09.24.12

Senate Republicans Leave Town After Blocking Dozens Of Judicial Nominations

WASHINGTON (Monday, September 24, 2012) –The Senate recessed last week with 15 district court nominees left pending on the executive calendar, and another four circuit court nominees also still awaiting Senate approval. With court vacancies at historic highs, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) blasted Republicans for allowing just two pending district nominees to be confirmed before leaving town.

“We all know that justice delayed is justice denied.  By denying confirmation votes to 15 of these 17 nominations, Senate Republicans are denying justice to the American people,” Leahy said.  “By refusing to vote on these 15 nominations, Senate Republicans have declared that they are unconcerned about the millions of Americans who will continue to lack adequate access to our Federal courts and speedy justice.”  

Both Gonzalo Curiel, nominated to fill a judicial emergency vacancy on the U.S. District Court for the Southern District of California, and Robert Shelby, nominated to fill a judicial emergency vacancy on the U.S. District Court for the District of Utah, were confirmed late last week to fill emergency vacancies. Of the 15 district court nominees left pending on the calendar, 10 would also fill a judicial emergency. Senate Democrats sought to confirm all those pending nominations last week, but in their continued stonewalling, Republicans blocked the request. As a result, the Senate adjourned with more pending nominations on the calendar this year than during the last general election cycle in 2008 when not a single nominee was left on the calendar. During that year, and with bipartisan compromise, the Senate Judiciary Committee processed and the full Senate confirmed 24 of President George W. Bush’s district court nominees.

 

Senate Republicans have not explained their unprecedented obstruction of President Obama’s consensus nominees, they just try to pretend it does not exist,” Leahy said. “The American people know better, and they deserve better.”

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Nominations Pending On The Senate Calendar

Patty Shwartz (3rd Circuit)

Reported on March 8, 2012

Richard Gary Taranto (Federal Circuit)

Reported on March 29, 2012

William J. Kayatta, Jr. (1st Circuit)

Reported on April 19, 2012

Michael P. Shea (D CT)

Reported on April 26, 2012

Robert E. Bacharach (10th Circuit)

Reported on June 7, 2012

Paul William Grimm (D MD) 

Reported on June 7, 2012

Mark E. Walker (ND FL)

Reported on June 7, 2012

John E. Dowdell (ND OK)

Reported on June 7, 2012

Brian J. Davis* (MD FL)

Reported on June 21, 2012

Terrence G. Berg* (ED MI)

Reported on July 12, 2012

Jesus G. Bernal* (CD CA)

Reported on July 12, 2012

Lorna G. Schofield (SD NY)

Reported on July 12, 2012

Frank Paul Geraci, Jr.* (WD NY) 

Reported on July 19, 2012

Fernando M. Olguin* (CD CA)

Reported on July 19, 2012

Matthew W. Brann* (MD PA) 

Reported on July 19, 2012

Malachy Edward Mannion* (MD PA) 

Reported on July 19, 2012

Thomas M. Durkin* (ND IL) 

Reported on August 2, 2012

William H. Orrick, III* (ND CA)

Reported on August 2, 2012

Jon S. Tigar* (ND CA)

Reported on August 2, 2012

*Indicates this nominee will fill a Judicial Emergency

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Statement of Senator Patrick Leahy

Chairman, Senate Judiciary Committee

On the Nominations of Gonzalo Curiel and Robert Shelby

September 21, 2012

Senate Republicans’ partisan obstructionism has reached a new low.  There are 17 district court nominees pending before the Senate, and 12 of them would fill judicial emergency vacancies on our Federal trial courts.  In an unprecedented breaking from our tradition, Senate Republicans have decided that they will recess for the election and deny almost all of these consensus nominees confirmation.  Worse, they have decided to extend the delays that Americans face in our overburdened Federal courts by denying new judges to those courts.  We all know that justice delayed is justice denied.  By denying confirmation votes to 15 of these 17 nominations, Senate Republicans are denying justice to the American people.  By refusing to vote on these 15 nominations, Senate Republicans have declared that they are unconcerned about the millions of Americans who will continue to lack adequate access to our Federal courts and speedy justice. 

