12.23.10

Senate Returns 19 Judicial Nominations Reported By Committee; Most Supported By Republicans

WASHINGTON (Thursday, Dec. 23, 2010) – As the 111th Congress adjourned Wednesday, 19 judicial nominations reported by the Judiciary Committee were returned to the President without final action, including more than a dozen nominations that received unanimous or near unanimous support from the Committee.

“As the 111th Congress draws to a close, Senate Republicans have finally consented to consider half of the judicial nominations that have been pending on the Senate’s Executive Calendar, some for nearly a year, awaiting a final Senate vote,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).  “We began with 38 judicial nominees to be considered and the Senate is being prevented from voting on 19.”

Leahy continued, “These are all superbly qualified nominees, most were reported with bipartisan support and many unanimously.  Thirteen of these nominations on which we are not being allowed to vote are to fill judicial emergency vacancies, as determined by the nonpartisan Administrative Office of the U.S. Courts.  Yet, for month after month, many of these nominations have been stalled, just languishing before the Senate as Senate Republicans refused to consent to moving forward.”

Five judicial nominations were confirmed before the Senate adjourned Wednesday. However, the Senate this Congress confirmed just 60 circuit and district court nominations, the lowest total for the first two years of a presidency in the last 35 years.  Meanwhile, judicial vacancies across the country hover above 90.  Of the 19 nominations returned to the President, five were strongly supported by Republican home state Senators, and 13 were nominated to fill seats designated as judicial emergencies.  In addition, 13 of the nominations were reported by the Committee with the unanimous support of all 19 Democrats and Republicans.

In 2002, the Senate proceeded to confirm every judicial nomination pending on the Executive Calendar before the Senate adjourned, leading to 100 total circuit and district court confirmations for the first Congress of the Bush administration.

Throughout the 111th Congress, Senate Republicans have objected to requests to consider consensus judicial nominations.  It has taken considerably longer for President Obama’s nominations to receive final consideration by the Senate than it did for President Bush’s nominations during the first Congress of his administration.  Circuit court nominations waited six times longer to receive final votes on the Senate floor after being reported by the Senate Judiciary Committee.  District court nominations waited three and a half times longer to receive a final vote.

“It is a travesty that all of the well-qualified nominees favorably reported by the Judiciary Committee could not be confirmed before this Congress adjourns,” said Leahy.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
December 22, 2010

 

As the 111th Congress draws to a close, Senate Republicans have finally consented to consider half of the judicial nominations that have been pending on the Senate’s Executive Calendar, some for nearly a year, awaiting a final Senate vote.  We began with 38 judicial nominees to be considered and the Senate is being prevented from voting on 19.  These are all superbly qualified nominees, most were reported with bipartisan support and many unanimously.  Thirteen of these nominations on which we are not being allowed to vote are to fill judicial emergency vacancies, as determined by the nonpartisan Administrative Office of the U.S. Courts.  Yet, for month after month, many of these nominations have been stalled, just languishing before the Senate as Senate Republicans refused to consent to moving forward.  Congress will adjourn for the year without completing its work on these nominations. 

Rising Vacancies

Senate Republicans’ strategy of delaying and blocking judicial nominations across the board has led to judicial vacancies nearly doubling over the last two years.  Vacancies remain at nearly 100 with more than 40 judicial emergencies.  The Republican leadership was unmoved by pleas from the President, the Attorney General, two Supreme Court Justices, the President of the American Bar Association, the Federal Bar Association, retired Federal judges, current Chief Judges and Federal prosecutors calling on the Senate to address the growing vacancies crisis.  They disregarded the pleas to end the senseless delays and needless blockade of consensus nominations and to vote whether to confirm the nominations sent forward by the Senate Judiciary Committee to fill the vacancies in the Federal  courts. 

Each of the judicial nominations now before the Senate will upon adjournment be returned to the President, the vacancy will remain, and the confirmation process will have to start over next year.  Just a few years ago Senate Republicans were united in demanding that every nomination reported by the Senate Judiciary Committee to the Senate deserved a vote.  They argued that was our constitutional duty.  Well, the Constitution has not been amended.  The only thing that has changed is that the American people changed Presidents. 

