07.20.10

Senate Republican Leader Objects – Again – To Debating Long-Pending Circuit Court Nomination

WASHINGTON (Tuesday, July 20, 2010) – The Senate Republican Leader today objected to a request from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) to schedule debate and a vote on a long-pending judicial nomination to the Sixth Circuit Court of Appeals.

The nomination of Jane Stranch to the federal appeals court for the Sixth Circuit was reported by the Senate Judiciary Committee more than eight months ago with bipartisan support, but has languished on the Senate’s executive calendar.  Today, Leahy sought agreement to schedule three hours of debate on the nomination, followed by a vote.  Senate Minority Leader Mitch McConnell (R-Ky.) objected to the request.

“With this objection, Senate Republicans have further ratcheted up the obstruction and partisanship that has become commonplace this Congress with regard to judicial nominees,” said Leahy.  “I had honestly hoped that working with the respected senior Senator from Tennessee [Senator Alexander], we would be able to obtain a standard time agreement.”

Senator Lamar Alexander, a Republican from Stranch’s home state of Tennessee, has sought consent from Senate Republicans to consider the nomination, but like Leahy’s request Tuesday, the efforts have been rejected.  There are more than 20 judicial nominations pending on the Senate calendar, including 12 which were reported by the Committee unanimously.  Last week, McConnell objected to a consent request to schedule debate and votes on the nominations of James Wynn and Albert Diaz to seats on the Fourth Circuit Court of Appeals.  Both nominations were reported by the Judiciary Committee in January.  Wynn’s nomination was reported unanimously; Diaz’s nomination was reported by a vote of 18-1.

“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.  He has by and large nominated well qualified moderates,” said Leahy.  “The Senate Republican leadership is holding up consideration of nominees reported unanimously from the Judiciary Committee for weeks and months for no reason.  Just last week, after a needless three month delay, the Senate confirmed a judge for the Northern District of Illinois unanimously.  That is more evidence of the pattern of stall and obstruct.”

During the first Congress of the Bush administration, the Democratic majority confirmed 100 district and circuit court nominations, compared to just 36 confirmed this Congress.  Bush judicial nominations confirmed by the Senate were considered an average of 25 days after being reported by the Judiciary Committee.  Bush nominations to the circuit courts during the first Congress of that administration waited an average of 26 days to be confirmed after being reported by the Committee.  In contrast, judicial nominations confirmed by the Senate this Congress have waited an average of 82 days to be confirmed after being reported by the Committee.  The average time that circuit court nominations have waited to be confirmed after being reported by the Judiciary Committee this year is 126 days.

The full text of Leahy’s statement follows.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Jane Stranch Of Tennessee
To The United States Court Of Appeals For The Sixth Circuit

July 20, 2010

Today I am hopeful that the Senate Republican leadership will finally agree to consideration of on one of the more than 20 judicial nominees which they have stalled from Senate consideration.  I refer to the nomination of Jane Stranch of Tennessee.  Ms. Stranch’s nomination was reported by a bipartisan majority of the Judiciary Committee last November, more than eight months ago. 

A native of Nashville, Mississippi, Ms. Stranch has practiced law in that community for 32 years, and has often appealed before the Sixth Circuit—the court to which she is now nominated.  She has decades of experience in labor and employment law, an expertise she put to good use when she taught a class on labor law at Nashville’s Belmont University.  Ms. Stranch also has an active appellate practice, as well as significant experience with alternative forms of dispute resolution, such as mediation and arbitration.  She is a leader in her community who dedicates significant time to pro bono work, civic matters, and her church.  She also has impressive academic credentials, having earned both her J.D., Order of the Coif, and her B.A., summa cum laude and Phi Beta Kappa, from Vanderbilt University.

Since this nomination was reported last November, all Democratic Senators have been prepared to debate and vote on her nomination.  I had given my friend, the distinguished senior Senator from Tennessee, my assurance about that.  I have spoken about the need to consider this nomination a number of times over the past several months. 

I know the senior Senator from Tennessee shares my frustration that this nomination has been stalled for the last eight months.  The senior Senator from Tennessee and I have discussed this many times.  Last week I went to him and said that I wanted to make this final effort to obtain a time agreement by which the Senate could consider her nomination.  He asked me to wait until today, which I have done.  I know that he has been seeking to obtain agreement on his side and I in no way fault the senior Senator from Tennessee, who has supported this nomination from the outset. 