Sadly this is just one more example of Senate Republicans putting partisanship ahead of the interests of the American people.  The refusal to allow votes on consensus nominees has become standard operating procedure for Senate Republicans.  They refused to vote on 10 judicial nominees at the end of 2009, left 19 judicial nominees pending at the end of 2010, and blocked votes on 19 judicial nominees pending at the end of 2011.  It took through May of this year to clean up the backlog left from last year.  Then in June Senate Republicans declared their shutdown of confirmations.  I have served in the Senate for 37 years, and I have never seen so many judicial nominees, reported with bipartisan support, be denied a simple up-or-down vote for four months, five months, six months, even 11 months.  I have never seen such twisted applications of their “Thurmond Rule” and never have I seen the Thurmond Rule used to block votes on consensus district court nominees.  And if there was any doubt that Senate Republicans insist on being the party of “no”, their current decision to deny votes on these highly-qualified, noncontroversial district court nominees, supported by their home state Senators both Republican and Democratic, while our Federal courts still have almost 80 vacancies, shows that they care more about opposing this President’s nominees than helping the American people.

Before the American people elected Barack Obama as our President, district court nominees were generally confirmed within a couple of weeks of being reported by the Judiciary Committee.  This was true of those nominated by Republican Presidents and Democratic Presidents.  Deference was traditionally afforded to home state Senators and district court nominees supported by home state Senators were almost always confirmed unanimously. 

However, Senate Republicans have raised the level of partisanship so that district court nominees have now become wrapped around the axle of partisanship.  And that is unfortunate.  In just this year, the Majority Leader has been forced to file cloture on 23 of President Obama’s judicial nominees, including 19 district court nominees.  Every single one of those 23 nominees had bipartisan support, and when the Senate was finally allowed to vote on them, all of the 22 who did receive an up-or-down vote were confirmed with votes from both Republican and Democratic Senators. 

In spite of this unprecedented obstruction of President Obama’s nominees, Senate Republicans are oblivious to their foot-dragging and the harm it is creating for Americans seeking justice from our Federal courts across the country. 

There are currently 78 Federal judicial vacancies.  Judicial vacancies during the last few years have been at historically high levels and have remained near or above 80 for nearly the entire first term of the President.  Nearly one out of every 11 Federal judgeships is currently vacant.  Vacancies on the Federal courts are more than two and one half times as many as they were on this date during the first term of President Bush.  That is not what any objective observer would call “consistent progress.”

The fact is that due to across-the-board obstruction by Senate Republicans, we remain well behind the pace we set during President Bush’s first term.  According to the Congressional Research Service, 95 percent of President Bush’s district court nominees were confirmed in his first term.  We would have had to confirm all 17 of the district court nominees the Majority Leader sought consent earlier this week, just to get close to parity with that level.  Moreover, President Obama’s district court nominees have been consistently stalled, being forced to wait nearly three times longer for a Senate vote once reported by the Judiciary Committee.

Nor has the Senate even been allowed to keep pace with the progress that Senate Democrats made on President Bush’s district court nominees in 2008, the last year of his presidency.  That year, the Committee reported 24 district court nominees and all 24 were confirmed.  We continued holding hearings and the Committee reported and the Senate then confirmed nominees into September of that presidential election year.  This year, the Senate has been allowed to confirm only 13 district court nominees reported this year.  Because of Republican obstruction, the Senate has barely accomplished half of what we did in 2008. 

Indeed, in September 2008, the Judiciary Committee held hearings on and then reported 10 district court nominees, all of whom were then confirmed by unanimous consent in that same month.  Contrary to the assertion from the Republican leader, they were not backed up and long delayed.  We did not do what Senate Republicans are now doing.   We moved promptly on consensus trial court nominees.  This year, Republicans have backlogged consensus nominees who were reported in April, five months ago. None of these nominees has been pending for less than seven weeks.  To date, the Senate has been allowed to confirm one district court nominee this September while 17 other Federal trial court nominees await Republicans agreeing to a vote so that they can be confirmed and get to work for the American people. 

