09.30.10

Senate Recesses Without Confirming Judicial Nominees

WASHINGTON (Thursday, Sept. 30, 2010) – The Senate Wednesday night recessed until after the November elections without confirming any of the 23 judicial nominations pending on the Executive Calendar.  One nomination, Fourth Circuit nominee Albert Diaz, was unanimously reported by the Judiciary Committee more than eight months ago, but Senate Republicans have yet to give consent to schedule a vote on his nomination.  Seventeen of the 23 judicial nominations pending on the calendar were reported by the Committee unanimously.

“The Senate is well behind the pace set by a Democratic Majority in the Senate considering President Bush’s nominations during his first two years in office,” Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said in a statement.  “Republicans have allowed the Senate to consider and confirm only 41 of President Obama’s circuit and district court nominations over the last two years.  In stark contrast, by this date in President Bush’s second year in office, the Senate with a Democratic majority had confirmed 78 of his Federal circuit and district court nominations.  That number reached 100 by the end of 2002, all considered and confirmed during the 17 months I chaired the Senate Judiciary Committee.” 

The Senate has taken more than five times longer to confirm circuit court nominations after being favorably reported by the Judiciary Committee than it did in the first Congress of the Bush administration.  The Senate has taken three times longer to confirm district court nominations after being favorably reported by the Judiciary Committee.

“Last year the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years,” Leahy said.  “This year we have yet to confirm 30 Federal circuit and district judges.  We are not even keeping up with retirements and attrition.   As a result, judicial vacancies are, again, over 100 and, again, more than 10 percent.  This trend should alarm the American people who expect justice from the Federal courts.”

The Senate confirmed 17 U.S. Attorney and U.S. Marshal nominations before recessing.  A complete list of nominations confirmed is available on the Judiciary Committee’s website.

Information on executive and judicial nominations pending in the Judiciary Committee is available online

# # # # #

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
September 29, 2010

Two weeks ago I spoke to the Senate on the occasion of the consideration of the nomination of Jane Branstetter Stranch of Tennessee to the Sixth Circuit.  It was nearly 10 months after her nomination was favorably reported by the Senate Judiciary Committee that Senate Republicans finally consented to a time agreement and vote, despite the support of the senior Senator from Tennessee, a member of the Republican leadership.  Nevertheless, I said then that if consideration of the Stranch nomination, after months of needless delay, represented a bipartisan willingness to return to the Senate’s tradition of offering advice and consent without extensive delays, I welcomed it.  I urged the Senate to consider the other 16 judicial nominations then on the Senate Executive Calendar favorably reported by the Judiciary Committee without further delay. 

Regrettably, since Judge Stranch was approved by a bipartisan majority on September 13, the Senate has not considered a single additional judicial nomination, although some were reported as long ago as January.  Indeed, during the rest of this work period the list of judicial nominations stalled on the calendar has grown to 23, including 16 that were reported by the Committee unanimously.  Meanwhile judicial vacancies around the country continue to rise and now number 104.  These include 48 vacancies that the Judicial Conference has designated as judicial emergencies.    

The Senate is well behind the pace set by a Democratic Majority in the Senate considering President Bush’s nominations during his first two years in office.  Republicans have allowed the Senate to consider and confirm only 41 of President Obama’s circuit and district court nominations over the last two years.  In stark contrast, by this date in President Bush’s second year in office, the Senate with a Democratic majority had confirmed 78 of his Federal circuit and district court nominations.  That number reached 100 by the end of 2002, all considered and confirmed during the 17 months I chaired the Senate Judiciary Committee. 

During those 17 months, I scheduled 26 hearings for the judicial nominees of a Republican President and the Judiciary Committee worked diligently to consider them.  During the two years of the Obama administration, I have tried to maintain that same approach and the Committee has held 25 hearings for President Obama’s Federal circuit and district court nominees. I have not altered my approach and neither have the Senate Democrats.

One thing that has changed is that we have been able to hold hearings for nominees more regularly because we now receive the paperwork on the nominations, the nominee’s completed questionnaire, the confidential background investigation and the America Bar Association (ABA) peer review almost immediately after a nomination is made, allowing us to proceed.  During 2001 and 2002, President Bush abandoned the procedure that President Eisenhower had adopted and that had been used by President George H.W. Bush, President Reagan and all Presidents for more than 50 years.  Instead, President George W. Bush delayed the start of the ABA peer review process until after the nomination was sent to the Senate.  That added weeks and months to the timeline in which hearings were able to be scheduled on nominations.

