10.13.11

Senate Confirms Three Judicial Nominees

WASHINGTON (Thursday, Oct. 13, 2011) – Three pending judicial nominees won final approval by the U.S. Senate Thursday, three months after having been reported by the Senate Judiciary Committee.  There remain more than two dozen judicial nominations awaiting final action by the Senate after having been approved by the Judiciary Committee, including nominations reported by the Committee prior to the August recess.

“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,” said Senate Judiciary Committee Chairman Patrick Leahy.  “We can and must do better for the nearly 170 million Americans being made to suffer by these unnecessary delays.”

The Senate confirmed the nominations of Alison Nathan to the U.S. District Court for the Southern District of New York; Susan Hickey to the U.S. District Court for the Western District of Arkansas; and Katherine Forrest to the U.S. District Court for the Southern District of New York.  All three nominees were reported by the Committee with strong bipartisan support in July.

A total of 27 judicial nominations have been approved by the Senate Judiciary Committee, and await final action by the Senate, including 24 nominations that won unanimous support from the Committee.  Nine of the 27 nominees would fill judicial emergencies as identified by the Administrative Office of the U.S. Courts. 

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

Leahy’s full statement follows.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
October 13, 2011

With votes today on three of the 30 judicial nominations reported favorably by the Judiciary Committee, the Senate will complete action on the nominations that were part of the unanimous consent agreement reached three weeks ago, prior to the last recess.  I thank the Majority Leader for pressing at that time for Senate votes on all 27 of the judicial nominations then on the Executive Calendar.  However, because the Republican leadership would consent to votes on only 10 of those long-stalled nominations, even after today’s votes, we will be back where we started with 27 judicial nominations on the Calendar, awaiting final action by the Senate.

Like the nominations we considered last week and earlier this week, all three of the district court nominations the Senate considers today were reported favorably by the Committee months ago with strong bipartisan support.  They have all been fully considered by the Senate Judiciary Committee after a thorough vetting process.  They were all ready for a final Senate vote well before the August recess, but we are only considering them now, halfway through October.

As I said when the Senate returned from the September recess with votes in six long-pending nominations, I hope that these votes are an end to the unnecessary stalling by Senate Republicans on nominations.  I hope that the Senate will build on these votes and make real progress in addressing a crisis in judicial vacancies which has gone on for far too long, to the detriment of our courts and the American people.  Votes on four to six judicial nominees a week cannot be the exception if we are to bring down a judicial vacancy rate that remains above 10 percent, with 92 vacancies on Federal courts around the country.  Votes on four to six nominations are what is required throughout the rest of this year to make a real difference.  I hope that Republican Senators will join together with us to end their insistence on harmful delay for delay’s sake.

We need a return to regular order where the timely consideration of consensus, qualified nominees is not the exception, but the rule.  With Republican agreement, we could vote on all 30 of the nominations reported by the Committee.  Of the 27 judicial nominations which will remain on the Executive Calendar tomorrow, 24 of them were reported with the unanimous support of every Democrat and every Republicans serving on the Judiciary Committee.  All of them have the support of their home state Senators, including 13 with Republican home state Senators. 

The path followed by the Senate in considering the nomination of Judge Jennifer Guerin Zipps is the path that should be followed with all consensus nominations.  Judge Zipps was nominated to fill the emergency judicial vacancy created by the tragic death of Judge Roll in the Tucson, Arizona, shootings.  I was pleased that, with cooperation from Republican Senators, the time from when the Judiciary Committee reported Judge Zipps’ nomination to full Senate consideration was less than one month, even including a recess period.  It should not take a tragedy to spur us to action to fill a judicial emergency vacancy.  Indeed, the time it took the Senate to consider Judge Zipps’ nomination was in line with the average time it took for the Senate to consider President Bush’s unanimously reported judicial nominations -- 28 days.  It is regrettable that her nomination has become the exception for President Obama’s consensus nominations. Those nominations which have been reported with the unanimous support of every Republican and Democrat on the Judiciary Committee have waited an average of 76 days on the Executive Calendar before consideration by the Senate.  

Senator Grassley and I have worked together to ensure that the Judiciary Committee makes progress on nominations.  Earlier today, the Committee unanimously reported another five judicial nominations, four of which have Republican home state Senators in strong support.  Two of of those nominations will fill judicial emergency vacancies in Florida and Utah.  There is no need for the Senate to wait weeks and months before voting on these nominations.  There is no need for the Senate Republican leadership to continue the unnecessary delays in our consideration of judicial nominations that have contributed to the longest period of historically high vacancy rates in the last 35 years.  The number of judicial vacancies rose above 90 in August 2009, and it has stayed near or above that level ever since.  We must bring an end to these needless delays in the Senate so that we can ease the burden on our Federal courts so that they can better serve the American people.

More than half of all Americans—almost 170 million—live in districts or circuits that have a judicial vacancy that could be filled today if the Senate Republicans just agreed to vote on the nominations favorably reported by the Judiciary Committee.  As many as 25 states are served by Federal courts with vacancies that would be filled by these nominations.  Millions of Americans across the country are harmed by delays in overburdened courts.  The Republican leadership should explain to the American people why they will not consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies.

