02.09.10

Senate Confirms Third Circuit Nominee

WASHINGTON – The Senate Tuesday night unanimously confirmed Judge Joseph Greenaway to a seat on the Third Circuit Court of Appeals.  The nomination, pending before the Senate for more than four months, is just the fifth circuit court nomination confirmed this Congress.  The final vote was 84-0.

Greenaway first appeared before the Senate Judiciary Committee at a hearing on September 9.  The Judiciary Committee unanimously reported the nomination to the full Senate on October 1.  Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) called attention to the backlog of long-pending judicial nominations on the Senate’s executive calendar awaiting confirmation votes.

“We have wasted weeks and months having to seek time agreements in order to consider nominations that were reported by the Senate Judiciary Committee unanimously and who are then confirmed overwhelmingly by the Senate once they are finally allowed to be considered,” said Leahy.  “Judge Greenaway’s nomination is yet another example.  He is a good judge who had years of experience as a federal prosecutor.  He received the highest possible rating from the American Bar Association's Standing Committee on the Federal Judiciary.  He should have been confirmed last year, and he would have but for Republican objection.”

The Senate has confirmed just 15 circuit and district court nominations this Congress, less than half the number that were confirmed by this time during President Bush’s first term in office.  The Senate last year confirmed just 12 circuit and district court nominations, the fewest judicial nominations in more than 50 years.  There are more than 100 vacancies on federal benches across the country, and more than 20 future vacancies have been announced.

Ten judicial nominations remain pending on the Senate’s executive calendar, including seven circuit court nominations.  The Judiciary Committee will hold a hearing for six pending district court nominations on Wednesday, and is also scheduled to consider four district court nominations during an executive business meeting on Thursday

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

Chairman, Senate Judiciary Committee,

On The Nomination Of Joseph A. Greenaway

To The United States Court Of Appeals For The Third Circuit

February 9, 2010 

Today the Senate will finally consider the nomination of Judge Joseph Greenaway to fill the vacancy created by Justice Alito on the U.S. Court of Appeals for the Third Circuit.  Judge Greenaway is an outstanding jurist who has served for nearly 14 years on the Federal district court in New Jersey.  President Obama nominated him last June.  That nomination was reported by the Senate Judiciary Committee more than four months ago, without a single dissenting vote. He should have been confirmed long ago.  I have been speaking about this nomination for some time to call attention to the unexplained and unnecessary delay in its consideration.  The Senators from New Jersey have both come to the Senate floor on repeated occasions calling for consideration.  Judge Greenaway will finally be confirmed today.  

I continue to be deeply disappointed by the delays and obstruction caused by Senate Republicans.   Regrettably, Judge Greenaway’s long-stalled nomination is another example of these tactics.  As I previously explained in a statement on January 25, the Senate Majority Leader came before the Senate on January 22 to highlight the delay in the consideration of Judge Greenaway.  Senate Republicans would not agree to consider his nomination that week, or the next week, or the next.  It took the persistence of the Majority Leader and the vocal support of the Senators from New Jersey, who spoke on January 25 and, again on February 2, about the Republican stalling, to pry this nomination loose.  That is wrong.  It should not take such effort to get Senate Republicans to vote on a nomination, especially one that most, if not all, of them are likely to support.  We should be able in regular order to consider noncontroversial nominations like that of Judge Greenaway without months of delay. 

Despite the fact that President Obama began sending judicial nominees to the Senate two months earlier than President Bush, last year’s total was the fewest judicial nominees confirmed in the first year of a Presidency in more than 50 years – since 1953 when President Eisenhower only made nine nominations all year, all of which were confirmed.  The number of confirmations was even below the 17 the Senate Republican majority allowed to be confirmed in the 1996 session.  

Last week, at the Democratic Policy Committee’s issues retreat, I asked President Obama if he will continue to work hard to send names to the Senate as quickly as possible, and to commit to work with us, both Republicans and Democrats, to get these nominees confirmed.   So far since taking office the President has reached across the aisle working with Republicans and Democrats to identify well-qualified nominations.  Yet, even these nominations are delayed or obstructed.  The President responded by stating: 

Well, this is going to be a priority.  Look, it’s not just judges, unfortunately, Pat, it’s also all our federal appointees.  We've got a huge backlog of folks who are unanimously viewed as well qualified; nobody has a specific objection to them, but end up having a hold on them because of some completely unrelated piece of business. 

On the judges front, we had a judge for the—coming out of Indiana, Judge Hamilton, who everybody said was outstanding—Evan Bayh, Democrat; Dick Lugar, Republican; all recommended.  How long did it take us?  Six months, six, seven months for somebody who was supported by the Democratic and Republican senator from that state.  And you can multiply that across the board.  So we have to start highlighting the fact that this is not how we should be doing business.