When I became Chairman of the Judiciary Committee midway through President Bush’s first tumultuous year in office, I worked very hard to make sure Senate Democrats did not perpetuate the “judge wars” as tit-for-tat.  Despite that fact that Senate Republicans pocket filibustered more than 60 of President Clinton’s judicial nominations and refused to proceed on them while judicial vacancies skyrocketed during the Clinton administration to more than 110, in 2001 and 2002, during the 17 months I chaired the Committee during President Bush’s first two years in office, the Senate proceeded to confirm 100 of his judicial nominees. 

By refusing to proceed on President Clinton’s nominations while judicial vacancies skyrocketed during the six years they controlled the pace of nominations, Senate Republicans allowed vacancies to rise to more than 110 by the end of the Clinton administration.  As a result of their strategy, Federal circuit court vacancies doubled.   When Democrats regained the Senate majority halfway into President Bush’s first year in office, we turned away from these bad practices.  As a result, overall judicial vacancies were reduced during the Bush years from more than 10 percent to less than four percent.  During the Bush years, the Federal court vacancies were reduced from 110 to 34 and Federal circuit court vacancies were reduced from a high of 32 down to single digits.

This progress has not continued with a Democratic President back in office.  Instead, Senate Republicans have returned to the strategy they used during the Clinton administration of blocking the nominations of a Democratic President, again leading to skyrocketing vacancies.  Last year the Senate confirmed only 12 Federal circuit and district court judges, the lowest total in 50 years.  This year we have yet to confirm 30 Federal circuit and district judges.  We are not even keeping up with retirements and attrition.   As a result, judicial vacancies are, again, over 100 and, again, more than 10 percent.

This trend should alarm the American people who expect justice from the Federal courts.   I ask consent to put into the Record at the conclusion of my statement a recent column by Attorney General Eric Holder about the cost to the American system justice.  He writes:

“The federal judicial system that has been a rightful source of pride for the United States -- the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law -- is stressed to the breaking point.

“Last year, 259,000 civil cases and 75,000 criminal cases were filed in the federal courts, enough to tax the abilities of the judiciary even when it is fully staffed. But today there are 103 judicial vacancies -- nearly one in eight seats on the bench. Men and women who need their day in court must stand in longer and longer lines.”

I also ask consent to put into the Record at the conclusion of my statement a recent article that appeared on Slate by Dahlia Lithwick and Professor Carl Tobias, pointing out that thousands of hard-working Americans seeking justice in our courts bear the cost of  justice delayed and denied as a result of vacant courtrooms and overburdened judges.  Many senior and retired judges continue to try to carry the workload, but we fall farther behind.  They write:

“It stands to reason that if you can't get into a courtroom, if the docket is too packed for your case to be heard promptly, or if the judge lacks sufficient time to address the issues raised, justice suffers. This will directly affect thousands of ordinary Americans—plaintiffs and defendants— whose liberty, safety, or job may be at stake and for whom justice may arrive too late, if at all. In some jurisdictions, civil litigants may well wait two to three years before going to trial. In jurisdictions with the most vacancies, it will often take far longer for published opinions to be issued, or courts will come to rely on more unpublished opinions. More worrisome still, because the Speedy Trial Act requires that courts give precedence to criminal cases, some backlogged courts have had to stop hearing civil cases altogether.”

Earlier this month, I spoke to the Senate about the serious warning issued by Justice Anthony Kennedy at the Ninth Circuit Conference about skyrocketing judicial vacancies in California and throughout the country.  He said, “It’s important for the public to understand that the excellence of the federal judiciary is at risk.” He noted that “if judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”  A recent editorial in the Los Angeles Times focuses on the acute problems in the Ninth Circuit and urges the Senate to act on three nominations to fill vacancies in Federal courts in California. 

President Obama has not made nominations opposed by home state Senators but has, instead, reached out and worked with home state Senators from both parties.  Likewise, I have respected the minority.  We have tried to develop and improve the cooperation between parties and branches.  It is disappointing to see others take the opposite approach.  We could help to address this vacancies crisis just by acting on the judicial nominations ready for action but which remain stalled on the Executive Calendar.

I have worked closely with the Ranking Republicans on the Judiciary Committee while serving as its Chairman.  I have enjoyed my relationship with the current Ranking Republican, and I have often thanked Senator Sessions for his cooperation in working with me to hold hearings and consider nominations in Committee.  I was disappointed by his statement to the Senate last week, however.  He is entitled to his own perspective on these matters, of course.  I feel very strongly that Democrats in the Senate treated President Bush’s judicial nominations better and more fairly than Republicans had those of President Clinton, and certainly better than President Obama’s nominees are currently being treated.  The comparison of vacancy rates and the number of judges confirmed in President Bush’s first two years with a Democratic majority -- 100, including 17 circuit court nominations—bear that out.   I also believe that there was a clear difference in the smaller number of judicial nominees opposed by Democratic Senators and the open manner in which Democrats made clear the basis of their opposition  in contrast to the secret holds and across the board nature of the Republican opposition.   Another indisputable fact is the judicial vacancy crisis during the Clinton administration that has been recreated since President Obama was elected.  By contrast, during the Bush administration Senate Democrats worked to reduce vacancies and the result was that we did so dramatically.

