04.19.10

Senate Finally Set To Consider Several Long-Stalled Nominations

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Monday urged prompt confirmation of nominations pending before the full Senate, including 25 judicial nominations and 15 executive nominations favorably reported by the Senate Judiciary Committee.  The Senate this week is expected to consider five nominations that have been stalled on the Senate’s executive calendar for several months, including three nominations considered by the Senate Judiciary Committee.

“In a dramatic departure from the Senate’s traditional practice of prompt and routine consideration of noncontroversial nominations, Senate Republicans have refused for month after month to consider, debate and vote on nominations,” said Leahy.  “The American people should understand that these are all nominations favorably reported by the committees of jurisdiction.  Most are nominations that were reported without opposition or with a small minority of negative votes.”

Senate Republicans have objected to time agreements to debate and vote on pending noncontroversial nominations.  Last week, Senate Majority Leader Harry Reid (D-Nev.) filed cloture, a procedural motion to bring to an end debate on a pending matter, on five nominations, including two judicial nominations and one nomination to fill a high-level vacancy at the Department of Justice.  The Senate is expected to vote later this week on the nominations of Judge Thomas I. Vanaskie to fill a vacancy on the Third Circuit Court of Appeals and Judge Denny Chin to fill a vacancy on the Second Circuit Court of Appeals, as well as the nomination of Christopher Schroeder to be the Assistant Attorney General for the Office of Legal Policy. 

Schroeder, a professor and former Justice Department attorney, was first nominated in June 2009.  His nomination was reported by the Judiciary Committee in July 2009 without dissent, but Senate Republicans failed to consent to a vote on his nomination, ultimately returning the nomination to the President during the winter recess.  He was renominated in January, and reported by the Judiciary Committee by a vote of 16-3.  Vanaskie’s nomination was reported by the Judiciary Committee by a vote of 16-3; Chin was reported by the Judiciary Committee unanimously.  Both judicial nominations have been awaiting Senate confirmation since early December 2009. 

Together, the three nominations have been pending in the full Senate for nearly 500 days since being reported by the Judiciary Committee.

Of the 25 judicial nominations pending before the full Senate, 18 were reported by the Judiciary Committee without dissent.  Of the 15 executive nominations reported by the Judiciary Committee and pending before the full Senate, 13 were reported without dissent.

The full text of Leahy’s statement follows. 

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

Chairman, Senate Judiciary Committee,

On Filibusters Of Judicial And Executive Nominations

April 19, 2010

 

The majority leader has taken a significant step to address the crisis created by Senate Republican obstruction of President Obama’s highly-qualified nominations and the Senate’s advice and consent responsibilities. Regrettably, Republican obstruction has made it necessary for the majority leader to file cloture to bring an end to a Republican filibusters and allow the Senate to consider at least some of the long-stalled nominations languishing on the Senate’s Executive Calendar.

In a dramatic departure from the Senate’s traditional practice of prompt and routine consideration of noncontroversial nominations, Senate Republicans have refused for month after month to join agreements to consider, debate and vote on nominations.  Their practices have obstructed Senate action and led to the backlog of over 80 nominations now stalled before the Senate, awaiting final action.  The American people should understand that these are all nominations favorably reported by the committees of jurisdiction.  Most are nominations that were reported without opposition or with a small minority of negative votes.  Regrettably, this has been an ongoing Republican strategy and practice during President Obama’s presidency.    

Twenty-five of those stalled nominations are to fill vacancies in the Federal courts.  They have been waiting for Senate action since being favorably reported by the Senate Judiciary Committee as long ago as last November.  Those 25 judicial nominations are more than the 18 Federal circuit and district court nominees that Republicans have allowed the Senate to consider and act upon during President Obama’s administration. 

To put this in perspective, by this date during George W. Bush’s presidency, the Senate had confirmed 45 Federal circuit and district court judges.  President Obama began sending the Senate judicial nominations two months earlier than President Bush did, and still only 18 Federal circuit and district court confirmations have been allowed.  If we had acted on the additional 25 judicial nominations reported favorably by the Senate Judiciary Committee but on which Senate Republicans are preventing Senate action, we would have made comparable progress.  As it stands we are 60 percent behind what we achieved by this time in President Bush’s first term. 