In 2001 and 2002, the first two years of the Bush administration, the Senate Judiciary Committee reported 100 judicial nominees of President Bush.  I was the Chairman.  We did not adjourn in 2002 until we had given a vote to every one of those 100 nominees and confirmed them.  I did not support all of them but I did not prevent those votes.  I worked to fill the vacancies on the Federal courts.   That was with a Democratic majority in the Senate.  All 100 were considered before the end of the 107th Congress, including two controversial circuit court nominations reported and then confirmed during the lame duck session in 2002, after the midterm elections. 

This Congress the Senate Judiciary Committee held hearings, considered and was able to favorably report 80 nominees to Federal circuit and district court vacancies. Only 60 have been allowed Senate votes.  This is a historically low number and percentage for the first two years of a new presidency.  Last year only 12 Federal circuit and district court judges were confirmed.  It was the lowest number in more than 50 years.  This year the Senate has been allowed to consider fewer than 50 judicial nominees.  That has led to the lowest confirmation total for the first two years of a new presidency in 35 years.  And this is taking place during a period when Federal judicial vacancies have doubled.   

By nearly every measure—the number of nominees confirmed, the percentage of nominees confirmed, the pace of nominees being considered on the floor, the skyrocketing vacancy numbers—the results are dismal.  During the first two years of the Bush administration, Democrats in the Senate worked to consider and confirm 100 judicial nominees.  During the first two years of the Obama administration, Senate Republicans have limited Federal circuit and district court confirmations to 60.  They were delayed on average six times longer than it took President Bush’s judicial nominees to be considered by the Senate. 

Republicans Resumed Strategy of Delay and Obstruction

Senate Republicans have returned to the strategy they used during the Clinton administration, when they pocket filibustered more than 60 of his judicial nominations, leading to a vacancy crisis.  Their years of refusing to proceed on President Clinton’s nominations led Chief Justice William Rehnquist, a conservative appointed by Republican presidents, to chastise them for failing to address the needs of the Federal judiciary.  In those days, Federal judicial vacancies rose to more than 110 by the end of the Clinton administration, a historically high vacancy number.  Current across the board delays eventuated in 111 Federal court vacancies this year. 

When Democrats regained the Senate majority halfway into President Bush’s first year in office, we reported and confirmed 100 judicial nominees during the 17 months I served as Chairman of the Judiciary Committee in the 107th Congress.  We continued to work cooperatively to make progress on nominations whether in the majority or the minority for the rest of President Bush’s administration.  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 once the American people elected President Obama.  Senate Republicans have returned to the strategy of across-the-board delays and obstruction of the President’s judicial nominations, 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 confirmed less than 50 more Federal circuit and district judges.  That has led to the lowest confirmation total for the first two years of a new presidency in 35 years.  We are not even keeping up with retirements and attrition.   As a result, judicial vacancies rose again over 110 again this year.

The Senate’s Republican leadership seems determined to end the Congress as it began it, obstructing President Obama’s judicial nominations.  In November 2009, the Senate confirmed Judge David Hamilton of Indiana to the Seventh Circuit after rejecting a Republican filibuster of President Obama’s first judicial nomination.  Judge Hamilton was no radical.  He had the support of the Senate’s senior Republican, the senior Senator from Indiana.  He had served nearly 15 years on the Federal bench.  Rather than welcome the nomination as an effort by President Obama to step away from the ideological battles of the past, Senate Republicans ignored Senator Lugar’s support, distorting Judge Hamilton’s record and filibustering his nomination.  Republican Senators who had recently pledged never to filibuster a judicial nominee and those who had said they would do so only under extraordinary circumstances reversed themselves and joined the partisan filibuster.  Republican Senators who just a few years earlier had proclaimed such filibusters unconstitutional also joined.  They abandoned all they had said and filibustered a preacher’s son and fine judge who was known to and supported by his respected Republican home state Senator.

