03.02.10

Senate Should Hold Up-Or-Down Votes On Noncontroversial Judicial Nominees

WASHINGTON – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke on the Senate Floor Tuesday about delays in confirming noncontroversial judicial nominations.  Fourteen judicial nominations reported by the Judiciary Committee are pending on the Senate’s Executive Calendar.

The Senate is scheduled to vote on a motion to end debate on the nomination of Barbara Milano Keenan to fill a vacancy on the Fourth Circuit Court of Appeals.  Keenan is a Justice on the Virginia State Supreme Court, and her nomination was unanimously reported by the Judiciary Committee on October 29, more than four months ago.

“There are now eight judicial nominations on the Senate Executive Calendar that were reported from the Senate Judiciary Committee without a single dissenting vote, including Barbara Keenan,” said Leahy.  “When Republicans allow the Senate to consider them, they will all be approved overwhelmingly, if not unanimously.  I urge Republicans to agree to consider and confirm them today.  I further call upon Republicans to agree to time agreements on each of the other six judicial nominees ready for final Senate action.”

The Senate has confirmed just 15 circuit and district court nominations this Congress.  By this date during President Bush’s first term in office, the Senate, with a Democratic Majority, had confirmed 39 circuit and district court nominations.  Eight of the 14 judicial nominations pending on the Senate’s Executive Calendar were reported by the Judiciary Committee without dissent.

Judicial Nominations Pending On Executive Calendar

Nominee

Days Since Nomination

Pending On Calendar

Barbara Milano Keenan, 4th Circuit    

169 days

124 days
Reported Without Dissent

Jane Branstetter Stranch, 6th Circuit

208 days

103 days

Thomas I. Vanaskie, 3rd Circuit           

208 days

89 days

Denny Chin, 2nd Circuit

147 days

82 days
Reported Without Dissent

William M. Conley, West. Dist. Wis.

124 days

82 days
Reported Without Dissent

O. Rogeriee Thompson, 1st Circuit

147 days

40 days
Reported Without Dissent

James A. Wynn, Jr., 4th Circuit

118 days

33 days

Albert Diaz, 4th Circuit

118 days

33 days
Reported Without Dissent

Edward M. Chen, North Dist. Calif.

140 days
41 days
TOTAL: 181 days

70 days
26 days
TOTAL: 96 days

Louis B. Butler, Jr., West. Dist. Wis.

85 days
41 days
TOTAL: 126 days

21 days
26 days
TOTAL: 47 days

Nancy D. Freudenthal, Dist. Wyoming

89 days

19 days
Reported Without Dissent

Denzil P. Marshall, Jr., East. Dist. Ark.

89 days

19 days
Reported Without Dissent

Timothy S. Black, South. Dist. Ohio

68 days

19 days
Reported Without Dissent

Benita Y. Pearson, North Dist. Ohio

89 days

19 days

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

March 2, 2010

Full Record Statement, As Prepared

The nomination of Justice Barbara Keenan of Virginia to the Fourth Circuit should be noncontroversial; her nomination should have been confirmed long ago.  She has the support of her home state Senators and that of Virginians from both parties and many others.  She was approved unanimously by the Senator Judiciary Committee over four months ago.  I suspect that like the confirmations of Judge Viken, Judge Lange, Judge Berger, Judge Honeywell, Judge Reiss, Judge Kallon, Judge Nguyen, Judge Seeborg, Judge Gee, Judge Peterson, Judge Martin and Judge Greenaway, this nomination could well be approved unanimously.  Certainly it will be confirmed with an overwhelming majority.  Still, it is being filibustered by Senate Republicans.  Like so many issues before the Senate, progress on this matter is being stymied.  This is an abuse of the Senate’s rules, and a stark departure from the Senate’s traditions.

The Senate is far behind where we should be in helping to fill judicial vacancies.  Vacancies have skyrocketed to more than 100, and more have been announced.  We need to do better.  The American people deserve better. 