There are still far too many judicial vacancies and the Republican leader’s efforts to slice and dice various numbers in ways most flattering to this obstruction do nothing to explain why we cannot make more progress.  The Majority Leader is not “jamming” through nominees when he asks for votes that should have taken place before the Memorial Day, Fourth of July, and August recesses. 

Despite the Republican filibuster against Caitlin Halligan to serve on the D.C. Circuit, Patty Shwartz of New Jersey to serve on the Third Circuit; their filibuster of Judge Barbara Keenan of Virginia to serve on the Fourth Circuit; their opposition to Justice Sonia Sotomayor, Justice Elena Kagan, Judge Jane Stranch of Tennessee to serve on the Sixth Circuit, Judge Susan Carney of Connecticut to serve on the Second Circuit, Judge Bernice Donald of Tennessee to serve on the Sixth Circuit, Judge Morgan Christen of Alaska to serve on the Ninth Circuit, Judge Stephanie Thacker of West Virginia to serve on the Fourth Circuit, Judge Jacqueline Nguyen of California to serve on the Ninth Circuit, Judge Nancy Freudenthal of the District of Wyoming, Judge Benita Pearson of the Northern District of Ohio, Judge Susan Hickey of the Western District of Arkansas, Judge Ali Nathan of the Southern District of New York, Judge Cathy Bissoon of the Western District of Pennsylvania, Judge Yvonne Rogers of the Northern District of California, Judge Sharon Gleason of the District of Alaska, Judge Cathy Bencivengo of the Southern District of  California, Judge Margo Brodie of the Eastern District of New York, Judge Beth Phillips of the Western District of Missouri, Judge Gina Groh of the Northern District of West Virginia, Judge Ronnie Abrams of the Southern District of New York, Judge Susie Morgan of the Eastern District of Louisiana, Judge Miranda Du of the District of Nevada and Judge Mary Lewis of the District of South Carolina, there is one area in which we have been able to make progress is spite of Senate Republican obstruction.  With the confirmation last week of Judge Stephanie Rose to the district court in Iowa, President Obama has already, in his fourth year in office, appointed as many women to the Federal bench as President Bush had in all eight years in which he was President.  I hope that all Americans are proud of President Obama’s outstanding effort to increase diversity in the Federal judiciary and to ensure that it better reflects all Americans.  Those commendable efforts are not preventing votes on the 17 Federal trial court nominees ready for final Senate action.  Senate Republicans are preventing those votes.

I wish Senate Republicans approached this as something other than an ill-conceived game of tit for tat.  This obstruction has real costs to the American people.  Last week I inserted in the Record an article about the “Human Costs of Judicial Confirmation Delays.”  The author, Andrew Cohen, described the problems facing just one of our Nation’s 94 district courts.  In the Middle District of Pennsylvania, where there are two judicial emergency vacancies, a litigant had to wait nearly two months for an “urgent injunction hearing” because there “simply aren't enough federal judges in the Middle District of Pennsylvania to handle his case.”  In that District, senior judges have had to take on far more cases than they would otherwise.  Four of those senior judges are at least 86 years old.  The Chief Judge of that district called it an “absurdity.”  It is not fair to the senior judges, and it is not fair to the litigants who rely on the court to do justice.  Two of the Federal trial court nominees being held hostage by Senate Republicans would fill judicial emergency vacancies in the Middle District of Pennsylvania.

This is just one example of the damage done to our courts by needlessly delayed confirmations.  I have heard from judges around the country whose courts have vacancies, including in Illinois and Florida.  They are working hard to keep their courts functioning, but they need help to ensure that all Americans have access to courts and to justice.  There are also judicial emergency vacancies in California, New York and Illinois that we could have filled this week but Senate Republicans objected.  Of the 17 district court nominees pending before the Senate a dozen would fill judicial emergency vacancies.