The delays which have led to the damaging backlog in judicial nominations is compounded by the unprecedented attempt by some on the other side of the aisle to create what I consider misplaced controversies about the records of what should be consensus, qualified district court nominees.  This approach has threatened to undermine the long-standing deference given to home state Senators who know the nominees and the needs of their states best.  I am glad we will finally have votes today on the nominations of Alison Nathan to the Southern District of New York and Susan Hickey to the Western District of Arkansas, but I hope Senators will not raise the kind of selective and unfair questions about the qualifications of these two fine nominees which were never raised about President Bush’s judicial nominees. 

Alison Nathan is currently Special Counsel to the Solicitor General of New York, having earned the Louis J. Lefkowitz Memorial Achievement Award for her work there last year.  Ms. Nathan previously had a successful career in private practice at a national law firm, as a professor at two New York law schools, and as an Associate White House Counsel.  She clerked for Supreme Court Justice John Paul Stevens and Judge Betty Fletcher of the Ninth Circuit Court of Appeals.

Ms. Nathan’s nomination has the strong support of both of her home state Senators.  Senator Schumer rightfully praised her intellect and her accomplishments when he introduced her to the Judiciary Committee.  Half of the Republicans on the Judiciary Committee joined all of the Democrats in voting to report her nomination favorably.  However, some in Committee raised concerns about Ms. Nathan’s qualifications, citing her rating by a minority of the ABA’s Standing Committee on the Federal Judiciary as “Not Qualified.”  I note that a majority of the Standing Committee rated Ms. Nathan “Qualified” to serve.  I also note that Ms. Nathan’s ABA rating is equal to or better than the rating received by 33 of President Bush’s confirmed judicial nominees, who were supported by nearly every Republican Senator.  Her rating is better than the four of President Bush’s nominees who were confirmed despite a “Not Qualified” by the majority of the ABA’s Standing Committee, including two nominees to the Eastern District of Kentucky, David L. Bunning and Gregory F. Van Tatenhove, who were supported by the Republican leader.  The Senate deferred to the recommendations of the home state Senators in considering President Bush’s nominations and confirmed nominees from Alabama, Utah, Arizona and Oklahoma, among other states, who had received a partial rating of “not qualified.”

There is no question the Senate should confirm Ms. Nathan.  As her resume shows, she is an accomplished nominee with significant experience in private practice, academia and government service.  Twenty-seven former Supreme Court clerks have written to the Judiciary Committee in support of Ms. Nathan’s qualifications, including clerks who worked for the conservative Justices.  They write, “although we hold a wide range of political and jurisprudential views, all of us believe that Ms. Nathan has the ability, character, and temperament to be an excellent federal district court judge. . . We recommend her for this position without hesitation and without reservation.”  I support Ms. Nathan’s nomination without reservation and hope that Senators from both sides of the aisle will join me in supporting this worthy nominee.

The Senate today will also vote to confirm the nomination of Judge Susan Hickey to the Western District of Arkansas.  Judge Hickey has the bipartisan support of her home state Senators – Democratic Senator Mark Pryor and Republican Senator John Boozman, both of whom praised her background and qualifications in introducing her to the Committee.  A Majority of Republicans joined every Democratic Senator on the Judiciary Committee in voting to report her nomination.  Yet, because she spent a significant part of her career as a law clerk and took a hiatus from law practice while on family leave, some have questioned whether Judge Hickey is qualified to serve on the Federal bench.  In my view, and in the view of her home state Senators, these concerns are misplaced.

Currently a state court judge serving in the Thirteenth Judicial Circuit in Arkansas, Judge Hickey was previously a career law clerk for the Honorable Judge Barnes, whom she is nominated to replace.  During her confirmation hearing, Judge Hickey testified about the experience she gained as a career law clerk to Judge Barnes, saying that she “[took] part in all matters that were before the court from the time that the case was filed till the final disposition.”  She testified about the cases she has managed as a State Court Judge, and her experience litigating bench trials and jury trials.  The ABA Standing Committee on the Federal Judiciary unanimously rated Judge Hickey qualified to serve on the Federal bench.  I hope that she will be confirmed with bipartisan support.

The Senate today will also finally consider the nomination of Katherine Forrest to fill another vacancy on the Southern District of New York.  Currently a Deputy Assistant Attorney General in the Antitrust Division of the Department of Justice, she previously spent over 20 years as a litigator in private practice at the law firm Cravath, Swaine & Moore in New York City, where she was named one of America’s Top 50 litigators under the age of 45.  The ABA Standing Committee on the Federal Judiciary unanimously rated Ms. Forrest “well qualified” to serve, its highest possible rating.  The Judiciary Committee favorably reported Ms. Forrest’s nomination without dissent three months ago. 

In the weeks ahead, I hope that we continue to work to consider more of the 27 judicial nominations remaining on the calendar, nearly all of which are the kinds of consensus nominations we could consider within days.   We have an enormous amount of ground to recover.  At this point in George W. Bush’s presidency, the Senate had confirmed 162 of his nominees for the Federal circuit and district courts, including 100 during the 17 months that I was Chairman of the Judiciary Committee during his first term.  By this date in President Clinton’s first term, the Senate had confirmed 163 of his nominations to circuit and district courts.  In stark contrast, after today’s vote, the Senate will have confirmed only 108 of President Obama’s nominees to Federal circuit and district courts.  As a result, vacancies are twice as high as they were at this point in President Bush’s first term when the Senate was expeditiously voting on consensus judicial nominations.  In the next year, we need to confirm nearly 100 more of President Obama’s circuit and district court nominations to bring vacancies down and match the 205 confirmed during President Bush’s first term. 

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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