Republicans continue to stand in the way of these nominations, despite vacancies that have skyrocketed to over 100, more than 40 of which are “judicial emergencies.”  Caseloads and backlogs continue to grow while vacancies are left open longer and longer.  On this date in President Bush’s first term, the Senate had confirmed 45 federal district and circuit court judges; there were just seven judicial nominations on the Calendar, and all seven were confirmed within 12 days.  That was normal order for the Democratic Senate majority considering President Bush’s nominations.  Circuit court nominations by this date in his first term waited an average of less than a week to be confirmed.  By contrast, currently stalled by Senate Republicans are circuit court nominees reported back in November and December of last year.  The seven circuit court nominees the Senate has been allowed to consider so far have waited an average of 124 days reported to be considered and confirmed after being favorably —more than four months compared to less than one week for President Bush’s nominees—and those delays are increasing. 

In the 17 months in 2001 and 2002 that I chaired the Judiciary Committee, the Senate confirmed 100 of President Bush’s judicial nominations.  In stark contrast, to date, the Senate has only been allowed to act on 18 circuit and district court nominations.  Twenty-two of the 25 nominations pending on the Calendar have been pending for more than a month.  Eighteen were reported by the Judiciary Committee without dissent -- without a single negative vote from any Republican member.  Still they wait.

Republican obstruction has the Senate on a sorry pace to confirm fewer than 30 judicial nominees during this Congress. Last year, only 12 circuit and district court judges were confirmed.  The lowest total in more than 50 years.  We have to do far more to address this growing crisis of unfilled judicial vacancies. 

It has been almost five months since I began publicly urging the Senate Republican leadership to abandon its strategy of obstruction and delay of the President’s judicial nominees.  But we have not considered a judicial nomination since March 17, when we finally confirmed the nomination of Rogeriee Thompson of Rhode Island to the First Circuit.  Even though Judge Thompson had two decades of experience on her State’s courts, and her nomination was reported by the Senate Judiciary Committee without a single dissenting vote, it stalled on the Senate Executive Calendar for nearly two months before she was unanimously confirmed, 98-0.  There was no reason or explanation given by Senate Republicans for their unwillingness to proceed earlier.  

Before that vote, the majority leader was required to file cloture on the nomination of Barbara Keenan of Virginia to the Fourth Circuit.  Judge Keenan’s nomination was stalled for four months.  After the time consuming process of cloture, her nomination was approved 99 to zero.  There was no reason or explanation given by Senate Republicans for their unwillingness to proceed earlier or for the filibuster of that nominee either.

Similarly, there has yet to be an explanation for why the majority leader was required to file cloture to consider the nominations of Judge Thomas Vanaskie to the Third Circuit and Judge Denny Chin to the Second Circuit, both widely-respected, long-serving district court judges.  Judge Vanaskie has served for more than 15 years on the Middle District of Pennsylvania, and Judge Chin has served for 16 years on the Southern District of New York.  Both nominees have mainstream records, and both were reported by the Judiciary Committee last year with bipartisan support.  Judge Chin, who was the first Asian Pacific American appointed as a Federal district court judge outside the Ninth Circuit, and who, if confirmed, would be the only active Asian Pacific American judge to serve on a Federal appellate court, was reported by the Committee unanimously.

The majority leader has also filed cloture to end the extended Republican effort to prevent Senate consideration of the nomination of Professor Chris Schroeder to lead the Office of Legal Policy at the Justice Department.  Professor Schroeder was first nominated by President Obama on June 4, 2009.  He appeared before the Senate Judiciary Committee last June, and was reported favorably in July by voice vote, with no dissent.  His nomination then languished on the Senate’s Executive Calendar for nearly five months, with not a single explanation of the delay.  Then, as the year drew to a close, Republican Senators objected to carrying over Professor Schroeder’s nomination into the new session, and it was returned to the President without action, forcing the process to begin all over again.  President Obama renominated Professor Schroeder early this year, and his nomination was reconsidered and rereported by the Judiciary Committee with Republican support.  A scholar and public servant who has served with distinction on the staff of the Senate Judiciary Committee and in the Justice Department, Professor Schroeder has support across the political spectrum. 