I could not agree more with President Obama.  This should not be the way the Senate behaves.  Last week, the Senate had to vote to invoke cloture and end the 15th filibuster of President Obama’s nominations to fill important posts in the executive branch and the judiciary.  That number does not include the many other nominees who have been prevented up-or-down votes in the Senate by the silent filibuster of Republicans refusing to agree to time agreements to consider even non-controversial nominees.  Every single Republican Senator who voted last Monday voted against cloture and to keep filibustering a well-qualified nominee.  Every single Republican voted to obstruct the Senate from doing the business of the American people.

Unfortunately, we have seen the repeated abuse of filibusters, and delay and obstruction have become the norm for Senate Republicans. We have seen unprecedented obstruction by Senate Republicans on issue after issue – over 100 filibusters last year alone, which has affected 70 percent of all Senate action.  Instead of time agreements and the will of the majority, the Senate is faced with a requirement to find 60 Senators to overcome a filibuster on issue after issue.  Those who just a short time ago said that a majority vote is all that should be needed to confirm a nomination, and that filibusters of nominations are unconstitutional, have reversed themselves and now employ any delaying tactic they can.  

The Republican practice of making supermajorities the new standard to proceed to consider many noncontroversial and well-qualified nominations for important posts in the executive branch, and to fill vacancies on the Federal courts, is having a debilitating effect on our Government’s ability to serve the American people.  Hard-working Americans who seek justice in our overburdened Federal courts are the ones who will pay the price for Republicans’ obstruction and delay.  They deserve better. 

Even after years of Republican pocket filibusters that blocked more than 60 of President Clinton’s judicial nominees from even having a hearing and led to skyrocketing judicial vacancies, Democrats did not practice this kind of obstruction and delay in considering President Bush's nominations.  We worked hard to reverse the Republican obstructionism.  In the second half of 2001, the Democratic majority in the Senate proceeded to confirm 28 judges. 

By February 9, 2002, the comparable date in President Bush's first term, the Senate had confirmed 32 circuit and district court nominations.  Judge Greenaway will be only the 15th Federal circuit or district judge allowed to be confirmed.  That is less than half of where we were in 2002. 

During just the second year of President Bush’s first term, the Democratic Senate majority confirmed 72 judicial nominations and helped reduce the vacancies left by Republican obstructionism from over 110 to 59 by the end of 2002.  Overall, in the 17 months that I chaired the Senate Judiciary Committee during President Bush's first term, the Senate confirmed 100 of his judicial nominees. 

We continued to be fair and worked to reduce vacancies even during President Bush's last year in office.  With Senate Democrats again in the majority, we reduced judicial vacancies to as low as 34, even though it was a presidential election year. When President Bush left office, we had reduced vacancies in nine of the 13 Federal circuits. 

As matters stand today, judicial vacancies have spiked again, as they did due to Republican obstruction in the 1990s.  These vacancies are again being left unfilled.  We started 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.  While it has been nearly 20 years since we enacted a Federal judgeship bill, judicial vacancies are nearing record levels, with 102 current vacancies and another 21 already announced.  If we had proceeded on the judgeship bill recommended by the Judicial Conference to address the growing burden on our Federal judiciary, as we did in 1984 and 1990, in order to provide the resources the courts need, current vacancies would stand over 160 today and would be headed toward 180.  That is the true measure of how far behind we have fallen.  

Republican Senators insisted on stalling confirmation of the nomination of Judge Gerard Lynch, who was confirmed with more than 90 votes.  They insisted on stalling the nomination of Judge Andre Davis, who was confirmed with more than 70 votes.  They unsuccessfully filibustered the nomination of Judge David Hamilton last November, having delayed its consideration for months.  They stalled Judge Beverly Martin's nomination for at least two months because they would not agree to consider it before January 20.  They have stalled for three additional weeks on Judge Greenaway’s nomination. We have wasted weeks and months having to seek time agreements in order to consider nominations that were reported by the Senate Judiciary Committee unanimously and who are then confirmed overwhelmingly by the Senate once they are finally allowed to be considered. 

Judge Greenaway’s nomination is yet another example. He is a good judge who had years of experience as a Federal prosecutor.  He received the highest possible rating from the American Bar Association's Standing Committee on the Federal Judiciary.  Senator Sessions praised him at his confirmation hearing.  He should have been confirmed last year, and he would have but for Republican objection. 

I, again, urge Senate Republicans to reconsider their strategy and allow prompt consideration of the other judicial nominees awaiting Senate consideration: Judge Barbara Keenan of Virginia, nominated to the Fourth Circuit; Judge Jane Stranch of Tennessee, nominated to the Sixth Circuit; Judge Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Judge Denny Chin of New York, nominated to the Second Circuit; Judge William Conley, nominated to the Western District of Wisconsin; Justice Rogeriee Thompson of Rhode Island, nominated to the First Circuit; Judge James Wynn of North Carolina, nominated to the Fourth Circuit; Judge Albert Diaz of North Carolina, nominated to the Fourth Circuit; Judge Edward Chen, nominated to the Northern District of California; and Justice Louis Butler, nominated to the Western District of Wisconsin. 

I commend the Senators from New Jersey for their hard work that has proven effective in connection with the nomination of Judge Greenaway and I congratulate Judge Greenaway and his family.  

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