By March 2, 2002, during President Bush's first term, the Senate had confirmed 39 Federal circuit and district court nominations. That was a tumultuous period in which the Senate Democratic majority worked hard to make progress with a staunchly partisan Republican President.  That included the period of the 9/11 attacks and the anthrax attack upon the Senate.  In spite of all the obstacles, by March 2, Senate Democrats had moved forward to help confirm 39 of President Bush’s judicial nominees. 

Although the Senate Judiciary Committee has favorably reported 29 of President Obama’s Federal circuit and district court nominees to the Senate for final consideration, because of Republican obstruction, the Senate has confirmed only 15 Federal circuit and district court nominees.  So, by March 2 of the second year of President Bush’s first term, 39; by March 2 of the second year of President Obama’s presidency, 15.  That is more than 60 percent fewer. 

Despite the fact that President Obama began sending judicial nominations to the Senate two months earlier than President Bush, after President Obama’s 13 months in office the Senate is has confirmed only 15 Federal circuit and district court judges.  During the 17 months I chaired the Judiciary Committee during President Bush’s first two years, the Senate confirmed 100 of his judicial nominees.  That is the stark reality and the difference in fair treatment and approach.  

Last year’s total was the fewest judicial nominees confirmed in the first year of a Presidency in more than 50 years.  Those 12 Federal circuit and district court confirmations were even below the 17 the Senate Republican majority allowed to be confirmed in the 1996 session.  After that presidential election year, Chief Justice Rehnquist began criticizing the pace of judicial confirmations and the partisan Republican tactics. 

Among the frustrations is that Senate Republicans have delayed and obstructed nominees chosen after consultation with Republican home state Senators.  Despite President Obama’s efforts, Senate Republicans have treated his nominees much, much worse.

I noted when the Senate considered the nominations of Judge Christina Reiss of Vermont and Mr. Abdul Kallon of Alabama relatively promptly that they should serve as the model for Senate action. Sadly, they are the exception rather than the model. They show what the Senate could do, but does not.  Time and again, noncontroversial nominees are delayed. When the Senate does finally consider them, they are confirmed overwhelmingly. Of the 15 Federal circuit and district court judges confirmed, twelve have been confirmed unanimously.

That is right.  Republicans have only voted against three of President Obama's nominees to the Federal circuit and district courts.  One of those, Judge Gerry Lynch of the Second Circuit, garnered only three negative votes and 94 votes in favor.  Judge Andre Davis of Maryland was stalled for months and then confirmed with 72 votes in favor and only 16 against.  Judge David Hamilton was filibustered in a failed effort to prevent an up-or-down vote.

The obstruction and delay is part of a partisan pattern.  Even when they cannot say “no,” Republicans nonetheless demand that the Senate go slow. The practice is continuing. This is the 17th filibuster of President Obama's nominees. That does not count the many other nominees who were delayed or are being denied up-or-down votes by Senate Republicans refusing to agree to time agreements to consider even noncontroversial nominees.

Senate Republicans unsuccessfully filibustered the nomination of Judge David Hamilton of Indiana to the Seventh Circuit, despite support for his nomination from the senior Republican in the Senate, Dick Lugar of Indiana.  Republicans delayed for months Senate consideration of Judge Beverly Martin of Georgia to the Eleventh Circuit, despite her endorsement from both her Republican home state Senators.  When Republicans finally agreed to her consideration on January 20, she was confirmed unanimously.  Whether Jeffrey Viken or Roberto Lange of South Dakota, who were supported by Senator Thune, or Charlene Edwards Honeywell of Florida, who was supported by Senators Martinez and LeMieux, virtually all of President Obama’s nominees have been prevented prompt Senate action by Republican objections.