In filibustering President Obama’s first judicial nomination, Senate Republicans also ignored the standard they had set in a letter they sent to President Obama before he had made a single judicial nomination.  In that letter, they threatened to filibuster any nomination made without consultation.  Despite the fact that President Obama has reached across the aisle to consult, as he did with Senator Lugar of Indiana, Senate Republicans have filibustered and delayed judicial nominations virtually across the board.  

Delays and obstruction of Senate consideration has attended virtually all of well-qualified judicial nominees.  Contrary to their statements during the Bush administration that that every judicial nomination reported by the Senate Judiciary Committee was entitled to an up-or-down vote, Senate Republicans have refused consent for up-or-down votes on nominee after nominee.  Since the filibuster of Judge Hamilton, they have required the Majority Leader to file cloture on other highly-qualified circuit court nominees, indeed on a quarter of the 16 circuit court nominees the Senate has been allowed to consider. 

No Senator could claim the circumstances surrounding the filibusters of President Obama’s circuit court nominations to be extraordinary.  Republicans filibustered the nomination of Judge Barbara Keenan, a nominee with nearly 30 years of judicial experience, and the first woman to hold a number of important judicial roles in Virginia.  She was then confirmed 99-0 as the first woman from Virginia to serve on the Fourth Circuit Court of Appeals.  They filibustered the nomination of Judge Thomas Vanaskie, whose 16 years of experience as a Federal district court judge in Pennsylvania are now being put to good use on the Third Circuit.  They filibustered Judge Denny Chin of the Second Circuit, who also had 16 years of experience as a Federal district court judge.  He is now the only active Asian Pacific American judge to serve on a Federal appellate court, and his nomination was confirmed unanimously.

Unprecedented Obstruction of District Court Nominations

Senate Republicans’ tactics reached a new low as they obstructed consideration of district court nominations.   The blockade of these nominations is a dramatic departure from the traditional practice of considering district court nominations expeditiously and with deference to home state Senators.  Among these nominations were Louis Butler of Wisconsin, Edward Chen of California, and John McConnell of Rhode Island.  These nominee were reported by the Committee several times with strong support from their home state Senators who know the nominees and the needs of the courts in their states best.  All three were pending for months on the Senate Calendar.  In fact, Justice Butler and Judge Chen were first reported by the Judiciary Committee over a year ago.  Obstruction of these district court nominations is unprecedented.

Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate.  Out of these 2,100 nominees, only five have been reported by party line votes, and four of the five occurred in this Congress.  Less than 20 of the 2,100 nominees faced any opposition in Committee.  Since 1949, cloture motions have been filed on only three district court nominations.  All three nominations were confirmed, and in fact two of the cloture petitions were withdrawn.  This year Republican opposition to the Butler, Chen and McConnell nominations would have required cloture on all three, meaning that in one year they would have matched the number of cloture motions filed on district court nominees over the past 62 years.

These nominees are outstanding Americans who do us a great service by their willingness to serve on our Federal courts.  Justice Louis Butler, Jr., was nominated to fill an emergency vacancy on the U.S. District Court for the Western District of Wisconsin.  He has 16 years of judicial experience at the municipal and state court level and was the first African American to serve on the Wisconsin Supreme Court.  He has the strong support of both of his home state Senators and he earned the highest possible rating, unanimously well qualified, from the Standing Committee on the Federal Judiciary of the American Bar Association (ABA). 

Judge Edward Chen was nominated to fill an emergency vacancy on the U.S. District Court for the Northern District of California.  He has served that court as a Magistrate Judge for the last nine years and has accrued an impeccable record of fairness and impartiality.  He would have been only the second Asian American to serve as a Federal Judge in the 150-year history of that District.  He was also the first Asian American to serve the District as a Magistrate Judge.  Judge Chen earned the highest possible rating, unanimously well qualified, from the ABA’s Standing Committee on the Federal Judiciary, and he has the strong support of both of his home state Senators.