Accordingly, at this time I ask unanimous consent, as if in Executive Session, that at a time to be determined by the Majority Leader, following consultation with the Republican Leader, that the Senate proceed to Executive Session to consider calendar number 552, the nomination of  Jane B. Stranch of Tennessee to be a judge on the United States Court of Appeals to the Sixth Circuit; that there be 3 hours of debate with respect to the nomination, with the time equally divided and controlled between the Chairman and ranking member of the Judiciary Committee, myself and Senator Sessions, or our designees;  that upon the use of yielding back of time, the Senate proceed to vote on confirmation of the nomination; that upon confirmation, the motion to reconsider be considered made and laid upon the table; that any statements relating to the nomination appear at the appropriate place in the Record, as if read; the President be immediately notified of the Senate’s action and the Senate then resume legislative session.

(Senator McConnell objected.)

I am terribly disappointed.  With this objection, Senate Republicans have further ratcheted up the obstruction and partisanship that has become commonplace this Congress with regard to judicial nominees. I had honestly hoped that working with the respected senior Senator from Tennessee, we would be able to obtain a standard time agreement.  I am not asking any Republican Senator to vote for the nominee, but simply to vote.  I am not asking Republican Senators to vote before they have had a chance to debate the nomination, only to agree to a reasonable time for debate.  If they do not think three hours reasonable, I wish they would indicate what time then think they need for such a debate.  During the past two years, their demands for time have gone unused in debates on the nominations.  Often, hours will be demanded in opposition without any of it being used for that purpose.  If it were just a matter of the number, I would hope we could have worked that out and reached an agreement.  Instead, this objection is like the Republican leader’s objection last week to the request from the Senator from North Carolina to consider two nominees from that state to the Fourth Circuit.  They were both reported by the Judiciary Committee last January, more than six months ago.  One was reported by a vote of 18 to one and the other by a vote of 19 to zero; they are supported by both home state Senators, one a Republican and one a Democrat.  Still the Republican leadership refuses to allow the Senate to consider them.

I was disappointed to see my friend from Kentucky object last week.  He did not speak about the nominees, or to their unquestioned qualifications, including their backgrounds in military service.  It seemed as if his justification was along the lines of tit-for-tat.  That is most unfortunate.  I note that when I became Chairman of the Judiciary Committee mid-way 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.  In fact, we did not.  Despite that fact that Senate Republicans pocket filibustered more than 60 of President Clinton’s judicial nominations and refused to proceed on them, including one of the nominees from North Carolina now pending before us, again, 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 contrast, during these first two years of President Obama’s  term, Senate Republicans have allowed only 36 Federal circuit and district court nominees to be considered by the Senate—100 to 36.

Ironically, the history of the Sixth Circuit and our efforts to turn away from the destructive practices that Republicans had followed during the Clinton years is detailed in my July 29, 2002, Senate statement in support of another Tennessee nominee, Judge Julia Gibbons.  As Chairman, I proceeded to a confirmation hearing for Judge Gibbons in April 2002; it was the first hearing for a Sixth Circuit nominee in five years.  Despite the well-qualified nominees of President Clinton, the Republican majority did not consider them.  Republicans refused to consider the nominations of Judge Helene White, an experienced state court judge; Kathleen McCree Lewis, an accomplished attorney and the daughter of former Solicitor General of the United States and former Sixth Circuit Judge Wade McCree; and Kent Markus, a law professor and former Justice Department official who had the support of his Republican home State Senator.  This was the partisan record Senate Democrats overcame when in the Senate majority. Republicans’ pocket filibusters of President Clinton’s nominees resulted in numerous Sixth Circuit vacancies.  By proceeding with President Bush’s nominations of Judge Julia Gibbons of Tennessee and then his nomination of Judge John Rogers of Kentucky, to the Sixth Circuit in 2002, the Democratic Senate majority did not engage in a tit-for-tat but acted to break the logjam the Republican obstruction had created. 

When I resumed the chairmanship of the Judiciary Committee in 2008, we were able to fill the last remaining vacancies on the Sixth Circuit when we confirmed President Bush’s nominations of Judge Helene White and Judge Ray Kethledge of Michigan to the Sixth Circuit.  Judge White had been one of President Clinton’s nominations in 1997 who was pocket filibustered after having waited in vain for a hearing for more than 1,450 days.  During the Bush years the Sixth Circuit went from half vacant to full.