But instead of making progress by promptly considering Justice Keenan’s noncontroversial nomination, we are now facing yet another Republican filibuster.  There is no explanation for these delays, nor could there be.  Justice Keenan is currently a justice on the Supreme Court of Virginia; she has an impressive judicial background.  She has been a judge for the last 29 years—half of her life—and has served on each of the four levels of the Virginia State courts.   If confirmed, Justice Keenan would be the first woman from Virginia to serve on the Fourth Circuit.  She was also the first female general district court judge in Virginia, the first female circuit court judge in that State, the first woman named to the Virginia Court of Appeals, and the second female justice on the Virginia Supreme Court.

The American Bar Association’s Standing Committee on the Federal Judiciary has unanimously rated her “well qualified”—its highest rating—to sit on the Fourth Circuit.  The Virginia State Bar rated her “highly qualified” by unanimous vote, and bar associations throughout the State gave her their highest recommendation.  Many of the lawyers who make up those associations have practiced before Justice Keenan, so their strong support of her nomination is telling.

Republican Senators should act as we acted when we worked together to reduce vacancies during the Bush administration.  In fact, our work led to a reduction in vacancies in nearly every circuit.  When President Bush left office, we had reduced vacancies in nine of the 13 circuits from when President Clinton left office.  One of the circuits where we succeeded in reducing vacancies was the Fourth Circuit, the circuit to which Justice Keenan has been nominated.

Like the nomination of Steven Agee of Virginia to the Fourth Circuit, confirmed in President Bush’s last year in office by a Senate with a Democratic Majority, Justice Keenan’s nomination should be able to be confirmed without further obstruction and delay.  The Senate proceeded quickly to consider the Agee nomination, even though it was a presidential election year, because President Bush had cooperated with the home state Senators to withdraw the controversial nomination of Duncan Getchell and instead nominate Judge Agee.  Mr. Getchell had been nominated over the objection of both Virginia Senators, a Republican and a Democratic, and his nomination was finally withdrawn after many wasted months.  The Agee nomination also followed years of contentiousness, as President Bush insisted on nominations like those of Jim Haynes and Claude Allen.  When a president from either party works with home state senators to identify noncontroversial, well-qualified nominees, the Senate should move quickly to consider them.

Regrettably, it has taken the Senate twice as long to consider Justice Keenan’s nomination as it did Judge Agee’s for a seat on the same Court.  The Senate can and must do better for the American people and the rule of law.

There is an easy place to start.  The Senate can virtually double its total by considering the 14 judicial nominees currently on the Senate Executive Calendar without additional delay.  In December, I made several statements in this chamber about the need for progress on the nominees reported by the Senate Judiciary Committee.  I also spoke repeatedly to Senate leaders on both sides of the aisle and made the following proposal: Agree to immediate votes on those judicial nominees that are reported by the Senate Judiciary Committee without dissent, and agree to time agreements to debate and vote on the others. 

At the time there were six judicial nominees on the Senate Executive Calendar that no Republican member of the Judiciary Committee had opposed.  Republicans refused.  We have considered just three of those nominations in the last three months.  They were each confirmed unanimously, without a single Republican Senator voting or speaking against them.  It should not have taken three months to confirm three nominees unanimously.  It has become the Republican strategy of delay -- delay even those nominees they support.  They delayed confirmation of Judge Beverly Martin of Georgia to the Eleventh Circuit until this year.  They delayed confirmation of Judge Joseph Greenaway of New Jersey to the Third Circuit until last month.  Still, three of the nominees who were reported unanimously last year are still stalled on the Senate Executive Calendar awaiting Republican agreement to vote on them.

I renew my proposal.  There are now eight judicial nominations on the Senate Executive Calendar that were reported from the Senate Judiciary Committee without a single dissenting vote, including Barbara Keenan.  When Republicans allow the Senate to consider them, they will all be approved overwhelmingly, if not unanimously.  I urge Republicans to agree to consider and confirm them today. 

