Senate To Vote On Pending Circuit Court Nomination

[WASHINGTON (Monday, Oct. 31, 2011) – The U.S. Senate tonight will vote on a long-pending nomination to fill a judicial emergency vacancy on the Fifth Circuit Court of Appeals.  The Senate Judiciary unanimously reported the nomination of Stephen Higginson to the Fifth Circuit in July.  Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) spoke on the Senate floor in advance of the vote.]

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
October 31, 2011

Full Statement, As Prepared for Delivery

Today, the Senate will finally vote on the nomination of Stephen Higginson of Louisiana to fill a vacancy on the Fifth Circuit which has been a judicial emergency for more than a year.  I anticipate his nomination, which was reported unanimously by the Judiciary Committee more than three and one half months ago on July 14, will be confirmed overwhelmingly.  It would have been confirmed had it been considered before the August recess, rather than subjected to an extensive and unexplained delay.  I hope that the Senate will can build on today’s vote by soon having up or down votes on the other 22 superbly qualified judicial nominations pending on the Senate calendar.  At a time when judicial vacancies have remained at historically high levels for well over two and a half years, we owe it to the American people to work together to ensure that the Federal courts are functioning.

Stephen Higginson is a well-respected, consensus nominee who has served as a Federal prosecutor for 23 years.  He served as a law clerk to Justice Byron White of the United States Supreme Court and to Chief Judge Patricia Wald of the D.C. Circuit, and currently teaches law at the New Orleans College of Law.  The American Bar Association’s Standing Committee on the Federal Judiciary unanimously rated Professor Higginson “well qualified” to serve on the Fifth Circuit, its highest possible rating.  Both of Louisiana’s Senators, Democratic Senator Mary Landrieu and Republican Senator David Vitter, support his nomination.  When Senator Vitter introduced Mr. Higginson to the Judiciary Committee in early June, he joined with Senator Landrieu “in being extremely enthusiastic” about the nomination and said that he “wholeheartedly support[s]” the nomination, saying of the nominee:

“He has unbelievable academic and intellectual credentials that are unquestioned. . . He [has] won the respect of everyone in the community based on his work ethic, and his honesty, and his integrity, and his dedication to the job.” 

Yet, despite the strong endorsement by both his Democratic and Republican home state Senators and the support of every Democrat and every Republican on the Committee, Mr. Higginson’s nomination has been stalled for months by Republican leadership.  The people of Louisiana and the other states of the Fifth Circuit—Mississippi and Texas—deserve an explanation for these unnecessary delays.  So do the 161 million Americans who live in districts or circuits that have a judicial vacancy that could be filled today if the Senate Republicans agreed to vote on the other 22 nominations that were reported favorably by the Judiciary Committee and are ready for a Senate vote. 

There is no good reason or explanation for the Republican leadership’s continued refusal to vote on these stalled nominations.  Senator Grassley and I have worked together to ensure that each of the 23 nominations now on the Senate calendar was fully considered by the Judiciary Committee after a thorough but fair process, including completing our extensive questionnaire and questioning at a hearing.  Like Mr. Higginson, the other 22 nominees who are awaiting final Senate action are qualified nominees, and 19 were reported unanimously by the Committee.  Yet despite their qualifications and broad bipartisan support, many have languished needlessly on the Executive Calendar for weeks.

These delays are not only unnecessary, they are damaging.  The number of judicial vacancies remains at historic levels, having risen above 90 in August 2009, and staying near or above that level ever since.  The number of vacancies is twice as high as it was at this point in President Bush’s first term, when the Senate was expeditiously voting on consensus judicial nominations.  With one in ten Federal judgeships currently vacant, the Senate must come together to address the serious judicial vacancies crisis on Federal courts around the country.  Bill Robinson, the president of the American Bar Association, recently highlighted the serious problems for businesses and individuals affected by these excessive vacancies in a letter to the Senate leaders, joining Justice Scalia, Justice Kennedy and Chief Justice Roberts in warning of the serious problems created by persistent judicial vacancies.