With respect to Senate Republican leadership’s current practice of holding, delaying and obstructing Senate consideration of judicial nominees reported favorably by the Judiciary Committee, this is a tactic they reserve for nominees of Democratic Presidents.  Indeed, when President Bush was in the White House, Senate Republicans took the position that it was unconstitutional and wholly inappropriate not to vote on nominees approved by the Senate Judiciary Committee.  With a Democratic President, they have reverted to their secret holds that resulted in pocket filibusters during the Clinton years.  Last year, Senate Republicans successfully stalled all but a dozen Federal circuit and district court nominees.  That was the lowest total for judges confirmed in more than 50 years.  They have continued that practice despite the fact that judicial vacancies continue to hover around 100, with more than 40 declared judicial emergencies.

No one should be confused: The current obstruction and stalling by Senate Republicans is unprecedented.  There is no systematic counterpart by Senate Democrats.  In fact, 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.  The average time for the 36 Federal circuit and district and circuit court judges confirmed since President Obama took office is 82 days and the average time for circuit nominees is 126 days.

Overall judicial vacancies were reduced during the Bush years from almost 10 percent to less than four percent.  Federal judicial vacancies are now over 10 percent.  During the Bush years, the Federal circuit court vacancies were reduced from a high of 32 down to single digits.  That progress has not continued with President Obama.  Instead, Republican obstruction is putting that progress at risk.  During the Bush years, we reduced vacancies on nine circuits.  Since then, vacancies on six circuits have risen.  I note that during the Clinton years, Republican obstruction succeeded in virtually doubling Federal circuit vacancies.

I trust that the Republican leader remembers how I treated and Senate Democrats treated judicial nominees from Kentucky.  During the 17 months I chaired the Judiciary Committee during President Bush’s first two years, we proceeded to consider and confirm Judge John Rogers of Kentucky to the Sixth Circuit by voice vote before the end of the session in 2002 having already confirmed Judge Danny Reeves and Judge Karen Caldwell to the Eastern District of Kentucky, and of course, Judge David Bunning to the Eastern District of Kentucky by voice vote, as well. During the more than four years that Republicans were in the majority during the Bush presidency, one other judge for the Eastern District of Kentucky was confirmed, Judge Gregory Van Tatenhove, a former aide to the senior Senator from Kentucky.  The year I resumed the Judiciary Committee chairmanship, we proceeded to confirm Judge Amul Thapar to the Eastern District of Kentucky.  Nominees the Republican leader supported for his home state’s vacancies were very well treated.

I am confident the senior Senator from Tennessee remembers how fairly we treated judicial nominees from his state.  I was chair when we broke a longstanding logjam on the Sixth Circuit by confirming Judge Julia Gibbons of Tennessee in July 2002.  During the first two years of the Bush administration we worked to see the Senate also confirm Samuel Mays, Jr., as a judge for the Western District of Tennessee and Judge Thomas Phillips as a judge for the Eastern District of Tennessee. When I resumed the chairmanship in 2008, we also facilitated the Senate confirmation of Judge Stanley Anderson to be a judge for the Western District of Tennessee.  During the intervening years three other nominees were considered and confirmed to be Eastern District of Tennessee judges, Judge Thomas Vartan, Judge Ronnie Greet and Judge Harry Mattice, Jr.  In addition Judge J. Daniel Breen was confirmed to be a judge in the Western District of Tennessee. 

There did come a time in the 108th Congress when President Bush and Senate Republicans were intent on packing the courts with ideologues and the Republican Chairman of the Judiciary Committee violated the rules and practices of the Committee in support of this effort.  They forced filibusters of 10 nominees, six of which were ultimately confirmed. 

I have not done what the Republican Chairman did.  I have respected and protected the rights of the minority.  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.  He has by and large nominated well qualified moderates.  

I have tried to ratchet up the cooperation between parties and branches in my role as Chairman.  It is disappointing to see the Senate Republican leadership take the opposite approach.  They are holding up consideration of nominees reported unanimously from the Judiciary Committee for weeks and months for no reason.  Just last week, after a needless three month delay, the Senate confirmed a judge for the Northern District of Illinois unanimously.  That is more evidence of the pattern of stall and obstruct.  Earlier this year the Majority Leader had to file cloture to get to a vote on the nomination of Judge Barbara Keenan of Virginia to the Fourth Circuit.  When the vote was held, she was confirmed unanimously.

Republicans’ sense of injury is misplaced in my view.  Moreover, the disproportionateness of their response disserves the American people and our Federal justice system. 

Jane Stranch of Tennessee is just one example of the harm they are causing. Judge James Wynn of North Carolina is another example, as is Judge Albert Diaz also of North Carolina.  The list includes the 21 judicial nominees currently stalled by Republican objection from final Senate consideration but also many of the 36 who were needlessly delayed.  What is being perpetuated is a shame.   

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