These longstanding vacancies are harming the American people, but it does not have to be this way.  Americans seeking justice in Federal trial courts in California, Connecticut, and Utah should not have to wait five months for a judge because Senate Republicans will not proceed with nominations that have bipartisan support and have been considered and voted on by the Senate Judiciary Committee.  Americans in Florida, Illinois, Maryland, Michigan, New York, Pennsylvania, and Oklahoma should not have to wait four and five extra months for their courtrooms to have judges.  If we were keeping pace with what Senate Democrats did in President Bush’s first term and as recently as 2008, those nominees would be confirmed.  They would be hearing cases and providing justice today.

Some Senate Republicans have sought to justify their inaction on nominations by complaining that the President has not sent us enough nominees.  The fact is that there are 17 district court nominees who can be confirmed right now, including 12 who would fill emergency vacancies.  The names of these 17 nominees have been printed in the Senate Executive Calendar every day for the last several months, every day since they were voted on by the Senate Judiciary Committee months ago.  There is no excuse for not acting on them.

Today the Senate will finally be allowed to vote on the nomination of Gonzalo Curiel to fill a judicial emergency vacancy on the U.S. District Court for the Southern District of California.  He has the support of his home state Senators, Senator Feinstein and Senator Boxer.  His nomination was reported with a virtually unanimous voice vote by the Judiciary Committee five months ago.  The only objection came as a protest on another issue by Senator Lee. 

Judge Curiel currently serves as a judge on the Superior Court of California in San Diego County.  Prior to joining the state bench in 2006, Judge Curiel spent 17 years as a Federal prosecutor and 10 years in private practice.  As a Federal prosecutor he rose to become Chief of the Narcotics Enforcement Section for the Southern District of California, and led the successful investigation and prosecution of a multibillion dollar trafficking organization responsible for over 100 drug-related murders in the United States and Mexico.

The Senate is finally being allowed to vote on the nomination of Robert Shelby to fill a judicial emergency vacancy on the U.S. District Court for the District of Utah.  He is currently a shareholder at the Salt Lake City law firm of Snow, Christensen & Martineau.  After law school he served as a law clerk to Judge J. Thomas Greene in the District of Utah, the same court to which he is nominated.  His nomination, which has the support of both of Utah’s Senators, Senator Hatch and Senator Lee, was reported nearly unanimously by the Judiciary Committee by voice vote nearly five months ago.

Further delays on the 15 additional district court nominees still awaiting their confirmation votes do not help the American people.  These nominees should be providing justice for the American people.  Supreme Court Justice Anthony Kennedy said recently that this extreme partisanship erodes the public’s confidence in our courts and “makes the judiciary look politicized when it is not, and it has to stop.”  He is right.  If Senate Republicans have a good reason for why courts in California and Illinois and Michigan and New York and Pennsylvania should remain overburdened and unable to provide the quality and speedy justice Americans deserve, then I wish they would let the American people know what that reason is.  The fact is, Senate Republicans have not explained their unprecedented obstruction of President Obama’s consensus nominees, they just try to pretend it does not exist.  The American people know better, and they deserve better.

Americans are rightfully proud of our legal system and its promise of access to justice and speedy trials.  This promise is embedded in our Constitution.  When overburdened courts made it hard to keep this centuries-old promise, the Senate should work in a bipartisan manner to fill judgeships and to create and fill new judgeships.  That is what Senate Democrats did when Ronald Reagan, George H.W. Bush and George W. Bush were President.  Since the American people elected President Obama, Senate Republicans have determined that they are no longer interested in whether or not our courts are able to meet this fundamental guarantee.  They have decided that it is acceptable for hardworking Americans to wait two months for “urgent” hearings, and that the ten additional judicial emergency vacancies they could fill right now should remain vacant for no good reason.  The American people deserve better.

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