Indeed, much of Senator Sessions’ statement last Wednesday reads like an attempted justification for some sort of payback.  He does concede that we proceeded promptly to confirm President Bush’s district court nominations, but unfortunately attributes a sinister cast even to those actions.  Sometimes the statement does not merely attribute the wrong motive or mischaracterize what happened, but is a misstatement of the facts.  For example, the Senator suggested that the Senate confirmed only six of President Bush’s 25 circuit court nominees.  In fact, we worked hard to confirm 17 circuit court nominees in the 17 months that I chaired the Committee during 2001 and 2002. 

By contrast, only 11 of President Obama’s circuit court nominees have been confirmed these two years-- this, despite the fact that 16 have, so far, been reported by the Judiciary Committee.  Five of the six circuit court nominations stalled and still being prevented from being consideration were reported unanimously, one as long ago as January.  This is another good illustration of the difference in how Republican and Democratic Senators have treated judicial nominations by the President of the other party.

Democratic Senators did not stall such consensus nominations for spite or payback.  And when we opposed nominations we said why.  Unlike President Bush, President Obama has not made a series of judicial nominees designed to pack the courts with ideologues.  Instead, he has worked with home state Senators and selected highly-qualified, predominated moderate nominees. 

Nor have we sought to force through nominations by ignoring the rules and traditions of the Senate or the Committee, as Republicans did.  Those practices are detailed in my contemporaneous statements at the time but ignored in the statement made last Wednesday.   For example, when I became Chairman in 2001, I made home state Senators’ “blue slips” public for the first time, preventing Senators from anonymously blocking Committee action on judicial nominees.  That was a bad practice that led to the pocket filibusters of more than 60 of President Clinton’s judicial nominees.  Also ignored in last Wednesday’s statement was the history of earlier filibusters, such as that of the Supreme Court nomination of Abe Fortas to be the Chief Justice and of President Clinton’s nominations to the Ninth Circuit. 

The statement was in many regards ahistorical or anti-historical.  In complaining about a handful of Fourth Circuit nominees in the last two years of President Bush’s administration, the statement ignored the fact that we had broken the logjam caused by eight years of Republican obstruction of President Clinton’s nominations to that circuit and that the examples cited were after vacancies had been reduced and in light of opposition from home state Senators to some of the nominees.  Indeed, we might have made even more progress had President Bush not proceeded for years to make several extreme nominations.  The statement also seems unaware of the work we did to resolve the impasse in the Sixth Circuit, resulting in every single vacancy in the circuit being filled by President Bush.

Regrettably, the Senate this year is not being allowed to consider the consensus, mainstream judicial nominees favorably reported from the Judiciary Committee.  It has taken nearly five times as long to consider President Obama’s judicial nominations as it did to consider President Bush’s during his first two years in office.  During the first two years of the Bush administration, the 100 judges confirmed were considered by the Senate an average of 25 days from being reported by the Judiciary Committee.  The average time for confirmed circuit court nominees was 26 days.  By contrast, the average time for the 41 Federal circuit and district and circuit court judges confirmed since President Obama took office is 90 days and the average time for circuit nominees is 148 days—and that disparity is increasing.  

Senate Republicans have refused to allow prompt consideration even to those consensus nominations that are reported unanimously and without opposition by the Judiciary Committee.   There is no good reason to hold up consideration for weeks and months of nominees reported without opposition from the Judiciary Committee.  I have been urging since last year that these consensus nominees be considered promptly and confirmed. 

In 2001 and 2002, the first two years of the Bush administration, the Senate with a Democratic majority confirmed 100 judicial nominees.  We obviously will not reach that level or reduce judicial vacancies as effectively as we did in those two years.  What we can do is consider the 23 judicial nominations already on the calendar.  That could bring us to 64 Federal circuit and district court confirmations.  If we also completed action on the 11 additional judicial nominees who participated in September hearings, that could bring us to a respectable total of 75 circuit and district court confirmations.  That would be in the range of judicial confirmations during President Reagan’s first two years (88) and President George H.W. Bush’s (72), but pale in comparison to the 100 confirmed in the first two years of the George W. Bush administration or those confirmed during President Clinton’s first two years (126).

# # # # #

Press Contact

David Carle: 202-224-3693

Related Files