode Island because he was an excellent trial lawyers.  They opposed Judge Chen of California despite his 10 years as a fair and impartial Federal Judge Magistrate and disregarded his judicial record.  The Republican opposition to President Obama’s judicial nominees has been anything but consistent.  Now some will turn around and oppose Ms. Carney, a nominee with more than 30 years of legal experience, by saying she has not had sufficient experience as a trial advocate.

This reminds me of the story of the mother who sent her son two neckties as gifts.  When she visited, the son picked her up at the airport dutifully wearing one of the ties only to hear his mother complain:  “What’s the matter? Don’t you like the other tie?” 

Let us turn away from such double standards and return to the longstanding Senate practice of judging nominees on their merits, not based on caricatures.  Our ability to finally reach a time agreement and have a vote on the nomination of Susan Carney is a welcome sign of progress.  We still have a long way to go to do as well as we did during President Bush’s first term, when we confirmed 205 of his judicial nominations.  We confirmed 100 of those judicial nominations during the 17 months I was Chairman during President Bush’s first two years in office.  So far, well into President Obama’s third year in office, the Senate has only been allowed to consider 84 of President Obama’s Federal circuit and district court nominees, well short of 205.  We need to work together to ensure that the Federal judiciary has the judges it needs to provide justice to Americans in courts throughout the country. 

I congratulate Ms. Carney and her family on her confirmation today.

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