 

Jack McConnell was nominated to serve as a Federal district court judge in Rhode Island.  With more than 25 years of experience as a lawyer in private practice, Mr. McConnell has the strong support of both Senators from Rhode Island.  Individuals and organizations from across the political spectrum in that state have called for Mr. McConnell’s confirmation.  The Providence Journal endorsed his nomination by saying that he “in his legal work and community leadership has shown that he has the legal intelligence, character, compassion, and independence to be a distinguished jurist.”  A two-thirds majority of the Judiciary Committee, including Senator Graham, voted to favorably report Mr. McConnell’s nomination for confirmation.   

Goodwin Liu Should Have Received an Up-Or-Down Vote

The Senate should also have been able to have a debate and a vote on the nomination of Goodwin Liu of California to the Ninth Circuit Court of Appeals.  He is a professor at the University of California, Berkeley, School of Law, and was nominated by President Obama to fill an emergency vacancy on the Ninth Circuit.  An acclaimed scholar and a nationally recognized expert on constitutional law and educational law and policy, Professor Liu earned the highest possible rating, unanimously well qualified, from the ABA’s Standing Committee on the Federal Judiciary.  He is a former Supreme Court clerk and a Rhodes Scholar who would be only the second, active Asian Pacific American judge to serve on a Federal appellate court.  Both of Professor Liu’s home state Senators support his nomination. 

The conservative, Republican-appointed Chief Judge of the Ninth Circuit to which Professor Liu has been nominated has written the Senate to inform us of crushing caseloads and the urgent need for new judges.  Justice Anthony Kennedy this August warned the Ninth Circuit Judicial Conference about the threat posed by skyrocketing judicial vacancies in California and throughout the country.  He noted that, “if judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”  

Rather than following a partisan playbook, I wish Republican Senators had listened to the cross-section of people and organizations from across the political spectrum that have written in strong support of Professor Liu’s qualifications to serve on the Ninth Circuit.  These former prosecutors and judges, presidents of universities, renowned academics, distinguished practitioners, advocacy groups, and district attorneys believe Professor Liu would make an excellent federal judge.  So do I.

I reviewed the record of each of these nominees targeted for Republican opposition and carefully considered their character, background, and qualifications.  I believe they each would have been confirmed by the Senate.  That they will not be conservative activist judges should not disqualify them from consideration by the Senate or from serving on the Federal bench.

 

                                    Unprecedented Obstruction of Consensus Nominations

 

In addition to these nominees, there has been a destructive tact in which Senate Republicans have systematically delayed votes on consensus nominations.  The length of time nominations were stalled before a final Senate vote is the product of that systematic delay.  The fact is that nominations have taken on average six times as long before final Senate consideration after being reported from the Judiciary Committee, when comparing the confirmations in the first two years of the Bush and Obama administrations.  Several consensus nominations that were eventually confirmed unanimously required cloture petitions to be filed just to be considered.  Other evidence is the fact that more than a dozen consensus judicial nominations that have been through the entire process are being denied a final vote as the Senate adjourns.  I know of no precedent for this.  Indeed, in the lame duck session at the end of President Bush’s second year in office, we proceeded to report and confirm controversial circuit court nominees.  That the Senate is not being allowed to consider consensus nominees awaiting a final vote is a shame and an unnecessary burden on them and their families and for the courts and people they would serve. 

It is a travesty that all of the well-qualified nominees favorably reported by the Judiciary Committee could not be confirmed before this Congress adjourns.  That is what we did when we confirmed 100 judicial nominees of President Bush in 2001 and 2002.  All 100 of the nominees reported favorably by the Judiciary Committee received Senate votes and were confirmed, all 100.  They include 20 during the lame duck session that year and circuit court nominees reported after the election. This year even consensus nominees are not being allowed to be considered. 

 

When the Senate returns for the 112th Congress I hope that all Senators will learn from the mounting judicial vacancies and failure to make progress in this Congress.  I hope that we can follow a path toward restoring the Senate’s longstanding traditions of expeditiously considering nominations and reject the obstruction that blocked progress. We must do better to address the needs of the Federal courts and the American people who depend on them for justice.

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