I further call upon Republicans to agree to time agreements on each of the other six judicial nominees ready for final Senate action.  Only one Republican Senator in the Judiciary Committee voted against Judge Wynn of North Carolina; only three voted against Judge Vanaskie of Pennsylvania; only four voted against Ms. Stranch of Tennessee, who is supported by the senior Senator from Tennessee, a Republican and a member of the Senate Republican leadership. Senate Republicans should identify the time they require to debate the nominations of Justice Butler of Wisconsin, Judge Chen of California and Judge Pearson of Ohio, who are all well-qualified nominees for district court vacancies, which are typically considered and confirmed without lengthy debate.

During the debate on Judge Martin’s nomination earlier this year, several misstatements were made on the floor of the Senate.  I corrected the record on January 25.  More recently, during Senate consideration of Judge Greenaway’s nomination, additional misstatements were made here.  It may be that some Republicans were unaware of the efforts by me, the Senators from New Jersey, and the Democratic leadership to consider Judge Greenaway’s nomination earlier.  Republicans were repeatedly asked to agree to consider both the Martin and Greenaway nominations.  The Majority Leader stated so on January 22, as did I on January 25.  Those efforts began long before January 22.  Perhaps those Republicans who say it only took two weeks to schedule the Greenaway vote did not know of those discussions.  But it still does not answer the question of why it took two weeks for Republicans to agree hold a vote that was unanimous. 

In addition, the record should be clear that the New Jersey Senators had indicated their support for the Greenaway nomination since it was first announced, and were in no way a source of delay.  Neither Senator “refused” or “failed” to send in their consent to proceed.  To the contrary, the hearing on the Greenaway nomination was in September, because I honored Republicans’ request that Committee not to proceed with additional hearings in the summer, while a Supreme Court nomination was being considered.  The fact is that during those months, it was Senate Republicans who were unprepared to proceed to a hearing on the Greenaway nomination.  There is no cause to blame the Senators from New Jersey for delays in considering that nomination.

Republicans’ suggestion that Democrats are delaying in their consent to advance these nominations is also more than ironic since they have never acknowledged, nor accepted, responsibility for pocket filibustering more than 60 of President Clinton’s judicial nominees.  In fact, when I became Chairman of the Judiciary Committee, I made Senators’ consent forms, or blue slips, public for the first time.  I am still waiting for Republicans to agree to make public their blue slips from 1993 through 2000.  Because of the change I made, the anonymous holds that obstructed so many of President Clinton’s nominees did not continue under President Bush.  Regrettably, unlike President Obama, his predecessor did not work with Senators of the other party on nominations.  It is no secret that the reason the Committee did not proceed on President Bush’s nominee to the vacancy on the Third Circuit from New Jersey was because the New Jersey Senators did not consent. 

So when Senator Sessions says that he respects me for consulting with home state Senators, and in the same statement criticizes me for consulting with home state Senators, it is a bit disturbing.   When he asks me not to hold hearings and then criticizes me for supposedly delaying hearings, it is not fair.  When the Republicans are not ready to proceed on a nomination and then attribute the delays to others, it is wrong.  Maybe the lesson is that I should not accommodate Republican requests but press the schedule more quickly, because otherwise I risk being accused of going too slowly.     

We have seen unprecedented obstruction by Senate Republicans on issue after issue – over 100 filibusters last year alone, which affected 70 percent of all Senate action. Instead of time agreements and the will of the majority, the Senate is faced with a requirement to find 60 Senators to overcome a filibuster on issue after issue.  The Senate was not allowed to complete action on short extensions of unemployment insurance benefits, the Satellite Home Viewer Act, and other needed measures last week because of Republican objection.  Unfortunately, we have seen the repeated abuse of filibusters, and delay and obstruction have become the norm for Senate Republicans.

Just as Senate Republicans reversed themselves when it came time to vote on the deficit reduction commission that they had sponsored; just as Senate Republicans who voted for the USA PATRIOT Act Sunset Extension Act, S.1692, which was reported by the Senate Judiciary Committee last October, have reversed themselves and abandoned it; so, too, have Senate Republicans reversed themselves on filibusters against nominations. Those who just a short time ago said that a majority vote is all that should be needed to confirm a nomination, and that filibusters of nominations are unconstitutional, have reversed themselves and now employ any delaying tactic they can.  They have ratcheted up their partisanship to delay and obstruct the President's nominees -- once the American people elected a Democratic President.