The needless delays in our confirmation process are affecting millions of Americans around the country.  As I have mentioned, more than half of all Americans—161 million—live in districts or circuits with a judicial vacancy that could be filled today if the Senate Republicans agreed to vote on the nominations currently pending on the Executive Calendar.  Twenty-four states are served by Federal courts with vacancies that could be filled immediately if Republicans would agree to vote on the judicial nominations already reported by the Judiciary Committee.  Judicial vacancies in the Second Circuit, which includes Vermont, New York and Connecticut, the Fifth Circuit, which includes Louisiana, Texas and Mississippi, the Ninth Circuit, which includes California, Alaska, Nevada, Arizona, Oregon, Idaho, Montana, Washington, and Hawaii and the Eleventh Circuit, which includes Florida, Georgia, and Alabama, have been designated “judicial emergencies” by the Administrative Office of the United States Courts.  So have vacancies on district courts in New York, Texas, and Utah.  Senate Republicans should explain to the millions of Americans in these states why the Senate cannot fill these vacancies with the bipartisan, consensus nominees who have been vetted and approved by the Judiciary Committee.

The American people need functioning Federal courts with judges, not vacancies.  Despite the damaging number of vacancies that have persisted throughout President Obama’s term, some Republican Senators have tried to excuse their delay in taking up nominations by suggesting that the Senate is doing better than we did during the first three years of President Bush’s administration.  It is true that President Obama is doing better in that he has worked more closely with home state Senators of both parties.  As I have noted, all of the judicial nominees pending and being stalled on the Senate Executive Calendar have the support of both home state Senators.  That was not true of President Bush’s nominees and led to many problems.

The only way to make progress is to do our constitutional duty and confirm qualified judicial nominations to the Federal bench.  We remain well behind the pace we set in dramatically reducing vacancies by regularly scheduling votes during President George W. Bush’s first term.  At this point in President Bush’s first term, the Senate had confirmed 166 of his nominees for the Federal circuit and district courts, including 100 during the 17 months that I was Chairman of the Judiciary Committee.  In contrast, after today’s vote, the Senate will have confirmed only 113 of President Obama’s nominees to Federal circuit and district courts.  Three years into President Bush’s first term, the Senate had confirmed 29 circuit judges.  After today’s vote, we will have confirmed only 22 of President Obama’s circuit court nominees.  We could make significant progress toward matching that pace if we voted on consensus nominees.  Yet, President Obama’s judicial nominees unanimously reported by the Judiciary Committee – by any measure consensus nominees – have waited an average of 80 days – nearly three months – on the Executive Calendar before coming to a vote.  President Bush’s nominees waited an average of just 28 days.  We must bring an end to the needless delays that have obstructed President Obama’s nominations to the Federal bench.

During the last work period the Senate began to make some progress in voting on some of President Obama’s longest-pending judicial nominees.  I thank the Majority Leader for working hard to schedule these votes.  I hope we can build on this progress by continuing to have votes during this work period on consensus nominations.  There is no reason we could not vote today on the nominations of Chris Droney of Connecticut to fill a judicial emergency vacancy on the Second Circuit,  Morgan Christen of Alaska to fill a judicial emergency vacancy on the Ninth Circuit, and Adalberto Jordan of Florida to fill a judicial emergency vacancy on the Eleventh Circuit.  Like Mr. Higginson, these nominations were all reported unanimously.  The circuits to which they are nominated desperately need judges:  the Ninth Circuit Court of Appeals alone has four vacancies, worsening what the Los Angeles Times has recently called “an already critical case backlog” on that court, which is the largest circuit court in the country, covering California and all of the western states.  I ask that the full text of the LA Times article be included in the record at the conclusion of my remarks.

I hope the 22 judicial nominations pending after today will get a vote soon.  We have a long way to go to match the 205 district and circuit court nominations confirmed during President Bush’s first term. 

With millions of Americans currently affected by judicial vacancies that the Senate could fill today, now is the time for Republicans and Democrats to work together so that our courts can better serve the American people.


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