Democrats treated President Bush’s nominations to run the Office of Legal Policy much more fairly than Republicans are treating President Obama’s nominee, confirming all four nominees to lead that office quickly.  We confirmed President Bush’s first nominee to that post by a vote of 96 to one just one month after he was nominated, and only a week after his nomination was reported by the Judiciary Committee.  In contrast, Professor Schroeder’s nomination has been pending since last June and will require cloture to be invoked before the Senate can finally have an up-or-down vote.

The majority leader has also filed cloture to end the obstruction of the longest-pending judicial nomination on the Executive Calendar, that of Marisa Demeo to the District of Columbia Superior Court.  Her nomination has been blocked since it was reported by the Homeland Security and Governmental Affairs Committee in May 2009.  This sort of obstruction of a D.C. Superior Court nomination is unprecedented.  These nominations for 15-year terms on the District’s trial court are not usually controversial.  The nomination of Magistrate Judge Demeo, an experienced former prosecutor and Justice Department veteran who is the second Hispanic woman nominated to this court, is one I strongly support.  I know Judge Demeo and have known her for years.  The Chief Judge of the Superior Court, Lee Satterfield, has written several times to the majority and minority leaders about the “dire situation” created by vacancies on that court for administration of justice in Washington, D.C., our Nation’s capitol.   As usual, the cost of Republican obstruction is borne by the American people. 

Not long after President Obama was sworn in, Senate Republicans signaled their strategy of obstruction, threatening to filibuster his nominations before he had made a single one, in their letter of March 2, 2009.  The stated basis for their threat was to ensure consultation with home state Senators.  President Obama has consulted with home state Senators of both parties, yet Senate Republicans filibustered the very first of President Obama’s judicial nominations, the nomination of Judge David Hamilton of Indiana to the Seventh Circuit, despite such consultation.   The Senate had to invoke cloture to consider Judge Hamilton’s nomination, even though he was a well-respected district court judge supported of Senator Lugar, the longest-serving Republican in the Senate, with whom President Obama consulted before making the nomination. 

Senate Republicans have ratcheted up their bad practices from the 1990s when they pocket filibustered more than 60 of President Clinton’s judicial nominations, creating a vacancies crisis on the Federal bench. 

Democrats did not do the same to President Bush’s nominees.  I followed through on my commitment to treat them more fairly.  I worked hard in 2001 and 2002, even after the 9/11 attacks and the anthrax attacks, holding hearings, including during Senate recess periods, in order to swiftly consider President Bush’s nominees.  That is why the Senate confirmed 100 of his judicial nominees by the end of 2002.  Democrats only refused to rubber stamp a handful of the most extreme, ideological and divisive of President Bush’s nominees.  

During the Bush presidency Senate Republicans contended that filibusters of judicial nominations were “unconstitutional.”   Now that President Obama is in the White House, Senate Republicans have filibustered the nomination of Judge David Hamilton, and Judge Barbara Keenan, who was then confirmed unanimously.  The same Republican Senators who recently threatened to blow up the Senate unless every nominee received an up-or-down vote are now engaged in another attempt to abuse the rules of the Senate and undermine the democratic process.  Republican Senators who just a few years ago insisted that “elections have consequences” have now made the use of filibusters, holds, and excessive procedural delays the new normal in the Senate. They seem intent on continuing their destructive practices.    

It is regrettable that the majority leader has to file cloture on these mainstream nominations today, just to allow the Senate to hold the up-or-down votes that Republican Senators once demanded for the most extreme and ideological nominees of a Republican President.  I thank him for doing so, and look forward to the confirmation of these nominees.

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