The Republican practice of making supermajorities the new standard to proceed to consider many noncontroversial and well-qualified nominations for important posts in the executive branch, and to fill vacancies on the Federal courts, is having a debilitating effect on our Government's ability to serve the American people.  Hard-working Americans who seek justice in our overburdened Federal courts are the ones who will pay the price for Republicans' obstruction and delay.  They deserve better.

Even after years of Republican pocket filibusters that led to skyrocketing judicial vacancies, Democrats did not practice this kind of obstruction and delay in considering President Bush’s nominations.  We worked hard to reverse the Republican obstructionism.  In the second half of 2001, the Democratic majority in the Senate proceeded to confirm 28 judges.  During just the second year of President Bush's first term, the Democratic Senate majority confirmed 72 judicial nominations and helped reduce the vacancies left by Republican obstructionism of President Clinton’s judicial nominees from over 110 to 59 by the end of 2002.  Overall, as I have noted, in the 17 months that I chaired the Senate Judiciary Committee during President Bush's first term, the Senate confirmed 100 of his judicial nominees.  By comparison, the total number of Federal circuit and district court judges confirmed during the 13 months President Obama has been in office is barely 15 percent of that total.

Senate Democrats continued to work to reduce vacancies even during President Bush’s last year in office. With Senate Democrats again in the majority, we reduced judicial vacancies to as low as 34, even though it was a presidential election year. When President Bush left office, we had reduced vacancies in nine of the 13 Federal circuits.

As matters stand today, judicial vacancies have spiked again, as they did due to Republican obstruction in the 1990s.  These vacancies are again being left unfilled.  We started 2010 with the highest number of vacancies on Article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled.  While it has been nearly 20 years since we enacted a Federal judgeship bill, judicial vacancies are nearing record levels, with 104 current vacancies and another 22 already announced.  If we had proceeded on the judgeship bill recommended by the Judicial Conference to address the growing burden on our Federal judiciary, as we did in 1984 and 1990, in order to provide the resources the courts need, current vacancies would stand over 160 today and would be headed toward 180.  That is the true measure of how far behind we have fallen.

Republican Senators insisted on stalling confirmation of the nomination of Judge Gerard Lynch, who was confirmed with more than 90 votes. They insisted on stalling the nomination of Judge Andre Davis, who was confirmed with more than 70 votes. They unsuccessfully filibustered the nomination of Judge David Hamilton last November, having delayed its consideration for months. They stalled Judge Beverly Martin’s nomination for at least two months because they would not agree to consider it before January 20. They stalled for three additional weeks on Judge Greenaway’s nomination before he was confirmed unanimously.  We have wasted weeks and months having to seek time agreements in order to consider nominations that were reported by the Senate Judiciary Committee unanimously and who are then confirmed overwhelmingly by the Senate once they are finally allowed to be considered.

I, again, urge Senate Republicans to reconsider their strategy and allow prompt consideration of all 14 judicial nominees awaiting Senate consideration, not just Barbara Keenan of Virginia, but also the following nominees: Jane Stranch of Tennessee, nominated to the Sixth Circuit; Judge Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Judge Denny Chin of New York, nominated to the Second Circuit; Judge William Conley, nominated to the Western District of Wisconsin; Justice Rogeriee Thompson of Rhode Island, nominated to the First Circuit; Judge James Wynn of North Carolina, nominated to the Fourth Circuit; Judge Albert Diaz of North Carolina, nominated to the Fourth Circuit; Judge Edward Chen, nominated to the Northern District of California; and Justice Louis Butler, nominated to the Western District of Wisconsin; Nancy Freudenthal, nominated to the District of Wyoming; Denzil Marshall, nominated to the Eastern District of Arkansas; Benita Pearson, nominated to the Northern District of Ohio and Timothy Black, nominated to the Southern District of Ohio.

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